[House Report 107-306]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 107-306
======================================================================
ANTI-HOAX TERRORISM ACT OF 2001
_______
November 29, 2001.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 3209]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 3209) to amend title 18, United States Code, with
respect to false communications about certain criminal
violations, and for other purposes, having considered the same,
reports favorably thereon with an amendment and recommends that
the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 3
Committee Consideration.......................................... 3
Vote of the Committee............................................ 3
Committee Oversight Findings..................................... 3
Performance Goals and Objectives................................. 4
New Budget Authority and Tax Expenditures........................ 4
Congressional Budget Office Cost Estimate........................ 4
Constitutional Authority Statement............................... 5
Section-by-Section Analysis and Discussion....................... 5
Changes in Existing Law Made by the Bill, as Reported............ 6
Markup Transcript................................................ 7
Additional Views................................................. 23
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Anti-Hoax Terrorism Act of 2001''.
SEC. 2. HOAXES AND RECOVERY COSTS.
(a) Prohibition on Hoaxes.--Chapter 47 of title 18, United States
Code, is amended by inserting after section 1036 the following:
``Sec. 1037. False information and hoaxes
``(a) Criminal Violation.--Whoever engages in any conduct, with
intent to convey false or misleading information, under circumstances
where such information may reasonably be believed and where such
information concerns an activity which would constitute a violation of
section 175, 229, 831, or 2332a, shall be fined under this title or
imprisoned not more than 5 years, or both.
``(b) Civil Action.--Whoever engages in any conduct, with intent to
convey false or misleading information, under circumstances where such
information concerns an activity which would constitute a violation of
section 175, 229, 831, or 2332a, is liable in a civil action to any
party incurring expenses incident to any emergency or investigative
response to that conduct, for those expenses.
``(c) Reimbursement.--The court, in imposing a sentence on a
defendant who has been convicted of an offense under subsection (a),
shall order the defendant to reimburse any party incurring expenses
incident to any emergency or investigative response to that conduct,
for those expenses. A person ordered to make reimbursement under this
subsection shall be jointly and severally liable for such expenses with
each other person, if any, who is ordered to make reimbursement under
this subsection for the same expenses. An order of reimbursement under
this subsection shall, for the purposes of enforcement, be treated as a
civil judgment.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 47 of title 18, United States Code, is amended by adding after
the item for section 1036 the following:
``1037. False information and hoaxes.''.
Purpose and Summary
H.R. 3209, the ``Anti-Hoax Terrorism Act of 2001'' creates
criminal and civil penalties for whoever engages in any
conduct, with intent to convey false or misleading information,
under circumstances where such information may reasonably be
believed and where such information concerns an activity which
would constitute a violation of title 18 U.S.C. Sec. 175
(relating to biological weapons attacks), Sec. 229 (relating to
chemical weapons attacks), Sec. 831 (nuclear attacks) or
Sec. 2232a (weapons of mass destruction attacks). This bill
will help protect the public and our nation's security by
deterring and punishing those who perpetrate such hoaxes.
Background and Need for the Legislation
Since the September 11, 2001 attacks and the ongoing
anthrax attacks against United States citizens on United States
soil, the nation has been engaged in a war at home and abroad.
At home, emergency responders, law enforcement and
investigation officials have been working overtime to prevent
terrorist acts and investigate suspicious events and actual
terrorist acts. The efforts on the home front have
understandably drained Federal, state and local resources.
Because of these tragic attacks, the public is alarmed and
appropriately reporting suspicious activity. Our nation is on
high alert and our law enforcement cannot afford to be
distracted. Sadly, while law enforcement and emergency
responders work tirelessly to prevent, respond, and investigate
real cases of terrorism, some have played upon the public's
apprehension with hoaxes.
H.R. 3209, ``the Anti-Hoax Terrorism Act of 2001,''
addresses this growing phenomena of hoaxes that have further
terrorized the American public into falsely thinking biological
attacks have occurred. A hoax of terrorism is terrorism. Such a
hoax is designed to instill fear into the public or its target.
While such hoaxes may not be designed to influence public
policy or governments, they are a serious threat to the
public's safety on many levels. First, such a hoax distracts
law enforcement from the actual threats or actual emergencies
and, in effect, assists terrorists. Second, these hoaxes often
cause buildings and businesses to be evacuated and closed. If a
hoax causes a hospital to be evacuated, for instance, people
could die.
The Department of Justice and the Federal Bureau of
Investigation testified on November 7th, before the
Subcommittee on Crime, and made it clear that these types of
hoaxes threaten the health and safety of the American public
and the national security of the nation.
Under current law, it is a felony to perpetrate a hoax such
as falsely claiming there is a bomb on an airplane. It is also
a felony to communicate in interstate commerce threatening
personal injury to another. A gap exist, however, in the
current law as it does not address a hoax related to
biological, chemical, or nuclear dangers where there is no
specific threat.
That gap needs to be closed. This legislation makes it a
felony to perpetrate a hoax related to biological, chemical,
nuclear, and weapons of mass destruction attacks.
Hearings
On November 7, 2001, the Subcommittee on Crime, held one
hearing on H.R. 3209, the ``Anti- Hoax Terrorism Act of 2001.''
Testimony was received from two witnesses. Invited witnesses
included: Mr. James F. Jarboe, Section Chief, Counterterrorism
Division, Domestic Terrorism, Federal Bureau of Investigation,
and Mr. James Reynolds, Chief, Terrorism and Violent Crime
Section, Criminal Division, U.S. Department of Justice.
