Congressional Record: February 8, 2005 (Senate)
Page S1130-S1134                  


          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS



      By Mr. FEINGOLD:
  S. 316. A bill to limit authority to delay notice of search warrants; 
to the Committee on the Judiciary.
  Mr. FEINGOLD. Mr. President, today I will reintroduce in the Senate 
the Reasonable Notice and Search Act. This bill is nearly identical to 
a bill I introduced in the 108th Congress, S. 1701. It addresses 
Section 213 of the USA-PATRIOT Act, the provision of that important 
statute passed in the wake of the 9/11 attacks that has caused perhaps 
the most concern among Members of Congress and the public. Section 213, 
sometimes referred to as the ``delayed notice search provision'' or the 
``sneak and peek provision,'' authorizes the government in limited 
circumstances to conduct a search without immediately serving a search 
warrant on the owner or occupant of the premises that have been 
searched.
  Prior to the PATRIOT Act, secret searches for physical evidence were 
performed in some jurisdictions under the authority of Court of Appeals 
decisions, but the Supreme Court never definitively ruled whether they 
were constitutional. Section 213 of the PATRIOT Act authorized delayed 
notice warrants in any case in which an ``adverse result'' would occur 
if the warrant were served before the search was executed. Adverse 
result was defined as including: 1. endangering the life or physical 
safety of an individual; 2. flight from prosecution; 3. destruction of 
or tampering with evidence; 4. intimidation of potential witnesses; or 
5. otherwise seriously jeopardizing an investigation or unduly delaying 
a trial. This last catch-all category could apply in virtually any 
criminal case. In addition, while some courts had required the service 
of the warrant within a specified period of time, the PATRIOT Act 
simply required that the warrant specify that it would be served within 
a ``reasonable'' period of time after the search.
  It is interesting to note that this provision of the PATRIOT Act was 
not limited to terrorism cases. In fact, before the PATRIOT Act passed, 
the FBI already had the authority to conduct secret searches of foreign 
terrorists and spies with no notice at all under the Foreign 
Intelligence Surveillance Act. Furthermore, the PATRIOT Act ``sneak and 
peek'' authority was not made subject to the sunset provision that will 
cause many of the new surveillance provisions of the act to expire at 
the end of this year unless Congress reenacts them. So Section 213 was 
pretty clearly a provision that the Department of Justice wanted 
regardless of the terrorism threat after 9/11.
  Perhaps that is why this provision has caused such controversy since 
it was passed. In 2003, by a wide bipartisan margin, the House passed 
an amendment to the Commerce-Justice-

[[Page S1131]]

State appropriations bill offered by Representative Otter from Idaho, a 
Republican, to stop funding for delayed notice searches authorized 
under section 213. The size of the vote took the Department by 
surprise, and it immediately set out to defend the provision 
aggressively. Clearly, this is a power that the Department does not 
want to lose.
  I raised concerns about the sneak and peek provision when it was 
included in the PATRIOT Act. I did not, and still do not, believe there 
had been adequate study and analysis of the justifications for these 
searches and the potential safeguards that might be included. I did not 
argue then, however, and I am not arguing now that there should be no 
delayed notice searches at all and that the provision should be 
repealed. I simply believe that this provision should be modified to 
protect against abuse. My bill will do four things to accomplish this.
  First, my bill would narrow the circumstances in which a delayed 
notice warrant can be granted to the following: potential loss of life, 
flight from prosecution, destruction or tampering with evidence, or 
intimidation of potential witnesses. The ``catch-all provision'' in 
section 213, allowing a secret search when serving the warrant would 
``seriously jeopardize an investigation or unduly delay a trial'' can 
too easily be turned into permission to do these searches whenever the 
government wants.
  Second, I believe that any delayed notice warrant should provide for 
a specific and limited time period within which notice must be given--7 
days. This is consistent with some of the pre-PATRIOT Act court 
decisions and will help to bring this provision in closer accord with 
the Fourth Amendment to the Constitution. Under my bill, prosecutors 
will be permitted to seek 7-day extensions if circumstances continue to 
warrant that the subject not be made aware of the search. But the 
default should be a week, unless a court is convinced that more time 
should be permitted.
  Third, Section 213 should include a sunset provision so that it 
expires along with the other expanded surveillance provisions in Title 
II of the PATRIOT Act, at the end of 2005. This will allow Congress to 
determine if the balance between civil liberties and law enforcement 
has been correctly struck.
  Finally, the bill requires a public report on the number of times 
that section 213 is used, the number of times that extensions are 
sought beyond the 7-day notice period, and the type of crimes being 
investigated with this power. This information will help the public and 
Congress evaluate the need for this authority and determine whether it 
should be retained or modified after the sunset.
  These are reasonable and moderate changes to the law. They do not gut 
the provision. Rather, they recognize the growing and legitimate 
concern from across the political spectrum that this provision was 
passed in haste and presents the potential for abuse. They also send a 
message that Fourth Amendment rights have meaning and potential 
violations of those rights should be minimized if at all possible. I 
urge my colleagues to support this bill.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 316

  Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Reasonable Notice and Search 
     Act''.

     SEC. 2. LIMITATION ON AUTHORITY TO DELAY NOTICE OF SEARCH 
                   WARRANTS.

       Section 3103a of title 18, United States Code, is amended--
       (1) in subsection (b)--
       (A) in paragraph (1), by striking ``may have an adverse 
     result (as defined in section 2705)'' and inserting ``will 
     endanger the life or physical safety of an individual, result 
     in flight from prosecution, result in the destruction of or 
     tampering with the evidence sought under the warrant, or 
     result in intimidation of potential witnesses''; and
       (B) in paragraph (3), by striking ``a reasonable period'' 
     and all that follows and inserting ``7 calendar days, which 
     period, upon application of the Attorney General, the Deputy 
     Attorney General, or an Associate Attorney General, may 
     thereafter be extended by the court for additional periods of 
     up to 7 calendar days each if the court finds, for each 
     application, reasonable cause to believe that notice of the 
     execution of the warrant will endanger the life or physical 
     safety of an individual, result in flight from prosecution, 
     result in the destruction of or tampering with the evidence 
     sought under the warrant, or result in intimidation of 
     potential witnesses.''; and
       (2) by adding at the end the following:
       ``(c) Reports.--
       ``(1) In general.--On a semiannual basis, the Attorney 
     General shall transmit to Congress and make public a report 
     concerning all requests for delays of notice, and for 
     extensions of delays of notice, with respect to warrants 
     under subsection (b).
       ``(2) Contents.--Each report under paragraph (1) shall 
     include, with respect to the preceding 6-month period--
       ``(A) the total number of requests for delays of notice 
     with respect to warrants under subsection (b);
       ``(B) the total number of such requests granted or denied;
       ``(C) for each request for delayed notice that was granted, 
     the total number of applications for extensions of the delay 
     of notice and the total number of such extensions granted or 
     denied; and
       ``(D) on an aggregate basis, the nature of the crime being 
     investigated for each request for delay of notice that was 
     granted or denied.''.

     SEC. 3. SUNSET ON DELAYED NOTICE AUTHORITY.

       (a) PATRIOT Act.--Section 224(a) of the USA PATRIOT Act of 
     2001 (Public Law 107-56; 115 Stat. 295) is amended by 
     striking ``213,''.
       (b) Amendments.--The amendments made by this Act shall 
     sunset as provided in section 224 of the USA PATRIOT Act of 
     2001.
                                 ______
								 
								 
                                 
