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[House Report 106-932]
[From the U.S. Government Publishing Office]

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
    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
                    ``(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)--
                    ``(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'';
            (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--
                    ``(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:

``Sec. 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''.
    (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 Government 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 e-mail 
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 significantly 
changed the way people handle their affairs, and consequently 
the government's handling of personal communications.\1\
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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 then-current 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.
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                       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-to-business 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\
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    \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.
    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 integrity 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 Sec. Sec. 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 
``large-scale 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. '').
---------------------------------------------------------------------------
    \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 Sec. 2516(3). In addition, no statutory 
exclusionary rule applies to non-voice interceptions that violate 
procedures required by statute. See 18 U.S.C. Sec. 2515 (exclusionary 
rule only refers to wire or oral communications, not electronic 
communications).
---------------------------------------------------------------------------
    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 provisions require very detailed reports on 
interception of voice communications and interception of e-mail 
in transit, see 18 U.S.C. Sec. 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\
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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.
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  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. Sec. 2701. Second, ECPA provides prerequisites for 
government access. See 18 U.S.C. Sec. 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. Sec. Sec. 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. Sec. Sec. 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. Sec. 2703; 18 U.S.C. 
Sec. 2516. A warrant is also not required for the government to 
obtain the contents of electronic communications in a ``remote 
computing service.'' See 18 U.S.C. Sec. Sec. 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. Sec. 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. Sec. 2705.
---------------------------------------------------------------------------
    \5\ See 18 U.S.C. Sec. 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'').
    \6\ See 18 U.S.C. Sec. 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'').
    \7\ See 18 U.S.C. Sec. 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. 
Sec. 2703(a).
    \9\ See 18 U.S.C. Sec. 2510(15) (``electronic communication 
service'' means ``any service which provides to users thereof the 
ability to send or receive wire or electronic communications'').
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    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. Sec. Sec. 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. Sec. 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. 
Sec. Sec. 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.

   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. Sec. Sec. 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. Sec. 3123(a). Upon such 
``certification'' by a government official, the court ``shall'' 
issue the order. 18 U.S.C. Sec. 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 [email protected].
---------------------------------------------------------------------------
    \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 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 investigative 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\
---------------------------------------------------------------------------
    \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. Sec. 3123(a).
    \12\ The 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)).
    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 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. Sec. 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. Sec. 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. Sec. 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 ``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. 
Sec. 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. 
Sec. Sec. 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. Sec. 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. Sec. 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. Sec. 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 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, Sec. 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. Sec. 2703(d) (requirements for 
government access to business ``records'') to obtain location 
information from mobile phone service providers. However, 18 
U.S.C. Sec. 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. 
Sec. 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. Sec. 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. Sec. 2520 to those 
whose 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. Sec. 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. Sec. 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. 
Sec. 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 
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. 
Sec. 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. Sec. 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. Sec. 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 notified, 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. Sec. 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).
    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. Sec. 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. 
Sec. 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 
hacking 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.

                        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   ..............
----------------------------------------------------------------------------------------------------------------

    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 
disclosed 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   ..............
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   ..............  ..............
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   ..............
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                      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

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. 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. Sec. Sec. 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 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.
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 immediate 
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

           *       *       *       *       *       *       *

Sec. 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 [such a computer] without or in 
        excess of authorization 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;
            [(B)] (ii) intentionally accesses a protected 
        computer without authorization, and as a result of such 
        conduct, recklessly causes damage; or
            [(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 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;

           *       *       *       *       *       *       *

            (7) with intent to extort from any person[, 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 
        section[, 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 section[, or an attempt to commit an offense 
        punishable under this subparagraph];
            [(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;

           *       *       *       *       *       *       *

            [(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]
            [(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)[, 
        (a)(5)(A), (a)(5)(B),] or (a)(7) 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]; and
            [(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 [subsections (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 [which 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 executive departments 
        enumerated in section 101 of title 5; [and]
            (8) the term ``damage'' means any impairment to the 

        integrity or availability of data, a program, a system, 
        or information[, that--
                    [(A) causes loss aggregating at least 
                $5,000 in value during any 1-year period to one 
                or more individuals;
                    [(B) modifies or impairs, or potentially 
                modifies or impairs, the medical examination, 
                diagnosis, treatment, or care of one or more 
                individuals;
                    [(C) causes physical injury to any person; 
                or
                    [(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 country[.];
            (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.