Committee Consideration
On November 14, 2001, the Subcommittee on Crime met in open
session and ordered favorably reported the bill, H.R. 3209, as
amended, by a voice vote, a quorum being present. On November
15, 2001, the Committee met in open session and ordered
favorably reported the bill H.R. 3209, with an amendment by
voice vote, a quorum being present.
Vote of the Committee
No recorded votes were held on H.R. 3209.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Performance Goals and Objectives
The bill is intended to impose civil and criminal penalties
to deter and punish a person or persons for perpetrating a hoax
that others could reasonable believe under the circumstance is
or may be a biological, chemical, nuclear or weapons of mass
destruction attack. Such hoaxes diminish Federal law
enforcement resources and divert Federal investigators
attention away from actual threats or cases of terrorism. This
legislation is intended to prevent such a drain and aberration
of Federal resources that threaten the citizens and the
national security of the United States.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures. This bill does provide new
budgetary authority.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 2975, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 21, 2001.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3209, the Anti-
Hoax Terrorism Act of 2001.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 3209--Anti-Hoax Terrorism Act of 2001.
CBO estimates that implementing H.R. 3209 would not result
in any significant cost to the Federal Government. Because
enactment of H.R. 3209 could affect direct spending and
receipts, pay-as-you-go procedures would apply to the bill.
However, CBO estimates that any impact on direct spending and
receipts would not be significant. H.R. 3209 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and would impose no costs on
State, local, or tribal governments.
H.R. 3209 would establish a new Federal crime for the
perpetration of hoaxes involving the threat of biological
agents or other weapons of mass destruction. Offenders would be
subject to imprisonment and criminal and civil fines.
Under the provisions of H.R. 3209, the government would be
able to pursue cases involving hoaxes that it otherwise would
not be able to prosecute. Because there are similar
prohibitions on hoaxes in current law, however, CBO expects
that the bill's provisions would probably affect a small number
of additional cases. Thus, any increase in costs for law
enforcement, court proceedings, or prison operations would not
be significant. Any such costs would be subject to the
availability of appropriated funds.
Because those prosecuted and convicted under H.R. 3209
could be subject to fines, the Federal Government might collect
additional fines if the legislation is enacted. Collections of
civil fines are recorded in the budget as governmental receipts
(revenues). Criminal fines are deposited as receipts in the
Crime Victims Fund and later spent. CBO expects that any
additional receipts and direct spending would be negligible
because of the small number of cases involved.
The CBO staff contact for this estimate is Mark Grabowicz,
who can be reached at 226-2860. This estimate was approved by
Robert A. Sunshine, Assistant Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, of the Constitution.
Section-by-Section Analysis and Discussion
Sec. 1. Short Title.
This Act may be cited as the ``Anti-Hoax Terrorism Act of
2001.''
Sec. 2. Hoaxes and Recovery Costs.
Section 2(a) of the bill adds new section 1037 to title 18.
This new code section provides for criminal and civil
penalties.
New section 1037(a) of title 18 provides that whoever
engages in any conduct, with intent to convey false or
misleading information, under circumstances where such
information may reasonably be believed and where such
information concerns an activity which would constitute a
violation of Sec. 175 (biological attack), Sec. 229 (chemical
attack), Sec. 831 (nuclear attack), or Sec. 2332a (weapons of
mass destruction attack), shall be fined up to $250,000 or
imprisoned not more than 5 years or both.
This new provision is consistent with current provisions in
the criminal code that treat hoaxes related to certain crimes
as felonies. For example, 18 U.S.C. Sec. 1365(c)(1) provides
``whoever knowingly communicates false information that a
consumer product has been tainted . . . shall be fined under
this title or imprisoned not more than 5 years or both.''
Similar to existing hoax provisions, the language of
Sec. 1037(a) includes a mens rea (intent) requirement. The
language requires that the perpetrator have ``the intent'' to
convey false or misleading information. The Committee believes
that this mens rea requirement will protect innocent
individuals who have acted inadvertently. As an additional
protection against prosecuting innocent or inadvertent
behavior, the legislative language requires that the
information be reasonably believable and concern activities
that would constitute a violation of criminal law relating to
biological, chemical, nuclear or weapons of mass destruction.
Some have argued that the legislative language should
include the phrase ``malicious intent'' or similar language
using the word malicious. The Committee rejected this
suggestion and believes the inclusion of the term ``malicious''
or any derivative would render the legislation useless. The
term ``malicious'' means that a person has the intent to harm
another.
By its very nature, a hoax is not intended to physically
harm or injure a person. If the person had the intent to harm,
they would, use real weapons, such as anthrax instead of
powdered sugar. By using powdered sugar instead of anthrax, the
person engaging in the hoax can argue that it was a joke and no
harm could come to anyone. Furthermore, it is the view of the
Committee that the issue is whether the victims reasonably
believed they were or could be harmed, not whether the
criminal, while intending to convey false or misleading
information about a biological, nuclear, or chemical attack
also intended to physically harm people. Accordingly, the
Committee believes adding the word malicious or a derivation of
the word would gut the bill.
Section 1037(b) provides that whoever engages in such a
hoax, may be liable in a civil action to any party incurring
expenses incident to the emergency and investigative response.
Section 1037(c) requires any person convicted of a
violation of subsection (a) to reimburse any party for expenses
incurred in responding to the hoax. A person ordered to
reimburse under this section would be jointly and severally
liable for such expenses with any other person ordered to
reimburse under this section for the same expenses. This
section was amended to clarify that the reimbursement is a
civil judgement.
