E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 108 CONGRESS, FIRST SESSION

Vol. 149 WASHINGTON, WEDNESDAY, OCTOBER 22, 2003 No. 149 House of Representatives The House was not in session today. Its next meeting will be held on Friday, October 24, 2003, at 10 a.m. Senate WEDNESDAY, OCTOBER 22, 2003

The Senate met at 9:30 a.m. and was APPOINTMENT OF ACTING the final 60 minutes will be equally di- called to order by the Honorable SAM- PRESIDENT PRO TEMPORE vided for Senators to speak. UEL D. BROWNBACK, a Senator from the The PRESIDING OFFICER. The Following this time, at 11:30 the Sen- State of Kansas. clerk will please read a communication ate will resume debate on the motion to proceed to S. 1751, the class action to the Senate from the President pro fairness bill. At 12:30 p.m., the Senate PRAYER tempore (Mr. STEVENS). will proceed to the vote on the motion The legislative clerk read the fol- The Chaplain, Dr. Barry C. Black, of- to invoke cloture on the motion to pro- lowing letter: fered the following prayer: ceed to S. 1751. This cloture vote will Let us pray. U.S. SENATE, be the first vote of today’s session. I O God, Great Lover of our souls, You PRESIDENT PRO TEMPORE, am hopeful that cloture will be in- Washington, DC, October 22, 2003. are our glory, our hope, and our refuge voked today and that we are able to in the day of trouble. Nothing is sweet- To the Senate: Under the provisions of rule I, para- proceed to the legislation for debate er than Your love. graph 3, of the Standing Rules of the and amendments. Lord, may we remember that Your Senate, I hereby appoint the Honorable If we are to begin consideration of love can cast out fear, and release us the class action measure, I also hope to SAMUEL D. BROWNBACK, a Senator from from chains of selfishness. Help us to the State of Kansas, to perform the du- reach an agreement on amendments to live to please You. the bill which would allow us to finish ties of the Chair. the bill this week. I will be talking to May we remember that we are only TED STEVENS, pilgrims on Earth, made for eternity, President pro tempore. the Democratic leadership about an agreement for later today, if the clo- not for time alone. Give the light of Mr. BROWNBACK thereupon as- Your truth to our Senators so that ture vote is successful. sumed the Chair as Acting President Again, I remind Members that we they will remain ethically fit. May pro tempore. they not rest their trust in only what continue to work on time agreements humans can accomplish, but in the f for the consideration of a number of power of Your Spirit. Let their mouths RECOGNITION OF THE MAJORITY issues—the fair education credit re- speak wisdom and make them forces LEADER porting legislation, the anti-spam bill, for unity. the Internet tax moratorium measure, The ACTING PRESIDENT pro tem- Teach us to depend on You so that the Healthy Forests bill, the CARE pore. The majority leader is recog- our joy may be full. We pray this in Act, as well as nominations that are nized. Your strong name. Amen. available on the Executive Calendar. f This is not an exclusive list, and we f continue to process legislation each SCHEDULE day as legislative items are cleared for Mr. FRIST. Mr. President, under the floor action. PLEDGE OF ALLEGIANCE order from last night, the Senate will We have a lot of work to do in the The Honorable SAMUEL D. BROWN- conduct a period of morning business few remaining weeks left in the ses- BACK led the Pledge of Allegiance, as until 11:30 this morning. During morn- sion. It will require some give on both follows: ing business, the first 30 minutes will sides of the aisle. I hope Members will I pledge allegiance to the Flag of the be under the control of Senator allow us to reach agreements to con- United States of America, and to the Repub- HUTCHISON, the second block of 30 min- sider legislation so that we can use the lic for which it stands, one nation under God, utes will be under the control of the remaining floor time in an efficient indivisible, with liberty and justice for all. Democratic leader or his designee, and manner.

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

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VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00001 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S12986 CONGRESSIONAL RECORD — SENATE October 22, 2003 RECOGNITION OF THE ACTING full participation of Iraqi women who We set aside the issue of qualifica- MINORITY LEADER have been oppressed for so long—for al- tions and take it as a given that he is The ACTING PRESIDENT pro tem- most three decades now. surely qualified for this position. pore. The Senator from Nevada is rec- I yield the floor. The question that has been raised is ognized. f whether General Pryor would follow Mr. REID. Mr. President, as we dis- the law. That is a question that Mem- RESERVATION OF LEADERSHIP bers on both sides of the aisle ask of ju- cussed yesterday on the floor, there is TIME a need to do appropriations bills. As dicial nominees from both parties: Will the leader knows, he has spoken to the The ACTING PRESIDENT pro tem- you follow the law? Will you exercise Democratic leader and there is an op- pore. Under the previous order, leader- your own judgment and be creative on portunity I believe in the next week or ship time is reserved. the bench? I daresay if you look at the history— so to move a couple of appropriations f certainly recent history—of the courts, bills. If there is anything we can do to MORNING BUSINESS many who have come through this narrow the size of the omnibus pack- The ACTING PRESIDENT pro tem- Chamber who said they would follow age, the country will be well served. I pore. Under the previous order, there the law have not done so. I argue that hope the distinguished Senator from will now be a period for the transaction the vast preponderance of those have Tennessee will continue to work to see of morning business until 11:30 a.m., been nominees of Democratic Presi- if we can move some of these appro- with the time equally divided between dents who have taken an activist ap- priations bills. the two leaders or their designees. The proach on the bench, as well as, unfor- As has been indicated, I think we can first 30 minutes will be under the con- tunately, some Republican nominees do that with a reasonable number of trol of the Senator from Texas, Mrs. who have taken an activist approach amendments and in a reasonable period HUTCHISON, or her designee, and the on the bench, an activist approach in of time. It would surely be helpful to second 30 minutes will be under the the direction that would be contrary to the country. control of the Democratic leader or his where I would like to see the judiciary Mr. FRIST. Mr. President, in re- designee. go. We have not seen that evidence as sponse, through the Chair, the appro- much by nominees taking a more con- priations bills are critical and we con- f servative approach as opposed to the tinue to work aggressively. I am in ORDER OF PROCEDURE liberal court approach we have seen in wholehearted agreement. Bringing Mr. REID. Mr. President, I have spo- the courts over the years. these bills to the floor one by one is a ken to the Senator from Utah, the Sen- Nevertheless, it is a legitimate ques- much preferred route to take. We con- ator from Pennsylvania, and the Sen- tion for Members on the other side of tinue to work aggressively in that re- ator from Alaska. They have been gra- the aisle to ask if a conservative would gard. cious enough to allow Senator KEN- adopt their own agenda—probably f NEDY to follow Senator SANTORUM out given the experience of so many lib- of order for 5 minutes. We understand WOMEN’S RIGHTS CENTER IN IRAQ erals adopting their agenda, and they that. Senator KENNEDY has no other want to make sure, while they are Mr. FRIST. Mr. President, I wish to time. I ask unanimous consent that the comfortable with that, they would be take 2 or 3 minutes to make a com- Senator from Pennsylvania be recog- uncomfortable with conservatives ment on another issue. nized for 5 minutes, followed by the doing the same thing. Earlier this month, the Fatima Senator from Massachusetts for 5 min- In the case of Attorney General Zehran Center for Women’s Rights utes. I express my appreciation espe- Pryor, we have someone who has shown opened in Hillah in the Babil Province cially to the Senator from Alaska for at least on two high profile occasions, in Iraq. This center is the first of its allowing this to take place. most recently just a few months ago, kind to be established since the libera- The ACTING PRESIDENT pro tem- that he would strictly adhere to the tion of Iraq. It is also one of the many pore. Is there objection? law even when he disagrees with the such planned across the country in Without objection, it is so ordered. rulings of the court. Iraq. It oversees classes and workshops The Senator from the great State of In the most famous case of the Ten on women’s issues and even broader Pennsylvania. Commandments in the courthouse in issues in nutrition, in health, democ- f Alabama, Supreme Court Justice racy, empowerment and leadership, lit- Moore wanted a display of the Ten eracy, computer and Internet skills, NOMINATION OF WILLIAM H. Commandments in the middle of the and entrepreneurship in local markets. PRYOR, JR. courthouse, and Attorney General As we all know, the last 35 years in Mr. SANTORUM. Mr. President, Pryor complied with the removal order Iraq have been a period of injustice for thank you. even though it is fairly clear he had no and oppression of Iraqi women. They I rise today to voice my support for problem with this display. Neverthe- were deprived of their civil and polit- the nominee who is before this body. less, he showed his integrity and fol- ical rights. There was debate on this nomination lowed the law. This is just another example of tre- last night by many Members on our In previous cases, in an abortion-re- mendous progress being made in Iraq. side of the aisle who are concerned lated partial-birth abortion decision— New programs are being developed and about the treatment of this qualified we just had a vote on the issue—he fol- implemented throughout the country individual for the circuit court, Attor- lowed the law. The Alabama courts, to raise the educational standard of ney General Bill Pryor of Alabama. the Supreme Court, issued a ruling and Iraqi women. A few employment oppor- I wish to make three points with re- he followed that ruling. This is a man tunities are occurring throughout the spect to Attorney General Pryor. who has integrity and has a record of country. The Baghdad City Council has No. 1, his qualifications. following the law. begun a major project to establish As we heard last night and have What is the third issue? The third women’s institutes throughout the heard repeatedly both in the Judiciary issue has to do with ‘‘deeply held be- city. Committee and here, there is no ques- liefs.’’ This was a question asked by It is clear that the time has come for tion as to the man’s qualification, his several members on the Democratic Iraqi women to occupy their natural skills, his experience, his record of ac- side at the hearing about his deeply position in society and in leading their complishment, his educational back- held beliefs. Attorney General Pryor nation. Now they have the opportunity ground. They are all exemplary, ex- happens to be Catholic. His deeply held to play an active role in the decision- traordinary. This man, without ques- religious beliefs dictate to him a posi- making processes of the political and tion, is qualified for this position. I tion on issues which happen to be anti- economic development of a free Iraq. I daresay that most, even those who op- thetical to some on the Democratic am delighted that such progress is pose him, have not questioned his in- side on the Judiciary Committee. I being made, and I look forward to the nate qualifications for the job. frankly took offense to the question

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00002 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S12987 being asked about his deeply held reli- the subject of any hearings or any The Chief Justice of the United gious beliefs as somehow a disqualifier; careful analysis by impartial experts in States has told us not to pass this bill. somehow if you hold beliefs deeply you the field. The National Association of State are no longer eligible to hold a position Yet the bill makes massive changes Chief Justices has told us not to pass of public trust in the judiciary. in the basic rules of the road on juris- this bill. Dozens of organizations with I argue this country was founded on diction of the courts. no interest to protect except the right religious pluralism; that is, people with It suddenly abandons 200 years of ev- of people to obtain a remedy when they shallowly held religious beliefs, deeply olutionary change in Federal jurisdic- are wronged, have pleaded with us not held religious beliefs, no religious be- tion and substitutes a totally new road to pass this bill. liefs, all are eligible and welcome to that no one has traveled and no one A vote for cloture is a vote to deprive serve in this country in positions of can map. It does so in the interest of our constituents of an important and importance, whether it is in the judici- purported problems that, if they exist realistic remedy for the vindication of ary, whether in the legislature, or in at all, are not emergencies and cer- their rights. When we deprive the peo- the Executive Office. tainly are not so urgent that we need ple of remedies, we deprive them of We are finding a litmus test that to move ahead so blindly. their rights. should be very disturbing to people of If we enact this bill, we will have That is not what they sent us here to faith, to people of no faith. It has no confusion and conflict in the Nation’s do. That is not what the founders cre- place in the Senate. courts for years, as they wrestle to un- ated the Senate to do. We offend our I yield the floor. tangle the mess which this law pro- people and we offend our history if we The ACTING PRESIDENT pro tem- duces. Its most visible initial impact fail them today. pore. The Senator from the great State will be to add an entire new layer of The ACTING PRESIDENT pro tem- of Massachusetts. legal jousting, litigation burden and pore. The Senator from the great State Mr. KENNEDY. I thank the Repub- higher costs to already complex cases. of Utah. If the hopes of its sponsors are real- lican leader and Senator MURKOWSKI ized at all, the law will force a very f and Senator BENNETT as well for their courtesy this morning. large number of complex and impor- IRAQ tant cases off the dockets of tens of f Mr. BENNETT. Mr. President, we thousands of State judges and onto the have a continual drumbeat going on in CLOTURE VOTE ON CLASS ACTION dockets of less than 2,000 Federal this Chamber. It came to a crescendo Mr. KENNEDY. Mr. President, what judges, who already face massive back- during the debate over the Iraq supple- we are being asked to do on this class logs. mental, but it goes on even when there We can also expect that the law as action bill is a travesty. We are not is no legislation on the floor dealing now proposed will do serious harm to only being asked to throw the baby out with Iraq. There are several themes of the ability of citizens in civil rights with the bathwater; we are being asked this drumbeat that I would like to ad- cases to obtain the relief they are enti- to throw out the bathtub and buy a dress this morning. tled to under State law. new one that no sensible parents would There are no legitimate complaints The first theme we hear over and even want to put the baby in. about class actions on civil rights. Yet over and over again is the theme of We all know what is going on here. this bill would severely and adversely faulty intelligence. How could the Corporate giants and giant insurance affect such cases. President have been so stupid as to companies do not want to be held ac- The bill will make the most pressing have acted on faulty intelligence? Oc- countable in class action cases, and and legitimate class action cases more casionally, the enthusiasm for this they want to make it as hard as pos- burdensome and more expensive. It will theme gets carried away to levels that sible for injured citizens to obtain re- reduce the ability of courts to improve are inappropriate, as we have the accu- lief. They are powerful special inter- the efficiency of justice by dealing sation that the President was not just ests. They know that the heavier the with large numbers of small but simi- misled by faulty intelligence, he delib- burden they impose on the courts, on lar cases in groups, instead of one at a erately lied. We hear this again and consumers, and on those with legiti- time. again, particularly in the media: The mate civil rights and environmental To the extent that plaintiffs need ad- President is a liar; he deliberately mis- claims, the less likely they are to be ditional safeguards for the class plain- led the country. held accountable. tiffs in class actions, this legislation I would like to address that theme All of us agree that class action pro- promises a ‘‘Bill of Rights,’’ but it does for a moment and then another theme cedures are far from satisfactory, espe- not produce what it promises. It does we hear over and over which is that the cially in large nationwide cases, and not seriously address the problem of President has made a terrible mistake reasonable reforms are long overdue. worthless and collusive settlements, when he has endorsed the concept of If we vote for cloture today we are which produce substantial benefits for preemptive war. We have these two giving a blank check to those who attorneys and defendants, but little or themes: No. 1, the President is either would like class actions to disappear nothing for injured plaintiffs. stupid or a liar because he mishandled entirely, so that injured citizens do not The basic purpose of court actions in the intelligence; and No. 2, he has em- have to be paid at all. If we vote general, and class actions in particular, braced a historically repugnant doc- against cloture, we will give new lever- is to enable injured people to get re- trine, the doctrine of preemptive war. age and needed time to those who are lief—sometimes monetary relief and On the issue of intelligence, let us serious about reforming class actions sometimes other relief such as injunc- understand something about intel- and just as serious about protecting tions against discrimination or res- ligence. It is never hard and fast. It is citizens’ rights. toration of employment. always an estimate. It is also a guess. Today we are presented, virtually on If citizens know that reliable relief is It is also the best view of the people a take it or leave it basis, with what possible at reasonable expense and who are making intelligence decisions can only be called a radical shift in within a reasonable time, they will ini- and assessments. And it is often wrong. Federal law, a bill that calls itself the tiate the court actions that our judi- Let me give you an example of a Class Action Reform Act. If we want cial system allows them to bring. President who acted on intelligence truth in labeling, we should call it the That kind of relief tells those who that turned out to be wrong. No, let me Class Action Destruction and Federal might discriminate: don’t discrimi- back away from that, not necessarily a Court Disruption Act. nate. It tells those who might bring President who acted, a commander who In its present form, this bill is a hazardous products to markets: don’t acted on intelligence that turned out shoddy patchwork of different ideas hurt consumers. It tells those who to be wrong that had significant inter- and different approaches grafted to- might harm the environment: even if national effect. gether with no concern for its overall no individual person is harmed enough I was traveling in China with the impact, as long as it shields defend- to be able to sue, you will be brought then-senior Senator from Texas, Phil ants. Key provisions have never been to justice, so stop polluting. Gramm, and we met with the Prime

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00003 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S12988 CONGRESSIONAL RECORD — SENATE October 22, 2003 Minister of China, not long after the attacked by the people on the other Mr. FEINGOLD addressed the Chair. Americans, under the command of GEN side of the aisle. The PRESIDING OFFICER (Mr. GRA- Wesley Clark, had bombed the Chinese Now, finally, this issue of preemptive HAM of South Carolina). The Senator Embassy in Serbia. The Chinese were war. I will not take the time to go into from Alaska is recognized under a pre- understandably very concerned about a full discussion, but I say, particularly vious order of the body. There was a that. to those Senators who pride themselves previous agreement that was entered We said: It was a mistake. It was an on their sense of history, let us look into that grants her this slot of time. error. And the Chinese Ambassador, back in history and ask ourselves, The Senator from Alaska. with whom we were talking at the what would have happened if Neville f time, said: You have the best intel- Chamberlain, Prime Minister of Great ENERGY FROM ALASKA: JOBS FOR ligence in the world. You must have Britain, had adopted the attitude of AMERICA known that was the Chinese Embassy. preemptive war when he went to Mu- That was not a hidden fact. That was nich? What would have happened if he Ms. MURKOWSKI. Mr. President, I not a secret. You have the most accu- had sat down with Adolph Hitler and rise this morning to speak about a rate military in the world. You did done what Winston Churchill was urg- topic of great importance to our Na- that deliberately. ing him to do, which is the same doc- tion; that is, the subject of jobs. Then he pointed out to us that was trine that George W. Bush had put for- I know this subject is on the minds of not just the Chinese Embassy; that ward, and said to Hitler: If you attack my colleagues, and certainly on the was, in fact, the headquarters of the Czechoslovakia, there will be war. If minds of my constituents back home in Chinese intelligence operation you move ahead, there will be war? Alaska, but really Americans through- throughout Central Europe. So we Neville Chamberlain and some of the out the country. bombed an embassy and we took out people around him said: Hitler does not Since 2000, the American economy their intelligence capability. They represent an imminent threat. Hitler is has been in a slump. In 2000, we were said: You did that deliberately. We not talking about bombing London headed toward a recession. The stock said: No; it was a mistake. now. If we give him Czechoslovakia, he market declined and the technology I remember Senator SHELBY saying: will feel nice towards us. We need to bubble burst. Then came September 11. The proof of the fact that it is a mis- worry about international opinion. We When terrorists struck the World take is that nobody would have been need to see to it that everybody gets Trade Center and the Pentagon, our stupid enough to do that deliberately. together in the international commu- economy suffered. And as we, as a Then the Chinese Ambassador said: If nity. And Czechoslovakia does not af- country, mourned the loss of 3,000 inno- it was a mistake, why hasn’t somebody fect us. cent Americans, we again watched that been fired? And for that, we had no par- Chamberlain said: Those are people stock market tumble and, really, the ticular answer. far away from us with whom we have economy grind to a halt. Checking into it, we found the reason nothing to do, a speech that could have This administration has been work- that happened is because GEN Wesley been made on the floor of this Senate ing very hard not only to protect Clark, the commander of NATO, was as people talk about Iraq: They are far American people from terrorism but to demanding targets: I need more tar- away from us, people with whom we revive, to reinvigorate our economy. gets. I’m running out of targets. And have nothing to do. And the threat is The approach that has been taken to under the pressure of those demands not imminent. cut Federal taxes, as we have done in from that commanding general, the Churchill was long-headed enough to Congress, the move the Federal Re- CIA came up with targets, and they know that if Hitler got control of serve Board has taken in cutting inter- came up with an old target with bad in- Czechoslovakia, he would get control of est rates, those were the right things formation, under the pressure from a the finest machine shops in Europe, he to do. But we can do so much more. We commander who was anxious to keep would add to his military machine, and can and we must take positive steps to bombing even though he had run out of he would be prepared to wage world create good paying jobs for Americans. legitimate targets. In that pressure, a war. If Hitler were denied Czecho- On the floor recently many of my tragic mistake was made, and Amer- slovakia, we now know in history, his colleagues have been talking about the ica’s relationship with China was seri- own generals would have deposed him loss of jobs we have sustained over the ously damaged in that situation. for being too risky. last few years. The truth is, we have So intelligence is not always perfect. But Neville Chamberlain said: No. We lost a lot of jobs. But I do not want to But in the postmortem of 9/11, we have can’t wage any kind of preemptive war. talk this morning about those jobs seen how people want to have it both We have to wait until he attacks us be- that we have lost. I want to look for- ways. They look at the intelligence fore we can justify it. And 6 million ward. I want to talk about the many that was available pre-9/11, and they Jews went to the concentration camps jobs we can and should create for say: How can you have missed this and into the ovens, and countless mil- Americans who are out of work. clue? You should have taken action, lions were killed in the Second World Currently, we have a House-Senate Bush administration, on the basis of War because we did not take preemp- conference committee crafting a com- this clue. tive action when we could have. I say prehensive Energy bill. In late July, in Then, when we have information ‘‘we’’—the Western World did not. a show of great bipartisanship, the with respect to Iraq that turns out not Chamberlain was hailed as a hero Senate passed an Energy bill to con- to be exactly accurate, we are told: when he came home, and the motion to ference. There were 83 of my colleagues How could you have been so misled? support the action that he had taken who supported me in this measure. How could you have interpreted this went through the House of Commons Fourteen Senators voted against the way? by huge margins. When Winston bill. One CIA official said: If we had not Churchill stood up and said: We have Attempts have been made by both acted on the basis of the information suffered defeat of the first magnitude, Republicans and Democrats to enact a that we had prior to the war in Iraq, if he got only a handful of votes. But his- national energy policy to reduce our we had not warned the President in the tory has not been kind to Mr. Cham- country’s dependence on fossil fuels, way we did, we would have been held in berlain. History has validated the posi- much of which comes from foreign violation of our duty, particularly if tion that Winston Churchill took, a po- countries, and to improve the existing something had happened. sition which George W. Bush is apply- energy infrastructure in the U.S. Then the naysayers, who are saying, ing to modern conditions. Most people would agree we need a ‘‘How could you be misled by this intel- Those who value history should read national energy policy to address our ligence,’’ would be saying, ‘‘How could all of history before they stand on the concerns, but there is widespread divi- you have missed this clue?’’ They at- Senate floor and attack the President sion as to how we go about it. These di- tempt to put the President and this ad- of the United States for a doctrine that visions can be partisan, they can be ministration in a no-win situation. No they say is repugnant. ideological, or they can be regional. I matter what the President does, he is I yield the floor. encourage the conferees working on

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00004 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S12989 the Energy bill to put these differences islation to cut taxes. But our work is repeat that number: 1,074,640 jobs aside and reach an agreement that not done until Americans have work. throughout America. That is opening meets the energy needs of Americans. In my State, traditionally we have ANWR. The NDCF also looked at how Of course, as we know, that is easier had the highest unemployment among many jobs would be created by the con- said than done. Developing a national the States. According to the September struction of an Alaska natural gas energy policy is, to say the very least, 2003 seasonally adjusted unemployment pipeline. difficult. It means many things to dif- rates, Alaska’s unemployment rate They estimate that it would create ferent people. Therein lies the problem overall is 7.8 percent. In many parts of 1,135,778 direct and indirect jobs with passage of a national energy pol- my State, it is in the double digits, throughout the Nation. Again, 1,135,778 icy. something that is hard for many of my direct and indirect jobs would be cre- My colleagues in the House represent colleagues to imagine. In our neigh- ated through the construction of an diverse opposing interests. We all have boring State of Washington, the unem- Alaskan natural gas pipeline. diverse interests. We come to it from a ployment rate is 7.6 percent. When So if we do both, that is 2.2 million different perspective, as we approach a Americans can’t find work, our job in jobs—good paying jobs—throughout national energy policy. So while it may Congress is not done. We have to get to the country. The estimate, according be easy to get Members interested in work to get people to work. to the NDCF, is 2,210,418. If you were to talking about a national energy policy, I don’t know how much more clear I ask anybody, certainly in this body, if when it actually comes to putting the can be on this point. I want the men you could pass a bill to create 2.2 mil- pen to paper, it is much more difficult and women of this country who are lion jobs, would you do it? Of course to garner support. searching for a job to be able to find you would. As part of a national energy policy, I them—good paying jobs, jobs with ben- The Energy bill is not just an answer have been advocating opening the Arc- efits such as retirement and health to our energy problem; it is an answer tic National Wildlife Refuge to oil and care, and jobs that can sustain a fam- to our economic problems. It is a jobs gas exploration, as well as enacting a ily. bill. I need to talk numbers a little bit fiscal package to build a natural gas How do we create these jobs? It is more because I am sure you are think- pipeline from Alaska to the lower 48. through the Energy bill. We ought to ing, well, of course, Senator MUR- My constituents are eager to offer our call this legislation the national jobs KOWSKI is advocating this because it State’s natural resources to the Nation bill because that is what the Energy means good jobs for her constituents in to meet our shared energy needs. bill can be. If we do it right, this En- I will continue to fight, as I have the State of Alaska. That is absolutely ergy bill can be the jobs bill. been, to get these provisions in an En- true; there are going to be good jobs in I have said before that developing the ergy bill. I do not apologize or make my State of Alaska. In Alaska, accord- energy resources in Alaska will create any excuses for what I have to do for ing to the NDCF, Alaska resource de- jobs. No one can deny that. If we open my State. It is my job. But developing velopment would generate 202,464 di- ANWR, if we build a natural gas pipe- Alaska’s energy resources not only rect jobs and 131,917 indirect jobs. That line, we create jobs. They are good pay- benefits Alaskans but it benefits Amer- is about 330,000 out of 2.2 million jobs. ing jobs for Alaskans. icans. So where are the rest of these jobs? I will explain how developing Alas- I have heard the reasons from Demo- They are spread literally throughout ka’s resources will benefit all Ameri- crats and Republicans in both the the country, all throughout the lower cans. Before I do so, I will discuss what House and the Senate of why we should 48 States, and Hawaii and the District a comprehensive energy policy must not open ANWR or why we cannot of Columbia. So Alaska is not the only contain, in my opinion. Some of my produce a fiscal package that would en- State that benefits. There will be colleagues think the only thing I want sure construction of a natural gas pipe- 315,435 direct and indirect jobs gen- in an Energy bill is ANWR and a nat- line. But I have to ask: Are they saying erated in California. ural gas pipeline. From my perspec- we can’t create jobs or we should not Let’s look at what we might have in tive, an energy policy that does not create jobs? Are they saying we should South Carolina for the Presiding Offi- utilize the vast domestic energy re- not create good paying jobs for Ameri- cer’s edification. If both ANWR and the serves in Alaska is not comprehensive. cans? I don’t think there is a Member gas line were opened, there would be We must provide for increased oil and of this body or the other body who 12,115 direct and indirect jobs in the gas production in order to meet the would state that they oppose job cre- State of South Carolina. New York country’s demand for energy. In my ation. would see 93,356 jobs. Washington State mind that is very clear. But there is So I say to my colleagues: Let’s do would see 139,089 jobs. more to an energy policy than that. the right thing. Let’s protect our en- Now, I am sure somebody is going to The policy must address our renewable ergy security, our economic security. ask me—or perhaps target this study in energy reserves. Let’s create good paying jobs for an attempt to poke holes in the meth- At the same time we encourage do- Americans. odology—but the interesting news here mestic production of energy, we must I direct my colleagues’ attention to a is that many of the people who approve promote energy efficiency and energy report recently completed by the Na- of the methodology for this study rep- conservation. We cannot have a com- tional Defense Council Foundation. resent some of the largest environ- prehensive policy by doing just one or This report is current. It is scheduled mental groups in the country. So this the other. We have to have both. to go to print on October 30. The NDCF means that the environmental groups I am not going to talk this morning is a nonprofit think tank that studies have signed off on the methodology about energy dependence, technically defense and foreign affairs issues facing used for this study that shows that recoverable barrels of oil, known cubic the United States. The experts at more than 2.2 million new jobs would feet of gas, or the minimal impact that NDCF specialize in the study of low-in- be created from ANWR and the natural energy development in Alaska would tensity conflict, the drug war, and en- gas pipeline. have on the environment. My col- ergy concerns. It is not affiliated with I conclude that by adding that leagues have heard those arguments DOD or any part of the Federal Gov- through the opening of Alaska’s nat- time and time again. This morning I ernment. This report is entitled ural resources, we not only provide the want to talk about jobs. I want to talk ‘‘Eliminating America’s Achilles Heel, energy that this country needs but about how we can create good paying Our Addiction to Foreign Oil and How again we provide jobs throughout the jobs for all Americans. I don’t want a To Overcome It.’’ country—good paying jobs. I ask my single man or woman in America who This report estimates the direct and colleagues, as we move forward with is willing to work and looking for work indirect jobs that would be created by the Energy bill, to keep this in mind to be locked out of finding a job. Amer- the development of the oil in ANWR for the good of the country. icans can’t enjoy the American dream and Alaska’s natural gas reserves. The PRESIDING OFFICER. The time without a job. It is as simple as that. The NDCF estimates that opening of the Senator has expired. We have passed legislation to stimu- ANWR would create 1,074,640 jobs The Senator from Wisconsin is recog- late the economy. We have passed leg- throughout America. It is important to nized.

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00005 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S12990 CONGRESSIONAL RECORD — SENATE October 22, 2003 Mr. FEINGOLD. I yield myself as the PATRIOT Act and which now seeks stitution. Ten of these amendments much of our time as I require. even more powers, to show that the were ratified 2 years later by the legis- The PRESIDING OFFICER. The Sen- current law and proposed new laws are latures of at least three-fourths of the ator may proceed. consistent with the Constitution. States. The remaining two amend- f Let me take a moment to remind my ments relating to compensation for colleagues how a commitment to indi- Members of Congress and the number THE USA PATRIOT ACT vidual rights became part of the found- of constituents per Representative Mr. FEINGOLD. October 26 will mark ing principles of our Nation and en- were not ratified at that time. the second anniversary of the USA PA- shrined as the Bill of Rights. The first 10 amendments to the Con- TRIOT Act. I wish to speak today In 1787, in the halls of the State stitution, of course, are what Ameri- about the continuing and growing con- House of Pennsylvania in Philadelphia, cans now know as the Bill of Rights. troversy surrounding that law, which GEN George Washington, who led our The first amendment guarantees free- was passed just 6 weeks after the Sep- Nation to victory during the Revolu- dom of speech, freedom of religion, and tember 11 terrorist attack. tion, convened the Constitutional Con- freedom of association. I was the only Senator to vote vention. A number of great political The second amendment guarantees against the PATRIOT Act. As I said figures were delegates to that conven- the right to bear arms. during the debate in the fall of 2001, the tion. Joining Washington were other The fourth amendment protects act contained many provisions that distinguished Americans such as James against unreasonable search and sei- were necessary and appropriate to help Madison, Benjamin Franklin, Alex- zures. protect our Nation against terrorism. I ander Hamilton, and George Mason. The fifth amendment ensures that no person shall be deprived of life, liberty, still believe that. But I also argue that Mason participated in the Convention, or property without due process of law. the PATRIOT Act went too far; that it but he was concerned that the delibera- threatened our citizens’ constitutional The sixth amendment guarantees a tions would result in a Constitution right to counsel and a right to trial by rights and liberties. That is why I creating a central government with too could not support it and why I insisted jury to those charged with crimes. much power over the States and indi- During the debate on our Constitu- on offering amendments to the bill on viduals. tion, our Nation was at a critical junc- the floor. Mason, a patriotic American, who ture: Do we follow a path toward a Today, 2 years later, I still believe loved his newly found freedom from highly centralized government with that as well. An increasing number of British rule, had reservations when he the potential for tyranny or do we fol- Americans have agreed and have ex- made the trip to Philadelphia. Prior to low a path toward a government with pressed their concerns that certain pro- the Convention, he had written a bill of checks and balances, respect for States visions of the PATRIOT Act threaten rights for the State Constitution of in a Federal system, and protections of the rights and liberties guaranteed by Virginia. He urged delegates to the individual rights and liberties? our Constitution for over 200 years. The Convention to include a bill of rights The decisions made in the first days chorus of voices of doubt has grown so also in the national Constitution. of the Republic have stood the test of loud that the Bush administration has But a majority of delegates initially time. They, of course, created the responded but not, I am sorry to say, disagreed with Mason. When the draft greatest democracy on Earth and a by addressing these concerns in a con- of the Constitution was released, it governmental structure that is most structive and open way. Rather, the ad- failed to contain a bill of rights or any protective of individual freedom and ministration has initiated what seems other explicit protection for the rights liberty in history. to be a public relations campaign in re- of individuals. Mason was bitterly dis- Today we stand at another critical cent weeks to simply defend the PA- appointed. crossroads. As our Nation faces new TRIOT Act in its entirety. Mason was concerned that, without terrorist threats, we must respond to The Attorney General has gone on any explicit protection for individual those threats without compromising the road and on the Internet to extol liberties, the Constitution would open the civil liberties that are the bedrock the virtues of the law. Speaking before the doors to tyranny by a central gov- of our country. We must balance the le- hand-picked audiences of law enforce- ernment. Why? Because our experience gitimate needs of law enforcement ment personnel, he has ridiculed and with British rule, in which the colonial against the privacy and freedom of all dismissed those who have raised con- power was able to infringe on indi- Americans, and that is not an easy cerns about the law. A few weeks ago vidual rights, was still very much on task. he denounced ‘‘the charges of the his mind. So after the Constitutional One thing I know, the solution is not hysterics’’ as ‘‘castles in the air, built Convention adjourned, Mason contin- simply to grant the Federal Govern- on misrepresentation, supported by un- ued to push for a bill of rights. ment more and more power to conduct founded fear, held aloft by hysteria.’’ During the next 2 years, as the Con- surveillance, eavesdrop, and collect in- I think these words are unfortunate, stitution made its way to the States formation on law-abiding Americans. and in its zeal to defend the act the ad- for consideration and ratification, the The debate about the PATRIOT Act ministration appears unwilling to even American people came to agree with echoes the debate over two centuries acknowledge the legitimate concerns Mason, and he prevailed. ago in the halls of the statehouse in of many Americans; and it objects to Thomas Jefferson wrote to Madison Philadelphia. Today, as then, we must commonsense proposals to protect pri- that a bill of rights was ‘‘what the peo- take from our experience as a nation. vacy and civil liberties that would not ple are entitled to against every gov- We must remember the critical role in any way undermine the fight against ernment on earth.’’ the Constitution and, in particular, the terrorism—proposals such as my bill, Another statesman, Richard Henry Bill of Rights, has had in guiding our the Library, Bookseller, and Personal Lee, who was one of the signers of the country through national crises, war, Records Privacy Act, and Senator Declaration of Independence, said pro- and armed conflicts at home and CRAIG’s bill, the SAFE Act, which I visions were needed to protect ‘‘those abroad, including the War of 1812, the also strongly support, which would pro- essential rights of mankind without Civil War, the two World Wars, and the tect the constitutional rights of inno- which liberty cannot exist.’’ cold war. cent citizens, while still allowing the Madison, who was initially opposed The Constitution has survived and FBI to do its job to protect our Nation to including a bill of rights, was per- flourished throughout our history, and from another terrorist attack. suaded. An explicit protection for the respect for individual freedom and pri- As Members of Congress, we have rights of people or a bill of rights was vacy has steadily advanced. taken a solemn oath to uphold the Con- needed in our Nation’s governing docu- In the immediate aftermath of the stitution of the United States. The ment. September 11, 2001, terrorist attacks, President and the executive branch of- So, Mr. President, on September 25, there was, understandably, a great de- ficials, of course, take this same oath. 1789—almost exactly 214 years ago—the sire to give the administration the The burden is on the administration, First Congress of the United States tools it said it needed to fight ter- which sought the powers included in proposed 12 amendments to the Con- rorism and prevent another terrorist

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00006 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S12991 attack. But with time to study and re- I believe the PATRIOT Act was flawed administration says that librarians flect after enactment of the PATRIOT and threatened fundamental constitu- concerned about access to Americans’ Act 2 years ago, many Americans have tional rights and protections. For me reading records are hysterics and have now paused and come to see a very real and those few of my colleagues who been duped by civil rights advocates potential for abuse of power and in- supported my business records and rov- and Members of Congress. fringement of privacy and civil lib- ing wiretap amendments to the PA- I am disappointed that the adminis- erties unleashed by this law. TRIOT Act, it sure was a lonely feeling tration would use such rhetoric. No one There is strong and growing bipar- in October 2001. I must say, I did not has been duped, and the people con- tisan support for changes to the act to imagine at that time that reasonable cerned about their privacy are not in protect our rights and liberties. I am minds would begin to prevail so soon. hysterics. They are simply worried, as confident that this right-left and mod- Now 2 years later, we have a strong bi- I am, about the Government possessing erate coalition of support will continue partisan effort to change these provi- a power that has the potential to in- to grow and eventually occupy the cen- sions, and I am pleased to see that. I trude on their civil liberties, particu- ter as more and more Americans learn look forward to working with Senator larly since the statute itself prohibits a what the law means. CRAIG and my other colleagues on both library, bookseller, or anyone else who The coalition includes Americans for sides of the aisle to get the bill passed. has been served a subpoena from mak- Tax Reform, the American Conserv- I am still very troubled by the ad- ing that information public. ative Union, and the Free Congress ministration’s response to legislative What I said before the PATRIOT Act Foundation, as well as the ACLU and efforts, such as those I just mentioned, was passed, and continue to maintain the Open Society Policy Center. and to the public’s outcry to repeal or now, is that section 215 presents the po- At the State and local level, 3 States modify the PATRIOT Act. The admin- tential for abuse. and over 180 cities and counties have istration has launched an effort to de- I will say it again, because I cannot enacted provisions and resolutions ex- fend the PATRIOT Act, but its defense emphasize this enough, section 215 pre- pressing concern with the PATRIOT only tells the American people half the sents the potential for abuse. Regard- Act. These States and communities story at best. Its PR campaign eagerly less of whether the provision has not represent over 25 million residents, and describes the new powers the PATRIOT yet been used, that potential still ex- these localities are not just left-lean- Act gives to law enforcement, but it ists, and the public has a reason to be ing college towns, such as Madison and doesn’t say anything about what the concerned. No amount of ridicule or Berkeley, but also right-leaning, liber- law potentially takes away from the spin can change that. tarian regions of the country such as American people: our liberty and our The recent disclosure that section 215 Flagstaff, AZ, Boise, ID, and the State privacy. has never been used does not address of Alaska. Perhaps most disturbing, the admin- the concern that it could be used in a Here in Congress several legislative istration’s campaign fails to seriously way that would violate the privacy of proposals have now been introduced address section 215, which I have long innocent Americans. But it does raise proposing changes to the PATRIOT Act seen as the act’s most troubling provi- another question: If the section has to protect privacy and civil liberties. sion. Both my bill and the Craig bill never been used in the 2 years since the During its consideration of the Com- contain the same proposal to modify bill was passed, the 2 years imme- merce-State-Justice appropriations this provision. Section 215 allows the diately following the September 11 at- legislation, the House adopted an FBI access to the private details of the tacks, when concern over terrorism has amendment by Representative OTTER lives of law-abiding Americans—which been at its peak, including numerous to restrict the FBI’s use of the ‘‘sneak books we have checked out from the li- periods of orange alert status, then and peak’’ power granted by the PA- brary, what our medical records reveal, whey is this provision even on the TRIOT Act. The Otter amendment re- and what charges we have made on our books? Or at the least, what possible ceived overwhelming support, includ- credit cards. Americans reasonably ex- objection could there be to modifying ing 113 votes from Republican Members pect the details of their private lives, it so that the potential for abuse is of the House. from what they read to what drugs eliminated? In the Senate, Senator MURKOWSKI of they have been prescribed, to remain Both my bill and the Craig bill would Alaska and Senator WYDEN of Oregon just that—private. The PATRIOT Act protect the rights of law-abiding citi- have introduced a bill, S. 1552, pro- undermines that expectation. zens by limiting the FBI’s access only posing to modify a number of the pro- Under section 215, all the FBI has to to information that pertains to sus- visions of the PATRIOT Act. As I men- do is assert that the records are pected terrorists or spies. Our legisla- tioned earlier, I have introduced the ‘‘sought for’’ an international ter- tion recognizes the legitimate uses of Library, Bookseller, and Personal rorism or foreign intelligence inves- section 215 and would not interfere Records Privacy Act, S. 1507, and now tigation. As long as the FBI makes with the use of the provision to inves- there is the SAFE Act, S. 1709, which I such an assertion—and it is just an as- tigate and prevent terrorism. also mentioned earlier. I am pleased to sertion—the secret foreign intelligence I urge the administration to open an join my colleagues Senators CRAIG, court is required to issue an order al- honest dialogue with Congress and the DURBIN, CRAPO, SUNUNU, WYDEN, and lowing access to those records. The American people to address the PA- BINGAMAN in supporting this bill. courts cannot review the merits of the TRIOT Act’s specific problems instead The SAFE Act does not repeal the subpoena request. of continuing to try to sell it. We do PATRIOT Act. It simply proposes rea- Both my bill and the Craig bill would not need a government that forces its sonable modifications to four particu- simply require the FBI to set forth spe- authority on the people and rejects and larly troubling PATRIOT Act provi- cific facts showing that the records ridicules legitimate, heartfelt, and sions. These modifications will help to sought relate to a suspected terrorist principled criticism of its actions and protect civil liberties and privacy by or spy. Thus, the Government could its laws. That is what our Founding strengthening the role of judges in ap- not ask, say, Amazon.com or e-Bay to Fathers strived to ensure would never proving certain kinds of search and turn over the records of law-abiding happen again. The Federal Government surveillance authority expanded by the customers. It could, however, obtain should be responsive and accountable PATRIOT Act. records of those customers who are ac- to the people. But most importantly, Specifically, the SAFE Act would tually suspected terrorists. My bill the Federal Government should respect strengthen the role of the courts in ap- would allow the FBI to follow up on le- and uphold the Constitution. proving delayed notice searches, re- gitimate leads by also respecting the Unfortunately, the administration quests for access to library, medical, privacy and civil liberties of law-abid- has not only failed to engage in an hon- and other records containing sensitive ing Americans. est dialogue about the PATRIOT Act, personal information, and roving wire- The administration has recently as- but it now proposes that Congress taps in FISA cases. serted that the criticism of section 215 grant to it even more power. The These are the issues I first raised in is baseless because this section has not American people have expressed very the fall of 2001 as the main reasons why yet been used since it was enacted. The legitimate and sincerely-held concerns

