Amendment to HR 5018, the Electronic Communications Privacy Act of 2000, offered by Rep. Charles Canady (R-FL), at the House Judiciary Committee mark up on September 20, 2000.
Source: House Judiciary Committee.

Editor's Notes:
 • This is an amendment to the version of HR 5018 approved by the House Constitution Subcommittee on September 14, which in turn is a compilation of an Amendment in the Nature of a Substitute offered by Rep. Canady, as amended by an Amendment offered by Rep. Barr, at the September 14, 2000 meeting of the House Constitution Subcommittee.
 • Tech Law Journal scanned a paper copy provided by the House Judiciary Committee on September 20, and converted into HTML.
 • Several features were eliminated in the conversion, including fonts, double spacing, line numbering, and paragraph indentations.
 • Copyright Tech Law Journal. All rights reserved.

AMENDMENT TO SUBCOMMITTEE AMENDMENT IN
THE NATURE OF A SUBSTITUTE TO H.R. 5018
OFFERED BY MR. CANADY OF FLORIDA

On the first page, beginning in line 14, strike ", or any electronic communication in electronic storage has been disclosed".

Page 3, strike lines 14 through 15.

Redesignate succeeding subparagraphs accordingly.

Page 3, beginning in line 25, strike ", or the principal" and all that follows through "a State," in line 3 on page 4.

Page 4, line 6, strike "(G)" and insert "(F)".

Page 4, lines 13 and 17, strike "nature and".

Page 7, line 20, strike "individual" and insert "person".

Add at the end the following:

SEC. 8. COMPUTER CRIME AMENDMENTS.

(a) GENERALLY.---Section 1030 of title 18, United States Code, is amended---

(1) in subsection (a)(3), by striking "such a computer" and inserting "without or in excess of authorization a computer";

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(2) in subsection (a)(5)(A), insert "(i) " after "(5)(A)";

(3) in subsection (a)(5)(B), replace "(B)" with "(ii)";

(4) in subsection (a)(5)(C), replace "(C)" with "(iii)";

(5) in subsection (a)(5)(C), insert the following after the semicolon:

"(B) whose conduct described in clause (i), (ii), or (iii) of subparagraph (A)---

"(i) caused loss to one or more persons during any one-year period (including loss resulting from a related course of conduct affecting one or more other protected computers) aggregating at least $5,000;

"(ii) modified or impaired, or potentially modified or impaired, the medical examination, diagnosis, treatment, or care of one or more individuals;

"(iii) caused physical injury to any individual;

"(iv) threatened public health or safety; or

"(v) caused damage affecting a computer system used by or for a government entity in [begin page 3] furtherance of the administration of justice, national defense, or national security;";

(6) in subsection (a)(7), by striking ", firm, association, educational institution, financial institution, government entity, or other legal entity,";

(7) in subsection (b), by, adding before the period "as if such person had committed the completed offense";

(8) in subsection (c)(1)(A) and (B), by striking ", or an attempt to commit an offense punishable under this subparagraph";

(9) in subsection (c)(1)(A), by inserting "(a)(5)(i) or (5)(ii)" after "(a)(1),";

(10) by amending subsection (c)(2)(A) to read as follows:

"(2)(A) except as provided in subsection (c)(2)(B), a fine under this title or imprisonment for not more than one year, or both, in the case of an offense under subsection (a)(2), (a)(3), (a)(5), or (a)(6) of this section which does not occur after a conviction for another offense under this section;";

(11) by deleting subsection (c)(2)(C);

(12) in subsection (c)(3)---

(A) by redesignating subparagraph (A) as paragraph (3)

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(B) by striking ", (a)(5)(A), (a)(5)(B),";

(C) by inserting a semicolon after "section" the second place it appears, and by striking ", or an attempt to commit an offense punishable under this subparagraph; and"; and

(D) by striking subparagraph (B) and inserting:

"(4) a fine under this title or imprisonment for not more than ten years, or both, in the case of an offense under subsection (a)(2), (a)(3), (a)(4), (a)(5), (a)(6), or (a)(7) of this section which occurs after a conviction for another offense under this section.";

