S 3083 IS

To enhance privacy and the protection of the public in the use of computers and the Internet, and for other purposes.

September 20, 2000

Mr. LEAHY (by request) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

To enhance privacy and the protection of the public in the use of computers and the Internet, and for other purposes.

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 `Enhancement of Privacy and Public Safety in Cyberspace Act'.

SEC. 2. COMPUTER CRIME.

(a) FRAUD AND RELATED ACTIVITY IN CONNECTION WITH COMPUTERS-

(1) OFFENSES- Subsection (a) of section 1030 of title 18, United States Code, is amended--

(A) in paragraph (3), by striking `accesses such a computer' and inserting `or in excess of authorization to access any nonpublic computer of a department or agency of the United States, accesses a computer'; and

(B) in paragraph (7), by striking `, firm, association, educational institution, financial institution, government entity, or other legal entity,'.

(2) ATTEMPTED OFFENSES- Subsection (b) of that section is amended by inserting before the period the following: `as if such person had committed the completed offense'.

(3) PUNISHMENT- Subsection (c) of that section is amended--

(A) in paragraph (1), by striking `, or an attempt to commit an offense punishable under this subparagraph' each place it appears in subparagraphs (A) and (B);

(B) in paragraph (2)--

(i) by striking subparagraph (A) and inserting the following new subparagraph (A):

`(A) except as provided in subparagraphs (B) and (C) of this subparagraph, 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;';

(ii) in subparagraph (B), by adding `and' at the end; and

(iii) by striking subparagraph (C) and inserting the following new subparagraph (C):

`(C) a fine under this title or imprisonment for not more than ten years, or both, in the case of an offense under subsection (a)(5)(A) or (a)(5)(B) if the offense caused (or, in the case of an attempted offense, would, if completed, have caused)--

`(i) 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) the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of one or more individuals;

`(iii) physical injury to any individual;

`(iv) a threat to public health or safety; or

`(v) damage affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security;';

(C) in paragraph (3)--

(i) by striking `(3)(A)' and inserting `(3)';

(ii) by striking `, (a)(5)(A), (a)(5)(B),';

(iii) by striking `, or an attempt to commit an offense punishable under this subparagraph;'; and

(iv) by striking subparagraph (B); and

(D) by adding at the end the following new paragraph:

`(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.'.

(4) INVESTIGATIVE AUTHORITY OF UNITED STATES SECRET SERVICE- Subsection (d) of that section is amended--

(A) in the first sentence, by striking `subsections (a)(2)(A), (a)(2)(B), (a)(3), (a)(4), (a)(5), and (a)(6) of'; and

(B) in the second sentence, by striking `which shall be entered into by' and inserting `between'.

(5) DEFINITIONS- Subsection (e) of that section is amended--

(A) in paragraph (2)(B), by inserting before the semicolon the following: `, including a computer located outside the United States';

(B) in paragraph (7), by striking `and' at the end;

(C) in paragraph (8), by striking `or information,' and all that follows through the end of the paragraph and inserting `or information;';

(D) in paragraph (9), by striking the period at the end and inserting a semicolon; and

(E) by adding at the end the following new paragraphs:

`(10) the term `conviction for another offense under this section' includes--

`(A) an adjudication of juvenile delinquency for a violation of this section; and

`(B) a conviction under State law for a crime punishable by imprisonment for more than one 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, society, government entity, or other legal entity.'.

(6) CIVIL ACTIONS- Subsection (g) of that section is amended to read as follows:

`(g) 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. An action under this subsection for a violation of subsection (a)(5) may be brought only if the conduct involves one or more of the factors set forth in subsection (c)(2)(C). 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.'.

(7) FORFEITURE- That section is further amended--

(A) by redesignating subsection (h) as subsection (j); and

(B) by inserting after subsection (g), as amended by paragraph (6) of this subsection, the following new subsections (h) and (i):

`(h)(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 property, whether real or personal, that was used or intended to be used to commit or to facilitate the commission of such violation; and

`(B) any property, whether real or personal, constituting or derived from, any proceeds that such person obtained, whether 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 of 1970 (21 U.S.C. 853), except subsection (d) of that section.

