Statement by Rep. Charles Canady (R-FL).
Re: Amendment in the Nature of a Substitute to HR 5018.
Date: September 14, 2000.
Source: House Judiciary Committee.

Substitute Amendment Statement by Mr. Canady

I have an amendment at the desk.

The Amendment in the Nature of a Substitute makes a few clarifications, and a few additions, to the provisions of H.R. 5018.

First, Section 2 of the bill amends the statutory exclusionary rule to exclude from use in evidence the contents of electronic communications that are illegally intercepted and the contents of electronic communications in electronic storage that are illegally disclosed.   The Substitute Amendment changes the phrase “stored electronic communication” in H.R. 5018 to “electronic communication in electronic storage.”   This change was made to avoid confusion because it is the phrase “electronic storage,” and not “stored electronic communication,” that is defined elsewhere in the Electronic Communications Privacy Act of 1986.  This definition includes e-mail messages that have been sent to, but not yet received by, the recipient of the communication, during which time the message is stored by an Internet Service Provider until it is requested by the recipient.

Second, a provision is added that provides that the statutory exclusionary rule shall not apply to prohibit the use of illegally obtained electronic communications before a grand jury or in a criminal proceeding brought against a person alleged to have illegally obtained such communications.  This quite properly permits such illegally obtained communications to be used in evidence in the prosecution of a person who illegally obtained the communication.

Third, while the Substitute Amendment amends the statutory exclusionary rule to exclude from  use in evidence illegally intercepted “electronic communications,” another part of Title 18 -- 18 U.S.C. § 2518(10) -- defines more specifically the grounds upon which illegally intercepted wire and oral communications may be suppressed.  The Substitute Amendment amends 18 U.S.C. § 2518(10) to conform to the extension of the statutory exclusionary rule to cover illegally intercepted “electronic communications.”

Fourth, the Substitute Amendment pares down the reporting requirements the government must meet when it requests an order for the disclosure of the contents of stored electronic communications under 18 U.S.C. § 2703(a) or (b).  The reporting requirements in the Substitute provide for the simple enumeration of such things as the number of such requests made and the offenses specified in the orders, and the approximate number of incriminating communications disclosed relative to the number of non-incriminating communications disclosed.  Such simple enumerations, while not excessively burdensome to law enforcement, 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.

Fifth, the Substitute Amendment raises the evidentiary standard the government must meet to obtain “to” and “from” information under the Pen Register Act, such as numbers dialed to and from a telephone.  Currently, to obtain such information, a law enforcement official need only certify that the information to be obtained is relevant to an ongoing criminal investigation.  The Substitute Amendment raises this standard such that a court must find that the law enforcement official has demonstrated that “specific and articulable facts reasonably indicate that a crime has been, is being, or will be committed, and information likely to be obtained ... is relevant to the investigation of that crime.”  This so-called “reasonable indicia standard” is the same standard that the Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Domestic Security and Terrorism Investigations require must be met before a criminal investigation may be initiated.

Sixth, the Substitute Amendment increases the civil penalties that may be applied to those who illegally intercept electronic communications by raising the daily damages for each violation from $100 a day to $500 a day.

Finally, the Substitute Amendment makes clear that only a court order, and not a certification by a law enforcement official, may authorize a delay in notifying a subscriber under 18 U.S.C. § 2703(b) that the contents of his electronic communications have been disclosed.