22 November 1999 Source: http://gpo.sailor.lib.md.us/bin/GPOAccess.cgi ------------------------------------------------------------------------- [Page S14878-S14881] From the Congressional Record Online via GPO Access [wais.access.gpo.gov] [DOCID:cr19no99-103] EXEMPTIONS PURSUANT TO THE FEDERAL REPORTS ELIMINATION AND SUNSET ACT OF 1995 Ms. COLLINS. Mr. President, I ask unanimous consent that the Governmental Affairs Committee be discharged from further consideration of H.R. 3111, and that the Senate proceed to its immediate consideration. The PRESIDING OFFICER. Without objection, it is so ordered. The clerk will report the bill by title. The legislative clerk read as follows: A bill (H.R. 3111) to exempt certain reports from automatic elimination and sunset pursuant to the Federal Reports Elimination and Sunset Act. There being no objection, the Senate proceeded to consider the bill. Amendment No. 2786 (Purpose: To provide continued reporting of intercepted wire, oral, and electronic communications) Ms. COLLINS. Mr. President, Senator Leahy has an amendment at the desk. [[Page S14879]] The PRESIDING OFFICER. The clerk will report. The legislative clerk read as follows: The Senator from Maine (Ms. Collins), for Mr. Leahy, proposes an amendment numbered 2786. Add at the end the following: Sec. 2. (a) Short Title.--This Act may be cited as the ``Continued Reporting of Intercepted Wire, Oral, and Electronic Communications Act''. (b) Findings.--Congress makes the following findings: (1) Section 2519(3) of title 18, United States Code, requires the Director of the Administrative Office of the United States Courts to transmit to Congress a full and complete annual report concerning the number of applications for orders authorizing or approving the interception of wire, oral, or electronic communications. This report is required to include information specified in section 2519(3). (2) The Federal Reports Elimination and Sunset Act of 1995 provides for the termination of certain laws requiring submittal to Congress of annual, semiannual, and regular periodic reports as of December 21, 1999, 4 years from the effective date of that Act. (3) Due to the Federal Reports Elimination Act and Sunset Act of 1995, the Administrative Office of United States Courts is not required to submit that annual report described in section 219(3) of title 18, United States Code, as of December 21, 1999. (c) Continued Reporting Requirements.-- (1) Continued reporting requirements.--Section 2519 of title 18, United States Code, is amended by adding at the end the following: ``(4) The reports required to be filed by subsection (3) are exempted from the termination provisions of section 3003(a) of the Federal Reports Elimination and Sunset Act of 1995 (Public Law 104-66).''. (2) Exemption.--Section 3003(d) of the Federal Reports Elimination and Sunset Act of 1995 (Public Law 104-66) is amended-- (a) in paragraph (31), by striking ``or'' at the end; (b) in paragraph (32), by striking the period and inserting ``; or''; and (c) by adding at the end the following: ``(33) section 2519(3) of title 18, United States Code.''. (d) Encryption Reporting Requirements.-- (1) 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)''. (2) 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. (e) Reports Concerning Pen Registers and Trap and Trace Devices.--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.''. 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. Sec. 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, 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 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 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 order. 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 area. 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.L. 99-508, codified at 18 U.S.C. Sec. 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. [[Page S14880]] 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 affected. 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 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. President, I am also pleased that the Senate is today considering H.R. 3111 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. Senator Hatch and I offer as an amendment to H.R. 3111 the text of a bill S. 1769, which I introduced with Chairman Hatch on October 22, 1999 and which passed the Senate on November 5, 1999. This amendment 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. For many years, the Administrative Office (AO) of the Courts has complied with the statutory requirement, in 18 U.S.C. Sec. 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, 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 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 a new system and develop a liaison with a new agency. The system in place now has worked well and should be continued. 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. The amendment would update the reporting requirements currently in place with one additional reporting requirement. Specifically, the amendment 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 order. 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 area. The final section of this amendment would codify the information that the Attorney General already provides on pen register and trap and trace device orders, and 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.L. 99-508, codified at 18 U.S.C. Sec. 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 Office 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 affected. These specific categories of information are useful, and the amendment would direct the Attorney General to continue providing these specific categories of information. In addition, the amendment 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 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 Senate 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. [[Page S14881]] Ms. COLLINS. Mr. President, I ask unanimous consent that the amendment be agreed to, the bill, as amended, be read a third time and passed, the motion to reconsider be laid upon the table, and that any statements relating to the bill be printed in the Record. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment (No. 2786) was agreed to. The bill (H. R. 3111), as amended, was read the third time and passed. ____________________