`(i)(1) The following shall be subject to forfeiture to the United States, and no property right shall exist in them:

`(A) Any property, whether real or personal, used or intended to be used to commit or to facilitate the commission of any violation of this section.

`(B) Any property, whether real or personal, which constitutes or is derived from proceeds traceable to any violation of this section.

`(2) The provisions of chapter 46 of this title relating to civil forfeiture shall apply to any seizure or civil forfeiture under this subsection.'.

(b) AMENDMENTS TO SENTENCING GUIDELINES- Pursuant to its authority under section 994(p) of title 28, United States Code, the United States Sentencing Commission shall amend the sentencing guidelines to ensure any individual convicted of a violation of paragraph (4) or a felony violation of paragraph (5)(A), but not a felony violation of paragraph (5)(B) or (5)(C), of section 1030(a) of title 18, United States Code, is imprisoned for not less than 6 months.

(c) COMMUNICATIONS MATTERS-

(1) IN GENERAL- Section 223(a)(1) of the Communications Act of 1934 (47 U.S.C. 223(a)(1)) is amended--

(A) in subparagraphs (C) and (E), by inserting `or interactive computer service' after `telecommunications device';

(B) in subparagraph (D), by striking `or' at the end; and

(C) by adding after subparagraph (E) the following new subparagraph:

`(F) with the intent to cause the unavailability of a telecommunications device or interactive computer service, or to cause damage to a protected computer (as those terms are defined in section 1030 of title 18, United States Code), causes or attempts to cause one or more other persons to initiate communication with such telecommunications device, interactive computer service, or protected computer; or'.

(2) CONFORMING AMENDMENT- The section heading of that section is amended by striking `TELEPHONE CALLS' and inserting `COMMUNICATIONS'.

SEC. 3. INTERCEPTION OF WIRE, ORAL, AND ELECTRONIC COMMUNICATIONS.

(a) DEFINITIONS- Section 2510 of title 18, United States Code, is amended--

(1) in paragraph (1), by striking `electronic storage' and inserting `interim storage';

(2) in paragraph (10), by striking `section 153(h) of title 47 of the United States Code' and inserting `section 3(10) of the Communications Act of 1934 (47 U.S.C. 153(10))';

(3) in paragraph (14)--

(A) by striking `of electronic' and inserting `of wire or electronic'; and

(B) by striking `electronic storage' and inserting `interim storage'; and

(4) in paragraph (17)--

(A) by striking `electronic storage' and inserting `interim storage'; and

(B) in subparagraph (A), by inserting `by an electronic communication service' after `intermediate storage'.

(b) PROHIBITION ON INTERCEPTION AND DISCLOSURE OF COMMUNICATIONS- Section 2511 of that title is amended--

(1) in subsection (2)--

(A) in paragraph (a)(i), by striking `on officer' and inserting `an officer';

(B) in paragraph (f)--

(i) by inserting `or 206' after `chapter 121'; and

(ii) by striking `wire and oral' and inserting `wire, oral, and electronic'; and

(C) in paragraph (g), by striking clause (i) and inserting the following new clause (i):

`(i) to intercept or access a wire or electronic communication (other than a radio communication) made through an electronic communications system that is configured so that such communication is readily accessible to the general public;'; and

(2) in subsection (4)--

(A) in paragraph (a), by striking `in paragraph (b) of this subsection or';

(B) by striking paragraph (b); and

(C) by redesignating paragraph (c) as paragraph (b).

(c) PROHIBITION ON USE OF EVIDENCE OF INTERCEPTED COMMUNICATIONS- Section 2515 of that title is amended--

(1) by striking `Whenever any wire or oral communication' and inserting `(a) Except as provided in subsection (b), whenever any wire, oral, or electronic communication'; and

(2) by adding at the end the following new subsection:

`(b) Subsection (a) shall not apply to the disclosure, before a grand jury or in a criminal trial, hearing, or other criminal proceeding, of the contents of a communication, or evidence derived therefrom, against a person alleged to have intercepted, used, or disclosed the communication in violation of this chapter, or participated in such violation.'.