      By Mr. FEINGOLD (for himself, Mr. Akaka, Mr. Bingaman, Ms. 
        Cantwell, Mr. Corzine, Mr. Dayton, Mr. Durbin, Mr. Jeffords, 
        Mr. Kennedy, and Mr. Wyden):
  S. 317. A bill to protect privacy by limiting the access of the 
Government to library, bookseller, and other personal records for 
foreign intelligence and counterintelligence purposes; to the Committee 
on the Judiciary.
  Mr. FEINGOLD. Mr. President, today I will reintroduce the Library, 
Bookseller, and Personal Records Privacy Act. The bill is identical to 
the bill I introduced in the 108th Congress, S. 1507.
  This bill would amend Sections 215 and 505 of the USA-PATRIOT Act to 
protect the privacy of law-abiding Americans. It would set reasonable 
limits on the Federal Government's access to library, bookseller, 
medical, and other sensitive, personal information under the Foreign 
Intelligence Surveillance Act (``FISA'') and related foreign 
intelligence authority.
  I am pleased that several of my distinguished colleagues have joined 
me as original cosponsors of this important legislation.
  Millions of Patriotic Americans love our country and support our 
military men and women in their difficult missions abroad, but worry 
about the fate of our Constitution here at home.
  Much of our Nation's strength comes from our constitutional liberties 
and respect for the rule of law. That is what has kept us free for our 
two and a quarter century history. Our constitutional freedoms, our 
American values, are what make our country worth fighting for as we 
strive to win the war on terror.
  Here at home, there is no question that the FBI needs ample resources 
and legal authority to prevent future acts of terrorism. But the 
PATRIOT Act went too far when it comes to the government's access to 
personal information about law abiding Americans.
  Even though in the end I opposed the PATRIOT Act, there were many 
provisions that I did support. And even in those provisions I sought to 
amend when the bill was debated, there was often some change that I 
supported. For example, Congress was right to expand the category of 
business records that the FBI could obtain pursuant to the Foreign 
Intelligence Surveillance Act. Prior to the PATRIOT Act, the FBI could 
seek a court order to obtain only travel records--such as airline, 
hotel, and car rental records--and records maintained by storage 
facilities. The PATRIOT Act allows any business records to be 
subpoenaed. I don't quibble with that change.
  But what my colleagues and I do find problematic--and an increasing 
number of Americans who value their privacy and First Amendment rights 
agree with us--is that the current law allows the FBI broad, almost 
unfettered access to personal information

[[Page S1132]]

