Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEAHY

Mr. LEAHY. Mr. President, today we consider three bipartisan measures offered together as a package: the Public Safety Officer Medal of Valor Act, H.R. 46; the Computer Crime Enforcement Act, which I introduced as S. 1314, on July 1, 1999, with Senator DeWine and is now also co- sponsored by Senators Robb, Hatch and Abraham; and a Hatch-Leahy- Schumer ``Internet Security Act'' amendment. I thank my colleagues for their hard work on these pieces of legislation, each of which I will discuss in turn. I support the Public Safety Officer Medal of Valor Act. I cosponsored the Stevens bill, S. 39, to establish a Public Safety Medal of Valor. In April and May, 1999, I made sure that the Senate acted on Senator Stevens' bill, S. 39. On April 22, 1999, the Senate Judiciary Committee took up that measure in regular order and reported it unanimously. At that time I congratulated Senator Stevens and thanked him for his leadership. I noted that we had worked together on a number of law enforcement matters and that the senior Senator from Alaska is a stalwart supporter of the men and women who put themselves at risk to protect us all. I said that I looked forward to enactment of this measure and to seeing the extraordinary heroism of our police, firefighters and correctional officers recognized with the Medal of Valor. On May 18, 1999, I was privileged to be on the floor of the Senate when we proceeded to consider S. 39 and passed it unanimously. I took that occasion to commend Senator Stevens and all who had worked so hard to move this measure in a timely way. That was over one year ago, during National Police Week last year. The measure was sent to the House where it lay dormant for the rest of last year and most of this one. The President of the United States came to Capitol Hill to speak at the Law Enforcement Officers Memorial Service on May 15, 2000, and said on that occasion that if Congress would not act on the Medal of Valor, he was instructing the Attorney General to explore ways to award such recognition by Executive action. Unfortunately, these calls for action did not waken the House from its slumber on this matter and the House of Representatives refused to pass the Senate-passed Medal of Valor bill. Instead, over the past year, the House has insisted that the Senate take up, fix and pass the House-passed version of this measure if it is to become law. House members have indicated that they are now prepared to accept most of the Senate-passed text, but insist that it be enacted under the House bill number. In order to get this important measure to the President, that is what we are doing today. We are discharging the House-passed version of that bill, H.R. 46, from the Judiciary Committee, adopting a complete substitute, and sending it back to the House. I have worked with Senator Hatch, Senator Stevens and others to perfect the final version of this bill. We have crafted bipartisan improvements to ensure that the Medal of Valor Board will worked effectively and efficiently with the National Medal of Valor Office within the Department of Justice. Our legislation establishes both of these entities and it is essential that they work well together to design the Medal of Valor and to create the criteria and procedures for recommendations of nominees for the award. The men and women who will be honored by the Medal of Valor for their brave deeds deserve nothing less. The information age is filled with unlimited potential for good, but it also creates a variety of new challenges for law enforcement. A recent survey by the FBI and the Computer Security Institute found that 62 percent of information security professionals reported computer security breaches in the past year. These breaches in computer security resulted in financial losses of more than $120 million from fraud, theft of information, sabotage, computer viruses, and stolen laptops. Computer crime has become a multi-billion dollar problem. Many of us have worked on these issues for years. In 1984, we passed the Computer Fraud and Abuse Act to criminalize conduct when carried out by means of unauthorized access to a computer. In 1986, we passed the Electronic Communications Privacy Act (ECPA), which I was proud to sponsor, to criminalize tampering with electronic mail systems and remote data processing systems and to protect the privacy of computer users. In 1994, the Violent Crime Control and Law Enforcement Act included the Computer Abuse Amendments which I authored to make illegal the intentional transmission of computer viruses. In the 104th Congress, Senators Kyl, Grassley and I worked together to enact the National Information Infrastructure Protection Act to increase protection under federal criminal law for both government and private computers, and to address an emerging problem of computer-age blackmail in which a criminal threatens to harm or shut down a computer system unless their extortion demands are met. In the 105th Congress, Senators Kyl and I also worked together on criminal copyright amendments that became law to enhance the protection of copyrighted works online. The Congress must be constantly vigilant to keep the law up-to-date with technology. The Computer Crime Enforcement Act, S. 1314, and the Hatch-Leahy-Schumer ``Internet Security Act'' amendment are part of that ongoing effort. These complementary pieces of legislation reflect twin-track progress against computer crime: More tools at the federal level and more resources for local computer crime enforcement. The fact that this is a bipartisan effort is good for technology policy. But make no mistake about it: even with passage of this legislation, there is more work to be done--both to assist law enforcement and to safeguard the privacy and other important constitutional rights of our citizens. I wish that the Congress had also tackled online privacy in this session, but that will now be punted into the next congressional session. The legislation before us today does not attempt to resolve every issue. For example, both the Senate and the House held hearings this session about the FBI's Carnivore program. Carnivore is a computer program designed to advance criminal investigations by capturing information in Internet communications pursuant to court orders. Those hearings sparked a good debate about whether advances in technology, like Carnivore, require Congress to pass new legislation to assure that our private Internet communications are protected from government over- reaching while protecting the government's right to investigate crime. I look forward to our discussion of these privacy issues in the next Congress. The Computer Crime Enforcement Act is intended to help states and local agencies in fighting computer crime. All 50 states have now enacted tough computer crime control laws. They establish a firm groundwork for electronic commerce, an increasingly important sector of the nation's economy. Unfortunately, too many state and local law enforcement agencies are struggling to afford the high cost of enforcing their state computer crime statutes. Earlier this year, I released a survey on computer crime in Vermont. My office surveyed 54 law enforcement agencies in Vermont--43 police departments and 11 State's attorney offices--on their experience investigating and prosecuting computer crimes. The survey found that more than half of these Vermont law enforcement agencies encounter computer crime, with many police departments and state's attorney offices handling 2 to 5 computer crimes per month. Despite this documented need, far too many law enforcement agencies in Vermont cannot afford the cost of policing against computer crimes. Indeed, my survey found that 98 percent of the responding Vermont law enforcement agencies do not have funds dedicated for use in computer crime enforcement. My survey also found that few law enforcement officers in Vermont are properly trained in investigating computer crimes and analyzing cyber-evidence. According to my survey, 83 percent of responding law enforcement agencies in Vermont do not employ officers properly trained in computer crime investigative techniques. Moreover, my survey found that 52 percent of the law enforcement agencies that handle one or more computer crimes per month cited their lack of training as a problem encountered during investigations. Without the necessary education, training and technical support, our law enforcement officers are and will continue to be hamstrung in their efforts to crack down on computer crimes. I crafted the Computer Crime Enforcement Act, S. 1314, to address this problem. The bill would authorize a $25 million Department of Justice grant program to help states prevent and prosecute computer crime. Grants under our bipartisan bill may be used to provide education, training, and enforcement programs for local law enforcement officers and prosecutors in the rapidly growing field of computer criminal justice. Our legislation has been endorsed by the Information Technology Association of America and the Fraternal Order of Police. This is an important bipartisan effort to provide our state and local partners in crime-fighting with the resources they need to address computer crime. The Internet Security Act of 2000 makes progress to ensure that we are properly dealing with the increase in computer crime. I thank and commend Senators Hatch and Schumer for working with me and other Members of the Judiciary Committee to address some of the serious concerns we had with the first iteration of their bill, S. 2448, as it was originally introduced. Specifically, as introduced, S. 2448 would have over-federalized minor computer abuses. Currently, federal jurisdiction exists for a variety of computer crimes if, and only if, such criminal offenses result in at least $5,000 of damage or cause another specified injury, including the impairment of medical treatment, physical injury to a person or a threat to public safety. S. 2448, as introduced, would have eliminated the $5,000 jurisdictional threshold and thereby criminalized a variety of minor computer abuses, regardless of whether any significant harm resulted. For example, if an overly-curious college sophomore checks a professor's unattended computer to see what grade he is going to get and accidently deletes a file or a message, current Federal law does not make that conduct a crime. That conduct may be cause for discipline at the college, but not for the FBI to swoop in and investigate. Yet, under the original S. 2448, as introduced, this unauthorized access to the professor's computer would have constituted a federal crime. Another example is that of a teenage hacker, who plays a trick on a friend by modifying the friend's vanity Web page. Under current law, no federal crime has occurred. Yet, under the original S. 2448, as introduced, this conduct would have constituted a federal crime. As America Online correctly noted in a June, 2000 letter, ``eliminating the $5,000 threshold for both criminal and civil violations would risk criminalizing a wide range of essentially benign conduct and engendering needless litigation. . . .'' Similarly, the Internet Alliance commented in a June, 2000 letter that ``[c]omplete abolition of the limit will lead to needless federal prosecution of often trivial offenses that can be reached under state law. . . .'' Those provisions were overkill. Our federal laws do not need to reach each and every minor, inadvertent and harmless computer abuse--after all, each of the 50 states has its own computer crime laws. Rather, our federal laws need to reach those offenses for which federal jurisdiction is appropriate. Prior Congresses have declined to over-federalize computer offenses as originally proposed in S. 2448, as introduced, and sensibly determined that not all computer abuses warrant federal criminal sanctions. When the computer crime law was first enacted in 1984, the House Judiciary Committee reporting the bill stated: The Federal jurisdictional threshold is that there must be $5,000 worth of benefit to the defendant or loss to another in order to concentrate Federal resources on the more substantial computer offenses that affect interstate or foreign commerce. (H.Rep. 98-894, at p. 22, July 24, 1984). Similarly, the Senate Judiciary Committee under the chairmanship of Senator Thurmond, rejected suggestions in 1986 that ``the Congress should enact as sweeping a Federal statute as possible so that no computer crime is potentially uncovered.'' (S. Rep. 99-432, at p. 4, September 3, 1986). The Hatch-Leahy-Schumer substitute amendment to S. 2448, which was reported unanimously by the Judiciary Committee on October 5th, addresses those federalism concerns by retaining the $5,000 jurisdictional threshold in current law. That Committee-reported substitute amendment, with the additional refinements reflected in the Hatch-Leahy-Schumer Internet Security Act amendment to H.R. 46, which the Senate considers today, makes other improvements to the original bill and current law, as summarized below. First, titles II, III, IV and V of the original bill, S. 2448, about which various problems had been raised, are eliminated. For example, title V of the original bill would have authorized the Justice Department to enter into Mutual Legal Assistance Treaties (MLAT) with foreign governments that would allow the Attorney General broad discretion to investigate lawful conduct in the U.S. at the request of foreign governments without regard to whether the conduct investigated violates any Federal computer crime law. In my view, that discretion was too broad and troubling. Second, the amendment includes an authorization of appropriations of $5 million to the Computer Crime and Intellectual Property (CCIP) section within the Justice Department's Criminal Division and requires the Attorney General to make the head of CCIP a ``Deputy Assistant Attorney General,'' which is not a Senate-confirmed position, in order to highlight the increasing importance and profile of this position. This authorized funding level is consistent with an amendment I sponsored and circulated to Members of the Judiciary Committee to improve S. 2448 and am pleased to see it incorporated into the Internet Security Act amendment to H.R. 46. Third, the amendment modifies section 1030 of title 18, United States Code, in several important ways, including providing for increased and enhanced penalties for serious violations of federal computer crime laws, clarifying the definitions of ``loss'' to ensure that the full costs to a hacking victim are taken into account and of ``protected computer'' to facilitate investigations of international computer crimes affecting the United States, and preserving the existing $5,000 threshold and other jurisdictional prerequisites for violations of section 1030(a)(5)--i.e., no Federal crime has occurred unless the conduct (1) causes loss to 1 or more persons during any 1-year period aggregating at least $5,000 in value, (2) impairs the medical care of another person, (3) causes physical injury to another person, (4) threatens public health or safety, or (5) causes damage affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security. The amendment clarifies the precise elements of the offense the government must prove in order to establish a violation by moving these prerequisites from the current definition of ``damage'' to the description of the offense. In addition, the amendment creates a new category of felony violations where a hacker causes damage to a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security. Currently, the Computer Fraud and Abuse Act provides for federal criminal penalties for those who intentionally access a protected computer or cause an unauthorized transmission to a protected computer and cause damage. ``Protected computer'' is defined to include those that are ``used in interstate or foreign commerce.'' See 18 U.S.C. 1030(e)(2)(B). The amendment would clarify the definition of ``protected computer'' to ensure that computers which are used in interstate or foreign commerce but are located outside of the United States are included within the definition of ``protected computer'' when those computers are used in a manner that affects interstate or foreign commerce or communication of this country. This will ensure that our government will be able to conduct domestic investigations and prosecutions against hackers from this country who hack into foreign computer systems and against those hacking though the United States to other foreign venues. Moreover, by clarifying the fact that a domestic offense exists, the United States will be able to use speedier domestic procedures in support of international hacker cases, and create the option of prosecuting such criminals in the United States. The amendment also adds a definition of ``loss'' to the Computer Fraud and Abuse Act. Current law defines the term ``damage'' to include impairment of the integrity or availability of data, programs, systems or information causing a ``loss aggregating at least $5,000 in value during any 1-year period to one or more individuals.'' See 18 U.S.C. Sec. 1030(e)(8)(A). The new definition of ``loss'' to be added as section 1030(e)(11) will ensure that the full costs to victims of responding to hacking offenses, conducting damage assessments, restoring systems and data to the condition they were in before an attack, as well as lost revenue and costs incurred because of an interruption in service, are all counted. This statutory definition is consistent with the definition of ``loss'' appended by the U.S. Sentencing Commission to the Federal Sentencing Guidelines (see U.S.S.G. Sec. 2B1.1 Commentary, Application note 2), and will help reconcile procedures by which prosecutors value loss for charging purposes and by which judges value loss for sentencing purposes. Getting this type of true accounting of ``loss'' is important because loss amounts can be used to calculate restitution and to determine the appropriate sentence for the perpetrator under the sentencing guidelines. Fourth, section 303(e) of the Hatch-Leahy-Schumer Internet Security Act amendment to H.R. 46 clarifies the grounds for obtaining damages in civil actions for violations of the Computer Fraud and Abuse Act. Current law authorizes a person who suffers ``damage or loss'' from a violation of section 1030 to sue the violator for compensatory damages or injunctive or other equitable relief, and limits the remedy to ``economic damages'' for violations ``involving damage as defined in subsection (e)(8)(A),'' relating to violations of 1030(a)(5) that cause loss aggregating at least $5,000 during any 1-year period. Current law does not contain a definition of ``loss,'' which is being added by this amendment. To take account of both the new definition of ``loss'' and the incorporation of the requisite jurisdictional thresholds into the description of the offense (rather than the current definition of ``damage''), the amendment to subsection (g) makes several changes. First, the amendment strikes the reference to subsection (e)(8)(A) in the current civil action provision and retains Congress' previous intent to allow civil plaintiffs only economic damages for violations of section 1030(a)(5) that do not also affect medical treatment, cause physical injury, threaten public health and safety or affect computer systems used in furtherance of the administration of justice, the national defense or national security. Second, the amendment clarifies that civil actions under section 1030, and not just 1030(a)(5), are limited to conduct that involves one of the factors enumerated in new subsection (a)(5)(B), namely, the conduct (1) causes loss to 1 or more persons during any 1-year period aggregating at least $5,000 in value, (2) impairs the medical care of another person, (3) causes physical injury to another person, (4) threatens public health or safety, or (5) causes damage affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security. This clarification is consistent with judicial constructions of the statute, requiring proof of the $5,000 loss threshold as a prerequisite for civil suit, for example, under subsection 1030(a)(2)(C). See, e.g., America Online, Inc. v. LCGM, Inc., 46 F.Supp. 2d 444, 450 (E.D. Va. 1998) (court granted summary judgment on claim under 1030(a)(2)(C), stating, ``[p]laintiff asserts that as a result of defendants' actions, it suffered damages exceeding $5,000, the statutory threshold requirement''). While proof of ``loss'' is required, this amendment preserves current law that civil enforcement of certain violations of section 1030 is available without requiring proof of ``damage,'' which is defined in the amendment to mean ``any impairment to the integrity or availability of data, a program, a system, or information.'' In fact, only subsection 1030(a)(5) requires proof of ``damage''; civil enforcement of other subsections of this law may proceed without such proof. Thus, only the factors enumerated in new subsection (a)(5)(B), and not its introductory language referring to conduct described in subsection (a)(5)(A), constitute threshold requirements for civil suits for violations of section 1030 other than subsection 1030(a)(5). Finally, the amendment adds a new sentence to subsection 1030(g) clarifying that civil actions may not be brought ``for the negligent design or manufacture of computer hardware, computer software, or firmware.'' The Congress provided this civil remedy in the 1994 amendments to the Act, which I originally sponsored with Senator Gordon Humphrey, to enhance privacy protection for computer communications and the information stored on computers by encouraging institutions to improve computer security practices, deterring unauthorized persons from trespassing on computer systems of others, and supplementing the resources of law enforcement in combating computer crime. [See The Computer Abuse Amendments Act of 1990: Hearing Before the Subcomm. On Technology and the Law of the Senate Comm. On the Judiciary, 101st Cong., 2nd Sess., S. Hrg. 101-1276, at pp. 69, 88, 92 (1990); see also Statement of Senator Humphrey, 136 Cong. Rec. S18235 (1990) (``Given the Government's limited capacity to pursue all computer crime cases, the existence of this limited civil remedy will serve to enhance deterrence in this critical area.'')]. The ``new, civil remedy for those harmed by violations of the Computer Fraud and Abuse Act'' was intended to ``boost the deterrence of the statute by allowing aggrieved individuals to obtain relief.'' [S. Rep. No. 101-544, 101st Cong., 2d Sess., p. 6-7 (1990); see also Statement of Senator Leahy, 136 Cong. Rec. S18234 (1990)]. We certainly and expressly did not want to ``open the floodgates to frivolous litigation.'' [Statement of Senator Leahy, 136 Cong. Rec. S4614 (1990)]. At the time the civil remedy provision was added to the Computer Fraud and Abuse Act, this Act contained no prohibition against negligently causing damage to a computer through unauthorized access, reflected in current law, 18 U.S.C. Sec. 1030(a)(5)(C). That prohibition was added only with subsequent amendments made in 1996, as part of the National Information Infrastructure Protection Act. Nevertheless, the civil remedy has been interpreted in some cases to apply to the negligent manufacture of computer hardware or software. See, e.g., Shaw v. Toshiba America Information Systems, Inc., NEC, 91 F.Supp. 2d 926 (E.D. TX 1999) (court interpreted the term transmission to include sale of computers with a minor design defect). The Hatch-Leahy-Schumer Internet Security Act amendment to subsection 1030(g) is intended to ensure that the civil remedy is a robust option for private enforcement actions, while limiting its applicability to negligence cases that are more appropriately governed by contractual warranties, state tort law and consumer protection laws. Fifth, sections 304 and 309 of the Hatch-Leahy-Schumer Internet Security Act amendment to H.R. 46 authorize criminal forfeiture of computers, equipment, and other personal property used to violate the Computer Fraud and Abuse Act, as well as real and personal property derived from the proceeds of computer crime. Property, both real and personal, which is derived from proceeds traceable to a violation of section 1030, is currently subject to both criminal and civil forfeiture. See 18 U.S.C. Sec. 981(a)(1)(C) and 982(a)(2)(B). Thus, the amendment would clarify in section 1030 itself that forfeiture applies and extend the application of forfeiture to property that is used or intended to be used to commit or to facilitate the commission of a computer crime. In addition, to deter and prevent piracy, theft and counterfeiting of intellectual property, the section 309 of the amendment allows forfeiture of devices, such as replicators or other devices used to copy or produce computer programs to which counterfeit labels have been affixed. The criminal forfeiture provision in section 304 specifically states that only the ``interest of such person,'' referring to the defendant who committed the computer crime, is subject to forfeiture. Moreover, the criminal forfeiture authorized by Sections 304 and 309 is made expressly subject to Section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, but subsection (d) of section 413 is expressly exempted from application to Section 304 and 309. That subsection (d) creates a rebuttable presumption of forfeiture in favor of the government where a person convicted of a felony acquired the property during the period that the crime was committed or within a reasonable time after such period and there was no likely source for such property other than the criminal violation. Thus, by making subsection (d) inapplicable, Sections 304 and 309 make it more difficult for the government to prove that the property should be forfeited. Sixth, unlike the version reported by the Judiciary Committee, the amendment does not require that prior delinquency adjudications of juveniles for violations of the Computer Fraud and Abuse Act be counted under the definition of ``conviction'' for purposes of enhanced penalties. This is an improvement that I urged since juvenile adjudications simply are not criminal convictions. Juvenile proceedings are more informal than adult prosecutions and are not subject to the same due process protections. Consequently, counting juvenile adjudications as a prior conviction for purposes of the recidivist sanctions under the amendment would be unduly harsh and unfair. In any event, prior juvenile delinquency adjudications are already subject to sentencing enhancements under certain circumstances under the Sentencing Guidelines. See, e.g., U.S.S.G. Sec. 411.2(d) (upward adjustments in sentences required for each juvenile sentence to confinement of at least sixty days and for each juvenile sentence imposed within five years of the defendant's commencement of instant offense). Seventh, the amendment changes a current directive to the Sentencing Commission enacted as section 805 of the Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132, that imposed a 6-month mandatory minimum sentence for any conviction of the sections 1030(a)(4) or (a)(5) of title 18, United States code. The Administration has noted that ``[i]n some instances, prosecutors have exercised their discretion and elected not to charge some defendants whose actions otherwise would qualify them for prosecution under the statute, knowing that the result would be mandatory imprisonment.'' Clearly, mandatory imprisonment is not always the most appropriate remedy for a federal criminal violation, and the ironic result of this ``get tough'' proposal has been to discourage prosecutions that might otherwise have gone forward. The amendment eliminates that mandatory minimum term of incarceration for misdemeanor and less serious felony computer crimes. Eighth, section 310 of the amendment directs the Sentencing Commission to review and, where appropriate, adjust sentencing guidelines for computer crimes to address a variety of factors, including to ensure that the guidelines provide sufficiently stringent penalties to deter and punish persons who intentionally use encryption in connection with the commission or concealment of criminal acts. The Sentencing Guidelines already provide for enhanced penalties when persons obstruct or impede the administration of justice, see U.S.S.G. Sec. 3C1.1, or engage in more than minimal planning, see U.S.S.G. Sec. 2B1.1(b)(4)(A). As the use of encryption technology becomes more widespread, additional guidance from the Sentencing Commission would be helpful to determine the circumstances when such encryption use would warrant a guideline adjustment. For example, if a defendant employs an encryption product that works automatically and transparently with a telecommunications service or software product, an enhancement for use of encryption may not be appropriate, while the deliberate use of encryption as part of a sophisticated and intricate scheme to conceal criminal activity and make the offense, or its extent, difficult to detect, may warrant a guideline enhancement either under existing guidelines or a new guideline. Ninth, the Hatch-Leahy-Schumer Internet Security Act amendment to H.R. 46 would eliminate certain statutory restrictions on the authority of the United States Secret Service ("Secret Service''). Under current law, the Secret Service is authorized to investigate offenses under six designated subsections of 18 U.S.C. Sec. 1030, subject to agreement between the Secretary of the Treasury and the Attorney General: subsections (a)(2)(A) (illegally accessing a computer and obtaining financial information); (a)(2)(B) (illegally accessing a computer and obtaining information from a department or agency of the United States); (a)(3) (illegally accessing a non-public computer of a department or agency of the United States either exclusively used by the United States or used by the United States and the conduct affects that use by or for the United States); (a)(4) (accessing a protected computer with intent to defraud and thereby furthering the fraud and obtaining a thing of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in a one-year period); (a)(5) (knowingly causing the transmission of a program, information, code or command and thereby intentionally and without authorization causing damage to a protected computer; and illegally accessing a protected computer and causing damage recklessly or otherwise); and (a)(6) (trafficking in a password with intent to defraud). Under current law, the Secret Service is not authorized to investigate offenses under subsection (a)(1) (accessing a computer and obtaining information relating to national security with reason to believe the information could be used to the injury of the United States or to the advantage of a foreign nation and willfully retaining or transmitting that information or attempting to do so); (a)(2)(C) (illegally accessing a protected computer and obtaining information where the conduct involves an interstate or foreign communication); and (a)(7) (transmitting a threat to damage a protected computer with intent to extort). The Internet Security Act removes these limitations on the authority of the Secret Service and authorizes the Secret Service to investigate any offense under Section 1030 relating to its jurisdiction under 18 U.S.C. Sec. 3056 and subject to agreement between the Secretary of the Treasury and the Attorney General. This provision also makes clear that the FBI retains primary authority to investigate offenses under subsection 1030(a)(1). Prior to 1996 amendments to the Computer Fraud and Abuse Act, the Secret Service was authorized to investigate all violations of Section 1030. According to the 1996 Committee Reports of the 104th Congress, 2nd Session, the 1996 amendments attempted to concentrate the Secret Service's jurisdiction on certain subsections considered to be within the Secret Service's traditional jurisdiction and not grant authority in matters with a national security nexus. According to the Administration, which first proposed the elimination of these statutory restrictions in connection with transmittal of its comprehensive crime bill, the ``21st Century Law Enforcement and Public Safety Act,'' however, these specific enumerations of investigative authority ``have the potential to complicate investigations and impede interagency cooperation.'' (See Section-by-section Analysis, SEC. 3082, for ``21st Century Law Enforcement and Public Safety Act''). The current restrictions, for example, risk hindering the Secret Service from investigating ``hacking'' into White House computers or investigating threats against the President that may be delivered by such a ``hacker,'' and fulfilling its mission to protect financial institutions and the nation's financial infrastructure. The provision thus modifies existing law to restore the Secret Service's authority to investigate violations of Section 1030, leaving it to the Departments of Treasury and Justice to determine between them how to allocate workload and particular cases. This arrangement is consistent with other jurisdictional grants of authority to the Secret Service. See, e.g., 18 U.S.C. Sec. Sec. 1029(d), 3056(b)(3). Tenth, section 307 of the Hatch-Leahy-Schumer Internet Security Act amendment would provide an additional defense to civil actions relating to preserving records in response to government requests. Current law authorizes civil actions and criminal liability for unauthorized interference with or disclosures of electronically stored wire or electronic communications under certain circumstances. 18 U.S.C. Sec. Sec. 2701, et seq. A provision of that statutory scheme makes clear that it is a complete defense to civil and criminal liability if the person or entity interfering with or attempting to disclose a communication does so in good faith reliance on a court warrant or order, grand jury subpoena, legislative or statutory authorization. 18 U.S.C. Sec. 2707(e)(1). Current law, however, does not address one scenario under which a person or entity might also have a complete defense. A provision of the same statutory scheme currently requires providers of wire or electronic communication services and remote computing services, upon request of a governmental entity, to take all necessary steps to preserve records and other evidence in its possession for a renewal period of 90 days pending the issuance of a court order or other process requiring disclosure of the records or other evidence. 18 U.S.C. Sec. 2703(f). Section 2707(e)(1), which describes the circumstances under which a person or entity would have a complete defense to civil or criminal liability, fails to identify good faith reliance on a governmental request pursuant to Section 2703(f) as another basis for a complete defense. Section 307 modifies current law by addressing this omission and expressly providing that a person or entity who acts in good faith reliance on a governmental request pursuant to Section 2703(f) also has a complete defense to civil and criminal liability. Finally, the bill authorizes construction and operation of a National Cyber Crime Technical Support Center and 10 regional computer forensic labs that will provide education, training, and forensic examination capabilities for State and local law enforcement officials charged with investigating computer crimes. The section authorizes a total of $100 million for FY 2001, of which $20 million shall be available solely for the 10 regional labs and would complement the state computer crime grant bill, S. 1314, with which this bill is offered. Amendment No. 4366 (Purpose: To enhance computer crime enforcement and Internet security, and for other purposes)