(d) AUTHORIZATION FOR INTERCEPTION OF COMMUNICATIONS- Section 2516 of that title is amended--

(1) in subsection (1)--

(A) by striking `wire or oral' in the matter preceding paragraph (a) and inserting `wire, oral, or electronic';

(B) in paragraph (b), by inserting `threat,' after `robbery,';

(C) by striking the first paragraph (p) and inserting the following new paragraph (p):

`(p) a felony violation of section 1030 of this title (relating to computer fraud and abuse), a felony violation of section 223 of the Communications Act of 1934 (47 U.S.C. 223) (relating to abusive communications in interstate or foreign commerce), or a violation of section 1362 of this title (relating to destruction of government communications facilities); or'; and

(D) by redesignating the second paragraph (p) as paragraph (q); and

(2) in subsection (3), by striking `electronic communications' and inserting `one-way pager communications'.

(e) AUTHORIZATION FOR DISCLOSURE OR USE OF INTERCEPTED COMMUNICATIONS- Section 2517 of that title is amended in subsections (1) and (2) by inserting `or under the circumstances described in section 2515(b) of this title' after `by any means authorized by this chapter'.

(f) PROCEDURE FOR INTERCEPTION- Section 2518 of that title is amended--

(1) in subsection (7), by striking `subsection (d)' and inserting `subsection (8)(d)'; and

(2) in subsection (10)--

(A) in paragraph (a)--

(i) in the matter preceding subparagraph (i), by striking `wire or oral' and inserting `wire, oral, or electronic'; and

(ii) in the flush matter following subparagraph (iii)--

(I) by striking `intercepted wire or oral communication' and inserting `intercepted communication'; and

(II) by adding at the end the following new sentence: `No suppression may be ordered under this paragraph under the circumstances described in section 2515(b) of this title.'; and

(B) by striking paragraph (c).

(g) CIVIL DAMAGES- Section 2520(c)(2) of that title is amended--

(1) in the matter preceding subparagraph (A)--

(A) by striking `court may' and inserting `court shall'; and

(B) by striking `greater' and inserting `greatest';

(2) in subparagraph (A), by striking `or' at the end;

(3) in subparagraph (B), by striking `whichever is the greater of $100 a day for each day of violation or $10,000.' and inserting `$500 a day for each day of violation; or'; and

(4) by adding at the end the following new subparagraph:

`(C) statutory damages of $10,000.'.

(h) CONFORMING AND CLERICAL AMENDMENTS-

(1) CONFORMING AMENDMENT- The section heading of section 2515 of that title is amended to read as follows:

`Sec. 2515. Prohibition on use as evidence of intercepted wire, oral, or electronic communications'.

(2) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 119 of that title is amended by striking the item relating to section 2515 and inserting the following new item:

`2515. Prohibition on use as evidence of intercepted wire, oral, or electronic communications.'.

SEC. 4. ELECTRONIC COMMUNICATIONS PRIVACY.

(a) UNLAWFUL ACCESS TO STORED COMMUNICATIONS- Section 2701 of title 18, United States Code, is amended--

(1) in subsection (a) by striking `electronic storage' and inserting `interim storage';

(2) in subsection (b)--

(A) in paragraph (1)--

(i) by striking `purposes of' in the matter preceding subparagraph (A) and inserting `a tortious or illegal purpose,';

(ii) in subparagraph (A) by striking `one year' and inserting `five years'; and

(iii) in subparagraph (B) by striking `two years' and inserting `ten years'; and

(B) by striking paragraph (2) and inserting the following new paragraph (2):

`(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; and

`(B) a fine under this title or imprisonment for not more than five years, or both, for any subsequent offense under this subparagraph.'.