           *       *       *       *       *       *       *

    [(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--
            (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.
     * * * * * * *
[2515.  Prohibition of use as evidence of intercepted wire or oral 
          communications.]
2515.  Prohibition of use as evidence of intercepted wire, oral, or 
          electronic communications.
     * * * * * * *

Sec. 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 [153(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; [and]

           *       *       *       *       *       *       *

                    (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

           *       *       *       *       *       *       *

Sec. 2515. Prohibition of use as evidence of intercepted [wire or oral] 
                    wire, oral, or electronic communications

    [Whenever 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, 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.

Sec. 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 [wire 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
            [(p)] (q) any conspiracy to commit any offense 
        described in any subparagraph of this paragraph.

           *       *       *       *       *       *       *

Sec. 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 
described 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.

Sec. 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 [subsection (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 [or 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 approval[.];
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 [or 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 intercepted communication or evidence derived therefrom as 
the judge determines to be in the interests of justice.

           *       *       *       *       *       *       *

    [(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.]

           *       *       *       *       *       *       *

Sec. 2520. Recovery of civil damages authorized

    (a) * * *

           *       *       *       *       *       *       *

    (c) Computation of Damages.--(1) * * *
    (2) In any other action under this section, the court [may] 
shall assess as damages whichever is the [greater] 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; [or]
            (B) statutory damages of [whichever 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.
[2702.  Disclosure of contents.]
2702.  Voluntary disclosure of customer communications or records.

           *       *       *       *       *       *       *

Sec. 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 [purposes 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 [one 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 [two] five years, or both, 
                for any subsequent offense under this 
                subparagraph; and
            [(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
                    (B) a fine under this title or imprisonment 
                for not more than five years, or both, for any 
                subsequent offense under this subparagraph.

           *       *       *       *       *       *       *

[Sec. 2702. Disclosure of contents]

Sec. 2702. Voluntary disclosure of customer communications or records

    (a) Prohibitions.--Except as provided in subsection (b)--
            (1) a [person 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; [and]
            (2) a [person 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 
                processing[.]; 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 [person 
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
            (5) to any person other than a governmental entity 
        where not otherwise prohibited by law.

Sec. 2703. Requirements for governmental access

    (a) Contents of Electronic Communications in Electronic 
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 [one 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 
[one hundred and eighty days] one year by the means available 
under subsection (b) of this section.

           *       *       *       *       *       *       *

    (c) Records Concerning Electronic Communication Service or 
Remote Computing Service.--(1)[(A) Except as provided in 
subparagraph (B),] A governmental entity may require a provider 
of electronic communication service or remote computing service 
[may] 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 [(b) of 
this section] (b), or wireless location information covered by 
subsection (g)) [to any person other than a governmental 
entity.]
    [(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--
            [(i)] (A) obtains a warrant issued under the 
        Federal Rules of Criminal Procedure or equivalent State 
        warrant;
            [(ii)] (B) obtains a court order for such 
        disclosure under subsection (d) of this section;
            [(iii)] (C) has the consent of the subscriber or 
        customer to such disclosure; [or]
            [(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)[.]; or
            (E) seeks information pursuant to paragraph (2).
    [(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 [an 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, or a 
subpoena or equivalent process authorized by a Federal or State 
statute, or any means available under [subparagraph (B).] 
paragraph (1).
    [(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 
        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.

           *       *       *       *       *       *       *

Sec. 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, [or 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.

           *       *       *       *       *       *       *

Sec. 2707. Civil action

    (a) * * *

           *       *       *       *       *       *       *

    (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 [$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

           *       *       *       *       *       *       *

Sec. 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) * * *
            [(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.

Sec. 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 [the 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.

           *       *       *       *       *       *       *

Sec. 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, 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; [or]
                    (B) conspiratorial activities 
                characteristic of organized crime[,];
                    (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.
    [(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.
    [(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.
    [(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.

           *       *       *       *       *       *       *

Sec. 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 States[.]; 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 [shall 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.

                                  
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