(13) in subsection (d)---

(A) by striking "subsections (a)(2)(A), (a)(2)(B), (a)(3), (a)(4), (a)(5), and (a)(6) of"; and

(B) by striking "which shall be entered into by" and inserting "between";

(14) in subsection (e)(7), by striking "and" after the semicolon;

(15) in subsection (e)(8), by striking kill after "information" and inserting a semicolon;

(16) in subsection (e)(9), by striking the period at the end and inserting a semicolon;

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(17) by inserting the following after subsection (e)(9):

"(10) the term 'conviction for another offense under this section' includes a State conviction for a crime punishable by imprisonment for more than 1 year, an element of which is unauthorized access, or exceeding authorized access, to a computer;

"(11) the term 'loss' means any reasonable cost to any victim, including responding to the offense, conducting a damage assessment, restoring any data, program, system, or information to its condition before the offense, and any revenue lost or costs incurred because of 'interruption of service; and

"(12) the term 'person' includes any individual, firm, association, educational institution, financial institution, corporation, company, partnership, government entity, or other legal entity.";

(18) by amending subsection (g) to read as follows:

"(g) Except as herein provided, any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive or other equitable relief. A suit for a violation of subsection (a)(5) may be brought only if the conduct involves one or more of the [begin page 6] factors enumerated in subsection (a)(5)(B). No action may be brought under this subsection unless such action is begun within 2 years of the date of the act complained of or the date of the discovery of the damage."; and

(19) by adding the following subsection after subsection (h):

"(i)(1) The court, in imposing sentence on any person convicted of a violation of this section, shall order, in addition to any other sentence imposed and irrespective of any provision of State law, that such person forfeit to the United States---

"(A) such person's interest in any personal property that was used or intended to be used to commit or to facilitate the commission of such violation; and

"(B) any property, real or personal, constituting or derived from, any proceeds that such person obtained, directly or indirectly, as a result of such violation.

"(2) The criminal forfeiture of property under this subsection, any seizure and disposition thereof, and any administrative or judicial proceeding in relation thereto, shall be governed by the provisions of section 413 of the Comprehensive Drug Abuse Prevention and Control Act [begin page 7] of 1970 (21 U.S.C. 853), except subsection (d) of that section.

(b) SENTENCING COMMISSION.---Section 505 of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132) is amended by striking "shall amend the sentencing guidelines to ensure any individual convicted of a violation of paragraph (4) or (5)" and inserting "shall amend the sentencing guidelines to ensure any individual convicted of a violation of paragraph (4) or a felony violation of paragraph (5)(A)(i) (but not of paragraph (5)(A)(ii) or (5)(A)(iii))".".

SEC. 9. INTERCEPTION OF WERE, ORAL, AND ELECTRONIC COMMUNICATIONS AMENDMENTS.

Chapter 119 of title is, United States Code, is amended---

(1) in section 2510(10), by striking "153(h)" and inserting "153(10)";

(2) in section 2516, by striking- "'Wire or oral" and inserting "Wire, oral, or electronic";

(3) in the first subsection (p) of section 2516(1), by inserting "section 1030 (relating to computer fraud and abuse), section 1362 (relating to destruction of government communications facilities)" after "identification documents),";

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(4) in section 2516(1), by redesignating the second subsection (p) as subsection (q);

(5) by deleting subsection (3); and

(6) in section 2518(7), by striking "subsection (d)" and inserting "subsection (8)(d)".

SEC. 10. AMENDMENTS TO THE ELECTRONIC COMMUNICATIONS PRIVACY ACT.

(a) Section 2701 of title is, United States Code, is amended---

(1) in subsection (b)(1)---

(A) by striking "purposes of" and inserting "a tortious or illegal purpose,";

(B) in subparagraph (A), by striking "one year" and inserting "three years"; and

(C) in subparagraph (B), by striking "two" and inserting "five"; and

(2) by amending subsection (b)(2) to read as follows:

"(2) in any other case---

"(A) a fine under this title or imprisonment for not more than one year, or both, in the case of a first offense under this subparagraph;

"(B) a fine under this title or imprisonment for not more than five years, or both, for [begin page 9] any subsequent offense under this subparagraph.".

