79–006

106TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 106–932

ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 2000

OCTOBER 4, 2000.—Committed to the Committee of the Whole House on the State

of the Union and ordered to be printed

Mr. CANADY, from the Committee on the Judiciary,

submitted the following

R E P O R T

[To accompany H.R. 5018]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill

(H.R. 5018) amending title 18, United States Code, to modify certain provisions of law relating to the interception of communications, and for other purposes, having considered the same, reports

favorably thereon with an amendment and recommends that the

bill as amended do pass.

TABLE OF CONTENTS

Page

The Amendment ......................................................................................... 2

Purpose and Summary .............................................................................. 7

Background and Need for the Legislation ................................................ 8

Hearings ...................................................................................................... 22

Committee Consideration .......................................................................... 23

Votes of the Committee ............................................................................. 23

Committee Oversight Findings ................................................................. 27

Committee on Government Reform Findings .......................................... 27

New Budget Authority and Tax Expenditures ........................................ 27

Congressional Budget Office Cost Estimate ............................................ 27

Constitutional Authority Statement ......................................................... 29

Section-by-Section Analysis and Discussion ............................................ 29

Changes in Existing Law Made by the Bill, as Reported ....................... 31

2

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 ‘‘Electronic Communications Privacy Act of 2000’’.

SEC. 2. USE AS EVIDENCE.

(a) IN GENERAL.—Section 2515 of title 18, United States Code, is amended—

(1) by striking ‘‘wire or oral’’ in the heading and inserting ‘‘wire, oral,

or electronic’’.

(2) by striking ‘‘Whenever any wire or oral communication has been intercepted’’ and inserting ‘‘(a) Except as provided in subsection (b), whenever any

wire, oral, or electronic communication has been intercepted, or any electronic

communication in electronic storage has been disclosed’’;

(3) by inserting ‘‘or chapter 121’’ after ‘‘this chapter’’; and

(4) by adding at the end the following:

‘‘(b) Subsection (a) does not apply to the disclosure, before a grand jury or in

a criminal trial, hearing, or other criminal proceeding, of the contents of a communication, or evidence derived therefrom, against a person alleged to have intercepted, used, or disclosed the communication in violation of this chapter, or chapter

121, or participated in such violation.’’.

(b) SECTION 2517.—Paragraphs (1) and (2) of section 2517 are each amended

by inserting ‘‘or under the circumstances described in section 2515(b)’’ after ‘‘by this

chapter’’.

(c) SECTION 2518.—Section 2518 of title 18, United States Code, is amended—

(1) in subsection (7), by striking ‘‘subsection (d)’’ and inserting ‘‘subsection

(8)(d)’’; and

(2) in subsection (10)—

(A) in paragraph (a)—

(i) by striking ‘‘or oral’’ each place it appears and inserting ‘‘, oral,

or electronic’’;

(ii) by striking the period at the end of clause (iii) and inserting

a semicolon; and

(iii) by inserting ‘‘except that no supresssion may be ordered under

the circumstances described in section 2515(b).’’ before ‘‘Such motion’’;

and

(B) by striking paragraph (c).

(d) CLERICAL AMENDMENT.—The item relating to section 2515 in the table of

sections at the beginning of chapter 119 of title 18, United States Code, is amended

to read as follows

‘‘2515. Prohibition of use as evidence of intercepted wire, oral, or electronic communications.’’.

SEC. 3. REPORTS CONCERNING THE DISCLOSURE OF THE CONTENTS OF ELECTRONIC COMMUNICATIONS.

Section 2703 of title 18, United States Code, is amended by adding at the end

the following:

‘‘(g) REPORTS CONCERNING THE DISCLOSURE OF THE CONTENTS OF ELECTRONIC

COMMUNICATIONS.—

‘‘(1) By January 31 of each calendar year, the judge issuing or denying an

order, warrant, or subpoena, or the authority issuing or denying a subpoena,

under subsection (a) or (b) of this section during the preceding calendar year

shall report on each such order, warrant, or subpoena to the Administrative Office of the United States Courts—

‘‘(A) the fact that the order, warrant, or subpoena was applied for;

‘‘(B) the kind of order, warrant, or subpoena applied for;

‘‘(C) the fact that the order, warrant, or subpoena was granted as applied for, was modified, or was denied;

‘‘(D) the offense specified in the order, warrant, subpoena, or application;

‘‘(E) the identity of the agency making the application; and

‘‘(F) the nature of the facilities from which or the place where the contents of electronic communications were to be disclosed.

‘‘(2) In January of each year the Attorney General or an Assistant Attorney

General specially designated by the Attorney General shall report to the Administrative Office of the United States Courts—

‘‘(A) the information required by subparagraphs (A) through (F) of

paragraph (1) of this subsection with respect to each application for an

order, warrant, or subpoena made during the preceding calendar year; and

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‘‘(B) a general description of the disclosures made under each such

order, warrant, or subpoena, including—

‘‘(i) the approximate number of all communications disclosed and,

of those, the approximate number of incriminating communications disclosed;

‘‘(ii) the approximate number of other communications disclosed;

and

‘‘(iii) the approximate number of persons whose communications

were disclosed.

‘‘(3) In June of each year, beginning in 2002, the Director of the Administrative Office of the United States Courts shall transmit to the Congress a full and

complete report concerning the number of applications for orders, warrants, or

subpoenas authorizing or requiring the disclosure of the contents of electronic

communications pursuant to subsections (a) and (b) of this section and the number of orders, warrants, or subpoenas granted or denied pursuant to subsections

(a) and (b) of this section during the preceding calendar year. Such report shall

include a summary and analysis of the data required to be filed with the Administrative Office by paragraphs (1) and (2) of this subsection. The Director

of the Administrative Office of the United States Courts is authorized to issue

binding regulations dealing with the content and form of the reports required

to be filed by paragraphs (1) and (2) of this subsection.’’.

SEC. 4. PEN REGISTERS AND TRAP AND TRACE DEVICES.

(a) REQUIREMENT FOR SHOWING.—Section 3122(b)(2) of title 18, United States

Code, is amended to read as follows:

‘‘(2) a statement of facts showing that the requirements of section 3123

have been met.’’.

(b) FINDING BY COURT.—Subsection (a) of section 3123 of title 18, United States

Code, is amended by striking ‘‘the attorney for the Government’’ and all that follows

through the end of such subsection and inserting ‘‘specific and articulable facts reasonably indicate that a crime has been, is being, or will be committed, and information likely to be obtained by such installation and use is relevant to the investigation of that crime.’’.

SEC. 5. CIVIL DAMAGES.

Section 2520(c)(2) of title 18, United States Code, is amended—

(1) by striking ‘‘court may’’ and inserting ‘‘court shall’’;

(2) by striking ‘‘greater’’ and inserting ‘‘greatest’’;

(3) in subparagraph (A), by striking ‘‘or’’ after the semicolon;

(4) in subparagraph (B), by striking ‘‘whichever is the greater of $100 a day

for each day of violation or $10,000.’’ and inserting ‘‘$500 a day for each violation; or’’; and

(5) by inserting after subparagraph (B), the following:

‘‘(C) statutory damages of $10,000.’’.

SEC. 6. NOTIFICATION.

Section 2705(a)(4) of title 18, United States Code, is amended by striking ‘‘or

by certification by a governmental entity, but only in accordance with subsection (b)

of this section.’’ and inserting ‘‘if the court determines that there is reason to believe

that notification of the existence of the court order or subpoena may have an adverse result described in paragraph (2) of this subsection.’’.

SEC. 7. GOVERNMENT ACCESS TO LOCATION INFORMATION.

(a) COURT ORDER REQUIRED.—Section 2703 of title 18, United States Code, as

amended by section 3 of this Act, is further amended by adding at the end the following:

‘‘(h) DISCLOSURE OF LOCATION INFORMATION TO GOVERNMENTAL ENTITIES.—

‘‘(1) DISCLOSURE UPON COURT ORDER.—Except as provided in paragraph (2),

a provider of mobile electronic communication service shall provide to a governmental entity information generated by and disclosing the current physical location of a subscriber’s equipment only if the governmental entity obtains a court

order issued upon a finding that there is probable cause to believe that—

‘‘(A) a person is committing, has committed, or is about to commit a felony offense; and

‘‘(B) the location information sought to be obtained concerns the location of the person believed to have committed, be committing, or be about

to commit that offense or a victim of that offense.

‘‘(2) PERMITTED DISCLOSURES WITHOUT COURT ORDER.—A provider of mobile

electronic communication service may provide information described in paragraph (1)—

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‘‘(A) to a public safety answering point, emergency medical service provider or emergency dispatch provider, public safety, fire service or law enforcement official, or hospital emergency or trauma care facility, in order

to respond to the user’s call for emergency services;

‘‘(B) to inform the user’s legal guardian or members of the user’s immediate family of the user’s location in an emergency situation that involves

the risk of death or serious physical harm; or

‘‘(C) with the express consent of the subscriber or the user of the equipment concerned.

‘‘(3) DEFINITION.—The term ‘public safety answering point’ means a facility

that has been designated to receive emergency calls and route them to emergency service personnel.’’.

(b) CONFORMING AMENDMENT.—Subsection (c)(1)(A) of section 2703 of title 18,

United States Code, is amended by striking ‘‘(b) of this section’’ and inserting ‘‘(b),

or wireless location information covered by subsection (g)’’.

SEC. 8. COMPUTER CRIME AMENDMENTS.

(a) GENERALLY.—Section 1030 of title 18, United States Code, is amended—

(1) in subsection (a)(3), by striking ‘‘such a computer’’ and inserting ‘‘without or in excess of authorization a computer’’;

(2) in subsection (a)(5), by inserting after subparagraph (C) the following:

‘‘(B) whose conduct described in clause (i), (ii), or (iii) of subparagraph (A)—

‘‘(i) caused loss to one or more persons during any one-year period (including loss resulting from a related course of conduct affecting one or more

other protected computers) aggregating at least $5,000;

‘‘(ii) modified or impaired, or potentially modified or impaired, the medical examination, diagnosis, treatment, or care of one or more individuals;

‘‘(iii) caused physical injury to any individual;

‘‘(iv) threatened public health or safety;

‘‘(v) caused damage affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security; or

‘‘(vi) intentionally defaced, damaged, or destroyed images or information made available to the public and thereby interfered with the rights

protected under the First Amendment to the Constitution;’’.

(3) in subsection (a)(5)(A), by inserting ‘‘(i)’’ after ‘‘(5)(A)’’;

(4) in subsection (a)(5)(B), by striking ‘‘(B)’’ and inserting ‘‘(ii)’’;

(5) in subsection (a)(5)(C)—

(A) by striking ‘‘(C)’’ and inserting ‘‘(iii)’’; and

(B) by inserting ‘‘and’’ after the semicolon;

(6) in subsection (a)(7), by striking ‘‘, firm, association, educational institution, financial institution, government entity, or other legal entity,’’;

(7) in subsection (b), by adding before the period ‘‘as if such person had

committed the completed offense’’;

(8) in subsection (c)(1)(A) and (B), by striking ‘‘, or an attempt to commit

an offense punishable under this subparagraph’’;

(9) in subsection (c)(1)(A), by inserting ‘‘, (a)(5)(A)(i), or (a)(5)(A)(ii)’’ after

‘‘(a)(1)’’;

(10) by amending subsection (c)(2)(A) to read as follows:

‘‘(2)(A) except as provided in subsection (c)(2)(B), a fine under this title or

imprisonment for not more than one year, or both, in the case of an offense

under subsection (a)(2), (a)(3), (a)(5)(A)(iii), or (a)(6) of this section which does

not occur after a conviction for another offense under this section;’’;

(11) by striking subparagraph (C) of subsection (c)(2);

(12) in subsection (c)(3)—

(A) by striking ‘‘(3)(A)’’ and inserting ‘‘(3)’’;

(B) by striking ‘‘, (a)(5)(A), (a)(5)(B),’’;

(C) by striking ‘‘, or an attempt to commit an offense punishable under

this subparagraph; and’’ and inserting ‘‘; and’’; and

(D) by striking subparagraph (B) and inserting:

‘‘(4) a fine under this title or imprisonment for not more than ten years,

or both, in the case of an offense under subsection (a)(2), (a)(3), (a)(4), (a)(5),

(a)(6), or (a)(7) of this section which occurs after a conviction for another offense

under this section.’’;

(13) in subsection (d)—

(A) by striking ‘‘subsections (a)(2)(A), (a)(2)(B), (a)(3), (a)(4), (a)(5), and

(a)(6) of’’; and

(B) by striking ‘‘which shall be entered into by’’ and inserting ‘‘between’’;

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(14) in subsection (e)(7), by striking ‘‘and’’ after the semicolon;

(15) in subsection (e)(8), by striking all after ‘‘information’’ and inserting a

semicolon;

(16) in subsection (e)(9), by striking the period at the end and inserting a

semicolon;

(17) by inserting the following after subsection (e)(9):

‘‘(10) the term ‘conviction for another offense under this section’ includes a

State conviction for a crime punishable by imprisonment for more than 1 year,

an element of which is unauthorized access, or exceeding authorized access, to

a computer;

‘‘(11) the term ‘loss’ means any reasonable cost to any victim, including responding to the offense, conducting a damage assessment, restoring any data,

program, system, or information to its condition before the offense, and any revenue lost or costs incurred because of interruption of service; and

‘‘(12) the term ‘person’ includes any individual, firm, association, educational institution, financial institution, corporation, company, partnership,

government entity, or other legal entity.’’;

(18) by amending subsection (g) to read as follows:

‘‘(g) Except as herein provided, any person who suffers damage or loss by reason

of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive or other equitable relief. A suit for a violation of subsection (a)(5) may be brought only if the conduct involves one or more

of the factors enumerated in subsection (a)(5)(B). No action may be brought under

this subsection unless such action is begun within 2 years of the date of the act complained of or the date of the discovery of the damage.’’; and

(19) by adding the following subsection after subsection (h):

‘‘(i)(1) The court, in imposing sentence on any person convicted of a violation

of this section, shall order, in addition to any other sentence imposed and irrespective of any provision of State law, that such person forfeit to the United States—

‘‘(A) such person’s interest in any personal property that was used or intended to be used to commit or to facilitate the commission of such violation;

and

‘‘(B) any property, real or personal, constituting or derived from, any proceeds that such person obtained, directly or indirectly, as a result of such violation.

‘‘(2) The criminal forfeiture of property under this subsection, any seizure and

disposition thereof, and any administrative or judicial proceeding in relation thereto,

shall be governed by the provisions of section 413 of the Comprehensive Drug Abuse

Prevention and Control Act of 1970 (21 U.S.C. 853), except subsection (d) of that

section.’’.

(b) SENTENCING COMMISSION.—Section 805(c) of the Antiterrorism and Effective

Death Penalty Act of 1996 (Public Law 104–132; 28 U.S.C. 994 note) is amended

by striking ‘‘shall amend the sentencing guidelines to ensure any individual convicted of a violation of paragraph (4) or (5)’’ and inserting ‘‘shall amend the sentencing guidelines to ensure any individual convicted of a violation of paragraph (4)

or a felony violation of paragraph (5)(A)(i) (but not of paragraph (5)(A)(ii) or

(5)(A)(iii))’’.