Mr. LEAHY

Mr. LEAHY. Mr. President, one of the greatest pleasures of being a Senator is working with fellow-members like Frank Lautenberg. Few Senators have brought more dedication and experience to their service in this body. I will never forget how excited my father was to meet Senator Lautenberg when he first came here almost 18 years ago. My father of proud Irish decent followed Frank's first campaign. There was a wonderful connection between the two of them, and I am forever grateful to Senator Lautenberg for the lovely letter of condolence that he sent me when my father passed away. Frank Lautenberg is first and foremost a good friend. Of course, Senator Lautenberg is also a skilled legislator. We served together for years on the Appropriations Committee. Recently, the committee debated an amendment to the Defense bill that would lead to the withdrawal of U.S. troops to Kosovo. A veteran of the European theater in World War II and the builder of a data processing empire, Senator Lautenberg understood that democratic stability could come only through a long-term and patient investment in peace. What made Senator Lautenberg's argument so effective was not just the ideas he possessed but the way he delivered them. He has a rhetorical force that I have always admired, and I think that this ability to marry sound ideas with effective speech-making is what makes him such a stellar member. Of course, Senator Lautenberg had a number of legislative accomplishments. He helped make our democracy more transparent, opposing confusing smoke and mirrors as a Chairman and Ranking Member of the Senate Budget Committee. He promoted international justice, fervently urging the prosecution of war criminals. Senator Lautenberg understood that reconciliation and economic growth could not come until these perpetrators are held responsible and punished for their actions. At home, Senator Lautenberg laid the foundation for our strong economic growth of the last decade. Amtrak and commercial aviation had no greater friend than Senator Lautenberg, who confidently chaired the Senate Appropriations Subcommittee on Transportation. And he has improved the public's health, encouraging restrictions on tobacco use and ensuring the cleanup of hazardous waste sites. In his 18 years here, Senator Lautenberg had an impact that goes beyond his important votes and the bills he sponsored. Through his experience and knowledge, he was steadfast advocate for freedom, fairness, and responsibility. He kept these ideal on an unalterable course, and we are all in his debt for it.

Mr. LEAHY

Mr. LEAHY. Mr. President, with my dear friend from Nevada, Senator Reid, on the floor, I want to talk about his colleague, also my friend, Richard Bryan, who announced his plans to retire from the Senate. When he did, he said very simply and earnestly: It's time to come home. I have known Dick and Bonnie Bryan since they came here. I say Dick and Bonnie Bryan because, like Marcelle and me, we think of them as one person because usually at events outside work, when you see one you see the other. In fact, that is what I cherish about both my colleagues from Nevada. I cherish their family life. Dick said it is time to go home, and I am disappointed to learn we are going to lose a good humored and skillful colleague. As a Vermonter, I have to empathize with that deep-rooted impulse to go home. Everything Dick Bryan has accomplished here paves the way for his return to a better Nevada, something all of us hope for because all of us will leave this body at one time or another. Most of the time, the strength of our Nation stood resolutely with the welfare of Nevada in Senator Bryan's mind. As Democratic cochair of the Senate National Guard Caucus, he blocked unwise and unjustifiable cuts in our citizen-soldier force. He brought us together so the Guard's voice could be heard, and his persistence has positioned this invaluable force to prepare for the new, continually emerging strategic landscape. Under his watch, Nellis Air Force Base became a national treasure, where our best, most skilled pilots mastered the art of war so that our country would never have to call on them for the real thing. Senator Bryan guaranteed the credibility of the institution of the Senate. I think of the Senate as being the conscience of the Nation, and we should be the guardians of it. Those who abused the public's trust and the powers of office, as Senators knew they would, received intense scrutiny when Senator Bryan chaired the Ethics Committee in 1993 and 1994. None of us will forget his calm and dexterous handling of numerous sensitive investigations, something he could do because he was trusted by both Republicans and Democrats to do the right thing. It had to be one of the most difficult times, requiring arduous work by any Senator, but never once did any of us hear Senator Bryan complain about the difficult task, nor did he swerve from the steady course toward fairness and justice. Indeed, in so many areas, Richard Bryan made a difference whether in preserving the fragile desert environment or modernizing our commercial aviation system. The list is long, and if he stayed, he would have accomplished even more. Senator Bryan has made a choice that deserves only accolades and respect. He is going home, and Nevada is a fortunate State for it. It is also fortunate that he has left his partner, Harry Reid, here to carry on his battles. My wife Marcelle and I wish Dick and his wife Bonnie all the best, but I am going to miss some of our late night conversations and some of the humor and good will he has shown to all Senators. Mr. President, I suggest the absence of a quorum.