about law-abiding Americans who have no connection to terrorism or 
spying.
  Section 215 of the PATRIOT Act requires the FBI to show in an 
application to the court that the documents are ``sought for'' an 
international terrorism or foreign intelligence investigation. There is 
no requirement that the FBI make a showing of individualized suspicion 
that the documents relate to a suspected terrorist or spy.
  In other words, under current law, the FBI could serve a subpoena on 
a library for all the borrowing records of its patrons or on a 
bookseller for the purchasing records of its customers simply by 
asserting that they want the records for a terrorism investigation.
  Since the passage of the PATRIOT Act, librarians and booksellers have 
become increasingly concerned by the potential for abuse of this law. I 
was pleased to stand with the American Booksellers Association and the 
Free Expression Network over 2 years ago when we first started to raise 
these concerns.
  Librarians and booksellers are concerned that under the PATRIOT Act, 
the FBI could seize records from libraries and booksellers in order to 
monitor what books Americans have purchased or borrowed, or who has 
used a library's or bookstore's internet computer stations, even if 
there is no evidence that the person is a terrorist or spy, or has any 
connection to a terrorist or spy.
  These concerns are so strong that some librarians across the country 
have taken the unusual step of destroying records of patrons' book and 
computer use, as well as posting signs on computer stations warning 
patrons that whatever they read or access on the internet could be 
monitored by the federal government.
  As a librarian in California said, ``We felt strongly that this had 
to be done. . . . The government has never had this kind of power 
before. It feels like Big Brother.''
  And as the executive director of the American Library Association 
said, ``This law is dangerous. . . . I read murder mysteries--does that 
make me a murderer? I read spy stories--does that mean I'm a spy? 
There's no clear link between a person's intellectual pursuits and 
their actions.''
  The American people do not know how many or what kind of requests 
Federal agents have made for library records under the PATRIOT Act. The 
Justice Department refuses to release that information to the public.
  But in a survey released by the University of Illinois at Urbana-
Champaign, about 550 libraries around the Nation reported having 
received requests from Federal or local law enforcement during the past 
year. About half of the libraries said they complied with the law 
enforcement request, and another half indicated that they had not.
  Americans don't know much about these incidents, because the law also 
contains a provision that prohibits anyone who receives a subpoena from 
disclosing that fact to anyone.
  In testimony before the Judiciary Committee, Attorney General 
Ashcroft stated that as of September 18, 2003, the Department of 
Justice had never used Section 215. The Department has not made that 
claim in public testimony since then, leading many to speculate that 
the provision has now been used. Whether it has been used once, or 
dozens of times, the problem with the section remains--it is too broad 
and does not permit adequate judicial supervision. There is a potential 
for overreaching that Congress must address.
  David Schwartz, president of Harry W. Schwartz Bookshops, the oldest 
and largest independent bookseller in Milwaukee, summed up well the 
American values at stake when he said: ``The FBI already has 
significant subpoena powers to obtain records. There is no need for the 
government to invade a person's privacy in this way. This is a uniquely 
un-American tool, and it should be rejected. The books we read are a 
very private part of our lives. People could stop buying books, and 
they could be terrified into silence.''
  I would not claim that we have reached the point where people in this 
country are afraid to buy books, but section 215 is a tool that is 
unnecessarily broad. And it raises the specter of indiscriminate 
government snooping into the private lives of innocent citizens, which 
is an unnecessary distraction from the serious law enforcement work 
that is needed to fight terrorism.
  It is time to reconsider those provisions of the PATRIOT Act that are 
un-American and, frankly, unpatriotic.
  But my concerns with the PATRIOT Act go beyond library and bookseller 
records. Under section 215 of the PATRIOT Act, the FBI could seek any 
records maintained by a business. These business records could contain 
sensitive, personal information--for example, medical records 
maintained by a doctor or hospital or credit records maintained by a 
credit agency. All the FBI would have to do is simply assert that the 
records are ``sought for'' its terrorism or foreign intelligence 
investigation.
  Section 215 of the PATRIOT Act goes too far. Americans rightfully 
have a reasonable expectation of privacy in their library, bookstore, 
medical, financial, or other records containing personal information. 
Prudent safeguards are needed to protect these legitimate privacy 
interests.
  The Library, Bookseller, and Personal Records Privacy Act is a 
reasonable solution. It would restore a pre-PATRIOT Act requirement 
that the FBI make a factual, individualized showing that the records 
sought pertain to a suspected terrorist or spy while leaving in place 
other PATRIOT Act expansions of this business records power.
  My bill will not prevent the FBI from doing its job. It recognizes 
that the post-September 11 world is a different world. There are 
circumstances when the FBI should legitimately have access to library, 
bookseller, or other personal information.
  I'd like to take a moment to explain how the safeguard in my bill 
would be applied. Suppose the FBI is conducting an investigation of an 
international terrorist organization. It has information that suspected 
members of the group live in a particular neighborhood. The FBI would 
like to obtain records from the library in the suspects' neighborhood. 
Under current law, the FBI could decide to ask the library for all 
records concerning anyone who has ever borrowed a book or used a 
computer, and what books were borrowed, simply by asserting that the 
documents are sought for a terrorism investigation. But under my bill, 
the FBI could not do so. The FBI would have to set forth specific and 
articulable facts giving reason to believe that the person to whom the 
records pertain is a suspected terrorist. The FBI could obtain only 
those library records--such as borrowing records or computer sign-in 
logs--that pertain to the suspected terrorists. The FBI could not 
obtain library records concerning individuals who are not suspected 
terrorists.
  So, under my bill, the FBI can still obtain documents that it 
legitimately needs, but my bill would also protect the privacy of law-
abiding Americans. I might add that if, as the Justice Department says, 
the FBI is using its PATRIOT Act powers in a responsible manner, does 
not seek the records of law-abiding Americans, and only seeks the 
records of suspected terrorists or suspected spies, then there is no 
reason for the Department to object to my bill.
  The second part of my bill would address privacy concerns with 
another Federal law enforcement power expanded by the PATRIOT Act--the 
FBI's national security letter authority. The FBI does not need court 
approval to use this power.
  My bill would amend section 505 of the PATRIOT Act. Part of this 
section relates to the production of records maintained by electronic 
communications providers. Libraries or bookstores with internet access 
for customers could be deemed ``electronic communication providers'' 
and therefore be subject to a request by the FBI under its NSL 
authority.
  As I mentioned earlier, some librarians are so concerned about the 
potential for abuse by the FBI that they have taken matters into their 
own hands before the FBI knocks on their door. Some librarians have 
begun shredding on a daily basis sign-in logs and other documents 
relating to the public's use of library computer terminals to access 
the internet.
  Again, safeguards are needed to ensure that any individual who 
accesses the internet at a library or bookstore does not automatically 
give up all expectations of privacy. Like the section