SEC. 9. INTERCEPTION OF WIRE, ORAL, AND ELECTRONIC COMMUNICATIONS AMENDMENTS.

Chapter 119 of title 18, United States Code, is amended—

(1) in section 2510(10), by striking ‘‘153(h)’’ and inserting ‘‘153(10)’’;

(2) in section 2516(1), by striking ‘‘wire or oral’’ and inserting ‘‘wire, oral,

or electronic’’;

(3) in the first paragraph (p) of section 2516(1), by inserting ‘‘section 1030

(relating to computer fraud and abuse), section 1362 (relating to destruction of

government communications facilities),’’ after ‘‘identification documents),’’; and

(4) in section 2516(1), by redesignating the second paragraph (p) as paragraph (q).

SEC. 10. AMENDMENTS TO THE ELECTRONIC COMMUNICATIONS PRIVACY ACT.

(a) PENALTIES FOR UNLAWFUL ACCESS TO STORED COMMUNICATIONS.—Section

2701 of title 18, United States Code, is amended—

(1) in subsection (b)(1)—

(A) by striking ‘‘purposes of’’ and inserting ‘‘a tortious or illegal purpose,’’;

(B) in subparagraph (A), by striking ‘‘one year’’ and inserting ‘‘three

years’’; and

(C) in subparagraph (B), by striking ‘‘two’’ and inserting ‘‘five’’; and

(2) by amending subsection (b)(2) to read as follows:

‘‘(2) in any other case—

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‘‘(A) a fine under this title or imprisonment for not more than one year,

or both, in the case of a first offense under this subparagraph; and

‘‘(B) a fine under this title or imprisonment for not more than five

years, or both, for any subsequent offense under this subparagraph.’’.

(b) VOLUNTARY DISCLOSURE OF CUSTOMER COMMUNICATIONS OR RECORDS.—Section 2702 of title 18, United States Code, is amended—

(1) by amending the catchline to read as follows:

‘‘§ 2702. Voluntary disclosure of customer communications or records’’;

(2) in subsection (a)(1)—

(A) by striking ‘‘person or entity providing an’’ and inserting ‘‘provider

of’’; and

(B) by striking ‘‘and’’ at the end;

(3) in subsection (a)(2)—

(A) by striking ‘‘person or entity providing’’ and inserting ‘‘provider of’’;

and

(B) by striking the period at the end and inserting ‘‘; and’’;

(4) in subsection (a), by adding the following paragraph after paragraph (2):

‘‘(3) a provider of remote computing service or electronic communication

service to the public shall not knowingly divulge a record or other information

pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2) of this subsection) to

any governmental entity.’’;

(5) in the heading of subsection (b) by inserting ‘‘FOR DISCLOSURE OF COMMUNICATIONS’’ after ‘‘EXCEPTIONS’’;

(6) in subsection (b), by striking ‘‘person or entity’’ and inserting ‘‘provider

described in subsection (a)’’; and

(7) by adding the following subsection after subsection (b):

‘‘(c) EXCEPTIONS FOR DISCLOSURE OF CUSTOMER RECORDS.—A provider described

in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications

covered by subsection (a)(1) or (a)(2) of this section)—

‘‘(1) as otherwise authorized in section 2703 of this title;

‘‘(2) with the lawful consent of the customer or subscriber;

‘‘(3) as may be necessarily incident to the rendition of the service or to the

protection of the rights or property of the provider of that service;

‘‘(4) to a governmental entity, if the provider reasonably believes that an

emergency involving immediate danger of death or serious physical injury to

any person justifies disclosure of the information; or

‘‘(5) to any person other than a governmental entity where not otherwise

prohibited by law.’’.

(c) CONFORMING AMENDMENTS.—Section 2703 of title 18, United States Code, as

amended by section 7 of this Act, is futher amended—

(1) in subsection (c) by—

(A) redesignating paragraph (2) as paragraph (3); and

(B) redesignating subparagraph (C) of paragraph (1) as paragraph (2);

(2) in subsection (c)(1) by—

(A) striking ‘‘(A) Except as provided in subparagraph (B),’’ and inserting

‘‘A governmental entity may require’’;

(B) striking ‘‘may disclose’’ and inserting ‘‘to disclose’’; and

(C) striking ‘‘to any person other than a governmental entity.’’;

(D) striking ‘‘(B) A provider of’’ through ‘‘to a governmental entity’’;

(E) redesignating subclauses (i) through (iv) as subparagraphs (A)

through (D);

(F) striking ‘‘or’’ at the end of subparagraph (C) as redesignated;

(G) striking the period at the end of subparagraph (D) as redesignated

and inserting ‘‘; or’’; and

(H) adding the following subparagraph after subparagraph (D) as redesignated:

‘‘(E) seeks information pursuant to paragraph (2).’’; and

(3) in subsection (c)(2) as redesignated by—

(A) striking ‘‘an administrative subpoena authorized by a Federal or

State statute or a Federal or State grand jury or trial subpoena’’ and inserting ‘‘a Federal or State grand jury or trial subpoena, or a subpoena or

equivalent process authorized by a Federal or State statute,’’; and

(B) striking ‘‘subparagraph (B).’’ and inserting ‘‘paragraph (1).’’.

(d) CIVIL DAMAGES.—Section 2707(c) of title 18, United States Code, is amended

by striking ‘‘$1,000’’ and inserting ‘‘$5,000’’.

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(e) CLERICAL AMENDMENT.—The item relating to section 2702 in the table of

sections at the beginnning of chapter 121 of title 18, United States Code, is amended to read as follows:

‘‘2702. Voluntary disclosure of customer communications or records.’’.

SEC. 11. ADDITIONAL PROVISIONS RELATING TO PEN REGISTERS.

(a) EMERGENCY PROVISIONS.—Section 3125 of title 18, United States Code, is

amended—

(1) in subsection (a)(1)—

(A) in subparagraph (A), by striking ‘‘or’’ after the semicolon;

(B) in subparagraph (B), by striking the comma after ‘‘crime’’ and inserting a semicolon; and

(C) by inserting after subparagraph (B), the following:

‘‘(C) an immediate threat to a national security interest; or

‘‘(D) an ongoing attack on the integrity or availability of a protected

computer in violation of section 1030(a)(5)(A)(i) or 1030(a)(5)(A)(ii) of this

title,’’;

(2) at the end of the matter following subsection (a)(2), by inserting the following: ‘‘In the event an application for such order is denied, or in any other

case where the installation and use of a pen register or trap and trace device

is terminated without an order having been issued, any information obtained

by such installation and use shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (b) of this section on the person named in the application.’’;

(3) by inserting the following after subsection (a):

‘‘(b) Within a reasonable time but not later than 90 days after the filing of an

application for an order of approval under subsection (a)(2) of this section which is

denied, the denying judge shall cause to be served, on the persons named in the

order or the application, and such other parties to the information obtained by such

installation and use of a pen register or trap and trace device as the judge may determine in his discretion is in the interest of justice, an inventory which shall include notice of—

‘‘(1) the fact of the entry of the application;

‘‘(2) the date of the entry and the date of the denial of the application; and

‘‘(3) the fact that during the period covered by the application, information

was obtained by the installation and use of a pen register or trap and trace device.

The judge, upon the filing of a motion, may in his discretion make available to such

person or his counsel for inspection such portions of the applications as the judge

determines to be in the interest of justice. On an ex parte showing of good cause

to a judge of competent jurisdiction the serving of the inventory required by this

subsection may be postponed.’’; and

(4) by redesignating subsections (b) through (d) as subsections (c) through

(e), respectively.

(b) DEFINITIONS.—Section 3127 of title 18, United States Code, is amended—

(1) in paragraph (6), by striking the period and inserting ‘‘; and’’; and

(2) by adding the following paragraph after paragraph (6):

‘‘(7) the term ‘protected computer’ has the meaning set forth in section 1030

of this title.’’.

SEC. 12. GOVERNMENT ACCESS TO CONTENTS OF STORED ELECTRONIC COMMUNICATIONS.

Section 2703(a) of title 18, United States Code, is amended by striking ‘‘one

hundred and eighty days’’ each place it appears and inserting ‘‘one year’’.

SEC. 13. ENHANCED PRIVACY PROTECTION FOR INFORMATION ON COMPUTER NETWORKS.

Section 2510(17) of title 18, United States Code, is amended—

(1) by striking ‘‘and’’ at the end of subparagraph (A); and

(2) by inserting at the end the following:

‘‘(C) any storage of an electronic communication by an electronic communication service without regard to whether the communication has been

accessed by the intended recipient; and’’.

PURPOSE AND SUMMARY

H.R. 5018 balances the need for privacy and effective law enforcement in the digital age. H.R. 5018 protects privacy by raising

the standard for the government’s access to the transactional data

regarding a person’s communications obtained with so-called pen

register or trap and trace devices; requiring the Federal GovernVerDate 11-MAY-2000 19:28 Oct 04, 2000 Jkt 089010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6601 E:\HR\OC\HR932.XXX pfrm04 PsN: HR932
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ment to report annually on the number of requests it makes to disclose the contents of stored electronic communications; expanding

the statutory exclusionary rule to also exclude from use in evidence

at trial electronic communications—including electronic communications such as e-mail that lies in storage with an electronic communications service—obtained in violation of Federal law, just as

illegally obtained wire and oral electronic communications are currently excluded, while also allowing the use of such communications against those who illegally obtained them; prohibiting the

government from obtaining a mobile phone user’s location without

first obtaining a court order based on probable cause, except in the

case of certain emergency situations; requiring high-level Department of Justice approval for interceptions of electronic communications, as is currently required for interceptions of wire and oral

communications; increasing the civil penalties that may be applied

to those who illegally intercept electronic communications by raising the daily damages for each violation; making clear that protections of electronic communications in electronic storage cover email messages that have been accessed by the intended recipient

but remain stored by an electronic communications service; and extending the protection of a warrant requirement to electronic communications stored for 1 year or less.

H.R. 5018 helps law enforcement capture criminals in the computer age by allowing electronic communications service providers

to disclose to law enforcement basic customer records, such as

those including names and addresses, in certain emergency situations; allowing law enforcement to use devices that track the source

and destination of criminal communications without a court order

for up to 48 hours in situations involving national security and ongoing attacks on computer networks, but also requires that, if a

court finds law enforcement had an insufficient basis to conduct

the monitoring, the judge must order that the person whose communications were wrongfully tracked be notified; adding computer

crimes to the enumerated offenses for which interceptions may be

ordered; raising the maximum penalty for the most serious computer violations to 10 years in prison; allowing the Federal investigation and prosecution of those who deface or destroy information

or images on computer systems without causing $5,000 in damages; amending the Federal sentencing guidelines such that only

the most serious computer-related offenses are subject to a mandatory 6-month sentence; increasing criminal and civil penalties for

the illegal disclosure of stored electronic communications; and applying criminal asset forfeiture provisions to computer crimes.

BACKGROUND AND NEED FOR THE LEGISLATION

Seventy years ago, Justice Brandeis, in his dissenting opinion in

Olmstead v. United States, 277 U.S. 438, 474 (1928) (Brandeis, J.,

dissenting), predicted that ongoing technological developments

would someday enable law enforcement to search people or their

property without physical trespass. He also cautioned that courts

should be alert to these changes in technology in determining the

contours of privacy rights. See id. at 472–73. Today, advances in

telecommunications technology have dramatically changed people’s

lives. Internet technology has increased in popularity and has sigVerDate 11-MAY-2000 19:28 Oct 04, 2000 Jkt 089010 PO 00000 Frm 00008 Fmt 6659 Sfmt 6601 E:\HR\OC\HR932.XXX pfrm04 PsN: HR932
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1 As stated in a recent White House Working Group Report, ‘‘Regulation tied to a particular

technology may quickly become obsolete and require further amendment. In particular, laws

written before the widespread use of the Internet may be based on assumptions regarding thencurrent technologies and thus may need to be clarified or updated to reflect new technological

capabilities or realities.’’ The Electronic Frontier: The Challenge of Unlawful Conduct Involving

the Use of the Internet, Report by the President’s Working Group on Unlawful Conduct on the

Internet (hereinafter ‘‘Report’’) at 13. 2 As stated in the Report:

Indeed, computers have made it possible for law enforcement agencies to gather some

information that may not have been previously even maintained in the physical world.

For example, an unsophisticated offender, even after ‘‘deleting’’ computer files (as opposed to destroying paper records), might leave evidence of unlawful activity that a

trained computer forensic expert could recover. In addition, because an average computer with several gigabytes of memory can contain millions of pages of information,

a law enforcement agent might, pursuant to lawful authority (such as a warrant), find

volumes of information in one place. Of course, that information is only useful if there

are trained computer experts on hand in a timely fashion, familiar with the relevant

computer hardware or software configuration, to search the computer for specific information and to retrieve it in readable form.

Report, at 11.

nificantly changed the way people handle their affairs, and consequently the government’s handling of personal communications.1

PRIVACY IN THE DIGITAL AGE

The dramatic development of the Internet has transformed methods of gathering, processing and sharing information. In 1981,

fewer than 300 computers were linked to the Internet. See Reno v.

ACLU, 929 F. Supp. 824, 831 (E.D. Pa. 1996). In 1986—when the

Electronic Communications Privacy Act became law—there were

about 50,000. See id. By June 1996, there were over 9.4 million

host computers worldwide linked to the Internet. A recent report

by a White House Working Group states that:

There can be little doubt that the Internet, a global electronic network of computer networks (including the World

Wide Web) that connects people and information, has revolutionized and will continue to revolutionize how we communicate, educate ourselves, and buy and sell goods and

services. The Internet has grown from 65 million users in

1998 to over 100 million users in the U.S. in 1999, or half

the country’s adult population; the number of Internet

users in the U.S. is projected to reach 177 million by the

end of 2003; and the number of Internet users worldwide

is estimated to reach 502 million by 2003. Business-tobusiness electronic commerce totaled over $100 billion in

1999 (more than doubling from 1998) and is expected to

grow to over $1 trillion by 2003.

Report, at 5.

The dramatic development of the Internet as a networked global

communications medium, the expansion in the range of transactions that occur ‘‘on-line,’’ and the amount of information now

stored with third party Internet companies have produced a qualitative change in the nature of communications and, accordingly, in

the nature and amount of the information that may be exposed to

interception by the government.2

In light of these developments, existing statutes should be updated to appropriately balance the concerns of law enforcement—

namely, the concern that they have sufficient authority to obtain

the information they need in order to keep the public safe—with

individuals’ concerns that a sufficient degree of privacy and the inVerDate 11-MAY-2000 19:28 Oct 04, 2000 Jkt 089010 PO 00000 Frm 00009 Fmt 6659 Sfmt 6601 E:\HR\OC\HR932.XXX pfrm04 PsN: HR932
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3 ECPA, in fact, did not extend all of the Federal wiretap protections to electronic communications. The court order authorizing the interception of electronic communications can be based

upon suspected violations of any Federal felony, rather than the limited list of crimes that can

serve as a predicate for telephone interceptions. See 18 U.S.C § 2516(3). In addition, no statutory

exclusionary rule applies to non-voice interceptions that violate procedures required by statute.