Mr. LEAHY

Mr. LEAHY. Mr. President, earlier today Senator Chuck Robb of Virginia spoke on this floor. I worked with him. I have admired him since he came to the Senate over 12 years ago. I talked with this former marine at the time my own son joined the Marine Corps and was touched that he always asked for progress reports on his career in the Marines. He is only the fourth person from the State of Virginia to serve as both Governor and U.S. Senator, and he came to Washington ready to build on a distinguished career in public service. In 1961, he joined the Marines as an infantry company commander in Vietnam, saw combat, and was in harm's way time and time again. He demonstrated the kind of determination and stamina that would characterize his political career. In Vietnam, people depended on his leadership for their life, literally. He then served Virginia as Lieutenant Governor and Governor before being elected to the U.S. Senate. In fact, it is fair to say his tenure as Governor laid the basis for Virginia to become such a leader today in the high-tech industry. During his time here in Washington, he has shown his dedication and concern for our men and women in the military, fighting for a strong defense while advocating fiscal responsibility. He has been a proponent for improvement in our Nation's public schools, fighting for more teachers, increased school construction, and school safety. He has also been a champion against discrimination. He led the fight to end injustice to African American farmers who faced discrimination by the Agriculture Department and voted against moves to end affirmative action programs by the Federal Government. In all these things, he showed the same dedication to his country in a legislative position that he had shown to his State in his executive position as Governor, as a member of the Armed Services Committee, Foreign Relations and Finance Committees, and the Joint Economic Committee and Select Committee on Intelligence. He served this body, the Senate, so well, and in turn our whole Nation. I think of the tough political battles he has faced. I think of the difficult votes during his time in office, how he had to balance the interests of his State with the well-being of the Nation. But I can remember so many times on this floor when a vote would come up where, politically, Chuck Robb could have ducked and ran and voted a different way. He did not, anymore than he would have when he was in combat in Vietnam. He would stay on the floor, he would state his position, and you would see the marine; you would see the character; you would see the steel. He would stand up and do what his conscience told him was the right thing. Mr. President, I pay tribute to a man I have worked with and admired since he came to the Senate over twelve years ago. As only the fourth person from the state of Virginia to serve as both Governor and U.S. Senator Chuck Robb came to Washington ready to build on a distinguished career in public service. Beginning in 1961 when he joined the Marines, and through his days as an infantry company commander in Vietnam, Chuck Robb demonstrated the kind of determination and stamina that would characterize his political career. He later served Virginia as Lieutenant Governor and Governor before being elected to the United States Senate. During his time here in Washington he has shown his dedication and concern for our men and women in the military, fighting for a strong defense while advocating fiscal responsibility. He has been a proponent for improving our nation's public schools, fighting for more teachers, increased school construction and school safety. He has also been a champion in the battle to end discrimination. He led the fight to bring justice to African American farmers who had faced discrimination by the Agriculture Department, and he voted against a move to end affirmative action programs by the federal government. As a member of the Armed Services Committee, Foreign Relations, Finance Committee, the Joint Economic Committee and the Select Committee on Intelligence he has served the Senate well. Senator Robb has faced several tough political battles and cast many difficult votes during his time in office--all the while he has been determined to balance the interests of his state with the well-being of the nation. It has been an honor and privilege to work with him over the last years. I know he is going to be sorely missed by our colleagues in the Senate. I will miss having the chance to get advice and encouragement from him on the Senate floor, but I know I will still have that available to me throughout the remaining years of my Senate career. Mr. President, what is the parliamentary situation now, as we go down to these waning hours and we hear the choral group downstairs practicing Christmas carols?

Mr. LEAHY. Is my understanding correct, though, that I am still able to maintain the floor without slowing down the vital business of the Senate?

Mr. LEAHY

Mr. LEAHY. Mr. President, during the past year there has been an extraordinary amount written and spoken in this country about the death penalty--actually more than I can recollect having seen before. We have learned that the system of administering capital punishment is gravely flawed, and that scores of people have ended up on death row, often for many years, even though they were completely innocent of the crime for which they were sentenced to death. We have seen how the justice system has serious flaws at every stage, and especially if the accused is poor, as are most criminal defendants who are sentenced to death. Lawyers defending people whose lives are at stake are often inexperienced or incompetent, and poorly paid. Two thirds of death penalty trials nationwide are marred by serious constitutional errors, according to reviewing courts. We have seen public support for the death penalty decrease significantly. It is still over 50 percent nationally, but it falls below 50 percent if the alternative is life in prison with no opportunity for parole. We have seen Governor Ryan of Illinois appoint a commission of experts, both supporters and opponents of capital punishment, to determine whether the death penalty can, under any circumstances, be administered reliably so innocent people will never be executed. The findings and recommendations of that commission will be important for the entire country. In Virginia, a State with many people on death row, the legislature recently took note of the growing concerns surrounding capital punishment, and decided to review the administration of the death penalty in Virginia where there have been serious mistakes. In October, the Virginia Governor pardoned Earl Washington, a mentally retarded farmhand, after new DNA tests cleared him of the rape and murder that once brought him within 9 days of execution. Just this morning, the Washington Post reported that DNA tests had cleared another death row inmate--unfortunately, too late to be of any help. Before dying of cancer earlier this year, Frank Lee Smith spent 14 years on Florida's death row for a rape and murder that it now appears he did not commit. I have introduced legislation with Senators Gordon Smith, Susan Collins, and 12 other Senators, to address some of these most egregious flaws. I have spoken many times about our bill, the Innocence Protection Act, which we plan to pursue in the 107th Congress. Our legislation addresses the horrendous problem of innocent people being condemned to death. But today I want to mention briefly a related issue which is illustrated by a case in Texas, the State which this year has executed more people than any other State in the post-war era. The Supreme Court stayed the execution of Johnny Paul Penry on November 16, 2000, less than four hours before he was scheduled to die by lethal injection in Texas. The Court has now scheduled the case for argument. Johnny Penry, who in 1979 raped and murdered a 22 year old woman, has been on death row for twenty years. He committed a terrible crime; there has never been any doubt about that. But besides the crime itself, what makes Johnny Penry's case so disturbing is that he has an IQ of 56. What that means is that he has the intelligence of a 6-year old child. Mr. President, 11 years ago the Supreme Court ruled that it is not cruel and unusual punishment to execute the mentally retarded. I disagree with that decision. But more importantly, despite the Supreme Court ruling, 13 States with capital punishment and the Federal Government have forbidden execution of the mentally retarded, and a clear majority of Americans oppose the practice. The State Senator who in 1998 sponsored Nebraska's bill to prohibit execution of the mentally retarded later said that it should not have been necessary because ``no civilized, mature society would ever entertain the possibility of executing anybody who was mentally retarded.'' Executing the mentally retarded is wrong; it is immoral. People with mental retardation have a diminished capacity to understand right from wrong. As Justice Brennan wrote: The impairment of a mentally retarded offender's reasoning ability, control over impulsive behavior, and moral development . . . limits his or her culpability so that, whatever other punishment might be appropriate, the ultimate penalty of death is always and necessarily disproportionate to his or her blameworthiness. Proponents of the death penalty argue that it ``saves lives,'' but executing the mentally retarded cannot be justified on the grounds of deterrence. Let me again quote Justice Brennan, writing in 1989: The very factors that make it disproportionate and unjust to execute the mentally retarded also make the death penalty of the most minimal deterrent effect so far as retarded potential offenders are concerned. Intellectual impairments in logical reasoning, strategic thinking, and foresight, the lack of the intellectual and developmental predicates of an ability to anticipate consequences, and impairment in the ability to control impulsivity, mean that the possibility of receiving the death penalty will not in the case of a mentally retarded person figure in some careful assessment of different courses of action. In these circumstances, the execution of mentally retarded individuals is nothing more than the purposeless and needless imposition of pain and suffering. People with mental retardation are also more prone to make false confessions simply to please their interrogators, and they are often unable to assist their lawyer in preparing a defense. We saw this with Earl Washington, who had an IQ of 69. Arrested for breaking into a neighbor's home during a drinking spree and hitting her with a chair, Washington readily confessed to a series of unsolved murders that he could not have committed. Beyond all of this, executing the mentally retarded severely damages the standing of the United States in the international community. The United Nations has long condemned this practice. Just last year, the U.N. Commission on Human Rights called on nations ``not to impose the death penalty on a person suffering from any form of mental disorder.'' We should join the overwhelming majority of nations who do not execute the mentally retarded. Johnny Penry suffered relentless and severe physical and psychological abuse as a child, spends his time in prison coloring with crayons and looking at comic books he cannot read, and still believes in Santa Claus. I remember reading that when they stayed his execution he said, ``Does this mean I'm not allowed to have the special meal I was supposed to have?''--The last meal of the condemned man. He could not possibly have assisted meaningfully in his own defense. No one can excuse Johnny Penry's crime, and no one suggests that he should be set free. But the question is what is the appropriate punishment for a defendant who is mentally retarded. Neither our Constitution nor our national conscience permits the execution of a 6-year-old child for committing a heinous crime, and neither should we execute a person with the mental capacity of a 6- year-old. It offends the very idea of justice. I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, you know I think the world of all my colleagues. The distinguished Chair right now is one of my best friends in the Senate and one who deserves congratulations on--actually, they didn't have to have an election in his State; he wins by so much. I love being with him, as I do my dear friend from Nevada, the deputy Democratic whip. But I hope that neither of my colleagues takes it at all personally when I say I would probably rather be at home with my family at this time of the year. But then I suspect they would, too. I hope this means we are soon to wrap things up, possibly this evening or Sunday or Monday or sometime. We seem to be in a situation where wrapping up the session is like wrapping up the Presidential election this year. I am beginning to feel a little bit like a hanging chad of some sort. I thought of some of the other terms that have been used, but I am afraid sometime somebody might pull that out of context and I will be reminded that I will not be forgiven for what I may say because of my Irish nature. Let us hope we can wrap it up. I say that also for the sake of the President-elect and the leadership, both Republican and Democrat, in the Senate. All of us have a lot of work to do before January 3 when the Senate comes back into session with a number of new Senators and in a unique situation of a 50-50 Senate. Governor Bush and former Secretary Cheney need time to work with the Republicans in the Senate and the House as they put together their administration. Of course, I hope and expect they will also be in contact with those of us on this side of the aisle. There is a lot facing this Nation, and we have to work on that.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEAHY

Mr. LEAHY. Mr. President, it is with great sorrow, but also great pride, that this Senate retires one of its most eloquent, learned, and successful Members--the senior Senator from New York, Daniel Patrick Moynihan. I have known my distinguished colleague for over two decades, admiring his compassion, his dedication, and his acumen on key issues, from environmental protection to social, racial, and economic justice for all. It has been an honor and education to have worked with him on the critical issues of eradicating poverty, elevating human rights, and promoting peace around the world. He and I have also worked together closer to home, protecting and restoring the precious waters of Lake Champlain--a glacially-carved jewel of New England that spans 120 northern miles between our neighboring states, half claimed on my side, half claimed on his. Twenty-four years of distinguished service in the United States Senate would be a legacy in and of itself for any man. Yet my colleague, Senator Moynihan, has done so much more. He served our country for a full twenty years in the Naval Reserve, with three years of active Navy duty at the end of the second World War. He has been a Fulbright Scholar and a professor of government at Harvard University. He has the unique distinction of serving in four successive Presidential administrations--the only person in American history to have ever done so. He represented our country as a distinguished Ambassador to India, a representative to the United Nations, and President of the U.N. Security Council. He has served on countless public and private sector commissions, committees, and panels, addressing issues from education to science to finance. Most recently, he chaired the Commission on Protecting and Reducing Government Secrecy--a key commission that examined our nation's secrecy laws and led to his authorship of ``Secrecy: The American Experience.'' This book joins the seventeen other works of literature that my friend and colleague has written or edited. What I will miss in many ways are those special times we would have when some Members would gather in the Senate dining room and a person would bring up a question of history; then we would receive a tutorial from Professor Moynihan. I see my good friend, the deputy Democratic leader, on the floor, the Senator from Nevada, smiling because he knows what those were like. I recall a couple times when we had so many Democrats and Republicans crowded into the Democratic part of the dining room to hear Senator Moynihan tie together something from the time of Franklin Roosevelt through Ronald Reagan, to the current time, and show what the connection was, somebody would have to call up to the Senate Chamber and explain, keep the rollcall going a bit longer; at least a quorum of the Senate has to hear the end of this story before we can come to vote. My good friend will be missed in the Senate, but I wish him well and envy him the time he will now have to spend with his lovely wife of 44 years, Liz, his three wonderful children, and his precious grandchildren. I join the entire Senate and this Nation in wishing Senator Moynihan well in his new life and commending him for his tireless dedication and service to the people of this country and our world.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today, as Chairman of the Senate Democratic Privacy Task Force, to speak about the privacy rights of all American citizens and the failure of this Congress to address the important issues threatening these fundamental rights of the American people. When he announced the creation of the Democratic Privacy Task Force earlier this year, the Senate Democratic Leader, Senator Tom Daschle, said, ``The issue of privacy touches virtually every American, often in extremely personal ways. Whether it is bank records or medical files or Internet activities, Americans have a right to expect that personal matters will be kept private.'' Yet, our laws have not kept pace with sweeping technological changes, putting at risk some of our most sensitive, private matters, which may be stored in computer databases that are available for sale to the highest bidder. As Senator Daschle stated, ``That is wrong, it's dangerous, and it has to stop.'' In leading the Democratic Privacy Task Force, I took this charge to heart and determined that an important first step in formulating workable and effective privacy safeguards was to make sure we understood the scope of the problem, both domestically and internationally, the status of industry self-regulatory efforts and the need for legislative solutions. At the announcement of the Privacy Task Force, I noted that we would focus on Internet, financial and medical records privacy, explaining that, ``It is important to come to grips with the erosion of our privacy rights before it becomes too late to get them back. We need to consider a variety of solutions, including technological one, and we need to look at the appropriate roles for private as well as public policy answers.'' To this end, the Senate Democratic Privacy Task Force sponsored several member meetings and briefings on administrative steps underway in the Clinton-Gore Administration to protect people's privacy, industry self-regulatory efforts, and other specific privacy issues. These meetings included a discussion with White House privacy experts Peter Swire, Chief Counselor for Privacy at the Office of Management and Budget, and Sally Katzen, Counselor to the Director at the Office of Management and Budget, on the status of multilateral negotiations on implementation of the EU Privacy Directive and the effects on U.S. business. At another meeting, officials from OMB and the Department of Treasury described financial privacy issues. Yet another meeting provided a public forum for industry executives representing various seal programs to describe the successes and pitfalls of internet privacy self-regulatory activities. These task force meetings focused on relevant and pressing issues affecting consumer privacy in this country, prompting many Democratic members to look at legislative solutions. Democrats have worked to enhance consumer privacy protections through the introduction of several legislative proposals--some with bipartisan support-- regarding medical, financial, and online privacy and identity theft. Democratic Senators who have sponsored privacy legislation this Congress include, Senators Boxer, Breaux, Bryan, Byrd, Cleland, Daschle, Dorgan, Dodd, Durbin, Edwards, Feinstein, Feingold, Harkin, Hollings, Inouye, Johnson, Kennedy, Kerry, Kohl, Lautenberg, Mikulski, Murray, Robb, Rockefeller, Sarbanes, Schumer, Torricelli, and Wellstone. Despite the best efforts of Democratic Senators to heed the public call for greater privacy protection and to bring privacy issues to the forefront of our legislative agenda, the Republican majority has failed to bring all sides and stakeholders together to craft workable and effective safeguards in any of the areas where privacy rights are most at risk, namely, for internet activities, medical records or financial information. During this Congress, for example, instead of focusing on ways to enhance privacy safeguards, the largest number of hearings (thirteen) and innumerable briefings held by the Senate Judiciary Committee or its subcommittees were directed at dissecting the manner in which the Department of Justice handled the investigation and prosecution of certain cases involving national security-related information and campaign financing. In the eyes of some members, the convictions obtained were proof of success, and in the eyes of others they were not. In our next Congress, it is my hope that we will not be distracted by such partisan pursuits, but that our time will be better spent on crafting privacy legislation that will make a real difference in the lives of every American. This is no easy task and will require both hard work and the commitment of member and staff time, but the next Congress should not shy away from this important issue, as has this one. The right to privacy is a personal and fundamental right protected by the Constitution of the United States. The digitalization of information and the explosion in the growth of computing and electronic networking offer tremendous potential benefits to the way Americans live, work, conduct commerce, and interact with their government. Yet, new technologies, new communications media, and new business services created with the best of intentions and highest of expectations challenge our ability to keep our lives to ourselves, and to live, work and think without having personal information about us collected and disseminated without our knowledge or consent. Indeed, personal information has become a valuable and widely traded commodity by both government and private sector entities, which may used the information for purposes entirely unrelated to its initial collection. Moreover, this information may be stolen, sold or mishandled and find its way into the wrong hands with the push of a button or click of a mouse. The American people are becoming more aware of this problem and are growing increasingly concerned with expanding encroachments on their personal privacy. American consumers are demanding better privacy protection and simply avoiding those markets perceived to pose the most risk to privacy interests. New technologies bring with them new opportunities, both for the businesses that develop and market them, and for consumers. It does not do anyone any good for consumers to hesitate to use any particular technology because they have concerns over privacy. That is why I believe that good privacy policies make good business policies. Consumer concerns can be a serious drag on the marketplace, and the Congress may help bolster consumer confidence by putting in place the appropriate legislative privacy safeguards. Let me outline some of the areas in which I have introduced privacy legislation and will continue to work for constructive solutions. While many emerging technologies challenge privacy protection, the greatest modern threat may be found online. Concerns over the privacy of online interaction easily dominate both the media and the public. The American public has a number of concerns when they go online. They worry whether their privacy will be protected, whether a damaging computer virus will attack their computer, whether a computer hacker will steal their personal information, adopt their identity and wreak havoc with their credit, whether their kids will meet a sexual predator and whether government or private sector entities are surreptitiously monitoring their online activities and communications. Unfortunately, these concerns are merited, and will continue to increase as online technology evolves. As the recent popularity of peer-to-peer sharing software, used in the Napster service, demonstrates, the way in which people use the personal computer is changing. Increasingly, personal information, such as diaries, finances, and schedules, will not be stored on hard drives, but instead on Internet-based files. Combined with the reality that a substantial amount of our information is being carried over the ``Wireless Web,'' access to our personal information--by private and by public snoopers-- is also growing exponentially. I proposed S. 854, the Electronic Rights for the 21st Century Act or the E-Rights bill, to address these concerns. This legislation would have modified the blanket exception in current law allowing electronic communications service providers to disclose a record or other information pertaining to a subscriber to any non-governmental entity for any purpose or use. Due to this exemption, ISPs and OSPs may sell their subscriber lists or track the online movements of their subscribers and sell that information--all without the subscribers' knowledge or consent. The E-RIGHTS Act would have cut back on this exemption by requiring ISPs to give subscribers an opportunity to prohibit disclosure of their personal information and enumerating the situation in which the information may be used or disclosed without subscriber approval. Serious consideration of this proposal would have provided a constructive basis for discussion of online privacy, a discussion that has been postponed until the next Congress. Enhanced privacy protection for confidential information held by bankrupt firms is necessary. Internet users are often promised basic privacy protection, only to have their expectations disappointed and their personal information put up for sale or disseminated in ways to which they never consented. Sadly, expectations and assumptions are not always safe online. For example, Toysmart.com, an online toy store, recently filed for bankruptcy and its databases and customer lists were put up for sale as part of the liquidation of the firm's assets. This personal customer information was put on the auction block even though Toysmart.com's privacy statement promised that ``[w]hen you register with toysmart.com, you can rest assured that your information will never be shared with a third party.'' The Toysmart.com situation exemplifies the need for our privacy laws to recognize the dangers online services pose and to keep pace with the Internet's increased usage and ever evolving technology. I introduced, along with Senators Torricelli, Kohl and Durbin, S. 2758, ``The Privacy Policy Enforcement in Bankruptcy Act of 2000'' specifically to address the problems created by Toysmart.com. Currently, the customer databases of failed Internet firms can be sold during bankruptcy, even in violation of the firm's stated privacy policy. This is unacceptable. The Act would prohibit the sale of personally identifiable information held by a failed business if the sale or disclosure of the personal information would violate the privacy policy of the debtor in effect when the personal information was collected, providing at least a modicum of protection for privacy rights online. It was my hope that the majority would support this legislation and effect swift passage so that we could at least make some progress in the protection of important privacy rights. Unfortunately the majority has chosen to ignore this legislation, along with other numerous privacy initiatives, with the consequence that is has gone nowhere. Enhanced privacy protection from unreasonable government searches and surveillance is another area that requires attention. Internet users are concerned about whether their privacy rights are threatened by prodding surveillance technology, as demonstrated by the public outcry over the ``Carnivore'' program. Carnivore is used by the Federal Bureau of Investigation to monitor the Internet activity of suspected criminals and is completely undetectable as it intercepts the suspect's email, web, and chat-room activity. Fortunately, the ``Carnivore'' program is capable of filtering protected or unnecessary information from that which should be intercepted. Nevertheless, concerns persist over the capabilities represented by this electronic surveillance technology and its potential invasiveness. The E-RIGHTS Act, S. 854, which I introduced in April, 1999, contains a number of provisions designed to update our fourth amendment rights in the face of technological advances and new surveillance technologies. This legislation enhances privacy protections in several areas by strengthening procedures for law enforcement access to private information stored on Internet networks, location information for cellular telephones, decryption assistance for encrypted intercepted communications and stored data, communications occurring over conference calls when the target of a wiretap order has dropped off the call, and information obtained under pen register and trap and trace orders. Once again, no action was taken on this legislation despite my continued efforts to urge the Judiciary Committee to take it up. Just as the widespread dissemination of personal information through online services deserves Congressional attention, the rapid expansion of the financial services industry requires affirmative action to protect private, financial information. In November 1999, President Clinton signed into law the landmark Financial Modernization Act of 1999, which updated our financial laws and opened up the financial services industry to become more competitive, both at home and abroad. I supported this legislation because I believed it would benefit businesses and consumers. It makes it easier for banking, securities, and insurance firms to consolidate their services, cut expenses and offer more products at a lower cost to all. But it also raises new concerns about our financial privacy. In the financial services industry, conglomerates are offering a wide variety of services, each of which requires a customer to provide financial, medical or other personal information. And nothing in the law prevents subsidiaries within the conglomerate from sharing this information for uses other than the use the customer thought he or she was providing it for. In fact, under current Federal law, a financial institution can sell, share, or publish savings account balances, certificates of deposit maturity dates and balances, stock and mutual fund purchases and sales, life insurance payouts and health insurance claims. As President Clinton recently warned: ``Although consumers put a great value on privacy of their financial records, our laws have not caught up to technological developments that make it possible and potentially profitable for companies to share financial data in new ways. Consumers who undergo physical exams to obtain insurance, for example, should not have to fear the information will be used to lower their credit card limits or deny them mortgages.'' I strongly agree. Senators Boxer, Bryan, Durbin, Feingold, Harkin, Mikulski and Robb, and I introduced the Financial Information Privacy and Security Act of 1999, S. 1924, to give this Congress the historic opportunity to provide for the privacy of every American's personal financial information in the wake of enactment of the financial modernization legislation. Our legislation was designed to protect the privacy of financial information by directing the Federal Reserve Board, Office of Thrift Supervision, Federal Deposit Insurance Corporation, Office of the Comptroller of the Currency, and the Securities and Exchange Commission to jointly promulgate rules requiring financial institutions they regulate to: (1) inform their customers what information is to be disclosed, and when, to whom and for what purposes the information is to be disclosed; (2) allow customers to review the information for accuracy; and (3) for new customers, obtain the customers' consent to disclosure, and for existing customers, give the customers a reasonable opportunity to object to disclosure. These financial institutions could use confidential customer information from other entities only if the entities had given their customers similar privacy protections. In addition, the bill would have provided individuals the civil right of action to enforce their financial privacy rights and to recover punitive damages, reasonable attorneys fees, and other litigation costs. Privacy rights must be enforceable in a court of law to be truly effective. I also joined with Senators Sarbanes, Bryan, Dodd, Durbin, Edwards, Feinstein, Harkin, Kerry and Robb to introduce the Financial Information Privacy Protection Act of 2000, S. 2513. This bill was the Clinton Administration's proposal to give consumers real control over the use and disclosure of their financial and health-related information held by financial institutions. I had hoped that these efforts would be just the beginning of this Congress's efforts to address the many financial privacy issues raised by ultra competitive marketplaces in the information age. It is clear that Congress needs to update our privacy laws in the evolving financial services industry to protect the personal, confidential financial information of all American citizens. Unfortunately, our Republican colleagues on the Senate Banking Committee did not feel the same way. This important financial privacy protection never saw the Senate floor, leaving confidential financial information disturbingly vulnerable. Just as troubling as the rejection of financial information protections is this Congress' failure to establish safeguards for the privacy of medical records. Undoubtably, maintaining the confidentiality of medical records is of the utmost importance. Medical records contain the most intimate, sensitive information about a person. For the past three Congresses, I have introduced comprehensive medical privacy legislation. In March 1999, I introduced S. 573, the Medical Information Privacy and Security Act, with Senators Kennedy, Daschle, Dorgan, Inouye, Johnson, Kerry and Wellstone, to establish the first comprehensive federal medical privacy law. This bill would close the existing gaps in federal privacy laws to ensure the protection of personally identifiable health information. Sadly, this legislation has gone nowhere, like all medical privacy legislation this Congress. In fact, Congress gave itself three years to establish medical records privacy legislation, but by the August 21, 1999 deadline, comprehensive medical records privacy rules did not exist. Instead the Department of Health and Human Services, as directed by Congress, drafted its own version. These placeholder privacy rules are better than no rules at all, but in the long run, Congress--not a federal agency--should set the basic standards on medical privacy, so that different administrations do not keep reducing the protections. I had hoped that the administrative rule-making process may finally prod Congress into action on a full-fledged policy, but as this Congress nears its conclusion, my optimism is waning. Even this past summer, when the Senate had an opportunity to protect the privacy of genetic information, it failed to do so. Senator Daschle introduced an amendment, which I supported, to the FY 2001 Labor HHS Appropriations bill that would have protected private genetic information from insurance companies and employers using such information to discriminate against individuals or raise insurance premiums. The Senate failed to adopt the amendment and failed, once again, to protect essential privacy rights. Congress has spent too long defining the problem instead of fixing it. We have not moved tangibly toward solutions in the six years since I convened the first hearings on technology and medical records in 1993. Since then a number of bills have been introduced--by myself and others--but we have been unable to get the attention of the majority to move this legislation. In 1996 we tried to include medical privacy protections in the Health Insurance Portability and Accountability Act of 1996, HIPAA. Majority Leader Bob Dole at the time agreed with us that ``a compromise of privacy'' that sends information about health and treatment to a national data bank, without a person's approval, would be something that none of us would accept. What we settled for in 1996 was a provision requiring Congress to enact medical privacy legislation by August 21 of 1999. If the deadline was not met, which it was not, the Administration then would be required to issue regulations by February 21, 2000, to protect the privacy of electronic records, but not paper- based medical records. This is the current, pitiful state of medical records privacy protection and it is clearly unacceptable. The inexcusable failure to provide comprehensive medical records privacy for three-years and the obstruction of the Financial Information Privacy Act of 1999 are just two examples of this Congress' failure to affirmatively and aggressively protect the fundamental privacy rights of American citizens. I regret that this Republican-led Congress has not chosen to act on even one of the multiple legislative proposals protecting consumer privacy during the 106th Congress. It is my hope that we put partisan politics aside in the 107th Congress and take a hard look at how we can and should protect the fundamental right of privacy in the 21st Century. As each day passes, new financial services, new online services, and new medical data bases are taking shape and institutional practices employing these new technologies are taking root. Unless we decide that privacy is worth protecting--and soon--the erosion of our privacy rights will become irreversible.

Mr. LEAHY

Mr. LEAHY. I thank the Chair. We should not use the bankruptcy law to shield purveyors of violence. We should close this loophole. Six defendants in the Nuremberg files web site case filed bankruptcy to avoid their debts under the law. This web site depicted murder weapons with dripping blood and advocated the killing of pro-choice physicians and public figures. Indeed, as some of these people were killed, their names were crossed out on the web site. Why should somebody who is sued for this kind of violence, purveying this kind of violence, be allowed to go to bankruptcy court and say, ``See ya, I'm home free''? Dr. Barnett Slepian, who was murdered 2 years ago in Buffalo on October 23, 1998, was on this heinous Internet site. After he was murdered, his name was crossed out. If I can make a personal note, when Dr. Slepian was murdered in upstate New York because his name was on the Nuremberg files web site, within days they determined the chief suspect was a man from Vermont. In fact, there is now an arrest warrant out for him. I mention that also not just because I am from Vermont, but when I checked the Internet file, I found that along with this man's name, my name was there. I was listed as one of the people who should be shot and killed. I take that a little bit personally, especially when the FBI are now looking for a man from my State who is suspected of shooting and killing one of the people whose name was on that list with mine. Dr. Slepian's name has been crossed out. Mine has been left on the list of those who should be shot and killed. Frankly, I find it a little bit difficult to think, when these people are sued for this kind of thing, and judgments are rendered against them, that they can just go into bankruptcy court and say: See ya. So nobody will think that there is any kind of conflict of interest, I am not part of any suit against them. I am not going to do that. But for those who have, they ought to at least get their settlement or other judgment, win or lose, in the courts. But we should not let anybody walk into our Federal bankruptcy court--because of a huge loophole that this Congress does not have the guts to close--and just walk home scot-free. It is hypocrisy at the worst, when we voted 80-17 in this body to close the loophole, and when all but one Member of the other body voted to have an open conference on this, that both bodies ignored that. That is hypocrisy. It is wrong. If anybody thinks they do not know the reason why some people in this country look at the Congress and ask what is going on, there is one of your reasons right there. Maybe we ought to look at some of the elections this year and say: Our people are saying they are fed up with this. In fact, this suspect is still at large, and with a reward of $1 million for his arrest. You tell me--anybody in this body--you tell me--anybody who is listening to this debate--that somehow it is fair to let people such as that escape because of a loophole that we do not have the guts to close in our bankruptcy law. Clearly, the perpetrators of violence and illegal intimidation should not be able to abuse the bankruptcy laws to avoid responsibility for their actions. Bankruptcy should not be used to avoid the legal consequence of clinic violence, harassment, and intimidation. If we do not want to do something against violence, apparently we do not want to do anything in bankruptcy to offend those who have multimillion-dollar estates in the right States. In the Senate, we passed, by a vote of 76-22, an amendment to create a $100,000 nationwide cap on any homestead exemption. Again, we could say we are only concerned about the little people. We are concerned about people paying the debt. All people--we want everybody to pay their bills. Whether they are rich or poor, we want them to pay their bills. We are equal to everybody. Of course, that would have eliminated one of the most flagrant abuses in bankruptcy laws--debtors moving to expensive homes in a handful of States with unlimited exemptions, declaring bankruptcy, and then keeping their millions of dollars in the homes that they have in those States. Senator Kohl, along with Senator Sessions, put together an amendment that the Senate overwhelmingly adopted. I am beginning to see why everybody voted for it. Some must have gotten word that it would be gutted as soon as it got off the floor, gutted behind closed doors, where nobody votes and nobody's fingerprints are on them. Even to talk about: OK, you want to raise it to $100,000? Raise it to $500,000. Then all of a sudden we find it is gutted. It is going to build a lot of homes in Texas and Florida. It is an amazing coincidence those two States are going to have the advantage of not having that provision. If you want to declare bankruptcy, just put your millions of dollars in a house in Texas or Florida, and under this you are safe. Again, the Administration made it crystal clear in four letters to congressional leaders that the President would not sign any bankruptcy reform bill that did not end the abuse of unlimited homestead exemptions. In fact, the Republican leadership reached an agreement with Democrats and the Administration to include a nationwide $500,000 cap on homestead exemptions in bankruptcy, but then the majority changed its mind. Why? I do not understand why the majority then reverted to a flawed homestead provision in this conference report. As early as May 12, 2000, OMB Director Jack Lew made clear the Administration's position. Director Lew wrote to Congressional leaders: It is fundamentally unfair to ask low- and moderate-income debtors to devote future income to repay the debts that they can, while leaving loopholes that allow the wealthy to shield income and assets from their creditors. High or unlimited homestead exemptions allow people with expensive homes to avoid their responsibility to repay a significant portion of their debts. On June 9, 2000, the President, himself, wrote to congressional leaders about the need to end abusive homestead exemptions in any final bankruptcy reform bill. President Clinton wrote: I am concerned, for example, that the final bill may not adequately address the problem of wealthy debtors who use overly broad homestead exemptions to shield assets from their creditors. Again, a few weeks later on June 29th, the President reiterated his position by writing to congressional leaders: The proposed limitation on State homestead exemptions will address, for the first time, those who move their residence shortly before bankruptcy to take advantage of large State exemptions to shield assets from their creditors. But the proposal does not address a more fundamental concern: unlimited homestead exemptions that allow wealthy debtors in some States to continue to live in lavish homes. In light of how other provisions designed to stem abuse will affect moderate-income debtors, it is unfair to leave this loophole for the wealthy in place. A few weeks ago, it appeared the majority was finally beginning to understand and accept the President's commonsense approach by agreeing to a federal cap on homestead exemptions. On September 22, Gene Sperling, National Economic Advisor to the President, wrote to Majority Leader Lott: The President appreciates your significant movement on the homestead issue. We realize that the offer goes against strongly held views of some members of your caucus, and we are grateful for the effort. While we had proposed placing a cap of $250,000 on the size of state homestead exemptions, we could accept a homestead cap of $500,000, were we to reach agreement on other issues. It does not take a rocket scientist to understand that the President would veto a bankruptcy conference report that did not adequately address the discharge of penalties for violence against family planning clinics and the problem of wealthy debtors who use overly broad homestead exemptions to shield assets from their creditors. Four times the Administration wrote to congressional leaders about the need to address these two areas of bankruptcy abuse. Four times. But this conference report fails adequately to address either of these two abuses of the current bankruptcy system. Unfortunately, the majority is repeating the same mistakes that killed bankruptcy reform in the last Congress. Instead of keeping on the track of bipartisan compromise that was headed toward enacting a fair and balanced bill, the majority veered off course on behalf of special interests. The result is an unfair and unbalanced bankruptcy conference report. Fortunately, bankruptcy filings have been declining for the last couple of years. In 1999, the per capita personal bankruptcy rate dropped by more than 9 percent. In the 2000 fiscal year, the decline continued. According to the Administrative Office of the U.S. Courts, bankruptcy filings for fiscal year 2000 are down 6.8 percent for personal filings, down 6.6 percent for business filings and down 9.2 percent for chapter 7 filings. Over the last two years, Chapter 7 filings have dropped 15 percent and personal bankruptcy filings overall have declined by 12 percent. In my home state of Vermont, the recent decline in personal bankruptcy filings is even more dramatic. In 1999 consumer bankruptcy filings in the District of Vermont dropped 11 percent compared to 1998 and fell an additional 20 percent so far this year as compared to last year that is approximately a one-third decrease over the last two years. Clearly, the justification that we must pass this flawed measure now because of a bankruptcy crisis rings hollow given the latest bankruptcy filing facts across the nation. There is no need to rush a bad bill into law. On June 9, 2000, President Clinton wrote to congressional leaders that: I have long made clear my support for legislation that would encourage responsibility and reduce abuses of the bankruptcy system on the part of debtors and creditors alike. We also must ensure that a reasonable fresh start is available for those who turn to bankruptcy as a last resort when facing divorce, unemployment, illness, and uninsured medical expenses. Bankruptcy reform legislation should strike the right balance. Unfortunately, this conference report fails to strike that right balance. The President will and should veto it. The administration has helped to make the economy a lot better. We can take a moment. Let us wait until next year and pass a good bill. Let us take care of those problems that are in there, but let's not allow the haters, the crime inciters, the murderers, and the firebombers to go free. For Pete's sake, let's not let somebody who has amassed millions of dollars of assets, and even more millions of debt, to say: I will go buy a house in Texas or Florida because then I can escape my creditors. Mr. President, how much time does the Senator from Vermont have remaining?