Section 2(b) of the bill is a clerical amendment.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
CHAPTER 47 OF TITLE 18, UNITED STATES CODE
* * * * * * *
CHAPTER 47--FRAUD AND FALSE STATEMENTS
Sec.
1001. Statements or entries generally.
* * * * * * *
1037. False information and hoaxes.
* * * * * * *
Sec. 1037. False information and hoaxes
(a) Criminal Violation.--Whoever engages in any conduct,
with intent to convey false or misleading information, under
circumstances where such information may reasonably be believed
and where such information concerns an activity which would
constitute a violation of section 175, 229, 831, or 2332a,
shall be fined under this title or imprisoned not more than 5
years, or both.
(b) Civil Action.--Whoever engages in any conduct, with
intent to convey false or misleading information, under
circumstances where such information concerns an activity which
would constitute a violation of section 175, 229, 831, or
2332a, is liable in a civil action to any party incurring
expenses incident to any emergency or investigative response to
that conduct, for those expenses.
(c) Reimbursement.--The court, in imposing a sentence on a
defendant who has been convicted of an offense under subsection
(a), shall order the defendant to reimburse any party incurring
expenses incident to any emergency or investigative response to
that conduct, for those expenses. A person ordered to make
reimbursement under this subsection shall be jointly and
severally liable for such expenses with each other person, if
any, who is ordered to make reimbursement under this subsection
for the same expenses. An order of reimbursement under this
subsection shall, for the purposes of enforcement, be treated
as a civil judgment.
Markup Transcript
BUSINESS MEETING
THURSDAY, NOVEMBER 15, 2001
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:10 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. (Chairman of the Committee) presiding.
Chairman Sensenbrenner. The Committee will be in order.
The next item on the agenda is H.R. 3209, the Anti-Hoax
Terrorism Act of 2001. The Chair recognizes the gentleman from
Texas, Mr. Smith, the Chairman of the Subcommittee on Crime.
[The bill, H.R. 3209, follows:]
Mr. Smith. Mr. Chairman, the Subcommittee on Crime reports
favorably the bill H.R. 3209 with a single amendment in the
nature of a substitute and moves its favorable recommendation
to the full House.
Chairman Sensenbrenner. Without objection, the bill will be
considered as read and the Subcommittee amendment in the nature
of a substitute, which the Members have before them, will be
considered as the original text for purposes of amendment and
will be considered as read and open for amendment at any point.
[The amendment follows:]
Chairman Sensenbrenner. The Chair recognizes the gentleman
from Texas to strike the last word.
Mr. Smith. Thank you, Mr. Chairman. I do move to strike the
last word.
Mr. Chairman, H.R. 3209, the Anti-Hoax Terrorism Act of
2001, addresses the hoaxes that have terrorized the American
people into believing biological attacks have occurred.
However, hoaxes related to anthrax, for example, don't
always contain specific threats and are, therefore, not covered
by current law.
If someone places white powder on a computer with a note
saying, ``This is anthrax,'' or sends harmless white powder
through the mail, such conduct may cause panic but violates no
Federal law.
The Department of Justice and Federal Bureau of
Investigation testified last week before the Subcommittee on
Crime and made it clear that these types of hoaxes threaten
public safety and health and the national security of our
country.
Such hoaxes also drain law enforcement and other resources
away from actual emergencies and terrorist threats.
If a hoax causes a hospital to be evacuated, people could
die. If a hoax causes a business to close, people could lose
their jobs. And if a hoax preoccupies law enforcement
officials, the public could be denied protection from other
crimes.
This legislation creates criminal and civil penalties for
whoever engages in conduct with the intent to convey false or
misleading information that may reasonably be believed to
constitute a biological, chemical, or nuclear attack.
This bill makes it a felony to carry out such a hoax.
Additionally, whoever engages in this crime will be subject to
a criminal fine of up to $250,000 in civil penalties and will
have to reimburse the victims of this crime for expenses
incident to any emergency or investigative response.
Mr. Chairman, America is engaged in a war on terrorism.
Those who prey on fear should be held responsible for their
actions.
This bill will help protect the public and our Nation's
security by deterring and punishing those who perpetrate such
hoaxes. So I urge my colleagues to support this much-needed
legislation and yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Thank you, Mr. Chairman.
And I am pleased to join the gentleman from Texas, the
Chairman of the Subcommittee, in joining as an original
cosponsor of the bill, because it addresses a real and serious
problem.
In this climate of heightened alert and attention,
necessitated by the events of September 11th, local emergency
and first response operations are constantly overstrained. In a
recent meeting with a group of officials representing such
operations, I was told that enormous resources are already
being expended to investigate suspected anthrax and other bio
and chemical scares.
Officials in the City of Norfolk, a city of about 275,000
residents, estimated that it had spent over $70,000 in tracking
down scares, all of which fortunately proved to be false
alarms.
There are legitimate inquiries which are triaged between
law enforcement, medical, and other appropriate personnel
before committing investigatory resources, but with the limited
resources available in most localities to conduct such
investigations, even when they are based on legitimate reasons
for concerns, the last thing we need to do is waste such
valuable time and resources on pranks or hoaxes.
It is my understanding that there are holes in our current
ability at the Federal level to prosecute terroristic hoaxes. I
don't know what the situation is on State laws, but we should
certainly have the ability to go after such cases on the
Federal level, and that's what the bill does.
There is one provision in the bill which I have a concern
with, and that is the lack of discretion on the judge in
setting the amount of the fine. I had an amendment that
provided for such discretion. The amendment did not pass.
However, the Chairman and I agreed on an amendment, which will
be offered, which makes it clear that the reimbursement orders
will be civil judgments in nature and, therefore, the defendant
will not be subject to jail time for nonpayment.