(b) DISCLOSURE OF CONTENTS- Section 2702 of that title is amended--

(1) in subsection (a)--

(A) in paragraph (1)--

(i) by striking `person or entity providing an' and inserting `provider of';

(ii) by striking `electronic storage' and inserting `interim storage'; and

(iii) by striking `and' at the end;

(B) in paragraph (2)--

(i) by striking `person or entity providing' and inserting `provider of'; and

(ii) striking the period at the end and inserting `; and'; and

(C) by adding at the end the following new paragraph:

`(3) a provider of remote computing 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 paragraph (1) or (2) of this subsection) to any governmental entity.';

(2) in subsection (b)--

(A) in the subsection caption, by inserting `FOR DISCLOSURE OF COMMUNICATIONS' after `EXCEPTIONS';

(B) in the matter preceding paragraph (1), by striking `person or entity' and inserting `provider described in subsection (a)';

(C) in paragraph (6)--

(i) in subparagraph (A)(ii), by striking `or' at the end;

(ii) in subparagraph (B), by striking the period at the end and inserting `; or'; and

(iii) by adding at the end the following new subparagraph:

`(C) 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.'; and

(3) by adding at the end the following new subsection:

`(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 paragraph (1) or (2) of subsection (a))--

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

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

`(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 if not otherwise prohibited by law.'.

(c) REQUIREMENTS FOR GOVERNMENTAL ACCESS- Section 2703 of that title is amended--

(1) in subsection (a), by striking `electronic storage' each place it appears and inserting `interim storage';

(2) in subsection (b)(1)(B), by striking clause (i) and inserting the following new clause (i):

`(i) uses a Federal or State grand jury or trial subpoena, or a subpoena or equivalent process authorized by a Federal or State statute; or';

(3) in subsection (c)--

(A) by redesignating paragraph (2) as paragraph (3);

(B) by redesignating subparagraph (C) of paragraph (1) as paragraph (2);

(C) in paragraph (2), as so redesignated--

(i) by striking `an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena' and inserting `a Federal or State grand jury or trial subpoena, or a subpoena or equivalent process authorized by a Federal or State statute,'; and

(ii) by striking `subparagraph (B).' and inserting `paragraph (1).'; and

(D) in paragraph (1)--

(i) by striking `(A) Except as provided in subparagraph (B),' and inserting `A governmental entity may require';

(ii) by striking `may disclose' and inserting `to disclose';

(iii) by striking `to any person other than a governmental entity.';

(iv) by striking `(B) A provider of' through `to a governmental entity';

(v) by redesignating clauses (i) through (iv) as subparagraphs (A) through (D);

(vi) by striking `or' at the end of subparagraph (C), as so redesignated;

(vii) by striking the period at the end of subparagraph (D), as so redesignated, and inserting `; or'; and

(viii) by adding after subparagraph (D), as so redesignated, the following new subparagraph:

`(E) seeks information pursuant to paragraph (2).'; and

(4) in subsection (d)--

(A) by striking `subsection (c)' and inserting `subsection (c)(1)'; and

(B) by striking `section 3127(2)(A)' and inserting `section 3127(2)'.

(d) DELAYED NOTICE- Section 2705(a) of that title is amended--

(1) in paragraph (1)(B), by striking `an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury subpoena' and inserting `a Federal or State grand jury or trial subpoena, or a subpoena or equivalent process authorized by a Federal or State statute,'; and

(2) in paragraph (4), by striking `by the court' and all that follows through the end of the paragraph and inserting `, upon application, if the court determines that there is reason to believe that notification of the existence of the court order or subpoena may have an adverse result described in paragraph (2) of this subsection.'.

(e) CIVIL ACTION- Section 2707(e)(1) of that title is amended by inserting `a request of a governmental entity under section 2703(f) of this title,' after `subpoena,'.

(f) CONFORMING AND CLERICAL AMENDMENTS-

(1) CONFORMING AMENDMENTS- (A) The section heading of section 2702 of that title is amended to read as follows:

`Sec. 2702. Voluntary disclosure of customer communications or records'.

(B) The section heading of section 2703 of that title is amended to read as follows:

`Sec. 2703. Required disclosure of customer communications or records'.

(2) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 121 of that title is amended by striking the items relating to sections 2702 and 2703 and inserting the following new items:

`2702. Voluntary disclosure of customer communications or records.

`2703. Required disclosure of customer communications or records.'.

SEC. 5. PEN REGISTERS AND TRAP AND TRACE DEVICES.