Mr. LEAHY. I thank my friend from Minnesota. I appreciate his pointing this out. I just want students who might look at this afterward and wonder what bankruptcy has to do with embassies to go back and read what the distinguished Senator from Minnesota says, which is, of course, that it has absolutely nothing to do with embassies. It is a parliamentary trick to get a piece of special interest legislation through. It is unfortunate this kind of trick had to be carried out because the Republican majority could have worked with the President, they could have worked with the Democrats, to pass bankruptcy legislation that is more balanced and more fair. We did this 2 or 3 years ago. I remember Senator Grassley, Senator Durbin, others, worked together and we passed a piece of bankruptcy legislation that was here in the Senate. It was strongly backed by both Democrats and Republicans. I think we passed it by 97 or 98 votes. There was only one vote against it. It was overwhelmingly passed. It shows what happens when Republicans and Democrats work together. Mr. President, I am disappointed that the majority refuses to work with the President and us to pass bankruptcy legislation that is better balanced and more fair. Despite the President's repeated attempts to offer reasonable compromises for the last six months, the majority is continuing to push this unfair and unbalanced bill. It appears that the same mistakes that killed a chance for passage of the bipartisan balanced bankruptcy reform 2 years ago, in the last Congress, are being repeated in this Congress. We should work together to finish the work of the 106th Congress. Instead, there seems to be this effort to pass flawed legislation that virtually guarantees a Presidential veto. I had hoped we would have acted on the administration's four letters on the resolution of key issues needed for the President to sign a fair and balanced bill, that we could have at least met to discuss them so we could have a bill the President could sign. I am the ranking Democrat currently on the Senate Judiciary Committee. I was not a conferee of the conference report. Instead, the Republican leadership created a sham conference to create and file this flawed bankruptcy bill to make sure the Democrats would not have any say over it. It might be a nice exercise. It might look good in fundraising letters. But when you have a Democratic President, it is obvious we are spending hundreds of thousands of dollars of time, effort, and taxpayer money up here to pass something that is not going to be signed into law. It may help for the next fundraiser, but it does not help bringing about the kind of bankruptcy reform we actually need in this country. The Senate had requested a conference in August 1999 on legislation to enhance security of U.S. missions and the security of personnel overseas and to authorize appropriations for the State Department, what the distinguished Senator from Minnesota was just talking about. That did not proceed. On October 11, 2000, the House appointed conferees not from the committee with jurisdiction over any embassy security issues, but from the House Judiciary Committee. Then a few hours later, out of nowhere, the leadership filed a conference report that strikes every aspect of the underlying legislation on which the two Houses had gone to conference and put in this wholly unrelated matter with reference to a bankruptcy bill that had not even passed. It had only been introduced that day. There was no debate, nothing. It is like: Whoops, open the closet door, let the special interests out, slam it down, and please pass it. We Americans are great at telling other countries how to run democracies. We each tell them how to run elections. I hope in the last couple of years those countries that get lectures from us about how to run their democracies have not been watching how matters have slipped before the U.S. Senate. Matters of great consequence are slipped before the U.S. Senate without any votes, with the hope they will slip through in the dark of night. I hope those countries, when we tell them how to run elections, are not watching--I don't know--Presidential elections or anything like that in our country. I look at Canada. I come from the State of Vermont. I think of Canada as that giant to the north. I look at Canada. The whole country votes with paper ballots. Two hours later, they have them all hand counted with no mistakes and the country accepts the result. I hope we won't lecture them as we often do. But I hope we will not tell people this is the way to pass legislation. I hope we will not tell countries how to do it based on this bill. It is an autocratic, behind-closed-doors, undemocratic process, and it makes a mockery of the legislative process. This is unfortunate, since both Democrats and the administration have been trying to negotiate in good faith with the Republicans to achieve fair and balanced bankruptcy legislation. Everyone in this Chamber knows we have to have some bankruptcy reform legislation. But it cannot be one sided to any one special interest, it has to be balanced. There was not even a meeting of the sham conference committee, as far as I can tell. And the House had passed--talk about a CYA; that means ``carefully you're allowed,''--but, in an effort to make sure nobody questions them about this sham process that has slipped through behind closed doors, the House passed a 398-1 vote to instruct conferees to insist on a public meeting of the conference with open debate. By God, we are for government in the sunshine, 398-to-1. Are we not virtuous people in the other body? And the press releases went out. Of course, 2 hours later, the sham conference report was filed, the one that was done behind closed doors, not done in the open. But everybody could say: Why, I voted to have that open, 398-1. The bipartisan informal process that produced many improvements to the Senate-passed bill with respect to its bankruptcy provisions was for nought in the end. We worked in an informal bipartisan conference and made these improvements. We dropped the controversial nonrelevant amendments on the 3-year minimum wage increase, regressive tax cuts, mandatory minimum sentences for certain drug offenses, and private school vouchers. We added a new provision to include a $6,000 floor in the means test to protect low-income debtors. We added a new provision to take into account up to 10 percent of the debtor's administrative expenses in the means test calculations. We added a new provision to allow for adjustments of up to 5 percent from the IRS standards for reasonable food and clothing expenses in the means test calculations to take into account the regional difference in costs. We struck the provision that exempted creditors with small claims from sanctions against creditors who file abusive motions, and, thus, we made all creditors subject to these sanctions for coercive behavior. We expanded the eligibility for the waiver of filing fees to debtors with income less than 150 percent of the poverty line. All of these things we did with Democrats and Republicans working together, each side giving some things, each side adding things. We had a better bill. We even added a new temporary bankruptcy judgeship for the following courts: the District of Delaware, the Southern District of Georgia, the Eastern District of North Carolina, and the District of Puerto Rico. Finally, we added privacy protections for the financial information of debtors to protect patient medical records in bankruptcy health care businesses, to destroy all debtors' tax returns after 3 years of the close of the case, to provide Congress with the authority to add appropriate privacy safeguards to protect electronic bankruptcy data, and to add safeguards for the collection of bankruptcy data. That was a good bipartisan start with Republicans and Democrats working together. We could have a fair and balanced final bankruptcy reform bill. It was something people on all sides of the issue were applauding. They were saying: Finally, Republicans and Democrats are working together. Do you know what happened? Some in the Republican majority found this was going on and said: We can't have it; we can't have that balance; it has to be one sided; it has to be our way or no way, and they stopped those meetings. We actually resolved most of the issues between the two bills. There were two key issues outstanding. We could have brought it back for a vote. One was discharge of penalties for violence against family planning clinics, medical clinics, and the other was a problem with wealthy debtors who used overly broad homestead exemptions to shield assets from creditors by putting money into multimillion-dollar houses, declaring bankruptcy, and thumbing their nose at their creditors. Everything I heard told me we could have reached bipartisan agreement on these matters, too. Now this backdoor conference report does not adequately address either of these two abuses currently in the bankruptcy system. The Senate passed the Schumer amendment to prevent the discharge of penalties for violence against family planning clinics. This was not a partisan vote. It was 80-17. People said, no matter how you feel about abortion, no matter how you feel about medical matters or family planning, we are not going to condone violence against legitimate medical clinics. Does the conference report reflect this? No. There is not a single provision to end abusive bankruptcy filings used to avoid the legal consequences of violence, vandalism, and harassment to deny access to legal health services. As a result, we could have all kinds of clinic violence. If you are sued for it, just declare bankruptcy and get away with it. That is wrong. The administration made it crystal clear in four letters to congressional leaders that an end to this abuse of the current bankruptcy system was needed to gain the President's signature. Four times they said they were not going to allow people to firebomb clinics, harass people, assault people, and if they are sued, to simply say: We will declare bankruptcy. Four times. The OMB Director Jack Lew wrote to Congressional leaders on May 12, 2000: The abuses of the bankruptcy system must be stemmed, including abuse by those who would use bankruptcy to avoid penalties for violence against family planning clinics. The President wrote congressional leaders on June 9: I am deeply disturbed that some in Congress still object to a reasonable provision that would end demonstrated abuse of the bankruptcy system. We cannot tolerate abusive bankruptcy filings to avoid the legal consequences of violence, vandalism, and harassment used to deny access to legal health services. An effective approach, such as the one offered by Senator Schumer's amendment, should be included in the final legislation. A few weeks later the President again wrote to congressional leaders to reiterate his position saying: I cannot support a bankruptcy bill that fails to require accountability and responsibility from those who use violence, vandalism, intimidation, and harassment to deny others access to legal health services. . . . The final legislation must include an effective approach to this problem, such as the one contained in the amendment by Senator Schumer, which passed the Senate by a vote of 80-17. This is a no-brainer. We already debated it and voted on it 80-17. We have a hard time getting an 80-17 vote here to support the bean soup in the Senate cafeteria. Gene Sperling, national economic adviser to the President, in his letter of September 22, made it clear that President Clinton would veto any bankruptcy reform legislation that did not end this abuse of bankruptcy law. He said: Our society should not tolerate those who develop a strategy to first threaten and intimidate doctors, health care professionals, or their patients and then turn to the bankruptcy courts to avoid legal liability for their actions. I reiterate that the President will not sign any legislation that does not contain effective means to ensure accountability and responsibility of perpetrators of clinic violence. Mr. President, how much time is still available to the Senator from Vermont?

Mr. LEAHY. This was not a case where there was a concern the embassies were all going bankrupt? The embassy in London or in Moscow or, heaven forbid, in Dublin, might be in bankruptcy court in the Southern District of New York? That is not the case?

Mr. LEAHY. I yield on my time.

Mr. LEAHY. I thank the Chair. I like to see him back. I wish we were not still in session, but I suspect the Presiding Officer probably had things he might have planned to be doing during this time, as did my distinguished friend from Iowa. My distinguished friend from Iowa and I have been here for numerous lame duck sessions. After 26 years here, I have yet to see what good was ever accomplished in one of these lame duck sessions. I think the statement made by my distinguished friend from Minnesota just now emphasizes the kind of mischief that sometimes happens in lame duck sessions, when people want to leave, yet we have, as in this case, a bankruptcy bill that none of the Democrats had a chance, really, to do much about. It gets put in--what was it, I ask my friend from Minnesota, a bill on embassies? Mr. WELLSTONE addressed the Chair.

Mr. LEAHY. Mr. President, parliamentary inquiry: How much time is available to the Senator from Vermont?

Mr. LEAHY

Mr. LEAHY. I congratulate Senator Grassley, the Chairman of the Administrative Oversight Subcommittee and my good friend Senator Hatch, the Chairman of the Judiciary Committee for their work on this measure. They doggedly pursued this passage here today. They showed leadership and we made some progress. I only wish we could have completed our work on this bill and resolved the remaining important issues in a way that I could have supported and the President could sign.