Thank you, Mr. Chairman. I look forward to consideration of
the legislation.
Chairman Sensenbrenner. Without objection, the opening
statements of all Members will be inserted into the record at
this point.
[The statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress From the State of Michigan
While I am an original cosponsor of this legislation and support
the efforts the Subcommittee Chair and Ranking Member have made to
narrow and clarify it since then, I do believe the bill should be
narrowed in several respects.
It is unfortunate that some people have decided to take advantage
of people's fears during this national crisis to perpetrate hoaxes
regarding anthrax or other biological, chemical, or nuclear materials.
It goes without saying that people who engage in such senseless
behavior should be punished. While the bill before us accomplishes that
goal, I believe it goes too far.
The climate we now live in has encouraged people to transmit
warnings of every potential attack they hear about, and they should not
be criminally penalized for their fears. Similarly, teenagers who have
not learned better and engage in simple pranks should not be targeted
by this legislation. That is why I hope the bill can be narrowed
further so that only those who maliciously engage in such hoaxes are
punishable.
Moreover, the bill requires convicted defendants to reimburse the
government for any costs associated with investigations into the hoax.
Cases should be decided on their individual merits; as such, I believe
the judiciary should have the discretion to determine if and when a
defendant should have to pay costs.
Thank you, Mr. Chairman.
[The statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas
I would like to thank Chairman Sensenbrenner and Ranking Member
Conyers for convening this markup on H.R. 3209, the ``Anti-Hoax
Terrorism Act of 2001.''
In light of the exponentially increasing amounts of bioterrorism
threats that have occurred since September 11, a Federal anti-hoax
provision is needed now more than ever. We must provide the resources
and expertise that States and localities may not posses in order to
respond to these hoaxes.
H.R. 3209 would make it a Federal crime for anyone who
intentionally imparts false information and hoaxes. The defendant shall
be fined or imprisoned not more than five years, or both.
Mr. Chairman, the purpose of this bill should not be to prosecute
innocent mistakes or someone making a report concerning a suspected
substance, but rather it would apply to deliberate and malicious hoaxes
reported by individuals who know they are spreading false information.
This legislation should ensure that a person who executes a hoax
intends that the hoax result in severe consequences such as a response
from emergency personnel.
The purpose of most common pranks is to embarrass, humiliate,
frighten, or exploit without malicious intent. It is not intended to
threaten mass destruction or elicit an emergency response. For example,
in Anne Arundel County, MD, two juveniles were arrested after they
placed powder in an envelope and did not even mail it, but the envelope
was found by someone else and reported, causing an unintended emergency
response. The Chairman of the Subcommittee on Crime, Mr. Smith, has
reiterated that juveniles would not be prosecuted as adults under this
bill. However, a local prosecutor in Chicago recently placed an
envelope containing sugar on a colleague's desk. He was
administratively punished by being forced to resign from his job. The
current language still does not protect those who carry out practical
jokes.
I offer an amendment today that would allow the prosecution of
persons who execute hoaxes with the malicious intent to deceive the
victim. By requiring the defendant to have acted ``maliciously,''
juvenile pranks or the innocent spreading of rumors will not be
federalized.
The language in my amendment would give prosecutors a means to
distinguish between a person who is actually threatening to use anthrax
on a victim on one hand, and a person who never intends to use it, but
truly wants the victim or police to think they have done so. The latter
is what we are trying to prevent.
Mr. Chairman, this legislation should punish hoaxes intending to
cause a grave ands serious consequence. Malicious acts deserve Federal
felony prosecution; innocent bad judgment and juvenile bad behavior do
not. Let us work together towards that end.
Thank you.
Are there any amendments?
Ms. Jackson Lee. Mr. Chairman?
Mr. Smith. Mr. Scott has one, I know.
Ms. Jackson Lee. I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will----
Ms. Jackson Lee. For H.R. 3209.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3209, offered by Ms. Jackson
Lee of Texas. On page 1, line 12, insert ``the malicious''
after ``with'' and before ``intent.''
[The amendment follows:]
Chairman Sensenbrenner. The gentlewoman from Texas is
recognized for 5 minutes.
Ms. Jackson Lee. Mr. Chairman, we turned a new page in
history on September 11th, and I am well-aware of many of the
important measures that this particular Committee has to
address. And we have done so with an effort to be bipartisan.
This legislation is one that draws a great deal of support
on the basis that these are serious times. And so I do not
diminish that level of seriousness.
But we also know that this is a country that is used to
freedom of expression, freedom of movement, and, as well,
freedom of engagement. I want to make sure that as we prosecute
those who would do harm through hoaxes that we have a clear
definition, and so my amendment seeks to add the words
``maliciously'' and ``knowingly'' so that we can avoid the wide
fishnet to those jokesters who have no mean intent.
This language has been supported by the Senate. It gives
prosecutors the means to distinguish between a person who is
actually threatening to use anthrax or some other substance or
some other act on a victim on one hand, and a person who never
intends to use it but truly wants the victim or police to think
they have done so.
It avoids federalizing of juvenile pranks. And I know there
was a comment made that the bill does not indicate that it will
be trying juveniles as adults, but it does not preclude such.
And I don't believe these hoaxes that are unintended is
going to deserve lengthy Federal prison.
And if I can correct an earlier statement, this language
adds the word ``maliciously'' since ``knowingly'' is already in
the bill.
Malicious acts deserve Federal felony prosecution. But
innocent bad judgment and bad jokes do not.