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00007 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S12992 CONGRESSIONAL RECORD — SENATE October 22, 2003 about the PATRIOT Act. The adminis- minutes; Senator CORZINE for 9 min- the service. It is a system that is uni- tration should answer those concerns utes; and Senator BINGAMAN for 4 min- versal, and it works. honestly and forthrightly before seek- utes. That will basically use up all of What we are hearing now is that ing more power. our time. there is a great desire, unfortunately, The administration has announced The PRESIDING OFFICER. Without among, again, predominately our col- its support for three legislative pro- objection, it is so ordered. leagues in the House, in the majority, posals to expand executive branch Mr. REID. I ask unanimous consent who are saying that system should be power and diminish the role of judges, that we alternate back and forth if, in radically changed. Instead of having an essential part of our Nation’s sys- fact, there are people from the major- Medicare, which is dependable, afford- tem of checks and balances. One pro- ity; otherwise, it would be in the order able, reliable—we know what it is; sen- posal grants the Attorney General sig- that I have mentioned. iors can choose their own doctors; pro- nificant power to compel people to tes- The PRESIDING OFFICER. Without viders know what the payment will tify or the production of documents, all objection, it is so ordered. be—they want to change it to what is without prior court approval. A second The Senator from Michigan is recog- called premium support. proposal broadens the presumption of nized for 9 minutes. Now, what does that mean? Essen- tially, it is like a voucher. They want pretrial detention to cases that may f Medicare to essentially say a person not even involve terrorism. Finally, MEDICARE AND PRESCRIPTION the third proposal expands the Federal has X amount of dollars for their DRUGS health care, and if it costs more than death penalty. that, they pay that. If, in fact, they Criticism of the PATRIOT Act ap- Ms. STABENOW. Mr. President, I want to take that and go to an HMO or pears to have had the effect of influ- rise today to speak about the issue of PPO, that is what would be encour- encing the administration’s strategy to Medicare and prescription drugs and aged. People would be pushed more and secure this new power, but not the sub- where we are as we have been working more into an HMO or a PPO in order to stance of its effort. Rather than pro- to develop a prescription drug benefit save dollars, but for most of our citi- posing a single bill with various provi- for seniors and put in place plans that would lower prices on prescription zens that would not be available. sions to expand the PATRIOT Act, the The House basically wants to say administration instead appears to have drugs for everyone: Businesses, individ- uals, workers, families. that Medicare, as we know it, will no given its blessing to many little ‘‘PA- longer be available, and it will be TRIOT IIs.’’ We are at a crossroads. We have been working many hours in a bipartisan privatized. Folks will be given a lump The administration is apparently re- sum of dollars, and then they are on luctant to allow these proposals to be way in this body, trying to come to a positive conclusion on the question of their own. If they are sicker, if they linked to the PATRIOT Act. In fact, need more help, they would not be cov- the Justice Department has even tried Medicare and prescription drugs. There are wide differences in philosophy and ered for that additional health care to suggest that they are unrelated. No they need. There would only be a set approach, particularly with our col- one is fooled, however, least of all the amount of dollars or essentially the leagues on the Republican side of the American people. The fact is that these equivalent of a voucher. This com- aisle in the House of Representatives. I proposals did appear in the draft ‘‘Pa- pletely undermines what we have put am deeply concerned about the direc- triot II’’ leaked earlier this year and in place for Medicare. The idea that we tion that the conference committee ap- entitled the Domestic Security En- would say to our seniors, You have pears to be going as it relates to the hancement Act. health care; you can rely on it; you can fundamental issue of whether we will ‘‘Patriot II,’’ whether contained in count on it; you don’t have to worry continue to have Medicare as we know one bill or a series of bills, is the wrong about it, that would all be taken away response at the wrong time. An in- it in the future. We all know that Medicare was put with this proposal to undermine Medi- creasing number of Americans want to care and to essentially turn it back to know exactly how this administration into place in 1965 because at least half of our seniors could not find or could the private sector. is using the powers it already has and This is something I find absolutely not afford prescription drug coverage want the PATRIOT Act to be amended unacceptable and I will do whatever I and health care in the private sector. to protect privacy and civil liberties. can to stop it, and I know on our side The burden is on the administration They could not find or afford health of the aisle there is overwhelming op- to show Congress and the American care in the private sector. So this Con- position to this notion of doing any- people why current law is inadequate, gress and the President at that time thing that would undermine and weak- why it needs even more power, and how came together and did something I en Medicare for our seniors. the powers it already has and the new think is one of the most significant ac- We know, according to a study that powers it seeks are consistent with the tions of modern age for the people of was just done, this proposal could in- Constitution and Bill of Rights. the country, and that is to create crease the costs for the majority of our That would be the patriotic thing to health care for seniors, for those over seniors who are in traditional Medicare do. age 65, and for the disabled of this by as much as 25 percent or more. I I yield the floor. country, a guarantee that we would should mention the majority of sen- The PRESIDING OFFICER. The Sen- make a commitment together and fund iors, when given the choice between a ator from Nevada. a system for older Americans and the private plan—in this case Mr. REID. Would the Chair an- disabled to have access to health care Medicare+Choice—or staying in tradi- nounce, under the additional time we in this country. It has made all the dif- tional Medicare, they have overwhelm- have until 11:30, how much time the ference in terms of quality of life for ingly chosen to stay in traditional minority has remaining? our citizens. Medicare. In fact, 89 percent of our sen- The PRESIDING OFFICER. The mi- We now are at a juncture where we iors already voted. If we just want to nority has 7 minutes 17 seconds re- have seen a proposal passed as part of look at who is covered and who we are maining. the House package that would essen- trying to help for the future, we should Mr. REID. How about if we add in the tially do away with Medicare as we look at what they are saying. time for the second hour? Is it 32 min- know it. Instead of it being a defined Mr. President, 89 percent of our sen- utes or something like that? benefit, meaning it does not matter iors have chosen to stay in traditional The PRESIDING OFFICER. After where a person goes, whether they are Medicare. Only 11 percent have chosen this, there will be 50 minutes equally going to New Jersey, Iowa, or Michi- to go into the private sector. Yet we divided. gan, or what part of Michigan they live are seeing an overwhelming push to Mr. REID. So it would be about 32 in, whether they live in the Upper Pe- force people to go into the private sec- minutes. I ask unanimous consent that ninsula, Detroit, Benton Harbor, or tor through a scheme that would pri- during our time the Senator from Lansing, they could count on Medicare. vatize Medicare, even though it will Michigan, Ms. STABENOW, be recognized They know what it will cost. Their pro- cost them more money, even though it for 9 minutes; Senator HARKIN for 9 vider knows what they will be paid for is not dependable.

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00008 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S12993 We now know, according to the Medi- More recently, the investigation has The President does have very deep con- care actuary in Health and Human been stymied by kind of a ‘‘don’t ask, cerns about anything that would be inappro- Services, that in fact there could be don’t tell’’ approach by the President priately leaked that could in any way endan- sharp differences in cost among indi- and by the appearance of a conflict of ger America’s ability to gather intelligence information. vidual people or individual regions, de- interest by the Attorney General. At- pending on the private sector plans and torney General Ashcroft, a good friend From his own administration, people how this would work. The study that of the Bush administration and its sen- say how bad it is to have these kinds of was done by the Medicare actuary ior advisers, a very partisan Repub- leaks to endanger national security. Let me give a quick recap of the studied the proposals calling for pri- lican for most of his life, is still over- timeline. It started with the Presi- vate plans to compete against one an- seeing the investigation. In fact, one of dent’s deception in his State of the other and against Medicare’s tradi- his top aides said yesterday that Union Address in January. In his re- tional Government-run program. It Ashcroft has been regularly briefed on marks, Mr. Bush stated Iraq tried to shows that those in Medicare fee-for- key details in the investigation, in- buy uranium from Niger. A few months service—traditional Medicare—in cluding the identities of those being later, in July, former Ambassador Jo- States such as North Carolina or Or- questioned by the FBI. seph Wilson’s op-ed appears in the New egon would pay as little as $58 a Talk about a chilling effect. Presi- York Times, questioning the Presi- month, well below the projected na- dent Bush has joked and made light dent’s assertion. tional average of $107. So they would about it. Then in order to discredit Wilson and pay $58 instead of $107. But in high-cost I would like to bring to the attention ‘‘seek revenge’’ on Wilson, senior ad- States such as New York or Florida— of Senators an article by Knight ministration officials leaked to the my good friend from New Jersey is Ridder, published in the newspaper, the press the identity of Wilson’s wife and here, I would guess New Jersey would Milwaukee Journal Sentinel on Sun- the fact she was a CIA operative, there- fall in that category as well—they day. The headline was ‘‘CIA Leak May by undercutting our national security would be paying more like $175 a Have Caused More Damage. Work of and clearly violating Federal law. month for the same benefit. So on one Others Using Front Company Name This happened in early July. Let’s side of the country you would have May Be at Risk.’’ This revealed why see what happened since. this leak is no laughing matter; it is a people paying $58, on the other side you On July 24, Senator SCHUMER calls on would have people paying $175, for the deadly serious matter of national secu- the FBI Director to open a criminal in- same coverage, for the same kind of rity. This is what the article said: vestigation into the leak of a CIA oper- care. That is not fair. That is certainly Training agents . . . costs millions of dol- ative based on that column. not what we have now. lars and requires the time-consuming estab- In late July, the FBI notified Senator lishment of elaborate fictions, called ‘‘leg- They went on to indicate that we SCHUMER that they had done an inquiry would even see parts of States where ends,’’ including in this case the creation of a CIA front company that helped lend plausi- into the CIA. there would be one payment, one cost, Then it appears nothing happened for versus other parts of the State. So if bility to her trips overseas. . . . Compounding the damage, the front com- 2 months. you live in Marquette, MI, or Ironwood, pany, Brewster-Jennings & Associates . . . On September 23, the Attorney Gen- MI, in the Upper Peninsula, you could apparently was also used by other CIA offi- eral says he and CIA Director Tenet pay a very different price for your cers whose works could now be at risk, ac- sent a memo to the FBI requesting an health care than if you lived in Detroit cording to Vince Cannistraro, former CIA investigation. or Lansing or Grand Rapids. That is chief of counterterrorism operations and On September 26, the Department of not fair. It does not make sense. Why analysis. . . . Now, [Valerie] Plame’s career Justice officially launches its inves- in the world would we go back to that as a covert operations officer in the CIA’s Di- tigation. kind of system? rectorate of Operations is over. Those she dealt with—on business or not—may be in Interestingly, it took 4 days after It is for these reasons I urge my col- danger . . . and Plame’s exposure may make that ‘‘official’’ launch for the Justice leagues not to agree to any plan that it harder for American spies to persuade for- Department to call White House Coun- changes Medicare as we know it, that eigners to share important secrets with sel Gonzales and notify him of the offi- privatizes Medicare, that takes away them, U.S. intelligence officials said. cial investigation. Gonzalez then asked what overwhelmingly seniors have told Other former CIA officials agree—in- for an extra day before the Justice De- us they want. They want prescription cluding Larry Johnson, a former class- partment gave the White House the of- drug coverage—yes. But don’t take mate of Plame’s and former CIA and ficial notice, which means all docu- away their Medicare. That is not a State Department official. He pre- ments and records must be preserved. good tradeoff. We need to strengthen dicted that when the internal damage A recent letter was sent to the Presi- Medicare, provide a real benefit for assessment is finished: dent from Senators DASCHLE, SCHUMER, prescription drugs, and do it right. . . . at the end of the day, the [harm] will LEVIN, and BIDEN which also expresses The PRESIDING OFFICER. The Sen- be huge and some people potentially may concern about this break from regular ator from Iowa is recognized for 9 min- have lost their lives. procedure. utes. Another former CIA officer, Jim They wrote: f Marcinkowski said: Every former prosecutor with whom we have spoken has said that the first step in This is not just another leak. This is a un- INTELLIGENCE LEAK such an investigation would be to ensure all precedented exposing of an agent’s identity. INVESTIGATION potentially relevant evidence is preserved, Mr. HARKIN. Mr. President, more So, again, this is no laughing matter. yet the Justice Department waited four days than 83 days have passed since the Cen- The President should not treat it as before making a formal request for docu- tral Intelligence Agency filed a report such. ments. and inquiry to the FBI in July regard- Here are some quotes from some in Interestingly, the letter goes on: ing a leak by senior administration of- his own administration. Attorney Gen- When the Justice Department finally ficials of an undercover CIA agent. eral Ashcroft said: asked the White House to order employees to This investigation was originally sty- Leaks of classified information do substan- preserve documents, White House Counsel Alberto Gonzales asked for permission to mied by foot-dragging and delay and tial damage to the security interests of the nation. delay transmitting the order to preserve evi- has continued to be stymied by foot- dence until morning. The request for a delay dragging and delay. Secretary of Defense Rumsfeld ear- was granted. Again, every former prosecutor It took at least 53 days for the Jus- lier this year, March—February of this with whom we have spoken has said that tice Department to officially launch an year: such a delay is a significant departure from investigation. It took 4 days after that I think leaks are disgraceful, they are un- standard practice. for Justice to officially notify the professional, they are dangerous. They put That is what has been happening—de- White House about the investigation people’s lives at risk. parture from standard practice. and tell them to preserve any and all Ari Fleischer, White House spokes- I am also troubled that the White materials related to it. man, in June: House Counsel’s Office is serving as

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00009 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S12994 CONGRESSIONAL RECORD — SENATE October 22, 2003 ‘‘gatekeeper’’ for all the documents the CLASS ACTION FAIRNESS ACT OF Second, the cases that would be af- Justice Department has requested from 2003 fected by the legislation are truly the White House. Mr. Gonzales’ office Mr. CHAMBLISS. Mr. President, I interstate in nature. They have a real said he would not rule out seeking to rise in support of the Class Action Federal implication. When the Framers withhold documents under a claim of Fairness Act of 2003. Today we are of the Constitution created the Federal executive privilege or national secu- going to have a cloture vote to deter- courts, they thought that large inter- rity. mine whether or not we move forward state cases should be heard in Federal What kind of a zoo is this outfit? with this bill. I hope we obtain the 60 court. Interstate class actions often in- Mr. Gonzales says he can withhold votes to move forward. volve thousands of plaintiffs nation- these documents from this investiga- To a great extent, the bulk of the wide and multiple defendants from tion on the basis of national security. tort reform—that is needed in this many States. They require the applica- Wait a minute. It is our national se- country needs to be handled at the tion of the laws of several States and curity that has been breached by this State level. States have their own seek hundreds of millions or even bil- leak. Now we are going to have an in- ideas about what kind of tort reform lions of dollars. It is hard to imagine a vocation of protecting national secu- ought to take place. I hope that is better case for diversity jurisdiction. rity to protect who leaked it, I guess. where tort reform—that each State de- Third, this legislation has a narrow I believe this matter could have been cides it needs in and of itself—does scope. Smaller cases that are truly resolved very quickly. President Bush take place. However, as the tort sys- local and cases involving State govern- could have called his senior staff mem- tem now stands, there are about a ment defendants will all remain in bers into the Oval Office and asked handful of State court jurisdictions in State court. them one by one if they were involved. the United States where a tremen- Fourth, the bill will stop magnet He could have them sign a document dously disproportionate number of State courts from trampling on fed- stating they were not involved in this class action lawsuits are filed. That is eralism principles by trying to dictate leak. He could have each of them sign just not right. People have referred to the substantive laws of other States in a release to any reporter to release these jurisdictions as ‘‘magnet courts’’ nationwide class actions. Too often anything they have ever said to a re- because they draw in class action suits magnet State courts take it upon porter thereby exempting the report- with their soft juries and pro-plaintiff themselves to decide important com- ers. judges. mercial issues for the entire country Under the Class Action Fairness Act, There has been coverup after coverup regardless of whether other States businesses can break loose from these after coverup on this CIA leak, and it have reached different conclusions on magnet State courts and get a fair is not going to go away. People of the same issue. By allowing these cases trial in Federal court. to be heard in Federal court where the America will demand that we get to Over the last 2 days of debate on judges have been much more sensitive the bottom of it. class action reform, my colleagues to differences in State laws and the The PRESIDING OFFICER. The Sen- have been dispelling a lot of myths need to balance various States’ inter- ator from Georgia. about the Class Action Fairness Act ests in a controversy, the Class Action f that have been spread around by the opponents of the bill. I would like to Fairness Act will put an end to this UNDERCOVER AGENT take some time to address one of these troubling practice. INVESTIGATION myths about which I feel very strongly; Is this a perfect bill? It certainly isn’t. It is not perfect but it does deal Mr. CHAMBLISS. Mr. President, as I that is, that some critics of the Class Action Fairness Act have argued that with a very complex issue. That is why sat here and listened to my friend from it is difficult to reach out and obtain a Iowa once again bring up an issue to the bill is an affront to federalism be- cause it would move more cases involv- perfect bill. which we are all very sensitive, I can’t However, by allowing this to move help but respond that I have an en- ing State law claims to Federal court. But when it comes to federalism, this forward, the amendments that have tirely different outlook and opinion bill is actually the solution and not the now been filed, and other amendments about what is going on with respect to problem. Right now, magnet State that are being contemplated—and I this issue. Those of us who have been courts are trampling over the laws of have a couple of amendments myself involved in the intelligence commu- other States in their zeal to certify na- that I may file to try to improve this nity, and as a member of the Intel- tionwide class actions and help enrich, bill—at the end of the day we need to ligence Committee, I, too, am some- frankly, the plaintiffs’ trial bar. The make sure that lawyers representing what outraged that we have the so- Class Action Fairness Act actually pro- individuals who have been damaged called ‘‘leak’’ or disclosure of a CIA in- motes federalism concerns by helping and are part of a class have the oppor- dividual that occurred not too long ensure that magnet State court judges tunity to seek justice; they have the ago. We have a process whereby this is stop dictating national policies from opportunity to seek a fair result in to be handled. That process is working their local courthouse steps. It will their particular claim, whatever that the way the process is designed to allow those cases that are truly justi- claim may have arisen from. work. fied class action lawsuits filed by trial By the same token, the business com- The White House was outraged about lawyers who are filing them with the munity should have the opportunity this, and the White House is moving right intention to move forward and to also to expect fairness and to expect very favorably and very aggressively obtain justice for their clients. that at the end of the day their par- towards resolving this issue. They are This is why, when it comes to fed- ticular defense to the cause that has going to resolve the issue. The Justice eralism, critics of this bill have it been filed will be justly dealt with. Department is moving independent of backwards. In sum, we have a bill with bipar- the White House to get to the bottom First, the bill does not change State tisan support. Despite the misinforma- of this. At some point in time a report substantive law. If an interstate class tion being spread around, actually this is going to be made back to the Con- action based on violations of State law bill will promote the proper assign- gress and to the American people, and is removed to Federal court, the Fed- ment of class action cases between we will find out what did happen. eral court will simply apply the State State court and Federal court dockets Again, there is a process to be fol- law to resolve the case, just as the Fed- as was originally intended by the lowed under law. That process is going eral courts do today in all ‘‘diversity’’ Framers. to allow us to get to the bottom of this cases in the Federal court system. Crit- There is one other issue that has in the way it should be. We don’t need ics attempting to argue that the bill is been raised that needs to be addressed. to be here banging political heads an affront to federalism are doing That is the issue relative to the poten- against the wall when the legal heads nothing more than attacking the fun- tial this bill has to clog the Federal ju- are the ones that need to be banged damental concept of diversity jurisdic- dicial system. That may be the case in against the wall, and that is taking tion, a concept enshrined in article II some jurisdictions. As a member of the place. of the Constitution. Judiciary Committee, if we see that

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00010 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S12995 does happen, it is our obligation as leg- everyone in the committee a year and It does not include inherently safer islators to remove that backlog and to a half ago. Until the lobbyists went to technologies. It does not require ac- make sure we have enough judges in work, we thought we had a real re- countability in that other standard place to handle any volume of cases sponse that would work on a bipartisan being established by the chemical in- that may be filed in respective jurisdic- basis. We have adjusted that bill, made dustry. tions. We have always done that. We changes, offered economic incentives As a consequence, we are actually will continue to do that. to the industry to move forward. We moving back to a completely voluntary I ask my colleagues to review this have a roadblock to dealing with one of approach. I don’t get it. I don’t under- bill very carefully and to allow us to the most important risks we have in stand it. I don’t think it is the direc- move forward today by voting in favor our infrastructure. tion we should be taking. It is a loop- of the cloture motion, which will allow I commend Senator INHOFE and other hole that erases all the good things us to get the bill on the floor and have members of the committee for address- that have been included in the mark if the debate, talk about the issues of ing the issue. Unfortunately, I do not you go to a substantially equivalent fairness, and talk about the issues nec- think the bill meets the needs of what standard. essary to ensure that plaintiffs do get we are trying to accomplish. Construc- There are serious shortfalls in the justice in cases where justice is de- tively, the committee has moved to re- mark, at least as I understand them. I hope they will be debated seriously in served; but, by the same token, that quire chemical plants to develop secu- the committee tomorrow. I want folks there is some stability on the part of rity plans and submit them to the De- to know this is not an issue that will the business community where unjust partment of Homeland Security. The die down. We have eight of these plants cases are being filed against them. administration had not asked them to in New Jersey. They are located right I ask my colleagues to vote in favor submit the plans. Unfortunately, DHS smack dab in the middle of some of the of the cloture motion. Let’s move for- will not have to review them according highest concentrations of population in ward, have the debate. I will be one to the bill, as I understand it. They our country. We have had accidents who agrees with a lot that is in the act would not have to evaluate them. They over the years in my community that and will probably have some questions would not have to approve them. They have taken lives in the community and would not have to do anything to as- about the act. I look forward to the de- evacuated the surrounding citizens. bate and look forward to moving for- sure the public is protected. That is a This is a vulnerability that everyone ward and to coming out with a good, problem. The Department could simply acknowledges is real, it is present, and fair, and just class action reform bill. let the plans sit on a back shelf and let it needs to be addressed. That is why I I yield the floor. dust accumulate. feel so strongly about it. The PRESIDING OFFICER. The Sen- Furthermore, it would tighten all This should be a bipartisan issue. I 15,000 chemical plants without any ator from New Jersey. am glad Senator CHAFEE has been Mr. CORZINE. Mr. President, how kind of prioritization in the country, working to push the issue in com- much time is available? which is also a big mistake. We need to mittee this year. But we need to move The PRESIDING OFFICER. The Sen- make sure these plans are actually re- it. ator is recognized for 9 minutes. viewed, that there is real account- By the way, just finally, there is Mr. CORZINE. If the Chair would no- ability. That is my major concern with something I have a problem with also tify me when I have used 8 minutes the mark that will be coming through in the bill in the sense that if some- please. tomorrow. body turns loose one of the plans that The PRESIDING OFFICER. Yes, sir. There are other problems also. It is is filed by an individual plant, that will f not strong enough on one of the funda- be subject to criminal penalties. But if mental issues with regard to my origi- CHEMICAL PLANT SECURITY a chemical producer does not comply nal bill, inherently safer technologies. with the standards they set down in Mr. CORZINE. Mr. President, the pri- There are alternative approaches. We the plan, that is a civil liability. It mary topic I will talk about today is cannot build fences high enough and sounds right to me there would be the markup tomorrow with regard to put enough guards to make sure that criminal penalties for people who leak chemical plant security. The Environ- every possible terrorist attack or information into the public that could mental and Public Works Committee criminal attack on a chemical plant be dangerous and used against the pub- will take up legislation dealing with could actually be accomplished. We lic. But it strikes me as unequal treat- one of the most serious security need to make sure if there is a success- ment; it sort of does not jibe with re- threats to our Nation. According to ful attack, that it has minimal expo- gard to parity that those people who statistics by EPA, there are 123 facili- sure. We ought to do everything we can are actually not complying with the ties in 24 States where a chemical re- to have inherently safer technologies law are going to be treated on a civil lease could expose more than a million within economic feasibility. That is basis. people to a toxic chemical, and nearly practical. Where is the parity? It seems to me 3,000 facilities spread across 49 States While there is a step forward in rec- we are listening to industry more than where 10,000 people could be exposed. ognizing this is immediate, and there is we are listening to the needs of the This is a serious issue that can create necessary evaluation that is being American people. If September 11 real health and safety hazards to our asked for from chemical producers, I taught us anything, it is that America community, particularly in a time don’t think we are going far enough in can no longer avoid thinking about the when we know we are under potential requiring the use of inherently safer unthinkable. We have to face up to the terrorist attack at home. approaches if they are economically Nation’s most serious vulnerabilities. This is an issue that has been identi- feasible and practical. That should be a We have to focus on them. And we have fied by the Department of Homeland requirement of the law. This is one of to confront them head on. Security and by almost every security the major issues I have. That is why I have long advocated expert as one of the most serious expo- Finally, there is a gaping loophole in the adoption of legislation to create sures we have in our infrastructure. this legislation as I understand it, and meaningful and enforceable security When we go from code yellow to code I hope others will challenge it tomor- standards for chemical facilities. Under orange, chemical plants are identified row in the committee mark. I certainly my proposal, the Federal Government as part of the infrastructure that needs will if it gets to the floor; that is, if the would identify ‘‘high priority’’ chem- to be hardened in those events. chemical industry or any particular ical facilities—those that potentially It seems to me we need to be address- private sector approach has a substan- put a larger number of people at risk. ing this matter. I am pleased Chairman tially equivalent standard as opposed It then would require those facilities to INHOFE, EPW, and others are taking up to what DHS puts out as a standard, assess their vulnerabilities and imple- this challenge to address this issue. I that will be acceptable to the Depart- ment plans to improve security. These have been pushing on this for the last ment of Homeland Security. They have plans would have to be submitted for 2 years, actually got a vote in EPW on already embraced a private standard review. And changes could be required a bill that had 100-percent support of that they have suggested is very good. if deficiencies are identified.

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00011 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S12996 CONGRESSIONAL RECORD — SENATE October 22, 2003 In the last Congress, my legislation still falls short. Given the number of reconsider this approach. And, if not, I was approved on a unanimous vote by lives that are at stake, I think compa- intend to pursue this matter aggres- the Environment and Public Works nies should be required to implement sively if, and when, the bill ever Committee. But after the committee safer technologies if they are cost ef- reaches the Senator floor. acted, the bill was killed after some in fective. We need to address chemical plant industry lobbied against it. Unfortunately, the requirement that security. But we need to do so in an en- This year, the committee apparently facility owners consider safer tech- forceable way that will really make is planning to take up a different bill. nologies could be undermined because Americans safer. The lives of many And let me say, first, that I commend of a huge loophole in the bill that may thousands of Americans may well hang the chairman, Senator INHOFE, and the allow industry to sidestep many Fed- in the balance. other members of the committee for eral security requirements. Under this The PRESIDING OFFICER. The Sen- addressing this matter. Unfortunately, provision, DHS’s security standards ator has 1 minute remaining. while I no longer serve on the com- could be waived for any facility that Mr. CORZINE. Thank you, Mr. Presi- mittee and have not been privy to all participates in an industry program dent. of its discussions, it appears that the that is, ‘‘substantially equivalent.’’ f bill currently under discussion has at At first, that may sound like a rea- CLASS ACTION FAIRNESS ACT least one glaring weakness. sonable approach. But the term ‘‘sub- The committee is considering requir- stantially equivalent’’ is so broad that Mr. CORZINE. Lastly, Mr. President, ing chemical plants to develop security it could well allow the Bush adminis- I want to say something about the bill plans and submit them to the Depart- tration to simply rubberstamp an ex- that we are going to be debating in the ment of Homeland Security. But—and isting chemical industry program that next hour or so, class action fairness. here is the problem—the bill doesn’t re- is grossly inadequate. For example, the I am not a lawyer, so I am not as quire the Department to do anything chemical industry’s program has no re- sharp on all of the terminology and all with them. DHS wouldn’t have to re- quirement that industry evaluate safer the other issues, but it is very clear to view them. It wouldn’t have to evalu- technologies in any detail. Yet it seems me that we are taking the small ‘‘d’’ ate them. It wouldn’t have to approve very possible that the Bush adminis- democratic processes out of access to them. It wouldn’t have to audit them. tration would exploit the bill’s loop- our courts with the legislation that is It wouldn’t have to do a thing to en- hole to rubberstamp this industry pro- underlying the motion to proceed. sure the public is protected. Instead, gram, and exempt participating plants I think it is absolutely essential that the Department could simply let these even from the bill’s limited require- we maintain the checks and balances plans sit on a back room shelf, col- ment for consideration of safer alter- in our present Federal constitutional lecting dust. native approaches. system. That does not mean there are Some might ask: Would the Bush ad- The last point I want to make about not abuses, and it does not mean we ministration really do that? Would it the bill apparently being discussed re- should not move to correct some of the really just let security plans sit on the lates to enforcement. Under the legis- things with regard to venue shopping, shelf, and not even review them? Well, lation, as I understand it, if a Govern- with regard to coupon procedures, for those who think that is unrealistic, ment employee wrongly discloses a which, by the way, are not even dealt consider this: The administration’s chemical plant’s security plan, that with in this bill. own plan didn’t require companies to employee would be subject to criminal I think this is a radical move. I am submit their security plans to the Gov- penalties. That sounds right. Yet, if very much in favor of Senator the owner of a chemical plant know- ernment at all. And that would cer- BREAUX’s proposal, a modified ap- ingly violated Federal security stand- tainly be the preference of many of proach, that will deal with some of the ards, the only remedies prescribed in their friends in industry. So, yes, there flaws. His bill would preserve state the legislation are civil. That sounds is every reason to be concerned that, class actions while sending truly na- wrong. tional class actions to Federal court. unless forced to do so, the administra- That disparate treatment of Govern- At the same time, it addresses the tion will take a hands-off approach and ment employees and chemical industry problem of abusive coupon settlements, simply ignore these security plans. And officials doesn’t seem fair. Nor does it which is something that the bill before the end result would be a lax security seem appropriate, given the nature of us does not touch. system with no real teeth. the threats are now confronting. After Beyond the failure of the bill to re- But instead, at a time when we are all, criminal penalties are available for fighting a war in Iraq, when we are quire review of security plans, the leg- violations of certain anti-pollution fighting a war on terrorism worldwide, islation under development in the En- laws. Surely violations of a new chem- and we are facing historic budget defi- vironment and Public Works Com- ical plant security law—a law designed cits and job losses, we are debating a mittee has other problems, as well. to save lives—should be punished with First, it fails to require industry to an equal degree of severity. radical bill that would legislate away adopt alternative technologies—such Before I conclude, let me step back the legal rights of American families. as the use of safer chemicals—if those for a moment and again remind my col- This legislation would dramatically alternative approaches are cost effec- leagues that should terrorists attack alter the constitutional distribution of tive. I think that is a mistake. After one of 123 chemical facilities around judicial power. It would: remove most all, no matter how many security per- the country, at least a million Amer- State law class actions into Federal sonnel are hired, and no matter how ican lives could be at risk. These are court; clog the Federal courts with high a security fence, no security real people—mothers, fathers, sisters, State law cases and make it more dif- scheme is impenetrable. And we need and brothers—all innocent Americans ficult to have Federal civil rights cases to prepare for the possibility that ter- who have no choice but to rely on their heard; deter people from bringing class rorists will be successful in attacking a Government leaders to protect them. actions; and impose barriers and chemical plant and releasing toxic ma- We, in Congress, have an obligation burdenson settlement of class actions. terials. That is why it is important for to do everything we can to protect I am not a lawyer, but I can appre- facilities to implement inherently these Americans, and to prevent what ciate that class actions are critical safer technologies, where practicable, really could be a tragedy of cata- tools for ordinary citizens who want to to reduce the resulting death and de- strophic proportions. We should not be hold wrongdoers accountable. For struction in the event of an attack. satisfied with a largely toothless plan many people who can’t afford lawyers, Thanks largely to the involvement of that leaves industry free to design se- class actions are the only way to vindi- Senator CHAFEE, the Inhofe mark has curity plans to their own choosing, cate their rights. For consumers vic- made real progress in this area. As I with no requirement that those plans timized by negligence, fraud and reck- understand it, the chairman has agreed even be reviewed. That is just unac- less misconduct, it is their opportunity to require detailed consideration of ceptable. to exercise their democratic rights. safer technologies. And I think that’s a I hope my colleagues on the Environ- Simply put, class actions promote ef- step forward. In my view, though, it ment and Public Works Committee will ficiency and level the playing field,

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00012 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S12997 giving persons who are injured in the on access to the courts for victims of provisions, as I understand them, that same manner by the same defendants discrimination, mass torts, consumer have come out of that are complicated, the ability to hold the wrongdoers ac- fraud, and other misconduct. This is complex. countable. This sort of collective ac- not a balanced, fair approach. I urge I have a number of questions about tion gives ordinary citizens the ability my colleagues to reject it. the ramifications of some of those pro- to level the playing field with powerful The PRESIDING OFFICER. The Sen- visions, especially the ones dealing defendants. For example, by allowing ator’s time has expired. with administrative appeals, judicial groups of citizens to band together and Mr. CORZINE. Mr. President, I yield review, and such issues. demand a safe and healthy environ- the floor. I think there should be a hearing. ment, class actions often result in The PRESIDING OFFICER. The Sen- That would be the right way to pro- courts requiring companies to stop poi- ator from New Mexico. ceed. We have new legislative lan- soning our neighborhoods and our f guage. The right way to proceed would be to have a hearing where we can get water. Without the class action tool, it HEALTHY FORESTS would often be impossible for ordinary testimony on these provisions and bet- citizens to take on powerful defendants Mr. BINGAMAN. Mr. President, I rise ter understand them. I have asked for when they damage the environment to speak for just a few minutes about such a hearing. I hope that will occur. and cause illness. the need for the so-called Healthy For- I believe having a clearer under- Class actions are also essential to the ests initiative that was discussed ear- standing of what the amendment enforcement of our Nation’s civil lier this week. means and encouraging constructive rights law. They are, in fact, often the Earlier this week, there was a unani- suggestions would be a preferable only means by which individuals can mous consent request made to proceed course for us to pursue. challenge and obtain relief from sys- to H.R. 1904, the so-called Healthy For- The PRESIDING OFFICER. The Sen- temic discrimination. Class actions ests initiative. The unanimous consent ator’s time has expired. have on important occasions served as request sought to limit debate on the Mr. BINGAMAN. Mr. President, I ask a primary vehicle for civil rights liti- bill to a specified list of amendments unanimous consent that I be given an gation seeking broad equitable relief. to be offered by particular Senators. additional 2 minutes. In far too many cases, justice delayed Included in that list were two amend- The PRESIDING OFFICER. Without is justice denied. No one recognizes ments that were purported to be of- objection, it is so ordered. this better than the manufacturers and fered or suggested to be offered by me. Mr. BINGAMAN. Mr. President, to the polluters, who would prefer these I have never spoken to anybody about conclude my statement, I do think cases to be in the Federal court sys- my intent with regard to offering there are serious questions regarding tem, where there is a tremendous judi- amendments. And I certainly have not this new language. It differs substan- cial backlog. agreed to any particular amendments tially from the bill that was reported Overloading these courts will inevi- that I wanted to offer. Therefore, I by the Agriculture Committee. Some tably delay the resolution of all cases have real concerns with that unani- of the major issues raised by the in Federal courts. Indeed, the Judicial mous consent request because the pro- amendment include a lack of any new Conference of the United States, head- posed unanimous consent request funding to reduce hazardous fuels; fail- ed by Chief Justice Rehnquist—not would have limited me to offering cer- ure to eliminate the harmful agency someone with whom I often agree, I tain amendments that I had not pre- policy of borrowing from proactive for- might add—has told Congress that the viously heard about. Obviously, I would est restoration accounts to pay for fire- Federal courts are not equipped to han- have objected had not other Senators fighting; the curtailment of public par- dle all these cases. That is why he op- done so. ticipation in the management and poses this bill. This is an important issue that the oversight of public lands, including the The delays caused by clogged courts Senate needs to try to address this establishment of a new so-called would be particularly damaging in year. I do not favor delaying that con- predecisional review process, which I cases where civil rights plaintiffs are sideration. There is always a threat do not, frankly, understand; and also, seeking immediate injunctive relief to that we have seen in the West, particu- of course, as I mentioned before, limi- prohibit discriminatory practices— larly in recent years, of unnatural, in- tations on judicial review. such as racial profiling or predatory tense, catastrophic wildfire. That is a It also appears to create some new lending. threat to many of our communities, to standards for injunctions that might be In addition to the above concerns, I millions of acres of public land and for- issued by the Federal court, both pre- was very distressed to learn that the ests in the West. liminary and permanent injunctions. manager’s amendment slips mass torts It was alleged early this week by There is no protection that I can see back into this bill, greatly expanding some who were supporting moving for national monuments and roadless the scope of the bill. This change ahead with that unanimous consent re- areas and other environmentally sen- makes the bill even more extreme, and, quest that those who did not favor the sitive areas in the bill. by federalizing individual tort suits, unanimous consent request did not I am not aware how some of these will flood the Federal courts with cases favor active management of the na- issues have been adequately addressed involving questions of State tort law. tional forests. I want to be clear in my in the proposed amendment. For that By sending a majority of mass tort statement this morning that I cer- reason I think we need to have an op- actions—cases involving products li- tainly do not fall in that category. portunity to offer amendments. ability and environmental damages—to I do not think we should just let na- I hope the Senate can consider this Federal courts, the bill would com- ture take its course. I do think we forest health legislation this year. As pletely jam the already overburdened should pursue active management. do many Senators, especially those Federal courts and delay justice to What I want to be sure of is that the from Western States who have suffered hundreds, perhaps thousands, of people bill we finally enact provides meaning- in recent years from catastrophic wild- injured by defective drugs and medical ful new authority to our land man- fire, I very much want to see us resolve devices, like the Dalkon Shield, and agers; that it is focused on the commu- these issues as best we can. But we environmental contamination. nities that are most threatened by should do so under conditions that Class actions are an important tool wildfire; and that it does not unduly allow for amendments and allow for for ordinary citizens to level the play- restrict the public’s right to partici- full debate. And that is my purpose at ing field and vindicate their rights. pate and have oversight in the manage- this stage. They promote safety, protect our ment of these lands. So I hope we can proceed and do so in health and environment, and are essen- I am aware that a deal of some sort a way that all of us get to participate tial to enforcement of our civil rights has been developed by certain of the in the process. laws. Senators who are concerned on the With that, Mr. President, I yield the The legislation before us would im- issue. I was not involved in that set of floor and suggest the absence of a pose new and substantial limitations negotiations that led to that deal. The quorum.

