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19 April 2000


[Congressional Record: April 13, 2000 (Senate)]
[Page S2813-S2814]
From the Congressional Record Online via GPO Access []

                           COMMUNICATIONS ACT

  Mr. SESSIONS. Mr. President, I ask the Chair lay before the Senate a
message from the House of Representatives on the bill (S. 1769) to the
reporting requirements of section 2519 of title 18, United States Code,
beyond December 21, 1999, and for other purposes,
  The PRESIDING OFFICER laid before the Senate the following message
from the House of Representatives;
       Resolved, That the bill from the Senate (S. 1769) entitled
     ``An Act to continue the reporting requirements of section
     2519 of title 18, United States Code, beyond December 21,
     1999, and for other purposes'', do pass with the following
       Strike out all after the enacting clause and insert:

                   ELIMINATION AND SUNSET.

       Section 3003(a)(1) of the Federal Reports Elimination and
     Sunset Act of 1995 (31 U.S.C. 1113 note) does not apply to
     any report required to be submitted under any of the
     following provisions of law:
       (1) The following sections of title 18, United States Code:
     sections 2519(3), 2709(e), 3126, and 3525(b).
       (2) The following sections of title 28, United States Code:
     sections 522, 524(c)(6), 529, 589a(d), and 594.
       (3) Section 3718(c) of title 31, United States Code.
       (4) Section 9 of the Child Protection Act of 1984 (28
     U.S.C. 522 note).
       (5) Section 8 of the Civil Rights of Institutionalized
     Persons Act (42 U.S.C. 1997f).
       (6) The following provisions of the Omnibus Crime Control
     and Safe Streets Act of 1968: sections 102(b) (42 U.S.C.
     3712(b)), 520 (42 U.S.C. 3766), 522 (42 U.S.C. 3766b), and
     810 (42 U.S.C. 3789e).
       (7) The following provisions of the Immigration and
     Nationality Act: sections 103 (8 U.S.C. 1103), 207(c)(3) (8
     U.S.C. 1157(c)(3)), 412(b) (8 U.S.C. 1522(b)), and 413 (8
     U.S.C. 1523), and subsections (h), (l), (o), (q), and (r) of
     section 286 (8 U.S.C. 1356).
       (8) Section 3 of the International Claims Settlement Act of
     1949 (22 U.S.C. 1622).
       (9) Section 9 of the War Claims Act of 1948 (50 U.S.C. App.
       (10) Section 13(c) of the Act of September 11, 1957 (8
     U.S.C. 1255b(c)).
       (11) Section 203(b) of the Aleutian and Pribilof Islands
     Restitution Act (50 U.S.C. App. 1989c-2(b)).
       (12) Section 801(e) of the Immigration Act of 1990 (29
     U.S.C. 2920(e)).
       (13) Section 401 of the Immigration Reform and Control Act
     of 1986 (8 U.S.C. 1364).
       (14) Section 707 of the Equal Credit Opportunity Act (15
     U.S.C. 1691f).
       (15) Section 201(b) of the Privacy Protection Act of 1980
     (42 U.S.C. 2000aa-11(b)).
       (16) Section 609U of the Justice Assistance Act of 1984 (42
     U.S.C. 10509).
       (17) Section 13(a) of the Classified Information Procedures
     Act (18 U.S.C. App.).
       (18) Section 1004 of the Civil Rights Act of 1964(42 U.S.C.
       (19) Section 1114 of the Right to Financial Privacy Act of
     1978 (12 U.S.C. 3414).
       (20) Section 11 of the Foreign Agents Registration Act of
     1938 (22 U.S.C. 621).
       (21) The following provisions of the Foreign Intelligence
     Surveillance Act of 1978: sections 107 (50 U.S.C. 1807) and
     108 (50 U.S.C. 1808).
       (22) Section 102(b)(5) of the Department of Justice and
     Related Agencies Appropriations Act, 1993 (28 U.S.C. 533


       (a) Section 2519(2)(b) of title 18, United States Code, is
     amended by striking ``and (iv)'' and inserting ``(iv) the
     number of orders in which encryption was encountered and
     whether such encryption prevented law enforcement from
     obtaining the plain text of communications intercepted
     pursuant to such order, and (v)''.
       (b) The encryption reporting requirement in subsection (a)
     shall be effective for the report transmitted by the Director
     of the Administrative Office of the Courts for calendar year
     2000 and in subsequent reports.


       Section 3126 of title 18, United States Code, is amended by
     striking the period and inserting ``, which report shall
     include information concerning--
       ``(1) the period of interceptions authorized by the order,
     and the number and duration of any extensions of the order;
       ``(2) the offense specified in the order or application, or
     extension of an order;
       ``(3) the number of investigations involved;
       ``(4) the number and nature of the facilities affected; and
       ``(5) the identity, including district, of the applying
     investigative or law enforcement agency making the
     application and the person authorizing the order.''.
       Amend the title so as to read ``An Act to exempt certain
     reports from automatic elimination and sunset pursuant to the
     Federal Reports Elimination and Sunset Act of 1995, and for
     other purposes.''.