Mr. LEAHY

Mr. LEAHY. Mr. President, over the past decade DNA analysis has emerged as the most reliable forensic technique for identifying criminals when biological material is left at a crime scene. Because of its scientific precision, DNA testing can, in some cases, conclusively establish a suspect's guilt or innocence. In other cases, DNA testing may not conclusively establish guilt or innocence, but may have significant probative value for investigators. While DNA's power to root out the truth has been a boon to law enforcement, it has also been the salvation of law enforcement's mistakes--those who for one reason or another, are prosecuted and convicted of crimes that they did not commit. In more than 75 cases in the United States and Canada, DNA evidence has led to the exoneration of innocent men and women who were wrongfully convicted. This number includes at least 9 individuals sentenced to death, some of whom came within days of being executed. In more than a dozen cases, moreover, post-conviction DNA testing that has exonerated an innocent person has also enhanced public safety by providing evidence that led to the apprehension of the real perpetrator. Clearly, DNA testing is critical to the effective administration of justice in 21st century America. As DNA testing has moved to the front lines of the war on crime, our Nation's forensic labs have experienced a significant increase in their caseloads, both in number and complexity. In the six years since Congress established the Combined DNA Index System. States have been busy collecting DNA samples from convicted offenders for analysis and indexing. Increased Federal funding for State and local law enforcement programs has resulted in more and better trained police officers who are collecting immense amounts of evidence that can and should be subjected to crime laboratory analysis. Funding has simply not kept pace with this increasing demand, and State crime laboratories are now seriously bottlenecked. Backlogs have impeded the use of new technologies like DNA testing in solving cases without suspects--and reexamining cases in which there are strong claims of innocence --as laboratories are required to give priority status to those cases in which a suspect is known. In some parts of the country, investigators must wait several months--and sometimes more than a year--to get DNA test results from rape and other violent crime evidence. Solely for lack of funding, critical evidence remains untested while rapists and killers remain at large, victims continue to anguish, and statutes of limitation on prosecution expire. Let me describe the situation in my home State. The Vermont Forensics Laboratory is currently operating in an old Vermont State Hospital building in Waterbury, Vermont. Though it is proudly one of only two fully-accredited forensics labs in New England, it is trying to do 21st century science in a 1940's building. The lab has very limited space and no central climate control--both essential conditions for precise forensic science. It also has a large storage freezer full of untested DNA evidence from unsolved cases, for which there are no other leads besides the untested evidence. The evidence is not being processed because the lab does not have the space, equipment or manpower. I commend the scientists and lab personnel at the Vermont Forensics Laboratory for the fine work they do everyday under difficult circumstances. But the people of the State of Vermont deserve better. This is our chance to provide them with the resources they deserve. Passage of the DNA Analysis Backlog Elimination Act of 2000, H.R. 4640, will give States like Vermont the help they desperately need to reduce the backlog of untested crime scene evidence from unsolved crimes and untested convicted offender samples. It allocates $170 million over the next four years for grants to States to increase the capacity of their forensic laboratories and carry out DNA analyses of backlogged evidence. Senator Schumer and I have pressed for increased appropriations for these purposes. This authorization bill is a step in the right direction. In addition to the problem of unanalyzed crime scene and convicted offender evidence, there is an urgent need to address the gap in coverage of the national DNA index that has left out Federal, military, and District of Columbia offenders. The inability to include these offenders in the national index has seriously frustrated efforts to solve crimes and prevent further crimes. The bill that the Senate passes today eliminates the gap in coverage by authorizing the Bureau of Prisons and other Federal agencies to collect, analyze, and index DNA samples from individuals who have been convicted of Federal offenses of a violent or sexual nature. The bill also authorizes needed funding for these purposes, which Senator Schumer and I have been working to include in this years' appropriations bills. While I support H.R. 4640, I believe it falls short in one critical respect: It fails to address the urgent need to increase access to DNA testing for prisoners who were convicted before this truth-seeking technology became widely available. Prosecutors and law enforcement officers across the country use DNA testing to prove guilt, and rightly so. By the same token, however, it should be used to do what is equally scientifically reliable to do--prove innocence. I was greatly heartened earlier this month when the Governor of Virginia finally pardoned Earl Washington, after new DNA tests confirmed what earlier DNA tests had shown: He was the wrong guy. He was the 88th wrong guy discovered on death row since the reinstatement of capital punishment. His case only goes to show that we cannot sit back and assume that prosecutors and courts will do the right thing when it comes to DNA. It took Earl Washington years to convince prosecutors to do the very simple tests that would prove his innocence, and more time still to win a pardon. And he is still in prison today. States like Virginia continue to stonewall on requests for DNA testing. They continue to hide behind time limits and procedural default rules to deny prisoners the right to present DNA test results in court. They are still destroying the DNA evidence that could set innocent people free. These sorts of practices must stop. We should not pass up the promise of truth and justice for both sides of our adversarial system that DNA evidence offers. By passing H.R. 4640, we substantially increase funding to increase the capacity of State and local forensic labs to carry out DNA analysis of crime scene evidence and convicted offender samples. That is an appropriate use of Federal funds. But we at least ought to require that this truth-seeking technology be made available to both sides. I proposed a modest Sense of Congress amendment to H.R. 4640, which the Senate is passing today. It describes how DNA testing can and has resulted in the post-conviction exoneration of scores of innocent men and women, including some under sentence of death, and expresses the sense of Congress that we should condition forensic science-related grants to a State or State forensic facility on the State's agreement to ensure post-conviction DNA testing in appropriate cases. Because post-conviction DNA testing has shown that innocent people are sentenced to death in this country with alarming frequency, and because the most common constitutional error in capital cases is egregiously incompetent defense lawyering, my amendment also calls on Congress to work with the States to improve the quality of legal representation in capital cases through the establishment of counsel standards. I introduced legislation in this Congress that would have accomplished both of these things. The Innocence Protection Act of 2000 contains meaningful reforms that I believe could save innocent lives. As the 106th Congress winds down, we have 14 cosponsors in the Senate, and about 80 in the House. We have Democratic and Republican cosponsors, supporters of the death penalty and opponents. President Clinton, Vice President Gore, and Attorney General Reno have all expressed support for the bill. Tragically, real reform of our nation's capital punishment system foundered on the shoals of election-year politics. But with the Sense of Congress provision that we pass today, at least we have agreed on a blueprint for effective reform legislation in the 107th Congress. The law enforcement issues addressed by H.R. 4640 are important, but as FBI Director Louis Freeh has acknowledged, ``Post-conviction relief is an equally important issue that requires a solution.'' In a recent letter, Director Freeh pledged to work with me on post-conviction relief issues in the next Congress and I look forward to working with the Director. Each day that DNA evidence goes uncollected and untested, solvable crimes remain unsolved, and people across the country are needlessly victimized. I hope that the House will move quickly to pass H.R. 4640 as amended before it winds up its work for the year.

Mr. LEAHY

Mr. LEAHY. Mr. President, The Presidential Threat Protection Act, H.R. 3048, is a high priority for the Secret Service and the Service's respected Director, Brian Stafford, and I am pleased that this legislation is passing the Senate today, along with legislation that Senators Thurmond, Hatch and I have crafted to establish task forces, under the direction of the U.S. Marshals Service, to apprehend fugitives. H.R. 3048 would expand or clarify the Secret Service's authority in four ways. First, the bill would amend current law to make clear it is a federal crime, which the Secret Service is authorized to investigate, to threaten any current or former President or their immediate family, even if the person is not currently receiving Secret Service protection and including those people who have declined continued protection, such as former Presidents, or have not yet received protection, such as major Presidential and Vice-Presidential candidates and their families. Second, the bill would incorporate in statute certain authority, which is currently embodied in a classified Executive Order, PDD 62, clarifying that the Secret Service is authorized to coordinate, design, and implement security operations for events deemed of national importance by the President ``or the President's designee.'' Third, the bill would establish a ``National Threat Assessment Center'' within the Secret Service to provide training to State, local and other Federal law enforcement agencies on threat assessments and public safety responsibilities. Finally, the bill authorizes the Secretary of the Treasury to issue administrative subpoenas for investigations of ``imminent'' threats made against an individual whom the Service is authorized to protect. The Secret Service has requested that the Congress grant this administrative subpoena authority to expedite investigation procedures particularly in situations where an individual has made threats against the President and is en route to exercise those threats. ``Administrative subpoena'' is the term generally used to refer to a demand for documents or testimony by an investigative entity or regulatory agency that is empowered to issue the subpoena independently and without the approval of any grand jury, court or other judicial entity. I am generally skeptical of administrative subpoena power. Administrative subpoenas avoid the strict grand jury secrecy rules and the documents provided in response to such subpoenas are, therefore, subject to broader dissemination. Moreover, since investigative agents usually issue such subpoenas directly, without review by a judicial officer or even a prosecutor, fewer ``checks'' are in place to ensure the subpoena is issued with good cause and not merely as a fishing expedition. Current law already provides for administrative subpoena authority in certain types of cases. Specifically, the FBI has been granted authority granted to issue administrative subpoenas to obtain information that may be relevant in investigations of child abuse, child sexual exploitation, or Federal health care offenses. See 18 U.S.C. Sec. Sec. 3486 and 3486A. In child abuse and child exploitation cases, the FBI is authorized to use an administrative subpoena to require an Internet Service Provider to disclose the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, length of service of a subscriber to or customer of the service and the types of services used by the subscriber or customer. 18 U.S.C. Sec. 3486A(a)(1)(A). Pursuant to those provisions in current law, the Attorney General is authorized to compel compliance with the administrative subpoena in federal court and any failure to obey is punishable as contempt of the court. Current law also provides blanket immunity from civil liability to any person who complies with the administrative subpoena and produces documents, without disclosing that production to the customer to whom the documents pertain. I have over the years resisted persistent law enforcement requests for additional administrative subpoena authority. The House bill grants the request of the Secret Service for new, limited administrative subpoena authority and simultaneously imposes the following new procedural safeguards on both the FBI's current administrative subpoena authority and the Secret Service's new authority: The new administrative subpoena authority in threat cases may only be exercised by the Secretary of the Treasury upon determination of the Director of the Secret Service that the threat is ``imminent,'' and the Secret Service must notify the Attorney General of the issuance of each subpoena. I should note that these requirements will help ensure that administrative subpoenas will be used in only the most significant Secret Service investigations. In most cases, for which the threshold showing of ``imminent'' threat cannot be established, the Secret Service will not be authorized to use administrative subpoenas and will instead simply go to the local U.S. Attorney's office to get a grand jury subpoena, as is current practice and law. The bill would allow a person who receives an administrative subpoena to contest the subpoena in court by petitioning a federal judge to modify or set aside the subpoena and any order of nondisclosure of the production. The bill would authorize a court to order nondisclosure of the administrative subpoena to for up to 90 days (and up to a 90 day extension) upon a showing that disclosure would adversely affect the investigation in enumerated ways. Upon written demand, the agency must return the subpoenaed records or things if no case or proceedings arise from the production of records ``within a reasonable time.'' The administrative subpoena may not require production in less than 24 hours after service so agencies may have to wait for at least a day before demanding production. As originally passed by the House of Representatives, H.R. 3048 provided that violation of the administrative subpoena is punishable by fine or up to five years' imprisonment. The Senate eliminated this provision in an amendment that passed the Senate on October 13, 2000 and I am glad to see that the House has approved that Senate amendment in the version of this bill returned by the House and considered by the Senate today. This penalty provision in the House version of the bill was both unnecessary and excessive since current law already provides that failure to comply with the subpoena may be punished as a contempt of court--which is either civil or criminal. See 18 U.S.C. Sec. 3486(c). Under current law, the general term of imprisonment for some forms of criminal contempt is up to six months. See, e.g., 18 U.S.C. Sec. 402. The House has approved the part of the Hatch-Leahy-Thurmond amendment to H.R. 3048 requiring the Attorney General to report for the next three years to the Judiciary Committees of both the House and Senate on the following information about the use of administrative subpoenas, including information on the number of such subpoenas issued and by which agency. In this way, the Congress will be able to monitor the use by federal law enforcement officials within the Justice and Treasury Departments of administrative subpoenas. Finally, the House has approved the part of the Hatch-Leahy-Thurmond amendment to H.R. 3048 requiring the Attorney General to provide a report on the use of administrative subpoenas by executive branch agencies. I am not aware of any recent effort to compile an overview or inventory of the current administrative subpoena powers in the Federal government, but understand that the United States Code contains more then 700 references to subpoena powers, many subject to various forms of administrative delegation. In addition, there are various commissions and other independent and quasi-judicial components of the federal government, which are also vested with subpoena powers not requiring grand jury or federal court involvement. In short, a variety of administrative subpoena authorities exist in multiple forms in multiple agencies, without uniform rules on scope, enforcement, or other due process safeguards. It is time for the Congress to review this situation, and this report by the Attorney General will be a good start. On the fugitive apprehension task forces, the House has approved in the version of H.R. 3048, which the Senate considers today, parts of the Thurmond-Biden-Leahy amendment that passed the Senate on October 13, 2000. As a former prosecutor, I am well aware that fugitives from justice are an important problem and that their capture is an essential function of law enforcement. According to the FBI, nearly 550,000 people are currently fugitives from justice on federal, state, and local felony charges combined. This means that there are almost as many fugitive felons as there are citizens residing in my home state of Vermont. The fact that we have more than one half million fugitives from justice, a significant portion of whom are convicted felons in violation of probation or parole, who have been able to flaunt court order and avoid arrest, breeds disrespect for our laws and poses undeniable risks to the safety of our citizens. Our Federal law enforcement agencies should be commended for the job they have been doing to date on capturing Federal fugitives and helping the States and local communities bring their fugitives to justice. The U.S. Marshals Service, our oldest law enforcement agency, has arrested over 120,000 Federal, State and local fugitives in the past four years, including more Federal fugitives than all the other Federal agencies combined. In prior years, the Marshals Service spearheaded special fugitive apprehension task forces, called FIST Operations, that targeted fugitives in particular areas and was singularly successful in arresting over 34,000 fugitive felons. Similarly, the FBI has established twenty-four Safe Streets Task Forces exclusively focused on apprehending fugitives in cities around the country. Over the period of 1995 to 1999, the FBI's efforts have resulted in the arrest of a total of 65,359 state fugitives. Nevertheless, the number of outstanding fugitives is too large. The House has approved in the version of H.R. 3048, which the Senate considers today the Hatch-Leahy-Thurmond amendment authorizing the Attorney General to establish fugitive task forces. This amendment would authorize $40,000,000 over 3 years for the Attorney General to establish multi-agency task forces, which will be coordinated by the Director of the Marshals Service, in consultation with the Secretary of the Treasury and the States, so that the Secret Service, BATF, the FBI and the States are able to participate in the Task Forces to find their fugitives. The Hatch-Leahy-Thurmond amendment to H.R. 3048 will help law enforcement with increased resources for regional fugitive apprehension task forces to bring to justice both federal and state fugitives who, by their conduct, have demonstrated a lack of respect for our nation's criminal justice system. Regarding the Secret Service protective function privilege, while passage of this legislation will assist the Secret Service in fulfilling its critical mission, this Congress is unfortunately coming to a close without addressing another significant challenge to the Secret Service's ability to fulfill its vital mission of protecting the life and safety of the President and other important persons. I refer to the misguided and unfortunately successful litigation of Special Counsel Kenneth Starr to compel Secret Service agents to answer questions about what they may have observed or overheard while protecting the life of the President. As a result of Mr. Starr's zealous efforts, the courts refused to recognize a protective function privilege and required that at least seven Secret Service officers appear before a federal grand jury to respond to questions regarding President Clinton, and others. In re Grand Jury Proceedings, 1998 W.L. 272884 (May 22, 1998 D.C.), affirmed 1998 WL 370584 (July 7, 1998 D.C. Cir)(per curiam). These recent court decisions, which refused to recognize a protective function privilege, could have a devastating impact upon the Secret Service's ability to provide effective protection. The Special Counsel and the courts ignored the voices of experience--former Presidents, Secret Service Directors, and others--who warned of the potentially deadly consequences. The courts disregarded the lessons of history. We cannot afford to be so cavalier; the stakes are just too high. In order to address this problem, I introduced the Secret Service Protective Privilege Act, S. 1360, on July 13, 1999, to establish a Secret Service protective function privilege so Secret Service agents will not be put in the position of revealing private information about protected officials as Special Prosecutor Kenneth Starr compelled the Secret Service to do with respect to President Clinton. Unfortunately, the Senate Judiciary Committee took no action on this legislation in this Congress. Few national interests are more compelling than protecting the life of the President of the United States. The Supreme Court has said that the Nation has ``an overwhelming interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence.'' Watts v. United States, 394 U.S. 705, 707 (1969). What is at stake is not merely the safety of one person: it is the ability of the Executive Branch to function in an effective and orderly fashion, and the capacity of the United States to respond to threats and crises. Think of the shock waves that rocked the world in November 1963 when President Kennedy was assassinated. The assassination of a President has international repercussions and threatens the security and future of the entire Nation. The threat to our national security and to our democracy extends beyond the life of the President to those in direct line of the Office of the President--the Vice President, the President-elect, and the Vice President elect. By Act of Congress, these officials are required to accept the protection of the Secret Service--they may not turn it down. This statutory mandate reflects the critical importance that Congress has attached to the physical safety of these officials. Congress has also charged the Secret Service with responsibility for protecting visiting heads of foreign states and foreign governments. The assassination of a foreign head of state on American soil could be catastrophic from a foreign relations standpoint and could seriously threaten national security. The bill I introduced, S. 1360, would enhance the Secret Service's ability to protect these officials, and the nation, from the risk of assassination. It would do this by facilitating the relationship of trust between these officials and their Secret Service protectors that is essential to the Secret Service's protective strategy. Agents and officers surround the protectee with an all-encompassing zone of protection on a 24-hour-a-day basis. In the face of danger, they will shield the protectee's body with their own bodies and move him to a secure location. That is how the Secret Service averted a national tragedy on March 30, 1981, when John Hinckley attempted to assassinate President Reagan. Within seconds of the first shot being fired, Secret Service personnel had shielded the President's body and maneuvered him into the waiting limousine. One agent in particular, Agent Tim McCarthy, positioned his body to intercept a bullet intended for the President. If Agent McCarthy had been even a few feet farther from the President, history might have gone very differently. For the Secret Service to maintain this sort of close, unremitting proximity to the President and other protectees, it must have their complete, unhesitating trust and confidence. Secret Service personnel must be able to remain at the President's side even during confidential and sensitive conversations, when they may overhear military secrets, diplomatic exchanges, and family and private matters. If our Presidents do not have complete trust in the Secret Service personnel who protect them, they could try to push away the Secret Service's ``protective envelope'' or undermine it to the point where it could no longer be fully effective. This is more than a theoretical possibility. Consider what former President Bush wrote in April, 1998, after hearing of the independent counsel's efforts to compel Secret Service testimony: The bottom line is I hope that [Secret Service] agents will be exempted from testifying before the Grand Jury. What's at stake here it the protection of the life of the President and his family and the confidence and trust that a President must have in the [Secret Service]. If a President feels that Secret Service agents can be called to testify about what they might have seen or heard then it is likely that the President will be uncomfortable having the agents near by. I allowed the agents to have proximity first because they had my full confidence and secondly because I knew them to be totally discreet and honorable. . . . I can assure you that had I felt they would be compelled to testify as to what they had seen or heard, no matter what the subject, I would not have felt comfortable having them close in. . . . I feel very strongly that the [Secret Service] agents should not be made to appear in court to discuss that which they might or might not have seen or heard. What's at stake here is the confidence of the President in the discretion of the [Secret Service]. If that confidence evaporates the agents, denied proximity, cannot properly protect the President. As President Bush's letter makes plain, requiring Secret Service agents to betray the confidence of the people whose lives they protect could seriously jeopardize the ability of the Service to perform its crucial national security function. The possibility that Secret Service personnel might be compelled to testify about their protectees could have a particularly devastating affect on the Service's ability to protect foreign dignitaries. The mere fact that this issue has surfaced is likely to make foreign governments less willing to accommodate Secret Service both with respect to the protection of the President and Vice President on foreign trips, and the protection of foreign heads of state traveling in the United States. The security of our chief executive officers and visiting foreign heads of state should be a matter that transcends all partisan politics and I regret that this legislation does not do more to help the Secret Service by providing a protective function privilege.