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00013 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S12998 CONGRESSIONAL RECORD — SENATE October 22, 2003 The PRESIDING OFFICER. The Want a class action lawsuit with that A national class action lawsuit cer- clerk will call the roll. burger? tified in an Illinois county court has The legislative clerk proceeded to It reports that a lawyer ‘‘has filed resulted in a determination that car in- call the roll. suit against the four big fast-food cor- surance companies violated their con- Mr. MCCONNELL. Mr. President, I porations, saying their fatty foods are tracts by refusing to provide original ask unanimous consent that the order responsible for his client’s obesity and manufactured parts to policyholders for the quorum call be rescinded. health-related problems.’’ who were involved in accidents. This The PRESIDING OFFICER. Without The lawyer filed his lawsuit in State determination resulted in a $1.8 billion objection, it is so ordered. court in the Bronx, ‘‘alleging that verdict against State Farm. f McDonald’s, Burger King, Wendy’s and This case is noteworthy because the [Louisville-based] KFC Corporation are REGULATION BY LITIGATION county court which certified the class irresponsible and deceptive in the post- action let the case stand, even though Mr. MCCONNELL. Mr. President, I ing of their nutritional information, several State insurance commissioners rise to speak in support of the class ac- that they need to offer other options testified that a ruling in favor of the tion bill that will be before the Senate on their menus, and that they created nationwide case would actually con- later this morning. a de facto addiction in their con- travene the laws of other States. These A few years ago during the debate on sumers, particularly the poor and chil- laws either allowed, or in fact required, lawsuits against tobacco companies, dren.’’ the use of generic car parts as a way to gun manufacturers, and lead paint The lawyer said: keep costs down for consumers. companies, the satirical publication, You don’t need nicotine or an illegal drug As the New York Times reported, the the Onion, wrote a spoof piece entitled to create an addiction, you’re creating a result of this State class action was to ‘‘Hershey’s Ordered to Pay Obese craving. ‘‘overturn insurance regulations or Americans $135 billion.’’ This was a The lead plaintiff, a 56-year-old State laws in New York, Massachu- tongue-in-cheek article which everyone maintenance supervisor, said he setts, and Hawaii, among other found quite amusing at that time. ‘‘traced it all back to high fat, grease places,’’ and ‘‘to make what amounts It began: and salt, all back to McDonald’s, to a national rule on insurance.’’ In one of the largest product-liability rul- Wendy’s, Burger King.’’ He said: The concerns with this case were not ings in U.S. history, the Hershey Foods Cor- There was no fast food I didn’t eat, and I poration was ordered by a Pennsylvania jury due to the interests of ‘‘big insurance.’’ ate it more often than not because I was sin- Ralph Nader’s group, Public Citizen, to pay $135 billion in restitution to 900,000 gle, it was quick, and I’m not a very good obese Americans who for years consumed the cook. It was a necessity, and I think it was the attorneys general of New York, company’s fattening snack foods. killing me, my doctor said it was killing me, Massachusetts, Pennsylvania, and Ne- The spoof went on: and I don’t want to die. vada, and the National Association of ‘‘Let this verdict send a clear message to The attorney ‘‘aimed to make his Insurance Commissioners all filed ‘Big Chocolate,’ ’’ said Pennsylvania[’s] At- case into a class action lawsuit,’’ with briefs opposing the Illinois State torney General . . . addressing reporters fol- the ultimate goal ‘‘to force the fast- court’s determination because this lowing the historic ruling. ‘‘If you knowingly food industry ‘to offer a larger variety county court’s new national rule on in- sell products that cause obesity, you will surance would be bad for consumers— pay.’’ to the consumers, including non-meat vegetarian, less grams of fat, and a re- though I suspect the trial lawyers in The article continued: duction’ ’’ in meal size. that case have made out quite hand- The five-state class action suit accused Mr. President, by the way, damages somely. Hershey’s of ‘‘knowingly and willfully mar- in the case were unspecified. Given the It is not only appropriate, but nec- keting rich, fatty candy bars containing horror stories we have heard of plain- essary, to use class actions to effi- chocolate and other ingredients of negligible ciently provide remedies to large num- nutritional value.’’ The company was also tiffs getting the short end of the stick charged with publishing nutritional informa- in class action cases, the plaintiffs bet- bers of plaintiffs. But it is inappro- tion only under pressure from the govern- ter hope that class action reform gets priate to use them to circumvent the ment, marketing products to children, and enacted before their case is resolved, decisions that belong to other branches artificially ‘‘spiking’’ their products with lest their lawyer bank all the cash of Government and to other States. such substances as peanuts, crisped rice, and while they are stuck with a coupon as Maybe Ralph Nader, New York, Massa- caramel to increase consumer appeal. a result of a ‘‘drive-by’’—or should I chusetts, Pennsylvania, and other The article went on to discuss the say ‘‘drive-through’’—settlement. The States are wrong and the county judge use of class action litigation to force coupon could probably buy a large in Illinois is right, and we should re- chocolate manufacturers to adopt poli- french fry. That would be about all it quire that original manufacturer parts cies preferred by the plaintiffs. would purchase. be used in auto repairs. But that is a It concluded by saying: A disturbing thing about lawsuits decision for the people of the several Whatever the outcome of Hershey’s appeal, against ‘‘big fast food’’ is that they States to make, not unelected judges. the chocolate industry has been irrevocably promote a culture of victimhood and Mr. President, class action reform changed as a result of [the] verdict. jettison the principle of personal re- will ensure that truly national cases When I read this piece in the Onion a sponsibility. I have, in fact, introduced are decided in a national forum, and I few years ago, I thought it was quite the Commonsense Consumption Act to hope we can enact this important re- creative. I thought it illustrated the try to restore sanity to our legal sys- form. The Democrat leadership has disturbing misuse of class actions, tem with respect to these types of said their caucus recognizes the need using class actions to circumvent legis- cases against the fast food industry. for reform. I think the fact that they lative decisions with respect to setting But an equally disturbing aspect that are filibustering the motion to proceed policy. I was not the only one who this high profile case illustrates is the questions that notion. thought so. Former Secretary of Labor use of class action lawsuits to cir- But we will soon have a chance to see under President Clinton, Robert Reich, cumvent legislative decisions and sub- if our friends on the other side of the wrote that: vert the democratic process. No branch aisle are sincere about trying to solve The era of big government may be over, of Government should mandate that the problem of class action litigation. but the era of regulation through litigation Burger King and McDonald’s carry If they are serious, then they should has just begun. veggie burgers for portly patrons. But support cloture on the motion to pro- It turns out that the Onion was not even if that is something Government ceed and give us a chance to go forward merely creative, it was, in fact, pre- should do, it should not be the judicial with this important legislation. If we scient. A few months ago, I read an- branch that does it, particularly a get on the bill, then they can try to other article, this one a real news State court setting national culinary improve the flaws they see in it, or story, not a spoof, entitled ‘‘Ailing policy. maybe even substitute an entirely new Man Sues Fast Food Firms.’’ The arti- Let me give another example with proposal, which I understand one of the cle began: which people might not be as familiar. Democratic Senators advocates. But if

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00014 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S12999 we cannot even get on the bill, we can- Unfortunately, because of that, a lot legislation would deprive Vermonters not attempt to solve whatever prob- of people with valid claims, who have of the right to band together to protect lems they think might be in the bill. been dealt an injustice and should have themselves against violations of State I am hopeful that we won’t have the access to our courts or some means to civil rights, consumer, health, and en- situation we had a few months ago, vindicate those claims, are simply fro- vironmental protection laws in their where folks on the other side claimed zen out. That is something we need to own State courts. to want to do something about the work on not just on this bill, on this That is unacceptable to this problems with our medical liability day, but going forward. I hope we will. Vermonter. The same could be said of system, but then, to a man, filibus- This bill, I believe, is very important all the other 49 States, and it ought to tered the motion to proceed on medical because, indeed, I think the purpose of be unacceptable to the Senators from liability reform. We will soon see if our a class action lawsuit is a good one. It each of the other 49 States. friends on the other side of the aisle does, as originally intended, serve the In fact, the country might ask what are sincerely interested in moving for- purpose of providing individuals with it says about our priorities that we are ward on this legislation. relatively small claims an opportunity even having this debate. Of the many Mr. President, I yield the floor. to get access to the court to get jus- pressing issues already on the Senate’s f tice, even though it may not be eco- plate awaiting action and awaiting time on the floor, all the appropria- CONCLUSION OF MORNING nomically sustainable because, of tions bills that we are required by law BUSINESS course, they have to hire a lawyer, pay court costs, and all the like. to pass by September 30 and have yet The PRESIDING OFFICER. Morning The purpose, I believe, is laudable, to even be taken up for a vote or de- business is closed. but as in a lot of areas, experience and bate should be among our highest pri- f scholarship by the Nation’s leading orities. If we are going to tell how the CLASS ACTION FAIRNESS ACT OF thinkers and just plain common sense laws should be made and how the 2003—MOTION TO PROCEED tell us that, with the circumstances courts should be run, we ought to at that confront us today when it comes least demonstrate to the American The PRESIDING OFFICER. Under to class action lawsuits, the system is people that we, in the Senate, can fol- the previous order, the hour of 11:30 not just broken but that it is falling low the law and do our appropriations having arrived, the Senate will resume completely apart. bills at the time we are supposed to. consideration of the motion to proceed Mr. President, I reserve any remain- Instead, we set aside those issues to the consideration of S. 1751, with the ing comments that I may have and, ac- that by law we are required to do, time until 12:30 p.m. equally divided be- cording to the time that has been split those issues that are the priorities of tween the two leaders or their des- between the parties on this issue, rec- the American people, to take up an- ignees. The clerk will report. other priority. We ask: Whose priority The legislative clerk read as follows: ognize the Senator from Nevada for comments he may care to make at this is this bill? The bill is a top priority to Motion to proceed to the consideration of S. 1751, a bill to amend the procedures that time. special interests that include big pol- apply to consideration of interstate class ac- The PRESIDING OFFICER. The Sen- luters and big violators of the Amer- tions to assure fairer outcomes for class ator from Vermont. ican people’s consumer rights and civil members and defendants, and for other pur- Mr. LEAHY. I thank the Chair. Mr. rights past, present, and future. poses. President, I do not want to interfere Class actions are one remaining tool The PRESIDING OFFICER. The Sen- with my friend from Nevada, but I un- available to the average American in ator from Texas is recognized. derstood we were going back and forth; seeking justice, and some special inter- Mr. CORNYN. Mr. President, I ask is that correct? ests want nothing more than to weak- unanimous consent that the 5 addi- Mr. CORNYN. That is certainly fine. en the public’s hand in class action tional minutes of morning business The PRESIDING OFFICER. There is proceedings. just consumed by the distinguished as- no agreement to that effect. While the Senate is spending several sistant majority leader be charged Mr. LEAHY. Has there been time re- days debating this bill, think of those against the Republican time for debate served under the order for the Senator appropriations bills that by law we on the motion to proceed to S. 1751. from Vermont? should have brought up weeks ago and The PRESIDING OFFICER. Without The PRESIDING OFFICER. There is what is in those bills: not special inter- objection, it is so ordered. time reserved. ests but American interests, such as Mr. CORNYN. Mr. President, in a mo- Mr. CORNYN. Mr. President, if I may funding for the Department of Justice ment, I am going to ask that the Chair inquire of my colleague from Vermont, to provide bulletproof vests for law en- recognize the distinguished Senator Senator ENSIGN was here when I start- forcement officers, the same law en- from Nevada for comments that he ed, and then Senator LEAHY came in forcement officers who protect all of may care to make on the motion to after I started, so I apologize. May I in- us, or how about the money to put proceed and on the upcoming vote at quire approximately how long the Sen- more cops on the streets and to imple- 12:30 on cloture regarding that issue. I ator from Vermont wishes to speak? ment the prevention programs of the want to perhaps tee it up a little bit Mr. LEAHY. Mr. President, how Violence Against Women Act? Those and talk about why I think this motion much time is reserved under the order are not special interests; they are to proceed is so important. I am only for the Senator from Vermont? American interests. going to do so for a few minutes, and I The PRESIDING OFFICER. About 30 Despite the fact the fiscal year began will talk some more after the Senator minutes. 3 weeks ago, we are dallying with this from Nevada has had a chance to Mr. LEAHY. I will not use the 30 special interest legislation that bene- speak, and perhaps someone on the minutes. I am going to use approxi- fits large corporate interests at the ex- other side who wishes to speak. mately 5 minutes of my 30 minutes. pense of individuals harmed by these I worry that our system of litigation Mr. CORNYN. I certainly ask that corporations. has simply become too expensive and the Senator from Vermont be recog- At its core, this bill deprives citizens too time-consuming to serve the needs nized for that purpose. of the right to sue on State law claims of consumers and the public. Those of The PRESIDING OFFICER. The Sen- in their own State courts if the prin- us who have represented people in ator from Vermont is recognized. cipal defendant is a citizen of another court, whether they be a plaintiff or a Mr. LEAHY. I thank the Chair. Mr. State, even if that defendant has a sub- defendant in a lawsuit, know that President, I do take my time under the stantial presence in the plaintiffs’ sometimes after the lawsuit is over, order. home State, and even if the harm done even though lawsuits invariably have As I stated before, I do oppose this was in the plaintiffs’ home State. winners and losers, sometimes it is bill, a bill that has not had hearings, Less than a week ago, with no hear- hard to tell the difference between the has not had a vote in the committee, ings before our committee, mass tort two because the process, as I say, costs but when you review it, you realize— actions were included in the bill along so much and takes so much time. let me be parochial for a moment—this with true class actions, despite the fact

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00015 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13000 CONGRESSIONAL RECORD — SENATE October 22, 2003 that when we actually did vote on it in mental harms, as we saw with Mon- the lawyers claim to protect, the con- the Judiciary Committee, both Repub- santo in Alabama, or to vindicate the sumer. licans and Democrats voted to take basic civil rights they are entitled to Oftentimes, the so-called clients of that out. This simply amplifies the as citizens of our great country, they these class action attorneys end up harm done to citizens’ rights, and to are using class actions, and they with token awards in the form of cou- the possibility of vindicating those should continue to do so. pons or rebates, while the attorneys rights in their own State courts. The so-called Class Action Fairness pocket millions of dollars. It also shows how special interest Act is something that appeared on the Just a few examples: In 1997, lawyers legislation comes on the floor. Here is Senate desk with no hearings. It al- got nearly $2 million in fees and settle- legislation bypassing the committee, most looks as if it has been drafted in ment with Cheerios over a food addi- legislation that is dumped on the floor the legal section of one of the major tive where there was no evidence any and provisions added to it that had polluters of this country. It would consumer had been injured. There was been voted down by a majority of the leave injured parties who have valid nearly $2,000 an hour charged for this committee of jurisdiction, a majority claims with no effective way to seek case for personal injury lawyers. Con- requiring both Republicans and Demo- relief. sumers received a coupon for a free box crats to vote for it. Class action suits have helped win of Cheerios. That is really protecting Special interests groups are dis- justice and exposed wrongdoing by cor- the consumer. torting the state of class action litiga- porate and Government wrongdoers. Southwestern Bell customers were tion by relying on a few anecdotes in They have given average Americans at told they would benefit from a class ac- an ends-oriented attempt to impede least a chance for justice. We should tion lawsuit. Instead, they ended up plaintiffs bringing class action cases. not take that away. with three optional phone services for 3 There are problems in class action liti- I reserve the remainder of my time. months or a $15 credit if they already gation. There are ways of taking care The PRESIDING OFFICER. The Sen- subscribed to those services. The trial of that. But simply shoving most suits ator from Texas. lawyers received $4.5 million in fees. into Federal court with new one-sided Mr. CORNYN. Mr. President, first I In a class action lawsuit against rules will not correct the real problems inquire as to the remaining time on the Chase Manhattan Bank—and this one faced by plaintiffs and defendants. Republican side. is really good—a State court awarded After all, our State-based tort sys- The PRESIDING OFFICER. For the the plaintiffs a multimillion-dollar tem remains one of the greatest and majority, there are 211⁄2 minutes re- judgment. The trial lawyers walked most powerful vehicles for justice any- maining. away with over $4 million in attorney’s where in the world. I think of when the Mr. CORNYN. I ask unanimous con- fees. Each plaintiff was awarded, get Soviet Union broke up, as I said before sent that of that time, the last 10 min- this, a settlement check of 33 cents. on the floor, and members of the new utes before the vote be reserved for the Since the plaintiffs had to claim their governing body came to the United Senator from Iowa, the sponsor of the check by mail at the then-cost of a 34- States to study how we do things. I re- bill, or his designee; that following this cent stamp, the class action ‘‘win’’ for call a group coming to my office and UC request we go to the Senator from the consumer was a net loss of one saying: We have heard that people in Nevada for 5 minutes; thereafter, that penny. the United States in your States can the Senator from Delaware be recog- It is obvious there is a need to reform sue the Government, sue the State. nized for 5 minutes for any comments our class action system. We need to I said: That’s right. he may make; and then that the re- take it where we have the best jurists They said: We have heard further mainder of the time be reserved for me in the Federal system. that they actually could win, and the or my designee. A couple of years ago, one of the best State could lose. The PRESIDING OFFICER. Is there trial attorneys in Las Vegas came to I said: It happens all the time. objection? Without objection, it is so me. He actually makes his living doing They said: You mean, you don’t fire ordered. these things. He said: If you want to re- the judges; you don’t start over again? The Senator from Nevada. form the system, take it out of the I said: Absolutely not; this is our sys- Mr. ENSIGN. Mr. President, I thank State courts where you can just select tem. We set it up that way so people the Senator from Texas for yielding. the cheapest State that there is to sue, can go to their State courts and sue. We just heard that what class action and take it where you have the most If this is passed, I would hate to have lawsuits are really about is the little talented jurists in the Federal system. to explain to those people from the guys in our system. That may have That way the legitimate lawsuits will former Soviet Union that we have been the way it was intended, but un- go forward. Those cases where the con- taken such a step backward. fortunately trial lawyers have abused sumer really does need protection will One reason that our State-based tort this system where now—I am from the go forward, but we will get rid of a lot systems are so great is that there is an State of Nevada where we have these of the frivolous, outrageous lawsuits availability of class action litigation megabucks jackpots—what this system that are happening at the State court that lets ordinary people band together has become is the megabucks jackpots level. to take on powerful corporations or for the trial lawyers. It is not about So I urge that this Senate would pro- even their own Government. Defrauded the little guys anymore. ceed to the debate. If there are amend- investors, deceived consumers, victims I have several examples I will cite to ments, let us have the amendments, of defective products, and environ- show exactly how out of control this but let us at least proceed to the de- mental torts, and thousands of other system is. Between 1997 and the year bate on reforming our broken class ac- ordinary people have been able to rely 2000, American corporations reported a tion system. on class action lawsuits in our State 300-percent increase in Federal class I thank the Senator for yielding me court systems to seek and receive jus- actions, and a 1,000-percent increase in the time. I yield the floor. tice. State class actions filed against them. The PRESIDING OFFICER. Who If they cannot, that is what the Class action lawsuits were conceived as yields time? The Senator from Dela- cheaters count on. We are only cheat- an expeditious way for people with the ware is recognized for 5 minutes. ing you $5 or $6 or $10 or $15. Why same grievances to join in a common Mr. CARPER. Mr. President, I thank would you sue for that? But if there are suit and seek justice in instances the Senator for yielding. This is an im- millions being cheated, then you have where it would be difficult to do so in- portant vote. I think in some ways this a chance to do something. Class ac- dividually. Unfortunately, what has may be the most important vote we tions allow the little guys to band to- evolved now is a means for a select set have cast in the 21⁄2 years I have been gether. Whether it is to force manufac- of trial attorneys to abuse the class ac- here. I want to speak to Democrats turers to recall and correct dangerous tion litigation system and to seek ab- first and then to Republicans. I suggest products, as we saw with the surd financial rewards. Whether or not to my colleagues, my Democrat Bridgestone/Firestone tire recall, or to these lawsuits are successful, the cost friends, why it is important for us to clean up after devastating environ- of these lawsuits hurts the very people vote for the motion to proceed to take

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00016 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13001 up this bill and to improve this legisla- the House and the Senate, and the con- haps some of them adopted, I would tion before we end up voting for it and ference report comes back, and the Re- have no hesitation to support the mo- sending it to conference. publicans have not acted in good faith, tion to proceed. Unfortunately, on too First, I say to my Democrat col- the majority has not acted in good many occasions now, especially involv- leagues, the status quo is not accept- faith, we have a third bite out of the ing tort, that has been an elusive goal, able. We cannot feel good about the apple. I believe we have those protec- to say the least. We have not had the system of justice which exists today. tions down the road and especially the opportunity to have amendments of- There are many who disparage the trial second, on the motion to proceed. fered in good faith. They have been re- bar, but I will say a kind word toward I say straight out to our Republican jected, one after the other, on a party the efforts of many members of the friends, if we approve the motion to line vote. As a result, we are left with trial bar. They do important work. proceed today, we actually get to the no recourse but to simply say: Look, They make sure when the little people bill today, and have the opportunity in let’s find a way to resolve this matter. are damaged or hurt that there is a the next days and week to offer amend- Let’s negotiate a bipartisan solution way for them to have their grievances ments, if my Republican friends do not and let’s resolve this issue. addressed, and when people are harmed act in good faith—and I believe they I would even use the current cir- to be compensated. That is important. will—but if they do not act in good cumstances as an illustration of what It is important we preserve that right. faith, not only will I oppose cloture on it is I am talking about. The Judiciary The system that has evolved over the the bill, I will help lead a fight against Committee passed a bill that enjoyed last 200 years with the class actions, cloture. bipartisan support, signed by several of and what I think everyone regards as I want us to be able to offer our our colleagues on this side. They sent venue shopping too often between dif- amendments. I want to see a lot of it to the floor. We fully expected the ferent State courts and the Federal those amendments adopted. If that debate would be about that committee courts, is a system that is just out of happens, we can improve this bill fur- bill. balance today. We can do better than ther and then go to conference further But that is not what the issue is this this. It is important that we do better down the line. morning. The issue is whether we than this. The last thing I want to say, in my should support a motion to proceed to I want to go back and talk about the view, there is more at stake than the a bill that was ‘‘rule XIVed’’ onto the evolution of the legislation. When this motion to proceed, and I have sug- calendar in spite of what the Judiciary bill was first introduced and talked gested this to Majority Leader FRIST. Committee did; I would say in direct about in the 105th Congress, there were What is at stake is whether we are conflict with what the Judiciary Com- a lot of people who thought that class going to be able to work together on a mittee did. action reform ought to be tort reform; difficult and contentious issue; wheth- This bill is not just a class action that we ought to put caps on attorney’s er or not in this instance we are going bill. This bill is also a mass tort bill. fees, caps on pain and suffering, caps to be able to maybe take what could be The committee voiced its opinion on on punitive damages, dismember joint a very good experience, very positive mass tort. They objected. On a unani- and several liability. That is what a lot experience of walking together across mous vote, mass tort was excluded of people thought we ought to do 6, 7, party lines on a tough issue, and from the class action bill. 8 years ago. This legislation does not maybe apply that on other difficult Lo and behold, it is right back in the look like that at all. This is a modest, issues we face. legislation today. So we will be voting measured approach to fixing what I be- So there is a responsibility on both on the motion to proceed not only to lieve is a real problem. sides: for us as Democrats to offer rea- class action but to mass tort, and mass I am not going to get into the weeds sonable amendments, to join in good tort for many of us is a woman’s issue. and talk about one aspect of the bill or faith in the debate, but also for our Re- It is the Dalkon shield, it is silicon the other. Some concerns have been publican colleagues to support those breast implants, it is fen/phen. It is a raised about it. Some are legitimate, good amendments and act in good faith lot of issues that would not have been some are not. I say to my colleagues, on their own. If they and we act in addressed had this legislation been in particularly Democrats, the bill is not good faith, we could end up with good law when those cases were taken up. It perfect. This bill can be improved. If it policy, which is what makes good poli- is that simple. Mass tort is something is not perfect, make it better. We can tics. That is the potential. It is impor- most of our colleagues did not bargain make this bill better. In the end, in tant we all realize that. for, but it is in this bill. order for us to have the opportunity to The PRESIDING OFFICER. The mi- The second issue has to do with the make this bill better, we have to move nority leader. right of removal. Defendants now have to the bill. We have to vote affirma- Mr. DASCHLE. Mr. President, I an opportunity to remove a case from tively for the motion to proceed. If we would like to pick up where the distin- State court within a 30-day snapshot. do that, we will have the opportunity guished Senator from Delaware left off They do that. Everyone understands for me to offer amendments, as well as because I could not agree more. This is that is their opportunity to move to a other colleagues to whom I have talked an issue that should not divide us po- different venue. Under this legislation, on our side. A number of our colleagues litically or even philosophically. This they strip that legislation. At any time have very good ideas for amendments. is an opportunity for us to find com- during the consideration of a case they And I invite not only Democrats to mon ground and work together. That is can remove themselves from that par- support them but our Republican what many of us have sought to do ticular court’s jurisdiction. That is un- friends as well. from the very beginning, what we have precedented. You talk about forum Republican leadership has indicated tried to do with our colleagues on the shopping. I can’t think of a better invi- in a number of these instances they other side and with others, because we tation to forum shopping than the will support the amendments that are believe there is ample opportunity to right of removal at any time up to the being prepared to be offered. find common ground if we only seek it. time the verdict is about to be an- Back to my Democrats, as the minor- I don’t know the number of times I nounced. That is in this legislation. ity we have three bites out of this have offered to sit down, along with This is bad legislating. It is bad legis- apple to protect our position as the mi- many of our colleagues, with Senators lating because it overrides the rules of nority. One, we can filibuster and not on the other side in an effort to find the committee, because it overrides vote for the motion to proceed. That is the common ground we are looking for. the voice, the opinion, the position of one protection. The second protection For whatever reason, none of those of- the committee on some of these key comes when we reach cloture on the fers have been accepted. So we find questions. Frankly, it overrides the bill and the decision comes do we actu- ourselves in a very difficult situation consensus that I know we can establish ally vote on the bill, do we go to clo- this morning. If I had the same con- together. ture. That is a second bite out of the fidence the Senator from Delaware had I have said as late as yesterday to apple. The third bite out of the apple is that we could offer amendments and the majority leader, I want to sit down if there is a conference report between they would truly be considered and per- with you. I want to negotiate some way

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00017 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13002 CONGRESSIONAL RECORD — SENATE October 22, 2003 to resolve these issues. Do we recognize the committee level by Democrats as I have introduced a bill—S. 1769— there is abuse? Absolutely. But this well as Republicans, and finally voted which I think addresses all of the con- legislation is killing a housefly with a out of the committee on a bipartisan cerns people have raised about any po- shotgun. There is a lot of collateral basis. This is the way bills are sup- tential abuses dealing with class action damage that is going to be done if it posed to reach the floor for debate and litigation. The idea would be for us to passes. amendment and final approval or dis- sit down with our colleagues and nego- I am very hopeful we all recognize approval. I cannot understand legiti- tiate between their version and the the distinguished Senator from Lou- mate motivations of those who are in version I have introduced to see if we isiana has offered a viable alternative opposition, as they have expressed can reach common ground and pass that recognizes there are times when themselves, except as it may be their this in less than an hour with a sub- class actions ought to be held in State motivations are to kill class action re- stantial three-fourths of the Senate court, but there are times when class form entirely in this session of the probably voting for it. actions ought to be held at the Federal Congress and for as long as we can look Many people have said the problem is court level. We can recognize that ahead and foresee. forum shopping; many plaintiffs try to there are those times when there is a I urge my colleagues who want to see find the best forum they can possibly Federal jurisdictional question. class action reform to allow this bill to Whether it is his language or some- reach the floor where it can be, as I find and litigate in that forum for the thing like it, we can work with our col- said, fully debated and fully amended. I best judgment they can get. My legisla- leagues on the other side. But the only point out to them once again if in fact tion says, no, we are going to follow way that is going to happen is if we sit there is that kind of opposition to the principally the same rules the com- down and do this together. That is bill that would finally emerge for final mittee set out. If a third or fewer of what I am offering. That is why I op- vote, they can require 60 votes. So all the plaintiffs are from one single posed the motion to proceed, because of their concerns as they have been ex- State, it belongs not in State court but that has not happened yet. I am hope- pressed in this debate can still be ad- in Federal court. That is the same situ- ful it will. dressed in that final vote, which could ation that the committee has reported Whether or not we can succeed in es- be, in fact, a filibuster vote. out. We are in agreement. If between tablishing that important priority with I urge my colleagues to vote yes on one-third of the plaintiffs are from one this vote remains to be seen. I am hop- the motion to proceed. I hope very State and two-thirds are from one ing my colleagues will join me. much that we will have a chance to de- State—if between one-third and two- I yield the floor. bate class action reform. thirds have been injured in Louisiana The PRESIDING OFFICER. The Sen- I thank the Chair. and filed suit—then Federal court de- The PRESIDING OFFICER. The Sen- ator from Texas. cides whether it belongs in Federal ator from Louisiana. court or State court. Mr. CORNYN. How much time re- Mr. BREAUX. Mr. President, I yield mains for the Republican side? myself 5 minutes under the time re- That is principally the same finding The PRESIDING OFFICER. Eleven maining. that the committee bill has. We are in minutes. Mr. President, my colleagues, I am principle agreement in that regard. Mr. CORNYN. I ask unanimous con- for reforming the so-called class action The Federal court makes the decision. sent to revise the previous unanimous litigation system we have in place. I For those who want it in Federal court, consent agreement to provide for 7 think a strong majority of the Mem- a Federal judge looking at all of the minutes for Senator GRASSLEY or his bers of the Senate also favor a reform particulars of the litigation will decide designee, 3 minutes for Senator KOHL, piece of legislation passing this body whether it belongs in his or her court the Senator from Wisconsin, and I re- and ultimately being signed into law. on the Federal level or whether the serve the remaining time for myself, But this is a two-way street, as every- State has a greater interest in trying it such as remains. thing we have to do in this body has to on the State level. There is no dis- The PRESIDING OFFICER. Without be. A 51-to-49 Senate means that nei- agreement. objection, it is so ordered. ther side has the ability to do whatever But one area of disagreement I would The Senator from Wisconsin. they want without negotiating with like to point out is the situation of Mr. KOHL. Mr. President, I rise in the other half of the Senate. Either support of the Class Action Fairness what happens if over two-thirds of the side has the potential to stop anything. plaintiffs happen to be from one State, bill. What those of us who are sup- That is what happens so many times in portive of this bill are trying to do is such as Louisiana. It is a big difference this body during this period of time we in what we do here. If two-thirds or simply get it to the floor where it can are in now where both sides can say, we be debated, amended, and even filibus- more of the plaintiffs suffer injuries in are not going to do it this way, or, do my State, or any particular State, by tered, so I do not understand the objec- it my way or don’t do it at all. The tions of those who want to prevent the the alleged defendant who is doing clear result of that is nothing gets business in that State, who sells prod- bill from even reaching the floor. done. The end result is that both sides Those who do not support the final bill ucts in that State, and who must fol- can blame the other side for failure in low the law of that State passed by the as it would emerge can vote against it getting anything accomplished. and can even filibuster it, which would State legislature, my proposal says For those who truly want to get that belongs in State court. require 60 votes at that time. something done and worry less about My fear is those people who do not who gets the credit, it is obvious that In the committee bill as drafted, they even want the bill to reach the floor in the way to do it is to sit down and ne- say even if every single person has been fact do not want—and I will bet we will gotiate and try to reach an agreement. injured or has allegedly been injured in not have—any class action reform. I I am absolutely convinced that an my State of Louisiana by a defendant believe many of those on the other side agreement that addresses the real allegedly in violation of the laws of on this issue want to put this whole problems dealing with class action Louisiana, passed by the State Legisla- question of class action reform to bed could be reached in short order and ture of Louisiana, if the defendant who and not address it at all. I would be allow us to get as many as 70 to 75 caused the injury—even though they do willing to bet any of them we will not votes for a real class action reform bill. business in my State and sell their have any class action reform if in fact But that has not happened. It has not products in my State, even if they have this bill we are proposing is prevented happened because my colleagues on the multiple stores in my State and are from even reaching the floor at this Republican side have generally said, we doing business and taking money out time. have what we want and we want to pass of my State for the things they sell, The bill that is being voted upon at the bill that we wrote, even though and if the defendant happens to have 12:30 is a bill that has gone through the they wrote much of it after it had al- citizenship of Delaware, where many committee process in the most fair and ready left the committee, as the distin- corporations are incorporated, or any democratic of ways. It has been years guished Democratic leader talked other State, that doesn’t belong in in the making. It has been amended at about just a moment ago. State court anymore; we are going to

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00018 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13003 put that in Federal court, which is al- As many people said, this is forum be commended for it. We need more ready overburdened. The Federal judi- shopping, which the distinguished mi- people willing to look at the merits of ciary says they don’t want that juris- nority leader, Senator DASCHLE, talked legislation and vote on those merits. diction. about. They don’t want forum shopping That is all we are asking. Justice Rehnquist says he is opposed for plaintiffs, but they don’t mind giv- I point out that, while there are a lot to it for that reason, among others. ing it to the defendant because the de- of different newspapers in the country, This legislation says: No, we are fendant, under this legislation, could one that watches what happens in going to put it in Federal court, even if ask that the case be removed out of Washington, in particular, is the Wash- everybody who is hurt and who is resid- State court at any time. Before the ington Post which has observed that: ing in the State, and the injuries were jury gets the case, if they think it may . . . ‘‘clients’’ in class action lawsuits get caused in violation of State law passed not go well, they will file a motion to token payments while the lawyers get enor- by the State legislature, because the move it to another court. mous fees. This is not justice. It is an extor- defendant happens to have citizenship That is not right. How many times do tion racket that only Congress can fix. and is incorporated in another State, they have a bite at the apple? Things Very strong words. Not mine but we will send it to Federal court. aren’t going very well anymore; we had those of the editorial board of the People much more articulate than I better try another court. Let’s go to Washington Post. have talked about this. One of the dis- the Federal court because we may lose Others who should be in a position to tinguished writers who has looked at in State court. If forum shopping is bad know a lot about this subject—for ex- this, Professor Arthur Miller from Har- for plaintiffs—which we correct—it is ample, the Judicial Conference of the vard Law School, said the following: no more justifiable for defendants to be United States, chaired by the Chief S. 274 goes too far in broadening Federal able to do it, which is what this com- Justice of the U.S. Supreme Court— diversity jurisdiction. S. 274 would place in mittee bill does. have acknowledged problems with the Federal courts most class actions if the de- I am only saying we need to say no to class action system. While they are not fendant is a citizen of a State that is dif- in the business of lobbying for specific ferent from any member of the plaintiff bringing this bill up until we have had class. I can find no justification for denying a chance to talk about these issues in language, certainly we want to pay at- State courts the right to hear cases pri- a serious form. tention to some of the suggestions they marily involving its own citizens who claim If I offer my amendment and the bill may have about ways we can correct they have been harmed by a violation of is brought up, they will move to table some of those problems. That is what their State’s laws. it, and, bingo, it is all over with, and this is all about. That is what the committee bill does. we all go home. That is not the way to This is some of the language I was re- That is a principal reason their great legislate on something as important as ferring to, obviously, speaking of the expansion of Federal jurisdiction is so this. We need to negotiate. We need to Judicial Conference: wrong. talk about it. . . . thanked Congress for ‘‘working to re- I had a case in Louisiana. There are What we are trying to say is, don’t solve the serious problems generated by many crawfish farmers in Louisiana, bring this bill up now. Vote against the overlapping and competing class actions.’’ probably the only State that has craw- motion to invoke cloture and let us see Ultimately, I think we are all inter- fish farmers—and maybe a few in the if we cannot sit down and talk about ested in the same thing; that is, that State of Texas. But they allege injuries the differences that are not that great people who are hurt due to the wrong- because some chemical manufacturer but hugely important—not that many ful conduct of others have a means to had sold them pesticides and killed all but very important—between the two redress those injuries and make sure of the crawfish in Louisiana. Every sin- versions of the bill. I think we can put the wrongful actor pays. But we are gle plaintiff was from Louisiana. The them together and get 75 votes, call it not in the business of making sure that injuries occurred in Louisiana. They a day and everyone can be proud of the a few benefit at the expense of many. sold the product in Louisiana. They product we have produced. That is what happens now with an abu- were doing business in Louisiana sell- I reserve the remaining time. sive class action system which enriches ing the products. The State law of Lou- The PRESIDING OFFICER. There entrepreneurial class lawyers who find isiana said what they did was illegal are 5 minutes remaining. a so-called class representative and are and wrong and the plaintiffs deserved The Senator from Texas. then able to manufacture a huge law- some compensation for the injuries Mr. CORNYN. How much time is on suit where they reap millions of dollars they received. But no; under the com- the Republican side? in fees and the consumer gets a coupon. mittee bill, just because the defendant The PRESIDING OFFICER. Seven There is an old country and western chemical manufacturer happens to be minutes. song ‘‘she gets the gold mine and he out of State the Federal court is going Mr. CORNYN. I commend the Sen- gets the shaft.’’ In this instance, it is to be brought in to interpret State law ator from Louisiana for his construc- the lawyers who get the gold mine and that has been interpreted by the State tive efforts to get involved in class ac- consumers get the shaft in modern supreme court and passed by the State tion reform. He has made a good con- class action litigation. We ought to be legislature applying it to every State tribution to the debate by offering about fixing that. We cannot fix it resident of my State. some additional ideas for those that until this matter comes up on the mo- That is not a legitimate way of han- were considered in the Judiciary Com- tion to proceed and at least 60 Senators dling cases that are uniquely a State mittee when we voted this Class Action vote on the motion to proceed. concern, covered by State law and af- Fairness Act out of the committee. I hope my colleagues will heed the el- fecting only State injured plaintiffs in It makes no sense to me to say vote oquent words of the Senator from Dela- these cases. That is not what we want against bringing the bill up in order to ware, Mr. CARPER, and Senator KOHL, to do. fix class action abuse. If people are se- my colleague on the Judiciary Com- Our legislation also says that one of rious about class action reform, then mittee, and vote to bring the matter the abuses is these coupon sellers. We they would want us to bring up the bill. up. solved that problem in the past. Attor- They would vote in favor of cloture and I reserve the remainder of our time. neys were filing on the number of cou- we would simply have a debate, as we The PRESIDING OFFICER. The Sen- pons that may have been issued in set- do on all legislation on the merits of ator from Louisiana. tling a case for a defective product. the bill, as voted out of committee or Mr. BREAUX. Mr. President, I yield You could go to the store and buy the at least brought up for consideration myself the time I consume. product for a discount. The lawyers here with whatever amendments may I echo the remarks of the distin- were being paid on the total number of be offered. guished Democratic leader which indi- coupons issued—not the ones actually The Senator from Louisiana has cate another reason why we should not redeemed. The attorney fees would be some constructive amendments, no be voting for cloture on this bill; that based only on those who exercised the doubt, and he has shown himself to be is, the changes that were made to the right of buying the product with the a master at bridging the gaps in this bill after it got out of committee. I use of their coupon. body and achieving consensus. He is to refer to it as being the ‘‘committee

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00019 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13004 CONGRESSIONAL RECORD — SENATE October 22, 2003 bill,’’ but the bill before the Senate is bill is a fair and balanced solution to tiple states. But if a case really belongs not the committee bill. A funny thing the growing problem of class action in State court because it is a local happened on the way to the forum: the abuses, and it has solid bipartisan sup- problem or the class members and de- committee bill was changed. You re- port. The process that was used to get fendants are in-State, the case won’t be port one thing out of committee, you to the floor was open and fair. The bill decided in Federal court. expect that will be the thing that deserves to be debated, and my col- This is a good bill. It is fair and bal- comes to the floor—maybe some tech- leagues should support cloture on the anced. We have been working with Sen- nical changes, a period here, a para- motion to proceed so that we can get ators on both sides of the aisle to try graph there—but they changed the sub- on the bill and consider amendments. to get it right. There is no question stance of the bill from the time it left This modest bill will preserve class that there are serious problems with the committee. action lawsuits as an important tool the current class action system and we If we were dealing with a committee that brings representation to the un- need to deal with these abuses. So I bill, you could make a legitimate argu- represented. But it will also go a long urge all my colleagues to join me in ment that you should proceed to the way toward ending class action lawsuit supporting cloture on the motion to bill that the committee reported. But abuses where the plaintiffs receive cou- proceed so that we can finally get to what they are asking us to do is pro- pons of little or no value, while their the bill and debate this legislation. ceed to a bill that the committee did lawyers receive millions. It makes you Ms. CANTWELL. Mr. President, as a not report. In fact, it is substantially wonder who benefits from these class former business person and technology different from the committee bill. That actions: the consumers or their law- executive who has direct experience is not normal procedure. yers? Given the trial lawyers’ opposi- with class action litigation, I agree That is why the Democratic leader tion to this bill, I think we know the with the proponents of this bill that has suggested what we ought to do is answer to that question. class action cases that impact Ameri- say: Time out. Put together the heads Both forum-shopping plaintiffs’ law- cans in every State ought to be liti- of the people interested in this and see yers and corporate defense lawyers are gated in Federal court. American busi- if we cannot produce a package where abusing the system. Lawyers are ness should be focused on developing we could get three-fourths of all the choosing plaintiff-friendly county innovative technologies, growing and Senators voting for it. It has substan- courts to hear national class action creating jobs, and securing our eco- tial changes made by the committee cases, and defendants are shopping nomic future. American businesses managers. They certainly have a legal around for the best settlement deal re- should not be forced to defend them- right to do it, but from the terms of gardless of whether it is the right thing selves simultaneously in the exact policy and how we legislate, if you to do. The lawyers file competing class same case in as many as seven different have a clear vote in the committee to actions, and enter into collusive settle- States at the same time. do one thing and then come out and do ments. I believe the current consolidation something entirely different on a key Some class action lawyers manipu- mechanism in Federal court offers both part of the bill, that is a substantial late pleadings to avoid the removal of consumers and businesses a fair and ef- change that did not come through the cases to the Federal courts, even if it ficient means of having their claims committee process. hurts their clients. Some even name an heard, and I support allowing more What I am saying is we ought to be innocent local defendant just to beat cases to be tried in Federal courts. talking together, both sides talking to- Federal jurisdiction. In the end, it is Unfortunately, I cannot support the gether, in order to get a substantial the consumer that is the big loser. This bill before us today. While some posi- vote to enact this legislation. just isn’t right. tive changes have been made to the I support class action reform. I think The Class Action Fairness Act of 2003 bill, the bill would close the State our bill, S. 1769, has, in fact, clearly ad- tries to fix the more egregious abuses. courthouse doors to almost all class ac- dressed the issues of forum shopping The bill includes a number of provi- tion cases and move those cases to Fed- and the coupon settlements. We clearly sions to help protect class members. It eral court. The bill could overwhelm spelled out when cases would be in requires that notice of proposed settle- our Federal court system and cause State court and when cases would be in ments in all class actions, as well as all delay not just in the cases that are Federal court. We do not reach out and class notices, must be in clear, easily being removed, but in the important say that even if every single injured understood English. It requires that class action matters that are already party was from one State and was in- State attorneys general be notified of in Federal court. jured in violation of the State laws any proposed class settlement that I come from a State that is ranked as passed by the State legislature and pre- would affect residents of their States having the third best civil justice sys- viously interpreted by the State su- so that they can act as watchdogs for tem in the country, according to the preme court, that just because a de- fairness. Chamber of Commerce. I recognize the fendant happens to be incorporated in The bill includes provisions to help rights of my constituents to have their the State of Delaware, for instance, ensure that there are fair settlements. claims heard in our own State courts that somehow yanks that case out of For example, it disallows cash bounty and according to our own State laws. State court which is best suited for in- payments to lead plaintiffs so lawyers In 1993, hundreds of people in my State terpreting State law and brought into looking for victims can’t promise them became critically ill and several died Federal court which the Federal Judi- unwarranted payoffs to be their ex- as a result of eating Jack-in-the-Box ciary Conference already says they do cuses for filing suit. It requires that hamburgers tainted with deadly E-coli not want because they have more busi- judges to carefully scrutinize settle- bacteria. Five hundred of those victims ness than they can handle, resulting in ments where the plaintiffs get only and family members came together and further delays. That is not what this coupons or noncash awards, and the filed a class action lawsuit in State bill should be all about. lawyers get money. The bill requires a court for damages as a result of the in- Therefore, I suggest we say no to the court to make a written finding that juries they sustained. The case was set- cloture vote and that we sit down and the settlement is fair and reasonable tled for $12 million. This is not frivo- work out the minor differences but im- for class members. lous litigation. portant differences between S. 1769 and Finally, the bill injects some ration- In fact, not one of the hundreds of the bill in the Senate which has never ality in terms of where large, nation- businesses I have talked to about this come through the committee process. wide class actions can be heard. It al- bill has ever suggested that any abu- That is unfortunate. That is the main lows more class action lawsuits to be sive or frivolous class action litigation reason we should say no to cloture at removed from State court to Federal had occurred in Washington State. this time. court, either by a defendant or an However, even though most of the Mr. GRASSLEY. Mr. President, I rise unnamed class member. A class action plaintiffs in this class action were from to ask my colleagues to vote in support would qualify for Federal jurisdiction Washington, and the case was about of the motion to proceed to S. 1751, the if the total damages exceed $5,000,000 personal injury, a claim traditionally Class Action Fairness Act of 2003. This and parties included citizens from mul- heard by State courts, if this lawsuit