  Mr. LEAHY. Mr. President, I am pleased that the Senate is today
considering for final passage S. 1769, as amended by the House. I
introduced S. 1769 with Chairman Hatch on October 22, 1999 and it
passed the Senate on November 5, 1999. This bill will continue and
enhance the current reporting requirements for the Administrative
Office of the Courts and the Attorney General on the eavesdropping and
surveillance activities of our federal and state law enforcement
agencies. The House amendment is the text of H.R. 3111, a bill to
exempt from automatic elimination and sunset certain reports submitted
to Congress that are useful and helpful in informing the Congress and
the public about the activities of federal agencies in the enforcement
of federal law. I am also glad to support this amendment.
  For many years, the Administrative Office (AO) of the Courts has
complied with the statutory requirement, in 18 U.S.C. 2519(3), to
report to Congress annually the number and nature of federal and state
applications for orders authorizing or approving the interception of
wire, oral or electronic communications. By letter dated September 3,

[[Page S2814]]

1999, the AO advised that it would no longer submit this report because
``as of December 21, 1999, the report will no longer be required
pursuant to the Federal Reports Elimination and Sunset Act of 1995.'' I
commend the AO for alerting Congress that their responsibility for the
wiretap reports would lapse at the end of this year, and for doing so
in time for Congress to take action. The date upon which this reporting
requirement was due to lapse was extended in the FY 2000 Consolidated
Appropriations Act, H.R. 3194, until May 15, 2000--only a few short
weeks away.
  AO has done an excellent job of preparing the wiretap reports. We
need to continue the AO's objective work in a consistent manner. If
another agency took over this important task at this juncture and the
numbers came out in a different format, it would immediately generate
questions and concerns over the legitimacy and accuracy of the contents
of that report.
  In addition, it would create difficulties in comparing statistics
from prior years going back to 1969 and complicate the job of
congressional oversight. Furthermore, transferring this reporting duty
to another agency might create delays in issuance of the report since
no other agency has the methodology in place. Finally, federal, state
and local agencies are well accustomed to the reporting methodology
developed by the AO. Notifying all these agencies that the reporting
standards and agency have changed would inevitably create more
confusion and more expense as law enforcement agencies across the
country are forced to learn with a new system and develop a liaison
with a new agency.
  The system in place now has worked well and we should avoid any
disruptions. We know how quickly law enforcement may be subjected to
criticism over their use of these surreptitious surveillance tools and
we should avoid aggravating these sensitivities by changing the
reporting agency and methodology on little to no notice. I appreciate,
however, the AO's interest in transferring the wiretap reporting
requirement to another entity. Any such transfer must be accomplished
with a minimum of disruption to the collection and reporting of
information and with complete assurances that any new entity is able to
fulfill this important job as capably as the AO has done.

  S. 1769 would update the reporting requirements currently in place
with one additional reporting requirement. Specifically, the bill would
require the wiretap reports prepared beginning in calendar year 2000 to
include information on the number of orders in which encryption was
encountered and whether such encryption prevented law enforcement from
obtaining the plain text of communications intercepted pursuant to such
  Encryption technology is critical to protect sensitive computer and
online information. Yet, the same technology poses challenges to law
enforcement when it is exploited by criminals to hide evidence or the
fruits of criminal activities. A report by the U.S. Working Group on
Organized Crime titled, ``Encryption and Evolving Technologies: Tools
of Organized Crime and Terrorism,'' released in 1997, collected
anecdotal case studies on the use of encryption in furtherance of
criminal activities in order to estimate the future impact of
encryption on law enforcement. The report noted the need for ``an
ongoing study of the effect of encryption and other information
technologies on investigations, prosecutions, and intelligence
operations''. As part of this study, ``a database of case information
from federal and local law enforcement and intelligence agencies should
be established and maintained.'' Adding a requirement that reports be
furnished on the number of occasions when encryption is encountered by
law enforcement is a far more reliable basis than anecdotal evidence on
which to assess law enforcement needs and make sensible policy in this
  The final section of S. 1769 would codify the information that the
Attorney General already provides on pen register and trap and trace
device orders, and would require further information on where such
orders are issued and the types of facilities--telephone, computer,
pager or other device--to which the order relates. Under the Electronic
Communications Privacy Act (``ECPA'') of 1986, P.O. 99-508, codified at
18 U.S.C. 3126, the Attorney General of the United States is required
to report annually to the Congress on the number of pen register orders
and orders for trap and trace devices applied for by law enforcement
agencies of the Department of Justice. As the original sponsor of ECPA,
I believed that adequate oversight of the surveillance activities of
federal law enforcement could only be accomplished with reporting
requirements such as the one included in this law.
  The reports furnished by the Attorney General on an annual basis
compile information from five components of the Department of Justice:
the Federal Bureau of Investigation, the Drug Enforcement
Administration, the Immigration and Naturalization Service, the United
States Marshals Service and the Office of the Inspector General. The
report contains information on the number of original and extension
orders made to the courts for authorization to use both pen register
and trap and trace devices, information concerning the number of
investigations involved, the offenses on which the applications were
predicted and the number of people whose telephone facilities were
  These specific categories of information are useful, and S. 1769
would direct the Attorney General to continue providing these specific
categories of information. In addition, the bill would direct the
Attorney General to include information on the identity, including the
district, of the agency making the application and the person
authorizing the order. In this way, the Congress and the public will be
informed of those jurisdictions and using this surveillance technique--
information which is currently not included in the Attorney General's
annual reports.
  The requirement for preparation of the wiretap reports will soon
lapse so I am delighted to see the Congress take prompt action on this
legislation to continue the requirement for submission of the wiretap
reports and to update the reporting requirements for both the wiretap
reports submitted by the AO and the pen register and trap and trace
reports submitted by the Attorney General.
  Mr. SESSIONS. I ask unanimous consent the Senate concur in the
amendments of the House.
  The PRESIDING OFFICER. Without objection, it is so ordered.