See 18 U.S.C. § 2515 (exclusionary rule only refers to wire or oral communications, not electronic

communications).

tegrity of personal information are maintained in an age of modern

communications and information storage.

THE ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986

Congress initially responded to the emergence of wireless communication services and the digital era by enacting the Electronic

Communications Privacy Act (‘‘ECPA’’) in 1986. See Electronic

Communications Privacy Act of 1986, Pub. L. No. 99–508, 100 Stat.

1848 (codified in sections of 18 U.S.C. including §§ 2510–21, 2701–

10, 3121–26). The Federal wiretap statute had been limited to voice

communications. ECPA extended the wiretap provisions to include

wireless voice communications and electronic communications such

as e-mail or other computer-to-computer transmissions.3 ECPA was

intended to reestablish the balance between privacy and law enforcement, which Congress found had been upset to the detriment

of privacy by the development of communications and computer

technology and changes in the structure of the telecommunications

industry. Among the developments noted by Congress were ‘‘largescale electronic mail operations, cellular and cordless phones, paging devices, miniaturized transmitters for radio surveillance, and a

dazzling array of digitized networks.’’ H.R. Rep. No. 99–647, at 18

(1986). Privacy, Congress concluded, was in danger of being gradually eroded as technology advanced. S. Rep. No. 99–541, at 2–3, 5

(1986); H.R. Rep. No. 99–647, at 16–19 (1986). See also H.R. Rep.

No. 99–647, at 18 (stating that ‘‘[l]egal protection against the unreasonable use of newer surveillance techniques has not kept pace

with technology. ’’).

In addition to the goals of privacy and law enforcement, ECPA

sought to advance the goal of supporting the development and use

of these new technologies and services. See S. Rep. No. 99–541, at

5 (noting that legal uncertainty over the privacy status of new

forms of communications ‘‘may unnecessarily discourage potential

customers from using innovative communications systems ’’). It was

the intent of Congress to encourage the proliferation of new communications technologies, but it recognized that consumers would

not trust new technologies if the privacy of those using them was

not protected. See S. Rep. No. 99–541, at 5 (1986); H.R. Rep. No.

99–647, at 19 (1986).

ECPA was designed to provide rules for government surveillance

in the modern age. However, technology has evolved in unanticipated ways. The interactive nature of the Internet, now including

elements such as home banking and telecommuting, has produced

an environment in which many people may spend hours each day

‘‘on-line.’’ In this context, a person’s electronic communications will

encompass much more today than it would have in 1986.

A thorough examination of the effects of ECPA’s rules governing

governmental access to e-mail and other computer communications

is made difficult because there is no publicly available data on

which to base such an assessment. While the Federal wiretap proVerDate 11-MAY-2000 19:28 Oct 04, 2000 Jkt 089010 PO 00000 Frm 00010 Fmt 6659 Sfmt 6601 E:\HR\OC\HR932.XXX pfrm04 PsN: HR932
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4 Requirements regarding law enforcement’s ‘‘interception’’ of electronic communications apply

only to real-time monitoring of communications. As most electronic communications are stored

immediately after their transmission, communications recovery of stored electronic communications is by far the easier and presumably the more common means of government’s accessing

electronic communications. 5See 18 U.S.C. § 2518(3) (requiring for a court order that ‘‘(a) there is probable cause for belief

that an individual is committing, has committed, or is about to commit a particular [enumerated] offense . . .; (b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception; (c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried

or to be too dangerous; (d) . . . there is probable cause for belief that the facilities from which,

or the place where, the wire, oral, or electronic communications are to be intercepted are being

used, or are about to be used, in connection with the commission of such offense, or are leased

to, listed in the name of, or commonly used by such person’’). 6See 18 U.S.C. § 2510(12) (‘‘electronic communication’’ means, with certain exceptions, ‘‘any

transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce’’). 7See 18 U.S.C. § 2510(17) (‘‘electronic storage’’ means ‘‘(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and

(B) any storage of such communication by an electronic communication service for purposes of

backup protection of such communication’’). ‘‘[A]ny temporary, intermediate storage’’ describes

an e-mail message that is being held by a third party Internet service provider until it is requested to be read. 8 If the communication has been in electronic storage for 180 days or less, the government

must obtain a warrant. See 18 U.S.C. § 2703(a). 9See 18 U.S.C. § 2510(15) (‘‘electronic communication service’’ means ‘‘any service which provides to users thereof the ability to send or receive wire or electronic communications’’).

visions require very detailed reports on interception of voice communications and interception of e-mail in transit, see 18 U.S.C.

§ 2519, there is no similar requirement for collecting and publishing information on the extent of government access to e-mail

and other electronic communications while they are being stored by

service providers following their transmission.4

GOVERNMENT ACCESS TO ELECTRONIC INFORMATION STORED BY

THIRD PARTIES

In regard to e-mail and other electronic communications, ECPA

has two purposes. First, ECPA outlaws most unauthorized private

access to stored electronic communications. See 18 U.S.C. § 2701.

Second, ECPA provides prerequisites for government access. See 18

U.S.C. § 2703.

Although ECPA provides some protection for e-mail and other

forms of ‘‘electronic communication’’ held in ‘‘electronic storage,’’

the law does not provide stored communications the same level of

protection from government access that is afforded to wire or electronic communications in transit. See 18 U.S.C. §§ 2701–2711. Government access to communications in transit requires an intercept

order issued pursuant to strict requirements.5 However, in order

for the government to immediately seize any ‘‘electronic communications’’ 6 in ‘‘electronic storage’’ 7 for 180 days or less requires

only an ordinary warrant, and seizure of electronic communications

in storage for more than 180 days 8 on an ‘‘electronic communications service,’’ 9 requires only a subpoena or an order issued pursuant to an offering of ‘‘specific and articulable’’ facts showing reasonable grounds to believe that the contents of an ‘‘electronic communication’’ are relevant to an ongoing criminal investigation. See 18

U.S.C. §§ 2703(a); 2703(b)(B)(ii); 2703(d). Thus, if the same information were stored in a home file cabinet for more than 180 days,

Federal officials would be required to obtain a warrant after a

stringent showing of ‘‘probable cause’’ to retrieve the information.

18 U.S.C. § 2703; 18 U.S.C. § 2516. A warrant is also not required

12

for the government to obtain the contents of electronic communications in a ‘‘remote computing service.’’ See 18 U.S.C. §§ 2703(b);

2703(d); 2711(2) (the term ‘‘remote computing service’’ means ‘‘the

provision to the public of computer storage or processing services

by means of an electronic communications system’’). Consequently,

if the same information is stored by a third party in electronic

form—unbeknownst to the deliverer or receiver of the information—rather than in a home file cabinet, Federal officials would be

required to obtain a subpoena or an order, see 18 U.S.C.

§ 2703(b)(B)(ii), following a less rigorous showing of need, to retrieve this same information and subject to a delay in notice to the

target for up to 90 days if a court determines that notification may,

among other things, ‘‘seriously jeopardize an investigation.’’ 18

U.S.C. § 2705.

H.R. 5018 WOULD REQUIRE THE FEDERAL GOVERNMENT TO REPORT

BASIC INFORMATION REGARDING ITS REQUESTS FOR THE DISCLOSURE OF STORED ELECTRONIC COMMUNICATIONS

Personal information in people’s homes and file cabinets are protected by a warrant requirement and it is clear when the government searches through such materials pursuant to a warrant.

Today, as much of that very same information gravitates toward

new locations on the Internet’s landscape, such as the networks of

Internet service providers and other third parties, it is available to

law enforcement under lower legal standards, without contemporaneous notice, and often without any notice at all in the case of innocent parties whose stored electronic communications have been

disclosed. See 18 U.S.C. §§ 2703; 2705. In order to provide some opportunity for oversight, H.R. 5018 would require the Federal Government to produce annual reports regarding its requests for orders for the disclosure of the contents of electronic communications,

such as the contents of stored e-mails, similar to but less detailed

than the disclosure requirements the Federal Government must

meet under 18 U.S.C. § 2519 regarding the use of electronic wiretaps to intercept telephone conversations. H.R. 5018 provides for

the enumeration of basic information relating to requests for the

disclosure of the contents of stored electronic communications

under 18 U.S.C. §§ 2703(a) and (b)—such as the number of such requests made and the approximate number of incriminating and

non-incriminating communications disclosed—to help further Congress’ oversight responsibilities and provide the public with a certain level of comfort that the disclosure of the contents of electronic

communications is reasonably proportionate to the needs of law enforcement. These reporting requirements will not unduly burden

law enforcement.

The committee recognizes that this bill imposes reporting requirements on the Administrative Office of the U.S. Courts that

will require the hiring of four additional analysts. This committee

urges Congress to appropriate sufficient funds for the Administrative Office of the U.S. Courts to comply with the reporting requirements contained in this bill.

13

10 Although the authority for such use of pen registers is not without doubt, H.R. 5018 does

not attempt to resolve this debate.

H.R. 5018 RAISES THE STANDARD THE GOVERNMENT MUST MEET TO

OBTAIN INFORMATION UNDER THE PEN REGISTER ACT

H.R. 5018 would also amend the standard that must be met by

the government before transactional information, such as the numbers dialed to and from a telephone, may be obtained under the

Pen Register Act.

The Pen Register Act, enacted when the telephone was the predominant mode of distance communication, currently allows the

government to obtain, with a so-called ‘‘pen register,’’ the ‘‘electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line’’ and, with a so-called

‘‘trap and trace device,’’ the ‘‘electronic or other impulses which

identify the originating number’’ of the device from which a wire

or electronic communication was transmitted. 18 U.S.C. §§ 3127(3);

3127(4). The government can obtain this information if a government attorney has simply ‘‘certified’’ to the court ‘‘that the information likely to be obtained by such installation and use [of the pen

register or trap and trace device] is relevant to an ongoing criminal

investigation.’’ 18 U.S.C. § 3123(a). Upon such ‘‘certification’’ by a

government official, the court ‘‘shall’’ issue the order. 18 U.S.C.

§ 3123(a).

Authority under the Pen Register Act is also used by the government to obtain e-mail addresses sent and received.10 Officials from

the Justice Department and the Federal Bureau of Investigation

have testified before the Constitution Subcommittee that the Pen

Register Act grants the government the authority to capture e-mail

addresses as well as telephone numbers. See Hearing Transcript,

‘‘Fourth Amendment Issues Raised by the FBI’s ‘Carnivore’ Program’’ (July 24, 2000) at 37–39 (testimony of Dr. Donald Kerr, Director, Lab Division, Federal Bureau of Investigation, and Christopher Painter, Deputy Chief, Computer Crimes and Intellectual

Property Section, Department of Justice). Unlike a telephone number, however, an e-mail address often indicates not only the identity of the person communicating, but also their place of work, as

in the e-mail address JohnSmith@work.com.

H.R. 5018 would require that, before a pen register or trap and

trace device could be ordered installed, the government must first

demonstrate to an independent judge that ‘‘specific and articulable

facts reasonably indicate that a crime has been, is being, or will be

committed, and information likely to be obtained by such installation and use [of a pen register or trap and trace device] is relevant

to an investigation of that crime.’’ The standard that ‘‘specific and

articulable facts reasonably indicate that a crime has been, is

being, or will be committed’’ is well supported in the law, and in

current practice. Indeed, the standard is that which the nation’s

primary investigative agency, the Federal Bureau of Investigation,

must meet each time it initiates an investigation.

The Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations

(‘‘Guidelines’’), as in effect today and last revised by Attorney General Thornburgh in March, 1989, apply to the Federal Bureau of

Investigation, which the Guidelines describes as ‘‘the primary inVerDate 11-MAY-2000 19:28 Oct 04, 2000 Jkt 089010 PO 00000 Frm 00013 Fmt 6659 Sfmt 6601 E:\HR\OC\HR932.XXX pfrm04 PsN: HR932
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11 Current law requires that an order permitting the installation and use of a pen register

or trap and trace device be granted only when there is ‘‘an ongoing criminal investigation.’’ 18

U.S.C. § 3123(a). 12The phrase ‘‘specific and articulable facts’’ is also a central part of the Supreme Court’s

opinion in Terry v. Ohio, 392 U.S. 1, 21 (1968), and it has been seen by subsequent courts as

a central part of the Terry standard:

[T]here is no ready test for determining reasonableness other than by balancing the

need to search (or seize) against the invasion which the search (or seizure) entails. And

in justifying the particular intrusion the police officer must be able to point to specific

and articulable facts which, taken together with rational inferences from those facts,

reasonably warrant that intrusion . . . Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate

hunches, a result this Court has consistently refused to sanction.

Terry v. Ohio, 392 U.S. 1, 21 (1968) (citations and quotation marks omitted).

The footnote at this point of the opinion states, ‘‘This demand for specificity in the information

upon which police action is predicated is the central teaching of this Court’s Fourth Amendment

jurisprudence.’’ Id. at n.18. Numerous subsequent cases applying and amplifying on the Terry

standard include the phrase ‘‘specific and articulable facts.’’ See, e.g., Maryland v. Buie, 494 U.S.

325, 327 (1990); Michigan v. Long, 463 U.S. 1032, 1049–1050 (1983) (quoting Terry v. Ohio, 392

U.S. 1, 21 (1968)).

vestigative agency in the Federal Government.’’ Guidelines, at 1.

The Guidelines state:

Investigations by the FBI are premised upon the important duty of government to protect the public against general crimes, against organized criminal activity, and

against those who would engage in political or racial terrorism or would destroy our constitutional system through

criminal violence. At the same time, that duty must be

performed with care to protect individual rights and to ensure that investigations are confined to matters of legitimate law enforcement interest . . . [I]nvestigations governed by these Guidelines are conducted for the purpose of

preventing, detecting, or prosecuting violations of Federal

law. They shall be conducted with as little intrusion into

the privacy of individuals as the needs of the situation permit.

Id. at 1, 3.

The Guidelines make clear that certain types of investigative

techniques ‘‘shall not’’ be used prior to initiating an investigation,

including ‘‘mail covers’’ and ‘‘[n]onconsensual electronic surveillance.’’ Id. at 5. The Guidelines also make clear that ‘‘[a] general

crimes investigation may be initiated by the FBI’’ only when ‘‘facts

or circumstances reasonably indicate that a Federal crime has

been, is being, or will be committed.’’ Id. at 7.11 Further, the Guidelines state that ‘‘[t]he standard of ‘reasonable indication’ is substantially lower than probable cause . . . However, the standard does

require specific facts or circumstances indicating a past, current, or

impending violation. There must be an objective, factual basis for

initiating the investigation; a mere hunch is insufficient.’’ Id. (Emphasis added).12

Kevin DiGregory, Deputy Assistant Attorney General, noted in

written testimony before the Constitution Subcommittee, that

‘‘H.R. 5018 would require such [pen register or trap and trace] applications to contain ‘specific and articulable facts’ that would justify the collection of the data’’ and that ‘‘the Justice Department

can comply with the added administrative burdens imposed by increasing this standard [to the standard imposed by H.R. 5018].’’