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00020 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13005 were to be filed in the future, this bill both consumers and businesses, were what is wrong with class actions, are would give defendants the right to re- not included in the bill. Absent these actually something that the defend- move the case to Federal court causing improvements to the bill, I cannot vote ants’ bar that is promoting this bill additional expense and grievances for for the measure before us today. wants to preserve? We will find out if the victims in this case. Mr. FEINGOLD. Mr. President, I op- the Senate does proceed to the bill and I have three concerns about the bill. pose the Class Action Fairness Act, and an amendment is offered on that issue. We need a better balance between cases I will vote against the motion to pro- Class actions are an extremely im- being heard in State and Federal court. ceed. The main reason for my opposi- portant tool in our justice system. We need better protections for civil tion is that notwithstanding its title, I They allow plaintiffs with very small rights cases and a time deadline for do not think this bill is fair. I do not claims to band together to seek re- moving cases to Federal courts. think it is fair to citizens who are in- dress. Lawsuits are expensive. Without First, we need to have the proper bal- jured by corporate wrongdoers and are the opportunity to pursue a class ac- ance between addressing lawsuits in entitled to prompt and fair resolution tion, an individual plaintiff often sim- State and Federal courts. Currently, of their claims in a court of law. I do ply cannot not afford his or her day in virtually all class actions are tried in not think it is fair to our State courts, court. But through a class action, jus- State court. However, by moving vir- which are treated by this bill as if they tice can be done and compensation can tually all of the lawsuits to Federal cannot be trusted to issue fair judg- be obtained. courts, this bill does not provide that ments in cases brought before them. I There are three possible outcomes of balance. I support an approach that do not think it is fair to State legisla- this bill being enacted. Either the State courts will be deluged with indi- provides for keeping some cases in tures, which are entitled to have the vidual claims, since class actions can State courts and improving the flexi- laws that they pass to protect their no longer be maintained there, or there bility to try more cases in Federal citizens interpreted and applied by will be a huge increase in the workload courts. their own courts. This bill is not only of the Federal courts, resulting in I have heard from many of the busi- misnamed, it is bad policy. It should be delays and lengthy litigation over pro- ness leaders in my State who have ex- defeated. cedural issues rather than the sub- pressed their concerns about the in- First, let me note that S. 1751 is a stance of the claims, or many injured creasing challenges of defending them- different bill than was reported by the people will never get redress for their selves against the same claims in mul- Judiciary Committee. It includes a new injuries. I don’t believe any of these tiple states. I have heard their frustra- and potentially very significant provi- three choices are acceptable. tions about seeing the claims dismissed sion concerning mass torts. A provision Particularly troubling is the increase in one State only to have them filed in on this topic was in the original bill, in the workload of the Federal courts. another. I have heard from some of the but was stricken in committee. Now it These courts are already overloaded. oldest established businesses in my is back, but with some complicated ex- The Congress has led the way in bring- State to the newest. From ceptions. The ramifications of this pro- ing more and more litigation to the Weyerhaeuser to Microsoft to AT&T vision are not apparent on first read- Federal courts, particularly criminal Wireless, Intel, Amazon, the Madrona ing, and it certainly would have been cases. Criminal cases, of course, take Group, Expedia, and Starbucks. preferable for this kind of fine tuning precedence in the Federal courts be- These employers have been forced to to have been considered by the Judici- cause of the Speedy Trial Act. So the defend class action suits that are ei- ary Committee. net result of removing virtually all ther dismissed or settled in a manner Make no mistake, by loosening the class actions to Federal court will be that provides little benefit to the class requirements for Federal diversity ju- to delay those cases. but great financial benefit to the law- risdiction over class actions, S. 1751 There is an old saying with which I yers. That isn’t right, and that is why will result in nearly all class actions am sure we are all familiar: justice de- I have asked these companies in my being removed to Federal court. This is layed is justice denied. I hope my col- State to analyze what the effects would a radical change in our Federal system leagues will think about that aphorism be of removing any case to Federal of justice. We have 50 States in this before voting for this bill. Think about court in which less than one third of country with their own laws and the real world of Federal court litiga- the plaintiffs were from the State courts. State courts are an integral tion and the very real possibilities that where the case was filed. I have com- part of our system of justice. They long procedural delays in overloaded mitted to each of these businesses that have worked well for our entire his- Federal courts will mean that legiti- I will continue to work with them to tory. It is hard to imagine why this mate claims may not ever be heard. At find a way to move more cases to Fed- Senate, which includes many ardent the very least, we should provide in eral court while keeping cases that pri- defenders of federalism and the prerog- this bill some priority to class certifi- marily affect a group of consumers in a atives of State courts and State law- cation motions brought in Federal State in that State’s court. makers, would support such a whole- class actions. While I believe that finding a better sale stripping of jurisdiction from the One little noticed provision of this balance between class action lawsuits States over class actions. In my opin- bill illustrates the possibilities for in State and Federal court is critical, I ion, the need for such a radical step has delay that this bill provides, even to also cannot support this bill in the ab- not been demonstrated. defendants who are not entitled to sence of protections that allow higher Yes, there are abuses in some class have a case removed to Federal court portions of settlement awards to be actions suits. Some of the most dis- under the bill’s relaxed diversity juris- made to those individuals who agree to turbing have to do with class action diction standards. Under current law, if act as lead plaintiffs in class action settlements that offer only discount a Federal court decides that a removed cases. In addition, I believe that there coupons to the members of the class case should be remanded to State needs to be a fixed date for defendants and a big payoff to the plaintiffs’ law- court, that decision is not appealable. to seek to move a class action case to yers. But those abuses have occurred in The only exception is for civil rights Federal court. As the bill is written Federal as well as State class actions. cases removed under the special au- now, a class action case can be pro- This bill does nothing to address those thority of 28 U.S.C. § 1443. But this bill ceeded all the way through trial and problems; it just moves them all to allows defendants to immediately ap- into jury deliberations—and defendants Federal court. peal a decision by a Federal district can still seek to remove it to Federal I note that a substitute amendment court that a case does not qualify for court even at this late date. I do not being crafted by the senior Senator removal. That means that a plaintiff believe this serves the interests of jus- from Louisiana will include a provision class that is entitled even under this tice. This provision should be fixed. to address discount coupons. It is puz- bill to have a case heard by a State I have communicated my three con- zling to me that such a provision is not court may still have to endure years of cerns to supporters of the bill. I am dis- contained in the underlying bill. Could delay while the appeal of a procedural appointed that these straightforward it be that these coupon settlements, so ruling is heard. Where is the fairness in changes, which are in the interests of often held up as the poster child for that?

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00021 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13006 CONGRESSIONAL RECORD — SENATE October 22, 2003 Some in the business community study of class action settlements. cause businesses are injuring con- have expressed concern about resolving Their conclusions, which are based on sumers 13 times more frequently than nationwide class actions, like some of data from 1993–2002, may surprise some they did at the beginning of the last the tobacco litigation, in a single State of the supporters of this bill. decade. Rather, these numbers reflect a court. I can understand why that might First, the study found that attor- breakdown in the litigation system seem unfair to some. But this bill does neys’ fees in class action settlements itself. That system no longer bars friv- not just address that situation. It also are significantly below the standard 33 olous suits that are brought purely for prevents a group of plaintiffs who are percent contingency fee charged in per- attorneys’ own gain. all from the same State from pursuing sonal injury cases. The average class I would like to address several points a class action in their own State courts action attorney’s fee is actually 21.9 about this year’s bill. First, there has if even one defendant is from another percent. In addition, the attorneys’ been much argument from the oppo- State. The proponents of this bill have fees awarded in class action settle- nents of this bill that its sponsors are chosen a remedy that goes far beyond ments in Federal court are actually doing something sneaky by employing the alleged problem. That raises ques- higher than in State court settlements. rule XIV to bring a modified bill to the tions about what the intent behind this Attorney fees as a percent of class re- floor. The bill that we currently are bill really is. covery were found to be between 1 and considering includes a restored, modi- It is important to remember that 6 percentage points higher in Federal fied version of the original bill’s provi- this debate is not about resolving ques- court class actions than in State court sion governing mass actions—which tions of Federal law in the Federal class actions. provision had been stripped out of the courts. Federal question jurisdiction A final finding of the study is that bill by a last-minute amendment in the already exists for that. Any case in- there has been no appreciable increase Judiciary Committee. Bill opponents volving a Federal statute can be re- in either the amount of settlements or seem to suggest that whatever damage moved to Federal court under current the amount of attorneys’ fees awarded was done by that amendment they se- law. This bill takes cases that are in class actions over the past 10 years. cured fair and square, and that bill sup- brought in State court solely under The study indicates that there is no porters have no business undoing the State laws passed by State legislatures crisis here. No explosion of huge judg- damage on the Senate floor. and throws them into Federal court. ments. No huge fleecing of consumers It is true that the committee amend- This bill is about making it more time by their lawyers. This bill is a solution ment stripping the mass-action provi- consuming and more costly for citizens in search of a problem. It is a great sion damaged the bill. The State of of a State to get the redress that their piece of legislation for wrongdoers who Mississippi, among others, entertains elected representatives have decided would like to put off their day of reck- actions that are class actions in all but they are entitled to if the laws of their oning by moving cases to courts that name—these suits technically are not State are violated. are less convenient, slower, and more class actions, but they function as Diversity jurisdiction in cases be- expensive for those who have been tween citizens of different States has their equivalent. And as any lawyer wronged. It is a bad bill for consumers, who has observed patterns of class-ac- been with us for our entire history. Ar- for State legislatures, and for State ticle III, section 2 of the Constitution tion litigation can tell you, a reform courts. bill that did not apply in Mississippi provides: ‘‘The judicial Power shall ex- Mr. President, if the motion to pro- would hardly be much of a reform at tend . . . to Controversies between Citi- ceed is adopted, I expect there will be all. zens of different States.’’ This is the many amendments offered. In an area constitutional basis for giving the Fed- like this the details matter, and if we If anything is improper about the eral courts diversity jurisdiction over are going to have class action reform way that the mass-action provision has cases that involved only questions of we need a full and fair debate on the been handled, it is the way that the State law. details with the opportunity to offer original provision was stripped from The very first Judiciary Act, passed amendments. But the best result is for the bill in the Judiciary Committee. I in 1789, gave the Federal courts juris- the Senate not to consider this bill at know, because I was there when it hap- diction over civil suits between citi- this time. I do not believe this unfair pened and saw it all. The stripping zens of different States where over $500 Class Action Fairness Act is ready to amendment was not circulated to Judi- was at issue. In 1806, in the case of be considered on the floor, and I will ciary members in advance of the Com- Strawbridge v. Curtiss, the Supreme vote no on the motion to proceed. mittee’s executive session—in con- Court held that this act required com- Mr. KYL. Mr. President, I rise today travention of the Committee’s own plete diversity between the parties—in to address the Class Action Fairness self-imposed rules governing additional all other instances, the Court said, a Act of 2003. This legislation first was amendments to the bill. Most of us had case based on State law should be introduced and reported by a Judiciary not even had an opportunity to read heard by the State courts. So this bill subcommittee 5 years ago, during the the amendment. Chairman HATCH al- changes a nearly 200-year-old practice 105th Congress. It is time to enact this ready had shown great indulgence to- in this country of preserving the Fed- legislation into law. ward bill opponents by allowing an ad- eral courts for cases involving Federal There is no need to recount the pa- ditional day’s markup of the bill, when law or where no defendant is from the rade of horribles that makes the need he could have insisted on a final vote State of any plaintiff in a case involv- for this legislation manifest. Suffice to earlier. An additional amendment nev- ing only State law. say that even the liberal Washington ertheless was allowed, and was adopted Why is such a drastic step necessary? Post has noted that ‘‘national class ac- once it was clear that it had the sup- Why do we need to prevent State tions can be filed just about anywhere port of swing voters on the Com- courts from interpreting and applying and are disproportionately brought in a mittee—as well as the support of all their own State laws in cases of any handful of State courts whose judges Members who are hostile to the bill. size or significance? One argument we get elected with lawyers’ money.’’ And The rest of us who support the under- hear is that the trial lawyers are ex- as one study has noted, ‘‘[v]irtually lying bill were forced to accept the tracting huge and unjustified settle- every sector of the United States econ- amendment, without an opportunity to ments in State courts, which has be- omy is on trial in Madison County [Illi- even learn what it would do. come a drag on the economy. We also nois], Palm Beach County [Florida], By contrast to the way that the hear that plaintiffs’ lawyers are taking and Jefferson County [Texas].’’ original amendment was handled, ev- the lion’s share of judgments or settle- The problem has grown much worse eryone has been afforded ample notice ments to the detriment of consumers. in recent years. Over the course of the of the modified mass-action provision But a recent empirical study con- 1990s, class-action filings increased by included in the current bill. This modi- tradicts these arguments. Theodore over 1,300 percent. What this suggests fied provision was negotiated among Eisenberg of Cornell Law School and is that class-action litigation has be- the bipartisan group of supporters of Geoffrey Miller of NYU Law School re- come unhinged from actual events. the original bill—including those cently published the first empirical These lawsuits are not being filed be- whose support led to the adoption of

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00022 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13007 the original amendment. When a com- concern all the members of the repub- frivolous litigation is filed which, in promise finally was reached, it was an- lic.’ ’’ These opponents even invoke the essence, once a class action is certified nounced during an executive session of U.S. Supreme Court’s decision in becomes legal blackmail because class the Judiciary Committee and reported United States v. Morrison (2000), which action lawsuits are rarely, if ever, tried in the newspapers. And if that was not struck down as beyond Congress’s with a jury because the risks are so adequate notice, Chairman HATCH pro- power a Federal law regulating violent enormous, it literally becomes a ‘‘bet vided a detailed description of the crime that is unrelated to commercial the ranch’’ or I should say ‘‘bet the modified provision in the committee activity. As bill opponents remind us, company’’ lawsuit. So what happens is report for this bill, which was pub- Morrison requires Congress to respect they are almost always settled but lished last July. Yet to hear bill oppo- the distinction between what is truly under unequal terms and really nents tell the story, you would think national and what is truly local. amount to, in too many instances, that the modified proposal had been What may strike the casual observer legal coercion. But what happens is, hidden from all members until this bill as unusual is that the very members when that money is paid, that cost is was introduced. This is simply absurd— who invoke Morrison against this bill not necessarily absorbed by that com- a stealth amendment is not one that is recently have denounced that very de- pany, that job creator, but is passed on announced months beforehand in a cision—and any judicial nominee sus- to consumers; and consumers pay and, committee report. pected of harboring views in line with ultimately, job loss occurs. I would also note today—speaking the Supreme Court majority in that So, Mr. President, I urge my col- about the bill more generally—that it case—in the course of the judicial-con- leagues who believe we need to address is hardly a radical reform. As two firmation process. On this very day, this tremendous problem, we need to Democratic cosponsors of the bill re- the Judiciary Committee will hold a address job loss, we need to address cently emphasized in a letter to all hearing for one of the President’s consumer cost, we need to address this Senators, the current bill ‘‘does not nominees to the U.S. Court of Appeals abuse, to vote for cloture. contain any tort reform whatsoever. for the District of Columbia. I would The PRESIDING OFFICER. The Sen- There are no caps on damages or attor- not be surprised to learn that the same ator’s time has expired. ney’s fees, no limits on joint and sev- Judiciary Committee members de- eral liability, and no new pleading re- nouncing this bill on the Senate floor CLOTURE MOTION quirements.’’ These Senators also point today will then proceed down the Cap- The PRESIDING OFFICER. Under out that as a result of a Democratic itol elevators, take the shuttle to the the previous order, pursuant to rule amendment added to the bill in the Ju- large Judiciary hearing room, and de- XXII, the Chair lays before the Senate diciary Committee, ‘‘federal jurisdic- nounce the President’s nominee as a the pending cloture motion, which the tion does not extend to cases in which secret supporter of United States v. clerk will state. the claims involved less than $5 million Morrison. The assistant legislative clerk read or in which two-thirds or more of the To conclude, I would simply note as follows: plaintiffs are from the same state as that it is beyond argument that the the defendant.’’ interstate commerce clause and Article CLOTURE MOTION This last provision substantially di- III’s authorization for diversity juris- We, the undersigned Senators, in accord- lutes the bill. The plaintiffs’ lawyers diction were included in the Constitu- ance with the provisions of Rule XXII of the who routinely file these class actions tion in order to empower Congress to Standing Rules of the Senate, do hereby are among the wiliest members of the protect both interstate commerce and move to bring to a close debate on the mo- tion to proceed to S. 1751, a bill to amend the profession—I expect that they will out-of-State defendants from local have little difficulty structuring their procedures that apply to consideration of prejudice. Nothing could be a more ap- interstate class actions to assure fairer out- plaintiff class such that more than propriate application of these congres- comes for class members and defendants, and two-thirds of plaintiffs are from the sional powers than the legislation that for other purposes. state in which the principal defendants we are considering today. Yet to listen Bill Frist, Orrin G. Hatch, Charles Grass- are located and the action is filed. If to this bill’s opponents, one might ley, George Allen, Kay Bailey this loophole is exploited to the extent come away with the impression that Hutchison, Rick Santorum, Susan M. that I fear that it will be, the principal the interstate commerce clause was de- Collins, Elizabeth Dole, Lindsey Gra- ham of South Carolina, Wayne Allard, effect of today’s bill will be not to re- signed to allow Congress to regulate all move cases to federal court, but rather Pat Roberts, John Ensign, Thad Coch- violent crime, and any other subject ran, John Warner, Jon Kyl, John E. to keep them in the courts of the state that touches Congress’s fancy and that Sununu, Saxby Chambliss. where the defendants and most plain- happens to poll well—any subject, that tiffs are located. Of course, such a re- is, except for interstate commerce. The The PRESIDING OFFICER. By unan- form would not be without its advan- opponents of this bill can play at either imous consent, the mandatory quorum tages. At the very least, those states John Paul Stevens or John Calhoun. call has been waived. that tolerate predatory class actions in They cannot play at both—or at the The question is, Is it the sense of the their courts would be forced to bear the very least, they ought not do so on the Senate that debate on the motion to consequences of such litigation, be- same day. proceed to S. 1751 shall be brought to a cause the suits would be directed at I look forward to Congress’s enact- close? The yeas and nays are manda- local businesses. This change might yet ment of the important legislation be- tory under the rule. The clerk will call alleviate the collective-action prob- fore us today. the roll. lems and indulgence of regional preju- The PRESIDING OFFICER (Mr. The assistant legislative clerk called dice that underlie much of the current SMITH). The Senator from Texas. the roll. class-action crisis. Mr. CORNYN. Mr. President, the Mr. REID. I announce that the Sen- Finally, in closing I would remark on Senator from Louisiana has made an ator from North Carolina (Mr. the strange new federalism that this eloquent plea for class action reform. EDWARDS) and the Senator from Massa- bill appears to have evoked in some of Unless we have cloture, there will be chusetts (Mr. KERRY) are necessarily its opponents. In a statement of addi- no class action reform anytime in the absent. tional views in the committee report near future. We know the Senate has a for this bill, all seven Judiciary Com- very busy calendar of conference com- I further announce that, if present mittee members who voted against the mittees working on an Energy bill, on and voting, the Senator from Massa- bill have denounced it as a violation of Medicare, prescription drug reform, chusetts (Mr. KERRY) would vote the high principle of States’ rights. and many other issues. The time is ‘‘nay.’’ They describe the bill as raising ‘‘seri- ripe, and I suggest to my colleagues The PRESIDING OFFICER (Mr. ous constitutional issues’’ by the time for reform is now. HAGEL). Are there any other Senators ‘‘undermin[ing] James Madison’s vi- Finally, this is not a matter of law- in the Chamber desiring to vote? sion of a Federal government ‘limited yer bashing. This is about jobs. This is The yeas and nays resulted—yeas 59, to certain enumerated objects, which about added cost to consumers. When nays 39, as follows:

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00023 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13008 CONGRESSIONAL RECORD — SENATE October 22, 2003 [Rollcall Vote No. 403 Leg.] pared to do it, and I look forward to from Delaware, TOM CARPER, HERB YEAS—59 further discussions on this issue in the KOHL, and others who have worked Alexander Dole Lugar days ahead. very hard on this legislation. I have Allard Domenici McCain After that, I hope we can move to great respect for what they have tried Allen Ensign McConnell other issues that divide us. I think to do. Bayh Enzi Miller Bennett Feinstein Murkowski there is an opportunity on asbestos as I hope the majority leader will take Bond Fitzgerald Nelson (NE) well, but it takes real negotiation. I up the offer of the Democratic leader Brownback Frist Nickles am prepared to enter into those nego- and so we come together and work out Bunning Graham (SC) Roberts Burns Grassley tiations anytime the majority is pre- what the provisions of this bill ought Santorum Campbell Gregg pared to do so as well. Sessions to be, at least the main provisions of Carper Hagel Smith I yield the floor. it, and move forward. I am deeply com- Chafee Hatch The PRESIDING OFFICER. The ma- Chambliss Hutchison Snowe mitted to class action reform, but I do Cochran Inhofe Specter jority leader. not want to move forward under a Coleman Jeffords Stevens Mr. FRIST. Mr. President, you just process where I am being told merely Collins Kohl Sununu heard a willingness to work together. Cornyn Kyl Talent that I have a right to bring up amend- Craig Lieberman Thomas There were 59 Members who spoke just ments. I have that right anyway. a few moments ago who said, Let’s pro- Crapo Lincoln Voinovich It seems to me if we are going to try DeWine Lott Warner ceed and do it right now on the floor of to put a bill like this together, it takes the Senate. We were one vote short. I NAYS—39 meaningful cooperation, it takes sit- accept that. I think we do need to pro- Akaka Dodd Levin ting down. It is hard work. We have Baucus Dorgan Mikulski ceed directly to address this issue, and done it in the past. As the author of Biden Durbin Murray we will work in good faith to do just the securities litigation reform bill, Bingaman Feingold Nelson (FL) that. Boxer Graham (FL) Pryor the uniform standards legislation, ter- As I mentioned earlier, I think we Breaux Harkin Reed rorism insurance, the Y2K bill—all Byrd Hollings Reid are very close on the antispam legisla- matters that brought together the trial Cantwell Inouye Rockefeller tion that we talked about yesterday Clinton Johnson Sarbanes bar and the business community trying and today. Conrad Kennedy Schumer to sort it out—I know that this can be Corzine Landrieu Shelby f Daschle Lautenberg Stabenow done. It took a lot of work and a lot of Dayton Leahy Wyden MORNING BUSINESS hours to do it in the past. I strongly NOT VOTING—2 Mr. FRIST. I ask unanimous consent recommend on class action reform, that we make the same sort of effort. Edwards Kerry that we go into morning business until The PRESIDING OFFICER. On this 2, with the time equally divided. We It is not that difficult to get a good vote, the yeas are 59, the nays are 39. should be ready to begin the spam leg- bill, but it does take work. Again, it Three-fifths of the Senators duly cho- islation at 2. takes meaningful cooperation. We need sen and sworn not having voted in the Mr. DASCHLE. Mr. President, reserv- to have that if we are going to succeed. affirmative, the motion is rejected. ing the right to object. I am terribly disappointed, but I The majority leader. The PRESIDING OFFICER. The Sen- must say to those who argued for clo- Mr. FRIST. Mr. President, I am ate minority leader. ture that there is a way of achieving clearly disappointed we have been de- Mr. DASCHLE. I ask the Chair the right results and the process we nied the opportunity to proceed to this whether the motion to reconsider has just went through this is not the way very important legislation, a bill we been propounded on the last vote. to go, in my view. very much want to discuss, to debate, The PRESIDING OFFICER. It has I can say, without invoking the and to appropriately amend. It is im- not. names of my colleagues, there are a portant to the American people. Thus, Mr. DASCHLE. Mr. President, I move number of us who voted no on cloture I believe we just witnessed a missed op- to reconsider the vote. who believe as strongly as I do about portunity to address a critically and Mr. REID. I move to lay that motion the need for reform and who would like vitally important issue. on the table. to see a bill passed. So the majority With that, for my colleagues, let me The motion to lay on the table was leader and his staff, the staff of the Ju- say we are making some progress on agreed to. diciary Committee and other inter- other issues in terms of how the after- Mr. DASCHLE. I have no objection. ested parties—and there are not that noon will be spent. We are in discussion The PRESIDING OFFICER. Without many—if they can put something to- with regard to the antispam legisla- objection, it is so ordered. Who seeks gether, we can move forward. We could tion, and I believe we will be able to recognition? have another cloture vote, if we need proceed with that early this afternoon. Mr. SANTORUM. I suggest the ab- to have one, although I doubt we will Again, let me state my disappoint- sence of a quorum. need one, with a more cooperative ment. We are very committed to ad- The PRESIDING OFFICER. The process there would be no need for one. dressing this particular issue for the clerk will call the roll. I believe we can and should go forward. American people, and we will be trying, The legislative clerk proceeded to once again, to pull together and do call the roll. The challenge is whether or not they what the American people deserve. Mr. DODD. Mr. President, I ask unan- want to do that. If they just want to The PRESIDING OFFICER. The mi- imous consent that the order for the have a 59-to-39 vote and move on to an- nority leader. quorum call be rescinded. other issue, then that may indicate to Mr. DASCHLE. Mr. President, the The PRESIDING OFFICER. Without some of us what the real intentions message in this vote is that now is the objection, it is so ordered. were here. If they are interested in get- ting this bill done, then there is a way time for us to sit down and negotiate. f I have said on several occasions, as late to do it. as this morning, that we are prepared VOTE ON CLASS ACTION REFORM There are those of us who are willing to work with the majority. I will cer- Mr. DODD. Mr. President, I want to to roll up our sleeves and get it done. tainly work with the majority leader express my disappointment about the In fact, many of the same people have to bring to the floor a bill that will outcome of the last vote. I voted not to been involved for months now in the enjoy much broader support than 59 invoke cloture. I did so with great re- asbestos legislation. I have an uneasy votes. We can do that. We recognize the luctance. A number of Members called feeling we are heading in the same di- need for reform, but we also recognize me over the last several days about the rection with that bill. It takes hard we have to do it right. I would like to class action reform bill that was before work. Members from both sides have to start this afternoon. I will do it tomor- us. I appreciate very much the com- sit down, bring people together, and row. I will do it whenever the majority ments of both the majority leader and put in the hours it takes to finish the is prepared to do it, but we are pre- the minority leader, my good friend job.

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00024 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13009 If we allow this to sort of wander important, if we can, to move this for- But it is because she has been going at along without dealing with the intrica- ward and get it resolved. One of the this regime that is illegitimate and cies and the complicated questions in- things we need to be constantly focus- does not recognize the people. volved, then one can almost predict ing on is what can we do to grow jobs I want to extend my heartfelt con- with certainty what is going to happen and create jobs. gratulations to Ms. Ebadi and to the at the end of the day. So the offer is We have been pressing forward. The Iranian people for their continued there. I make it to my friends and col- Federal Reserve has been pressing for- struggle for freedom, for democracy, leagues on this side of the aisle and the ward, keeping interest rates low. We and for human rights, against the cler- other. I am prepared to be a part of have been pressing forward in cutting ics who have stripped them of every those efforts, if they find it fruitful and taxes to try to stimulate. The early ounce of human dignity. worthwhile, or to sit on the sidelines medicine seems to be working. We are The Economist described Ms. Ebadi and watch it happen and be supportive starting to get some economic growth. as this: Assertive, severe, and frighten- of whatever they are able to produce. We are starting to get some job cre- ingly well versed in Islamic and West- Let’s move forward and get this done. ation taking place. ern law, characteristics that challenge The American people deserve better. Another clear area of importance and the status quo of Iran and the religious We are not working together as often need is this area of litigation reform. ruling clique. as we should on critical questions. If This is sapping a great deal of strength Since being barred from serving as a we do not do it, then we do a great dis- out of the economy and sapping judge, Ms. Ebadi has fought for the service to the American public. strength from job creation. This is one rights of homeless children under the So I hope the leaders would take up of the areas we need to reform. I think repressive regime which treats the the offers that have been made, sit there are ways that we can do this and children like common criminals. In ad- down and see if we cannot pull this bill still protect the rights of the indi- dition, she has spent the last 4 years together. For those who are interested, vidual, rights of those who are harmed investigating the attacks on student we ought to be prepared to start that in the system, but we are going to have protestors by Iranian security forces process today—this afternoon—if peo- to start to address this problem if we during the massive July 9, 1999, pro- ple are so willing. are going to be serious about job cre- test. Ezzat Ebrahim-Nejad was one of I yield the floor. ation in the country and serious about those protesters killed during the 1999 The PRESIDING OFFICER. The Sen- what all we can do as a legislative body protest. Ms. Ebadi represented his fam- ator from Louisiana. in creating an atmosphere and situa- ily in tracking down the thugs who at- Ms. LANDRIEU. Mr. President, I ask tion in the United States that can be tacked the students and their pay- for 2 minutes of personal privilege to the most growth oriented, and in a way masters within the Ayatollah’s regime. add a few remarks to the RECORD. I, that still protects all the rights of indi- Her devotion to this case and many too, remain firmly committed to class viduals in this country. others landed her a 15-month jail sen- action reform and have stated so pub- Those are the efforts that are taking tence. This year Ms. Ebadi established a licly many times and will continue to place. That is what we are trying to do nonprofit organization, a legal defense state publicly that intention. with this. center for the families of Iranian dis- There are two or three reasons I f could not vote to move to debate on sidents and activists. This is chal- this bill because there were not clear NOBEL PEACE PRIZE TO SHIRIN lenging work that all Iranians can cele- indications given that certain language EBADI OF IRAN brate, and I am confident she will use in this underlying bill would be re- Mr. BROWNBACK. Mr. President, I the prestige that comes with the award moved. rise to draw the attention of my col- of the Nobel Peace Prize to continue I understand the legislative process. I leagues to a topic that is of significant the struggle in Iran. There are dissidents in Iran who I am clear about the legislative process, importance in the world. think deserve highlighting, who are but I am also clear about the way that On October 10, the Nobel Peace Prize, being held without reason. Hassan arrangements can be made in this the peace prize that was granted to the Zarezadeh, a 25-year-old student, is Chamber, arrangements with this Dalai Lama in the past, to Martin Lu- one. He is being held because of partici- White House and the House so that we ther King, Jr., and to Nelson Mandela, pation in a July 9, 1999, protest. He has can come out with a bill that is fair to was granted to Shirin Ebadi, not a been in prison since July 6, 2003, in the American public, that helps us to household name. This lady is a promi- preparation of the anniversary recogni- nent human rights activist in Iran. She increase jobs, to remove the forum tion of that protest. There are reports was awarded the 2003 Nobel Peace shopping, and to eliminate the abuses he is enduring torture during his deten- Prize. that are in this system, without under- tion. mining people’s rights to get their day I want to draw the attention of my Dr. Farzad Hamidi disappeared on in court. colleagues to her because Iran is one of June 18, 2003, in Tehran, barely 1 year So as one of the votes that obviously those countries that is a state sponsor after being released from jail. His could have made a difference in the of terrorism. They are as a country on whereabouts is unknown, but friends outcome today, I most certainly re- the very low end of recognition of and family believe his disappearance is main open. The language, however, re- human rights. The ruling clerics do not connected to his role in the student garding mass torts must be removed. let participation in the society take protest. The coupon settlement language must place. Shirin Ebadi’s struggles continue for be addressed. The jurisdictional ques- She has been fighting for the rights these and many other individuals and tion somewhere between the Feinstein of students and activists to peacefully activists inside Iran, and dissidents— and Breaux language would be accept- meet and speak out. She has done it and all they want to do is be able to able, and the bounty provisions, which from inside Iran. For that, she has paid peacefully meet and to be able to com- are very important to civil rights legis- for it in jail time and in harassment. municate their message to people with- lation, must be addressed. She should now receive a reward from in Iran. All they are getting for that is These are four issues that I am going us in recognition. jail, harassment, and, unfortunately, to be discussing, and if the side that is Naturally, the regime in Tehran did death. for reform is really interested in real not kindly meet upon her recognition Systematic change is needed to take reform and not just a political issue, as a Nobel Peace Prize winner. The re- place. A number of people are calling these discussions can be had with this gime actually went on to say there are for that inside Iran. The student pro- Senator. other Nobel Prizes that are more im- testers and others are calling for an The PRESIDING OFFICER. The Sen- portant, like literature. I looked at internationally monitored referendum ator from Kansas. that and I thought how would one deny on the Government in Iran. That is, in- Mr. BROWNBACK. Mr. President, I their own countryman the peace prize, deed, what should take place. will speak briefly about this issue as the highest of these? They are saying I wanted to draw Shirin Ebadi’s name well. I think as we bring this up, it is there is something else that is higher. and her recognition and her award to

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00025 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13010 CONGRESSIONAL RECORD — SENATE October 22, 2003 the notice of my colleagues. This is an offered by my colleague, Senator being a part of the conference. If that important step in the recognition and BREAUX, is preferable. It says if fewer is the way legislation will be handled movement toward human rights in than one-third of the plaintiffs are in a in the Congress, it will pervert the leg- Iran. We need to celebrate it. State, then it goes to Federal court. If islative process. In the case of the En- I yield the floor. more than two-thirds are in a State, it ergy Conference, nearly one-half of the f goes to State court. If it is in between Senate, 49 Members of a body of 100 CLASS ACTION FAIRNESS ACT the two, the Federal court shall make persons, are being given no voice at the a judgment of where it is most appro- conference. We are told that the major- Mr. DORGAN. Mr. President, I want- priate. ity will make all the decisions. ed to echo some comments made by my The bill that was proposed to be We are told by the majority: Just let colleague from Connecticut, Senator brought to the floor today would have us bring the Energy bill to the floor DODD, on the issue of class action re- a very different mechanism. It would and we will be fair. Just take our word form. say that you could not bring a case in for it. I believe that we need to do a class state court unless the defendant was a Well, I hope and trust that we will action reform bill. Some of us who citizen of that state. So, for example, if follow a different path on the issue of voted against cloture this afternoon 1,000 citizens of my State of North Da- class action reform. The Breaux pro- believe that there have been abuses in kota were cheated by a company in posal is a good one. I suggest we begin the area of class action litigation, and Houston, TX, they could not form a now seriously negotiating a balanced, that reform is needed. responsible solution, that takes care of But class action reform has to be sen- class and file an action in North Da- the problem of class action abuses. sible and thoughtful, and it needs to be kota under North Dakota law. They Let me also say parenthetically that resolved through negotiation. I am simply could not do that under the bill there is another issue, in addition to hopeful that this will be accomplished. brought to the floor of the Senate. class action reform, that requires The minority leader indicated he is That is not fair. That doesn’t make meaningful negotiations. That is the willing to negotiate. The majority any sense. Now, I understand that forum shop- leader indicated he is willing to nego- issue of asbestos litigation. That, too, ping is a problem and we ought to deal tiate on these issues. It is my hope that is a real problem and we ought to deal with it. But there is a right way and a these negotiations will be fruitful. with it. It, too, in my judgment, will There is no question that there have wrong way to deal with it. I think the require negotiation. All sides are going been instances of abusive forum shop- Breaux approach is the right way. It is to have to want to do this and be will- ping. There are cases being filed in a thoughtful, balanced approach. It al- ing to negotiate aggressively. You have state court in places like Madison lows us to stop class action abuses, a series of stakeholders involved and County, Illinois, where there are thou- while at the same time preserving the those stakeholders, in my judgment, sands of plaintiffs, but only a handful rights of people to be able to access need to get together, because the sys- are from that area. It’s pretty clear to their own State courts in legitimate tem is broken. We have people who are me that cases like that, when brought cases. sick and dying who are not getting on behalf of nationwide classes, should Again, I think it makes no sense to help. And we have a huge cloud of un- be heard in federal court. say to North Dakotans, it does not certainty hanging over the business I have a long list of such cases here, matter if there are two thousand of community. which on their face involve abuses of you who have been injured by an out- A solution is going to require, in my the class action mechanism. I think I of-state company, you cannot access judgment, that all the stakeholders be shall not go through them all today. North Dakota State Courts and you part of the negotiation. Yes, labor is a Suffice it to say that forum shopping is cannot have the protection of North very significant part of that. So, too, is a problem, and we need reforms in this Dakota state law. Yet that is precisely the business community and others. area. what the bill that was the subject of I know this is a complex issue, but I I also believe that there is a problem today’s vote would have said. hope in the concluding days of this with coupon settlements. It makes no The proposal offered by my col- first session of the Congress we will see sense to have settlements where plain- league, Senator BREAUX, strikes the a breakthrough in negotiations, and tiffs get meaningless coupons that are right balance. It is the right approach. solve this asbestos issue in a way that never redeemed. That, too, in my judg- Cases that involve a lot of plaintiffs works for everyone. ment, can and should be changed. from around the country would go to I think they have been close on a I have decided to cosponsor the class federal court. But citizens of a par- number of occasions. My hope is it fi- action reform proposal described by ticular state would still be able to band nally is completed. Senator JOHN BREAUX, because I think together if they were injured by an f it takes care of the problems of forum out-of-state defendant, and bring a law- shopping and also coupon settlements. suit in their own state court. THE 9/11 COMMISSION I think it is superior to the bill that I say to the majority leader, if you Mr. DORGAN. Mr. President, I wish was the subject of today’s cloture vote, are interested in class action reform, to comment on the 9/11 Commission. because it will more effectively address then let’s work out a solution to the That is the commission which has been the issues of coupon settlements and very real problem of class action put together by Federal law and asked forum shopping. abuses—but let’s do it without depriv- to look into what happened on 9/11 and With respect to coupon settlements, ing the people of any one state of the get all of the information from every- the Breaux bill is much tougher than right to access their state’s court, in body to find out what happened leading the Grassley-Hatch bill, which was the legitimate cases. I think we can strike up to the attack on this country. What subject of today’s cloture vote. The that proper balance, and I hope we can did we know? What did the CIA know? Grassley-Hatch bill simply says that do it soon. That is the reason I voted What did the FBI know? What did the the courts should review coupon settle- against the motion to proceed. FAA do during the attack? What hap- ments for fairness. By contrast, the What we should avoid is a process in pened? Only by knowing what hap- proposal that is offered by Senator which the majority simply says: Here’s pened can we prevent it from hap- BREAUX, that I am cosponsoring, actu- where the wagon is heading. If you like pening again. Were there dots that ally ties legal fees to the rates at it, jump on. If you don’t like it, tough should have been connected but which coupons are actually redeemed. luck. Don’t give us any advice along weren’t? Did we have information that So in a case where plaintiffs get mean- the way. could have perhaps prevented that at- ingless coupons, the lawyers get paid I am a conferee on the Energy bill, tack had certain people known of it or accordingly. That is a much preferable but I have not been invited to a con- had been told of it? Are there defi- provision, in my judgment, in reform- ference. No Democrat in the Senate has ciencies in some of these agencies? Did ing the class action area. been included in a conference on the people drop the ball? With respect to forum shopping, let Energy bill. In fact, we have been spe- I do not know. But we put together a me again point out that the proposal cifically excluded and prevented from panel headed by former Governor

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00026 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13011 Keane of New Jersey. It is a distin- Government provide this information As we like to say in Delaware, ‘‘If it guished panel. One of our former col- at will and upon the request of the 9/11 isn’t perfect, make it better.’’ This bill leagues, Senator Cleland, is on that Commission? that came out of committee is not per- panel. It is called the 9/11 Commission. I hope we don’t see these kinds of re- fect. It can be made better. That is I want to read a couple of state- ports again. I hope the next report what we are going to do. ments. This statement was made Octo- from this commission would tell us the I yield back my time and suggest the ber 10: President has requested every single absence of a quorum. In connection with the commission’s sec- agency to turn over every single docu- The PRESIDING OFFICER. The ond interim report issued on September 23, ment requested by the 9/11 Commission clerk will call the roll. 2003, we discuss the commission’s ongoing ef- immediately. Let this commission do The legislative clerk proceeded to fort to get prompt access to some key execu- its work and finish its work, make a call the roll. tive branch and White House documents that Mr. INHOFE. Madam President, I ask the commission needs to complete its work report to the Congress and to the on time. Although we can report substantial American people about what happened unanimous consent that the order for progress, the commission is continuing to on 9/11, about what information existed the quorum call be rescinded. press for necessary access to some key items. leading up to 9/11, and how we can learn The PRESIDING OFFICER (Mrs. I don’t understand why there would from that to protect this country DOLE). Without objection, it is so or- be problems in getting information against future terrorist attacks. dered. from the CIA, or the FBI, or the White I yield the floor and suggest the ab- f House, or the FAA. What on Earth is sence of a quorum. UNANIMOUS CONSENT REQUEST— happening? The PRESIDING OFFICER. The EXECUTIVE CALENDAR This is the Federal inquiry into what clerk will call the roll. happened on 9/11 and how we can pre- The legislative clerk proceeded to Mr. INHOFE. Madam President, as in vent it from ever happening again. I call the roll. executive session, I ask unanimous would think every Federal agency Mr. CARPER. Mr. President, I ask consent that at a time determined by would cooperate fully and imme- unanimous consent that the order for the majority leader, after consultation diately. But that, regrettably, has not the quorum call be rescinded. with the Democratic leader, the Senate been the case. October 15, a statement The PRESIDING OFFICER. Without proceed to executive session in consid- by the 9/11 Commission: objection, it is so ordered. eration of Calendar No. 405, Michael Over the past two weeks, as a result of Mr. CARPER. Mr. President, we have Leavitt, to be Administrator of the field interviews conducted by our staff, the just concluded what for many of us was EPA; further, that there be then 2 commission learned of serious deficiencies in a tough vote. I simply want to express hours for debate equally divided in the one agency’s production of critical docu- my thanks to the 58 other Democrats usual form. I further ask unanimous ments. and Republicans who joined me—59 in consent that following that debate the The agency in question happens to be all—in voting for the motion to pro- Senate proceed to a vote on the con- the FAA. Now they indicate they are ceed and to take up for debate and firmation of the nomination, with no issuing subpoenas. In fact, they say amendment legislation that would re- intervening action or debate; I further this disturbing development at one form the way we handle class action ask consent that following the vote, agency has led the commission to reex- lawsuits in this country. the President be immediately notified amine its general policy of relying on I am disappointed with the vote, that of the Senate’s action and the Senate document requests rather than sub- we fell one vote short, but I am encour- then resume legislative session. poenas. They have voted to issue a sub- aged by some of the conversation that The PRESIDING OFFICER. Is there poena to the FAA for documents which took place immediately following the objection? have already been requested. Mr. HOLLINGS. Madam President, I don’t understand. We have a 9/11 vote by the leaders of both sides and a number of my colleagues, including on behalf of colleagues on this side of Commission to investigate the tragedy the aisle, I am compelled to object, and that occurred as a result of the ter- Senator DODD and Senator LANDRIEU. I sense there is a genuine willingness I do object. rorist attack on this country. That The PRESIDING OFFICER. Objec- commission has to issue subpoenas to on the part of Democrats and Repub- licans and that one Independent not to tion is heard. Federal agencies to get cooperation. I Mr. INHOFE. Madam President, I give up on this issue. It is one that we would think every single Federal agen- yield the floor. need to address and we can address sat- cy, starting with the White House, Mr. MCCAIN. Madam President, I isfactorily. My own belief is it is one would open its records immediately to suggest the absence of a quorum. this commission so we can understand we can address this year. The PRESIDING OFFICER. The I have talked to any number of Sen- what happened. clerk will call the roll. I am not accusing anybody of any- ators on our side of the aisle who are The assistant legislative clerk pro- thing, nor is the 9/11 Commission. We prepared to offer what I think are con- ceeded to call the roll. want to understand what happened. structive perfecting amendments that Mr. MCCAIN. Madam President, I ask How did it happen? What clues might would make a good bill much better. unanimous consent that the order for we have had? What kind of failing ex- I hope what we will do in the days the quorum call be rescinded. isted with respect to our intelligence ahead is to reach across the aisle—Re- The PRESIDING OFFICER. Without that prevented us from knowing and, publicans to Democrats and Democrats objection, it is so ordered. therefore, preventing these terrorist to Republicans—to find a common The PRESIDING OFFICER. The Sen- attacks? When I read this, I shake my ground that I think will exist with re- ator from New Mexico. head and think it is unbelievable that spect to many of these amendments Mr. DOMENICI. I ask unanimous a commission created by this Congress, and to then move forward together consent that I be permitted to speak called the 9/11 Commission, to get to and, hopefully, to get to the end of the for up to 3 minutes to make an an- the bottom of what happened on 9/11, day when we can vote on a bill and not nouncement with reference to com- has to issue subpoenas to anybody, or have to worry about the kind of par- mittee work in the Senate. has to send out progress reports to say, tisan divide that in some cases charac- The PRESIDING OFFICER. Without Well, we have made progress now in terized this vote and, frankly, charac- objection, it is so ordered. our efforts to gain access to key White terizes too many votes we cast here. f House documents. The White House has I was approached by one of my col- agreed to brief all commissioners on leagues following the vote who asked if ENERGY CONFERENCE COMMITTEE another set of highly sensitive docu- we lost the war. I said: No, no, maybe MEETING ments. We will seek prompt resolution today the battle was lost but not the Mr. DOMENICI. I have an announce- of the remaining issues regarding ac- war. There is a realization that the ment on behalf of myself and Chairman cess of these documents. way we handle class action litigation BILLY TAUZIN from the House of Rep- Why is there a problem? Why would in this country is broken. It can be resentatives. We have scheduled a con- not every agency in every part of this fixed. ference meeting for Tuesday morning.

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00027 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13012 CONGRESSIONAL RECORD — SENATE October 22, 2003 The tax writers should have completed The Senate proceeded to consider the ø(b) CONGRESSIONAL DETERMINATION OF their work on tax provisions in time to bill which had been reported from the PUBLIC POLICY.—On the basis of the findings meet that schedule. We will provide Committee on Commerce, Science, and in subsection (a), the Congress determines conference language to all House and Transportation, with an amendment to that— Senate conferees, Republican and Dem- strike all after enacting clause and in- ø(1) there is a substantial government in- ocrat, 48 hours in advance of the con- sert in lieu thereof the following: terest in regulation of unsolicited commer- [Strike the part shown in black cial electronic mail; ference. We plan to make the language ø brackets and insert the part shown in (2) senders of unsolicited commercial elec- public 48 hours before the conference. tronic mail should not mislead recipients as We see no reason that final passage italic.] to the source or content of such mail; and of this bill cannot occur soon after the S. 877 ø(3) recipients of unsolicited commercial conference. Members of Congress have Be it enacted by the Senate and House of Rep- electronic mail have a right to decline to re- spent the past 3 years negotiating the resentatives of the United States of America in ceive additional unsolicited commercial resolution of a difficult regional issue Congress assembled, electronic mail from the same source. ø and many national issues that pertain SECTION 1. SHORT TITLE. øThis Act may be cited as the ‘‘Controlling øSEC. 3. DEFINITIONS. to energy and America’s future. We are the Assault of Non-Solicited Pornography ø on the verge of completing work on a In this Act: and Marketing Act of 2003’’, or the ‘‘CAN– ø(1) AFFIRMATIVE CONSENT.—The term ‘‘af- comprehensive Energy bill for the first SPAM Act of 2003’’. firmative consent’’, when used with respect time since 1992. This Senator believes øSEC. 2. CONGRESSIONAL FINDINGS AND POLICY. to a commercial electronic mail message, this bill is even more significant than ø(a) FINDINGS.—The Congress finds the fol- means that the recipient has expressly con- the 1992 bill. lowing: sented to receive the message, either in re- To repeat, Chairman BILLY TAUZIN (1) There is a right of free speech on the sponse to a clear and conspicuous request for and myself, as chairman of our com- Internet. such consent or at the recipient’s own initia- ø(2) The Internet has increasingly become mittee in the Senate, are announcing tive. a critical mode of global communication and ø(2) COMMERCIAL ELECTRONIC MAIL MES- we will have a meeting of the conferees now presents unprecedented opportunities on the Energy bill on October 28, Tues- SAGE.— for the development and growth of global ø(A) IN GENERAL.—The term ‘‘commercial day, 10 a.m., in Dirksen 106. We have commerce and an integrated worldwide econ- electronic mail message’’ means any elec- scheduled this conference for Tuesday omy. tronic mail message the primary purpose of ø morning, but implicit in my statement (3) In order for global commerce on the which is the commercial advertisement or is that the tax writers have not com- Internet to reach its full potential, individ- promotion of a commercial product or serv- pleted their work on the tax provi- uals and entities using the Internet and ice (including content on an Internet website other online services should be prevented operated for a commercial purpose). sions, but the two chairmen are sug- from engaging in activities that prevent ø(B) REFERENCE TO COMPANY OR WEBSITE.— gesting in this announcement they other users and Internet service providers The inclusion of a reference to a commercial should have their work completed in from having a reasonably predictable, effi- entity or a link to the website of a commer- time for us to release that with the cient, and economical online experience. cial entity in an electronic mail message ø(4) Unsolicited commercial electronic conference report, since it is part of it, does not, by itself, cause such message to be mail can be a mechanism through which without which there is not a con- treated as a commercial electronic mail mes- businesses advertise and attract customers ference, without which we do not know sage for purposes of this Act if the contents in the online environment. whether the rest of the work is valid or or circumstances of the message indicate a ø(5) The receipt of unsolicited commercial primary purpose other than commercial ad- has to be changed. electronic mail may result in costs to recipi- vertisement or promotion of a commercial Everyone who is interested at the ents who cannot refuse to accept such mail leadership level is working to get this and who incur costs for the storage of such product or service. ø tax provision done. I want to repeat, it mail, or for the time spent accessing, review- (3) COMMISSION.—The term ‘‘Commission’’ ing, and discarding such mail, or for both. means the Federal Trade Commission. is not done. We do expect it to be done ø in time for this announcement to be ef- ø(6) Unsolicited commercial electronic (4) DOMAIN NAME.—The term ‘‘domain name’’ means any alphanumeric designation fective. mail may impose significant monetary costs on providers of Internet access services, busi- which is registered with or assigned by any f nesses, and educational and nonprofit insti- domain name registrar, domain name reg- CAN–SPAM ACT OF 2003 tutions that carry and receive such mail, as istry, or other domain name registration au- there is a finite volume of mail that such thority as part of an electronic address on Mr. MCCAIN. Madam President, I ask providers, businesses, and institutions can the Internet. unanimous consent that the Senate handle without further investment in infra- ø(5) ELECTRONIC MAIL ADDRESS.—The term now proceed to the consideration of structure. ‘‘electronic mail address’’ means a destina- Calendar No. 209, S. 877; provided fur- ø(7) Some unsolicited commercial elec- tion, commonly expressed as a string of ther that the committee amendment be tronic mail contains material that many re- characters, consisting of a unique user name agreed to and be considered original cipients may consider vulgar or porno- or mailbox (commonly referred to as the ‘‘local part’’) and a reference to an Internet text for the purpose of further amend- graphic in nature. ø domain (commonly referred to as the ‘‘do- ment. (8) While some senders of unsolicited com- mercial electronic mail messages provide main part’’), to which an electronic mail Madam President, I suggest the ab- simple and reliable ways for recipients to re- message can be sent or delivered. sence of a quorum. ject (or ‘‘opt-out’’ of) receipt of unsolicited ø(6) ELECTRONIC MAIL MESSAGE.—The term The PRESIDING OFFICER. The commercial electronic mail from such send- ‘‘electronic mail message’’ means a message clerk will call the roll. ers in the future, other senders provide no sent to an electronic mail address. The assistant legislative clerk pro- such ‘‘opt-out’’ mechanism, or refuse to ø(7) FTC ACT.—The term ‘‘FTC Act’’ means ceeded to call the roll. honor the requests of recipients not to re- the Federal Trade Commission Act (15 U.S.C. Mr. MCCAIN. Madam President, I ask ceive electronic mail from such senders in 41 et seq.). ø unanimous consent that the order for the future, or both. (8) HEADER INFORMATION.—The term ø ‘‘header information’’ means the source, des- the quorum call be rescinded. (9) An increasing number of senders of un- solicited commercial electronic mail pur- tination, and routing information attached The PRESIDING OFFICER. Without posefully disguise the source of such mail so to an electronic mail message, including the objection, it is so ordered. as to prevent recipients from responding to originating domain name and originating The PRESIDING OFFICER. The such mail quickly and easily. electronic mail address. clerk will report the bill by title. ø(10) An increasing number of senders of ø(9) IMPLIED CONSENT.—The term ‘‘implied The assistant legislative clerk read unsolicited commercial electronic mail pur- consent’’, when used with respect to a com- as follows: posefully include misleading information in mercial electronic mail message, means A bill (S. 877) to regulate interstate com- the message’s subject lines in order to induce that— ø merce by imposing limitations and penalties the recipients to view the messages. (A) within the 3-year period ending upon ø on the transmission of unsolicited commer- (11) In legislating against certain abuses receipt of such message, there has been a cial electronic mail via the Internet. on the Internet, Congress should be very business transaction between the sender and careful to avoid infringing in any way upon the recipient (including a transaction involv- The PRESIDING OFFICER. Is there constitutionally protected rights, including ing the provision, free of charge, of informa- objection to the Senator’s request? the rights of assembly, free speech, and pri- tion, goods, or services requested by the re- Without objection, it is so ordered. vacy. cipient); and

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00028 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13013 ø(B) the recipient was, at the time of such ø(A) is not a transactional or relationship receive any future unsolicited commercial transaction or thereafter in the first elec- message; and electronic mail messages from that sender at tronic mail message received from the send- ø(B) is sent to a recipient without the re- the electronic mail address where the mes- er after the effective date of this Act, pro- cipient’s prior affirmative or implied con- sage was received; and vided a clear and conspicuous notice of an sent. ø(ii) remains capable of receiving such opportunity not to receive unsolicited com- øSEC. 4. CRIMINAL PENALTY FOR UNSOLICITED messages or communications for no less than mercial electronic mail messages from the COMMERCIAL ELECTRONIC MAIL 30 days after the transmission of the original sender and has not exercised such oppor- CONTAINING FRAUDULENT ROUT- message. tunity. ING INFORMATION. ø(B) MORE DETAILED OPTIONS POSSIBLE.— ø øIf a sender operates through separate lines (a) IN GENERAL.—Chapter 63 of title 18, The sender of an unsolicited commercial of business or divisions and holds itself out United States Code, is amended by adding at electronic mail message may comply with to the recipient, both at the time of the the end the following: subparagraph (A)(i) by providing the recipi- transaction described in subparagraph (A) ø‘‘§ 1351. Unsolicited commercial electronic ent a list or menu from which the recipient and at the time the notice under subpara- mail containing fraudulent transmission in- may choose the specific types of commercial graph (B) was provided to the recipient, as formation electronic mail messages the recipient wants to receive or does not want to receive from that particular line of business or division ø‘‘(a) IN GENERAL.—Any person who initi- rather than as the entity of which such line ates the transmission, to a protected com- the sender, if the list or menu includes an of business or division is a part, then the line puter in the United States, of an unsolicited option under which the recipient may choose of business or the division shall be treated as commercial electronic mail message, with not to receive any unsolicited commercial the sender for purposes of this paragraph. electronic mail messages from the sender. knowledge and intent that the message con- ø ø(10) INITIATE.—The term ‘‘initiate’’, when tains or is accompanied by header informa- (C) TEMPORARY INABILITY TO RECEIVE MES- SAGES OR PROCESS REQUESTS.—A return elec- used with respect to a commercial electronic tion that is materially false or materially tronic mail address or other mechanism does mail message, means to originate such mes- misleading shall be fined or imprisoned for not fail to satisfy the requirements of sub- sage or to procure the origination of such not more than 1 year, or both, under this paragraph (A) if it is unexpectedly and tem- message, but shall not include actions that title. For purposes of this subsection, header porarily unable to receive messages or proc- constitute routine conveyance of such mes- information that is technically accurate but ess requests due to technical or capacity sage. includes an originating electronic mail ad- problems, if the problem with receiving mes- ø(11) INTERNET.—The term ‘‘Internet’’ has dress the access to which for purposes of ini- sages or processing requests is corrected the meaning given that term in the Internet tiating the message was obtained by means within a reasonable time period. Tax Freedom Act (47 U.S.C. 151 nt). of false or fraudulent pretenses or represen- ø ø(4) PROHIBITION OF TRANSMISSION OF UNSO- (12) INTERNET ACCESS SERVICE.—The term tations shall be considered materially mis- LICITED COMMERCIAL ELECTRONIC MAIL AFTER ‘‘Internet access service’’ has the meaning leading. OBJECTION.—If a recipient makes a request to given that term in section 231(e)(4) of the ø‘‘(b) DEFINITIONS.—Any term used in sub- Communications Act of 1934 (47 U.S.C. a sender, using a mechanism provided pursu- section (a) that is defined in section 3 of the ant to paragraph (3), not to receive some or 231(e)(4)). CAN–SPAM Act of 2003 has the meaning ø(13) PROTECTED COMPUTER.—The term any unsolicited commercial electronic mail given it in that section.’’. messages from such sender, then it is unlaw- ‘‘protected computer’’ has the meaning given ø(b) CONFORMING AMENDMENT.—The chap- that term in section 1030(e)(2) of title 18, ful— ter analysis for chapter 63 of title 18, United ø(A) for the sender to initiate the trans- United States Code. States Code, is amended by adding at the end ø mission to the recipient, more than 10 busi- (14) RECIPIENT.—The term ‘‘recipient’’, the following: when used with respect to a commercial ness days after the receipt of such request, of ø electronic mail message, means an author- ‘‘1351. Unsolicited commercial electronic an unsolicited commercial electronic mail ized user of the electronic mail address to mail containing fraudulent message that falls within the scope of the re- which the message was sent or delivered. If a routing information’’. quest; recipient of a commercial electronic mail øSEC. 5. OTHER PROTECTIONS AGAINST UNSO- ø(B) for any person acting on behalf of the message has 1 or more electronic mail ad- LICITED COMMERCIAL ELECTRONIC sender to initiate the transmission to the re- dresses in addition to the address to which MAIL. cipient, more than 10 business days after the ø the message was sent or delivered, the recipi- (a) REQUIREMENTS FOR TRANSMISSION OF receipt of such request, of an unsolicited ent shall be treated as a separate recipient MESSAGES.— commercial electronic mail message that ø with respect to each such address. If an elec- (1) PROHIBITION OF FALSE OR MISLEADING such person knows or consciously avoids tronic mail address is reassigned to a new TRANSMISSION INFORMATION.—It is unlawful knowing falls within the scope of the re- user, the new user shall not be treated as a for any person to initiate the transmission, quest; or recipient of any commercial electronic mail to a protected computer, of a commercial ø(C) for any person acting on behalf of the message sent or delivered to that address be- electronic mail message that contains, or is sender to assist in initiating the trans- fore it was reassigned. accompanied by, header information that is mission to the recipient, through the provi- ø(15) ROUTINE CONVEYANCE.—The term materially or intentionally false or materi- sion or selection of addresses to which the ‘‘routine conveyance’’ means the trans- ally or intentionally misleading. For pur- message will be sent, of an unsolicited com- mission, routing, relaying, handling, or stor- poses of this paragraph, header information mercial electronic mail message that the ing, through an automatic technical process, that is technically accurate but includes an person knows, or consciously avoids know- of an electronic mail message for which an- originating electronic mail address the ac- ing, would violate subparagraph (A) or (B). other person has provided and selected the cess to which for purposes of initiating the ø(5) INCLUSION OF IDENTIFIER, OPT-OUT, AND recipient addresses. message was obtained by means of false or PHYSICAL ADDRESS IN UNSOLICITED COMMER- ø(16) SENDER.—The term ‘‘sender’’, when fraudulent pretenses or representations shall CIAL ELECTRONIC MAIL.—It is unlawful for any used with respect to a commercial electronic be considered materially misleading. person to initiate the transmission of any mail message, means a person who initiates ø(2) PROHIBITION OF DECEPTIVE SUBJECT unsolicited commercial electronic mail mes- such a message and whose product, service, HEADINGS.—It is unlawful for any person to sage to a protected computer unless the mes- or Internet web site is advertised or pro- initiate the transmission to a protected com- sage provides— moted by the message. puter of a commercial electronic mail mes- ø(A) clear and conspicuous identification ø(17) TRANSACTIONAL OR RELATIONSHIP MES- sage with a subject heading that such person that the message is an advertisement or so- SAGES.—The term ‘‘transactional or relation- knows would be likely to mislead a recipi- licitation; ship message’’ means an electronic mail ent, acting reasonably under the cir- ø(B) clear and conspicuous notice of the op- message the primary purpose of which is to cumstances, about a material fact regarding portunity under paragraph (3) to decline to facilitate, complete, confirm, provide, or re- the contents or subject matter of the mes- receive further unsolicited commercial elec- quest information concerning— sage. tronic mail messages from the sender; and ø(A) a commercial transaction that the re- ø(3) INCLUSION OF RETURN ADDRESS OR COM- ø(C) a valid physical postal address of the cipient has previously agreed to enter into PARABLE MECHANISM IN UNSOLICITED COMMER- sender. with the sender; CIAL ELECTRONIC MAIL.— ø(b) PROHIBITION OF TRANSMISSION OF UN- ø(B) an existing commercial relationship, ø(A) IN GENERAL.—It is unlawful for any LAWFUL UNSOLICITED COMMERCIAL ELEC- formed with or without an exchange of con- person to initiate the transmission to a pro- TRONIC MAIL TO CERTAIN HARVESTED ELEC- sideration, involving the ongoing purchase tected computer of an unsolicited commer- TRONIC MAIL ADDRESSES.— or use by the recipient of products or serv- cial electronic mail message that does not ø(1) IN GENERAL.—It is unlawful for any ices offered by the sender; or contain a functioning return electronic mail person to initiate the transmission, to a pro- ø(C) an existing employment relationship address or other Internet-based mechanism, tected computer, of an unsolicited commer- or related benefit plan. clearly and conspicuously displayed, that— cial electronic mail message that is unlawful ø(18) UNSOLICITED COMMERCIAL ELECTRONIC ø(i) a recipient may use to submit, in a under subsection (a), or to assist in the origi- MAIL MESSAGE.—The term ‘‘unsolicited com- manner specified by the sender, a reply elec- nation of such a message through the provi- mercial electronic mail message’’ means any tronic mail message or other form of Inter- sion or selection of addresses to which the commercial electronic mail message that— net-based communication requesting not to message will be sent, if such person knows

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00029 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13014 CONGRESSIONAL RECORD — SENATE October 22, 2003 that, or acts with reckless disregard as to spect to any Federally insured credit union, ø(i) the actual monetary loss suffered by whether— and any subsidiaries of such a credit union; such residents; or ø(A) the electronic mail address of the re- ø(3) under the Securities Exchange Act of ø(ii) the amount determined under para- cipient was obtained, using an automated 1934 (15 U.S.C. 78a et seq.) by the Securities graph (2). means, from an Internet website or propri- and Exchange Commission with respect to ø(2) STATUTORY DAMAGES.— etary online service operated by another per- any broker or dealer; ø(A) IN GENERAL.—For purposes of para- son; or ø(4) under the Investment Company Act of graph (1)(B)(ii), the amount determined ø(B) the website or proprietary online serv- 1940 (15 U.S.C. 80a–1 et seq.) by the Securities under this paragraph is the amount cal- ice from which the address was obtained in- and Exchange Commission with respect to culated by multiplying the number of will- cluded, at the time the address was obtained, investment companies; ful, knowing, or negligent violations by an ø a notice stating that the operator of such a (5) under the Investment Advisers Act of amount, in the discretion of the court, of up website or proprietary online service will not 1940 (15 U.S.C. 80b–1 et seq.) by the Securities to $10 (with each separately addressed unlaw- give, sell, or otherwise transfer addresses and Exchange Commission with respect to ful message received by such residents treat- maintained by such site or service to any investment advisers registered under that ed as a separate violation). In determining other party for the purpose of initiating, or Act; the per-violation penalty under this subpara- enabling others to initiate, unsolicited elec- ø(6) under State insurance law in the case tronic mail messages. of any person engaged in providing insur- graph, the court shall take into account the degree of culpability, any history of prior ø(2) DISCLAIMER.—Nothing in this sub- ance, by the applicable State insurance au- section creates an ownership or proprietary thority of the State in which the person is such conduct, ability to pay, the extent of interest in such electronic mail addresses. domiciled, subject to section 104 of the economic gain resulting from the violation, ø(c) COMPLIANCE PROCEDURES.—An action Gramm-Bliley-Leach Act (15 U.S.C. 6701); and such other matters as justice may re- for violation of paragraph (2), (3), (4), or (5) of ø(7) under part A of subtitle VII of title 49, quire. subsection (a) may not proceed if the person United States Code, by the Secretary of ø(B) LIMITATION.—For any violation of sec- against whom the action is brought dem- Transportation with respect to any air car- tion 5 (other than section 5(a)(1)), the onstrates that— rier or foreign air carrier subject to that amount determined under subparagraph (A) ø(1) the person has established and imple- part; may not exceed $500,000, except that if the mented, with due care, reasonable practices ø(8) under the Packers and Stockyards Act, court finds that the defendant committed and procedures to effectively prevent viola- 1921 (7 U.S.C. 181 et seq.) (except as provided the violation willfully and knowingly, the tions of such paragraph; and in section 406 of that Act (7 U.S.C. 226, 227)), court may increase the limitation estab- ø(2) the violation occurred despite good by the Secretary of Agriculture with respect lished by this paragraph from $500,000 to an faith efforts to maintain compliance with to any activities subject to that Act; amount not to exceed $1,500,000. such practices and procedures. ø(9) under the Farm Credit Act of 1971 (12 ø(3) ATTORNEY FEES.—In the case of any øSEC. 6. ENFORCEMENT BY FEDERAL TRADE U.S.C. 2001 et seq.) by the Farm Credit Ad- successful action under paragraph (1), the COMMISSION. ministration with respect to any Federal State shall be awarded the costs of the ac- ø (a) VIOLATION IS UNFAIR OR DECEPTIVE land bank, Federal land bank association, tion and reasonable attorney fees as deter- ACT OR PRACTICE.—Except as provided in Federal intermediate credit bank, or produc- mined by the court. subsection (b), this Act shall be enforced by tion credit association; and ø(4) RIGHTS OF FEDERAL REGULATORS.—The the Commission as if the violation of this ø(10) under the Communications Act of 1934 State shall serve prior written notice of any Act were an unfair or deceptive act or prac- (47 U.S.C. 151 et seq.) by the Federal Commu- tice proscribed under section 18(a)(1)(B) of action under paragraph (1) upon the Federal nications Commission with respect to any the Federal Trade Commission Act (15 U.S.C. Trade Commission or the appropriate Fed- person subject to the provisions of that Act. 57a(a)(1)(B)). eral regulator determined under subsection ø(c) EXERCISE OF CERTAIN POWERS.—For ø(b) ENFORCEMENT BY CERTAIN OTHER (b) and provide the Commission or appro- the purpose of the exercise by any agency re- AGENCIES.—Compliance with this Act shall priate Federal regulator with a copy of its ferred to in subsection (b) of its powers under be enforced— complaint, except in any case in which such any Act referred to in that subsection, a vio- ø(1) under section 8 of the Federal Deposit prior notice is not feasible, in which case the lation of this Act is deemed to be a violation Insurance Act (12 U.S.C. 1818), in the case State shall serve such notice immediately of a requirement imposed under that Act. In of— upon instituting such action. The Federal addition to its powers under any provision of ø(A) national banks, and Federal branches Trade Commission or appropriate Federal law specifically referred to in subsection (b), and Federal agencies of foreign banks, and each of the agencies referred to in that sub- regulator shall have the right— ø any subsidiaries of such entities (except bro- section may exercise, for the purpose of en- (A) to intervene in the action; ø kers, dealers, persons providing insurance, forcing compliance with any requirement (B) upon so intervening, to be heard on all investment companies, and investment ad- imposed under this Act, any other authority matters arising therein; visers), by the Office of the Comptroller of conferred on it by law. ø(C) to remove the action to the appro- the Currency; ø(d) ACTIONS BY THE COMMISSION.—The priate United States district court; and ø(B) member banks of the Federal Reserve Commission shall prevent any person from ø(D) to file petitions for appeal. System (other than national banks), violating this Act in the same manner, by ø(5) CONSTRUCTION.—For purposes of bring- branches and agencies of foreign banks the same means, and with the same jurisdic- ing any civil action under paragraph (1), (other than Federal branches, Federal agen- tion, powers, and duties as though all appli- nothing in this Act shall be construed to pre- cies, and insured State branches of foreign cable terms and provisions of the Federal vent an attorney general of a State from ex- banks), commercial lending companies Trade Commission Act (15 U.S.C. 41 et seq.) ercising the powers conferred on the attor- owned or controlled by foreign banks, orga- were incorporated into and made a part of ney general by the laws of that State to— nizations operating under section 25 or 25A this Act. Any entity that violates any provi- ø(A) conduct investigations; of the Federal Reserve Act (12 U.S.C. 601 and sion of that subtitle is subject to the pen- ø(B) administer oaths or affirmations; or 611), and bank holding companies and their alties and entitled to the privileges and im- ø(C) compel the attendance of witnesses or nonbank subsidiaries or affiliates (except munities provided in the Federal Trade Com- the production of documentary and other brokers, dealers, persons providing insur- mission Act in the same manner, by the evidence. ance, investment companies, and investment same means, and with the same jurisdiction, ø(6) VENUE; SERVICE OF PROCESS.— advisers), by the Board; power, and duties as though all applicable ø(A) VENUE.—Any action brought under ø(C) banks insured by the Federal Deposit terms and provisions of the Federal Trade paragraph (1) may be brought in the district Insurance Corporation (other than members Commission Act were incorporated into and court of the United States that meets appli- of the Federal Reserve System) insured made a part of that subtitle. cable requirements relating to venue under State branches of foreign banks, and any ø(e) ENFORCEMENT BY STATES.— section 1391 of title 28, United States Code. subsidiaries of such entities (except brokers, ø(1) CIVIL ACTION.—In any case in which the ø dealers, persons providing insurance, invest- attorney general of a State has reason to be- (B) SERVICE OF PROCESS.—In an action ment companies, and investment advisers), lieve that an interest of the residents of that brought under paragraph (1), process may be by the Board of Directors of the Federal De- State has been or is threatened or adversely served in any district in which the defend- posit Insurance Corporation; and affected by any person engaging in a practice ant— ø(D) savings associations the deposits of that violates section 5 of this Act, the State, ø(i) is an inhabitant; or which are insured by the Federal Deposit In- as parens patriae, may bring a civil action ø(ii) maintains a physical place of busi- surance Corporation, and any subsidiaries of on behalf of the residents of the State in a ness. such savings associations (except brokers, district court of the United States of appro- ø(7) LIMITATION ON STATE ACTION WHILE dealers, persons providing insurance, invest- priate jurisdiction or in any other court of FEDERAL ACTION IS PENDING.—If the Commis- ment companies, and investment advisers), competent jurisdiction— sion or other appropriate Federal agency by the Director of the Office of Thrift Super- ø(A) to enjoin further violation of section 5 under subsection (b) has instituted a civil ac- vision; of this Act by the defendant; or tion or an administrative action for viola- ø(2) under the Federal Credit Union Act (12 ø(B) to obtain damages on behalf of resi- tion of this Act, no State attorney general U.S.C. 1751 et seq.) by the Board of the Na- dents of the State, in an amount equal to the may bring an action under this subsection tional Credit Union Administration with re- greater of— during the pendency of that action against

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00030 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13015 any defendant named in the complaint of the unauthorized transmission of commercial electronic mail and creates a risk that wanted Commission or the other agency for any vio- electronic mail messages. electronic mail messages, both commercial and lation of this Act alleged in the complaint. ø(3) LIMITATION ON EXCEPTIONS.—Paragraph noncommercial, will be lost, overlooked, or dis- ø(f) ACTION BY PROVIDER OF INTERNET AC- (2) does not apply to a State or local govern- carded amidst the larger volume of unwanted CESS SERVICE.— ment statute, regulation, or rule that di- messages, thus reducing the reliability and use- ø(1) ACTION AUTHORIZED.—A provider of rectly regulates unsolicited commercial fulness of electronic mail to the recipient. Internet access service adversely affected by electronic mail and that treats the mere (5) Some unsolicited commercial electronic a violation of section 5 may bring a civil ac- sending of unsolicited commercial electronic mail contains material that many recipients may tion in any district court of the United mail in a manner that complies with this consider vulgar or pornographic in nature. States with jurisdiction over the defendant, Act as sufficient to constitute a violation of (6) The growth in unsolicited commercial elec- or in any other court of competent jurisdic- such statute, regulation, or rule or to create tronic mail imposes significant monetary costs tion, to— a cause of action thereunder. on providers of Internet access services, busi- ø(A) enjoin further violation by the defend- ø(c) NO EFFECT ON POLICIES OF PROVIDERS nesses, and educational and nonprofit institu- ant; or OF INTERNET ACCESS SERVICE.—Nothing in tions that carry and receive such mail, as there ø(B) recover damages in an amount equal this Act shall be construed to have any ef- is a finite volume of mail that such providers, to the greater of— fect on the lawfulness or unlawfulness, under businesses, and institutions can handle without ø(i) actual monetary loss incurred by the any other provision of law, of the adoption, further investment in infrastructure. provider of Internet access service as a result implementation, or enforcement by a pro- (7) Many senders of unsolicited commercial of such violation; or vider of Internet access service of a policy of electronic mail purposefully disguise the source ø(ii) the amount determined under para- declining to transmit, route, relay, handle, of such mail. graph (2). or store certain types of electronic mail mes- (8) Many senders of unsolicited commercial ø(2) STATUTORY DAMAGES.— sages. electronic mail purposefully include misleading ø(A) IN GENERAL.—For purposes of para- øSEC. 8. STUDY OF EFFECTS OF UNSOLICITED information in the message’s subject lines in graph (1)(B)(ii), the amount determined COMMERCIAL ELECTRONIC MAIL. order to induce the recipients to view the mes- under this paragraph is the amount cal- ø(a) IN GENERAL.—Not later than 24 months sages. culated by multiplying the number of will- after the date of the enactment of this Act, (9) While some senders of unsolicited commer- ful, knowing, or negligent violations by an the Commission, in consultation with the cial electronic mail messages provide simple and amount, in the discretion of the court, of up Department of Justice and other appropriate reliable ways for recipients to reject (or ‘‘opt- to $10 (with each separately addressed unlaw- agencies, shall submit a report to the Con- out’’ of) receipt of unsolicited commercial elec- ful message carried over the facilities of the gress that provides a detailed analysis of the tronic mail from such senders in the future, provider of Internet access service or sent to effectiveness and enforcement of the provi- other senders provide no such ‘‘opt-out’’ mecha- an electronic mail address obtained from the sions of this Act and the need (if any) for the nism, or refuse to honor the requests of recipi- provider of Internet access service in viola- Congress to modify such provisions. ents not to receive electronic mail from such tion of section 5(b) treated as a separate vio- ø(b) REQUIRED ANALYSIS.—The Commission senders in the future, or both. lation). In determining the per-violation shall include in the report required by sub- (10) Many senders of bulk unsolicited commer- penalty under this subparagraph, the court section (a) an analysis of the extent to which cial electronic mail use computer programs to shall take into account the degree of culpa- technological and marketplace develop- gather large numbers of electronic mail address- bility, any history of prior such conduct, ments, including changes in the nature of es on an automated basis from Internet websites ability to pay, the extent of economic gain the devices through which consumers access or online services where users must post their resulting from the violation, and such other their electronic mail messages, may affect addresses in order to make full use of the matters as justice may require. the practicality and effectiveness of the pro- website or service. ø(B) LIMITATION.—For any violation of sec- visions of this Act. (11) Many States have enacted legislation in- tion 5 (other than section 5(a)(1)), the øSEC. 9. SEPARABILITY. tended to regulate or reduce unsolicited commer- amount determined under subparagraph (A) øIf any provision of this Act or the applica- cial electronic mail, but these statutes impose may not exceed $500,000, except that if the tion thereof to any person or circumstance is different standards and requirements. As a re- court finds that the defendant committed held invalid, the remainder of this Act and sult, they do not appear to have been successful the violation willfully and knowingly, the the application of such provision to other in addressing the problems associated with un- court may increase the limitation estab- persons or circumstances shall not be af- solicited commercial electronic mail, in part be- lished by this paragraph from $500,000 to an fected. cause, since an electronic mail address does not amount not to exceed $1,500,000. øSEC. 10. EFFECTIVE DATE. specify a geographic location, it can be ex- ø(3) ATTORNEY FEES.—In any action øThe provisions of this Act shall take ef- tremely difficult for law-abiding businesses to brought pursuant to paragraph (1), the court fect 120 days after the date of the enactment know with which of these disparate statutes may, in its discretion, require an under- of this Act.¿ they are required to comply. taking for the payment of the costs of such SECTION 1. SHORT TITLE. (12) The problems associated with the rapid action, and assess reasonable costs, includ- This Act may be cited as the ‘‘Controlling the growth and abuse of unsolicited commercial ing reasonable attorneys’ fees, against any Assault of Non-Solicited Pornography and Mar- electronic mail cannot be solved by Federal leg- party. keting Act of 2003’’, or the ‘‘CAN-SPAM Act of islation alone. The development and adoption of øSEC. 7. EFFECT ON OTHER LAWS. 2003’’. technological approaches and the pursuit of co- operative efforts with other countries will be ø(a) FEDERAL LAW.— SEC. 2. CONGRESSIONAL FINDINGS AND POLICY. necessary as well. ø(1) Nothing in this Act shall be construed (a) FINDINGS.—The Congress finds the fol- (b) CONGRESSIONAL DETERMINATION OF PUB- to impair the enforcement of section 223 or lowing: 231 of the Communications Act of 1934 (47 (1) Electronic mail has become an extremely LIC POLICY.—On the basis of the findings in U.S.C. 223 or 231, respectively), chapter 71 important and popular means of communica- subsection (a), the Congress determines that— (relating to obscenity) or 110 (relating to sex- tion, relied on by millions of Americans on a (1) there is a substantial government interest ual exploitation of children) of title 18, daily basis for personal and commercial pur- in regulation of unsolicited commercial elec- United States Code, or any other Federal poses. Its low cost and global reach make it ex- tronic mail on a nationwide basis; criminal statute. tremely convenient and efficient, and offer (2) senders of unsolicited commercial elec- ø(2) Nothing in this Act shall be construed unique opportunities for the development and tronic mail should not mislead recipients as to to affect in any way the Commission’s au- growth of frictionless commerce. the source or content of such mail; and thority to bring enforcement actions under (2) The convenience and efficiency of elec- (3) recipients of unsolicited commercial elec- FTC Act for materially false or deceptive tronic mail are threatened by the extremely tronic mail have a right to decline to receive ad- representations in commercial electronic rapid growth in the volume of unsolicited com- ditional unsolicited commercial electronic mail mail messages. mercial electronic mail. Unsolicited commercial from the same source. ø(b) STATE LAW.— electronic mail is currently estimated to account SEC. 3. DEFINITIONS. ø(1) IN GENERAL.—This Act supersedes any for over 45 percent of all electronic mail traffic, In this Act: State or local government statute, regula- up from an estimated 7 percent in 2001, and the (1) AFFIRMATIVE CONSENT.—The term ‘‘affirm- tion, or rule regulating the use of electronic volume continues to rise. Most of these unsolic- ative consent’’, when used with respect to a mail to send commercial messages. ited commercial electronic mail messages are commercial electronic mail message, means ø(2) EXCEPTIONS.—Except as provided in fraudulent or deceptive in one or more respects. that— paragraph (3), this Act does not supersede or (3) The receipt of unsolicited commercial elec- (A) the recipient expressly consented to re- pre-empt— tronic mail may result in costs to recipients who ceive the message, either in response to a clear ø(A) State trespass, contract, or tort law cannot refuse to accept such mail and who and conspicuous request for such consent or at or any civil action thereunder; or incur costs for the storage of such mail, or for the recipient’s own initiative; and ø(B) any provision of Federal, State, or the time spent accessing, reviewing, and dis- (B) if the message is from a party other than local criminal law or any civil remedy avail- carding such mail, or for both. the party to which the recipient communicated able under such law that relates to acts of (4) The receipt of a large number of unsolic- such consent, the recipient was given clear and fraud or theft perpetrated by means of the ited messages also decreases the convenience of conspicuous notice at the time the consent was