I would hope that we would give this legislation the
strength that it deserves by adding this language and, as well,
providing the clarity that I think criminal prosecutions need.
This does not take away from the legislation's strength,
because those people who are intent on doing evil will be
captured by this legislation with this amendment. And I would
hope that this would occur.
I do want to respond to the suggestion or the thought that
in giving prosecutors discretion, we know that they will make
the right judgment. And I respect prosecutors; I have served on
a municipal court bench.
But in the course and the rapidness of the day's work, I
don't think we can put justice and balance on the issue of
hope. And I think prosecutors clearly appreciate distinctive
standards by which they can make judgments in order to move
forward on prosecution or to the grand jury.
That's all we're asking to do, is to realize that the
jokesters of which we Americans have grown up with--the Will
Rogers of the world--that we do not capture them--the late-
night pranksters on late-night shows--that we really deal with
those who are malicious.
And I would ask my colleagues to accept this amendment on
the anti-hoax legislation.
Chairman Sensenbrenner. The gentleman from Texas.
Mr. Smith. Mr. Chairman, I oppose this amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Smith. Mr. Chairman, the phrase ``malicious'' has
common law roots. In the criminal law in the English
dictionary, malicious means intending to harm another person.
But in this case, adding what appears to be a simple phrase
actually would weaken the bill. Adding the term ``malicious,''
in fact, would render the legislation useless.
The term ``malicious'' means that a person has the intent
to harm another. By its very nature, a hoax is not intended to
harm or injure another person.
If the person had the intent to harm, they would use real
biological weapons, for example, such as anthrax, instead of
powdered sugar. By using powdered sugar instead of anthrax, the
person who engages in the hoax can argue that it was a joke and
that they did not intend to harm anyone.
The issue is not whether the criminal intended to
physically harm the victims of the hoax, but whether the
victims reasonably believed they might be harmed.
Furthermore, Mr. Chairman, the model penal code contends
that there are only four separate recognizable states of mind:
purposeful, knowing, reckless, and negligent. Malicious is not
one of those four states of mind.
So I would urge my colleagues to oppose this amendment.
Chairman Sensenbrenner. The question is on the adoption of
the----
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, the adoption of the amendment
would mean that bad jokes would not be criminalized. I think
that's a good idea, and I would support the amendment.
We should not indict and arrest, try, and try to send to
jail people who have bad judgment and make bad jokes.
I would hope we would adopt the amendment. I yield back.
Chairman Sensenbrenner. The question is on the adoption of
the amendment by the gentlewoman from Texas, Ms. Jackson Lee.
Those in favor will say aye.
Opposed, no.
The noes appear to have it. The noes have it, and the
amendment is not agreed to.
Are there further amendments?
Mr. Scott. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3209, offered by Mr. Scott.
Page 2, line 15, after the first period, insert ``an order of
reimbursement under this subsection shall, for the purposes of
enforcement, be treated as a civil judgment.''
[The amendment follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, the amendment is self-explanatory.
Some of the judgment--some of the reimbursement orders that
could be ordered could be much more than could ever reasonably
be paid. The judgments will be joint and severable--the
defendants will be jointly and severably liable. And if it is
enforced as a civil judgment, you get just about everything the
person has. You would not be able to throw them in jail, for
example, for not going to work, as you could under a criminal
fine.
And I would hope that we would adopt the amendment.
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Smith.
Mr. Smith. Mr. Chairman, the gentleman from Virginia, Mr.
Scott, brought this concern out, both during the hearing and
during yesterday's markup in the Subcommittee, and I agree that
he makes a good point. There was never any intent in this
legislation to put someone in jail for failure to pay this
reimbursement.
And so I would like to urge my colleagues to support this
amendment.
Chairman Sensenbrenner. The question is on the amendment of
the gentleman from Virginia, Mr. Scott.
Those in favor will signify by saying aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment is agreed to.
Are there further amendments?
Mr. Barr. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Georgia, Mr.
Barr.
Mr. Barr. I would like to ask unanimous consent to engage
in a brief colloquy with the Chairman of the Subcommittee.
Chairman Sensenbrenner. The gentleman moved to strike the
last word, and he's recognized for 5 minutes.
Mr. Barr. Thank you.
As the distinguished Chairman of the Subcommittee knows,
based on both comments during our hearing and at yesterday's
Subcommittee markup on this, I have expressed some concerns
similar to those expressed by a couple of other learned Members
of this Committee to try and ensure that what we are not doing
here is federalizing with the full weight of the Federal
criminal law apparatus bad jokes and juvenile behavior, while
certainly recognizing also that, particularly in the climate
engendered by recent terrorist activities, there is a very
legitimate concern for the people of this country and for the
Federal Government to stop serious hoaxes and to punish those,
particularly when they result in very serious action and
reaction on the part of government, emergency, and police, and
national security personnel.
I would just like to have the distinguished Chairman of the
Subcommittee explain in a little more detail his bill as
proposed today, as has been redrafted, to ensure that we have
legislative history indicating that it is not intended to reach
simply a bad joke.
And I would yield to the Chairman.
Mr. Smith. I thank the gentleman for yielding.
And I would like to reassure the gentleman from Georgia, as
well as the gentlewoman from Texas, Ms. Jackson Lee, that it is
certainly not the intent of this legislation to punish anyone
who engages in a prank that lasts 5 minutes, for example.
The intent of the legislation is, in fact, to punish
someone who, for example, engages in a hoax that perhaps shuts
down a hospital and causes loss of life. A prank such as the
gentleman described would not rise to the level of leaving the
false impression that it would violate four sections of the
criminal code.