Mr. LEAHY

Mr. LEAHY. Mr. President, I congratulate all those who participated in our recent Federal and State elections. In Vermont 63 percent of registered voters went to the polls and voted. In other States it was a bit more, in some a bit less. The 2000 presidential election reminds us all that every vote counts. State electoral votes for President and Vice President may be decided in some States by the fewest in history, literally a handful of votes. In New Mexico, the counting continues and the outcome is very close. In Florida, the counting continues and the outcome is very close. Likewise in Washington State, the vote for the Senator from Washington is still being counted and is very close. A number of House congressional races remain very close and final results may have to await recounts and the outcome of protests and challenges. The results of the Senate and House elections are such that the House and Senate themselves will have equal numbers or almost equal numbers of Democrats and Republicans. I want to commend all those who participated. I welcome our newest Senators-elect. Many are in town this week. I welcome Jean Carnahan, Debbie Stabenow, Tom Carper, Jon Corzine, Mark Dayton, Ben Nelson, Bill Nelson, and Hillary Rodham Clinton. In addition, we may be joined by Maria Cantwell. We will be joined by George Allen, and John Ensign. All will add greatly to our ranks and, I hope, to the Senate's ability to find answers to the problems of the American people. The Congress will be confronted with a number of challenges. We will need to find ways to work together. In the Senate, the possibility of a Senate equally divided among Democrats and Republicans has prompted the Democratic Leader to make the suggestion that we consider new and less confrontational organizational principles that would include equal membership ratios on our Committees and equal staffing and equitable sharing of resources. Those are suggestions that should be seriously considered. I look forward to working with all Senators in the coming days: Senators in this Congress as we complete our work before adjourning sine die and Senators in the next Congress as we organize for our work in January.

Mr. LEAHY

Mr. LEAHY. Mr. President, Senators Kyl and Feinstein introduced S. 3205, the Counterterrorism Act of 2000, on October 12, 2000. They base their bill on recommendations made in a report called ``Countering the Changing Threat of International Terrorism,'' issued on June 5, 2000 by the National Commission on Terrorism chaired by former Ambassador L. Paul Bremer III and Maurice Sonnenberg. The sponsors seek to have the Senate consider and pass the bill unanimously without hearings on its legislative language, without Committee consideration, without Senate debate and without amendment. In my efforts to be supportive of them I have shared with them concerns I have had about earlier versions of this legislation. In light of the improvements and corrections that the sponsors have now made, I am pleased to remove my objection to passage of the bill. I commend the sponsors for heeding constructive comments to improve the bill. At the outset, I note that I have worked to help Senator Kyl clear a number of matters of importance to him in this Congress. Most recently, the Senate passed on November 19, 1999, S. 692, the Internet Gambling Prohibition Act, and on September 28, 2000, repassed S. 704, the Federal Prisoner Health Care Copayment Act. Moreover, in the past few months, we have worked together to confirm three more judges for Arizona. In past Congresses, I have also worked closely with Senator Kyl. For example, in the 104th Congress, Senators Kyl, Grassley and I worked together to enact the National Information Infrastructure Protection Act. This law increased protection under federal criminal law for both government and private computers, and addressed the emerging problem of computer-age blackmail in which a criminal threatens to harm or shut down a computer system unless certain extortion demands are met. The NII Protection Act that I worked on with Senator Kyl was intended to help law enforcement better address the problem of computer crime, in which cyber attacks are an important component. The Bremer- Sonnenberg Commission noted that, ``[r]easonable experts have published sobering scenarios about the potential impact of a successful cyber attack on the United States. Already, hackers and criminals have exploited some of our vulnerabilities.'' In short, the Commission found that, ``cyber security is a matter of grave importance.'' As technology advances, the Congress must remain vigilant to ensure that our laws remain up to date and our local, State and federal law enforcement resources are up to the job posed by new technological challenges. That is why I have continued to work over this Congress with the Chairman of the Judiciary Committee and Senator Schumer on S. 2448, which the Senate Judiciary Committee unanimously reported favorably on October 5th for consideration by the Senate as the Internet Security Act amendment on another bill. This legislation would make changes to the federal Computer Fraud and Abuse statute and provide significant new resources to federal law enforcement for forensic computer crime work. I have also been pleased to work with Senator DeWine on S. 1314, the Computer Crime Enforcement Act, to help provide the necessary funding for training and equipment for state and local law enforcement to deal with computer crimes. The Senate Judiciary Committee unanimously reported this bill favorably to the Senate on September 21, 2000. Although he is not a cosponsor of these bills, I appreciate Senator Kyl's support for both S. 2448 and S. 1314 as those bills moved through Committee. These complementary pieces of legislation reflect twin-track progress against computer crime: More tools at the federal level and more resources for local computer crime enforcement. In addition, the Senate Judiciary Committee has considered and reported unanimously on May 18, 2000, S. 2089, the Counterintelligence Reform Act, which I was pleased to cosponsor with Senators Specter, Torricelli, and others. Senator Kyl did not cosponsor this bill. The Counterintelligence Reform Act is intended to improve the coordination within and among federal agencies investigating and prosecuting espionage cases and other cases affecting national security. Specifically, this legislation amends the Foreign Intelligence Surveillance Act to state explicitly that past activities of a target may be considered in determining whether there is probable cause to believe that the target of electronic surveillance is an ``agent of a foreign power.'' This particular provision appears to address a criticism subsequently raised in the Bremer-Sonnenberg Commission report that the Office of Intelligence Policy and Review, which is the Justice Department unit responsible for preparing and presenting FISA applications to the FISA court, ``does not generally consider the past activities of the surveillance target relevant in determining whether the FISA probable cause test is met.'' The Bremer-Sonnenberg Commission report recommended that ``the Attorney General should substantially expand'' OIPR in order ``[t]o ensure timely review of the Foreign Intelligence Surveillance Act applications.'' I concur with this recommendation. In fact, even before the Commission report was released and during Judiciary Committee consideration of S. 2089, I offered an amendment to S. 2089, which was approved by the Judiciary Committee, that would authorize an increase in the budget for OIPR from its current funding level of $4,084,000 to $7,000,000 for FY 2001, with increases up to $8,000,000 over the following two years, for expanded personnel and technology resources. The Select Committee on Intelligence also approved this budget increase for OIPR upon consideration of S. 2089, which subsequently was passed by the Congress as part of the Intelligence Authorization Act, S. 2507. Recently, the Congress passed as part of the conference report on the Trafficking Victims Protection Act, H.R. 3244, the Justice for Victims of Terrorism Act with an amendment that Senator Feinstein and I authored dealing with support for victims of international terrorism. Senator Kyl did not cosponsor this amendment. This amendment is intended to enable the Office for Victims of Crime to provide more immediate and effective assistance to Americans who are victims of terrorism abroad--Americans like those killed or injured in the embassy bombings in Kenya and Tanzania, and in the Pan Am 103 bombing over Lockerbie, Scotland. These victims deserve help, and the Leahy- Feinstein amendment will permit the Office for Victims of Crime to serve these victims better by expanding the types of assistance for which the VOCA emergency reserve fund may be used, and the range of organizations to which assistance may be provided. The amendment allows OVC greater flexibility in using existing reserve funds to assist victims of terrorism abroad, including the victims of the Lockerbie and embassy bombings. This provision will also authorize OVC to raise the cap on the VOCA emergency reserve fund from $50 million to $100 million, so that the fund is large enough to cover the extraordinary costs that would be incurred if a terrorist act caused massive casualties, and to replenish the reserve fund with unobligated funds from its other grant programs. At the same time, the provision will simplify the presently- authorized system of using VOCA funds to provide victim compensation to American victims of terrorism abroad, by permitting OVC to establish and operate an international crime victim compensation program. This program will, in addition, cover foreign nationals who are employees of any American government institution targeted for terrorist attack. The source of funding is the VOCA emergency reserve fund, which we authorized in an amendment I offered to the 1996 Antiterrorism and Effective Death Penalty Act. The Leahy-Feinstein provision also clarifies that deposits into the Crime Victims Fund remain available for intended uses under VOCA when not expended immediately. As is apparent from the work we have done both in this Congress and in prior Congresses, we all share the interest and concern of the sponsors of S. 3205 in protecting our national security from the threat and risks posed by terrorists determined to harm this country and its citizens and helping victims of terrorist acts. Yet, I have been concerned that earlier versions of this bill posed serious constitutional problems and risks to important civil liberties we hold dear. Unlike the secret holds that often stop good bills from passing often for no good reason, I have had no secret holds on S. 3205 or earlier versions of this legislation. On the contrary, when asked, I have made no secret about the concerns I had with this legislation. An earlier version of this legislation, which Senator Kyl tried to move as part of the Intelligence Authorization bill, S. 2507, prompted a firestorm of controversy from civil liberties and human rights organizations, as well as the Department of Justice. For example, the Department of Justice opposed the amendment on myriad grounds, including that (1) the provision amending the wiretap statute to permit law enforcement officers to share foreign intelligence or counterintelligence information obtained under a title III wiretap with the intelligence community ``could have significant implications for prosecutions and the discovery process in litigation''; (2) the provision giving the FBI sixty days to report on the feasibility of establishing a dissemination center within the FBI on international terrorism raised sufficiently significant issues that ``do not avail themselves of resolution in this very short time frame''; (3) the provision requiring the creation of a task force to disrupt the fundraising activities of international terrorist organizations would impose a ``rigid, statutory mandate" that ``would interfere with the need for flexibility in tailoring enforcement strategies and mechanisms to fit the enforcement needs of the particular moment''; and (4) the provision requiring the Attorney General to make legislative language recommendations on matters relating to biological pathogens were ``invalid under the Recommendations Clause'' and ``interferes with the President's efforts to formulate and present his own recommendations and proposals and to control the policy agenda of his Administration.'' Similarly, the Center for Democracy and Technology, the Center for National Security Studies and the American Civil Liberties Union, described in detail their concerns that ``provisions in the Act pose grave threats to constitutional rights.'' I shared many of the concerns of those organizations and the Justice Department, and note that the version of S. 3205 that we consider today addresses those concerns with substantial revisions to the original legislation. For example, no longer does the bill require a change in the wiretap statute allowing the permissive disclosure of information obtained in a title III wiretap to the intelligence agencies. No longer does the bill direct the Central Intelligence Agency to make legislative recommendations to enhance the recruitment of terrorist informants, without any countervailing considerations. Instead, the bill now requests a more balanced picture of the policy considerations that prompted the 1995 guidelines on the use of terrorists as informants and the limitations that may be necessary to assure that the United States does not encourage human rights abuse abroad. After the bill was introduced, I first advised the sponsors of the bill and then the Senate about the remaining areas of concern that should be fixed in the bill before Senate passage. In this regard, I note that Senator Kyl suggested to the Senate on October 25th that if the Justice Department was satisfied with his legislation, I or my staff had earlier indicated that I would be satisfied. I respect the expertise of the Department of Justice and the many fine lawyers and public servants who work there and, where appropriate, seek out their views, as do many Members. That does not mean that I always share the views of the Department of Justice or follow the Department's preferred course and recommendations without exercising my own independent judgment. I would never represent that if the Justice Department were satisfied with his bill, I would automatically defer to their view. Furthermore, my staff has advised me that no such representation was ever made. I am pleased that the further corrections to and refinements of this bill have now been made and that the version of the bill that the Senate is now being asked to consider and pass has been improved. First, the bill now contains the correct numbers of sailors killed and injured in the sense of the Congress concerning the tragic bombing attack on the U.S.S. Cole. I believe that each of the 17 sailors killed and 39 sailors injured deserve recognition and that the full scope of the attack should be properly reflected in this Senate bill. I commend the sponsors of the bill for correcting this part of the bill. Second, the sense of the Congress originally urged the United States Government to ``take immediate actions to investigate rapidly the unprovoked attack on the'' U.S.S. Cole, without acknowledging the fact that such immediate action has been taken. In fact, the Navy began immediate investigative steps shortly after the attack occurred, and the FBI established a presence on the ground and began investigating within 24 hours. The Director himself went to Yemen to guide this investigation. That investigation is active and ongoing, and no Senate bill should reflect differently, as this one originally did. The corrected bill now urges the government ``to continue to take strong and effective actions'' to investigate this attack. I commend the Administration for the swift and immediate actions it has taken to investigate this attack and the strong statements made by the President making clear that no stone will be left unturned to find the criminals who planned this bloody attack. Third, the ``Findings'' section of this bill contained several factual errors or inaccuracies that are now corrected. For example, the original bill stated that there are ``38 organizations'' designated as Foreign Terrorist Organizations (FTOs) when there are currently 29, which has been corrected. The original bill stated that ``current practice is to update the list of FTOs every two years'' when in fact the statute requires redesignation of FTOs every two years. This statement has been corrected. The original bill stated that current controls on the transfer and possession of biological pathogens were ``designed to prevent accidents, not theft,'' which according to the Justice Department is simply not accurate. This inaccurate statement has been eliminated. Fourth, the original bill required reports on issues within the jurisdiction of the Senate Judiciary Committee without any direction that those reports be submitted to that Committee. For example, section 9 of the bill required the FBI to submit to the Select Committees on Intelligence of the Senate and the House a feasibility report on establishing a new capability within the FBI for the dissemination of law enforcement information to the Intelligence community. My suggestion that these reports also be required to be submitted to the Judiciary Committees has been adopted. Fifth, the bill requires reports, with recommendations for appropriate legislative or regulation changes, by the Attorney General and the Secretary of Health and Human Services on safeguarding biological pathogens at research labs, pharmaceutical companies and other facilities in the United States. No definition of ``biological pathogen'' is included in the bill and the scope of these reports could therefore cover a vast array of biological materials. To address this concern over the potentially broad focus of this provision, the bill has been amended to include a direction to the Attorney General and the Secretary of Health and Human Services to define and determine the type and classes of pathogens that should be covered by any recommendations. Finally, the bill would require reimbursement for professional liability insurance for law enforcement officers performing official counterterrorism duties and for intelligence officials performing such duties outside the United States. I scoured the record in vain for explanatory statements by the sponsors of this bill about their views on the need for this provision. Current law curiously provides for payments of only half the costs of professional liability insurance for law enforcement officers and federal judges to cover the costs of legal liability for damages resulting from any tortious act, error of omission while in the performance of the employee's duties and the costs of legal representation in connection with any administrative or judicial proceeding relating to such act, error or omission. 5 U.S.C. Sec. 5941 prec. note. The Bremer-Sonnenberg Commission report recommended that the Congress amend current law to mandate full reimbursement of the costs of personal liability insurance for FBI and CIA counterterrorism agents. In light of this explanation, I am prepared to proceed while noting that this is an area that deserves more comprehensive review. The same reasons for providing full reimbursement for counterterrorism officers may apply to other law enforcement and intelligence officers. The bill has been greatly improved since its first iteration, and I am pleased to withdraw my objection.