(b) Section 2702 of title 18, United States Code, is amended---

(1) by amending the catchline to read as follows:

"§ 2702 Voluntary disclosure of customer communications or records";

(2) in subsection (a)(1)---

(A) by striking "person or entity providing an" and inserting "provider of"; and

(B) by striking "and" at the end;

(3) in subsection (a)(2)---

(A) by striking "person or entity providing" and inserting "provider of"; and

(B) by striking the period at the end and inserting "; and";

(4) in subsection (a), by adding the following paragraph after paragraph (2):

"(3) a provider of remote computing service or electronic communication service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by [begin page 10] subsection (a)(1) or (a)(2) of this section) to any governmental entity.

(5) in the heading of subsection, (b) by adding "FOR DISCLOSURE OF COMMUNICATIONS" after "EXCEPTIONS";

(6) in subsection (b), by striking "person or entity" and inserting "provider described in subsection (a)";

(7) in subsection (b)(6)---

(A) by striking "crime; or" and inserting "crime;"; and

(B) by striking the period at, the end and inserting "; or"; and

(8) by adding the following subsection after subsection (b):

"(c) EXCEPTIONS FOR DISCLOSURE OF CUSTOMER RECORDS.---A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2) of this section)---

"(1) as otherwise authorized in section 2703 of this title;

"(2) with the lawful consent of the customer or subscriber;

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"(3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;

"(4) to a governmental entity, if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information; or

"(5) to any person other than a governmental entity where not otherwise prohibited by law.".

(c) Section 2707(c) of title 18, United States Code, is amended by striking "$1,000" and inserting "$5,000".

SEC. 11. ADDITIONAL PROVISIONS RELATING TO PEN REGISTERS.

(a) Section 3125 of title is, United States Code, is amended---

(1) in subsection (a)(1)---

(A) in subparagraph (A), by striking "or" after the semicolon,

(B) in subparagraph (B), by striking the comma after "crime" and inserting a semicolon; and

(C) by inserting after paragraph (B), the following:

"(C) an immediate threat to a national security interest; or

[begin page 12]

"(D) an ongoing attack on the integrity or availability of a protected computer in violation of section 1030(a)(5)(A)(i) or 1030(a)(5)(A)(ii) of this title,";

(2) at the end of the matter following paragraph (2), by inserting the following: "In the event an application for such order is denied, or in any other case where the installation and use of a pen register or trap and trace device is terminated without an order having been issued, any information obtained by such installation and use shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (b) of this section on the person named in the application.";

(3) by inserting the following after subsection (a):

"(b) Within a reasonable time but not later than 90 days after the filing of an application for an order of approval under subsection (a)(2) of this section which is denied, the denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to the information obtained by such installation and use of a pen register or trap and trace device as the judge may determine in his discretion is in the interest [begin page 13] of justice, an inventory which shall include notice of---

"(1) the fact of the entry of the application;

"(2) the date of the entry and the date of the denial of the application; and

"(3) the fact that during the period covered by the application, information was obtained by the installation and use of a pen register or trap and trace device.

The judge, upon the filing of a motion, may in his discretion make available to such person or his counsel for inspection such portions of the applications as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction the serving of the inventory required by this subsection may be postponed."; and

(4) by redesignating subsections (b) through (d) as subsections (c) through (e), respectively.

(b) Section 3127 of title 18, United States Code, is amended---

(1) in paragraph (6), by striking the period and inserting "; and"; and

(2) by adding the following paragraph after paragraph (6):

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(7) the term 'protected computer' has the meaning set forth in section 1030 of this title.".

SEC. 12. JUVENILE DELINQUENCY.

Section 5032 of title is, United States Code, is amended by inserting "or is a violation of section 1030(a)(1), section 1030(a)(2)(B), section 1030(a)(3), or a felony violation of section 1030(a)(5)" after "section 924(b), (g), or (h) of this title," the first time it appears