(a) GENERAL PROHIBITION ON USE- Section 3121(c) of title 18, United States Code, is amended--

(1) by inserting `or trap and trace device' after `pen register';

(2) by inserting `, routing, addressing,' after `dialing'; and

(3) by striking `call processing' and inserting `the processing and transmitting of wire and electronic communications'.

(b) APPLICATION FOR ORDER- Section 3122(b)(2) of that title is amended by striking `certification by the applicant' and inserting `statement of facts showing'.

(c) ISSUANCE OF ORDER- Section 3123 of that title is amended--

(1) by striking subsection (a) and inserting the following new subsection (a):

`(a) IN GENERAL- (1) Upon an application made under section 3122(a)(1) of this title, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device if the court finds, based on facts contained in the application, that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation. Such order shall, upon service of such order, apply to any entity providing wire or electronic communication service in the United States whose assistance may facilitate the execution of the order.

`(2) Upon an application made under section 3122(a)(2) of this title, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court if the court finds, based on facts contained in the application, that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.';

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

(A) in subparagraph (A)--

(i) by inserting `or other facility' after `line'; and

(ii) by inserting `or applied' after `attached'; and

(B) in subparagraph (C)--

(i) by striking `the number' and inserting `the attributes of the communications to which the order applies, such as the number or other identifier,';

(ii) by striking `physical';

(iii) by inserting `or other facility' after `line';

(iv) by inserting `or applied' after `attached'; and

(v) by inserting `authorized under subsection (a)(2) of this section' after `device' the second place it appears; and

(4) in subsection (d)(2)--

(A) by inserting `or other facility' after `line';

(B) by inserting `or applied' after `attached'; and

(C) by striking `has been ordered by the court' and inserting `is obligated by the order'.

(d) EMERGENCY INSTALLATION- Section 3125(a)(1) of that title is amended--

(1) in subparagraph (A), by striking `or' at the end;

(2) in subparagraph (B), by striking the comma at the end and inserting a semicolon; and

(3) by adding at the end the following new subparagraphs:

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

`(D) an ongoing attack on the integrity or availability of a protected computer punishable pursuant to section 1030(c)(2)(C) of this title,'.

(e) DEFINITIONS- Section 3127 of that title is amended--

(1) in paragraph (2), by striking subparagraph (A) and inserting the following new subparagraph (A):

`(A) any district court of the United States (including a magistrate judge of such a court) or United States Court of Appeals having jurisdiction over the offense being investigated; or';

(2) in paragraph (3)--

(A) by striking `electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached' and inserting `dialing, routing, addressing, and signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted'; and

(B) by inserting `or process' after `device' each place it appears;

(3) in paragraph (4)--

(A) by inserting `or process' after `a device'; and

(B) by striking `of an instrument or device from which a wire or electronic communication was transmitted' and inserting `or other dialing, routing, addressing, and signaling information relevant to identifying the source of a wire or electronic communication';

(4) in paragraph (5), by striking `and' at the end;

(5) in paragraph (6), by striking the period at the end and inserting `; and'; and

(6) by adding at the end the following new paragraph:

`(7) the term `protected computer' has the meaning given that term in section 1030(e) of this title.'.

SEC. 6. JUVENILE MATTERS.

Section 5032 of title 18, United States Code, is amended in the first undesignated paragraph by inserting after `section 924(b), (g), or (h) of this title,' the following: `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) where such felony violation of section 1030(a)(5) is eligible for punishment under section 1030(c)(2)(C)(ii) through (v) of this title,'.

SEC. 7. PROTECTION OF CABLE SERVICE SUBSCRIBER PRIVACY.

Section 631 of the Communications Act of 1934 (47 U.S.C. 551) is amended--

(1) in subsection (c)(2)--

(A) in subparagraph (B), by striking `or' at the end;

(B) in subparagraph (C), by striking the period at the end and inserting `; or'; and

(C) by adding at the end the following new subparagraph:

`(D) required under chapter 119, 121, or 206 of title 18, United States Code, except that disclosure under this subparagraph shall not include records revealing customer cable television viewing activity.'; and

(2) in subsection (h), by striking `A governmental entity' and inserting `Except as provided in subsection (c)(2)(D), a governmental entity'.

END