Written Testimony of Kevin DiGregory provided to the Constitution

15

Subcommittee, ‘‘Fourth Amendment Issues Raised by the FBI’s

‘Carnivore’ Program’’ (July 24, 2000) (Emphasis added.).

H.R. 5018 WOULD REQUIRE HIGH-LEVEL DEPARTMENT OF JUSTICE APPROVAL FOR FEDERAL INTERCEPTIONS OF ELECTRONIC COMMUNICATIONS

H.R. 5018 expands 18 U.S.C. § 2516(1) to apply the existing requirements for authorizing the interception of wire and oral communications to the authorization of the interception of electronic

communications. These requirements are that of high-level official

approval and the investigation of an enumerated offense. In addition, because the investigation of crimes that involve computers

and interstate communications systems often require the interception of electronic communications, H.R. 5018 adds such crimes to

the list of predicate offenses in 18 U.S.C. § 2516(1).

H.R. 5018 WOULD REQUIRE THE GOVERNMENT TO OBTAIN A WARRANT

TO SEIZE E-MAIL MESSAGES STORED FOR ONE YEAR OR LESS

H.R. 5018 requires that the government obtain a warrant to require the disclosure of electronic communications in electronic storage—namely, an e-mail message stored by an Internet service provider—if the communication sought has been stored for 1 year or

less, as opposed to the current requirements for a warrant to disclose electronic communications in electronic storage for 180 days

or less. H.R. 5018 also clarifies that an electronic communication

in ‘‘electronic storage’’ enjoys the protections provided to such communications regardless of whether or not the communication has

been ‘‘opened’’ or otherwise accessed by the intended recipient. This

would extend ECPA’s protections governing electronic communications in electronic storage, for example, to the electronic communications of those who use Web-based electronic communications

services, which often remotely store communications in a third

party network even after the messages have been accessed by the

recipient.

H.R. 5018 WOULD EXTEND THE STATUTORY EXCLUSIONARY RULE TO

COVER ILLEGALLY INTERCEPTED ELECTRONIC COMMUNICATIONS

AND ILLEGALLY DISCLOSED ELECTRONIC COMMUNICATIONS IN ELECTRONIC STORAGE

The statutory exclusionary rule provides that ‘‘[w]henever any

wire or oral communication has been intercepted, no part of the

contents of such communication and no evidence derived therefrom

may be received in evidence in any trial, hearing, or other proceeding . . . if the disclosure of that information would be in violation of this chapter.’’ 18 U.S.C. § 2515. This ‘‘exclusionary rule’’ allows individuals about whom information has been gathered in violation of Federal law to rely on the exclusion of such information

from evidence by statute, thereby relieving them of the need to litigate whether or not the action that resulted in the gathering of

such information constituted an ‘‘unreasonable search or seizure’’

under the Fourth Amendment. Currently, only illegally obtained

‘‘wire and oral communications’’ are excluded from use as evidence

by statute. H.R. 5018 would amend the ‘‘statutory exclusionary

rule’’ to also exclude from use as evidence illegally intercepted

16

‘‘electronic communications’’ and illegally obtained ‘‘electronic communications in electronic storage,’’ namely stored e-mail messages,

resulting from violations the Electronic Communications Privacy

Act, 18 U.S.C. § 2701 et seq.

H.R. 5018 also allows the introduction of intercepted or disclosed

communications where an individual violates 18 U.S.C. chapters

119, governing the interception of communications, or 121, governing the disclosure of stored electronic communications, by engaging in illegal communications interception or disclosure and the

government seeks to use the communication for the limited purpose

of prosecuting that violator. Conforming amendments are also

made to 18 U.S.C. §§ 2517 and 2518(10)(a).

Some in the law enforcement community have expressed concern

that the statutory exclusionary rule does not contain a good faith

exception and therefore could result in the exclusion of evidence

based on technical violations. However, even in the context of statutory exclusion, courts have held that when there is a violation of

Federal wiretap laws that is of a constitutional magnitude, the

good faith exception does apply. Thus, the good faith exception has

been applied to the failure of a judge to sign the wiretap order,

United States v. Moore, 41 F.3d 370, 375 (8th Cir. 1994), to inadequacies in the probable cause showing, United States v. Millan,

817 F.Supp. 1072, 1078 (S.D.N.Y. 1993) (‘‘Even if probable cause is

found lacking, the wiretap order should be suppressed only where:

(1) the issuing judge abandoned his or her detached, neutral role;

(2) the agent was dishonest or reckless in preparing the affidavit

supporting the issuance of the wiretap order; or (3) the agent’s reliance on the warrant was not objectively reasonable.’’), and to other

defects. See, e.g., United States v. Ferrara, 771 F.Supp. 1266, 1314

(D. Mass 1991) (finding that even if application for warrant to conduct roving electronic surveillance to intercept certain criminal

communications of some members of suspected organization were

required to disclose other authorizing electronic surveillance of

other members of that same suspected organization, failure to disclose that surveillance would not justify suppression of evidence obtained pursuant to warrant because other authorizing surveillance

was not disclosed because affiant had good faith belief such disclosure was not legally required and it was in best interests of investigation not to divulge them gratuitously) (citing 18 U.S.C.

§ 2518(1)(c), (11)(a)).

Moreover, as to nonconstitutional violations of the Federal wiretap laws, the Supreme Court has held that evidence cannot be excluded under 18 U.S.C. § 2515 for minor or technical violations. The

Court held in United States v. Giordano, 416 U.S. 505, 527 (1994)

that suppression under 18 U.S.C. § 2515 is required only for ‘‘failure to satisfy any of those statutory requirements that directly and

substantially implement the congressional intention to limit the

use of intercept procedures to those situations clearly calling for

the employment of this extraordinary investigative technique.’’ In

determining whether suppression is warranted, courts must examine whether the violated statutory requirement occupies ‘‘a central

role in the statutory scheme.’’ Id. at 528 (holding that, although

wiretap application had been approved by the Executive Assistant

to the Attorney General rather than by Attorney General himself

or a designated Assistant Attorney General, application on its face

17

identified Assistant Attorney General as authorizing application,

and wiretap materials were not subject to statutory exclusionary

rule). See also United States v. Chavez, 416 U.S. 562, 578 (1974)

(misidentification of officer authorizing wiretap application did not

affect the fulfillment of any of the reviewing or approval functions

required by Congress and therefore was not ‘‘unlawful’’ under the

Federal wiretap laws and subject to statutory exclusionary rule).

Thus, as one leading treatise states, ‘‘many violations of the requirements of Title III [the Federal wiretap statute] will lead to either no suppression or only partial suppression . . . In most jurisdictions there are relatively few violations which will lead to the

ultimate and absolute sanction of complete suppression of all surveillance evidence . . . In many instances the government has disregarded procedural protections established by Section 2518 without affecting the admissibility of the eavesdropping evidence.’’

James G. Carr, The Law of Electronic Surveillance, § 6.3 (1995).

H.R. 5018 WOULD REQUIRE THE GOVERNMENT TO MEET A PROBABLE

CAUSE STANDARD TO OBTAIN INFORMATION DISCLOSING THE PHYSICAL LOCATION OF MOBILE PHONE USERS, WITH CERTAIN EXCEPTIONS

Location tracking of users of wireless communications services is

an emerging concern. Wireless telephones, which are increasingly

used, generate information that can be used to physically track the

movement of users. Initially limited to cell site antenna location,

this tracking data is becoming more sophisticated with the introduction of new technologies. Still, persons in emergency situations

want to be found when they call emergency services such as ‘‘911,’’

and the government should have the ability to locate suspected

criminals in those circumstances. Currently, there are no clear

legal standards governing when the government can collect location

information from cell phone companies. Law enforcement now uses

its authority under 18 U.S.C. § 2703(d) (requirements for government access to business ‘‘records’’) to obtain location information

from mobile phone service providers. However, 18 U.S.C. § 2703(d)

does not contain any emergency exceptions to its requirements.

H.R. 5018 provides that the government must show probable

cause before it may obtain information disclosing the location of a

customer or user of a mobile phone from a mobile phone service

provider. Certain exceptions to this provision are provided in the

bill for disclosing such information to emergency service providers

such as hospitals, or to the legal guardian or members of the user’s

immediate family in situations involving the risk of death or serious physical harm, or with the express consent of the user of the

mobile phone equipment. These exceptions are based on 47 U.S.C.

§ 222, which already prohibits cell phone companies from disclosing

customer location information to marketers and other commercial

entities without express customer consent or under other exceptions. See 47 U.S.C. § 222(d).

H.R. 5018 WOULD INCREASE PENALTIES FOR ILLEGALLY INTERCEPTING

OR DISCLOSING ELECTRONIC COMMUNICATIONS

H.R. 5018 contains provisions that increase the minimum damages that may be awarded under 18 U.S.C. § 2520 to those whose

18

electronic communications were illegally intercepted from $100 per

day per violation, to $500 per day per violation.

H.R. 5018 also contains provisions raising the minimum criminal

penalties under 18 U.S.C. § 2701 for the illegal disclosure of stored

electronic communications from one to 3 years for first time offenses, and from two to 5 years for repeat offenses involving the

disclosure of stored electronic communications for tortious or illegal

purposes, commercial advantage, malicious destruction or damage,

or private commercial gain. H.R. 5018 also increases the minimum

civil damages available under 18 U.S.C. § 2707 to those whose

stored electronic communications are illegally disclosed. from

$1,000 to $5,000. An increase in the penalties for such violations

is appropriate, considering that more and more sensitive and personal information is gravitating from citizens’ file cabinets to computing services on third party networks.

LAW ENFORCEMENT CONCERNS: INVESTIGATING AND PROSECUTING

CRIMINALS IN THE DIGITAL AGE

The new digital age has spawned new digital crimes. As stated

by a recent White House Working Group Report, ‘‘Prior technological advances—the automobile, the telegraph, and the telephone,

for example—have brought dramatic improvements for society, but

have also created new opportunities for wrongdoing. The same is

true of the Internet, which provides unparalleled opportunities for

socially beneficial endeavors such as education, research, commerce, entertainment, and debate on public affairs in ways that we

may not now even be able to imagine. By the same token, however,

individuals who wish to use a computer as a tool to facilitate unlawful activity may find that the Internet provides a vast, inexpensive, and potentially anonymous way to commit unlawful acts, such

as fraud, the sale or distribution of child pornography, the sale of

guns or drugs or other regulated substances without regulatory

protections, and the unlawful distribution of computer software or

other creative material protected by intellectual property rights.’’

Report, at 4.

As described in the Report, ‘‘These needs and challenges are not

theoretical. Law enforcement agencies today, for example, are faced

with the need to evaluate and to determine the source, typically on

very short notice, of anonymous e-mails that contain bomb threats

against a given building or threats to cause serious bodily injury.’’

Id. H.R. 5018 contains several provisions that would help law enforcement meet these new needs and challenges.

H.R. 5018 WOULD ALLOW THE DISCLOSURE OF BASIC CUSTOMER

RECORDS BY ELECTRONIC COMMUNICATIONS SERVICE PROVIDERS IN

EMERGENCY SITUATIONS

H.R. 5018 would grant electronic communications service providers the right, but not impose on them the obligation, to disclose

basic customer records in emergency situations. Under current law,

an electronic communications service provider may disclose the

contents of a communication under 18 U.S.C. § 2702(b)—for example, the substance of an e-mail message—to (1) an addressee or intended recipient of such communication; (2) with the lawful consent

of the originator or an addressee; (3) as may be necessarily incident

to the rendition of the service or to the protection of the rights or

19

property of the provider of that service; or (4) to a law enforcement

agency if the contents appear to pertain to the commission of a

crime. Under current law, however, if an Internet service provider’s

customer receives an e-mail containing a death threat from another

customer of the same Internet service provider, the provider is limited in what actions it may take. It may disclose the contents of

a communication to law enforcement under 18 U.S.C. § 2703(b)(3),

but current law does not expressly authorize a provider to voluntarily provide to law enforcement the identity, home address, and

other basic subscriber information of the user making the threat.

See 18 U.S.C. § 2703(c)(1)(B) and (C) (permitting disclosure to government entities only in response to legal process).

As law enforcement already has the appropriate authority to disclose the contents of customer communications in such circumstances, it is appropriate to allow providers to disclose customer records, which are not content, in certain emergency situations, as the right to disclose the contents of communications implies the less intrusive ability to disclose non-content records. H.R.

5018 would allow providers to disclose non-content customer

records, including a subscriber’s login records, with the lawful consent of the customer or subscriber; as may be necessarily incident

to the rendition of service or to the protection of the rights or property of the provider of that service; or to a governmental entity, if

the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person

justifies disclosure of the information. Furthermore, providers

should have the right to disclose the facts surrounding attacks on

their systems. When an authorized user of an Internet service

launches a network intrusion against their Internet service provider, the provider should have the legal right to report the complete details of the crime to law enforcement.

H.R. 5018 WOULD ALLOW LAW ENFORCEMENT TO INSTALL PEN REGISTER AND TRAP AND TRACE DEVICES WITHOUT A COURT ORDER IN

EMERGENCY SITUATIONS INVOLVING THREATS TO NATIONAL SECURITY AND ONGOING ATTACKS ON COMPUTER NETWORKS

Existing law empowers law enforcement to use trap and trace devices in emergency situations—such as when it encounters an immediate danger of death or serious bodily injury or when it is investigating organized crime—without getting prior approval from a

court. Law enforcement authorities must then obtain court approval within 48 hours. H.R. 5018 would create two more emergency exceptions, those involving immediate threats to national security corresponding to the emergency wiretap provisions at 18

U.S.C. § 2518(7)(a)(ii), and investigations of ongoing intrusions into

computer networks. In the latter case, rapid investigative response

is made essential by the speed with which, for example, computer

viruses are spread through a computer network. In many cases, if

investigators cannot trace the computer criminal while the criminal

is actively connected to the computers being attacked, it may prove

impossible to do so afterwards. Any abuse of these or the other

emergency provisions would be deterred by the provisions in H.R.

5018 requiring that when a court determines that law enforcement

did not act reasonably under these emergency provisions, the person regarding whom information had been gathered must be notiVerDate 11-MAY-2000 19:28 Oct 04, 2000 Jkt 089010 PO 00000 Frm 00019 Fmt 6659 Sfmt 6601 E:\HR\OC\HR932.XXX pfrm04 PsN: HR932
20

fied, just as such notification is provided for when the emergency

provisions of the Federal wiretap law are found by a court to have

been exercised inappropriately. See 18 U.S.C. § 2518(7)(b).

H.R. 5018 WOULD RAISE PENALTIES AND EXPAND FEDERAL JURISDICTION OVER SERIOUS COMPUTER CRIMES AND AMEND THE SENTENCING GUIDELINES SUCH THAT ONLY THE MOST SERIOUS COMPUTER CRIME VIOLATIONS ARE SUBJECT TO MANDATORY SIX-MONTH

SENTENCES

H.R. 5018 would raise the maximum penalty, from five to 10

years, for computer crime felony violations that are knowingly and

intentionally committed and which cause severe damage to governmental and private computer systems. Currently, a first time offense for such felonies could be met with a maximum of 5 years in

prison. H.R. 5018 raises that minimum penalty to 10 years. The

current 5 year maximum does not adequately take into account the

seriousness of these crimes. For example, David Smith recently

pled guilty to committing such serious felony offenses for releasing

the ‘‘Melissa’’ virus in 1999, which caused massive damage to thousands of computers across the Internet. Although Smith agreed as

part of his plea that his conduct caused over $80 million worth of

damage—the maximum dollar figure contained in the Sentencing

Guidelines—estimates of the real amount of damage have run

much higher. See T. Brune, ‘‘Cyber-Crooks Elude Justice, Just a

Handful Get Punished,’’ Newsday (February 25, 2000) at A7. H.R.

