[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5018 Reported in House (RH)]
Union Calendar No. 562
106th CONGRESS
2d Session
H. R. 5018
[Report No. 106-932]
To amend title 18, United States Code, to modify certain provisions of
law relating to the interception of communications, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 27, 2000
Mr. Canady of Florida (for himself and Mr. Hutchinson) introduced the
following bill; which was referred to the Committee on the Judiciary
October 4, 2000
Additional sponsors: Mr. Blunt, Mr. Bachus, Mr. Paul, and Mr. Wamp
October 4, 2000
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed
in italic]
[For text of introduced bill, see copy of bill as introduced on July
27, 2000]
_______________________________________________________________________
A BILL
To amend title 18, United States Code, to modify certain provisions of
law relating to the interception of communications, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
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''.
Calendar No. 562
106th CONGRESS
2d Session
H. R. 5018
[Report No. 106-932]
_______________________________________________________________________
A BILL
To amend title 18, United States Code, to modify certain provisions of
law relating to the interception of communications, and for other
purposes.
_______________________________________________________________________
October 4, 2000
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed