Orrin Hatch

Mr. HATCH

Mr. HATCH. Another concern related to the accuracy of claims is that of the manufacturer's ability to substantiate the claims made. Health claims made with respect to a product's ability to treat, mitigate or cure disease must be pre-approved by the FDA under a ``significant scientific agreement'' standard mandated by the Nutrition Labeling and Education Act (NLEA). Claims not subject to this preapproval, that is, claims which describe the product's effect on the structure or function of the body, must be substantiated under the fourth tool we provided the FDA in DSHEA. Under section 343(r)(6)(B) of the FFD&CA, manufacturers must be able to substantiate the accuracy of their claims made. That is an important consumer protection.

Mr. HATCH. I mention another important consumer protection included in the law. Questions have also been raised about the safety of supplements in the marketplace. In DSHEA, we added a fifth tool to FDA's arsenal--section 402(f)(1)(A), which deems that a dietary supplement is adulterated if it presents a significant or unreasonable risk of illness or injury under the conditions of use recommended or suggested in labeling. If no conditions of use are suggested or recommended in the labeling, then the FDA could act against a supplement that presented a significant or unreasonable risk of illness or injury under ordinary conditions or use. This safety standard was carefully developed in close consultation with Senator Kennedy and Congressmen John Dingell and Henry Waxman, all of whom worked with us to assure we had the strongest possible measure.

Mr. HATCH. Indeed. That authority, contained within section 402(f)(1)(C) of the FFD&CA, allows the Secretary to act immediately, no questions asked, to remove a product from the market if he believes there is a safety problem. Similar emergency authority is contained within the drug law. I must take this opportunity to reject the many press accounts, which have so irresponsibly and inaccurately alleged that the Dietary Supplement Health and Education Act ``deregulated'' dietary supplements, or falsely stated that ``FDA's hands were tied'' by our Act. Nothing is further from the truth, as we have just explained in outlining all the authorities provided to FDA to make certain dietary supplements are safe and accurately labeled.

Mr. HATCH. So, with all of these tools in FDA's arsenal, legitimate questions have been raised about why unsafe or mislabeled products are being sold. Indeed, many of us are asking, ``What is the problem? Why are these products still on the market?''

Mr. HATCH. It is our hope that the House-Senate conferees may be able to work to add funds for dietary supplement enforcement, so that other programs of the FDA are not penalized through addition of our language.

Mr. HATCH

Mr. HATCH. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to commend my colleagues Senators DeWine and Dodd for their efforts to reauthorize an important piece of legislation--the pediatric exclusivity rules. The DeWine-Dodd pediatric exclusivity law was passed as part of the Food and Drug Administration Modernization Act of 2001. This bill has helped spur a great deal of research into pediatric indications for many pharmaceutical products. It is a good law. I also want to recognize the efforts of Chairman Kennedy and Ranking Member Gregg and Senator Frist for their work in moving this through the HELP Committee. I am offering a technical amendment that I believe will be acceptable to all, that clarifies how the pediatric exclusivity provisions work in conjunction with certain provisions of the Drug Price Competition and Patent Term Restoration Act. Representative Waxman and I were instrumental in developing this important 1984 law. I have worked with my colleagues, the administration, and interested parties to make certain that the 1997 pediatric exclusivity law does not act to curtail the incentives of those generic drug manufacturers awarded 180 days of exclusivity under the 1984 law because they have successfully challenged a patent or have shown that a pioneer drug product is not infringed. The amendment I offer today helps make clear that a generic firm that qualifies for the 180-day patent noninfringement/patent invalidity incentives gains just that--180 days, no more, no less. I also thank Senator Dodd for agreeing to continue to work to iron out some issues as this bill is conferenced with the House. For example, we want to work together to make certain the overlap language applies to generic drug applications already in the pipeline at FDA. I also understand that some may have concerns that certain aspects of this language may raise questions with respect to the takings clause. It is my hope that the conferees will work to perfect the language. I commend Helen Rhee, who has worked on this bill for both her old boss, Senator DeWine and her new boss Senator Frist and Deborah Barrett of Senator Dodd's office for their work on this bill. I also commend the expert staff of the Food and Drug Administration, including Melinda Plaisier, Jarilyn DuPont, Liz Dickinson, and Kim Dettelbach for their hard work on this legislation. I urge my colleagues to work together to reauthorize the DeWine-Dodd pediatric bill.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce the Cyberterrorism Prevention Act of 2001, an important piece of legislation to prevent terrorists from hijacking our computer system to wreak havoc with our essential infrastructure. This bill provides law enforcement with critical tools to combat cyberterrorism. I urge my colleagues to support this important piece of legislation.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce legislation designed to help stimulate the economy by creating a strong incentive for businesses to invest immediately in new productive assets. Unfortunately, the evil acts of terrorists on September 11 did more than shatter lives, hopes and dreams and destroy or damage great buildings in New York and Washington. They also caused serious harm to our national, and even the world's economies. While we do not yet know the full extent of the havoc brought to the U.S. economy by the calamities of September 11, practically all the experts agree that the damage will be significant. Few of them doubt that we are now in a recession. Moreover, many of the Nation's leading economists agree that the Congress and the President should move quickly to enact a package of tax cuts and other measures to stimulate the economy and try to prevent the downturn from becoming a long and deep one. For this reason, the bipartisan leadership of Congress in both houses, along with the White House, have been meeting for weeks in an attempt to develop a consensus on what such an economic stimulus package should include. Last Friday, the Committee on Ways and Means of the House of Representatives approved an initial stimulus bill. While it appears evident to me that it will be difficult for everyone in both parties and in both houses to agree on the proper content of the economic stimulus package, there are some guiding principles for the package on which most seem to agree. First, and almost by definition, the stimulus package should provide a strong incentive for players in the economy to take action they would not ordinarily take. Second, such an incentive should cause the desired action to occur quickly, when it will be of the most good to the economy. Finally, the stimulus should be temporary, and not cause a large long-term effect on the Federal budget, which could lead to an increase in interest rates. It may be that there are many specific tax law changes that meet these guiding principles. Some have suggested another round of tax rebate checks, but designated only for those who were not able to participate in the advance tax cut Congress passed in May of this year. Others are proposing the acceleration of the income tax rate cuts that were included in that same tax bill that are presently scheduled to take effect in future years. Still others insist that the stimulus package include new spending on our infrastructure or relief to ailing industries and to displaced employees. In the end, the economic stimulus package signed into law will probably contain a combination of several of these ideas. Our political process will require us to reach some kind of consensus, which means some of this idea and some of that idea will have to be included. Knowing that the stimulus package will be a collage of ideas, I believe it is important that it include a core provision that almost everyone seems to agree meets the criteria of true economic stimulus, a strong inducement for businesses to invest in productive assets. The purpose of the bill I introduce today is to put before the Senate a bold plan that I believe would accomplish this goal. The Economic Stimulus Through Bonus Depreciation Act of 2001 would provide businesses throughout America a very strong, but short-term, incentive to purchase business assets and put them to work over the next few months. A strong and concentrated surge in capital spending by U.S. businesses would provide a tremendous shot in the arm to our economy, as present inventories become depleted and manufacturers scramble to keep up with the new demand. Specifically, my bill would provide a 50-percent bonus depreciation deduction for business assets purchased after September 10, 2001, and before July 1, 2002, and placed in service before January 1, 2003. This means that businesses that want to take advantage of this strong incentive, which generally provides more than twice the first year deduction than is allowed under current law, would have to act quickly and order the new business assets by next June 30, and take delivery by next December 31. For example, suppose a business needed a new delivery truck that cost $50,000. Under current law, most trucks are considered 5-year property, and are generally depreciated over a 5-year period. If the business purchased the truck in 2002, the current-law depreciation deduction for the first year would be $10,000. In other words, the business would be able to write off one-fifth of the cost of the truck in the year of purchase. Under my bill, that same business would be allowed a 50-percent first-year depreciation deduction, rather than the 20 percent. So, instead of a deduction of $10,000 in 2002, the business would be allowed to deduct $25,000 of the cost of the truck in the first year. This is a significant difference, and it should be enough of a difference to change behavior when coupled with a short window of opportunity. The short time frame is a key to the success of a stimulus promotion bill like this one. My bill would require that a business make a decision and enter into a contract to purchase a new asset by next June 30, and then take delivery on the property by December 31, 2002. I will note that the economic stimulus bill approved by the House Ways and Means Committee last week includes a somewhat similar provision, one that provides for 30 percent extra depreciation for certain business assets. However, that bill allows the purchaser to take almost 3 years to decide to buy a new asset, then allows another several months to place the property into service. With all respect to my colleagues on the Ways and Means Committee, I believe the window of opportunity for the enhanced deduction created by that bill is too long. It does not instill the sense of urgency that I believe is needed to truly create a significant stimulus. It is important to note that my bill also applies to more types of business property than does the Ways and Means bill. The bill passed by the Ways and Means Committee would generally provide for an enhanced depreciation deduction for depreciable property with a recovery period of 20 years or less, except for leasehold improvements. The bill I am introducing today would apply to all types of depreciable property, including leasehold improvements and depreciable real estate. As a practical matter, I realize that many real estate projects, as well as many larger build-to-order equipment projects, take longer than a year to build and place in service. However, it is also true that many larger and costly projects can be built within the time constraints of this bill, especially if there is a concerted attempt to do so. I believe that the short time frame of my bill would induce many companies to act much more quickly than they otherwise would, in order to get business assets ordered and built in time to qualify for the bonus depreciation. This is where the economic stimulus power of this bill comes into play. The more effort that is made to get real estate projects finished, or to get equipment ordered, delivered, and placed in service in time to meet the deadlines of this bill, the more economic stimulus is created. Moreover, I believe this bill meets the three guiding principles I mentioned earlier. First, it provides a strong incentive for businesses to take stimulative action they would not otherwise take, in this case to purchase assets by June 30, 2002, in order to reap a significant tax savings. Second, because of the short deadline, this action will take place right away, when economic stimulus is really needed. Finally, the bill raises few risks of raising interest rates. Depreciation is a form of cost recovery over a period of time. Because our tax code allows the cost of assets to be recovered over time, a speed-up of the time of recovery has few long-term costs to the Federal budget. So, allowing businesses to write off a larger portion of the cost of assets for a short time period has a negative effect on the Treasury in the first two or three years, but begins to reverse itself afterward. Thus, much of the early year costs of my bill will be fully reversed within the 10-year budget window. President Bush has indicated his support for the inclusion in the economic stimulus package of an enhanced depreciation provision. A number of Democrats and Republicans have also spoken out in support of this idea. And, as I mentioned, the Ways and Means Committee included a version of bonus depreciation in the bill it passed last week. Bonus depreciation is a solid economic stimulus idea. In crafting a consensus package, I urge my colleagues to include a depreciation provision that packs a punch by offering the promise of a large deduction for actions taken in a relatively short time frame. I believe the legislation I introduce today fits the bill nicely, and I urge its consideration. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce legislation designed to help stimulate the economy by creating a strong incentive for businesses to invest immediately in new productive assets. Unfortunately, the evil acts of terrorists on September 11 did more than shatter lives, hopes and dreams and destroy or damage great buildings in New York and Washington. They also caused serious harm to our national, and even the world's economies. While we do not yet know the full extent of the havoc brought to the U.S. economy by the calamities of September 11, practically all the experts agree that the damage will be significant. Few of them doubt that we are now in a recession. Moreover, many of the Nation's leading economists agree that the Congress and the President should move quickly to enact a package of tax cuts and other measures to stimulate the economy and try to prevent the downturn from becoming a long and deep one. For this reason, the bipartisan leadership of Congress in both houses, along with the White House, have been meeting for weeks in an attempt to develop a consensus on what such an economic stimulus package should include. Last Friday, the Committee on Ways and Means of the House of Representatives approved an initial stimulus bill. While it appears evident to me that it will be difficult for everyone in both parties and in both houses to agree on the proper content of the economic stimulus package, there are some guiding principles for the package on which most seem to agree. First, and almost by definition, the stimulus package should provide a strong incentive for players in the economy to take action they would not ordinarily take. Second, such an incentive should cause the desired action to occur quickly, when it will be of the most good to the economy. Finally, the stimulus should be temporary, and not cause a large long-term effect on the Federal budget, which could lead to an increase in interest rates. It may be that there are many specific tax law changes that meet these guiding principles. Some have suggested another round of tax rebate checks, but designated only for those who were not able to participate in the advance tax cut Congress passed in May of this year. Others are proposing the acceleration of the income tax rate cuts that were included in that same tax bill that are presently scheduled to take effect in future years. Still others insist that the stimulus package include new spending on our infrastructure or relief to ailing industries and to displaced employees. In the end, the economic stimulus package signed into law will probably contain a combination of several of these ideas. Our political process will require us to reach some kind of consensus, which means some of this idea and some of that idea will have to be included. Knowing that the stimulus package will be a collage of ideas, I believe it is important that it include a core provision that almost everyone seems to agree meets the criteria of true economic stimulus, a strong inducement for businesses to invest in productive assets. The purpose of the bill I introduce today is to put before the Senate a bold plan that I believe would accomplish this goal. The Economic Stimulus Through Bonus Depreciation Act of 2001 would provide businesses throughout America a very strong, but short-term, incentive to purchase business assets and put them to work over the next few months. A strong and concentrated surge in capital spending by U.S. businesses would provide a tremendous shot in the arm to our economy, as present inventories become depleted and manufacturers scramble to keep up with the new demand. Specifically, my bill would provide a 50-percent bonus depreciation deduction for business assets purchased after September 10, 2001, and before July 1, 2002, and placed in service before January 1, 2003. This means that businesses that want to take advantage of this strong incentive, which generally provides more than twice the first year deduction than is allowed under current law, would have to act quickly and order the new business assets by next June 30, and take delivery by next December 31. For example, suppose a business needed a new delivery truck that cost $50,000. Under current law, most trucks are considered 5-year property, and are generally depreciated over a 5-year period. If the business purchased the truck in 2002, the current-law depreciation deduction for the first year would be $10,000. In other words, the business would be able to write off one-fifth of the cost of the truck in the year of purchase. Under my bill, that same business would be allowed a 50-percent first-year depreciation deduction, rather than the 20 percent. So, instead of a deduction of $10,000 in 2002, the business would be allowed to deduct $25,000 of the cost of the truck in the first year. This is a significant difference, and it should be enough of a difference to change behavior when coupled with a short window of opportunity. The short time frame is a key to the success of a stimulus promotion bill like this one. My bill would require that a business make a decision and enter into a contract to purchase a new asset by next June 30, and then take delivery on the property by December 31, 2002. I will note that the economic stimulus bill approved by the House Ways and Means Committee last week includes a somewhat similar provision, one that provides for 30 percent extra depreciation for certain business assets. However, that bill allows the purchaser to take almost 3 years to decide to buy a new asset, then allows another several months to place the property into service. With all respect to my colleagues on the Ways and Means Committee, I believe the window of opportunity for the enhanced deduction created by that bill is too long. It does not instill the sense of urgency that I believe is needed to truly create a significant stimulus. It is important to note that my bill also applies to more types of business property than does the Ways and Means bill. The bill passed by the Ways and Means Committee would generally provide for an enhanced depreciation deduction for depreciable property with a recovery period of 20 years or less, except for leasehold improvements. The bill I am introducing today would apply to all types of depreciable property, including leasehold improvements and depreciable real estate. As a practical matter, I realize that many real estate projects, as well as many larger build-to-order equipment projects, take longer than a year to build and place in service. However, it is also true that many larger and costly projects can be built within the time constraints of this bill, especially if there is a concerted attempt to do so. I believe that the short time frame of my bill would induce many companies to act much more quickly than they otherwise would, in order to get business assets ordered and built in time to qualify for the bonus depreciation. This is where the economic stimulus power of this bill comes into play. The more effort that is made to get real estate projects finished, or to get equipment ordered, delivered, and placed in service in time to meet the deadlines of this bill, the more economic stimulus is created. Moreover, I believe this bill meets the three guiding principles I mentioned earlier. First, it provides a strong incentive for businesses to take stimulative action they would not otherwise take, in this case to purchase assets by June 30, 2002, in order to reap a significant tax savings. Second, because of the short deadline, this action will take place right away, when economic stimulus is really needed. Finally, the bill raises few risks of raising interest rates. Depreciation is a form of cost recovery over a period of time. Because our tax code allows the cost of assets to be recovered over time, a speed-up of the time of recovery has few long-term costs to the Federal budget. So, allowing businesses to write off a larger portion of the cost of assets for a short time period has a negative effect on the Treasury in the first two or three years, but begins to reverse itself afterward. Thus, much of the early year costs of my bill will be fully reversed within the 10-year budget window. President Bush has indicated his support for the inclusion in the economic stimulus package of an enhanced depreciation provision. A number of Democrats and Republicans have also spoken out in support of this idea. And, as I mentioned, the Ways and Means Committee included a version of bonus depreciation in the bill it passed last week. Bonus depreciation is a solid economic stimulus idea. In crafting a consensus package, I urge my colleagues to include a depreciation provision that packs a punch by offering the promise of a large deduction for actions taken in a relatively short time frame. I believe the legislation I introduce today fits the bill nicely, and I urge its consideration. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Madam President, under current law, law enforcement has so-called-roving or multi-point surveillance authority for criminal investigations under title III, but FISA does not have comparable provisions for agents investigating foreign intelligence. Roving interceptions are tied to a named person rather than to any particular communications facility or place. Today's bill adds this vital authority to FISA. This authority is critical for tracking suspected spies and terrorists who are experts in counter-surveillance methods such as frequently changing locations and communications devices such as phones and computer accounts. It simply makes no sense that our wire-tapping statute recognizes this problem, and provides roving wiretap authority for surveillance of common criminals, but makes no provision for roving authority to monitor terrorists under the FISA statute. The proposed amendment would not succeed in its stated goal of harmonizing the standard between title III wiretaps and FISA wiretaps. The proposed amendment would put a requirement on the interception of wire or electronic communications under a FISA warrant that does not exist in the title III context--a requirement that the law enforcement officer implementing the wiretapping order personally ascertain that the target of the order is using a telephone or computer, before the monitoring could begin. This requirement is operationally unworkable. The way that roving orders are implemented, requires that law enforcement officers have the ability to spot check several different telephones in order to determine which one is being used by the target of the order. The language proposed in this amendment does not give law enforcement officers the ability to do so. In fact, they would be worse off under this proposal than they are under current law. The goal of the roving wiretap provision is to give counter-terrorism investigators as much authority to conduct wiretaps as their counterparts have in conducting criminal investigations. This amendment defeats that goal by putting new, significant obstacles in the path of investigators attempting to investigate and prevent terrorist activities.

Mr. HATCH. Mr. President, I thank my colleagues. I oppose Senator Feingold's amendment to Section 215 of the bill. Section 215 allows federal law enforcement to apply for a court order to obtain records and other evidence in the course of an investigation to protect against international terrorism or clandestine intelligence activities. This provision has many safeguards built in to prevent its misuse. For instance, the application must be made by the Director of the FBI or his designee, whose rank cannot be lower than an Assistant Special Agent in Charge, and specify that the records concerned are sought for an authorized investigation to protect against international terrorism or clandestine intelligence activities. Additionally, the investigation must be conducted pursuant to approved Attorney General guidelines and may not be conducted on a United States person solely upon the basis of activities protected by the first amendment to the Constitution. As written, the provision balances the investigatory needs of the FBI with privacy concerns and provides adequate protection, while not allowing a host of state-law provisions to stand in the way of national security needs. Senator Feingold's amendment would condition the issuance of the court order on a myriad of federal and state-law provisions. Such conditioning will have the effect of making investigations to protect against international terrorism more difficult than investigations of certain domestic criminal violations. Senator Feingold's amendment purports to preserve privacy protections in place for certain records. The amendment's effect, however, will be to place foreign international and intelligence investigations at a disadvantage to criminal investigations. For example, this amendment would make it more difficult for the government to obtain business records in a foreign-intelligence or foreign counter-intelligence investigation through a court order than it is to obtain the same records in a criminal health-care fraud or child pornography investigation through a grand jury subpoena or administrative subpoena. (see 18 U.S.C. 3486). Federal law enforcement officers investigating the activities of a terrorist organization or foreign intelligence target should not face a greater burden than that imposed on investigators of health-care fraud or child pornography. I urge my colleagues to vote against this amendment.

Mr. HATCH. We have a managers' package. It is done. It is just being assembled and put together and will be here. I yield the floor.

Mr. HATCH. Mr. President, three weeks ago, the President of the United States--with the undivided support of this Congress and the American people--announced a war on terrorism. In that address, he asked Congress to provide our law enforcement community with the tools that they need to wage that war effectively. After several weeks of negotiations with the Chairman and the Administration, I am pleased we have come to the point where we can pass a bipartisan, measured bill that does just that. Mr. President, each of us has, in different ways, had our lives touched by the awful events of September 11th. Each of us has, in the days since the attack, been shocked and appalled by the terrible images of destruction that have reached us, by television, by newspaper--and in many cases by our own eyes--from the sites of the attacks in Pennsylvania, at the World Trade Center, and at the Pentagon. Paradoxically, each of us has also been uplifted by the stories of heroism and self-sacrifice that have emerged from around the country in the wake of these terrible events. As the President made clear in his address to the nation, we did not seek this war. This war was thrust upon us--thrust upon us by an unprovoked attack upon our civilian population in the very midst of our greatest cities. Just one month ago, we could not have contemplated that today, October 11th, 2001, we would be at war. It is true that, for years, some of us in this Congress, and around the country, have warned that there were powerful, well-financed individuals located throughout the world who were dedicated to the destruction of our way of life. But, few of us could predict the horrific methods that these men would employ in an effort to destroy us and our democratic institutions. On September 11th, all that changed. In the last few weeks, we have all come to acknowledge that we live in a different and more dangerous world than the world we thought we knew when we woke up on the morning of September 11th . . . . . . A different world--not only because thousands of our countrymen are dead as a result of the September 11th attacks . . . . . . A different world--not only because many of our neighbors now hesitate to get on an airplane, or ride in an elevator, or engage in any one of a number of activities that we took for granted before the attacks . . . . . . But a different world, also, because we must acknowledge that there remains an ongoing and serious threat to our way of life and, in fact, to our health and well-being as a society. As has been reported in the national media, the investigation into the September 11th attacks has revealed there are terrorist cells that continue to operate actively among us. It is a chilling thought, but it is true. The war to which we have collectively committed is a war unlike any war in the history of this country. It is different because a substantial part of this war must be fought on our own soil. This is not a circumstance of our choosing. The enemy has brought the war to us. But we must not flinch from acknowledging the fact that, because this is a different kind of war, it is a war that will require different kinds of weapons, and different kinds of tactics. The Department of Justice, and its investigatory components including the FBI, the INS, and the Border Patrol, will continue to have the principal responsibility for identifying and eradicating terrorist activity within our national borders. Our intelligence community must have access to critical information available to our law enforcement community. Over the last several weeks, the Attorney General has made clear to us, in no uncertain terms, that he does not currently have adequate weapons to fight this war. Weeks ago, the Administration sent to Congress a legislative proposal that would give the Department of Justice and others in law enforcement the tools they need to be effective in tracking down and eliminating terrorist activity in this country. Over the last several weeks, Senator Leahy, other members of the Judiciary Committee, and I have undertaken a painstaking review of the anti-terrorism proposal submitted by the Administration. There have been several hearings on this legislation in the Senate, and many briefings by experts and advocates. The legislation that we are about to vote upon is a product of intense bipartisan negotiations. It is a proposal I am proud to cosponsor with my other colleagues in the Senate and particularly the distinguished Chairman of the Judiciary Committee, Senator Leahy. I would like to congratulate Senator Leahy, in particular, for his thoroughness in reviewing this legislation and his many thoughtful comments and suggestions in our joint effort to ensure that the proposals adequately protect the constitutional liberties of all Americans. Now, after weeks of fine-tuning, we have reached a final product that accommodates the concerns of each of the Senators who has examined this bill. The bipartisan bill that we vote on today respects the constitutional liberties of the American people and, at the same time, does what people around America have been calling upon us in Congress to do--that is, give our law enforcement community the tools they need to keep us safe in our homes, in our travels, and in our places of business. I would like to make a few comments regarding the process for this legislation. Although we have considered this in a more expedited manner than other legislation, my colleagues can be assured that this bill has received thorough consideration. First, the fact is that the bulk of these proposals have been requested by the Department of Justice for years, and have languished in Congress for years because we have been unable to muster the collective political will to enact them into law. No one can say whether these tools could have prevented the attacks of September 11th. But, as the Attorney General has said, it is certain that without these tools, we did not stop the vicious acts of last month. I say to my colleagues, Mr. President, that if these tools could help us now to track down the perpetrators--if they will help us in our continued pursuit of terrorist activities within our national borders-- then we should not hesitate any further to pass these reforms into law. As long as these reforms are consistent with our Constitution--and they are--it is difficult to see why anyone would oppose their passage. Furthermore, I would like to clearly dispel the myth that the reforms in this legislation somehow abridge the Constitutional freedoms enjoyed by law-abiding American citizens. Some press reports have portrayed this issue as a choice between individual liberties on the one hand, and on the other hand, enhanced powers for our law enforcement institutions. This is a false dichotomy. We should all take comfort that the reforms in this bill are primarily directed at allowing law enforcement agents to work smarter and more efficiently--in no case do they curtail the precious civil liberties protected by our Constitution. I want to assure my colleagues that we worked very hard over the past several weeks to ensure that this legislation upholds all of the constitutional freedoms our citizens cherish. It does. I would like to take a minute to explain briefly a few of the most important provisions of this critical legislation. First, the legislation encourages information-sharing between various arms of the federal government. I believe most of our citizens would be shocked to learn that, even if certain government agents had prior knowledge of the September 11th attacks, under many circumstances they would have been prohibited by law from sharing that information with the appropriate intelligence or national security authorities. This legislation makes sure that, in the future, such information flows freely within the Federal government, so tat it will be received by those responsible for protecting against terrorist attacks. By making these reforms, we are rejecting the outdated Cold War paradigm that has prevented cooperation between our intelligence community and our law enforcement agents. Current law does not adequately allow for such cooperation, artificially hampering our government's ability to identify and prevent acts of terrorism against our citizens. In this new war, Mr. President, terrorists are a hybrid between domestic criminals and international agents. We must lower the barriers that discourage our law enforcement and intelligence agencies from working together to stop these terrorists. These hybrid criminals call for new, hybrid tools. Second, this bill updates the laws relating to electronic surveillance. Electronic surveillance, conducted under the supervision of a federal judge, is one of the most powerful tools at the disposal of our law enforcement community. It is simply a disgrace that we have not acted to modernize the laws currently on the books which govern such surveillance, laws that were enacted before the fax machine came into common usage, and well before the advent of cellular telephones, e-mail, and instant messaging. The Department of Justice has asked us for years to update these laws to reflect the new technologies, but there has always been a call to go slow, to seek more information, to order further studies. This is no hypothetical problem. We now know that e-mail, cellular telephones, and the Internet have been principal tools used by the terrorists to coordinate their atrocious activities. We need to pursue all solid investigatory leads that exist right now that our law enforcement agents would be unable to pursue because they must continue to work within these outdated laws. It is high time that we update our laws so that our law enforcement agencies can deal with the world as it is, rather than the world as it existed 20 years ago. A good example of the way we are handicapping our law enforcement agencies relates to devices called ``pen registers.'' Pen registers may be employed by the FBI, after obtaining a court order, to determine what telephone numbers are being dialed from a particular telephone. These devices are essential investigatory tools, which allow law enforcement agents to determine who is speaking to whom, within a criminal conspiracy. The Supreme Court has held, in Smith v. Maryland, that the information obtained by pen register devices is not information that is subject to ANY constitutional protection. Unlike the content of your telephone conversation once your call is connected, the numbers you dial into your telephone are not private. Because you have no reasonable expectation that such numbers will be kept private, they are not protected under the Constitution. The Smith holding was cited with approval by the Supreme Court just earlier this year. The legislation under consideration today would make clear what the federal courts have already ruled--that federal judges may grant pen register authority to the FBI to cover, not just telephones, but other more modern modes of communication such as e-mail or instant messaging. Let me make clear that the bill does not allow law enforcement to receive the content of the communication, but they can receive the addressing information to identify the computer or computers a suspect is using to further his criminal activity. Importantly, reform of the pen register law does not allow--as has sometimes been misreported in the press--for law enforcement agents to view the content of any e-mail messages--not even the subject line of e-mails. In addition, this legislation we are about to vote upon makes it explicit that content can not be collected through such pen register orders. This legislation also allows judges to enter pen register orders with nationwide scope. Nationwide jurisdiction for pen register orders makes common sense. It helps law enforcement agents efficiently identify communications facilities throughout the country, which greatly enhances the ability of law enforcement to identify quickly other members of a criminal organization, such as a terrorist cell. Moreover, this legislation provides our intelligence community with the same authority to use pen register devices, under the auspices of the Foreign Intelligence Surveillance Act, that our law enforcement agents have when investigating criminal offenses. It simply makes sense to provide law enforcement with the same tools to catch terrorists that they already possess in connection with other criminal investigations, such as drug crimes or illegal gambling. In addition to the pen register statute, this legislation updates other aspects of our wiretapping statutes. It is amazing that law enforcement agents do not currently have authority to seek wiretapping authority from a federal judge when investigating a terrorist offense. This legislation fixes that problem. Moving on, I note that much has been made of the complex immigration provisions of this bill. I know Senators Specter, Kohl and Kennedy had questions about earlier provisions, particularly the detention provision for suspected alien terrorists. I want to assure my colleagues that we have worked hard to address your concerns, and the concerns of the public. As with the other immigration provisions of this bill, we have made painstaking efforts to achieve this workable compromise. Let me address some of the specific concerns. In response to the concern that the INS might detain a suspected terrorist indefinitely, Senator Kennedy, Senator Kyl, and I worked out a compromise that limits the provision. It provides that the alien must be charged with an immigration or criminal violation within seven days after the commencement of detention or be released. In addition, contrary to what has been alleged, the certification itself is subject to judicial review. The Attorney General's power to detain a suspected terrorist under this bill is, then, not unfettered. Moreover, Senator Leahy and I have also worked diligently to craft necessary language that provides for the deportation of those aliens who are representatives of organizations that endorse terrorist activity, those who use a position of prominence to endorse terrorist activity or persuade others to support terrorist activity, or those who provide material support to terrorist organizations. If we are to fight terrorism, we can not allow those who support terrorists to remain in our country. Also, I should note that we have worked hard to provide the State Department and the INS the tools they need to ensure that no applicant for admission who is a terrorist is able to secure entry into the United States through legal channels. Finally, the bill gives law enforcement agencies powerful tools to attack the financial infrastructure of terrorism--giving our government the ability to choke off the financing that these dangerous terrorist organizations need to survive. It criminalizes the practice of harboring terrorists, and puts teeth in the laws against providing material support to terrorists and terrorist organizations. It gives the President expanded authority to freeze the assets of terrorists and terrorist organizations, and provides for the eventual seizure of such assets. These tools are vital to our ability to effectively wage the war against terrorism, and ultimately to win it. Mr. President, before this debate comes to an end, I would be remiss if I did not acknowledge the hard work put in by my staff, the staff of Senator Leahy, and the representatives of the Administration who were involved in the negotiation of this bill. These people have engaged in discussions, literally around the clock over the last 3 weeks to produce this excellent bill, that now enjoys such widespread bipartisan support. I would like to thank my Chief Counsel, Makim Delrahim, who has been instrumental in putting this bill together. I also would like to thank my criminal counsel, Jeff Taylor, Stuart Nash, and Leah Belaire, who have brought invaluable expertise to this process. My immigration counsel, Dustin Pead and my legislative assistant Brigham Cannon have provided invaluable assistance. I would like to thank the staff of Senator Leahy--his chief counsel Bruce Cohen, and other members of his staff--Beryl Howell, Julie Katzman, Ed Pagano, David James, and John Eliff. The Department of Justice has been of great assistance to us in putting this bill together. I would like to thank Attorney General Ashcroft and his Deputy Larry Thompson for their wise counsel, and for their quick response to our many questions and concerns. Michael Chertoff, the Assistant Attorney General for the Criminal Division was a frequent participant in our meetings, as well as Assistant Attorneys General Dan Bryant and Viet Dinh. Jennifer Newstead, John Yew, John Elwood and Pat O'Brien were all important participants in this process. Finally, the White House staff provided essential contributions at all stages of this process. Judge Al Gonzales, the White House counsel provided key guidance, with the help of his wonderful staff, including Tim Flanagan, Courtney Elwood, and Porad Berensen. In addition, members of the White House Congressional Liaison Office kept this process moving forward. I would like to thank Heather Wingate, Candy Wolff and Nancy Dorn for all the assistance they have given us. There have been few, if any, times in our nation's great history where an event has brought home to so many of our citizens, so quickly, and in such a graphic fashion, a sense of our vulnerability to unexpected attack. I believe we all took some comfort when President Bush promised us that our law enforcement institutions would have the tools necessary to protect us from the danger that we are only just beginning to perceive. The Attorney General has told us what tools he needs. We have taken the time to review the problems with our current laws, and to reflect on their solutions. The time to act is now. Let us please move forward expeditiously, and give those who are in the business of protecting us the tools that they need to do the job. Mr. President, I urge my colleagues' support for this important legislation and yield the floor.

Mr. HATCH. Madam President, let me talk a little bit about the provision of today's legislation that has been referred to as the ``computer trespasser'' exception. This provision is a perfect example of how our laws dealing with electronic surveillance have become outdated, and nonsensical as applied to modern technology. Imagine the following scenario. A terrorist decides to wreak havoc in a major U.S. city by shutting down an electrical power grid. He uses a computer to hack into the mainframe computer of a regional utility company, which he plans to use to bring down the power grid. Before the terrorist can accomplish his goal, the utility company recognizes that an intruder is attempting to access their computer. The company quickly calls the FBI for assistance in repelling the intruder. Guess what? Under current law, even with the permission from the utility company, the FBI is not permitted to monitor the terrorist's activity on the utility company's computer, because current law perversely grants the terrorist privacy rights with respect to his communications on the computer he has invaded. It is as if police could not investigate a burglary, even when invited into the house by the victim of the burglary, because the burglar had established privacy rights inside the home he has invaded. It is anomalies such as this, in our current laws regarding electronic surveillance, that today's legislation is designed to fix. As it stands, the computer trespasser provision is defined in such a way that the owner or operator of a computer network cannot arbitrarily declare the user of the network at trespasser, and then invite law enforcement in to monitor that user's communications. The provision, as written, provides that a person is not considered a computer trespasser if the person has an ``existing contractual'' relationship for access to all or part of the computer network. Senator Feingold's amendment would broadly amend the negotiated exception, including within its scope anyone with a contractual or ``other'' relationship to the owner or operator of a computer network. What is meant by ``other'' relationship? Any hacker could make the argument that they have a relationship with a computer operator. Indeed, were I a defense counsel, I would argue that the mere fact that the hacker has accessed the computer has created some form of relationship. Clearly, the proposed amendment would broadly and unwisely give immunity from our cyber-crime laws. This amendment creates an exception to the criminal laws and puts law enforcement back in the same position they currently are--that is, powerless to investigate hacking incidents where the owner of the computer network wants the assistance of law enforcement. Madam President, we should not tie the hands of our law enforcement to assist the owners of our computer networks. We should not help hackers and cyberterrorists to get away. If you are a victim of a burglary, shouldn't you have the right to ask the police to investigate your house, to come to your house and investigate? Why should the owners of the computer not have the right to ask the police to investigate a commuter-hacking incident, especially where it appears it is terrorist oriented? This act applies, as written, only to people without authorization to be on the computer. Why should the law protect people who have invaded a computer they have no right to be on? Let me say one last comment about this. The proponents of this amendment argue it will apply to students using a university computer. That is true, but only if such students use that university computer to hack into a place where they do not belong. Either we have to get serious in this modern society, with these modern computers, about terrorism or we have to ignore it. I, for one, am not for ignoring it. I believe we need to have this language in here--so does the Justice Department; so does the White House and the White House Counsel's Office--in order to do what cannot be done today to protect people in our society, and to protect our powerplants, our dams, and so many important facilities in our society that are vulnerable to cyber-terrorists. This law, the way it is currently written, will help to do that. That is all I care to say about it. But I believe we should vote down the Senator's amendment. I know it is well intentioned. I have great respect for the Senator from Wisconsin. He is one of the very diligent members of our committee, and I appreciate him very much, but on this amendment I believe we have to keep the language of the bill the way it is written in order to give our law enforcement people the tools to be able to stop terrorist hacking into computers.

Mr. HATCH. Will the Senator yield?

Mr. HATCH. Basically, what the administration is after here is that if a burglar is coming into your home and the police come to investigate, they don't have to report to a judge within 96 hours. The police have to act on these terrorist matters. If they find that a terrorist has infiltrated a computer controlling an electrical grid system, they want to get right on the ball and do something about it. That is what they are trying to do with this provision. There are no fourth amendment rights implicated because you have people who have hacked into a computer that they don't have any right to be in. We want to give law enforcement the power to stop that. This provision upsets that power and basically puts us back where we are when we can't do anything in a modern digital age to stop terrorists from stopping power grids and damaging dams and a whole raft of other things.

Mr. HATCH. Surely.

Mr. HATCH. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. HATCH. Yes, we are prepared to yield.

Mr. HATCH. It comes down to authorized or unauthorized access. If it is authorized, it is not covered under the computer trespasser provision.

Mr. HATCH. I am saying that if you have permission, you are not covered by this provision as written. In other words, you would not be considered a hacker.

Mr. HATCH. Under this provision, you do not have a right to hack into another private computer, whether you are a university student or anybody else. It only applies, the law we have written, to unauthorized access. It does not apply to authorized access. But unauthorized access, yes, it applies to that. If we don't put it in there, we will be leaving a glaring error that currently exists in our laws that prohibit us from solving some of these problems. It would be a terrible thing to not correct at this particular time, knowing what we know about how these terrorists are operating right now.

Mr. HATCH. I am prepared to yield back whatever time we have, if it is all right with the distinguished Senator from Vermont, with the understanding that we are just trying to stop unauthorized hacking that could be done by terrorists and others who are criminals that currently cannot be stopped. I am prepared to yield back the time, if the distinguished Senator from Vermont is.

Mr. HATCH

Mr. HATCH. Mr. President, I suggest the absence of a quorum.