5018 also creates a Federal offense when an attack on a protected

computer modifies or impairs, or threatens to modify or impair, the

medical examination, diagnosis, treatment, or care of one or more

individuals, causes physical injury to any individual, or threatens

public health or safety. H.R. 5018 also creates a new category of

felony violations where a hacker causes damage to a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security. Attacks on computers used in the nation’s defense that occur during

periods of active military engagement are particularly serious, even

if they do not disrupt the military’s defense capabilities, because

they divert time and attention away from the military’s proper objectives.

Further, H.R. 5018 clarifies that damage to multiple protected

computers must be aggregated in determining whether a violation

has exceeded the $5,000 threshold for a Federal offense. For example, a person may unlawfully access five computers on a network

on 10 different dates but cause only $1,000 damage to each computer during each intrusion. H.R. 5018 would allow a count to be

brought for the full $50,000 of damage caused by the individual.

Aggregating the damage caused to the various computers properly

measures an individual’s culpability for such conduct. This would

bring the statute into harmony with others permitting the aggregation of related conduct in determining the level of culpability. See,

e.g., United States v. Griffith, 17 F.3d 865 (6th Cir. 1994) (value

of various shipments of stolen property, none of which was valued

at $5,000, was properly aggregated in determining whether government met $5,000 jurisdictional requirement for felony interstate

transportation of stolen goods).

21

H.R. 5018 would also apply the criminal forfeiture rules to computer hacking crimes and require anyone convicted of a violation

of the computer crime laws to forfeit to the United States property

used or proceeds gained in the commission of the crime. It is the

experience of law enforcement that forfeiture of property used in

the commission of computer crime or proceeds derived therefrom

can provide effective punishment and deterrence, and that it makes

little sense to return computers to convicted computer criminals.

These criminal forfeiture provisions are based on the familiar forfeiture procedures set forth in section 413 of the Comprehensive

Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 853.

H.R. 5018 also expressly defines the term ‘‘loss’’ as used in the

statute to account for a wide range of possible harms done to the

victims of computer crimes, including reasonable costs of responding to the offense, conducting a damage assessment, restoring the

system and data to their condition prior to the offense, and any lost

revenue or costs incurred because of the interruption of service.

H.R. 5018 also allows the Federal Government to investigate and

prosecute offenses in which a person intentionally defaced, damaged or destroyed images or information made available to the public, such as the defacing of images or information on Web sites,

even if such offenses did not result in more than $5,000 in damages. This provision responds to a serious problem that came to the

attention of the committee when the Web site of a non-profit organization became the victim of a computer hacking attack in which

educational material was removed and replaced with images of a

bomb, skull and crossbones, obscenities, and links to Web sites that

espouse contrary points of view. The hackers also violated the privacy of a number of visitors to the Web site by stealing all of the

e-mails sent to the site. In response to a request by the committee’s

ranking member to the Department of Justice, seeking an investigation into the Web site attack, the Department responded that

limitations in existing law precluded an investigation because the

resulting damage to the site was less than the $5,000 Federal jurisdictional limit. This kind of Web site attack prevents a non-profit

organization from using the Internet as a forum for its free expressive activities, and a criminal who carries out such activities in

cyberspace should be treated similarly to a criminal who steals a

non-profit organization’s direct mail shipments or replaces an organization’s national radio advertisements with its own. To that end,

this provision extends Federal jurisdiction to the investigation and

prosecution of intentional efforts to deface, damage, or destroy images or information made available to the public and protected by

the first amendment. This provision, however, would not apply to

expression on the Internet that does not deface, damage, or destroy

other expression, such as e-mails sent which may express views

contrary to those expressed elsewhere on a Web site but which do

not intentionally deface, damage or destroy such expression.

Finally, H.R. 5018 would give prosecutors more flexibility in

charging computer criminals. Section 805 of the Antiterrorism and

Effective Death Penalty Act of 1996 transmitted a directive to the

Sentencing Commission to ensure that all individuals convicted of

a violation of 18 U.S.C. § 1030(a)(4) or (a)(5) be imprisoned for not

less than 6 months. A mandatory 6 month sentence, however, may

be inappropriate for violations of the least serious computer hackVerDate 11-MAY-2000 19:28 Oct 04, 2000 Jkt 089010 PO 00000 Frm 00021 Fmt 6659 Sfmt 6601 E:\HR\OC\HR932.XXX pfrm04 PsN: HR932
22

ing offenses, which apply to those who have intentionally accessed

a protected computer, but did not intend to cause damage. Consequently, prosecutors may be reluctant to charge those committing

these less serious hacker violations when the minimum sentence is

6 months in prison. In those cases in which mandatory imprisonment for 6 months might not be the most appropriate remedy, it

is nonetheless best that Federal conviction occur. A conviction,

even one not resulting in mandatory imprisonment, will become

part of a defendant’s criminal history and qualify the defendant for

the more substantial recidivist provisions of the computer crime

laws if the defendant does not reform after the first conviction.

H.R. 5018 restricts the 6 month minimum sentence to only the

more serious computer crimes and better ensures that the punishment fits the crime.

HEARINGS

The committee’s Subcommittee on the Constitution held 3 days

of hearings on issues addressed by H.R. 5018 on April 6, 2000, July

24, 2000 and September 6, 2000. On April 6, 2000, testimony was

received from several witnesses: James X. Dempsey, Senior Staff

Counsel, The Center for Democracy and Technology; Gregory

Nojeim, Legislative Counsel, American Civil Liberties Union,

Washington National Office; Kevin V. DiGregory, Deputy Associate

Attorney General, Department of Justice; accompanied by David

Green, Deputy Chief, Computer Crime and Intellectual Property

Section, Department of Justice; Stewart Baker, Steptoe & Johnson;

Frederick Juergens Baker, Chair, Internet Engineering Task Force;

Clifford S. Fishman, Professor of Law, Columbus School of Law,

The Catholic University of America; Robert Corn-Revere, Hogan &

Hartson; Jeff B. Richards, Executive Director, Internet Alliance;

Nicole Wong, Perkins Coie, San Francisco; and Jeffrey Rosen, Associate Professor of Law, The George Washington University Law

School.

On July 24, 2000, testimony was received from several witnesses:

Dr. Donald M. Kerr, Director, Lab Division, Federal Bureau of Investigation; Larry R. Parkinson, General Counsel, Federal Bureau

of Investigation; Kevin V. DiGregory, Deputy Associate Attorney

General, Department of Justice; Alan Davidson, Staff Counsel, The

Center for Democracy and Technology; Matt Blaze, Research Scientist; Barry Steinhardt, Associate Director, American Civil Liberties Union; Robert Corn-Revere, Attorney, Hogan & Hartson;

Stewart Baker, Attorney, Steptoe & Johnson; Peter William Sachs,

ICONN, L.L.C.; and Tom Perrine, Principal Investigator, Pacific Institute for Computer Security.

On September 6, 2000, testimony was received from the following

witnesses: Kevin DiGregory, Deputy Associate Attorney General,

Department of Justice; accompanied by David Green, Deputy Chief,

Computer Crime and Intellectual Property Section; James

Dempsey, Senior Staff Counsel, The Center for Democracy and

Technology; Gregory Nojeim, Legislative Counsel, the American

Civil Liberties Union; Robert Corn-Revere, Hogan & Hartson; and

Marc Rotenberg, Director, Electronic Privacy Information Center.

23

COMMITTEE CONSIDERATION

On September 14, 2000, the Subcommittee on the Constitution

met in open session and ordered favorably reported the bill

H.R.5018 with an amendment in the nature of a substitute, by a

voice vote, a quorum being present. On September 20 and 26, 2000,

the committee met in open session and ordered favorably reported

the bill H.R. 5018 with an amendment in the nature of a substitute

by a recorded vote of 20 to 1, a quorum being present.

VOTES OF THE COMMITTEE

1. Mr. Scott Amendment to H.R. 5018 which removed provisions

allowing the Federal investigation and prosecution of computer

crimes committed by juveniles passed favorably by a voice vote.

2. On September 20, 2000, Mr. Barr offered an amendment that

would extend the warrant requirement to the disclosure of electronic communications in electronic storage for 1 year or less. This

amendment was defeated by a rollcall vote of 10 to 10.

ROLLCALL NO. 1

Ayes Nays Present

Mr. Sensenbrenner ............................................................................................ X ..................... .....................

Mr. McCollum .................................................................................................... ..................... ..................... .....................

Mr. Gekas .......................................................................................................... ..................... ..................... .....................

Mr. Coble ........................................................................................................... ..................... X .....................

Mr. Smith (TX) .................................................................................................. ..................... ..................... .....................

Mr. Gallegly ....................................................................................................... ..................... X .....................

Mr. Canady ........................................................................................................ ..................... X .....................

Mr. Goodlatte .................................................................................................... ..................... ..................... .....................

Mr. Chabot ........................................................................................................ ..................... X .....................

Mr. Barr ............................................................................................................. X ..................... .....................

Mr. Jenkins ........................................................................................................ X ..................... .....................

Mr. Hutchinson .................................................................................................. ..................... X .....................

Mr. Pease .......................................................................................................... X ..................... .....................

Mr. Cannon ....................................................................................................... ..................... X .....................

Mr. Rogan ......................................................................................................... ..................... ..................... .....................

Mr. Graham ....................................................................................................... ..................... ..................... .....................

Ms. Bono ........................................................................................................... ..................... X .....................

Mr. Bachus ........................................................................................................ ..................... ..................... .....................

Mr. Scarborough ................................................................................................ X ..................... .....................

Mr. Vitter ........................................................................................................... ..................... ..................... .....................

Mr. Conyers ....................................................................................................... X ..................... .....................

Mr. Frank ........................................................................................................... ..................... ..................... .....................

Mr. Berman ....................................................................................................... ..................... ..................... .....................

Mr. Boucher ....................................................................................................... ..................... ..................... .....................

Mr. Nadler ......................................................................................................... X ..................... .....................

Mr. Scott ........................................................................................................... X ..................... .....................

Mr. Watt ............................................................................................................ ..................... X .....................

Ms. Lofgren ....................................................................................................... ..................... ..................... .....................

Ms. Jackson Lee ................................................................................................ X ..................... .....................

Ms. Waters ........................................................................................................ X ..................... .....................

Mr. Meehan ....................................................................................................... ..................... ..................... .....................

Mr. Delahunt ..................................................................................................... ..................... ..................... .....................

Mr. Wexler ......................................................................................................... ..................... ..................... .....................

Mr. Rothman ..................................................................................................... ..................... X .....................

Ms. Baldwin ...................................................................................................... ..................... ..................... .....................

Mr. Weiner ......................................................................................................... ..................... ..................... .....................

Mr. Hyde, Chairman .......................................................................................... ..................... X .....................

Total ................................................................................................ 10 10 .....................

24

3. At the next Full Committee meeting, Mr. Cannon moved to reconsider the vote by which the Barr amendment was defeated. The

motion to reconsider was agreed to by voice vote, and the Barr

amendment was agreed to by voice vote.

4. Mr. Conyers offered an amendment which would make it a

Federal offense to deface or destroy information or images on computer systems even if the resulting damage does amount to $5,000

or more. Passed by voice vote.

5. Mr. Nadler, Mr. Conyers and Mr. Barr offered an amendment

which would add to the definition of ‘‘electronic storage’’ those communications stored by an electronic communications service without regard to whether they had been accessed by the intended recipient. Passed favorably by voice vote.

6. Mr. Nadler and Mr. Barr offered an amendment which would

add provisions to the Federal reporting requirements. This amendment was defeated by a rollcall vote of 9 to 16.

ROLLCALL NO. 2

Ayes Nays Present

Mr. Sensenbrenner ............................................................................................ ..................... ..................... .....................

Mr. McCollum .................................................................................................... ..................... ..................... .....................

Mr. Gekas .......................................................................................................... ..................... X .....................

Mr. Coble ........................................................................................................... X ..................... .....................

Mr. Smith (TX) .................................................................................................. ..................... X .....................

Mr. Gallegly ....................................................................................................... ..................... X .....................

Mr. Canady ........................................................................................................ ..................... X .....................

Mr. Goodlatte .................................................................................................... ..................... X .....................

Mr. Chabot ........................................................................................................ ..................... X .....................

Mr. Barr ............................................................................................................. X ..................... .....................

Mr. Jenkins ........................................................................................................ ..................... X .....................

Mr. Hutchinson .................................................................................................. ..................... X .....................

Mr. Pease .......................................................................................................... ..................... X .....................

Mr. Cannon ....................................................................................................... ..................... ..................... .....................

Mr. Rogan ......................................................................................................... ..................... X .....................

Mr. Graham ....................................................................................................... ..................... X .....................

Ms. Bono ........................................................................................................... ..................... ..................... .....................

Mr. Bachus ........................................................................................................ ..................... ..................... .....................

Mr. Scarborough ................................................................................................ ..................... ..................... .....................

Mr. Vitter ........................................................................................................... ..................... ..................... .....................

Mr. Conyers ....................................................................................................... X ..................... .....................

Mr. Frank ........................................................................................................... X ..................... .....................

Mr. Berman ....................................................................................................... ..................... ..................... .....................

Mr. Boucher ....................................................................................................... ..................... ..................... .....................

Mr. Nadler ......................................................................................................... X ..................... .....................

Mr. Scott ........................................................................................................... X ..................... .....................

Mr. Watt ............................................................................................................ X ..................... .....................

Ms. Lofgren ....................................................................................................... ..................... X .....................

Ms. Jackson Lee ................................................................................................ ..................... X .....................

Ms. Waters ........................................................................................................ X ..................... .....................

Mr. Meehan ....................................................................................................... ..................... ..................... .....................

Mr. Delahunt ..................................................................................................... ..................... ..................... .....................

Mr. Wexler ......................................................................................................... ..................... ..................... .....................

Mr. Rothman ..................................................................................................... ..................... X .....................

Ms. Baldwin ...................................................................................................... X ..................... .....................

Mr. Weiner ......................................................................................................... ..................... X .....................

Mr. Hyde, Chairman .......................................................................................... ..................... X .....................

Total ................................................................................................ 9 16 .....................

7. Ms. Lofgren offered an amendment which would extend the

statutory exclusionary rule to exclude from evidence illegally disVerDate 11-MAY-2000 19:28 Oct 04, 2000 Jkt 089010 PO 00000 Frm 00024 Fmt 6659 Sfmt 6601 E:\HR\OC\HR932.XXX pfrm04 PsN: HR932
25

closed electronic communications in electronic storage. This amendment was agreed to by a rollcall vote of 9 to 7.

ROLLCALL NO. 3

Ayes Nays Present

Mr. Sensenbrenner ............................................................................................ ..................... ..................... .....................