So I would like to reassure the gentleman, I am happy to
state for the record that that kind of short-term prank that
would be over with in a couple of minutes and not create the
harm or the injury or the danger that is anticipated with a
real hoax would not be prosecuted.
The intent of the legislation, again, is only to punish
those who engage in hoaxes that create a real threat and a
serious and reasonable belief that a biological, chemical, or
nuclear attack has occurred.
Mr. Barr. I thank the gentleman.
Mr. Delahunt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Massachusetts.
Mr. Delahunt. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Delahunt. I'll be brief, Mr. Chairman. And I respect
the concerns that have been articulated by my friend from
Georgia and gentlelady from Texas.
But I just want to make two observations, because I think
it's important that we understand, particularly as it relates
to juveniles, that in those cases, if juveniles are charged
with an offense under this particular proposal, they will be
tried in the Federal courts as juveniles. And clearly, all of
the protections afforded juveniles will pertain to them, given
the distinctions made between juveniles and adults in our
criminal jurisprudence.
There is, I suggest, no need to make any exception because
it already exists.
And additionally, I would daresay that any prosecutor
hopefully would exercise appropriate prosecutorial discretion
when it came to the appropriate charge and appropriate
recommendation in cases involving hoaxes. Clearly, there are
differences in degree in terms of the harm that is inflicted.
At some point in time, we have to rely on individuals in
our system of justice to exercise balanced and fair and
appropriate judgment.
I think this is a very good piece of legislation. I think
it makes sense. It's long overdue. And I hope that it passes.
Chairman Sensenbrenner. Are there further amendments?
Ms. Jackson Lee. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from Texas, Ms.
Jackson Lee.
Ms. Jackson Lee. I would like to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Jackson Lee. I thank the Chairman very much.
I think this discussion is a very productive discussion,
and I do thank Mr. Barr for his comments and colloquy with Mr.
Smith, and the effort at the clarification that this is
legislation, of which broadly I support, that intends to
capture those who would do evil and would do wrong in that they
wish to have a negative impact to create terror, to frighten
people.
But I do want to add a note of caution and a caveat.
For all of my good friends who are here who are former
prosecutors, I have the greatest respect for them and certainly
have had the experience of presiding as they have made
presentations in a local court scenario.
But let me be very clear that all cannot rest on our hope
and good wishes for all prosecutors throughout the Nation.
Now, I will look at this bill more closely and determine
whether or not the representations that have been made are
accurate.
But in Houston, Texas, right now we have Vanessa Leggett, a
young woman who has been held for more than 3 months, a
journalist that U.S. prosecutors refuse to give even bail
because they allege that she is interfering with a criminal
prosecution, which is absolutely not accurate, in that she has
cooperated and she has journalistic privileges. She is not the
criminal; she has spoken in the context of writing a book.
That's poor judgment. And I think you can find poor
judgment examples across the Nation.
Additionally, those of us who have dealt with racial
profiling know there is a lot of poor judgment that goes on in
the prosecutorial, in the criminal justice system. And,
therefore, I think this Judiciary Committee, Republicans and
Democrats alike, because there may be poor judgment on those
who have avocations or advocate positions that I may disagree
with, there may be those who are in the groups that I may have
a difference of opinion, but they have a right to have access
to a fair system.
I think when we write legislation, we should err on the
side of being the fairest that we possibly can be and not yet
suggest that the good judgment of prosecutors will be the rule
of the day. We have had good judgment, and we've had judgment
that has not been so good.
So I will be studying this legislation. But I frankly
believe that the language was not language that would undermine
the bill. I think it would help strengthen the bill. And,
again, I think the merits of the bill are certainly warranting
of this Committee's support.
And I thank the Chairman for yielding.
Chairman Sensenbrenner. Are there further amendments?
Hearing none, the question occurs on the amendment in the
nature of a substitute as amended.
Those in favor will say aye.
Opposed, no.
The aye has it. [Laughter.]
And the amendment in the nature of a substitute is agreed
to.
The Chair notes the presence of a reporting quorum. The
question now occurs on the motion to report the bill H.R. 3209
favorably as amended by the amendment in the nature of a
substitute as amended.
Those in favor will say aye.
Opposed, no.
The ayes have it, and the motion to report favorably is
adopted.
Without objection, the Chairman is authorized to move to go
to conference pursuant to House rules. Without objection, the
staff is directed to make any technical and conforming changes.
And all Members will be given 2 days as provided by the rules
in which to submit additional dissenting, supplemental, or
minority views.
[Intervening business.]
The Chair thanks the Members for their indulgence and
support. This concludes the business on the notice, and the
Committee is adjourned.
[Whereupon, at 11:06 a.m., the Committee was adjourned.]
Additional Views
We support the effort to punish people who perpetrate
hoaxes involving biological, chemical, or nuclear materials or
other weapons of mass destruction; in this time of national
crisis, it is outrageous for any individual to take advantage
of our collective anxiety about terrorist acts.\1\ Clearly, we
must act to provide law enforcement with the tools it needs to
address this problem.\2\ For that reason, we support H.R. 3209,
the ``Anti-Hoax Terrorism Act of 2001,'' which creates a
Federal criminal penalty and a civil cause of action to convey
intentionally any false information about a threat involving
biological, chemical, or nuclear weapons or weapons of mass
destruction. We are submitting these additional views, however,
because we believe H.R. 3209 is unintentionally drafted too
broadly and because it imposes mandatory restitution in
criminal cases. We hope these matters can be addressed as we
move to the floor or resolve differences with the Senate.