[[Page S1133]]

215 fix I've discussed, my bill would require an individualized showing 
by the FBI of how the records of internet usage maintained by a library 
or bookseller pertain to a suspected terrorist or spy.
  Yes, the American people want the FBI to be focused on preventing 
terrorism. And, yes, it may make sense to make some changes to the law 
to allow the FBI access to the information that it needs to prevent 
terrorism. But we do not need to change the values that constitute who 
we are as a Nation in order to protect ourselves from terrorism. We can 
protect both our Nation and our privacy and civil liberties.
  An increasing number of Americans are beginning to understand that 
the PATRIOT Act went too far. Four States and over 350 cities and 
counties across the country have now passed resolutions expressing 
opposition to the PATRIOT Act. And it's not just the Berkeleys and 
Madisons of this Nation, but other States and communities with strong 
conservative and libertarian values, such as Alaska and cities in 
Montana, that have passed such resolutions.
  I have many concerns with the PATRIOT Act. I am not seeking to repeal 
it, in whole or in part. In this bill, my colleagues and I are only 
seeking to modify two provisions that pose serious potential for abuse.
  The privacy of law-abiding Americans is at stake, along with their 
confidence in their government. Congress should act to protect our 
privacy and reassure our citizens. The Library, Bookseller, and 
Personal Records Privacy Act bill is a reasonable approach to do just 
that. I urge my colleagues to support this legislation.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 317

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Library, Bookseller, and 
     Personal Records Privacy Act''.

     SEC. 2. PRIVACY PROTECTIONS ON GOVERNMENT ACCESS TO LIBRARY, 
                   BOOKSELLER, AND OTHER PERSONAL RECORDS UNDER 
                   FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

       (a) Applications for Orders.--Subsection (b) of section 501 
     of the Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1861) is amended--
       (1) in paragraph (1), by striking ``and'' at the end;
       (2) in paragraph (2), by striking the period at the end and 
     inserting ``; and''; and
       (3) by adding at the end the following new paragraph:
       ``(3) shall specify that there are specific and articulable 
     facts giving reason to believe that the person to whom the 
     records pertain is a foreign power or an agent of a foreign 
     power.''.
       (b) Orders.--Subsection (c)(1) of that section is amended 
     by striking ``finds'' and all that follows and inserting 
     ``finds that--
       ``(A) there are specific and articulable facts giving 
     reason to believe that the person to whom the records pertain 
     is a foreign power or an agent of a foreign power; and
       ``(B) the application meets the other requirements of this 
     section.''.
       (c) Oversight of Requests for Production of Records.--
     Section 502 of that Act (50 U.S.C. 1862) is amended--
       (1) in subsection (a), by striking ``the Permanent'' and 
     all that follows through ``the Senate'' and inserting ``the 
     Permanent Select Committee on Intelligence and the Committee 
     on the Judiciary of the House of Representatives and the 
     Select Committee on Intelligence and the Committee on the 
     Judiciary of the Senate''; and
       (2) in subsection (b), by striking ``On a semiannual 
     basis,'' and all that follows through ``a report setting 
     forth'' and inserting ``The report of the Attorney General to 
     the Committees on the Judiciary of the House of 
     Representatives and the Senate under subsection (a) shall set 
     forth''.