Mr. McCollum .................................................................................................... ..................... ..................... .....................

Mr. Gekas .......................................................................................................... ..................... ..................... .....................

Mr. Coble ........................................................................................................... ..................... X .....................

Mr. Smith (TX) .................................................................................................. ..................... X .....................

Mr. Gallegly ....................................................................................................... ..................... ..................... .....................

Mr. Canady ........................................................................................................ ..................... X .....................

Mr. Goodlatte .................................................................................................... ..................... ..................... .....................

Mr. Chabot ........................................................................................................ ..................... ..................... .....................

Mr. Barr ............................................................................................................. X ..................... .....................

Mr. Jenkins ........................................................................................................ ..................... X .....................

Mr. Hutchinson .................................................................................................. ..................... X .....................

Mr. Pease .......................................................................................................... X ..................... .....................

Mr. Cannon ....................................................................................................... ..................... ..................... .....................

Mr. Rogan ......................................................................................................... ..................... ..................... .....................

Mr. Graham ....................................................................................................... ..................... X .....................

Ms. Bono ........................................................................................................... ..................... ..................... .....................

Mr. Bachus ........................................................................................................ ..................... ..................... .....................

Mr. Scarborough ................................................................................................ X ..................... .....................

Mr. Vitter ........................................................................................................... ..................... ..................... .....................

Mr. Conyers ....................................................................................................... ..................... ..................... .....................

Mr. Frank ........................................................................................................... ..................... ..................... .....................

Mr. Berman ....................................................................................................... X ..................... .....................

Mr. Boucher ....................................................................................................... ..................... ..................... .....................

Mr. Nadler ......................................................................................................... X ..................... .....................

Mr. Scott ........................................................................................................... ..................... ..................... .....................

Mr. Watt ............................................................................................................ X ..................... .....................

Ms. Lofgren ....................................................................................................... X ..................... .....................

Ms. Jackson Lee ................................................................................................ ..................... ..................... .....................

Ms. Waters ........................................................................................................ X ..................... .....................

Mr. Meehan ....................................................................................................... ..................... ..................... .....................

Mr. Delahunt ..................................................................................................... ..................... ..................... .....................

Mr. Wexler ......................................................................................................... ..................... ..................... .....................

Mr. Rothman ..................................................................................................... X ..................... .....................

Ms. Baldwin ...................................................................................................... ..................... ..................... .....................

Mr. Weiner ......................................................................................................... ..................... ..................... .....................

Mr. Hyde, Chairman .......................................................................................... ..................... X .....................

Total ................................................................................................ 9 7 .....................

8. Ms. Waters offered an amendment which would require notification to all those whose communications had been traced under an

order for the installation of a pen register or trap and trace device.

The amendment was defeated by a rollcall vote of 9 to 12.

ROLLCALL NO. 4

Ayes Nays Present

Mr. Sensenbrenner ............................................................................................ ..................... ..................... .....................

Mr. McCollum .................................................................................................... ..................... ..................... .....................

Mr. Gekas .......................................................................................................... ..................... ..................... .....................

Mr. Coble ........................................................................................................... ..................... X .....................

Mr. Smith (TX) .................................................................................................. ..................... X .....................

Mr. Gallegly ....................................................................................................... ..................... X .....................

Mr. Canady ........................................................................................................ ..................... X .....................

Mr. Goodlatte .................................................................................................... ..................... ..................... .....................

Mr. Chabot ........................................................................................................ ..................... X .....................

Mr. Barr ............................................................................................................. X ..................... .....................

Mr. Jenkins ........................................................................................................ ..................... X .....................

26

ROLLCALL NO. 4—Continued

Ayes Nays Present

Mr. Hutchinson .................................................................................................. ..................... X .....................

Mr. Pease .......................................................................................................... ..................... X .....................

Mr. Cannon ....................................................................................................... ..................... X .....................

Mr. Rogan ......................................................................................................... ..................... X .....................

Mr. Graham ....................................................................................................... ..................... ..................... .....................

Ms. Bono ........................................................................................................... ..................... ..................... .....................

Mr. Bachus ........................................................................................................ ..................... ..................... .....................

Mr. Scarborough ................................................................................................ X ..................... .....................

Mr. Vitter ........................................................................................................... ..................... ..................... .....................

Mr. Conyers ....................................................................................................... ..................... ..................... .....................

Mr. Frank ........................................................................................................... ..................... ..................... .....................

Mr. Berman ....................................................................................................... X ..................... .....................

Mr. Boucher ....................................................................................................... ..................... ..................... .....................

Mr. Nadler ......................................................................................................... X ..................... .....................

Mr. Scott ........................................................................................................... X ..................... .....................

Mr. Watt ............................................................................................................ X ..................... .....................

Ms. Lofgren ....................................................................................................... X ..................... .....................

Ms. Jackson Lee ................................................................................................ ..................... ..................... .....................

Ms. Waters ........................................................................................................ X ..................... .....................

Mr. Meehan ....................................................................................................... ..................... ..................... .....................

Mr. Delahunt ..................................................................................................... ..................... ..................... .....................

Mr. Wexler ......................................................................................................... ..................... ..................... .....................

Mr. Rothman ..................................................................................................... ..................... X .....................

Ms. Baldwin ...................................................................................................... ..................... ..................... .....................

Mr. Weiner ......................................................................................................... X ..................... .....................

Mr. Hyde, Chairman .......................................................................................... ..................... X .....................

Total ................................................................................................ 9 12 .....................

9. Motion to report favorably to the House the bill H.R. 5018,

with an amendment in the nature of a substitute was agreed to by

a rollcall vote of 20 to 1.

ROLLCALL NO. 5

Ayes Nays Present

Mr. Sensenbrenner ............................................................................................ ..................... ..................... .....................

Mr. McCollum .................................................................................................... ..................... ..................... .....................

Mr. Gekas .......................................................................................................... ..................... ..................... .....................

Mr. Coble ........................................................................................................... X ..................... .....................

Mr. Smith (TX) .................................................................................................. X ..................... .....................

Mr. Gallegly ....................................................................................................... X ..................... .....................

Mr. Canady ........................................................................................................ X ..................... .....................

Mr. Goodlatte .................................................................................................... ..................... ..................... .....................

Mr. Chabot ........................................................................................................ X ..................... .....................

Mr. Barr ............................................................................................................. X ..................... .....................

Mr. Jenkins ........................................................................................................ X ..................... .....................

Mr. Hutchinson .................................................................................................. X ..................... .....................

Mr. Pease .......................................................................................................... X ..................... .....................

Mr. Cannon ....................................................................................................... X ..................... .....................

Mr. Rogan ......................................................................................................... ..................... ..................... .....................

Mr. Graham ....................................................................................................... X ..................... .....................

Ms. Bono ........................................................................................................... ..................... ..................... .....................

Mr. Bachus ........................................................................................................ ..................... ..................... .....................

Mr. Scarborough ................................................................................................ X ..................... .....................

Mr. Vitter ........................................................................................................... ..................... ..................... .....................

Mr. Conyers ....................................................................................................... ..................... ..................... .....................

Mr. Frank ........................................................................................................... ..................... ..................... .....................

Mr. Berman ....................................................................................................... X ..................... .....................

Mr. Boucher ....................................................................................................... ..................... ..................... .....................

Mr. Nadler ......................................................................................................... X ..................... .....................

Mr. Scott ........................................................................................................... X ..................... .....................

Mr. Watt ............................................................................................................ X ..................... .....................

27

ROLLCALL NO. 5—Continued

Ayes Nays Present

Ms. Lofgren ....................................................................................................... X ..................... .....................

Ms. Jackson Lee ................................................................................................ ..................... ..................... .....................

Ms. Waters ........................................................................................................ X ..................... .....................

Mr. Meehan ....................................................................................................... ..................... ..................... .....................

Mr. Delahunt ..................................................................................................... ..................... ..................... .....................

Mr. Wexler ......................................................................................................... ..................... ..................... .....................

Mr. Rothman ..................................................................................................... X ..................... .....................

Ms. Baldwin ...................................................................................................... ..................... ..................... .....................

Mr. Weiner ......................................................................................................... ..................... X .....................

Mr. Hyde, Chairman .......................................................................................... X ..................... .....................

Total ................................................................................................ 20 1 .....................

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.

COMMITTEE ON GOVERNMENT REFORM FINDINGS

No findings or recommendations of the Committee on Government Reform were received as referred to in clause 3(c)(4) of rule

XIII of the Rules of the House of Representatives.

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.

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. 5018, 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, October 3, 2000.

Hon. HENRY J. HYDE, 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. 5018, the Electronic Communications Privacy Act of 2000.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contact is Mark Hadley, who can

be reached at 226–2860.

Sincerely,

Enclosure

28

cc: Honorable John J. Conyers Jr.

Ranking Democratic Member

H.R. 5018—Electronic Communications Privacy Act of 2000.

Based on information from the Department of Justice, CBO estimates that implementing the reporting requirements of H.R. 5018

would cost federal law enforcement agencies about $1 million a

year. Enacting H.R. 5018 could affect direct spending and receipts;

therefore, 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. 5018 would require greater judicial oversight when law enforcement officials monitor the electronic communications (such as

e-mail) of suspected criminals. The bill would require law enforcement officials who request court orders to monitor these communications to provide evidence of a crime and show that information

related to the crime is likely to be contained in such communications. (Under current law, officials need to certify that these communications are related to a criminal investigation.) The bill would

prohibit illegally obtained electronic communications from being

used as evidence in trials. In addition, the bill would require federal law enforcement agencies to report annually to the Congress

on the number and nature of their requests for such orders.

The bill would increase penalties for certain crimes, and establish federal crimes related to the unauthorized disclosure or

distruction of certain electronic information. As a result, the federal

government might be able to pursue cases that it otherwise would

not be able to prosecute. CBO expects that any increase in federal

costs for law enforcement, court proceedings, or prison operations

would not be significant, however, because of the small number of

cases likely to be involved. Any such additional costs would be subject to the availability of appropriated funds.

Because those prosecuted and convicted under H.R. 5018 could

be subject to criminal fines, and increased fines and penalties, the

federal government might collect additional fines if the bill is enacted. Collections of such fines are recorded in the budget as governmental receipts (revenues), which are deposited in the Crime

Victims Fund and spent in subsequent years. CBO expects that

any additional receipts and direct spending would be less than

$500,000 each year.

H.R. 5018 also would increase judicial oversight of efforts by

state and local law enforcement agencies to monitor certain electronic communications. Such requirements would constitute intergovernmental mandates (on both courts and law enforcement agencies) as defined in th Unfunded Mandates Reform Act (UMRA).

Based on information from state and local public safety officials,

however, CBO estimates that the costs of complying with these

new requirements would not likely be significant, and would not

exceed the threshold established in UMRA ($55 million in 2000, adjusted annually for inflation). The bill contains no new private-sector mandates as defined by UMRA.

The CBO staff contacts are Mark Hadley (for federal costs), who

can be reached at 226–2860, and Theresa Gullo (for the impact on

state and local governments), who can be reached at 225–3220.

29

This estimate was approved by Peter H. Fontaine, Deputy 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, clauses 3 and 18 of the Constitution.

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

Section 1—Short Title

Section 1 states that the act may be cited as the ‘‘Electronic

Communications Privacy Act of 2000.’’

Section 2—Use as Evidence

Section 2 extends the statutory exclusionary rule to also exclude

from use in evidence at trial electronic communications—including

electronic communications such as e-mail that lies in storage with

an electronic communications service—obtained in violation of Federal law, just as illegally obtained wire and oral electronic communications are excluded, while also allowing the use of such communications against those who illegally obtained them.

Section 3—Reports Concerning the Disclosure of the Contents of

Electronic Communications

Section 3 requires the Federal Government to report annually

basic information regarding the requests it makes to disclose the

contents of stored electronic communications under 18 U.S.C.

§§ 2703(a) and (b).

Section 4—Pen Registers and Trap and Trace Devices

Section 4 raises the standard for the government’s access, under

the Pen Register Act, to transactional information regarding a person’s communications by requiring that a court find that ‘‘specific

and articulable facts reasonably indicate that crime has been, is

being, or will be committed, and information likely to be obtained

by such installation and use is relevant to the investigation of that

crime.’’

Section 5—Civil Damages

Section 5 increases the civil penalties that may be applied to

those who illegally intercept electronic communications by raising

the daily damages for each violation from $100 a day to $500 a

day.

Section 6—Notification

Section 6 makes clear that only a court may decide whether

delays in notifying those whose stored electronic communications

are disclosed are appropriate.

Section 7—Government Access to Location Information

Section 7 prohibits the government from obtaining a mobile

phone user’s location without first obtaining a court order based on

probable cause, except in certain emergency situations. Certain exceptions to this provision are provided for disclosing such informaVerDate 11-MAY-2000 19:28 Oct 04, 2000 Jkt 089010 PO 00000 Frm 00029 Fmt 6659 Sfmt 6601 E:\HR\OC\HR932.XXX pfrm04 PsN: HR932
30

tion to emergency service providers such as hospitals, or to the

legal guardian or members of the user’s immediate family in situations involving the risk of death or serious physical harm, or with

the express consent of the user of the mobile phone equipment.

Section 8—Computer Crime Amendments

Section 8 raises the maximum penalty for the most serious computer violations to 10 years in prison and extends Federal jurisdiction to those computer crimes involving an attack on a protected

computer that modifies or impairs, or threatens to modify or impair, the medical examination, diagnosis, treatment, or care of one

or more individuals, causes physical injury to any individual, or

threatens public health or safety. Section 8 also creates a new category of felony violations where a hacker causes damage to a computer system used by or for a government entity in furtherance of

the administration of justice, national defense, or national security.

Section 8 also clarifies that damage to multiple protected computers must be aggregated in determining whether a violation has

exceeded the $5,000 threshold for an offense and applies the criminal forfeiture rules to computer hacking crimes.

Section 8 also expressly defines the term ‘‘loss’’ as used in the

statute to account for a wide range of possible harms done to the

victims of computer crimes, including reasonable costs of responding to the offense, conducting a damage assessment, restoring the

system and data to their condition prior to the offense, and any lost

revenue or costs incurred because of the interruption of service.

Section 8 also allows the Federal Government to investigate and

prosecute offenses in which a person intentionally defaced, damaged or destroyed images or information made available to the public, such as the defacing of images or information on computer systems, even if such offenses did not result in more than $5,000 in

damages.

Finally, Section 8 restricts the 6 month minimum sentence under

the Federal Sentencing Guidelines to only the more serious computer crimes and better ensures that the punishment fits the

crime.

Section 9—Interception of Wire, Oral, and Electronic Communications Amendments

Section 9 requires high-level Department of Justice approval for

interceptions of electronic communications, as is currently required

for interceptions of wire and oral communications, and also adds

computer crimes to the enumerated offenses for which interceptions

may be ordered.