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communicated that the recipient’s electronic (10) INITIATE.—The term ‘‘initiate’’, when action that the recipient has previously agreed mail address could be transferred to such other used with respect to a commercial electronic to enter into with the sender. party for the purpose of initiating commercial mail message, means to originate or transmit (19) UNSOLICITED COMMERCIAL ELECTRONIC electronic mail messages. such message or to procure the origination or MAIL MESSAGE.—The term ‘‘unsolicited commer- (2) COMMERCIAL ELECTRONIC MAIL MESSAGE.— transmission of such message, but shall not in- cial electronic mail message’’ means any com- (A) IN GENERAL.—The term ‘‘commercial elec- clude actions that constitute routine conveyance mercial electronic mail message that— tronic mail message’’ means any electronic mail of such message. For purposes of this para- (A) is not a transactional or relationship mes- message the primary purpose of which is the graph, more than 1 person may be considered to sage; and commercial advertisement or promotion of a have initiated a message. (B) is sent to a recipient without the recipi- commercial product or service (including content (11) INTERNET.—The term ‘‘Internet’’ has the ent’s prior affirmative or implied consent. on an Internet website operated for a commer- meaning given that term in the Internet Tax SEC. 4. CRIMINAL PENALTY FOR COMMERCIAL cial purpose). Freedom Act (47 U.S.C. 151 nt). ELECTRONIC MAIL CONTAINING (B) REFERENCE TO COMPANY OR WEBSITE.— (12) INTERNET ACCESS SERVICE.—The term FRAUDULENT ROUTING INFORMA- The inclusion of a reference to a commercial en- ‘‘Internet access service’’ has the meaning given TION. tity or a link to the website of a commercial en- that term in section 231(e)(4) of the Communica- (a) IN GENERAL.—Chapter 63 of title 18, tity in an electronic mail message does not, by tions Act of 1934 (47 U.S.C. 231(e)(4)). United States Code, is amended by adding at the itself, cause such message to be treated as a (13) PROCURE.—The term ‘‘procure’’, when end the following: commercial electronic mail message for purposes used with respect to the initiation of a commer- ‘‘§ 1351. Commercial electronic mail con- of this Act if the contents or circumstances of cial electronic mail message, means intentionally taining fraudulent transmission informa- the message indicate a primary purpose other to pay or provide other consideration to, or in- tion. than commercial advertisement or promotion of duce, another person to initiate such a message a commercial product or service. on one’s behalf, knowing, or consciously avoid- ‘‘(a) IN GENERAL.—Any person who initiates (3) COMMISSION.—The term ‘‘Commission’’ ing knowing, the extent to which that person the transmission, to a protected computer in the means the Federal Trade Commission. intends to comply with the requirements of this United States, of a commercial electronic mail (4) DOMAIN NAME.—The term ‘‘domain name’’ Act. message, with knowledge and intent that the means any alphanumeric designation which is (14) PROTECTED COMPUTER.—The term ‘‘pro- message contains or is accompanied by header registered with or assigned by any domain name tected computer’’ has the meaning given that information that is materially false or materially registrar, domain name registry, or other do- term in section 1030(e)(2)(B) of title 18, United misleading shall be fined or imprisoned for not main name registration authority as part of an States Code. more than 1 year, or both, under this title. For electronic address on the Internet. (15) RECIPIENT.—The term ‘‘recipient’’, when purposes of this subsection, header information (5) ELECTRONIC MAIL ADDRESS.—The term used with respect to a commercial electronic that is technically accurate but includes an ‘‘electronic mail address’’ means a destination, mail message, means an authorized user of the originating electronic mail address the access to commonly expressed as a string of characters, electronic mail address to which the message which for purposes of initiating the message was consisting of a unique user name or mailbox was sent or delivered. If a recipient of a commer- obtained by means of false or fraudulent pre- (commonly referred to as the ‘‘local part’’) and cial electronic mail message has 1 or more elec- tenses or representations shall be considered ma- a reference to an Internet domain (commonly re- tronic mail addresses in addition to the address terially misleading. ferred to as the ‘‘domain part’’), to which an to which the message was sent or delivered, the ‘‘(b) DEFINITIONS.—Any term used in sub- electronic mail message can be sent or delivered. recipient shall be treated as a separate recipient section (a) that is defined in section 3 of the (6) ELECTRONIC MAIL MESSAGE.—The term with respect to each such address. If an elec- CAN-SPAM Act of 2003 has the meaning given ‘‘electronic mail message’’ means a message sent tronic mail address is reassigned to a new user, it in that section.’’. to a unique electronic mail address. the new user shall not be treated as a recipient (b) CONFORMING AMENDMENT.—The chapter (7) FTC ACT.—The term ‘‘FTC Act’’ means the of any commercial electronic mail message sent analysis for chapter 63 of title 18, United States Federal Trade Commission Act (15 U.S.C. 41 et or delivered to that address before it was reas- Code, is amended by adding at the end the fol- seq.). signed. lowing: (8) HEADER INFORMATION.—The term ‘‘header (16) ROUTINE CONVEYANCE.—The term ‘‘rou- ‘‘1351. Commercial electronic mail containing information’’ means the source, destination, and tine conveyance’’ means the transmission, rout- fraudulent routing information.’’. routing information attached to an electronic ing, relaying, handling, or storing, through an mail message, including the originating domain SEC. 5. OTHER PROTECTIONS FOR USERS OF automatic technical process, of an electronic COMMERCIAL ELECTRONIC MAIL. name and originating electronic mail address, mail message for which another person has (a) REQUIREMENTS FOR TRANSMISSION OF MES- and any other information that appears in the identified the recipients or provided the recipi- SAGES.— line identifying, or purporting to identify, a per- ent addresses. (1) PROHIBITION OF FALSE OR MISLEADING son initiating the message. (17) SENDER.—The term ‘‘sender’’, when used TRANSMISSION INFORMATION.—It is unlawful for (9) IMPLIED CONSENT.— with respect to a commercial electronic mail mes- any person to initiate the transmission, to a pro- (A) IN GENERAL.—The term ‘‘implied consent’’, sage, means a person who initiates such a mes- tected computer, of a commercial electronic mail when used with respect to a commercial elec- sage and whose product, service, or Internet message that contains, or is accompanied by, tronic mail message, means that— web site is advertised or promoted by the mes- header information that is false or misleading. (i) within the 3-year period ending upon re- sage. For purposes of this paragraph— ceipt of such message, there has been a business (18) TRANSACTIONAL OR RELATIONSHIP MES- (A) header information that is technically ac- transaction between the sender and the recipi- SAGE.—The term ‘‘transactional or relationship curate but includes an originating electronic ent (including a transaction involving the provi- message’’ means an electronic mail message the mail address the access to which for purposes of sion, free of charge, of information, goods, or primary purpose of which is— services requested by the recipient); and (A) to facilitate, complete, or confirm a com- initiating the message was obtained by means of (ii) the recipient was, at the time of such mercial transaction that the recipient has pre- false or fraudulent pretenses or representations transaction or thereafter in the first electronic viously agreed to enter into with the sender; shall be considered misleading; and mail message received from the sender after the (B) to provide warranty information, product (B) a ‘‘from’’ line that accurately identifies effective date of this Act, provided a clear and recall information, or safety or security informa- any person who initiated the message shall not conspicuous notice of an opportunity not to re- tion with respect to a commercial product or be considered false or misleading. ceive unsolicited commercial electronic mail mes- service used or purchased by the recipient; (2) PROHIBITION OF DECEPTIVE SUBJECT HEAD- sages from the sender and has not exercised (C) to provide— INGS.—It is unlawful for any person to initiate such opportunity. (i) notification concerning a change in the the transmission to a protected computer of a (B) MERE VISITATION.—A visit by a recipient terms or features of; commercial electronic mail message with a sub- to a publicly available website shall not be (ii) notification of a change in the recipient’s ject heading that such person knows would be treated as a transaction for purposes of sub- standing or status with respect to; or likely to mislead a recipient, acting reasonably paragraph (A)(i) if the recipient did not know- (iii) at regular periodic intervals, account bal- under the circumstances, about a material fact ingly submit the recipient’s electronic mail ad- ance information or other type of account state- regarding the contents or subject matter of the dress to the operator of the website. ment with respect to, message. (C) SEPARATE LINES OF BUSINESS OR DIVI- a subscription, membership, account, loan, or (3) INCLUSION OF RETURN ADDRESS OR COM- SIONS.—If a sender operates through separate comparable ongoing commercial relationship in- PARABLE MECHANISM IN COMMERCIAL ELEC- lines of business or divisions and holds itself out volving the ongoing purchase or use by the re- TRONIC MAIL.— to the recipient, both at the time of the trans- cipient of products or services offered by the (A) IN GENERAL.—It is unlawful for any per- action described in subparagraph (A)(i) and at sender; son to initiate the transmission to a protected the time the notice under subparagraph (A)(ii) (D) to provide information directly related to computer of a commercial electronic mail mes- was provided to the recipient, as that particular an employment relationship or related benefit sage that does not contain a functioning return line of business or division rather than as the plan in which the recipient is currently in- electronic mail address or other Internet-based entity of which such line of business or division volved, participating, or enrolled; or mechanism, clearly and conspicuously dis- is a part, then the line of business or the divi- (E) to deliver goods or services, including played, that— sion shall be treated as the sender for purposes product updates or upgrades, that the recipient (i) a recipient may use to submit, in a manner of this paragraph. is entitled to receive under the terms of a trans- specified in the message, a reply electronic mail

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message or other form of Internet-based commu- (A) IN GENERAL.—It is unlawful for any per- that violates subsection (a) shall not be held lia- nication requesting not to receive future com- son to initiate the transmission, to a protected ble for such violation. mercial electronic mail messages from that send- computer, of an unsolicited commercial elec- (2) EXCEPTION.—Liability for a violation of er at the electronic mail address where the mes- tronic mail message that is unlawful under sub- subsection (a) shall be imputed to a third party sage was received; and section (a), or to assist in the origination of that provides goods, products, property, or serv- (ii) remains capable of receiving such mes- such message through the provision or selection ices to another person that violates subsection sages or communications for no less than 30 of addresses to which the message will be trans- (a) if that third party— days after the transmission of the original mes- mitted, if such person knows, should have (A) owns, or has a greater than 50 percent sage. known, or consciously avoids knowing that— ownership or economic interest in, the trade or (B) MORE DETAILED OPTIONS POSSIBLE.—The (i) the electronic mail address of the recipient business of the person that violated subsection person initiating a commercial electronic mail was obtained using an automated means from (a); or message may comply with subparagraph (A)(i) an Internet website or proprietary online service (B)(i) has actual knowledge that goods, prod- by providing the recipient a list or menu from operated by another person, and such website or ucts, property, or services are promoted in a which the recipient may choose the specific online service included, at the time the address commercial electronic mail message the trans- types of commercial electronic mail messages the was obtained, a notice stating that the operator mission of which is in violation of section recipient wants to receive or does not want to of such website or online service will not give, 5(a)(1); and receive from the sender, if the list or menu in- sell, or otherwise transfer addresses maintained (ii) receives, or expects to receive, an economic cludes an option under which the recipient may by such website or online service to any other benefit from such promotion. choose not to receive any unsolicited commercial party for the purposes of initiating, or enabling (c) EXCLUSIVE ENFORCEMENT BY FTC.—Sub- electronic mail messages from the sender. others to initiate, unsolicited electronic mail sections (e) and (f) of section 7 do not apply to (C) TEMPORARY INABILITY TO RECEIVE MES- messages; or violations of this section. SAGES OR PROCESS REQUESTS.—A return elec- (ii) the electronic mail address of the recipient SEC. 7. ENFORCEMENT BY FEDERAL TRADE COM- tronic mail address or other mechanism does not was obtained using an automated means that MISSION. fail to satisfy the requirements of subparagraph generates possible electronic mail addresses by (a) VIOLATION IS UNFAIR OR DECEPTIVE ACT (A) if it is unexpectedly and temporarily unable combining names, letters, or numbers into nu- OR PRACTICE.—Except as provided in subsection to receive messages or process requests due to merous permutations. (b), this Act shall be enforced by the Commission technical or capacity problems, if the technical (B) DISCLAIMER.—Nothing in this paragraph as if the violation of this Act were an unfair or or capacity problems were not reasonably fore- creates an ownership or proprietary interest in deceptive act or practice proscribed under sec- seeable in light of the potential volume of re- such electronic mail addresses. tion 18(a)(1)(B) of the Federal Trade Commis- sponse messages or requests, and if the problem (2) AUTOMATED CREATION OF MULTIPLE ELEC- sion Act (15 U.S.C. 57a(a)(1)(B)). with receiving messages or processing requests is TRONIC MAIL ACCOUNTS.—It is unlawful for any (b) ENFORCEMENT BY CERTAIN OTHER AGEN- corrected within a reasonable time period. person to use scripts or other automated means CIES.—Compliance with this Act shall be en- (D) EXCEPTION.—The requirements of this to establish multiple electronic mail accounts or forced— paragraph shall not apply to a message that is online user accounts from which to transmit to (1) under section 8 of the Federal Deposit In- a transactional or relationship message. a protected computer, or enable another person surance Act (12 U.S.C. 1818), in the case of— (4) PROHIBITION OF TRANSMISSION OF UNSOLIC- to transmit to a protected computer, an unsolic- (A) national banks, and Federal branches and ITED COMMERCIAL ELECTRONIC MAIL AFTER OB- ited commercial electronic mail message that is Federal agencies of foreign banks, and any sub- JECTION.—If a recipient makes a request using a sidiaries of such entities (except brokers, deal- mechanism provided pursuant to paragraph (3) unlawful under subsection (a). ELAY OR RETRANSMISSION THROUGH UNAU- ers, persons providing insurance, investment not to receive some or any unsolicited commer- (3) R THORIZED ACCESS.—It is unlawful for any per- companies, and investment advisers), by the Of- cial electronic mail messages from such sender, son knowingly to relay or retransmit an unsolic- fice of the Comptroller of the Currency; then it is unlawful— ited commercial electronic mail message that is (B) member banks of the Federal Reserve Sys- (A) for the sender to initiate the transmission tem (other than national banks), branches and to the recipient, more than 10 business days unlawful under subsection (a) from a protected computer or computer network that such person agencies of foreign banks (other than Federal after the receipt of such request, of an unsolic- branches, Federal agencies, and insured State ited commercial electronic mail message that has accessed without authorization. (c) COMPLIANCE PROCEDURES.—An action for branches of foreign banks), commercial lending falls within the scope of the request; companies owned or controlled by foreign (B) for any person acting on behalf of the violation of paragraph (2), (3), (4), or (5) of sub- banks, organizations operating under section 25 sender to initiate the transmission to the recipi- section (a) may not proceed if the person or 25A of the Federal Reserve Act (12 U.S.C. 601 ent, more than 10 business days after the receipt against whom the action is brought dem- and 611), and bank holding companies and their of such request, of an unsolicited commercial onstrates that — nonbank subsidiaries or affiliates (except bro- electronic mail message that such person knows (1) the person has established and imple- kers, dealers, persons providing insurance, in- or consciously avoids knowing falls within the mented, with due care, reasonable practices and vestment companies, and investment advisers), scope of the request; procedures to effectively prevent violations of (C) for any person acting on behalf of the such paragraph; and by the Board; sender to assist in initiating the transmission to (2) the violation occurred despite good faith (C) banks insured by the Federal Deposit In- the recipient, through the provision or selection efforts to maintain compliance with such prac- surance Corporation (other than members of the of addresses to which the message will be sent, tices and procedures. Federal Reserve System) insured State branches of an unsolicited commercial electronic mail SEC. 6. BUSINESSES KNOWINGLY PROMOTED BY of foreign banks, and any subsidiaries of such message that the person knows, or consciously ELECTRONIC MAIL WITH FALSE OR entities (except brokers, dealers, persons pro- avoids knowing, would violate subparagraph MISLEADING TRANSMISSION INFOR- viding insurance, investment companies, and in- MATION. (A) or (B); or vestment advisers), by the Board of Directors of (D) for the sender, or any other person who (a) IN GENERAL.—It is unlawful for a person the Federal Deposit Insurance Corporation; and knows that the recipient has made such a re- to promote, or allow the promotion of, that per- (D) savings associations the deposits of which quest, to sell, lease, exchange, or otherwise son’s trade or business, or goods, products, are insured by the Federal Deposit Insurance transfer or release the electronic mail address of property, or services sold, offered for sale, leased Corporation, and any subsidiaries of such sav- the recipient (including through any trans- or offered for lease, or otherwise made available ings associations (except brokers, dealers, per- action or other transfer involving mailing lists through that trade or business, in a commercial sons providing insurance, investment compa- bearing the electronic mail address of the recipi- electronic mail message the transmission of nies, and investment advisers), by the Director ent) for any purpose other than compliance which is in violation of section 5(a)(1) if that of the Office of Thrift Supervision; with this Act or other provision of law. person— (2) under the Federal Credit Union Act (12 (5) INCLUSION OF IDENTIFIER, OPT-OUT, AND (1) knows, or should have known in ordinary U.S.C. 1751 et seq.) by the Board of the National PHYSICAL ADDRESS IN UNSOLICITED COMMERCIAL course of that person’s trade or business, that Credit Union Administration with respect to any ELECTRONIC MAIL.—It is unlawful for any per- the goods, products, property, or services sold, Federally insured credit union, and any subsidi- son to initiate the transmission of any unsolic- offered for sale, leased or offered for lease, or aries of such a credit union; ited commercial electronic mail message to a pro- otherwise made available through that trade or (3) under the Securities Exchange Act of 1934 tected computer unless the message provides— business were being promoted in such a message; (15 U.S.C. 78a et seq.) by the Securities and Ex- (A) clear and conspicuous identification that (2) received or expected to receive an economic change Commission with respect to any broker the message is an advertisement or solicitation; benefit from such promotion; and or dealer; (B) clear and conspicuous notice of the oppor- (3) took no reasonable action— (4) under the Investment Company Act of 1940 tunity under paragraph (3) to decline to receive (A) to prevent the transmission; or (15 U.S.C. 80a–1 et seq.) by the Securities and further unsolicited commercial electronic mail (B) to detect the transmission and report it to Exchange Commission with respect to invest- messages from the sender; and the Commission. ment companies; (C) a valid physical postal address of the (b) LIMITED ENFORCEMENT AGAINST THIRD (5) under the Investment Advisers Act of 1940 sender. PARTIES.— (15 U.S.C. 80b–1 et seq.) by the Securities and (b) AGGRAVATED VIOLATIONS RELATING TO UN- (1) IN GENERAL.—Except as provided in para- Exchange Commission with respect to invest- SOLICITED COMMERCIAL ELECTRONIC MAIL.— graph (2), a person (hereinafter referred to as ment advisers registered under that Act; (1) ADDRESS HARVESTING AND DICTIONARY AT- the ‘‘third party’’) that provides goods, prod- (6) under State insurance law in the case of TACKS.— ucts, property, or services to another person any person engaged in providing insurance, by

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the applicable State insurance authority of the (C) AGGRAVATED DAMAGES.—The court may mitted or attempted to be transmitted over the State in which the person is domiciled, subject increase a damage award to an amount equal to facilities of the provider of Internet access serv- to section 104 of the Gramm-Bliley-Leach Act (15 not more than three times the amount otherwise ice, or that is transmitted or attempted to be U.S.C. 6701); available under this paragraph if— transmitted to an electronic mail address ob- (7) under part A of subtitle VII of title 49, (i) the court determines that the defendant tained from the provider of Internet access serv- United States Code, by the Secretary of Trans- committed the violation willfully and know- ice in violation of section 5(b)(1)(A)(i), treated portation with respect to any air carrier or for- ingly; or as a separate violation) by— eign air carrier subject to that part; (ii) the defendant’s unlawful activity included (i) up to $100, in the case of a violation of sec- (8) under the Packers and Stockyards Act, one or more of the aggravating violations set tion 5(a)(1); or 1921 (7 U.S.C. 181 et seq.) (except as provided in forth in section 5(b). (ii) $25, in the case of any other violation of section 406 of that Act (7 U.S.C. 226, 227)), by (3) ATTORNEY FEES.—In the case of any suc- section 5. the Secretary of Agriculture with respect to any cessful action under paragraph (1), the State (B) LIMITATION.—For any violation of section activities subject to that Act; shall be awarded the costs of the action and 5 (other than section 5(a)(1)), the amount deter- (9) under the Farm Credit Act of 1971 (12 reasonable attorney fees as determined by the mined under subparagraph (A) may not exceed U.S.C. 2001 et seq.) by the Farm Credit Adminis- court. $1,000,000. tration with respect to any Federal land bank, (4) RIGHTS OF FEDERAL REGULATORS.—The (C) AGGRAVATED DAMAGES.—The court may Federal land bank association, Federal inter- State shall serve prior written notice of any ac- increase a damage award to an amount equal to mediate credit bank, or production credit asso- tion under paragraph (1) upon the Federal not more than three times the amount otherwise ciation; and Trade Commission or the appropriate Federal available under this paragraph if— (10) under the Communications Act of 1934 (47 regulator determined under subsection (b) and (i) the court determines that the defendant U.S.C. 151 et seq.) by the Federal Communica- provide the Commission or appropriate Federal committed the violation willfully and know- tions Commission with respect to any person regulator with a copy of its complaint, except in ingly; or subject to the provisions of that Act. any case in which such prior notice is not fea- (ii) the defendant’s unlawful activity included (c) EXERCISE OF CERTAIN POWERS.—For the sible, in which case the State shall serve such one or more of the aggravated violations set purpose of the exercise by any agency referred notice immediately upon instituting such action. forth in section 5(b). to in subsection (b) of its powers under any Act The Federal Trade Commission or appropriate (3) ATTORNEY FEES.—In any action brought referred to in that subsection, a violation of this Federal regulator shall have the right— pursuant to paragraph (1), the court may, in its Act is deemed to be a violation of a Federal (A) to intervene in the action; discretion, require an undertaking for the pay- Trade Commission trade regulation rule. In ad- (B) upon so intervening, to be heard on all ment of the costs of such action, and assess rea- dition to its powers under any provision of law matters arising therein; sonable costs, including reasonable attorneys’ specifically referred to in subsection (b), each of (C) to remove the action to the appropriate fees, against any party. the agencies referred to in that subsection may United States district court; and SEC. 8. EFFECT ON OTHER LAWS. (D) to file petitions for appeal. exercise, for the purpose of enforcing compliance (a) FEDERAL LAW.— ONSTRUCTION.—For purposes of bringing with any requirement imposed under this Act, (5) C (1) Nothing in this Act shall be construed to any civil action under paragraph (1), nothing in any other authority conferred on it by law. impair the enforcement of section 223 or 231 of this Act shall be construed to prevent an attor- (d) ACTIONS BY THE COMMISSION.—The Com- the Communications Act of 1934 (47 U.S.C. 223 ney general of a State from exercising the pow- mission shall prevent any person from violating or 231, respectively), chapter 71 (relating to ob- ers conferred on the attorney general by the this Act in the same manner, by the same scenity) or 110 (relating to sexual exploitation of laws of that State to— means, and with the same jurisdiction, powers, children) of title 18, United States Code, or any (A) conduct investigations; and duties as though all applicable terms and other Federal criminal statute. (B) administer oaths or affirmations; or provisions of the Federal Trade Commission Act (2) Nothing in this Act shall be construed to (C) compel the attendance of witnesses or the (15 U.S.C. 41 et seq.) were incorporated into and affect in any way the Commission’s authority to production of documentary and other evidence. made a part of this Act. Any entity that violates bring enforcement actions under FTC Act for (6) VENUE; SERVICE OF PROCESS.— any provision of that subtitle is subject to the materially false or deceptive representations or (A) VENUE.—Any action brought under para- penalties and entitled to the privileges and im- unfair practices in commercial electronic mail graph (1) may be brought in the district court of munities provided in the Federal Trade Commis- messages. sion Act in the same manner, by the same the United States that meets applicable require- (b) STATE LAW.— ments relating to venue under section 1391 of means, and with the same jurisdiction, power, (1) IN GENERAL.—This Act supersedes any title 28, United States Code. and duties as though all applicable terms and statute, regulation, or rule of a State or political (B) SERVICE OF PROCESS.—In an action provisions of the Federal Trade Commission Act subdivision of a State that expressly regulates brought under paragraph (1), process may be were incorporated into and made a part of that the use of electronic mail to send commercial subtitle. served in any district in which the defendant— (i) is an inhabitant; or messages, except for any such statute, regula- (e) ENFORCEMENT BY STATES.— tion, or rule that prohibits falsity or deception (1) CIVIL ACTION.—In any case in which the (ii) maintains a physical place of business. in any portion of a commercial electronic mail attorney general of a State has reason to believe (7) LIMITATION ON STATE ACTION WHILE FED- message or information attached thereto. that an interest of the residents of that State ERAL ACTION IS PENDING.—If the Commission or (2) STATE LAW NOT SPECIFIC TO ELECTRONIC has been or is threatened or adversely affected other appropriate Federal agency under sub- MAIL.—This Act shall not be construed to pre- by any person engaging in a practice that vio- section (b) has instituted a civil action or an ad- empt the applicability of State laws that are not lates section 5 of this Act, the State, as parens ministrative action for violation of this Act, no specific to electronic mail, including State tres- patriae, may bring a civil action on behalf of State attorney general may bring an action pass, contract, or tort law, and State laws relat- the residents of the State in a district court of under this subsection during the pendency of ing to acts of fraud or computer crime. the United States of appropriate jurisdiction or that action against any defendant named in the (c) NO EFFECT ON POLICIES OF PROVIDERS OF in any other court of competent jurisdiction— complaint of the Commission or the other agen- INTERNET ACCESS SERVICE.—Nothing in this Act (A) to enjoin further violation of section 5 of cy for any violation of this Act alleged in the shall be construed to have any effect on the this Act by the defendant; or complaint. lawfulness or unlawfulness, under any other (B) to obtain damages on behalf of residents (f) ACTION BY PROVIDER OF INTERNET ACCESS provision of law, of the adoption, implementa- of the State, in an amount equal to the greater SERVICE.— tion, or enforcement by a provider of Internet of— (1) ACTION AUTHORIZED.—A provider of Inter- (i) the actual monetary loss suffered by such net access service adversely affected by a viola- access service of a policy of declining to trans- residents; or tion of section 5 may bring a civil action in any mit, route, relay, handle, or store certain types (ii) the amount determined under paragraph district court of the United States with jurisdic- of electronic mail messages. (2). tion over the defendant, or in any other court of SEC. 9. RECOMMENDATIONS CONCERNING DO- (2) STATUTORY DAMAGES.— competent jurisdiction, to— NOT-EMAIL REGISTRY. (A) IN GENERAL.—For purposes of paragraph (A) enjoin further violation by the defendant; Not later than 6 months after the Federal (1)(B)(ii), the amount determined under this or Trade Commission has completed implementa- paragraph is the amount calculated by multi- (B) recover damages in an amount equal to tion of its national telemarketing Do-Not-Call plying the number of violations (with each sepa- the greater of— list, the Commission shall transmit to the Con- rately addressed unlawful message received by (i) actual monetary loss incurred by the pro- gress recommendations for a workable plan and or addressed to such residents treated as a sepa- vider of Internet access service as a result of timetable for creating a nationwide marketing rate violation) by— such violation; or Do-Not-Email list modeled on the Do-Not-Call (i) up to $100, in the case of a violation of sec- (ii) the amount determined under paragraph list, or an explanation of any practical, tech- tion 5(a)(1); or (2). nical, security, or privacy-related issues that (ii) $25, in the case of any other violation of (2) STATUTORY DAMAGES.— cause the Commission to recommend against cre- section 5. (A) IN GENERAL.—For purposes of paragraph ating such a list. (B) LIMITATION.—For any violation of section (1)(B)(ii), the amount determined under this SEC. 10. STUDY OF EFFECTS OF UNSOLICITED 5 (other than section 5(a)(1)), the amount deter- paragraph is the amount calculated by multi- COMMERCIAL ELECTRONIC MAIL. mined under subparagraph (A) may not exceed plying the number of violations (with each sepa- (a) IN GENERAL.—Not later than 24 months $1,000,000. rately addressed unlawful message that is trans- after the date of the enactment of this Act, the

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00034 Fmt 0637 Sfmt 6333 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13019 Commission, in consultation with the Depart- I yield the floor. this plan, not earlier than 9 months, ment of Justice and other appropriate agencies, The PRESIDING OFFICER. Without should be implemented. I hope that is shall submit a report to the Congress that pro- objection, it is so ordered. The Senator satisfactory. vides a detailed analysis of the effectiveness and from South Carolina. Again, I thank Senator SCHUMER. If enforcement of the provisions of this Act and Mr. HOLLINGS. Madam President, I the need (if any) for the Congress to modify we can implement a Do Not Spam pro- such provisions. thank our distinguished chairman, vision which is clearly modeled after (b) REQUIRED ANALYSIS.—The Commission Senator MCCAIN, for getting this bill to the Do Not Call list, I think it will shall include in the report required by sub- the floor. Actually, we started 4 years have enormous benefit to all Ameri- section (a)— ago under the leadership of Senator cans. (1) an analysis of the extent to which techno- WYDEN. In the last Congress, we had a I will make a few comments about logical and marketplace developments, including bill reported from the committee but the bill and then yield to my col- changes in the nature of the devices through we could not get it up. We have learned leagues and to Senator SCHUMER for which consumers access their electronic mail messages, may affect the practicality and effec- lessons now from the Do Not Call ef- their remarks. tiveness of the provisions of this Act; fort, where we had to forgo committee If passed into law by Congress and (2) analysis and recommendations concerning and floor procedures to finally get it signed by the President, the CAN– how to address unsolicited commercial electronic up. In this sense, I thank Senator SPAM Act would be the first Federal mail that originates in or is transmitted through MCCAIN for getting this bill to the floor law to regulate senders of commercial or to facilities or computers in other nations, in- for its consideration, as well as Sen- e-mail. cluding initiatives or policy positions that the ator WYDEN and Senator BURNS for The bill would prohibit senders of Federal government could pursue through inter- commercial e-mail from falsifying or national negotiations, fora, organizations, or their leadership, and particularly my institutions; and colleague from New York, Senator disguising the following: their identity; (3) analysis and recommendations concerning SCHUMER. He has a very important the return address or routing informa- options for protecting consumers, including chil- amendment. He has been driving for- tion of an e-mail; and the subject mat- dren, from the receipt and viewing of unsolicited ward for the expedition of this par- ters of their messages. Violations of commercial electronic mail that is obscene or ticular procedure, where the Federal these provisions would result in both pornographic. Trade Commission is given some 6 criminal and civil penalties. SEC. 11 SEPARABILITY. months, although I think it can be The bill would also require senders of If any provision of this Act or the application done in a much shorter period. commercial e-mail to give their recipi- thereof to any person or circumstance is held in- ents an opportunity to opt out of re- valid, the remainder of this Act and the applica- We will be riding herd on the Federal tion of such provision to other persons or cir- Trade Commission to see if we can con- ceiving future messages and to honor cumstances shall not be affected. geal that time, get that list ready, and those requests. Except for e-mail that SEC. 12. EFFECTIVE DATE. report it to the committee so we can is transactional in nature, such as pur- The provisions of this Act shall take effect 120 act. Other than that, if there is a need chase receipts or airlines ticket con- days after the date of the enactment of this Act. for a Do Not Call list, there certainly is firmations, every commercial e-mail The committee amendment in the a need for a Do Not Spam list. sent over the Internet to American nature of a substitute was agreed to. I again thank Senator BURNS, Sen- consumers would be required to provide Mr. MCCAIN. Madam President, this ator DAYTON, and Senator SCHUMER for this valid, working opt-out or bill was introduced in April by Sen- their particular amendment and efforts unsubscribe mechanism. These rules ators BURNS and WYDEN, and the sub- on this case, and particularly my col- represent current industry best prac- stitute version was approved by the league, Senator WYDEN, for his leader- tices regarding commercial e-mail mes- Senate Commerce Committee on June ship over the past 4 years. It is under sages. 19. his drive that we have gotten it here. For unsolicited commercial e-mail, Also, we have had intensive negotia- The PRESIDING OFFICER. The Sen- however, the bill would require more tions with the Senator from New York, ator from Arizona. disclosures from the sender of the mes- Mr. SCHUMER, who is now on the floor, Mr. MCCAIN. Madam President, I sage, such as providing recipients with concerning a ‘‘do not spam’’ aspect of will mention Senator SCHUMER’s instructions on how to operate the opt- this legislation. amendment which we have agreed to, out mechanism, a valid physical ad- First of all, I wish to thank, of which as soon as opening statements dress of the sender, and a clear notice course, Senator HOLLINGS, the ranking are completed we will propose, and I in the body of the message that it is an member of the committee, for all of his believe it will be without objection. It advertisement or solicitation. effort, but I particularly acknowledge does do several things. I will mention In an amendment I offered in com- my two colleagues who are on the it now because Senator SCHUMER has mittee, this bill would also prohibit floor, Senators BURNS and WYDEN. worked so hard on this amendment. businesses from knowingly promoting Around here, we have a tendency to This amendment says that not later or permitting the promotion of their take credit for a lot of things that may than 6 months after the date of enact- business through e-mail transmitted not necessarily be true, although I am ment of the act, the Commission will with false or misleading identity or not sure that is true in my case, but transmit to the Senate Committee on routing information. Those that ben- the fact is, Senator BURNS and Senator Commerce, Science, and Transpor- efit the most from sending fraudulent WYDEN have worked for, I believe, 3 tation, and to the House of Representa- spam, the companies advertised in years on this issue. It is complex. It is tives Committee on Energy and Com- those messages, should be held ac- difficult. It has a lot to do with tech- merce a report that sets forth a plan countable, and they will. nology. The issues are very technical and timetable for establishing a na- As my colleagues, Senators BURNS in nature in some respects. They have tionwide market Do Not E-mail Reg- and WYDEN, will explain in more detail, responded to what I think is a major istry. It includes an explanation of any the bill would also target many of the concern of every young American and practical, technical, security, privacy, insidious mechanisms used by today’s every American who uses a computer, enforceability, or other concerns the spammers, including e-mail harvesting, and that is this issue of unwanted Commission has regarding such a reg- dictionary attacks, and the hijacking spam. istry and includes an explanation of of consumer e-mail accounts in order I again tell my colleagues that with- how the registry would be applied with to send spam. out the efforts Senator BURNS and Sen- respect to children with e-mail ac- In addition to setting strict rules of ator WYDEN have made on this bill, we counts. the road for senders of commercial e- would not be here today, and I am very Finally, it says the Commission may mail, the CAN–SPAM Act would pro- grateful for their participation. establish and implement the plan, but vide tough criminal and civil penalties I believe the ranking member, Sen- not earlier than 9 months after the for offenders, and a multilayered ap- ator HOLLINGS, wishes to make an date of enactment of this act. proach to enforcement. This bill pro- opening comment, and then I would I say to my friend, Senator SCHUMER, vides for enforcement actions by the like to be recognized after Senator that I will do everything in my power FTC, State attorneys general, Internet HOLLINGS. to make sure that this is enacted and service providers, and if Senator

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00035 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13020 CONGRESSIONAL RECORD — SENATE October 22, 2003 HATCH’s proposed criminal amendment testified before our committee. I men- A 2001 European Union study found is passed which I assume it will, the tioned in passing that it took him ap- that spam cost Internet subscribers Department of Justice. proximately 4 hours to break through a wouldwide $9.4 billion each year, and I strongly support this bill and I urge filter that had recently been in place, USA Today reported in April that re- my colleagues to join me, Senators and he immediately began his work search organizations estimate fighting BURNS, WYDEN, HOLLINGS, HATCH, and again of spamming millions of people spam adds an average of $2 per month others, in passing this bill as a first every day. He was a man who was to an individual’s Internet bill. step toward giving consumers back proud of his work, by the way. He was Costs to businesses are also on the some control of their e-mail in-boxes. a very interesting witness and, I might rise. Ferris Research currently esti- I would like to make a few general say in an otherwise dull hearing, a very mates that costs to U.S. businesses observations about this issue that I entertaining one. from spam in lost productivity, net- have come to learn over the years that We must be mindful that in our quest work system upgrades, unrecoverable the Commerce Committee has exam- to stop spam, we may impose e-mail re- data, and increased personnel costs, ined it. strictions that go too far and actually combined will top $10 billion in 2003. Of According to the Pew Internet & prohibit or effectively prevent e-mail that total, Ferris estimates that em- American Life Project, approximately that customers want to receive and ployee productivity losses from sifting 140 million Americans, nearly half of that legitimate businesses depend on to through and deleting spam account for all U.S. citizens and 63 percent of full- service their customers. nearly 40 percent of that—or $4 billion time or part-time workers regularly I believe this bill strikes the proper alone. use e-mail. E-mail messaging has fun- balance, thanks to the efforts of Sen- There are other costs to our society damentally changed the way we com- ator WYDEN, Senator BURNS, Senator besides monetary costs. All of us are municate with family, friends, cowork- SCHUMER, and others, by carefully tar- deeply concerned about the risks to our ers and business partners; the way con- geting the spam that consumers reject children who use e-mail and may be sumers communicate with businesses while preserving the fundamental bene- victimized by the nearly 20 percent of that provide goods and services; and fits of e-mail to all Americans. spam that contains pornographic mate- Regardless of whether we call all so- the way that businesses may legiti- rial, including graphic sexual images. mately market products to consumers. licited commercial e-mail spam, one Parents encourage their children to The growing affliction of spam, how- fact is clear: Spam is rapidly on the use the Internet to play and do school- rise. Its sheer volume is significantly ever, may threaten all of this. work, and to use e-mail to reach dis- affecting how consumers and busi- We must keep in mind the tremen- tant relatives. Yet, parents today nesses use e-mail. Less than 2 years dous promise that the Internet and spend more and more of their time wor- ago, spam made up only 8 percent of all more specifically e-mail, holds for con- rying that their children may open up e-mail. In a hearing before the Com- sumers and businesses alike. We must an e-mail, disguised to look like it’s merce Committee in May, my col- recognize that the word ‘‘spam’’ means from a friend or loved one, only to find leagues and I learned that spam ac- different things to different people. pornography. counted for more than 45 percent of all The Federal Trade Commission de- This greatly concerns me as a parent, global e-mail traffic and, worse, it fines spam generally as ‘‘unsolicited as a legislator and as an American cit- would probably exceed the 50 percent commercial e-mail.’’ and some Ameri- izen. First and foremost, parents mark by year’s end. cans do not want any of it. Other con- In the committee’s hearing, America should not have to think twice before sumers like to receive unsolicited of- Online—our Nation’s largest Internet encouraging their children to use the fers by e-mail; to these consumers, service provider with roughly 30 mil- computer at home. spam means only the unwanted fraudu- lion subscribers—testified that it In addition to pornography, the FTC lent or pornographic e-mail that also blocks 80 percent of all its inbound e- also tells us that two-thirds of all spam floods their inbox. mail—nearly 2.4 billion out of 3 billion contains deceptive information, much Many American businesses view e- messages it receives each day. Not sur- of it peddling get-rich-quick schemes, mail over the Internet as a new me- prisingly, this number of blocked mes- dubious financial or healthcare offers, dium through which to market or com- sages was nearly 2.5 times larger than and questionable products and services. municate more efficiently with con- the 1 billion messages AOL blocked per Spam is a serious and rapidly grow- sumers. To them, this type of commu- day only 2 months prior to that hear- ing problem that the Senate must act nication is not spam, but commercial ing, and nearly 5 times larger than the on, but we must also be mindful of the speech protected by the first amend- 500 million messages it blocked per day complexity of the problem we face. ment. The Direct Marketing Associa- in December 2002. While I agree with my colleagues in the tion reports that 37 percent of con- It’s not just AOL. Our Nation’s sec- Senate who believe that passing legis- sumers it surveyed have bought some- ond and third largest e-mail providers, lation is a necessary step, I also believe thing as a result of receiving unsolic- Microsoft and Earthlink, have also re- that legislation alone will not solve the ited e-mail from marketers. ported a tremendous surge in spam. problem of spam. Internet service provider are the Microsoft, the provider of MSN mail Spammers today disregard our laws businesses caught in the middle, forced and the free Hotmail service, reported and are winning the technological arms every day to draw distinctions between in May that both services combined race with Internet service providers what they perceive as legitimate e- block up to 2.4 billion spam messages who try to block the spam they send. mail and what is spam. In this environ- each day. Earthlink, the third largest The New York Times recently reported ment, the risk of ISPs blocking legiti- ISP in the United States, also reported just one example of how unscrupulous mate mail that consumers depend on, a 500 percent increase in its inbound spammers were using technology to such as purchase receipts or healthcare spam over the past 18 months. stay one step ahead of the law—in this communications, is as much a concern I realize that these numbers may not instance, by highjacking a local Vir- as the prospect of failing to block as mean as much to those who do not fol- ginia school’s computers to send out much spam as possible in the face of low e-commerce closely, so let me put untraceable spam. consumer demand. Often, the filters it in perspective to what nearly all I repeat: A local Virginia schools used by ISPs fail to meet their sub- Americans are familiar with—junk computers. The same day, in the Com- scribers’ expectations on both ac- mail. The USA Today recently reported merce Committee’s hearing, Mr. Ron- counts, failing to block the spam and that more than 2 trillion spam mes- ald Scelson—who is popularly known sometimes blocking legitimate e-mail sages are expected to be sent over the by his moniker ‘‘The Cajun from coming through, leaving con- Internet this year, or 100 times the Spammer’’—testified that it took him sumers, legitimate businesses and the amount of direct mail advertising only 12 hours to ‘‘crack’’ the latest ISPs themselves frustrated. pieces delivered by U.S. mail last year. technology filter supplied by the com- I think Senator BURNS and Senator Managing this influx adds real mone- pany of another witness at the table. WYDEN remember, as well as I do, a tary costs to consumers and busi- Not only did he hack into their filter professional spammer who came and nesses. and figure out how to defeat it, the