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\1\ There has been a recent rash of anthrax hoaxes, where one or
more persons have decided to intimidate others by sending powder
through the mail purporting to be anthrax, but later determined to be
harmless. A large portion of recipients of such letters have been
abortion clinics and pro-choice groups; in fact, over 280 clinics have
been threatened since the initial outbreak. Dennis B. Roddy, Anthrax
Threats Target 2 Abortion Providers Here, Others in East, Pittsburgh
Post-Gazette, Nov. 9, 2001, at A11. In a recent incident, a perpetrator
used Federal Express to send powder and a threatening note to a pro-
choice group and went so far as to forge the billing numbers and return
addresses of the groups themselves. Id.
\2\ While Federal authorities do have some tools available against
such offenders, see 18 U.S.C. Sec. 876 (penalties for mailing
threatening communications), we have heard the call of clinics and
other targets that additional legislation is needed to fill gaps. See,
e.g., Planned Parenthood Voices Support for Anti-Terrorism Bill, Press
Release (Nov. 15, 2001) (``We are pleased to see Congress is
considering stiffer penalties for people who commit such acts.'').
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The bill, as currently drafted, would make it a Federal
crime to engage in ``any conduct'' (1) ``with the intent to
convey false or misleading information under circumstances
where such information may reasonably be believed,'' and (2)
where the information concerns an activity which would violate
Federal law with respect to chemical weapons, biological
weapons, nuclear materials, or weapons of mass destruction.
This offense would be punishable by a fine, imprisonment of up
to five years, or both. In addition, the bill makes the
individual who conveys such information subject to a civil
action for emergency or investigative responses incurred as a
result of responding to the false information. Finally, the
bill requires the court to order a person convicted of this
Federal crime to pay restitution. The person would be jointly
and severally liable for restitution, and the restitution would
be treated as a civil, rather than a criminal, fine. The
following is a description of the concerns we would hope could
be addressed before the bill is signed into law.
I. OVERBREADTH
Whenever we create new criminal penalties, we must do so in
a measured and reasonable manner. That is why Rep. Sheila
Jackson Lee (D-TX) offered an amendment at the Committee's
markup to require the government to prove that the hoax was
perpetrated with ``malicious'' intent.\3\
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\3\ Requiring the government to prove the conduct was intended
maliciously would have provided a parallel with the mens rea
requirement of similar legislation introduced in the Senate by Sen.
Patrick Leahy (D-VT), Chairman of the Senate Committee on the
Judiciary. See S. 1666, the ``Anti-Terrorist Hoax and False Report Act
of 2001,'' 107th Cong., 1st Sess. Sec. 2 (2001). Unfortunately, the
Jackson Lee amendment was defeated by voice vote.
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We believe that the bill as written could go too far
because it does not require that the offenses be committed with
such intent. First, the legislation could result in Federal
prosecutions of individuals who simply disseminate erroneous
information about potential acts of terrorism. For example, a
chain e-mail recently was circulated that purported to contain
credible information that terrorist acts involving anthrax
would occur in shopping malls on October 31, 2001. Such acts
did not occur. Under a strict reading of this bill, an
individual who forwarded that e-mail knowing it to be false,
but could reasonably be believed, would be subject to Federal
prosecution.
Also subject to Federal prosecution would be incidents that
amount to nothing more than mere jokes. It has been reported
that there is almost a national ``epidemic'' of people who are
sending or giving powder to friends or coworkers to give a
temporary scare about anthrax but not intending ill will.\4\
Furthermore, it should come as no surprise that there are
teenagers out there who have not learned better and engage in
simple pranks just to scare friends.\5\ While we believe that
this demonstrates poor taste and bad judgement, we do not
believe it should be subject to Federal prosecution.
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\4\ Susan Levine, Disseminating Dread; Pranksters, Disgruntled
Americans Perpetrate Hoaxes, Wash. Post, Oct. 26, 2001, at A1.
\5\ Id.
---------------------------------------------------------------------------
The Majority's response essentially has been to concede
that this reading of the bill is correct but we should simply
trust that Federal prosecutors will exercise their discretion
and avoid prosecuting such cases. While it is true that most
prosecutors will refrain from prosecuting incidences involving
misguided pranks or bad jokes, we already are seeing that, in
the current atmosphere, there are prosecutors who will bring
such cases.\6\ Congress should preclude such overzealous
prosecutions through more narrowly-tailored language in this
bill.
---------------------------------------------------------------------------
\6\ Id.
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Third, despite the gaps we acknowledge exist in current
Federal law, there are some remedies available to law
enforcement against serious offenses. For instance, some state
authorities already have begun criminal investigation and
prosecutions against persons whose hoaxes were so egregious
that they crossed the line.\7\ In addition, numerous employers
have fired employees who engaged in such acts.\8\ These
examples show that the congressional response to the hoax
epidemic does not need to address each and every scare;
instead, it can and should be narrowly tailored to the most
egregious cases.
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\7\ In one case, a firefighter in Lycoming County, Pennsylvania,
told his colleagues that powder had spilled from an envelope he had
opened at home; a few weeks later, he was in court facing the felony
criminal charge of creating a disturbance. Martin Kasindorf & Toni
Locy, Anthrax Hoaxes Persist Despite Arrests, USA Today, Nov. 6, 2001,
at 1A. In addition, state prosecutors have filed felony disorderly
conduct charges against a Cook County, Illinois prosecutor who put on a
colleague's desk an envelope filled with sugar and bearing the return
address of a defendant in that colleague's case. Richard Roeper,
Anthrax-Joke Epidemic is Real National Illness, Chicago Sun-Times, Nov.