Mr. LEAHY

Mr. LEAHY. Mr. President, of the 105 judicial vacancies that have occurred so far this year, the Senate has acted to fill only 39. The last year of the Bush Administration, a presidential year in which we had the reverse situation with a Republican President and a Democratic Senate, the Senate confirmed 66 judges--70 percent more than the number confirmed this year. Over the 2-year span of this Congress, the Senate will have confirmed only 73 judges. By contrast, the Democratic Senate in the last two years of President Bush's Administration confirmed 124 judges--70 percent more judges than the number confirmed by this Congress. Indeed, in the last eleven weeks of Congress in 1992, a Democratic Senate held four judicial nominations hearings and confirmed 29 judges. In the last eleven weeks of this Congress, Republicans will have managed to hold no hearings and confirm no judges. President Clinton has tried to make progress on bringing greater diversity to our federal courts. He has been successful to some extent. With our help, he could have done so much more. We will end this Congress without having acted on any of the African American nominees sent to us to fill vacancies on the Fourth Circuit and finally integrate the Circuit with the highest percentage of African American population in the country, but the one Circuit that has never had an African American judge. We could have acted on the nomination of Kathleen McCree Lewis and confirmed her to the Sixth Circuit to be the first African American woman to sit on that Court. Instead, we will end the year without having acted on any of the outstanding nominees to the Sixth Circuit pending before us. This Judiciary Committee reported only three nominees to the Courts of Appeals all year. We held hearings without even including a nominee to the Courts of Appeals and denied a Committee vote to two outstanding nominees who succeeded in getting hearings. I certainly understand the frustration of those Senators who know that Roger Gregory, Judge James Wynn, Kathleen McCree Lewis, as well as Judge Helene White, Bonnie Campbell and others should have been considered by this Committee and voted on by the Senate this year. There continue to be multiple vacancies on the Third, Fourth, Fifth, Sixth, Ninth, Tenth and District of Columbia Circuits. With 24 current vacancies, our appellate courts have nearly half of the total judicial emergency vacancies in the federal court system. I note that the vacancy rate for our Courts of Appeals is more than 12 percent nationwide. If we were to take into account the additional appellate judgeships included in the Hatch-Leahy Federal Judgeship Act of 2000, S. 3071, a bill that was requested by the Judicial Conference to handle current workloads, the vacancy rate on our federal courts of appeals would be more than 17 percent. The Chairman declares that ``there is and has been no judicial vacancy crisis'' and that he calculates vacancies at ``less than zero.'' The extraordinary service that has been provided by our corps of senior judges does not mean there are no vacancies. In the federal courts around the country there remain 66 current vacancies and 12 more on the horizon. With the judgeships included in the Hatch-Leahy Federal Judgeship Act of 2000, there would be over 135 vacancies across the country. That is the truer measure of vacancies, many of which have been long-standing judicial emergency vacancies in our southwest border states. The Chief Judges of both the Fifth and Sixth Circuits have had to declare their entire courts in emergencies since there are too many vacancies and too few Circuit judges to handle their workload. After creating 85 additional judgeships in 1990, Congress reduced the vacancies from 131 in 1991, to 103 in 1992, to 112 in 1993, to 63 in 1994. Vacancies were going down and we were acting with Republican and Democratic Presidents to fill the 85 judgeships created by a Democratic Congress under a Republican President in 1990. We will end this session with more vacancies than at the end of the session in 1994, without having added the judgeships requested by the Judicial Conference. Since Republicans assumed control of the Senate in the 1994 election, the Senate has not closed the vacancy gap at all and the workloads in many of our courts have gotten significantly worse. More vacancies are continuing longer, and it has taken longer to confirm nominees to existing vacancies. We have lost ground and squandered opportunities for progress in the past six years. As I have pointed out, the vacancies are most acute among our Courts of Appeals and in our southwest border States. We have not acted to add the judgeships requested by the Judicial Conference to meet increased workloads over the last decade. According to the Chief Justice's 1999 year-end report, the filings of cases in our Federal courts have reached record heights. In fact, the filings of criminal cases and defendants reached their highest levels since the Prohibition Amendment was repealed in 1933. Also in 1999, there were 54,693 filings in the 12 regional Courts of Appeals. Overall growth in appellate court caseload last year was due to a 349 percent upsurge in original proceedings. This sudden expansion resulted from newly implemented reporting procedures, which more accurately measure the increased judicial workload generated by the Prisoner Litigation Reform Act and the Antiterrorism and Effective Death Penalty Act, both passed in 1996. I regret to report again today that the last confirmation hearing for federal judges held by the Judiciary Committee was in July, as was the last time the Judiciary Committee reported any nominees to the full Senate. Throughout August, September, October, and now into November, there were no additional hearings held or even noticed, and no executive business meetings included any judicial nominees on the agenda. By contrast, in 1992, the last year of the Bush Administration, a Democratic majority in the Senate held three confirmation hearings in August and September and continued to work to confirm judges up to and including the last day of the session. During that presidential election year the Senate confirmed 66 judges; this year the Senate will not reach 40. I continue to urge the Senate to meet its responsibilities to all nominees, including women and minorities. That highly-qualified nominees are being needlessly delayed is most regrettable. The Senate should have joined with the President to confirm well-qualified, diverse and fair-minded nominees to fulfill the needs of the federal courts around the country. I regret that the Judiciary Committee did not hold additional hearings after July, that the Senate only acted on 39 nominees all year, and that we took so long on so many of them. I deeply regret the lack of a hearing and a vote on so many qualified nominees, including Roger Gregory, Judge James Wynn, Judge Helene White, Bonnie Campbell, Enrique Moreno and Allen Snyder. The Senate squandered a number of important opportunities to help our courts and should have accorded these qualified and outstanding nominees fair up or down votes.

Mr. LEAHY

Mr. LEAHY. Mr. President, the Internet False Identification Prevention Act, S. 2924, is intended to provide additional tools to law enforcement to combat the theft of, and fraud associated with, identification documents and credentials. I share the concerns of the sponsors of this legislation over this matter. In fact, in the last Congress, I sponsored, along with Senators Kyl, Hatch, Feinstein and others, legislation to prohibit fraud in connection with identification information, not just physical documents. We recognized that criminals do not necessarily need a physical identification document to create a new identity; they just need the information itself to facilitate the creation of false identification documents. I note that improvements to the bill as originally introduced were made during consideration of the legislation by the Senate Judiciary Committee. Specifically, as originally introduced this bill would have made it a crime to possess with intent to use or transfer any false identification document, rather than ``five or more'' as required under current law. See 18 U.S.C. 1028(a)(3). I raised concern that the scope of this proposed offense would have resulted in the federalization of the status offenses of an underage teenager using a single fake ID card. The substitute bill reported by the Judiciary Committee eliminated this change in current law. The substitute amendment that the Senate considers today would require the Attorney General and the Secretary of the Treasury to coordinate through a ``coordinating committee'' the investigation and prosecution of offenses related to false identification documents, and report to the Judiciary Committees of the House and the Senate on the number and results of prosecutions. In addition, the substitute amendment amends 18 U.S.C. 1028 in a number of ways, including by creating a new criminal prohibition on the knowing production or transfer of a document-making implement designed for use in the production of false identification documents. A new definition is provided for the term ``transfer'' to include ``making available for acquisition or use by others.'' To address the concerns of internet service providers that the combination of the new crime and the new definitions would expose them to criminal liability, the bill also includes an exemption from the new crime for an interactive computer service. In addition, the bill repeals 18 U.S.C. 1738, which allows businesses that sell identification documents bearing the birth date or age of the person being identified to avoid criminal liability by printing clearly and indelibly on both the front and the back ``Not a Government Document.'' While I do not object to moving this bill at this time, I must note two lingering concerns that we have to revisit. First, I appreciate that the sponsors wish to repeal 18 U.S.C. 1738 to stop the practice of selling counterfeit identification products with disclaimers that are intentionally fashioned to be easily removable on both computer templates and counterfeit identification documents but that nevertheless avoid criminal liability by displaying the disclaimer. This is a practice that deserves congressional attention, but I am concerned that repeal of this section may go too far, since it may remove legal protection for some legitimate businesses that sell identification documents for legitimate reasons, such as for security or private guard services. The legislative history of section 1738 makes clear that this provision was considered necessary when passed because private identification documents ``are used by many persons who have no official record of their date of birth and are unable to obtain official identification cards for that reason. The conferees determined that to simply require privately issued identification cards to carry a prominent disclaimer that they are not government documents would adequately protect the public interest.'' Conference Report on False Identification Crime Control Act of 1982 (H.R. 6946), 97th Cong., 2d Sess., Rpt. 97-975, at p. 4 (December 17, 1982). It remains unclear to me how many legitimate uses and businesses will be affected by repeal of this section, and the manner in which this repeal is being enacted makes it impossible to know in advance. Second, the substitute amendment contains an exemption for interactive computer services that was added after consideration by the Judiciary Committee. Representatives of internet service providers expressed concern that the breadth of the intent standard in the bill, which provides that a defendant need only knowingly transfer or make available by electronic means an illegal document-making implement, such as computer template, to risk criminal liability. They contend that this scienter requirement could put at risk ISPs that simply offer a third party the ability to communicate or locate material that is otherwise illegal, even though the ISP does not know that the document- making implement can be or will be used to make false identification documents and does not intend to be facilitating an illegal transaction. The ISPs may have correctly pointed out a problem in the scope of the criminal liability but the cure should not be to grant a blanket exemption for service providers. There is no comparable exemption anywhere else in the federal criminal code. A better cure would have been to clarify the scope of the criminal prohibition and to define more precisely the scienter requirement for criminal liability. Instead of making the new crime applicable to anyone who ``knowingly produces or transfers a document-making implement that is designed for use in the production of a false identification document,'' the bill could have been more precisely drawn to cover only a person who ``knowingly produces or transfers a document-making implement with the intent that it be used in the production of a false identification document.'' This would have avoided the necessity of carving out exemptions for innocent ISPs that merely facilitate the transfer of illegal document-making implements, without knowing the nature of the what is being transferred. Moreover, including an immunity provision in this bill for ISPs raises a question about their criminal liability exposure under many other criminal statutes that make illegal the knowing transfer of illegal materials without requiring specific knowledge on the part of the transferor that the material is illegal. For example, federal law prohibits the knowing distribution, including by computer, of any material that contains child pornography. 18 U.S.C. 2251A(a)(2)(B). There is no blanket immunity for ISPs for facilitating the distribution of such illegal material. Will inclusion of a blanket immunity provision in this bill encourage courts to construe broadly the prohibitions in other statutes to cover innocent ISPs? This is a matter that could benefit from additional scrutiny.

Mr. LEAHY

Mr. LEAHY. Mr. President, I would like to commend Senator Bayh for his efforts on S. 3164, the Protecting Seniors from Fraud Act, which the House passed today. This bill, which I cosponsored along with Senators Grams and Cleland, will greatly assist federal, state, and local efforts to crack down on crime committed against older Americans. Although I wish the Congress had also acted on additional proposals to protect elderly Americans, including S. 751, the Seniors Safety Act, I am glad that we were at least able to pass this legislation. I have been concerned for some time that even as the general crime rate has been declining steadily over the past eight years, the rate of crime against the elderly has remained unchanged. That is why I introduced the Seniors Safety Act with Senators Daschle, Kennedy, and Torricelli over a year ago. The Judiciary Committee refused to hold hearings on this bill, which provides a comprehensive approach to a variety of problems affecting seniors today. Thankfully, the Republican majority was less hostile to S. 3164, which includes one of the titles from the Seniors Safety Act. This title does two things. First, it instructs the Attorney General to conduct a study relating to crimes against seniors, so that we can develop a coherent strategy to prevent and properly punish such crimes. Second, it mandates the inclusion of seniors in the National Crime Victimization Study. Both of these are important steps. The Protecting Seniors from Fraud Act includes important proposals for addressing the problem of crimes against the elderly, especially fraud crimes. In addition to the provisions described above, this bill authorizes the Secretary of Health and Human Services to make grants to establish local programs to prevent fraud against seniors and educate them about the risk of fraud, as well as to provide information about telemarketing and sweepstakes fraud to seniors, both directly and through State Attorneys General. These are two common-sense provisions that will help seniors protect themselves against crime. I hope that when Congress reconvenes in January, we will consider the rest of the Seniors Safety Act, and enact even more comprehensive protections for our seniors. The Seniors Safety Act offers a comprehensive approach that would increase law enforcement's ability to battle telemarketing, pension, and health care fraud, as well as to police nursing homes with a record of mistreating their residents. The Justice Department has said that the Seniors Safety Act would ``be of assistance in a number of ways.'' I have urged the Senate Judiciary Committee to hold hearings on the Seniors Safety Act as long ago as October 1999, and again this past February, but my requests have not been granted. Now, as the session is coming to a close, we are out of time for hearings on this important and comprehensive proposal and significant parts of the Seniors Safety Act remain pending in the Senate Judiciary Committee as part of the unfinished business of this Congress. Let me briefly summarize the parts of the Seniors Safety Act that the majority in the Congress has declined to consider. First, the Seniors Safety Act provides additional protections to nursing home residents. Nursing homes provide an important service for our seniors--indeed, more than 40 percent of Americans turning 65 this year will need nursing home care at some point in their lives. Many nursing homes do a wonderful job with a very difficult task--this legislation simply looks to protect seniors and their families by isolating the bad providers in operation. It does this by giving federal law enforcement the authority to investigate and prosecute operators of those nursing homes that engage in a pattern of health and safety violations. This authority is all the more important given the study prepared by the Department of Health and Human Services and reported this summer in the New York Times showing that 54 percent of American nursing homes fail to meet the Department's ``proposed minimum standard'' for patient care. The study also showed that 92 percent of nursing homes have less staff than necessary to provide optimal care. Second, the Seniors Safety Act helps protect seniors from telemarket fraud, which costs billions of dollars every year. This legislation would give the Attorney General the authority to block or terminate telephone service where that service is being used to defraud seniors. If someone takes your money at gunpoint, the law says we can take away their gun. If someone uses their phone to take away your money, the law should allow us to protect other victims by taking their phone away. In addition, this proposal would establish a Better Business Bureau-style clearinghouse that would keep track of complaints made about telemarketing companies. With a simple phone call, seniors could find out whether the company trying to sell to them over the phone or over the Internet has been the subject of complaints or been convicted of fraud. Third, the Seniors Safety Act punishes pension fraud. Seniors who have worked hard for years should not have to worry that their hard- earned retirement savings will not be there when they need them. The bill would create new criminal and civil penalties for those who defraud pension plans, and increase the penalties for bribery and graft in connection with employee benefit plans. Finally, the Seniors Safety Act strengthens law enforcement's ability to fight health care fraud. A recent study by the National Institute for Justice reports that many health care fraud schemes ``deliberately target vulnerable populations, such as the elderly or Alzheimer's patients, who are less willing or able to complain or alert law enforcement.'' This legislation gives law enforcement the additional investigatory tools it needs to uncover, investigate, and prosecute health care offenses in both criminal and civil proceedings. It also protects whistle-blowers who alert law enforcement officers to examples of health care fraud. I commend Senators Bayh, Grams, and Cleland for working to take steps to improve the safety and security of America's seniors. We have done the right thing in passing this bipartisan legislation and beginning the fight to lower the crime rate against seniors. I urge consideration of the Seniors Safety Act. It would provide a comprehensive approach toward giving law enforcement and older Americans the tools they need to prevent crime.