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00036 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13021 Cajun Spammer had distributed the with deliberately falsified identity and transmission information should be held as keys to unlocking the filter to all of routing information in order to get accountable as those who click on the send his fellow spammers so that they too past the ISP’s spam filters. These busi- button. By taking away the financial incen- could send spam past the filters to the nesses often escape liability because tive to send spam, the potential interest of a responsible company to utilize such a decep- ISP’s subscribers. enforcement efforts are too often fo- tive form of marketing to reach customers Keeping up with resourceful cused on catching the spammer rather now or in the future would evaporate. spammers’ latest technology is not the than the unscrupulous businesses that As you finalize the language of your only challenge. Jurisdictional barriers hire them in the first place. amendment and proceed to consideration on also complicate enforcement, and as we Section 6, however, would make it the Senate floor prior to markup, we look heard in our hearing, nearly 90 percent easier for the FTC to enforce the law forward to working with you and your staff of all spam is untraceable and may be against businesses knowingly on ways to further pursue spammers. BSA passing through mail servers outside of complicit in the use of spam to pro- believes that a combination of legislation, the United States. mote their businesses with deliberately technology, and enforcement is the right ap- I mention these things only to em- falsified routing information. I urge proach. A copy of our principles regarding spam is attached for your review. phasize the complexity of this problem my colleagues to support this principle of holding businesses that benefit from Please contact me or Joe Keeley in BSA’s and to remind my colleagues that the office at (202) 872–5500 should you have any odds of us defeating spam by legisla- spam messages accountable for the questions about the BSA position on spam. tion alone are extremely low. The fact acts of those they knowingly hire to Sincerely, that there may be no silver bullet to fraudulently send spam to consumers ROBERT HOLLEYMAN, the problem of spam, however, does not on their behalf. President and CEO. mean that we should stand idly by and I ask unanimous consent to have do nothing at all about it. printed in the RECORD a number of let- DEAR SENATOR MCCAIN: We would like to The CAN–SPAM Act is a good first ters I have received in support of this thank you for scheduling this markup of S. step, and one we should take today. provision. 877, the Burns-Wyden CANSPAM Act. Sen- It is clear this Congress must act, There being no objection, the mate- ators Burns and Wyden have been true lead- but we should make no mistake—un- rial was ordered to be printed in the ers in the effort to address the spam problem RECORD, as follows: working with industry and public interest less we can effectively enforce the laws groups to refine their legislation over the CONSUMERS UNION, we write, those laws will have little last two sessions. June 18, 2003. meaning or deterrent effect on any CDT is conducting a consultative study on would-be purveyor of spam. Subject: McCain FTC Enforcement Amend- ment to Burns-Wyden Spam bill. the most effective ways to prevent spam At the Commerce Committee’s exec- while still protecting privacy and free ex- utive session where we considered this U.S. SENATE, pression. At this time, we have not endorsed Washington, DC. any specific bill. We look forward to con- bill, I introduced an amendment that DEAR SENATOR: tinue working with you and Senators Burns would empower the FTC to take action Consumers Union urges you to support the against businesses that financially ben- McCain Amendment to the Burns-Wyden and Wyden on this important issue as the legislative process unfolds. efit from the sending of spam with de- CAN–SPAM bill. This amendment is an im- portant improvement on the underlying bill. In this context, we have reviewed your liberately falisifed sender information. amendment to extend FTC enforcement au- This amendment passed unanimously The amendment would provide additional FTC enforcement authority to help con- thority to businesses knowingly promoted and I would like to take a moment here sumers curb spam. With this amendment, through electronic mail with false or mis- to briefly comment on it because it the bill would hold businesses that use spam leading transmission. We believe that this goes to the heart of this enforcement to advertise their products and services ac- amendment will help the FTC take action matter. countable for actions by spammers who fal- against wrongdoers. CDT supports its inclu- In two hearings before the Commerce sify information regarding the origins of the sion in this bill and into the larger discus- Committee this past spring, the chair- e-mail in order to evade spam filters. sion on preventing unsolicited commercial man and Commissioners of the FTC However, we still have significant reserva- email. We hope that this provision—in con- tions about the Burns-Wyden bill, because cert with effective baseline federal legisla- testified to the Commission’s tremen- we believe that consumers will not see a sig- tion, new anti-spam technologies and indus- dous difficulty in tracking and finding nificant reduction in spam without a guar- try efforts—will help to begin to turn the ris- spammers who send out spam with antee that spam is disallowed unless the con- ing tide of unwanted email. fraudulent and often untraceable trans- sumer opts to receive such materials (an Sincerely, mission information. ‘‘opt-in’’), as well as an appropriate legal ARI SCHWARTZ, The chairman advised us, however, remedy for consumers who have been harmed Associate Director, that their investigations are usually by spammers that circumvent the anti-spam Center for Democracy and Technology. most effective when ‘‘following the safeguards established in this legislation (a private right of action). money’’ to track down spammers. By JUNE 18, 2003. Consumers Union hopes the Committee Hon. JOHN MCCAIN, this, they mean following the Web link will address these substantial consumer con- Chairman, Commerce, Science and Transpor- or phone number in the spam message cerns before bringing this legislation to the tation Committee, U.S. Senate, Washington, that consumers follow with their Senate floor. DC. Sincerely, money to purchase the product or serv- DEAR MR. CHAIRMAN: I am writing on be- HRIS MURRAY, ice promoted in the spam. From there, C half of the U.S. Chamber of Commerce, the the FTC attempts to prove a connec- Legislative Counsel. world’s largest business federation, rep- resenting more than three million businesses tion between the business and a BUSINESS SOFTWARE ALLIANCE, of every size, sector and region, regarding S. spammer who sent it out on their be- Washington, DC, June 18, 2003. 877, the CAN SPAM Act. half. In essence, they spend significant Hon. JOHN MCCAIN, time and effort attempting to follow Chairman, Senate Commerce Committee, Spam has become more than a nuisance— it has become so overwhelming that all as- the money trail all the way back to the U.S. Senate, Washington, DC. DEAR CHAIRMAN MCCAIN: On behalf of the pects of the business community, from ISPs spammer—if they can find them. who have to invest millions of dollars in As an alternative to the inefficient member companies of the Business Software Alliance, I write in support of your efforts to bandwidth, to retailers who have seen their and often slow moving process, the amend and report favorably S. 877 to address opt-in emails deleted along with the spam amendment I proposed which is now the ability of the FTC to pursue those who and pornography, and everyone in between, section 6 of the bill was designed to use third parties to send unsolicited com- would like to see this problem eradicated. help the FTC enforce the law against mercial email, spam, on their behalf. As the We believe that stopping spam is going to those businesses at the front end of the Committee is aware, spam continues to grow take a multi-pronged effort, including tech- money trail that are promoted in the at an exponential rate, clogging inboxes, di- nology, increased FTC enforcement, and en- hanced ability of ISPs to go after the bad ac- spam consumers receive. They need to verting network resources, damaging reputa- tions and brands of responsible companies, tors. go further, and here is why. and discouraging the use of email as a com- Therefore, I would like to commend Sen- Many unremarkable businesses em- munications tool. ators Burns and Wyden for their relentless ploy sophisticated spammers to send e- Those who deliberately engage third par- pursuit of legislation to fill in a key piece of mail to consumers in large volumes ties to send spam with false or misleading the puzzle regarding this issue. The CAN

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00037 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13022 CONGRESSIONAL RECORD — SENATE October 22, 2003 SPAM Act has been improved significantly, line retailers, technology companies to come along and get together, talk although it still requires some modifica- and the U.S. Chamber of Commerce. about the technologies it takes to keep tions, mostly related to liability issues that I urge my colleagues to join me in re- out unwanted mail or some organiza- could potentially subject even legitimate sponding to the demands of millions of companies who communicate with their cus- tion or technology that ferrets out the tomers through opt-in communications to American consumers in doing all that bad people but allows some in the in- potential frivolous, but expensive, liability. we can to try to stop spam. I urge them dustry to be able to send some mes- I would also like to specifically commend to support passage of the CAN–SPAM sages of what would be considered Chairman McCain, and to offer our strong Act. spam today. support for his amendment. There are two My comments were a little lengthy, This especially affects people in rural principal issues that the Committee’s edu- and I apologize. This is a very serious areas. In Montana we have people using cational hearing on spam helped to clarify: and important and complex issue, as I the extent to which businesses, whose prod- the Internet who have to incur long- ucts are promoted by the deluge of spam, are stated at the beginning of my remarks. distance charges to their ISPs. Servers in realty responsible for the amount of spam That is why my two colleagues have all over the country have difficulty in that permeates the Internet; and the dif- spent 4 years working on this issue. I blocking spam. They are saying the ficulty of finding actual ‘‘spammers.’’ The think they would be the first to agree systems are jammed up. The CAN– Chairman’s amendment addresses both of that this may not stop spam. SPAM bill empowers consumers and these concerns, and does so in a way that There are some very smart people grants additional enforcement author- specifically targets those underlying prob- out there who will do everything they ity to the Federal Trade Commission lems. In particular, the amendment empow- ers the FTC, who has the expertise to find can for avoidance, including this issue to take action against spammers and and stop the promoted businesses, to go after I mention of organizations outside the allows State attorneys general to take those who actually benefit from increased United States. For us to do nothing action if they see fit. volume of spam—the ‘‘companies’’ that hire would be a great disservice to millions The bill also provides additional spammers to sell their products and attract of Americans, including the young tools to end this online harassment, al- consumers to their web sites. ones, the majority of whom in America lowing users to remove themselves Therefore, the Chamber urges the Com- are regular users of computers. from mass email lists and imposing mittee to approve this important component I thank my colleagues, Senator of the fight against spam, including the steep fines up to $3 million on McCain amendment, and we look forward to WYDEN and Senator BURNS. For the spammers. In cases where outright de- working with the Committee to further im- benefit of my colleagues, we have three ception is involved, penalties will be prove the legislation as it moves to the floor. or four amendments. Maybe one or two unlimited. That is a big point. Sincerely, might require a vote. I hope we can dis- The chairman also brings up another R. BRUCE JOSTEN. pose of this legislation in a fairly short point: unwanted and pornographic period of time. mail. In my State of Montana, some- YAHOO!, I yield the floor. thing else is emerging regarding pro- June 18, 2003. The PRESIDING OFFICER. The Sen- tection of our children: sexual preda- Hon. JOHN MCCAIN, Chairman, Senate Commerce, Science and ator from Montana. tors. This has to do with how they Transportation Committee, Senate Russell Mr. BURNS. Madam President, I work in our homes with our children. Building, Washington, DC. thank Senator MCCAIN, the chairman There are a couple of amendments we DEAR CHAIRMAN MCCAIN: Yahoo! supports of the full Committee on Commerce, will deal with as they come up. your amendment to S. 877, the CAN Spam for his diligence and insight on this, I have a constituent in Montana. If Act of 2003, to hold the owners of websites and the ranking member, Senator HOL- you do not think it does not cost com- who knowingly employ spammers using LINGS. He laid out the facts. I will not panies money, Jeff Smith, who built a fraudulent means to deliver their advertise- rehash everything he said because his ments. cutting-edge fiber hotel in Missoula, The hearing on spam held by your com- numbers are right. MT, says unwanted spam costs his mittee revealed significant changes in the Also I thank my good friend from Or- business about $300,000 a year. His com- marketplace. The volume of spam has grown egon, Senator WYDEN. We have worked pany is worth $2.5 million, so his costs in exponential terms, and it is extremely dif- on this bill for 4 years. It is not an easy are real. ficult to track down spammers who use fraud piece of legislation to put together. Not only do we pass legislation, but I to conceal themselves. Your amendment The simplest piece of legislation we will participate in an I-SAFE con- takes a new approach to finding these ever put together, I say to Senator spammers—getting at their revenue source. ference in Billings on Friday at Castle WYDEN, was the E 9–1–1 which is prob- When a website owner know the person ad- Rock School on how to deal with this vertising its website is using fraud to get its ably the best public safety piece of leg- unwanted and pornographic mail that message out, it must be held responsible. islation we have ever passed. It sound- comes into our homes on the Internet. The FTC will be empowered to pursue those ed like a no-brainer, and it only took 2 I thank my chairman, Senator who allow such techniques to be used. This years, so this must have been really MCCAIN, for his patience. I have worn has the potential to put fraudulent complicated. I thank you for your ef- him out a couple of times. He yells spammers out of business, as their customers forts. It was a pleasure working with back, though, pretty well. refuse to work with them. This, in turn, has you. I thank my friend from Oregon, too, potential to dramatically affect the volume Also, two Senators not on the floor of spam crossing the networks of email serv- who has worked very hard on this ice providers. We are encouraged by this cre- who have not been mentioned are Sen- issue. ative approach to get at spammers from a ator HATCH and Senator LEAHY. We ap- I yield the floor. new direction. preciate their cooperation incor- The PRESIDING OFFICER. The Sen- We also commend you for being absolutely porating a significantly expanded ator from Oregon. true to your word to bring before your com- criminal package in this law. Mr. WYDEN. Madam President, king- mittee legislation to address the problem of The extent of bipartisan cooperation pin spammers who send out emails by spam early in this session. We look forward on this issue is no surprise, of course, the millions are threatening to drown to working with you and other members of the committee to bring anti-spam legislation given the deluge of spam to the con- the Internet in a sea of trash. The to the floor of the Senate before the August sumers and what they face in their American people want it stopped. recess. inbox each day. The cost of business, Every single day the Senate delays, Sincerely, the cost to individuals, is escalating these big-time spammers, the ones who JOHN SCHEIBEL, and wide ranging. are trying to take advantage of the Vice President, Public Policy. The chairman asked a valid question: open and low-cost nature of the Inter- Mr. MCCAIN. Madam President, the Does this piece of legislation protect us net, gives them another opportunity to House will adopt a similar provision in from spam? It can have an effect on crank up their operations to even more any House spam bill. I have received people thinking twice before they send dizzying levels of volumes. support for the provision from every it. That is the answer. I have con- Every Member of the Senate is hear- sector involved in the spam debate— tended all along, as my colleagues on ing from citizens. This is a consumer consumers’ groups, e-mail providers, the Commerce Committee have con- abuse that is visited on millions of peo- marketers, advertisers, online and off- tended, that industry is going to have ple every day. It is now time to put in

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00038 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13023 place strong enforcement tools to pro- So something the American people are going to work with the sponsors, tect the public. use every day, something that is con- Senator SCHUMER and Senator DAYTON, Many are asking, what is the role of sidered a vibrant, exciting tool, that and others who have been so interested Federal legislation? My colleagues has empowered millions of people to in this to address the various questions have talked a bit about there not being learn, to be part of cultural activities, that have been brought up with respect a silver bullet. The key is to pass this to start small businesses—if nothing is to feasibility. bill and come down on the violators done, if somehow this legislation goes I also commend Senator NELSON of with hobnail boots. It is fair to say a by the board or the Senate and House Florida. These big-time spammers— lot of the big-time abusers are not ex- cannot agree, I think what we are see- there are only a few hundred of them. actly quaking today about the prospect ing in the days ahead is a genuine I think Senator MCCAIN and I were of Senate action. They are not techno- threat to the entire medium. struck, as we listened to the debate, at logical simpletons. They are very So with respect to the specifics of the the fact that we are talking about a savvy and they figure any law that is bill, I think there are a number of key few hundred big-time violators. They passed by the Senate they can get out provisions. One I have stressed is the seem to have gravitated to a couple in front of. question of misleading identities be- States, particularly Florida and Texas. What is going to be important is for cause I think that goes right to the Senator NELSON has been very inter- those who are charged with enforce- heart of how you set in place a strong ested in ensuring that there are tough ment—the Federal Trade Commission, enforcement regime. enforcement provisions in this legisla- the criminal authorities, we give a role But I also emphasize the role of the tion. I share his view that we ought to to the State attorneys general, the States here this afternoon. At this use all of the enforcement tools, in- Internet service providers—when this point, over half the States have en- cluding measures such as the RICO bill is signed into law, to bring a hand- acted State-level spam legislation. It is statute, against these particularly rep- ful of actions very quickly to establish pretty easy to see why the States have rehensible violators. I commend Sen- that for the first time there is a real acted. They are frustrated that the ator NELSON for this effort as well. deterrent, there will be real con- Congress has not moved. Finally, as we put together a coordi- sequences when those big-time But I believe a State-by-State ap- nated game plan against the spammers, spammers try to exploit our citizens. proach cannot work in this area. The I would also like to emphasize that we When the bill takes effect, for the first numerous State laws to date certainly expect our trading partners, and the time those violators are going to risk have not put in place a coordinated ef- many countries that look to do busi- criminal prosecution, Federal Trade fort against spam. Neither the Internet ness with the United States, to play a Commission enforcement, and million- nor the big-time spammers is sitting more activist role in this area. As sure dollar lawsuits by the State attorneys as night follows day, some of these around saying: Let’s tip our hat to general and Internet service providers. kingpin spammers are going to just State jurisdictions. And certainly an e- The reason that is the case is because move offshore and set up shop. big-time spammers have to violate this mail address, unlike a phone number, So as we look to the future, I have bill in order for their sleazy business to does not reveal the State in which the stressed enforcement. I think we need work. If they do not hide their identi- holder of the address is located. So to see aggressive enforcement action ties, their messages end up getting fil- compliance with a patchwork of incon- the day this bill is signed into law. tered out by the Internet service pro- sistent State laws is virtually impos- Then we have to push our trading part- viders. If they do not use misleading sible, and spammers do not even go ners around the world to work with us subject lines, people are going to click through the motions of trying. to ensure that, as part of a coordinated the messages straight into the trash, What is needed is a uniform, nation- strategy, we are preventing the big- unread. It is costly to deal with thou- wide spam standard to put the time violators from simply closing sands of demands for consumers to be spammers on notice and to empower down in the United States and moving removed from the lists. The day this the consumers to have an enforcement offshore. bipartisan legislation becomes law, for regime consistent with their reason- I have tried to specialize in tech- the first time big-time spamming will able expectations. nology issues in my time in the Senate. become an outlaw business. Having emphasized the importance of My State cares greatly about this It is worth noting when Senator a nationwide, uniform standard in this issue. I have been fortunate to have a BURNS and I started this effort nearly 4 area, the legislation does preserve an chairman in Senator MCCAIN who has years ago, we had the strong support of important role for the States. always encouraged these efforts, to Senator MCCAIN. Senator HOLLINGS has First, the State laws that address de- deal with Internet taxes, digital signa- been tremendous to me. I got involved ception in spam—deception in spam— tures, Y2K liability—and the list goes in this shortly after joining the Com- would be preserved. Second, general on and on. And Senator HOLLINGS, who merce Committee. A lot of people consumer protection fraud and com- is not in the Chamber, has been ex- asked, why in the world would CONRAD puter abuse laws would remain enforce- traordinarily supportive of my involve- BURNS and I be spending our time on able as well. And third, the bill author- ment in these issues. something like this. They essentially izes States’ attorneys general to use But I think it is fair to say that this intimated this was not the kind of the Federal statute to prosecute spam question—of all the technology issue important enough for the Senate. spammers. issues we have tackled in the last few They said, Senators deal with key mat- The bottom line is, our States, which years in the Commerce Committee, I ters. They deal with war and peace and have done so much important and inno- cannot think of another one that has entitlement programs. Why in the vative work in the area of consumer inflamed consumers more, has been world would the Senate get involved protection, are going to remain active emphasized more to me at townhall with something like spam. It was only and important partners in the battle meetings. 6 to 8 percent when we started in 2000. against spam. I can tell the Senate, at the time Why is the Senate spending its time on Shortly, we will be talking about the when we were all concerned about the that kind of concern? Suffice it to say, Do Not E-mail Registry. I commend well-being of our troops and the con- nobody is saying any longer spam is Senators SCHUMER and DAYTON. Both of flict in Iraq, folks would also say, in just a minor annoyance. Nobody is say- them have introduced legislation in addition to standing up for our troops: ing the delete key is now going to be a this area. They deserve a great deal of Make sure you do something about sufficient solution to the problem. credit with respect to their patience on spam as well. I think it is indicative of This is now something that threatens this legislation. And we know it is a how much concern there is in the coun- this medium. Spam, in the view of ex- challenge. The telephone Do Not Call try with respect to these kingpin perts, and in my view, stunts the list is certainly facing a lot of battles. spammers who really do put at risk—I growth of e-commerce. And if it con- But I think this is an important idea. do not say this lightly—an entire me- tinues at the rate of growth we have I think it is an idea that makes a gen- dium that has made such a difference seen in the last few years, I think it uine contribution. It certainly is one and been so important for millions of will engulf the entire medium. that the American consumer wants. We Americans.

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00039 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13024 CONGRESSIONAL RECORD — SENATE October 22, 2003 We are going to deal expeditiously On page 49, between lines 11 and 12, insert Senator HOLLINGS, would clarify that with the amendments. A number of col- the following: any lawsuits for violations of Federal leagues have already asked of the man- (6) MATERIALITY DEFINED.—For purposes of spam rules should be brought in Fed- paragraph (1), an inaccuracy or omission in agers what we thought the timetable of header information is material if it would eral court. It is noncontroversial in na- this bill would be. My guess is, we can materially impede the ability of a party ture. I urge its passage. deal with this legislation certainly seeking to allege a violation of this Act to The PRESIDING OFFICER. The Sen- within the next couple of hours, at locate the person who initiated the message ator from Arizona. most. or to investigate the alleged violation. Mr. MCCAIN. Madam President, we We urge Senators who have an inter- On page 50, beginning in line 24, strike ‘‘es- support the amendment. It is helpful to est in this matter to come to the floor. tablish’’ and insert ‘‘register for’’. the legislation. I urge its adoption. On page 51, after line 22, insert the fol- The PRESIDING OFFICER. Is there This is an opportunity for the Senate lowing: to stand up for the consumer. ‘‘(d) SUPPLEMENTARY RULEMAKING AUTHOR- further debate? We are not going to overpromise. We ITY.—The Commission may be rule— If not, the question is on agreeing to are not going to say that the day this ‘‘(1) modify the 10-business-day period amendment No. 1891. bill is signed, spam will magically van- under subsection (a)(4)(A) or subsection The amendment was agreed to. ish into the vapor. But this legislation, (a)(4)(B), or both, if the Commission deter- Mr. MCCAIN. Madam President, I coupled with an enforcement strategy mines that a different period would be more move to reconsider the vote. reasonable after taking into account— Mr. WYDEN. I move to lay that mo- that has the Federal Trade Commis- ‘‘(A) the purposes of subsection (a); sion, criminal authorities, pushing ‘‘(B) the interests of recipients of commer- tion on the table. spam as it relates to these big-time cial electronic mail; and The motion to lay on the table was violators up the priority list of the ‘‘(C) the burdens imposed on senders of agreed to. tasks that they face—that kind of lawful commercial electronic mail; and AMENDMENT NO. 1892 ‘‘(2) specify additional activities or prac- The PRESIDING OFFICER. The Sen- strategy can make a difference. tices to which subsection (b) applies if the Madam President, with that, I yield ator from New York. Commission determines that those activities Mr. SCHUMER. Madam President, I the floor. or practices are contributing substantially The PRESIDING OFFICER. The Sen- to the proliferation of commercial electronic have an amendment at the desk. ator from Arizona. mail messages that are unlawful under sub- The PRESIDING OFFICER. The Mr. MCCAIN. Madam President, I be- section (a).’’. clerk will report. lieve the Senator from Oregon has a On page 58, beginning in line 16, strike ‘‘ju- The assistant legislative clerk read technical amendment and maybe would risdiction or in any other court of com- as follows: petent’’. The Senator from New York [Mr. SCHU- like to propose that at this time. It is On page 62, beginning in line 14, strike ‘‘de- my understanding that the Senator MER], for himself, Mr. MCCAIN, Mr. HOLLINGS, fendant, or in any other court of competent and Mr. GRAHAM of South Carolina, proposes from New York, Mr. SCHUMER, is on his jurisdiction, to—’’ and insert ‘‘defendant—’’. an amendment numbered 1892. way over to propose his Do Not Spam On page 65, beginning in line 7, strike ‘‘for Mr. SCHUMER. I ask unanimous con- amendment. any such statute, regulation, or rule that’’ It is also my understanding that Sen- and insert ‘‘to the extent that any such stat- sent that reading of the amendment be ute, regulation, or rule’’. dispensed with. ator HATCH, Senator SANTORUM, and On page 65, line 16, strike ‘‘State laws’’ and The PRESIDING OFFICER. Without Senator CORZINE are the ones who have insert ‘‘other State laws to the extent that objection, it is so ordered. amendments. I would urge them to those laws relate’’. The amendment is as follows: come forward when it is convenient so The PRESIDING OFFICER. The Sen- we can dispense with those amend- (Purpose: To authorize the Commission to ator from Oregon. implement a nationwide ‘‘Do Not E-mail’’ ments in a timely fashion. Mr. WYDEN. Madam President, I registry) I yield the floor. offer this amendment on behalf of my- On page 66, strike lines 1 through 11 and in- The PRESIDING OFFICER. The Sen- self and Senator BURNS. It is technical sert the following: ator from Oregon. in nature. I know of no opposition. SEC. 9. DO-NOT-E-MAIL REGISTRY. AMENDMENT NO. 1891 It clarifies that header information (a) IN GENERAL.—Not later than 6 months Mr. WYDEN. Madam President, I that is technically false, but in such a after the date of enactment of this Act, the send an amendment to the desk. minor way as to be nonmaterial, will Commission shall transmit to the Senate The PRESIDING OFFICER. The not be actionable under the legislation. Committee on Commerce, Science, and clerk will report the amendment. It clarifies that spammers who know- Transportation and the House of Representa- The assistant legislative clerk read ingly route messages through what are tives Committee on Energy and Commerce a called open relays in order to erase the report that— as follows: (1) sets forth a plan and timetable for es- The Senator from Oregon [Mr. WYDEN], for message’s originating information— tablishing a nationwide marketing Do-Not- himself and Mr. BURNS, proposes an amend- which is a technique used by these big- E-mail registry; ment numbered 1891. time spammers—will be treated as hav- (2) includes an explanation of any prac- The amendment is as follows: ing used false or misleading header in- tical, technical, security, privacy, enforce- ability, or other concerns that the Commis- (Purpose: To clarify the provision prohib- formation. sion has regarding such a registry; and iting false or misleading transmission in- It permits the Federal Trade Com- (3) includes an explanation of how the reg- formation, and for other purposes) mission to modify the bill’s deadline istry would be applied with respect to chil- On page 37, lines 12, after the comma, in- for how quickly ‘‘opt-out requests’’ dren with e-mail accounts. sert ‘‘whether or not not displayed,’’. must be processed. Currently, the bill (b) AUTHORIZATION TO IMPLEMENT.—The On page 44, line 20, strike ‘‘false or mis- says that 10 business days after receiv- Commission may establish and implement leading.’’ and insert ‘‘materially false or ma- ing a consumer’s opt-out request, any the plan, but not earlier than 9 months after terially misleading.’’. further e-mails from the sender become the date of enactment of this Act. On page 45, line 2, strike ‘‘misleading; and’’ punishable. Mr. SCHUMER. Madam President, I and insert ‘‘materially misleading;’’. The amendment permits the Federal offer this amendment on behalf of my- On page 45, line 5, strike ‘‘false or mis- leading.’’ and insert ‘‘materially false or ma- Trade Commission to modify that time self, Senator GRAHAM of South Caro- terially misleading; and’’. period if it finds that a different period lina, Senator MCCAIN, and Senator On page 45, between 5 and 6, insert the fol- would be appropriate. It permits the HOLLINGS. I thank my good friend, Sen- lowing: Federal Trade Commission, if it identi- ator LINDSEY GRAHAM, who worked ‘‘(C) if header information attached to a fies new and particularly nefarious long and hard on this issue with me. message fails to identify a protected com- techniques used by spammers, to add Senator GRAHAM and I have been work- puter used to initiate the message because those techniques to the list of what are ing on quite a few pieces of legislation the person initiating the message knowingly together. He is a good legislator and a uses another protected computer to relay or called aggravated violations so that retransmit the message for purposes of dis- spammers who use those techniques fighter for the things in which he be- guising its origin, then such header informa- would be subject to higher penalties. lieves. We do not agree on everything, tion shall be considered materially mis- Finally, this amendment, which has to say the least, but it is a pleasure to leading.’’. the support of Chairman MCCAIN and work with him.

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00040 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13025 I thank my colleagues, Senator est In Sync CD, although I think she According to Ferris Research, spam BURNS and Senator WYDEN, both of likes other groups better. costs businesses in the United States whom have worked long and hard on You can imagine my anger and dis- $10 billion each year in lost produc- this legislation for many years. They may when I saw my daughter on e- tivity, consumption of information both were willing to work with me and mail. I would say: Great, she is not technology resources, and help desk accommodate some changes which I watching television. And then you can time. hope make the legislation better. I be- imagine my dismay when I discovered That is $10 billion that should be lieve they do. But the foundation of that not only was she a victim of spam spent on growing American businesses this bill is their hard work. This is a like myself, but like all e-mail users, and jobs instead of fighting spam. good day for both of them because they much of the junk mail she was receiv- The Do Not E-mail Registry created have spent a long time and they de- ing advertised pornographic Web sites. by the FTC would allow businesses to serve a great deal of accolades for their Some of the things that crossed her e- cut costs and improve productivity in hard work on this important legisla- mail were things I would not want to the workplace by giving them the abil- tion which, hopefully, will pass today. see, let alone my 14-year-old daughter. ity to register their entire domain I thank my colleague, Senator HOL- I was and remain virtually powerless to names. Very important to businesses. LINGS, ranking member of the Com- prevent such garbage from reaching my Some have expressed concern about merce Committee, who offers this daughter’s inbox. creating a list of e-mail addresses that amendment along with myself, Senator Recent surveys unambiguously show spammers could exploit. The FTC has that the public shares my concern GRAHAM, and Senator MCCAIN. We are already said it is technologically pos- about spam infested with pornography all going to miss FRITZ HOLLINGS. He is sible to create and secure the list. This and how it impacts their children. The one of the true gems of the Senate. He is no longer a worry and one of the bottom line is, if parents can control is a forthright man and a direct man. breakthroughs we made in the last few what their kids watch on TV, they months that are allowing this legisla- He is a smart man. He is a principled should be able to control what their man. I, for one, know that my amend- tion to come to the Senate floor. children are exposed to on the Internet. In fact, we know that the database of ment might not have happened, cer- We have parental advisory notices on addresses can be protected by military- tainly wouldn’t be in the form it is music, as well as ratings for TV shows caliber encryption so that its valuable now, without his intervention. I thank and movies to ensure that parents are contents will not fall into the wrong him for that. able to keep their children from being hands. Finally, Senator MCCAIN and I have exposed to what they consider inappro- I want to take a few minutes to talk worked on a whole number of things priate. So it makes you scratch your about the underlying bill and other together. It is a pleasure to work with head about why there is no safeguard amendments, and then I will get into him. Again, he is a man of his word. He in place to enable parents to protect mine. is able to bring different people to- their kids from vulgar e-mail. The e- First, I commend Senators BURNS gether to produce good legislation. He mailing public has been at the mercy of and WYDEN for their long efforts on cares about the average person. He spammers for long enough. They want this bill. The bill will, for the first never lets any of the special interests to take back the Internet. time, set minimum standards for all get in his way. We wouldn’t be here A recent survey conducted by commercial e-mail. It will require all today without the Senator’s leader- UnSpam, one of the ardent foes of spam commercial mail to include valid re- ship. I thank him very much. and backer of my legislation, and turn e-mail addresses and physical ad- Let me begin by saying how impor- InSightExpress, a research group, dresses of the sender. It must provide tant this whole bill is to the continued backs that view. Here is a quick run- accurate header and router informa- vitality of e-mail and the Internet down of some of the highlights of the tion. And most messages will be re- itself. Unsolicited e-mail has grown at survey: quired to have an opt-out system. astronomical rates over the past Almost 9 in 10 parents say they are It does not stop there. In addition to months. It is safe to say we are now seriously concerned about their chil- these provisions, it will take aim at under siege. Armies of online market- dren receiving inappropriate e-mail the mass collection of e-mail addresses ers have overrun e-mail inboxes across versus 5 percent who don’t care. Nine- and the rampant fraud which, accord- the country with advertisements for ty-six percent of parents want the abil- ing to a report released by the FTC, is herbal remedies, get-rich-quick ity to block pornography from their present in 66 percent of junk e-mail. schemes, and, unfortunately, pornog- children’s inboxes. A paltry 2 percent I am hopeful that we can add impor- raphy. What was a simple annoyance don’t want that right. Ninety-five per- tant criminal provisions to these civil last year has become a major concern cent think children should be given measures. I know both my colleagues, this year and could cripple one of the extra protection under any anti-spam including Senators MCCAIN and HOL- greatest inventions of the 20th century law, 3 percent undecided. And 93 per- LINGS, want to do that. I worked in the next year if nothing is done. cent think spammers should face en- Judiciary Committee with Senators Way back in 1999, the average e-mail hanced penalties for sending inappro- HATCH and LEAHY on a bill that makes user received just 40 pieces of unsolic- priate messages to children. it clear that fraud and deception in e- ited commercial e-mail, spam, each Our amendment is a solution that mail will not be tolerated. And those year. This year the number is expected will give parents—the only solution— who do not heed the warnings in this to pass 2,500. I know that I am lucky if the ability to protect their children bill will face stiff punishment. These I don’t get 40 pieces of spam every day. from offensive and obscene e-mail spam criminal provisions will outlaw some of As a result, a revolution against spam by registering their children’s e-mail the spammers’ favorite tricks. is brewing as the epidemic against junk address. Parents across the country are About our legislation as well, let me e-mail exacts an ever-increasing toll on increasingly worried about this prob- just say it is really important that we families, businesses, and the economy. lem, and we should do the right thing put in the registry, which, in my judg- Let me illustrate this point with a by giving them a registry. Parents and ment, is the best way to get at spam. story. My wife and I have two wonder- children are not the only ones who will No system is foolproof and, as Mr. Mor- ful daughters, one of whom is about to benefit from a no e-mail registry. Busi- ris of the FTC has said, no bill will complete her first year at college; the ness owners and ISPs across the Nation solve all of the problems. But the reg- other, a 14-year-old, is an absolute whiz can identify with the frustration many istry is the most complete, comprehen- on the Internet. She loves sending and of us feel in the battle against spam. sive way to do it, combined with the receiving e-mails. As parents, we do With surveys showing that nearly 50 criminal penalties that we are adding our best to make sure she has good val- percent of e-mail traffic qualifies as in the Hatch-Leahy-Schumer amend- ues and that the Internet is a positive spam, businesses spend millions of dol- ment. experience for her, a device to help her lars each year on research-filtering The minute somebody spams some- with her school work or learn about software and new servers to deal with one on the Do Not Call list, there will events taking place around the world, the ever expanding volume of junk e- be an immediate cause of action and and maybe even a way to order the lat- mail being sent through the pipes. criminal prosecution.

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00041 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13026 CONGRESSIONAL RECORD — SENATE October 22, 2003 The good news is that since we know Mr. SCHUMER. Madam President, I Senator BURNS and I that to have an that a large amount of spam comes ask unanimous consent that the order effective enforcement strategy, we had from a small amount of people, we can for the quorum call be rescinded. to have in place tools that would deal get after these few people. This legisla- The PRESIDING OFFICER. Without with the kind of shady operators who tion, as you know, gives the FTC 6 objection, it is so ordered. are present in his home State. months to come back with a com- Mr. SCHUMER. Madam President, I The Senator from Florida has ham- prehensive proposal. We then get 3 ask unanimous consent that we adopt mered on that message. I think by the months here to examine it to see if we the amendment and add it to the legis- time we are done this afternoon and want to change it, and then the FTC lation. have Senator LEAHY on the floor as may implement it. I have received— The PRESIDING OFFICER. Is there well, Senator NELSON’s contribution and they have both verbalized this on further debate? will be especially helpful, not just in the Senate floor—assurances from Sen- The question is on agreeing to the Florida but in terms of dealing with ators MCCAIN and HOLLINGS that if the amendment. these kingpin spammers, the people FTC should decide they don’t want to The amendment (No. 1892) was agreed who send out millions of e-mail now implement it, or come up with some- to. without consequences. thing that is unworkable, they will use AMENDMENT NO. 1891, AS MODIFIED I thank my colleague for yielding, their clout with the FTC to straighten Mr. WYDEN. Madam President, at and I thank him for keeping this issue things out and get this done. Other- this time, I ask unanimous consent on the radar. wise, we in the Congress can respond. that the previously agreed-to Burns- Mr. NELSON of Florida. Madam I believe this amendment will allow, Wyden technical amendment, No. 1891, President, I thank Senator HATCH and without any further action by Con- be modified with the change I now send Senator LEAHY for working with me in gress, as long as the House passes it to the desk. their capacity as leaders of the Judici- and it stays in the bill—and I thank The PRESIDING OFFICER. Is there ary Committee in attaching some Senator MCCAIN for assuring me that objection? strong penalties on the most egregious he will not even sign a conference re- Without objection, the amendment is kinds of spam. port that doesn’t have this amendment so modified. Spam is clearly a nuisance, and it in it, and I know all of my colleagues The amendment (No. 1891), as modi- impedes the course of commerce. When are for this legislation. But once it fied is as follows: you can’t even use your computer be- passes the House and is signed into On page 67, line 20, strike ‘‘act’’ and insert cause it is so cluttered up, that is one law, we set the road for a no-call reg- ‘‘act, other than section 9,’’. thing, but when spam is used for illicit istry. It is all downhill after that. Mr. WYDEN. Madam President, this purposes, such as child pornography, Within a year, it is my belief we will is also a very modest technical amend- then that is another thing. That needs have that registry and, just as the no- ment. This amendment simply ensures to be dealt with swiftly and severely. call registry was a great success, I be- that the Do Not E-mail Registry pro- By Senator WYDEN and Senator lieve the no-spam registry will be a posed would be considered on the time- BURNS working with Senator HATCH great success. It will take a little table that all of the parties who have and Senator LEAHY, we have, as part of longer, it will be a little more difficult, worked on this had intended. It is very their amendment—and I think it is but the same basic popularity and sup- noncontroversial. worth reading. This is a part of the port that the American people have The PRESIDING OFFICER. The Sen- amendment they will offer: given the no-call registry, they will ator from Florida is recognized. It is the sense of Congress that spam has give, for sure, to the no-spam registry, Mr. NELSON of Florida. Madam become the method of choice for those who and the combination of a good proposal President, I rise to commend the Sen- distribute pornography and perpetrate fraud- that the FTC will have to send to us in ators who have brought this legislation ulent schemes and also offers fertile ground 6 months and vigilant enforcement, for deceptive trade practices; forward and say how gracious they And it is the sense of Congress that the De- plus the no-spam registry, plus the un- have been to me in working to address derlying base of the bill, will put a partment of Justice should use all existing the seriousness of this issue of spam. law enforcement tools to investigate and crimp, a real dent in spam. Later on, when Senator LEAHY comes prosecute those who send bulk commercial e- Are we ever going to eliminate all to the floor, I will have a colloquy with mail to facilitate the commission of Federal spam? For sure not. But is this legisla- him about some of the provisions that crimes, including the tools contained in— tion, along with the amendment I am are going to be submitted in the Hatch- And it lists several chapters of the adding, going to be the toughest, best Leahy-Nelson amendment. United States Code, one relating to approach, and greatly curtail spam? In- In the meantime, I wanted to com- fraud and false statements; another re- deed. It is my belief that when we enter mend the Senator from Oregon for his lating to obscenity; another relating to these portals a year from now, spam leadership. I commend Senator CONRAD the sexual exploitation of children; and will have greatly decreased. BURNS from Montana for his leader- another relating to racketeering. One of the great inventions of the ship. I commend the Senators for how By the adoption of this amendment, 20th century, which is now sick and ail- they saw the problem. They saw it we will strengthen the penalties and ing, will be healthy and going full years ago, and they have been so per- also give a directive to the United steam ahead. The bottom line is that States Sentencing Commission, which this is a very fine day for those who sistent. Senator WYDEN and Senator is the normal course of action, that use computers and e-mail and for BURNS kept after it. It is an idea whose they shall consider sentencing en- American technology in general. It time has come simply by virtue of the hancements for those convicted of shows that we can all work together fact that people can hardly even use and get something done—get some- their e-mail now it is so cluttered up other offenses, including offenses in- thing done that the American people with unwanted messages. volving fraud, identity theft, obscen- want. Mr. WYDEN. Will the Senator yield? ity, child pornography, and sexual ex- I ask my colleagues to support this Mr. NELSON of Florida. I will be ploitation of children, if those offenses amendment and the underlying legisla- happy to yield. involve the sending of large quantities tion. Let’s finally do something about The PRESIDING OFFICER. The Sen- of unsolicited e-mail. one of the greatest technological prob- ator from Oregon. Why is this so egregious? We know lems that we face right now in this Mr. WYDEN. Madam President, I will what a nuisance it is. One day, I went country, the proliferation of spam. be very short. in my Tampa office to check the e- With that, I yield the floor. Without turning this into a bouquet- mail. We had a list of single-spaced e- Mr. WYDEN. Madam President, I tossing contest, let me thank my mail over the last evening filling up— suggest the absence of a quorum. friend from Florida. Of course, many of single space, one sheet of paper, all un- The PRESIDING OFFICER. The the worst violators are people I call solicited. That was bad enough. But to clerk will call the roll. kingpin spammers who are located in a Senate office, two of them were por- The assistant legislative clerk pro- his home State. The Senator from nographic. If that is happening to my ceeded to call the roll. Florida brought it to the attention of Tampa Senate office, we can imagine