     SEC. 3. PRIVACY PROTECTIONS ON GOVERNMENT ACCESS TO 
                   INFORMATION ON COMPUTER USERS AT BOOKSELLERS 
                   AND LIBRARIES UNDER NATIONAL SECURITY 
                   AUTHORITY.

       (a) In General.--Section 2709 of title 18, United States 
     Code, is amended--
       (1) by redesignating subsection (e) as subsection (f); and
       (2) by inserting after subsection (d) the following new 
     subsection (e):
       ``(e) Records of Booksellers and Libraries.--(1) When a 
     request under this section is made to a bookseller or 
     library, the certification required by subsection (b) shall 
     also specify that there are specific and articulable facts 
     giving reason to believe that the person or entity to whom 
     the records pertain is a foreign power or an agent of a 
     foreign power.
       ``(2) In this subsection:
       ``(A) The term `bookseller' means a person or entity 
     engaged in the sale, rental, or delivery of books, journals, 
     magazines, or other similar forms of communication in print 
     or digitally.
       ``(B) The term `library' means a library (as that term is 
     defined in section 213(2) of the Library Services and 
     Technology Act (20 U.S.C. 9122(2))) whose services include 
     access to the Internet, books, journals, magazines, 
     newspapers, or other similar forms of communication in print 
     or digitally to patrons for their use, review, examination, 
     or circulation.
       ``(C) The terms `foreign power' and `agent of a foreign 
     power' have the meaning given such terms in section 101 of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1801).''.
       (b) Sunset of Certain Modifications on Access.--Section 
     224(a) of the USA PATRIOT ACT of 2001 (Public Law 107-56; 115 
     Stat. 295) is amended by inserting ``and section 505'' after 
     ``by those sections)''.
                                 ______
								 
								 
                                 
      By Mr. FEINGOLD:
  S. 318. A bill to clarify conditions for the interceptions of 
computer trespass communications under the USA-PATRIOT Act; to the 
Committee on the Judiciary.
  Mr. FEINGOLD. Mr. President, I am pleased to introduce the Computer 
Trespass Clarification Act of 2005, which would amend and clarify 
section 217 of the USA-PATRIOT Act. This bill is virtually identical to 
a bill I introduced in the 108th Congress, S. 2783.
  Section 217 of the PATRIOT Act addresses the interception of computer 
trespass communications. This bill would modify existing law to more 
accurately reflect the intent of the provision, and also protect 
against invasions of privacy.
  Section 217 was designed to permit law enforcement to assist computer 
owners who are subject to denial of service attacks or other episodes 
of hacking. The original Department of Justice draft of the bill that 
later became the PATRIOT Act included this provision. A section by 
section analysis provided by the Department on September 19, 2001, 
stated the following: ``Current law may not allow victims of computer 
trespassing to request law enforcement assistance in monitoring 
unauthorized attacks as they occur. Because service providers often 
lack the expertise, equipment, or financial resources required to 
monitor attacks themselves as permitted under current law, they often 
have no way to exercise their rights to protect themselves from 
unauthorized attackers. Moreover, such attackers can target critical 
infrastructures and engage in cyberterrorism. To correct this problem, 
and help to protect national security, the proposed amendments to the 
wiretap statute would allow victims of computer attacks to authorize 
persons `acting under color of law' to monitor trespassers on their 
computer systems in a narrow class of cases.''
  I strongly supported the goal of giving computer system owners the 
ability to call in law enforcement to help defend themselves against 
hacking. Including such a provision in the PATRIOT Act made a lot of 
sense. Unfortunately, the drafters of the provision made it much 
broader than necessary, and refused to amend it at the time we debated 
the bill in 2001. As a result, the law now gives the government the 
authority to intercept communications by people using computers owned 
by others as long as they have engaged in some unauthorized activity on 
the computer, and the owner gives permission for the computer to be 
monitored--all without judicial approval.
  Only people who have a ``contractual relationship'' with the owner 
allowing the use of a computer are exempt from the definition of a 
computer trespasser under section 217 of the PATRIOT Act. Many people--
for example, college students, patrons of libraries, Internet cafes or 
airport business lounges, and guests at hotels--use computers owned by 
others with permission, but without a contractual relationship. They 
could end up being the subject of government snooping if the owner of 
the computer gives permission to law enforcement.
  My bill would clarify that a computer trespasser is not someone who 
has permission to use a computer by the owner or operator of that 
computer. It would bring the existing computer trespass provision in 
line with the purpose of section 217 as expressed in the Department of 
Justice's initial explanation of the provision. Section 217 was 
intended to target only a narrow class of people: Unauthorized