Section 10—Amendments to the Electronic Communications Privacy

Act

Section 10 increases the criminal penalties for the illegal disclosure of stored electronic communications and allows electronic communications service providers to disclose to law enforcement basic

customer records, such as name and address, with the lawful consent of the customer or subscriber; as may be necessarily incident

to the rendition of service or to the protection of the rights or property of the provider of that service; or to a governmental entity, if

the provider reasonably believes that an emergency involving imVerDate 11-MAY-2000 19:28 Oct 04, 2000 Jkt 089010 PO 00000 Frm 00030 Fmt 6659 Sfmt 6601 E:\HR\OC\HR932.XXX pfrm04 PsN: HR932
31

mediate danger of death or serious physical injury to any person

justifies disclosure of the information.

Section 10 also raises the minimum civil damage award for the

illegal disclosure of stored electronic communications to $5,000.

Section 11—Additional Provisions Relating to Pen Registers

Section 11 allows law enforcement to use devices that track the

source and destination of criminal communications without a court

order for up to 48 hours in situations involving national security

and ongoing attacks on computer networks, but also requires that,

if a court finds law enforcement had an insufficient basis to conduct the monitoring, the judge must order that the person whose

communications were wrongfully tracked be notified.

Section 12—Government Access to Contents of Stored Electronic

Communications

Section 12 extends the protection of a warrant requirement to

electronic communications stored by electronic communications

services for 1 year or less.

Section 13—Enhanced Privacy Protection for Information on Computer Networks

Section 13 makes clear that protections of electronic communications in electronic storage cover e-mail messages that have been

accessed by the intended recipient but remain stored by an electronic communications service.

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 (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics,

existing law in which no change is proposed is shown in roman):

TITLE 18, UNITED STATES CODE

* * * * * * *

PART I—CRIMES

* * * * * * *

CHAPTER 47—FRAUD AND FALSE STATEMENTS

* * * * * * *

§ 1030. Fraud and related activity in connection with computers

(a) Whoever—

(1) * * *

* * * * * * *

(3) intentionally, without authorization to access any nonpublic computer of a department or agency of the United

States, accesses øsuch a computer¿ without or in excess of auVerDate 11-MAY-2000 19:28 Oct 04, 2000 Jkt 089010 PO 00000 Frm 00031 Fmt 6659 Sfmt 6601 E:\HR\OC\HR932.XXX pfrm04 PsN: HR932
32

thorization a computer of that department or agency that is exclusively for the use of the Government of the United States

or, in the case of a computer not exclusively for such use, is

used by or for the Government of the United States and such

conduct affects;

* * * * * * *

(5)(A)(i) knowingly causes the transmission of a program,

information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a

protected computer;

ø(B)¿ (ii) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly

causes damage; or

ø(C)¿ (iii) intentionally accesses a protected computer

without authorization, and as a result of such conduct, causes

damage; and

(B) whose conduct described in clause (i), (ii), or (iii) of subparagraph (A)—

(i) caused loss to one or more persons during any oneyear period (including loss resulting from a related course

of conduct affecting one or more other protected computers)

aggregating at least $5,000;

(ii) modified or impaired, or potentially modified or

impaired, the medical examination, diagnosis, treatment,

or care of one or more individuals;

(iii) caused physical injury to any individual;

(iv) threatened public health or safety;

(v) caused damage affecting a computer system used by

or for a government entity in furtherance of the administration of justice, national defense, or national security; or

(vi) intentionally defaced, damaged, or destroyed images or information made available to the public and thereby interfered with the rights protected under the First

Amendment to the Constitution;

* * * * * * *

(7) with intent to extort from any personø, firm, association, educational institution, financial institution, government

entity, or other legal entity,¿ any money or other thing of

value,

transmits in interstate or foreign commerce any communication containing any threat to cause damage to a protected computer;

shall be punished as provided in subsection (c) of this section.

(b) Whoever attempts to commit an offense under subsection

(a) of this section shall be punished as provided in subsection (c)

of this section as if such person had committed the completed offense.

(c) The punishment for an offense under subsection (a) or (b)

of this section is—

(1)(A) a fine under this title or imprisonment for not more

than ten years, or both, in the case of an offense under subsection (a)(1), (a)(5)(A)(i), or (a)(5)(A)(ii) of this section which

does not occur after a conviction for another offense under this

33

sectionø, or an attempt to commit an offense punishable under

this subparagraph¿; and

(B) a fine under this title or imprisonment for not more

than twenty years, or both, in the case of an offense under subsection (a)(1) of this section which occurs after a conviction for

another offense under this sectionø, or an attempt to commit

an offense punishable under this subparagraph¿;

ø(2)(A) a fine under this title or imprisonment for not more

than one year, or both, in the case of an offense under subsection (a)(2), (a)(3), (a)(5)(C), or (a)(6) of this section which

does not occur after a conviction for another offense under this

section, or an attempt to commit an offense punishable under

this subparagraph; and¿

(2)(A) except as provided in subsection (c)(2)(B), a fine

under this title or imprisonment for not more than one year, or

both, in the case of an offense under subsection (a)(2), (a)(3),

(a)(5)(A)(iii), or (a)(6) of this section which does not occur after

a conviction for another offense under this section;

* * * * * * *

ø(C) a fine under this title or imprisonment for not more

than ten years, or both, in the case of an offense under subsection (a)(2), (a)(3) or (a)(6) of this section which occurs after

a conviction for another offense under such subsection, or an

attempt to commit an offense punishable under this subparagraph; and¿

ø(3)(A)¿ (3) a fine under this title or imprisonment for not

more than five years, or both, in the case of an offense under

subsection (a)(4)ø, (a)(5)(A), (a)(5)(B),¿ or (a)(7) of this section

which does not occur after a conviction for another offense

under this sectionø, or an attempt to commit an offense punishable under this subparagraph; and¿; and

ø(B) a fine under this title or imprisonment for not more

than ten years, or both, in the case of an offense under subsection (a)(4), (a)(5)(A), (a)(5)(B), (a)(5)(C), or (a)(7) of this section which occurs after a conviction for another offense under

this section, or an attempt to commit an offense punishable

under this subparagraph; and¿

(4) a fine under this title or imprisonment for not more

than ten years, or both, in the case of an offense under subsection (a)(2), (a)(3), (a)(4), (a)(5), (a)(6), or (a)(7) of this section

which occurs after a conviction for another offense under this

section.

(d) The United States Secret Service shall, in addition to any

other agency having such authority, have the authority to investigate offenses under øsubsections (a)(2)(A), (a)(2)(B), (a)(3), (a)(4),

(a)(5), and (a)(6) of¿ this section. Such authority of the United

States Secret Service shall be exercised in accordance with an

agreement øwhich shall be entered into by¿ between the Secretary

of the Treasury and the Attorney General.

(e) As used in this section—

(1) * * *

* * * * * * *

(7) the term ‘‘department of the United States’’ means the

legislative or judicial branch of the Government or one of the

34

executive departments enumerated in section 101 of title 5;

øand¿

(8) the term ‘‘damage’’ means any impairment to the

integrity or availability of data, a program, a system, or

informationø, that—

ø(A) causes loss aggregating at least $5,000 in value

during any 1-year period to one or more individuals;

ø(B) modifies or impairs, or potentially modifies or impairs, the medical examination, diagnosis, treatment, or

care of one or more individuals;

ø(C) causes physical injury to any person; or

ø(D) threatens public health or safety; and¿;

(9) the term ‘‘government entity’’ includes the Government

of the United States, any State or political subdivision of the

United States, any foreign country, and any state, province,

municipality, or other political subdivision of a foreign

countryø.¿;

(10) the term ‘‘conviction for another offense under this section’’ includes a State conviction for a crime punishable by imprisonment for more than 1 year, an element of which is unauthorized access, or exceeding authorized access, to a computer;

(11) the term ‘‘loss’’ means any reasonable cost to any victim, including responding to the offense, conducting a damage

assessment, restoring any data, program, system, or information to its condition before the offense, and any revenue lost or

costs incurred because of interruption of service; and

(12) the term ‘‘person’’ includes any individual, firm, association, educational institution, financial institution, corporation, company, partnership, government entity, or other legal

entity.

* * * * * * *

ø(g) Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other

equitable relief. Damages for violations involving damage as defined in subsection (e)(8)(A) are limited to economic damages. No

action may be brought under this subsection unless such action is

begun within 2 years of the date of the act complained of or the

date of the discovery of the damage.¿

(g) Except as herein provided, any person who suffers damage

or loss by reason of a violation of this section may maintain a civil

action against the violator to obtain compensatory damages and injunctive or other equitable relief. A suit for a violation of subsection

(a)(5) may be brought only if the conduct involves one or more of

the factors enumerated in subsection (a)(5)(B). No action may be

brought under this subsection unless such action is begun within 2

years of the date of the act complained of or the date of the discovery of the damage.

* * * * * * *

(i)(1) The court, in imposing sentence on any person convicted

of a violation of this section, shall order, in addition to any other

sentence imposed and irrespective of any provision of State law, that

such person forfeit to the United States—

35

(A) such person’s interest in any personal property that was

used or intended to be used to commit or to facilitate the commission of such violation; and

(B) any property, real or personal, constituting or derived

from, any proceeds that such person obtained, directly or indirectly, as a result of such violation.

(2) The criminal forfeiture of property under this subsection,

any seizure and disposition thereof, and any administrative or judicial proceeding in relation thereto, shall be governed by the provisions of section 413 of the Comprehensive Drug Abuse Prevention

and Control Act of 1970 (21 U.S.C. 853), except subsection (d) of

that section.

* * * * * * *

CHAPTER 119—WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL

COMMUNICATIONS

Sec.

2510. Definitions.

* * * * * * *

ø2515. Prohibition of use as evidence of intercepted wire or oral communications.¿

2515. Prohibition of use as evidence of intercepted wire, oral, or electronic communications.

* * * * * * *

§ 2510. Definitions

As used in this chapter—

(1) * * *

* * * * * * *

(10) ‘‘communication common carrier’’ shall have the same

meaning which is given the term ‘‘common carrier’’ by section

ø153(h)¿ 153(10) of title 47 of the United States Code;

* * * * * * *

(17) ‘‘electronic storage’’ means—

(A) any temporary, intermediate storage of a wire or

electronic communication incidental to the electronic transmission thereof; øand¿

* * * * * * *

(C) any storage of an electronic communication by an

electronic communication service without regard to whether

the communication has been accessed by the intended recipient; and

* * * * * * *

§ 2515. Prohibition of use as evidence of intercepted øwire

or oral¿ wire, oral, or electronic communications

øWhenever any wire or oral communication has been intercepted¿ (a) Except as provided in subsection (b), whenever any wire,

oral, or electronic communication has been intercepted, or any electronic communication in electronic storage has been disclosed, no

part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing,

36

or other proceeding in or before any court, grand jury, department,

officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision

thereof if the disclosure of that information would be in violation

of this chapter or chapter 121. (b) Subsection (a) does not apply to the disclosure, before a

grand jury or in a criminal trial, hearing, or other criminal proceeding, of the contents of a communication, or evidence derived

therefrom, against a person alleged to have intercepted, used, or disclosed the communication in violation of this chapter, or chapter

121, or participated in such violation.

§ 2516. Authorization for interception of wire, oral, or electronic communications

(1) The Attorney General, Deputy Attorney General, Associate

Attorney General, or any Assistant Attorney General, any acting

Assistant Attorney General, or any Deputy Assistant Attorney

General or acting Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction

for, and such judge may grant in conformity with section 2518 of

this chapter an order authorizing or approving the interception of

øwire or oral¿ wire, oral, or electronic communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application

is made, when such interception may provide or has provided evidence of—

(a) * * *

* * * * * * *

(p) a felony violation of section 1028 (relating to production

of false identification documents), section 1030 (relating to computer fraud and abuse), section 1362 (relating to destruction of

government communications facilities), section 1542 (relating to

false statements in passport applications), section 1546 (relating to fraud and misuse of visas, permits, and other documents) of this title or a violation of section 274, 277, or 278 of

the Immigration and Nationality Act (relating to the smuggling

of aliens); or

ø(p)¿ (q) any conspiracy to commit any offense described in

any subparagraph of this paragraph.

* * * * * * *

§ 2517. Authorization for disclosure and use of intercepted

wire, oral, or electronic communications

(1) Any investigative or law enforcement officer who, by any

means authorized by this chapter or under the circumstances described in section 2515(b), has obtained knowledge of the contents

of any wire, oral, or electronic communication, or evidence derived

therefrom, may disclose such contents to another investigative or

law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer

making or receiving the disclosure.

(2) Any investigative or law enforcement officer who, by any

means authorized by this chapter or under the circumstances deVerDate 11-MAY-2000 19:28 Oct 04, 2000 Jkt 089010 PO 00000 Frm 00036 Fmt 6659 Sfmt 6601 E:\HR\OC\HR932.XXX pfrm04 PsN: HR932
37

scribed in section 2515(b), has obtained knowledge of the contents

of any wire, oral, or electronic communication or evidence derived

therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties.

§ 2518. Procedure for interception of wire, oral, or electronic

communications

(1) * * *

* * * * * * *

(7) Notwithstanding any other provision of this chapter, any

investigative or law enforcement officer, specially designated by the

Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any

State or subdivision thereof acting pursuant to a statute of that

State, who reasonably determines that—

(a) * * *

(b) there are grounds upon which an order could be entered under this chapter to authorize such interception,

may intercept such wire, oral, or electronic communication if an application for an order approving the interception is made in accordance with this section within forty-eight hours after the interception has occurred, or begins to occur. In the absence of an order,

such interception shall immediately terminate when the communication sought is obtained or when the application for the order

is denied, whichever is earlier. In the event such application for approval is denied, or in any other case where the interception is terminated without an order having been issued, the contents of any

wire, oral, or electronic communication intercepted shall be treated

as having been obtained in violation of this chapter, and an inventory shall be served as provided for in øsubsection (d)¿ subsection

(8)(d) of this section on the person named in the application.

* * * * * * *

(10)(a) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a

political subdivision thereof, may move to suppress the contents of

any wire øor oral¿, oral, or electronic communication intercepted

pursuant to this chapter, or evidence derived therefrom, on the

grounds that—

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which it

was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with the

order of authorization or approvalø.¿;

except that no supresssion may be ordered under the circumstances

described in section 2515(b). Such motion shall be made before the

trial, hearing, or proceeding unless there was no opportunity to

make such motion or the person was not aware of the grounds of

the motion. If the motion is granted, the contents of the intercepted

wire øor oral¿, oral, or electronic communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of such motion by

the aggrieved person, may in his discretion make available to the

aggrieved person or his counsel for inspection such portions of the

38

intercepted communication or evidence derived therefrom as the

judge determines to be in the interests of justice.

* * * * * * *

ø(c) The remedies and sanctions described in this chapter with

respect to the interception of electronic communications are the

only judicial remedies and sanctions for nonconstitutional violations of this chapter involving such communications.¿

* * * * * * *

§ 2520. Recovery of civil damages authorized

(a) * * *

* * * * * * *

(c) COMPUTATION OF DAMAGES.—(1)***

(2) In any other action under this section, the court ømay¿

shall assess as damages whichever is the øgreater¿ greatest of—

(A) the sum of the actual damages suffered by the plaintiff

and any profits made by the violator as a result of the violation; øor¿

(B) statutory damages of øwhichever is the greater of $100

a day for each day of violation or $10,000.¿ $500 a day for each

violation; or

(C) statutory damages of $10,000.

