II

106TH CONGRESS

2D SESSION S. 2092

To amend title 18, United States Code, to modify authorities relating to

the use of pen registers and trap and trace devices, to modify provisions

relating to fraud and related activities in connection with computers,

and for other purposes.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 24, 2000

Mr. SCHUMER (for himself and Mr. KYL) introduced the following bill; which

was read twice and referred to the Committee on the Judiciary

A BILL

To amend title 18, United States Code, to modify authorities

relating to the use of pen registers and trap and trace

devices, to modify provisions relating to fraud and related

activities in connection with computers, and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. MODIFICATION OF AUTHORITIES RELATING TO

2 USE OF PEN REGISTERS AND TRAP AND

3 TRACE DEVICES.

4 (a) GENERAL LIMITATION ON USE BY GOVERN5 MENTAL AGENCIES.—Section 3121(c) of title 18, United

6 States Code, is amended—

7 (1) by inserting ‘‘or trap and trace device’’

8 after ‘‘pen register’’;

9 (2) by inserting ‘‘, routing, addressing,’’ after

10 ‘‘dialing’’; and

11 (3) by striking ‘‘call processing’’ and inserting

12 ‘‘the processing and transmitting of wire and elec13 tronic communications’’.

14 (b) ISSUANCE OF ORDERS.—

15 (1) IN GENERAL.—Subsection (a) of section

16 3123 of that title is amended to read as follows:

17 ‘‘(a) IN GENERAL.—(1) Upon an application made

18 under section 3122(a)(1) of this title, the court shall enter

19 an ex parte order authorizing the installation and use of

20 a pen register or trap and trace device if the court finds

21 that the attorney for the Government has certified to the

22 court that the information likely to be obtained by such

23 installation and use is relevant to an ongoing criminal in24 vestigation. The order shall, upon service of the order,

25 apply to any entity providing wire or electronic commu-
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1 nication service in the United States whose assistance is

2 required to effectuate the order.

3 ‘‘(2) Upon an application made under section

4 3122(a)(2) of this title, the court shall enter an ex parte

5 order authorizing the installation and use of a pen register

6 or trap and trace device within the jurisdiction of the court

7 if the court finds that the State law enforcement or inves8 tigative officer has certified to the court that the informa9 tion likely to be obtained by such installation and use is

10 relevant to an ongoing criminal investigation.’’.

11 (2) CONTENTS OF ORDER.—Subsection (b)(1)

12 of that section is amended—

13 (A) in subparagraph (A)—

14 (i) by inserting ‘‘or other facility’’

15 after ‘‘telephone line’’; and

16 (ii) by inserting before the semicolon

17 at the end ‘‘or applied’’; and

18 (B) by striking subparagraph (C) and in19 serting the following new subparagraph (C):

20 ‘‘(C) a description of the communications

21 to which the order applies, including the num22 ber or other identifier and, if known, the loca23 tion of the telephone line or other facility to

24 which the pen register or trap and trace device

25 is to be attached or applied, and, in the case of
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1 an order authorizing installation and use of a

2 trap and trace device under subsection (a)(2),

3 the geographic limits of the order; and’’.

4 (3) NONDISCLOSURE REQUIREMENTS.—Sub5 section (d)(2) of that section is amended—

6 (A) by inserting ‘‘or other facility’’ after

7 ‘‘the line’’; and

8 (B) by striking ‘‘or who has been ordered

9 by the court’’ and inserting ‘‘or applied or who

10 is obligated by the order’’.

11 (c) EMERGENCY INSTALLATION.—Section

12 3125(a)(1) of that title is amended—

13 (1) in subparagraph (A), by striking ‘‘or’’ at

14 the end;

15 (2) in subparagraph (B), by striking the comma

16 at the end and inserting a semicolon; and

17 (3) by inserting after subparagraph (B) the fol18 lowing new subparagraphs:

19 ‘‘(C) immediate threat to the national se20 curity interests of the United States;

21 ‘‘(D) immediate threat to public health or

22 safety; or

23 ‘‘(E) an attack on the integrity or avail24 ability of a protected computer which attack
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1 would be an offense punishable under section

2 1030(c)(2)(C) of this title,’’.