[[Page S1134]]

cyberhackers. It was not intended to give the government the 
opportunity to engage in widespread surveillance of computer users 
without a warrant.
  I should note that there is no specific evidence that the provision 
is being abused. But, of course, unless criminal charges are brought 
against someone as a result of such surveillance, there would never be 
any notice at all that the surveillance has taken place. The computer 
owner authorizes the surveillance, and the FBI carries it out. There is 
no warrant, no court proceeding, no opportunity even for the subject of 
the surveillance to challenge the assertion of the owner that some 
unauthorized use of the computer has occurred.
  My bill would modify the computer trespass provision in the following 
ways to protect against abuse, while still maintaining its usefulness 
in cases of denial of service attacks and other forms of hacking.
  First, it would require that the owner or operator of the protected 
computer authorizing the interception has been subject to ``an ongoing 
pattern of communications activity that threatens the integrity or 
operation of such computer.'' In other words, the owner has to be the 
target of some kind of hacking.
  Second, the bill limits the length of warrantless surveillance to 96 
hours. This is twice as long as is allowed for an emergency wiretap. 
With four days of surveillance, it should not be difficult for the 
government to gather sufficient evidence of wrongdoing to obtain a 
warrant if continued surveillance is necessary.
  Finally, the bill would require the Attorney General to annually 
report on the use of Section 217 to the Senate and House Judiciary 
Committees. Section 217 is one of the provisions that is subject to the 
sunset provision in the PATRIOT Act and will expire at the end of 2005. 
We in the Congress need to do more oversight of the use of this and 
other provisions of PATRIOT Act in order to evaluate their 
effectiveness.
  The computer trespass provision now in the law as a result of section 
217 of the PATRIOT Act leaves open the possibility for significant and 
unnecessary invasions of privacy. The reasonable and modest changes to 
the provision contained in this bill preserve the usefulness of the 
provision for investigations of cyberhacking, but reduce the 
possibility of government abuse. We must continually seek to balance 
the need for effective tools to fight crime and terrorism against the 
civil liberties of our citizens. The Computer Trespass Clarification 
Act strikes the right balance, and I urge my colleagues to support it.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 318

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Computer Trespass 
     Clarification Act of 2005''.

     SEC. 2. AMENDMENTS TO TITLE 18.

       (a) Definitions.--Section 2510(21)(B) of title 18, United 
     States Code, is amended by--
       (1) inserting ``or other'' after ``contractual''; and
       (2) striking ``for access'' and inserting ``permitting 
     access''.
       (b) Interception and Disclosure.--Section 2511(2)(i) of 
     title 18, United States Code, is amended--
       (1) in clause (I), by inserting after ``the owner or 
     operator of the protected computer'' the following: ``is 
     attempting to respond to communications activity that 
     threatens the integrity or operation of such computer and 
     requests assistance to protect rights and property of the 
     owner or operator, and''; and
       (2) in clause (IV), by inserting after ``interception'' the 
     following: ``ceases as soon as the communications sought are 
     obtained or after 96 hours, whichever is earlier, unless an 
     interception order is obtained under this chapter, and''.
       (c) Report.--The Attorney General shall, within 60 days of 
     enactment and annually thereafter, report to the Committees 
     on the Judiciary of the Senate and the House of 
     Representatives on the use during the previous year of 
     section 2511 of title 18, United States Code, relating to 
     computer trespass provisions as amended by subsection (b).
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