* * * * * * *

CHAPTER 121—STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS

Sec.

2701. Unlawful access to stored communications.

ø2702. Disclosure of contents.¿

2702. Voluntary disclosure of customer communications or records.

* * * * * * *

§ 2701. Unlawful access to stored communications

(a) * * *

(b) PUNISHMENT.—The punishment for an offense under subsection (a) of this section is—

(1) if the offense is committed for øpurposes of¿ a tortious

or illegal purpose, commercial advantage, malicious destruction

or damage, or private commercial gain—

(A) a fine under this title or imprisonment for not

more than øone year¿ three years, or both, in the case of

a first offense under this subparagraph; and

(B) a fine under this title or imprisonment for not

more than øtwo¿ five years, or both, for any subsequent offense under this subparagraph; and

ø(2) a fine under this title or imprisonment for not more

than six months, or both, in any other case.¿

(2) in any other case—

(A) a fine under this title or imprisonment for not more

than one year, or both, in the case of a first offense under

this subparagraph; and

39

(B) a fine under this title or imprisonment for not more

than five years, or both, for any subsequent offense under

this subparagraph.

* * * * * * *

ø§ 2702. Disclosure of contents¿

§ 2702. Voluntary disclosure of customer communications or

records

(a) PROHIBITIONS.—Except as provided in subsection (b)—

(1) a øperson or entity providing an¿ provider of electronic

communication service to the public shall not knowingly divulge to any person or entity the contents of a communication

while in electronic storage by that service; øand¿

(2) a øperson or entity providing¿ provider of remote computing service to the public shall not knowingly divulge to any

person or entity the contents of any communication which is

carried or maintained on that service—

(A) on behalf of, and received by means of electronic

transmission from (or created by means of computer processing of communications received by means of electronic

transmission from), a subscriber or customer of such service; and

(B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if

the provider is not authorized to access the contents of any

such communications for purposes of providing any services other than storage or computer processingø.¿; and

(3) a provider of remote computing service or electronic

communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber

to or customer of such service (not including the contents of

communications covered by paragraph (1) or (2) of this subsection) to any governmental entity.

(b) EXCEPTIONS FOR DISCLOSURE OF COMMUNICATIONS.—A

øperson or entity¿ provider described in subsection (a) may divulge

the contents of a communication—

(1) * * *

* * * * * * *

(c) EXCEPTIONS FOR DISCLOSURE OF CUSTOMER RECORDS.—A

provider described in subsection (a) may divulge a record or other

information pertaining to a subscriber to or customer of such service

(not including the contents of communications covered by subsection

(a)(1) or (a)(2) of this section)—

(1) as otherwise authorized in section 2703 of this title;

(2) with the lawful consent of the customer or subscriber;

(3) as may be necessarily incident to the rendition of the

service or to the protection of the rights or property of the provider of that service;

(4) to a governmental entity, if the provider reasonably believes that an emergency involving immediate danger of death

or serious physical injury to any person justifies disclosure of

the information; or

40

(5) to any person other than a governmental entity where

not otherwise prohibited by law.

§ 2703. Requirements for governmental access

(a) CONTENTS OF ELECTRONIC COMMUNICATIONS IN ELEC- TRONIC STORAGE.—A governmental entity may require the disclosure by a provider of electronic communication service of the contents of an electronic communication, that is in electronic storage

in an electronic communications system for øone hundred and

eighty days¿ one year or less, only pursuant to a warrant issued

under the Federal Rules of Criminal Procedure or equivalent State

warrant. A governmental entity may require the disclosure by a

provider of electronic communications services of the contents of an

electronic communication that has been in electronic storage in an

electronic communications system for more than øone hundred and

eighty days¿ one year by the means available under subsection (b)

of this section.

* * * * * * *

(c) RECORDS CONCERNING ELECTRONIC COMMUNICATION SERV- ICE OR REMOTE COMPUTING SERVICE.—(1)ø(A) Except as provided

in subparagraph (B),¿ A governmental entity may require a provider of electronic communication service or remote computing

service ømay¿ to disclose a record or other information pertaining

to a subscriber to or customer of such service (not including the

contents of communications covered by subsection (a) or ø(b) of this

section¿ (b), or wireless location information covered by subsection

(g)) øto any person other than a governmental entity.¿

ø(B) A provider of electronic communication service or remote

computing service shall disclose a record or other information pertaining to a subscriber to or customer of such service (not including

the contents of communications covered by subsection (a) or (b) of

this section) to a governmental entity¿ only when the governmental

entity—

ø(i)¿ (A) obtains a warrant issued under the Federal Rules

of Criminal Procedure or equivalent State warrant;

ø(ii)¿ (B) obtains a court order for such disclosure under

subsection (d) of this section;

ø(iii)¿ (C) has the consent of the subscriber or customer to

such disclosure; øor¿

ø(iv)¿ (D) submits a formal written request relevant to a

law enforcement investigation concerning telemarketing fraud

for the name, address, and place of business of a subscriber or

customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325

of this title)ø.¿; or

(E) seeks information pursuant to paragraph (2).

ø(C)¿ (2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the

name, address, local and long distance telephone toll billing

records, telephone number or other subscriber number or identity,

and length of service of a subscriber to or customer of such service

and the types of services the subscriber or customer utilized, when

the governmental entity uses øan administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury

or trial subpoena¿ a Federal or State grand jury or trial subpoena,

41

or a subpoena or equivalent process authorized by a Federal or

State statute, or any means available under øsubparagraph (B).¿

paragraph (1).

ø(2)¿ (3) A governmental entity receiving records or information under this subsection is not required to provide notice to a

subscriber or customer.

* * * * * * *

(g) REPORTS CONCERNING THE DISCLOSURE OF THE CONTENTS

OF ELECTRONIC COMMUNICATIONS.— (1) By January 31 of each calendar year, the judge issuing

or denying an order, warrant, or subpoena, or the authority

issuing or denying a subpoena, under subsection (a) or (b) of

this section during the preceding calendar year shall report on

each such order, warrant, or subpoena to the Administrative

Office of the United States Courts—

(A) the fact that the order, warrant, or subpoena was

applied for;

(B) the kind of order, warrant, or subpoena applied for;

(C) the fact that the order, warrant, or subpoena was

granted as applied for, was modified, or was denied;

(D) the offense specified in the order, warrant, subpoena, or application;

(E) the identity of the agency making the application;

and

(F) the nature of the facilities from which or the place

where the contents of electronic communications were to be

disclosed.

(2) In January of each year the Attorney General or an Assistant Attorney General specially designated by the Attorney

General shall report to the Administrative Office of the United

States Courts—

(A) the information required by subparagraphs (A)

through (F) of paragraph (1) of this subsection with respect

to each application for an order, warrant, or subpoena

made during the preceding calendar year; and

(B) a general description of the disclosures made under

each such order, warrant, or subpoena, including—

(i) the approximate number of all communications

disclosed and, of those, the approximate number of incriminating communications disclosed;

(ii) the approximate number of other communications disclosed; and

(iii) the approximate number of persons whose

communications were disclosed.

(3) In June of each year, beginning in 2002, the Director of

the Administrative Office of the United States Courts shall

transmit to the Congress a full and complete report concerning

the number of applications for orders, warrants, or subpoenas

authorizing or requiring the disclosure of the contents of electronic communications pursuant to subsections (a) and (b) of

this section and the number of orders, warrants, or subpoenas

granted or denied pursuant to subsections (a) and (b) of this

section during the preceding calendar year. Such report shall

include a summary and analysis of the data required to be filed

with the Administrative Office by paragraphs (1) and (2) of this

42

subsection. The Director of the Administrative Office of the

United States Courts is authorized to issue binding regulations

dealing with the content and form of the reports required to be

filed by paragraphs (1) and (2) of this subsection.

(h) DISCLOSURE OF LOCATION INFORMATION TO GOVERNMENTAL

ENTITIES.—

(1) DISCLOSURE UPON COURT ORDER.—Except as provided

in paragraph (2), a provider of mobile electronic communication

service shall provide to a governmental entity information generated by and disclosing the current physical location of a subscriber’s equipment only if the governmental entity obtains a

court order issued upon a finding that there is probable cause

to believe that—

(A) a person is committing, has committed, or is about

to commit a felony offense; and

(B) the location information sought to be obtained concerns the location of the person believed to have committed,

be committing, or be about to commit that offense or a victim of that offense.

(2) PERMITTED DISCLOSURES WITHOUT COURT ORDER.—A

provider of mobile electronic communication service may provide information described in paragraph (1)—

(A) to a public safety answering point, emergency medical service provider or emergency dispatch provider, public

safety, fire service or law enforcement official, or hospital

emergency or trauma care facility, in order to respond to

the user’s call for emergency services;

(B) to inform the user’s legal guardian or members of

the user’s immediate family of the user’s location in an

emergency situation that involves the risk of death or serious physical harm; or

(C) with the express consent of the subscriber or the

user of the equipment concerned.

(3) DEFINITION.—The term ‘‘public safety answering point’’

means a facility that has been designated to receive emergency

calls and route them to emergency service personnel.

* * * * * * *

§ 2705. Delayed notice

(a) DELAY OF NOTIFICATION.—(1)***

* * * * * * *

(4) Extensions of the delay of notification provided in section

2703 of up to ninety days each may be granted by the court upon

application, øor by certification by a governmental entity, but only

in accordance with subsection (b) of this section.¿ if the court determines that there is reason to believe that notification of the existence

of the court order or subpoena may have an adverse result described

in paragraph (2) of this subsection.

* * * * * * *

§ 2707. Civil action

(a) * * *

* * * * * * *

43

(c) DAMAGES.—The court may assess as damages in a civil action under this section the sum of the actual damages suffered by

the plaintiff and any profits made by the violator as a result of the

violation, but in no case shall a person entitled to recover receive

less than the sum of ø$1,000¿ $5,000. If the violation is willful or

intentional, the court may assess punitive damages. In the case of

a successful action to enforce liability under this section, the court

may assess the costs of the action, together with reasonable attorney fees determined by the court.

* * * * * * *

PART II—CRIMINAL PROCEDURE

* * * * * * *

CHAPTER 206—PEN REGISTERS AND TRAP AND TRACE

DEVICES

* * * * * * *

§ 3122. Application for an order for a pen register or a trap

and trace device

(a) * * *

(b) CONTENTS OF APPLICATION.—An application under subsection (a) of this section shall include—

(1) * * *

ø(2) a certification by the applicant that the information

likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.¿

(2) a statement of facts showing that the requirements of

section 3123 have been met.

§ 3123. Issuance of an order for a pen register or a trap and

trace device

(a) IN GENERAL.—Upon an application made under section

3122 of this title, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace

device within the jurisdiction of the court if the court finds that

øthe attorney for the Government or the State law enforcement or

investigative officer has certified to the court that the information

likely to be obtained by such installation and use is relevant to an

ongoing criminal investigation.¿ specific and articulable facts reasonably indicate that a crime has been, is being, or will be committed, and information likely to be obtained by such installation

and use is relevant to the investigation of that crime.

* * * * * * *

§ 3125. Emergency pen register and trap and trace device installation

(a) Notwithstanding any other provision of this chapter, any

investigative or law enforcement officer, specially designated by the

Attorney General, the Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General,

44

or by the principal prosecuting attorney of any State or subdivision

thereof acting pursuant to a statute of that State, who reasonably

determines that—

(1) an emergency situation exists that involves—

(A) immediate danger of death or serious bodily injury

to any person; øor¿

(B) conspiratorial activities characteristic of organized

crimeø,¿;

(C) an immediate threat to a national security interest;

or

(D) an ongoing attack on the integrity or availability of

a protected computer in violation of section 1030(a)(5)(A)(i)

or 1030(a)(5)(A)(ii) of this title,

that requires the installation and use of a pen register or a

trap and trace device before an order authorizing such installation and use can, with due diligence, be obtained, and

(2) there are grounds upon which an order could be entered under this chapter to authorize such installation and use;

may have installed and use a pen register or trap and trace device

if, within forty-eight hours after the installation has occurred, or

begins to occur, an order approving the installation or use is issued

in accordance with section 3123 of this title. In the event an application for such order is denied, or in any other case where the installation and use of a pen register or trap and trace device is terminated without an order having been issued, any information obtained by such installation and use shall be treated as having been

obtained in violation of this chapter, and an inventory shall be

served as provided for in subsection (b) of this section on the person

named in the application.

(b) Within a reasonable time but not later than 90 days after

the filing of an application for an order of approval under subsection (a)(2) of this section which is denied, the denying judge shall

cause to be served, on the persons named in the order or the application, and such other parties to the information obtained by such

installation and use of a pen register or trap and trace device as

the judge may determine in his discretion is in the interest of justice, an inventory which shall include notice of—

(1) the fact of the entry of the application;

(2) the date of the entry and the date of the denial of the

application; and

(3) the fact that during the period covered by the application, information was obtained by the installation and use of a

pen register or trap and trace device.

The judge, upon the filing of a motion, may in his discretion make

available to such person or his counsel for inspection such portions

of the applications as the judge determines to be in the interest of

justice. On an ex parte showing of good cause to a judge of competent jurisdiction the serving of the inventory required by this subsection may be postponed.

ø(b)¿ (c) In the absence of an authorizing order, such use shall

immediately terminate when the information sought is obtained,

when the application for the order is denied or when forty-eight

hours have lapsed since the installation of the pen register or trap

and trace device, whichever is earlier.

45

ø(c)¿ (d) The knowing installation or use by any investigative

or law enforcement officer of a pen register or trap and trace device

pursuant to subsection (a) without application for the authorizing

order within forty-eight hours of the installation shall constitute a

violation of this chapter.

ø(d)¿ (e) A provider of a wire or electronic service, landlord,

custodian, or other person who furnished facilities or technical assistance pursuant to this section shall be reasonably compensated

for such reasonable expenses incurred in providing such facilities

and assistance.

* * * * * * *

§ 3127. Definitions for chapter

As used in this chapter—

(1) * * *

* * * * * * *

(6) the term ‘‘State’’ means a State, the District of Columbia, Puerto Rico, and any other possession or territory of the

United Statesø.¿; and

(7) the term ‘‘protected computer’’ has the meaning set forth

in section 1030 of this title.

* * * * * * *

SECTION 805 OF THE ANTITERRORISM AND EFFECTIVE

DEATH PENALTY ACT OF 1996

SEC. 805. DETERRENT AGAINST TERRORIST ACTIVITY DAMAGING A

FEDERAL INTEREST COMPUTER.

(a) * * *

* * * * * * *

(c) AMENDMENT OF GUIDELINES.—Pursuant to its authority

under section 994(p) of title 28, United States Code, the United

States Sentencing Commission øshall amend the sentencing guidelines to ensure any individual convicted of a violation of paragraph

(4) or (5)¿ shall amend the sentencing guidelines to ensure any individual convicted of a violation of paragraph (4) or a felony violation

of paragraph (5)(A)(i) (but not of paragraph (5)(A)(ii) or (5)(A)(iii))

of section 1030(a) of title 18, United States Code, is imprisoned for

not less than 6 months.

Æ