3 (d) DEFINITIONS.—

4 (1) COURT OF COMPETENT JURISDICTION.—

5 Paragraph (2) of section 3127 of that title is

6 amended by striking subparagraph (A) and inserting

7 the following new subparagraph (A):

8 ‘‘(A) any district court of the United

9 States (including a magistrate judge of such a

10 court) or any United States Court of Appeals

11 having jurisdiction over the offense being inves12 tigated; or’’.

13 (2) PEN REGISTER.—Paragraph (3) of that sec14 tion is amended—

15 (A) by striking ‘‘electronic or other im16 pulses’’ and all that follows through ‘‘is at17 tached’’ and inserting ‘‘dialing, routing, ad18 dressing, or signalling information transmitted

19 by an instrument or facility from which a wire

20 or electronic communication is transmitted’’;

21 and

22 (B) by inserting ‘‘or process’’ after ‘‘de23 vice’’ each place it appears.

24 (3) TRAP AND TRACE DEVICE.—Paragraph (4)

25 of that section is amended—
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1 (A) by inserting ‘‘or process’’ after ‘‘a de2 vice’’; and

3 (B) by striking ‘‘of an instrument’’ and all

4 that follows through the end and inserting ‘‘or

5 other dialing, routing, addressing, and signal6 ling information relevant to identifying the

7 source of a wire or electronic communication;’’.

8 SEC. 2. MODIFICATION OF PROVISIONS RELATING TO

9 FRAUD AND RELATED ACTIVITY IN CONNEC10 TION WITH COMPUTERS.

11 (a) PENALTIES.—Subsection (c) of section 1030 of

12 title 18, United States Code, is amended—

13 (1) in paragraph (2)—

14 (A) in subparagraph (A)—

15 (i) by inserting ‘‘except as provided in

16 subparagraphs (B) and (C),’’ before ‘‘a

17 fine’’;

18 (ii) by striking ‘‘(a)(5)(C),’’ and in19 serting ‘‘(a)(5),’’; and

20 (iii) by striking ‘‘and’’ at the end;

21 (B) in subparagraph (B)—

22 (i) by inserting ‘‘or an attempt to

23 commit an offense punishable under this

24 subparagraph,’’ after ‘‘subsection (a)(2),’’

25 in the matter preceding clause (i); and
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1 (ii) by adding ‘‘and’’ at the end; and

2 (C) by striking subparagraph (C) and in3 serting the following new subparagraph (C):

4 ‘‘(C) a fine under this title or imprisonment for

5 not more than 10 years, or both, in the case of an

6 offense under subsection (a)(5)(A) or (a)(5)(B), or

7 an attempt to commit an offense punishable under

8 this subparagraph, if the offense caused (or, in the

9 case of an attempted offense, would, if completed,

10 have caused)—

11 ‘‘(i) loss to one or more persons during any

12 one-year period (including loss resulting from a

13 related course of conduct affecting one or more

14 other protected computers) aggregating at least

15 $5,000 in value;

16 ‘‘(ii) the modification or impairment, or

17 potential modification or impairment, of the

18 medical examination, diagnosis, treatment, or

19 care of one or more individuals;

20 ‘‘(iii) physical injury to any person;

21 ‘‘(iv) a threat to public health or safety; or

22 ‘‘(v) damage affecting a computer system

23 used by or for a government entity in further24 ance of the administration of justice, national

25 defense, or national security; and’’;
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1 (2) by redesignating subparagraph (B) of para2 graph (3) as paragraph (4);

3 (3) in paragraph (3)—

4 (A) by striking ‘‘(A)’’ at the beginning;

5 and

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

7 and

8 (4) in paragraph (4), as designated by para9 graph (2) of this subsection, by striking ‘‘(a)(4),

10 (a)(5)(A), (a)(5)(B), (a)(5)(C),’’ and inserting

11 ‘‘(a)(2), (a)(3), (a)(4), (a)(6),’’.