5, 2001, at 11. Finally, Kentucky State Police are conducting a
criminal investigation of Bourbon County Sheriff John Ransdell, who
``slipped envelopes containing crushed aspirin onto courthouse
employees' desks,'' purportedly to test employee preparedness. Laura
Yuen, Sheriff Target of Criminal Inquiry over Aspirin He Put in
Envelopes, Lexington Herald Leader, Nov. 1, 2001, at A1.
\8\ Roeper, supra; Valerie Schremp, Fired Worker at GM Plant is
Charged in Prank Involving the Anthrax Scare, St. Louis Post-Dispatch,
Oct. 24, 2001, at A4.
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Unfortunately, the Majority opposed the amendment on the
grounds that it would render the legislation meaningless. The
rationale was that ``malicious'' means ``intending to cause
harm'' and that perpetrators could argue it is clear they did
not intend to cause harm because they did not send real
anthrax. This argument is flawed, however, because the term
``malicious'' does not mean ``intent to cause harm;'' instead,
it has been defined as ``characterized by, or involving,
malice; having, or done with, wicked, evil or mischievous
intentions or motives; wrongful and done intentionally without
just cause or excuse or as a result of ill will.'' \9\ As such,
the amendment would have clarified that the legislation would
apply only to persons who are conveying ill will, not simply
those joking in bad taste.
---------------------------------------------------------------------------
\9\ Black's Law Dictionary 958 (6th ed. 1990).
---------------------------------------------------------------------------
Another problem with the existing intent standard is that
it does not require the defendant to know that the information
conveyed was false or misleading. As it is written, the bill
could lead to the prosecution of a person who intended to
convey information but did not intend for it to be ``false or
misleading.'' For that reason, we hope the bill can be
clarified to state that the person must know the information is
false or misleading.
II. MANDATORY RESTITUTION
We also are concerned that because the bill imposes
mandatory restitution for criminal violations and, therefore,
eliminates judicial discretion in making sentencing decisions
and discriminates against those with lower incomes. More
specifically, H.R. 3209 requires judges to order those
convicted of a criminal hoax offense to reimburse any party--
likely to be the government--for any expenses incurred due to
the hoax.\10\
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\10\ H.R. 3209 Sec. 2(a) (``[t]he court, in imposing a sentence on
a defendant who has been convicted of a [criminal hoax offense], shall
order the defendant to reimburse any party incurring expenses incident
to any emergency or investigative response to that conduct, for those
expenses. A person ordered to make reimbursement under this subsection
shall be jointly and severally liable for such expenses with each other
person, if any, who is ordered to make reimbursement under this
subsection for the same expenses.'') (emphasis added). The provision
was tempered by an amendment offered by Rep. Bobby Scott (D-VA)
ensuring that reimbursement orders would be civil, not criminal,
judgments, so that those unable to pay would not go to jail.
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The first problem with this provision is that, as with
mandatory minimum penalties, it removes judges from the
sentencing process and thereby strips their discretion. Under
current law, whether a defendant should be required to make
restitution generally is left to the discretion of the
sentencing judge.\11\ In fact, leaving judges the discretion to
make sentencing decision has been a prized characteristic of
our judicial system and prior congressional actions to strip
that away have been criticized.\12\ Unfortunately, this
provision prohibits judges from making case-by-case
determinations about whether an individual should be required
to reimburse the government or any other party, thus subjecting
all defendants to a one-size-fits-all punishment scheme.
---------------------------------------------------------------------------
\11\ See, e.g., 18 U.S.C. Sec. 3663.
\12\ See, e.g., Lucy Quinlivan, Judge Quits Case over Sentencing;
Federal Mandate Cited in Drug Case, Saint Paul Pioneer Press, Jan. 20,
2001, at 1B (Federal judge removes himself from case rather than
complying with U.S. Court of Appeals order to impose harsher sentence
in line with Federal Sentencing Guidelines); Michael R. Bromwich, Put a
Stop to Savage Sentencing, Wash. Post., Nov. 22, 1999, at A23 (op-ed);
Linda Greenhouse, Guidelines on Sentencing Are Flawed, Justice Says,
N.Y. Times, Nov. 21, 1998, at A12 (Supreme Court Justice Stephen G.
Breyer criticizing the Federal Sentencing Guidelines and ``calling for
Federal judges to regain some of their traditional discretion to make
the punishment fit the crime.''); Benjamin Weiser, Judge Has His Own
Take on Sentencing Formulas, N.Y. Times, Sept. 14, 1997, at 1-39
(Federal judge sometimes imposes lighter or harsher sentences than the
Federal guidelines call for depending on the circumstances of each
case).
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Moreover, mandatory restitution discriminates on the basis
of economic status, in that those with lower incomes would be
less likely to be able to comply with reimbursement orders.\13\
As a result, defendant with lower incomes would be more likely
to fall irreversibly into the justice system, from the initial
criminal conviction to a reimbursement order and then possibly
to a contempt of court citation for not providing
reimbursement.\14\
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\13\ See, e.g., Letter from Ira Glasser & Laura Murphy Lee, ACLU,
to the Honorable Henry Hyde, Chairman, House Comm. on the Judiciary
(Jan. 27, 1995).
\14\ Pursuant to an amendment adopted at the Committee markup and
offered by Reps. Bobby Scott (D-VA) and Lamar Smith (D-TX), the
reimbursement order would be treated as a civil, not criminal,
judgment.
John Conyers, Jr.
Robert C. Scott.
Sheila Jackson Lee.
Maxine Waters.