Statement by Rep. Charles Canady (R-FL). Re: Explanation of Amendment offered by Rep. Canady to the Electronic Communications Privacy Act of 2000. Event: House Judiciary Committee mark up session of September 20. Date: September 20, 2000. Source: Rep. Canady. Editor's Notes:  • This statement explains the Amendment offered by Rep. Canady on September 20 to the version of HR 5018 which was approved by the House Constitution Subcommittee on September 14.  • Rep. Canady read this statement at the mark up session.  • Tech Law Journal scanned a paper copy of the statement, and converted to HTML.  • Copyright Tech Law Journal. All rights reserved.

Statement on Amendment to Subcommittee Amendment in the Nature of a Substitute to H.R. 5018

This Amendment to the Subcommittee Amendment in the Nature of a Substitute to H.R. 5018 contains a balanced set of provisions that protect citizens' privacy in the digital age and also help law enforcement in its difficult task of investigating and prosecuting cyber-criminals.

This Amendment maintains the privacy protective provisions reported out of the Subcommittee on the Constitution.

The Amendment makes the following changes.

It simplifies the bill's reporting requirements with respect to the disclosure of stored electronic communications and eliminates the bill's requirement for reporting by state and local law enforcement. The Amendment provides for the simple enumeration of basic information relating to the disclosure of stored electronic communications to help further Congress' oversight responsibilities and provide the public with a certain level of comfort that the disclosure of the contents of electronic communications is reasonably proportionate to the needs of law enforcement. This revised reporting requirement will not unduly burden law enforcement.

This Amendment limits the extension of the statutory exclusionary rule to illegally intercepted electronic communications. It eliminates the bill's application of the statutory exclusionary rule to illegally disclosed stored electronic communications. The Amendment does, however, raise the damages that may be awarded to those whose stored electronic communications have been illegally disclosed from a minimum of $1,000 to $5,000.

This Amendment also contains further privacy protections beyond those reported out of the Constitution Subcommittee. It requires high-level Department of Justice approval for interceptions of electronic communications, as is currently required for interceptions of wire and oral communications. It also requires that interceptions of electronic communications may be intercepted only when the offense is one that is specifically enumerated in the statute.

This amendment addresses a number of issues raised by the Department of Justice. It contains provisions allowing electronic communications service providers to disclose to law enforcement basic customer records,, such as name and address, when, for example, a customer e-mails a death threat to another customer, and the name and address of the person making the threat must be obtained as soon as possible.

This Amendment also allows law enforcement to use devices that track the source and destination of criminal communications without a court order for up to 48 hours in situations involving national security and ongoing attacks on computer networks. This adds to the circumstances in which the existing statutory emergency authority may be used. The statute requires that within 4 8 hours, law enforcement must obtain the approval of a judge for this monitoring. This Amendment adds a requirement that if the court finds law enforcement had an insufficient basis to conduct the monitoring, the judge must order that the person whose communications were wrongfully tracked be notified, and such information about the order be disclosed as the judge determines is in the interest of justice. This notification provision adds an important protection for privacy that is not currently provided under the Pen Register Statute.

This Amendment also applies increased penalties to those convicted of attacks on private and government computers. The Amendment raises the maximum penalty for the most serious computer violations, such as that committed by the person who created and spread the "Melissa" virus, to ten years in prison, without federalizing smaller cyber-crimes.

Next, this Amendment amends the federal sentencing guidelines such that only the most serious computer-related offenses are subject to a mandatory six-month sentence. This is intended to give prosecutors the necessary flexibility in dealing with minor offenses.

Finally, this Amendment allows the Attorney General to authorize the federal investigation and prosecution of juveniles who commit serious computer-related offenses.

In developing this amendment, I have endeavored to take into consideration various suggestions and proposals made by the Department of Justice. There are certain issues which the Amendment does not address which I had hoped to include in the Amendment. In particular, the Department had sought provisions giving nationwide effect to trap and trace orders. I am very sympathetic with the Department's position on this issue. Unfortunately, the Department's proposal raises a number of complicated and difficult questions that we have not been able to resolve. On this issue, as well as others of concern to the Department, I remain committed to working with the Administration as the legislative process moves forward. I do want to thank the Administration for patiently providing information to the Subcommittee and engaging in a series of discussions concerning this legislation.

I urge the Committee to support this balanced legislation that both provides for the long overdue updating of our statutory privacy protections and for the new challenges law enforcement faces in investigating and prosecuting cyber-criminals.