12 (b) DEFINITIONS.—Subsection (e) of that section is

13 amended—

14 (1) in paragraph (2)(B), by inserting ‘‘, includ15 ing a computer located outside the United States’’

16 before the semicolon;

17 (2) in paragraph (7), by striking ‘‘and’’ at the

18 end;

19 (3) by striking paragraph (8) and inserting the

20 following new paragraph (8):

21 ‘‘(8) the term ‘damage’ means any impairment

22 to the integrity or availability of data, a program, a

23 system, or information;’’;

24 (4) in paragraph (9), by striking the period at

25 the end and inserting ‘‘; and’’; and
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1 (5) by adding at the end the following new

2 paragraphs:

3 ‘‘(10) the term ‘conviction’ shall include an ad4 judication of juvenile delinquency for a violation of

5 this section; and

6 ‘‘(11) the term ‘loss’ means any reasonable cost

7 to any victim, including the cost of responding to an

8 offense, conducting a damage assessment, and re9 storing the data, program, system, or information to

10 its condition prior to the offense, and any revenue

11 lost or cost incurred because of interruption of serv12 ice.’’.

13 (c) DAMAGES IN CIVIL ACTIONS.—Subsection (g) of

14 that section is amended in the second sentence by striking

15 ‘‘involving damage’’ and all that follows through the pe16 riod and inserting ‘‘of subsection (a)(5) shall be limited

17 to loss unless such action includes one of the elements set

18 forth in clauses (ii) through (v) of subsection (c)(2)(C).’’.

19 (d) CRIMINAL FORFEITURE.—That section is further

20 amended by adding at the end the following new sub21 section:

22 ‘‘(i)(1) The court, in imposing sentence on any person

23 convicted of a violation of this section, shall order, in addi24 tion to any other sentence imposed and irrespective of any
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1 provision of State law, that such person forfeit to the

2 United States—

3 ‘‘(A) the interest of such person in any prop4 erty, whether real or personal, that was used or in5 tended to be used to commit or to facilitate the com6 mission of such violation; and

7 ‘‘(B) any property, whether real or personal,

8 constituting or derived from any proceeds that such

9 person obtained, whether directly or indirectly, as a

10 result of such violation.

11 ‘‘(2) The criminal forfeiture of property under this

12 subsection, any seizure and disposition thereof, and any

13 administrative or judicial proceeding relating thereto, shall

14 be governed by the provisions of section 413 of the Con15 trolled Substances Act (21 U.S.C. 853), except subsection

16 (d) of that section.’’.

17 (e) CIVIL FORFEITURE.—That section, as amended

18 by subsection (d) of this section, is further amended by

19 adding at the end the following new subsection:

20 ‘‘(j)(1) The following shall be subject to forfeiture to

21 the United States, and no property right shall exist in

22 them:

23 ‘‘(A) Any property, whether real or personal,

24 that is used or intended to be used to commit or to
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1 facilitate the commission of any violation of this sec2 tion.

3 ‘‘(B) Any property, whether real or personal,

4 that constitutes or is derived from proceeds trace5 able to any violation of this section.

6 ‘‘(2) The provisions of chapter 46 of this title relating

7 to civil forfeiture shall apply to any seizure or civil for8 feiture under this subsection.’’.

9 SEC. 3. JUVENILE DELINQUENCY.

10 Clause (3) of the first paragraph of section 5032 of

11 title 18, United States Code, is amended—

12 (1) by striking ‘‘or’’ before ‘‘section 1002(a)’’;

13 (2) by striking ‘‘or’’ before ‘‘section 924(b)’’;

14 and

15 (3) by inserting after ‘‘or (h) of this title,’’ the

16 following: ‘‘or section 1030(a)(1), (a)(2)(B), or

17 (a)(3) of this title, or is a felony violation of section

18 1030(a)(5) of this title where such violation of such

19 section 1030(a)(5) is punishable under clauses (ii)

20 through (v) of section 1030(c)(5)(C) of this title,’’.

21 SEC. 4. AMENDMENT TO SENTENCING GUIDELINES.

22 Section 805(c) of the Antiterrorism and Effective

23 Death Penalty Act of 1996 (Public Law 104–132; 28

24 U.S.C. 994 note) is amended by striking ‘‘paragraph (4)
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1 or (5)’’ and inserting ‘‘paragraph (4) or a felony violation

2 of paragraph (5)(A)’’.

Æ