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00042 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13027 what is happening to the e-mail receipt Spam list, I think it would be of great The Senator from New York knows of every consumer in America on their assistance to many Americans. So I people change their e-mail addresses computer. It has to stop. This is an at- think the Senator from New York has constantly. In that sense, this is dif- tempt to stop it. a remarkable idea here. ferent than a telephone. We all under- Under the old laws, when we tried to As a first step, the FTC, which has stand that if a bad spammer, for exam- protect against activities such as child testified they have some technological ple, one of these kingpin operators, was pornography or taking advantage of reservations about creating such a list, to hack into this, what a gold mine for senior citizens by some extortion or de- although I am sure the FTC would not an evil person who wanted to exploit ceptive scheme to bilk them out of object to it in principle, but they have our citizens. The Senator from New money, before we had e-mail, the some reservations, Senator SCHUMER York has been acutely aware of it and criminal would send out 100, 150 letters has modified his amendment so that that is why he has worked with me, to the unsuspecting victims on whom the FTC would be required to submit a Senator BURNS, and all of those on the they were preying on child pornog- report to the Congress within 6 Commerce Committee. I commend him raphy or on fleecing senior citizens of months. It contains a plan for imple- for his patience. their assets. That was 100, 150 letters. menting the Do Not Spam list. The This is an important contribution. Now with the punch of a button, they FTC would be authorized to implement We have a lot of work to do, because we can send out 150 million. So we see the the list 3 months later, and I would have seen with the Do Not Call list insidious ability of a criminal mind to certainly urge them to do so. what the challenge is. I personally be- prey upon millions of people by the use As everyone is aware by now, there lieve in the telecommunications area of this very new and fantastic tool that has been a tremendous amount of dis- we ought to establish, as kind of a bed- we ought to be using for good, not for cussion about this issue. I believe it is rock principle, that there is a First ill, and that is e-mail. a good one and one that provides the Amendment right to communicate, but This Senator is very happy that this FTC with the authority to establish there also is a right of the consumer to legislation is being considered, and we such a registry if they believe it is the say, I have had it. In effect, that is are now going to attach some tough proper mechanism to stop the on- what the Senator from New York is al- penalties to it for these egregious types slaught of spam to consumers. lowing us to do in the spam area, and of activities. I think we have given them the flexi- to do it in a responsible way. I also commend the Senator from Ar- bility to come back and show us if I thank my colleague from Arizona izona, the chairman of our committee, there are serious problems. If there are for giving me this time. With a little and the Senator from South Carolina, serious problems, we would be glad to luck, we will be able to dispose of the the ranking member of our committee, look at them and help resolve those additional spam amendments and send for being so vigilant in bringing this problems through any kind of legisla- this bill on its way. legislation to the floor. tive or other assistance we can provide. The PRESIDING OFFICER. The Sen- Madam President, I yield the floor. The Schumer amendment also abso- ator from Arizona. The PRESIDING OFFICER. The Sen- lutely emphasizes this is an idea that Mr. MCCAIN. Madam President, I ator from Arizona. has worked in the Do Not Call area and again urge my colleagues, particularly Mr. MCCAIN. Madam President, we is a concept that should be pursued to Senators SANTORUM, HATCH, CORZINE, would like to, obviously, finish the bill the fullest extent of our capabilities. and ENZI, to come to the floor to give as expeditiously as possible and yet So I thank the Senator. I also thank us their amendments so we can move offer all Members the opportunity to Senator NELSON, a valued member of expeditiously. propose amendments. As I understand the committee, for his involvement in I also intend to propose a unanimous it right now, we have pending amend- this issue. consent agreement in about 15 minutes ments by Senators CORZINE, SANTORUM, Again, I hope Senators who have that there be no further amendments and HATCH. amendments will come to the floor and in order at that time. As Members know, there is a briefing let us know about them. I suggest the absence of a quorum. at 4 p.m. by the Secretary of Defense Mr. SCHUMER. Will my colleague The PRESIDING OFFICER. The for all Members in room 407. Shortly yield? clerk will call the roll. before 4, I would like to propose a Mr. MCCAIN. I am glad to yield. The legislative clerk proceeded to unanimous consent agreement to lock Mr. SCHUMER. I once again thank call the roll. in all amendments with no time agree- my colleague from Arizona for helping Mr. HATCH. Madam President, I ask ments agreed to. I ask my colleagues us with this list and his commitment unanimous consent that the order for who may have additional amendments in terms of keeping this in the con- the quorum call be rescinded. to let us know between now and short- ference and then making sure the FTC The PRESIDING OFFICER. Without ly before the hour of 4, which is over a moves forward with this in every tech- objection, it is so ordered. half an hour. nological way possible. I very much ap- AMENDMENT NO. 1893 I will also say we are asking Senators preciate it. As I mentioned before, the Mr. HATCH. Madam President, I send HATCH, SANTORUM, and CORZINE to Senator is a true gentleman, a man of an amendment to the desk. come over to offer their amendments his word. We would not be here today The PRESIDING OFFICER. The so we can dispose of those amend- without his good work. clerk will report. ments. Mr. WYDEN. Will the Senator yield? The legislative clerk read as follows: AMENDMENT NO. 1892 Mr. SCHUMER. I think the Senator The Senator from Utah (Mr. HATCH), for Mr. MCCAIN. Madam President, I wish from Arizona has the floor. himself, Mr. LEAHY, Mr. NELSON of Florida, to make a few comments about Sen- Mr. MCCAIN. I am glad to yield, but and Mr. SCHUMER proposes an amendment numbered 1893. ator SCHUMER’s amendment regarding first, to add to my remarks, I believe the Do Not Spam list. As Senator Senator ENZI may have an amendment Mr. HATCH. Madam President, I ask SCHUMER pointed out, it authorizes the as well. unanimous consent that reading of the Federal Trade Commission to develop a I thank my friend from New York for amendment be dispensed with. Do Not Spam list similar to the Do Not his comments and I yield to the Sen- The PRESIDING OFFICER. Without Call list which has been widely sup- ator from Oregon. objection, it is so ordered. ported by Americans across the coun- Mr. WYDEN. I say to the Senator The amendment is as follows: try. from New York, I appreciate his pa- (Purpose: To revise the criminal penalty pro- The Senator from New York and I re- tience on this. I think he knows from visions of the bill as reported, and for other purposes) member when apparently perhaps, in the outset my concern was not with the view of some, a misguided member the nature of this, because clearly em- On page 43, beginning with line 11, strike through the matter appearing between lines of the judiciary stayed the Do Not Call powering consumers to make these 10 and 11 on page 44 and insert the following: list and the reaction that followed was kinds of choices is essential. What is SEC. 4. PROHIBITION AGAINST PREDATORY AND certainly extraordinary. If we are able important is to try to figure out how to ABUSIVE COMMERCIAL E-MAIL. technologically to develop a Do Not do this right. (a) OFFENSE.—

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(1) IN GENERAL.—Chapter 47 of title 18, Un- commit or to facilitate the commission of dren); and chapter 95 of title 18, United tied States Code, is amended by adding at such offense. States Code (relating to racketeering), as ap- the end the following new section: ‘‘(2) PROCEDURES.—The procedures set propriate. ‘‘§ 1037. Fraud and related activity in connec- forth in section 413 of the Controlled Sub- Mr. HATCH. Madam President, I rise tion with electronic mail stances Act (21 U.S.C. 853), other than sub- today with Senator LEAHY, Senator section (d) of that section, and in Rule 32.2 of ‘‘(a) IN GENERAL.—Whoever, in or affecting NELSON of Florida, and Senator SCHU- the Federal Rules of Criminal Procedure, interstate or foreign commerce, knowingly— MER to offer an amendment to the CAN shall apply to all stages of a criminal for- ‘‘(1) accesses a protected computer without SPAM Act of 2003. This amendment authorization, and intentionally initiates feiture proceeding under this section. ‘‘(d) DEFINITIONS.—In this section: strengthens the act’s criminal provi- the transmission of multiple commercial ‘‘(1) LOSS.—The term ‘loss’ has the mean- sions by incorporating key provisions electronic mail messages from or through ing given that term in section 1030(e) of this such computer, of the Criminal Spam Act of 2003, ‘‘(2) uses a protected computer to relay or title. which I worked closely with Senators ‘‘(2) MULTIPLE.—The term ‘multiple’ means retransmit multiple commercial electronic LEAHY, GRASSLEY, SCHUMER, NELSON of more than 100 electronic mail messages dur- mail messages, with the intent to deceive or Florida and others to draft earlier this ing a 24-hour period, more than 1,000 elec- mislead recipients, or any Internet access year and which was favorably reported tronic mail messages during a 30-day period, service, as to the origin of such messages, or more than 10,000 electronic mail messages out of the Judiciary Committee. To ‘‘(3) falsifies header information in mul- send an effective and adequate message tiple commercial electronic mail messages during a 1-year period. THER TERMS.—Any other term has of deterrence to the most egregious and intentionally initiates the transmission ‘‘(3) O the meaning given that term by section 3 of of such messages, spammers, stiff criminal penalties ‘‘(4) registers, using information that fal- the CAN–SPAM Act of 2003.’’. must be an element of any comprehen- sifies the identity of the actual registrant, (2) CONFORMING AMENDMENT.—The chapter sive anti-spam legislative package. for 5 or more electronic mail accounts or on- analysis for chapter 47 of title 18, United Over the course of the past several line user accounts or 2 or more domain States Code, is amended by adding at the end Congresses we have become more and the following: names, and intentionally initiates the trans- more aware of the problems associated mission of multiple commercial electronic ‘‘Sec. ‘‘0137. Fraud and related activity in connec- with unsolicited commercial e-mail, or mail messages from any combination of such spam. Rarely a minute passes that accounts or domain names, or tion with electronic mail.’’. American consumers and their children ‘‘(5) falsely represents the right to use 5 or (b) UNITED STATES SENTENCING COMMIS- more Internet protocol addresses, and inten- SION.— are not bombarded with e-mail mes- tionally initiates the transmission of mul- (1) DIRECTIVE.—Pursuant to its authority sages that promote pornographic web tiple commercial electronic mail messages under section 994(p) of title 28, United States sites, illegally pirated software, bogus from such addresses, Code, and in accordance with this section, charities, pyramid schemes and other or conspires to do so, shall be punished as the United States Sentencing Commission ‘‘get rich quick’’ or ‘‘make money fast’’ provided in subsection (b). shall review and, as appropriate, amend the scams. ‘‘(b) PENALTIES.—The punishment for an sentencing guidelines and policy statements The rapid increase in the volume of to provide appropriate penalties for viola- offense under subsection (a) is— spam has imposed enormous costs on ‘‘(1) a fine under this title, imprisonment tions of section 1037 of title 18, United States for not more than 5 years, or both, if— Code, as added by this section, and other of- our economy—potentially $10 billion in ‘‘(A) the offense is committed in further- fenses that may be facilitated by the sending 2003 alone—as well as unprecedented ance of any felony under the laws of the Un- of large quantities of unsolicited electronic risks on our children and other vulner- tied States or mail. able components of our society. Spam ‘‘(B) the defendant has previously been REQUIREMENTS.—In carrying out this sub- has become the tool of choice for those convicted under this section or section 1030, section, the Sentencing Commission shall who distribute pornography and in- or under the law of any State for conduct in- consider providing sentencing enhancements dulge in fraud schemes. We all know of for— volving the transmission of multiple com- children who have opened unsolicited mercial electronic mail messages or unau- (A) those convicted under section 1037 of thorized access to a computer system; title 18, United States Code, who— e-mail messages with benign subject ‘‘(2) a fine under this title, imprisonment (i) obtained electronic mail addresses lines only to be exposed to sexually ex- for not more than 3 years, or both, if— through improper means, including— plicit images. We have heard of seniors ‘‘(A) the offense is an offense under sub- (I) harvesting electronic mail addresses of using their hard earned savings to buy section (a)(1); the users of a Web site, proprietary service, fraudulent health care products adver- ‘‘(B) the offense is an offense under sub- or other online public forum operated by an- tised on-line or of being duped into section (a)(4) and involved 20 or more fal- other person, without the authorization of sharing sensitive personal information sified electronic mail or online user account such person; and registrations, or 10 or more falsified domain (II) randomly generating electronic mail to later find themselves victims of name registrations; addresses by computer; or identity and credit card theft. ‘‘(C) the volume of electronic mail mes- (ii) knew that the commercial electronic We cannot afford to stand idle and sages transmitted in furtherance of the of- mail messages involved in the offense con- continue to allow sophisticated fense exceeded 2,500 during any 24-hour pe- tained or advertised an Internet domain for spammers to use abusive tactics to riod, 25,000 during any 30-day period, or which the registrant of the domain had pro- send millions of e-mail messages quick- 250,000 during any 1-year period; vided false registration information; and ly, at an extremely low cost, with no ‘‘(D) the offense caused loss to 1 or more (B) those convicted of other offenses, in- repercussions. The sheer volume of persons aggregating $5,000 or more in value cluding offenses involving fraud, identity during any 1-year period; theft, obscenity, child pornography, and the spam, which is growing at an expo- ‘‘(E) as a result of the offense any indi- sexual exploitation of children, if such of- nential rate, is overwhelming entire vidual committing the offense obtained any- fenses involved the sending of large quan- network systems, as well as consumers’ thing of value aggregating $5,000 or more tities of unsolicited electronic mail. in-boxes. By year end, it is estimated during any 1-year period; or (c) SENSE OF CONGRESS.—It is the sense of that 50 percent of all e-mail traffic will ‘‘(F) the offense was undertaken by the de- Congress that— be spam. It is no exaggeration to say fendant in concert with 3 or more other per- (1) Spam has become the method of choice that spam is threatening the future vi- sons with respect to whom the defendant oc- for those who distribute pornography, per- ability of all e-commerce. The time has cupied a position of organizer or leader; and petrate fraudulent schemes, and introduce ‘‘(3) a fine under this title or imprisonment viruses, worms, and Trojan horses into per- come to curb the growth of spam on all for not more than 1 year, or both, in any sonal and business computer systems; and fronts—through aggressive civil and other case. (2) the Department of Justice should use criminal enforcement actions, as well ‘‘(c) FORFEITURE.— all existing law enforcement tools to inves- as innovative technological solutions. ‘‘(1) IN GENERAL.—The court, in imposing tigate and prosecute those who send bulk The criminal provisions that make sentence on a person who is convicted of an commercial e-mail to facilitate the commis- up this amendment are intended to tar- offense under this section, shall order that sion of Federal crimes, including the tools get those who use fraudulent and de- the defendant forfeit to the United States— contained in chapters 47 and 63 of title 18, ceptive means to send unwanted e-mail ‘‘(A) any property, real or personal, consti- United States Code (relating to fraud and tuting or traceable to gross proceeds ob- false statements); chapter 71 of title 18, messages. A recent study conducted by tained from such offense; and United States code (relating to obscenity); the Federal Trade Commission dem- ‘‘(B) any equipment, software, or other chapter 110 of title 18, United States Code onstrates that this is no small number. technology used or intended to be used to (relating to the sexual exploitation of chil- According to the FTC, 66 percent of

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00044 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13029 spam contains some kind of false, To this end, we will need the assistance part of a colloquy between myself and fraudulent, or misleading information, of private industry and our inter- Senator LEAHY. and one-third of all spam contains a national partners. We have all been stunned by how per- fraudulent return e-mail address that I look forward to working with my vasive spam has become in e-mail traf- is included in the routing information, colleagues in both Houses as we at- fic. We have experienced the way the or header, of the e-mail message. By tempt to confront the spam problem on clogged inboxes, the unwanted solicita- concealing their identities, spammers all fronts. I urge my colleagues to sup- tions, and the unwelcome pornographic succeed in evading Internet filters, lur- port this amendment which will material make a session on the com- ing consumers into opening messages, strengthen the comprehensive legisla- puter less productive and less enjoy- and preventing consumers, ISPs and in- tive package that is before us today. able. vestigators from tracking them down Mr. WYDEN. Madam President, will I detailed earlier in my remarks the to stop their unwelcomed messages. the Senator from Utah yield? innumerable pornographic messages This amendment significantly Mr. HATCH. I am happy to do that. that come into my Senate office com- strengthens the criminal penalties con- Mr. WYDEN. I commend the Senator puter in my offices back in Florida. It tained in the CAN SPAM Act by strik- from Utah for his efforts in this area. is one of the top complaints I receive ing its misdemeanor false header of- The contribution the Senator from from my constituents. I am very fense and replacing it with five new fel- Utah makes is not just useful but it is pleased to be working with the Sen- ony offenses. The amendment makes it absolutely critical. We can write bills ators from Utah and Vermont to im- a crime to hack into a computer, or to to fight spam until we run out of paper, pose tough penalties on those who im- use a computer system that the owner but unless we have the kind of enforce- pose this garbage on others. has made available for other purposes, ment the Senator from Utah envisions, I am always concerned with the type as a conduit for bulk commercial e- we are not going to get the job right. of spam that goes beyond the mere nui- mail. It prohibits sending bulk com- I am particularly interested in work- sance variety. It is becoming clear with mercial e-mail that conceals the true ing with the distinguished chairman of each passing month that many crimi- source, destination, routing or authen- the Judiciary Committee in making nal enterprises have adopted spam as tication information of the e-mail, or sure we have some vigorous oversight their method of choice for perpetrating is generated from multiple e-mail ac- after this bill is enacted into law. If criminal schemes. Spammers are now counts or domain names that falsify after this bill is passed we have the frequently perpetrating fraud to cheat the identity of the actual registrant. It prosecutors, the Federal Trade Com- people out of their savings, stealing also prohibits sending bulk commercial mission, and others bring some tough people’s identities, or trafficking in e-mail that is generated from multiple enforcement actions, that will be a tre- child pornography. What spam allows them to do is to conduct these criminal e-mail accounts or domain names that mendously valuable deterrent. activities on a much broader scale at falsify the identity of the actual reg- I would like to work with the distin- dramatically reduced costs. They can istrant, or from Internet Protocol, IP, guished chairman of the committee to literally reach millions of people at the addresses that have been hijacked from have some vigorous oversight hearings push of a button. after this bill has gone into effect. their true assignees. I have given the example in the old The amendment includes stiff pen- That is what it is going to take to days that someone would use the mail alties intended to deter the most abu- make sure we have the teeth in this to send out 100 or 150 letters. They sive spammers. Recidivists and those legislation to make a difference. I would have nefarious schemes such as who send spam to commit another fel- thank my colleague. bilking senior citizens out of money or ony face a sentence of up to 5 years’ Mr. HATCH. I thank my colleague for perpetrating child pornography. Now imprisonment. Those who hack into those kind remarks and thank him and they do not send out 150 letters to do another’s computer system to send Senator MCCAIN for their leadership in it. They punch a button and they are spam, those who send large numbers of the Senate. sending out 150 million e-mail mes- spam, and spam kingpins who direct I ask unanimous consent to add Sen- sages perpetrating their schemes of others in their spam operations, face ator GRASSLEY as a cosponsor of this fleecing senior citizens or perpetrating up to 3 years’ imprisonment. Other ille- amendment, No. 1893. Senator GRASS- child pornography. gal spammers face up to a year in pris- LEY has worked with me and Senator The colloquy I propose with Senator on. The amendment provides addi- LEAHY every step of the way and de- LEAHY at his convenience would be to tional deterrence with criminal for- serves a lot of credit. reinforce a ban—which is why I had feiture provisions and the potential for The PRESIDING OFFICER. Without originally introduced S. 1052—in the sentencing enhancements for those objection, it is so ordered. Deceptive Unsolicited Bulk Electronic who generate e-mail addresses through The Senator from Arizona. Mail Act. I introduced that with Sen- Mr. MCCAIN. I thank Senator HATCH harvesting and dictionary attacks. ator PRYOR. That is why I have sought, I commend Senators BURNS, WYDEN, and Senator LEAHY for their work to with the help of the Senator from MCCAIN, and HOLLINGS for their hard improve the criminal provisions and Vermont and the Senator from Utah, work over the course of the past sev- strengthen the Burns-Wyden CAN- to include provisions in this legislation eral Congresses on the CAN SPAM Act. SPAM Act. The active participation of that make it clear our intent to treat They have worked diligently to en- Senator HATCH and his committee on the use of spam to commit large-scale hance the privacy of consumers with- this issue has been extremely valuable. criminal activity as the organized out unnecessarily burdening legitimate I join my friend from Oregon in urg- crime that it is. electronic commerce. The balance is a ing Senator HATCH to have oversight We do it in two ways. First, by work- difficult one to strike. I compliment on how this law is enforced and that it ing with the United States Sentencing these fine Senators for being able to is properly done. We face challenges in Commission in the amendment being strike that balance and get it done. enforcement of this act, particularly in offered by the Senators toward en- I believe enactment of the CAN light of the changes in technology that hanced sentences for those who use SPAM Act is an important first step will inevitably occur which will make spam or other unsolicited bulk e-mail toward curbing predatory and abusive this legislation even harder to enforce to commit fraud, identity theft, ob- commercial e-mail, but it is certainly than it is today. I thank Senator scenity, child pornography, or the sex- not the end. We all recognize that HATCH, and I urge adoption of the ual exploitation of children. there is no single solution to the spam amendment. Second, we make the seriousness of problem. While we must critically and The PRESIDING OFFICER. The Sen- our intentions clear in this amendment continually monitor the effectiveness ator from Florida. by urging prosecutors to use all the of any legislative solution we enact, we Mr. NELSON of Florida. I encourage tools at their disposal, including RICO, must pursue other avenues as well. the adoption of this amendment. I am to bring down the criminal enterprises Technological fixes, education and one of the cosponsors along with Sen- that are facilitated by the use of spam. international enforcement are integral ator HATCH and Senator LEAHY. Let me Specifically, we are talking about components to any effective solution. state for the RECORD the essence of the RICO statute which not only comes

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00045 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13030 CONGRESSIONAL RECORD — SENATE October 22, 2003 with some of the stiffest penalties in tencing Commission, while remaining potential victims at very low, even the Criminal Code but it allows for the deferential, to the discretion of pros- negligible costs. With such low costs, seizure of assets of criminal organiza- ecutors. and such wide reach, even a small rate tions, it allows the prosecutors to go The provisions from the Senator of success can make for a very profit- after the criminal enterprise, and it al- from Florida make it unmistakably able criminal enterprise. lows for civil suits brought by injured clear that Congress expects this legis- Mr. NELSON of Florida. The Senator parties. It is tough enforcement like lation to be used not just to punish from Vermont has provided an excel- this that will help bring the worst of spammers but also to dismantle crimi- lent example of the problem that we the spammers to their knees. nal operations that are carried out are trying to address. And that is why Mr. MCCAIN. Madam President, I ask with spam and other unsolicited bulk I have sought, with the help of the Sen- consent that the following amend- e-mail. ator from Vermont and the Senator ments be the only first-degree amend- I also would note that the Senator from Utah, to include provisions in this ments in order to the bill and that they from Florida has spoken about spam legislation that make clear our intent be subject to second-degrees which evolving from being just a nuisance. He to treat the use of spam to commit would be relevant to the first degree to is absolutely right. Serious crimes are large-scale criminal activity as the or- which they are offered: Corzine amend- being committed using this medium, ganized crime that it is. ment, Santorum amendment, Enzi which reaches a large number of peo- We do this in two ways: First, by amendment, Landrieu amendment, and ple. Senior citizens are more and more working with the U.S. Sentencing Boxer amendment. often targeted to being bilked out of Commission toward enhanced sen- Mr. LEAHY. Reserving the right to millions of dollars, and with very little tences for those who use spam or other object. effort on the part of the spammers. unsolicited bulk email to commit Mr. WYDEN. I ask unanimous con- Mr. President, I will engage in a col- fraud, identity theft, obscenity, child sent to add Senator HARKIN’s name to loquy with Senator NELSON because I pornography, or the sexual exploi- that list and then I support the unani- think it is important for the purposes tation of children. mous consent. of the RECORD. With all the work the Second, we make the seriousness of The PRESIDING OFFICER. Does the Senator from Florida has done, I want our intentions clear by urging prosecu- Senator so modify his request? the RECORD to be very clear. tors to use all tools at their disposal to Mr. LEAHY. Reserving the right to Mr. NELSON of Florida. Mr. Presi- bring down the criminal enterprises object. dent, would the Senator from Vermont that are facilitated by the use of spam. The PRESIDING OFFICER. Does the be willing to engage me in a colloquy? Among other things, we are talking Senator from Arizona so modify his re- Mr. LEAHY. I would be pleased to en- about the RICO statute, which not only quest? gage in a colloquy with the Senator comes with some of the stiffest pen- Mr. MCCAIN. I do modify my request. from Florida. alties in the criminal code, but also al- Mr. LEAHY. Where is the Hatch- Mr. NELSON of Florida. Mr. Presi- lows for the seizure of the assets of Leahy amendment? dent, I have been stunned, as have so criminal organizations, and for civil Mr. MCCAIN. Pending and about to many of my colleagues, by how perva- suits brought by injured parties. It is be adopted. sive spam has become in email traffic. tough enforcement like this that will Mr. LEAHY. It is not precluded by We have all experienced the way help bring the worst of the spammers the unanimous consent request. clogged in-boxes, unwanted solicita- to their knees. The PRESIDING OFFICER (Mr. tions, and unwelcome pornographic Mr. LEAHY. The Senator from Flor- CHAMBLISS). It would not be precluded. material make a session on the com- ida has made me aware of his interest Without objection, it is so ordered. puter less productive and less enjoy- in these provisions on several occa- Mr. MCCAIN. Mr. President, I thank able. It is one of the top complaints sions, and I appreciate his contribu- Senator LEAHY for his work on this that I receive from my constituents, tions to this effort. They strengthen amendment, along with Senator and I am very pleased to be working the legislation in important ways. HATCH, who lends and contributes a with the Senators from Vermont and While keeping the authority to set sen- great deal of teeth to this bill. I know Utah to impose tough penalties on tences where it belongs—with the Sen- they have worked very hard. those who impose this garbage on oth- tencing Commission—and while re- As I mentioned to Senator HATCH, as ers. maining deferential to the discretion of did the Senator from Oregon, we know But I am also concerned with a type prosecutors, these provisions makes that the Senator and his committee of spam that goes beyond the mere nui- unmistakably clear that Congress ex- will be involved in the oversight of the sance variety. It is becoming clearer pects this legislation to be used not enforcement of this legislation. We with each passing month that many just to punish spammers, but also to thank you for his valuable contribu- criminal enterprises have adopted dismantle the criminal enterprises that tion. spam as their method of choice for per- are carried out with spam and other I urge the sponsors of those amend- petrating their criminal schemes. unsolicited bulk e-mail. ments, Senators CORZINE, SANTORUM, Spammers are now frequently perpe- Mr. NELSON of Florida. I thank the ENZI, LANDRIEU, BOXER, and HARKIN, to trating fraud to cheat people out of Senator from Vermont for his out- please come to the floor in courtesy to their savings, stealing people’s identi- standing leadership on this issue, and their colleagues so we can take up and ties, or trafficking in child pornog- for his cooperation in including my dispose of these amendments. Please raphy. What spam allows them to do is amendments in the legislation. show some courtesy to your colleagues. to conduct these criminal activities on Mr. LEAHY. Mr. President, it is in- If you have amendments pending, a much broader scale at dramatically creasingly obvious that unwanted com- please come. We are ready for them. reduced costs—they can literally reach mercial e-mail is more than just a nui- I yield the floor. millions of people at the push of a but- sance. Businesses and individuals The PRESIDING OFFICER. The Sen- ton. sometimes have to wade through hours ator from Vermont. Mr. LEAHY. The Senator from Flor- of spam. It makes it impossible for Mr. LEAHY. Mr. President, when the ida is correct. Nowadays, we see that them to do their work. It slows down Senator from Arizona asked to make spam has moved far beyond being just whole enterprises. his unanimous consent request, I was a nuisance to people trying to use In my home State of Vermont, one in the process of answering the ques- email on their personal computers. Se- legislator logged on to his server and tion of the Senator from Florida, who rious crimes are being committed found that two-thirds of the e-mails in has spoken to me many times about his using this medium, which can reach his inbox were spam. Our legislator is a interest in these areas. large numbers of people in a matter of citizen or legislature. He does not have I appreciate what he has done to seconds. For example, if a person or or- staff or anything else. This was after strengthen this legislation. ganization seeks to commit fraud to the legislator had installed spam- We keep the authority to set sen- bilk senior citizens out of their money, blocking software. His computer tences where it belongs, with the Sen- with spam they can reach millions of stopped about 80 percent of it. But even

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00046 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13031 after he blocked 80 percent, two-thirds domain name registration—that is, hi- So I log on for him, and he climbs up of the e-mail he had was spam. jacking unused expanses of Internet ad- on my lap, takes the mouse out of my The e-mail users are having the on- dress space and using them to launch hand and says: I better take over now line equivalent of the experience of the junk mail. because it gets very complicated. woman in the classic Monty Python Now, penalties under the amendment In some ways we are protecting those skit. She wanted to order a Spam-free are tough, but they are measured. Re- 5-year-olds because they are the next breakfast at a restaurant. Try as she cidivists and those who send spam in generation using this technology. I might, she cannot get the waitress to furtherance of another felon may be thank my friend from Oregon and good bring her the meal she wants. Every imprisoned for up to 5 years. The sound friend from Montana for the enormous dish in the restaurant comes with of a jail cell closing for 5 years should amount of work they have done here. Spam; it is just a matter of how much. focus their attention. I yield the floor. There is eggs, bacon, and Spam; eggs, Large-volume spammers, those who Mr. BURNS. Mr. President, I might bacon, sausage, and Spam; Spam, hack into another person’s computer add, Senator LEAHY and I serve as co- bacon, sausage, and Spam; Spam, egg, system to send bulk spam, and spam chairs on the Internet caucus. We un- Spam, Spam, bacon, and Spam; Spam, ‘‘kingpins’’ who use others to operate derstand the ramifications of this new sausage, Spam, Spam, Spam, bacon, their spamming operations may be im- medium that has come upon us, its im- Spam, tomato, and Spam, and so on. prisoned for up to 3 years, and so on. portance, and all it has to offer. Of Finally, the customer said: I don’t like Then, of course, we direct the Sen- course, getting rid of spam is one of Spam. I don’t want Spam. I hate Spam. tencing Commission to look at other those things that if we don’t do it, then Now, I repeat that with apologies to areas. I am afraid it will be the one that So, Mr. President, I see my col- John Cleese and everybody else in the chokes this very new way of commu- leagues on the floor, Senator BURNS Monty Python skit. nicating and brings us not only infor- Mr. President, anybody who goes on and Senator WYDEN, who have done mation but new services. e-mail, including every member of my yeoman work on this legislation. I I appreciate the work of the Senator compliment all those who worked to- family down to my 5-year-old grand- from Vermont and thank him for it. gether. I certainly compliment the two child, knows how annoying spam can I yield the floor. of them, as well as Senator HATCH, be. The PRESIDING OFFICER. The Sen- A Harris poll taken last year found Senator NELSON, and Senator SCHUMER. ator from North Dakota. I think we are putting together some- that 80 percent of the respondents Mr. DORGAN. Mr. President, I have thing that is worth passing. viewed spam as ‘‘very annoying’’ and 74 been watching. Everybody is pretty Mr. WYDEN. Will the Senator yield? much congratulating everybody else. percent wanted to make it illegal. Mr. LEAHY. Sure. Let me add my congratulations. This is Some 30 States now have anti-spam Mr. WYDEN. Mr. President, just be- laws but it is difficult to enforce them. fore he leaves the floor, I thank the an important issue. There are some se- There are actually billions of un- distinguished Senator from Vermont rious people who have done serious wanted e-mails that are blocked by for all his help. I have already told work on this matter. I don’t know where the word spam ISPs every day. Hundreds of millions of Senator HATCH how incredibly impor- spam e-mails get through just the tant the enforcement provision is. You came from. I suspect someone has de- same. can write bills forever, but without the scribed that today. It is a luncheon Now, we have to be very careful when enforcement to which the Senator from meat in northern Minnesota in our re- we regulate in cyberspace. We must not Vermont and the Senator from Utah gion of the country. But spam is a term forget that spam, like more traditional are committed, those bills are not used to describe those unsolicited mes- forms of commercial speech, is pro- going to get the job done. sages that are sent into your computer. tected by the first amendment. We can- Suffice it to say, when there were a It has become much more than just a not allow spam to result in the ‘‘vir- lot of people in public life who thought nuisance. It was not too long ago, per- tual death’’ of the Internet, as one their computers were somehow a TV haps even a year or two, these unsolic- Vermont newspaper put it. screen, the Senator from Vermont was ited notices you receive through e-mail So what Senator HATCH and I have already leading the Senate and those and other devices were a nuisance. Now offered and is being accepted—the who work in the public policy arena to it is a very serious problem. Log on to Hatch-Leahy-Nelson-Schumer amend- understand the implications of the me- your computer and see what happens. ment—would, first, prohibit hacking dium. You have intruders in that computer, into another person’s computer system There is nobody in public life whose and they are flagging for you gambling and sending bulk spam from or through counsel I value more on telecommuni- sites and dating sites and pornography, that system. cations and Internet policy than the virtually everything. Go to your e-mail Second, it would prohibit using a distinguished Senator from Vermont. I and find out how many unsolicited e- computer system that the owner appreciate his giving me this oppor- mails you have had. You have more makes available for other purposes as a tunity to work with him on the en- friends than you thought you had. Doz- conduit for bulk spam, with the intent forcement provisions. It will be the ens and dozens of people and groups are to deceive the recipient as to where the lifeblood of making this bill work. writing to you. Most of them, of spam came from. Mr. LEAHY. Mr. President, I thank course, are pornographic, and they are The third prohibition targets another my dear friend from Oregon for his far unsolicited kinds of messages you way that outlaw spammers evade ISP too generous words. I have enjoyed wouldn’t want to explore, nor would filters: falsifying the ‘‘header informa- working with him. He has carried over you want your family to explore. tion’’ that accompanies every e-mail from his service in the other body. He If this afternoon someone drove up in and sending bulk spam containing that has a strong interest in this. Just as front of your house with a truck and fake header information. The amend- important as his strong interest is the knocked on the front door and said: I ment prohibits forging information re- fact he has extraordinary expertise in have some actors in the back of this garding the origin of the e-mail mes- this area. That is very helpful. truck of mine, and we want to come sage. If you would allow me one quick per- into your home because we know you Fourth, the Hatch-Leahy-Nelson- sonal story. This sort of humbles you. have a 10-year-old and a 12-year-old Schumer amendment prohibits reg- I like to think I am very knowledge- child, we would like to put on a show istering for multiple e-mail accounts able on this. My 5-year-old grandson for you, it is going to be a porno- or Internet domain names and sending climbed in my lap and asked me to log graphic sex show, you would go to the bulk mail from those accounts or do- on to a particular interactive site for phone and call the police. The police mains. children. It is something he could do would come and arrest them, and they Fifth, and finally, our amendment himself, but we don’t let him log on would be prosecuted. Yet there are peo- addresses a major hacker spammer himself because of the problems with ple who come into our homes and put technique for hiding identity that is a some sites that appear to be for chil- on these pornographic sex shows common and pernicious alternative to dren, and are anything but. through the computer—yes, to

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00047 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13032 CONGRESSIONAL RECORD — SENATE October 22, 2003 unsuspecting children. Yes, it happens the world, messages that contain kind words. I tell all Senators, both all the time. We know it. That is why things you don’t have any interest in, here and watching, that the Boxer we are trying to determine what can that are grotesque, unwanted, and por- amendment has been withdrawn. That we do to stop it. nographic. You can’t determine where gets us down to where we could get this There is a right of free speech, but no they come from. bill passed tonight. stranger has a right to entertain 10- This legislation, along with the I believe the pending business is the year-old kids in your home or our amendments being offered, moves ex- Hatch-Leahy amendment No. 1893. I home with pornography. No stranger actly in the right direction to prohibit call for its adoption. has that right. That does not exist as a false and misleading transmission of The PRESIDING OFFICER. Is there right of free speech. information. It prohibits the knowing further debate? The question is, what kind of legisla- use of deceptive subject headings, re- The question is on agreeing to the tion can we craft that addresses this in quires a return address or comparable amendment. The amendment (No. 1893) was agreed a serious way. There is so much spam reply message so you can figure out on the Internet. I am describing por- to. who sent it, requires the UCE be self- Mr. BURNS. Mr. President, I suggest nography, but there are so many com- identified as an advertisement or a so- the absence of a quorum. mercial and other devices with unsolic- licitation. All of these things are very The PRESIDING OFFICER. The ited messages that it almost com- important. At the end of time, when we clerk will call the roll. pletely overwhelms the use of e-mail. have passed this legislation, it is in The assistant legislative clerk pro- It clogs the arteries of commerce for force, and we determine it is workable, ceeded to call the roll. which the Internet and e-mail have then we will know we have done some- The PRESIDING OFFICER. The Sen- been very valuable. thing very significant. ator from Oregon. In the last couple of years, we have a Let me make one additional point. I Mr. WYDEN. Mr. President, we are circumstance where 46 percent of all e- think computers and the Internet are very close to being able to pass this bill mail traffic in the month of April this quite remarkable. It is difficult to find tonight. This is an extraordinarily im- year was spam. It was only 18 percent words to describe how wonderful it can portant consumer measure, a measure in April of 2002, more than double in be. To be in a town like my hometown that literally touches the lives of mil- just a year. It does clog the arteries of of nearly 300 people and have access lions of people every single day. At this commerce. It exposes children to through the Internet to the biggest li- point, we have only three amendments things that are harmful and inappro- brary in the world, have access on the left. The Senator from New Jersey, Mr. priate. The question is, what can we do Internet to the great museums of the CORZINE, has an amendment; the Sen- about it. world. I grew up in a small town, with ator from Wyoming, Mr. ENZI, is to This legislation is an attempt to try a high school senior class of nine. We offer an amendment with Senator to address it. We will best congratulate had a library the size of a coat closet. SANTORUM; and then Senator LANDRIEU ourselves if and after the legislation is With the Internet, that school now has has an amendment. passed, in force, and we determine it a library the size of the largest library I am very hopeful we will be able to works. If and when that is the case, in the world, the largest repository of finish this bill fairly shortly. I urge then we all should say congratulations human knowledge existing anywhere those Senators who have their amend- for having done something useful. We on Earth—the Library of Congress. ments in order to come to the floor at have, of course, tried this before. The Yes, that exists in my hometown by this point. This is legislation that has Supreme Court struck down legislation virtue of the Internet. been worked on for more than 4 years. that came from the Commerce Com- The Internet is remarkable, wonder- During that time, this problem has mittee dealing with this issue. I think ful, and breathtaking. It opens vistas grown exponentially. A number of Sen- this is a better way to approach it. It is of new opportunities for all Americans. ators have spoken about it, and the more serious, more thoughtful, and We are dealing with the other side of Senate ought to move ahead. more likely to be able to meet the test the Internet because there are two I suggest the absence of a quorum. The PRESIDING OFFICER. The of being constitutional. sides to this issue. The other side con- We in the Commerce Committee have clerk will call the roll. tains some very serious issues and The assistant legislative clerk pro- worked on other issues similar to this, problems. We can continue to ignore ceeded to call the roll. not so much dealing with spam but es- them at our peril, at the peril of our Mr. ALEXANDER. Mr. President, I pecially protecting children. children, and at the peril of business ask unanimous consent that the order Senator ENSIGN and I coauthored leg- and commerce, which relies on the for the quorum call be rescinded. islation dealing with a new domain Internet as an artery of commerce. We The PRESIDING OFFICER. Without name. We are creating a new domain in can ignore them or we can address objection, it is so ordered. this country called dot U.S., just like them, as my colleagues, Senators Mr. ALEXANDER. I ask unanimous there is a domain dot U.K. We will have WYDEN and BURNS, chose to do with consent that I be allowed to speak as in a new one called dot U.S. We decided their leadership in the Commerce Com- morning business for 10 minutes. by legislation we would attach to that mittee. I thank them and I also thank The PRESIDING OFFICER. Without domain a condition that they must the Senator from Arizona, Mr. MCCAIN, objection, it is so ordered. also create a domain within dot U.S. and Senator HOLLINGS. THE INTERNET TAX FREEDOM ACT called dot kids dot U.S. That will be a We have a great committee, one on Mr. ALEXANDER. Mr. President, in domain in which parents know that which I am proud to serve. We do a lot our political speeches, Senators, espe- when their children are in dot kids dot of work and address a lot of issues. cially we Republicans, have a lot to say U.S., any site in dot kids dot U.S., they This is but one, but it is a very impor- in defense of the Tenth Amendment, are going to be seeing things that are tant one and it is a timely piece of leg- that all powers not expressly given to only appropriate for children. That is islation to bring to the floor. It appears the central government are reserved to going to be a big help to parents. that, based on the unanimous consent the States. We are big talkers about If you restrict the child to dot kids request, this will now move and, with local control, about State responsibil- dot U.S. and you know that child is not some amendments being offered, I ities, and about State rights. going to be exposed to things children think we will get to final passage. I ex- Somehow, when we get to Wash- should not be exposed to, that is legis- pect to have a very strong vote by the ington and away from home, a lot of lation that is going to be very helpful. entire Senate because it is a good piece that goes up in smoke. We start think- Let me also say this piece of legisla- of legislation. The time to do this is ing of grand ideas and sending State tion dealing with spam is similarly now and this is the right thing to do. and local governments the bill to pay helpful. We have a circumstance where I yield the floor. for our grand ideas. Special education what shows up on the computers of vir- The PRESIDING OFFICER. The Sen- for children with disabilities, but we tually every American is not only un- ator from Montana is recognized. say to the State and local govern- solicited messages but messages that Mr. BURNS. Mr. President, I thank ments, you pay the bill. New construc- come from anonymous sources all over my friend from North Dakota for his tion to stop storm water runoff, but we

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00048 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13033 say to the cities, you pay the bill. dom resides here, then we have no busi- mental mandate as defined in the Unfunded Higher standards for roads, we say to ness telling State and local govern- Mandates Reform Act (UMRA). CBO esti- the States, you pay the bill. New ments how they pay the bill for legiti- mates that the mandate would cause state standards for highly qualified teachers, mate services. and local governments to lose revenue begin- ning in October 2006; those losses would ex- you pay the bill. We call these un- We should read the Tenth Amend- ceed the threshold established in UMRA ($64 funded mandates. ment to the Constitution and get back million in 2007, adjusted annually for infla- What I want to talk about today is to our basic job of funding war, wel- tion) by 2007. While there is some uncer- the worst kind of unfunded mandate. fare, Social Security, Medicare, and tainty about the number of states affected, Not only do we have grand ideas and debt. And leave decisions about what CBO estimates that the direct costs to states are telling State and local govern- services to provide and what taxes to and local governments would probably total ments that they have to pay for them, impose to State and local governments between $80 million and $120 million annu- we now want to tell them how to pay and to State and locally elected offi- ally, beginning in 2007. The bill contains no new private-sector mandates as defined in for them. The latest such example is to cials. UMRA. tell State and local governments that a Under the rules of the Senate, be- ESTIMATED COST TO THE FEDERAL tax on Internet access or telephones is cause this bill imposes costs on States GOVERNMENT somehow a worse tax, a bad tax they without paying for them, it is an un- CBO estimates that enacting S. 150 would should not be allowed to pursue, than a funded mandate and subject to a point have no impact on the federal budget. tax on medicine, food, or an income of order to pass this bill that would ex- INTERGOVERNMENTAL MANDATES CONTAINED tax. tend the moratorium on State and IN THE BILL I supported a moratorium for 7 years local ability to tax access to the Inter- The Internet Tax Freedom Act (ITFA) cur- on State and local access to the Inter- net. rently prohibits state and local governments net so the Internet could get up and In its cost estimate of September 9, from imposing taxes on Internet access until get going, but now it is up and going. It 2003, the Congressional Budget Office November 1, 2003. The ITFA, enacted as Pub- ought to be absolutely on its own with determined that S. 150, as reported by lic Law 105–277 on October 21, 1998, also con- other commercial activity. Yet our the Commerce Committee, would im- tains an exception to this moratorium, friends in the House of Representatives pose direct costs on State and local sometimes referred to as the ‘‘grandfather and some in the Senate would not only governments of lost revenues of $80 clause,’’ which allows certain state and local extend the moratorium on State and governments to tax Internet access if such million to $120 million per year begin- tax was generally imposed and actually en- local taxes on Internet access, they ning in 2007. Because the estimate ex- forced prior to October 1, 1998. would broaden it. ceeds the threshold of $64 million for S. 150 would make the moratorium perma- This is none of the Congress’s busi- 2007, this is an intergovernmental man- nent and, after October 1, 2006, would elimi- ness. It is a State and local responsi- date, subject to a point of order. Ac- nate the grandfather clause. The bill also bility to decide how to pay the bill to cording to the Multi-state Tax Com- would state that the term ‘‘Internet access’’ fund State parks, local schools, roads, mission, the bill has the potential to or ‘‘Internet access services’’ as defined in prisons, colleges, and universities. exempt telephone and cable companies ITFA would not include telecommunications That is what Governors do. That is services except to the extent that such serv- from a broad array of State and local ices are used to provide Internet access what legislators do. That is what may- taxes that could amount to an un- (known as ‘‘aggregating’’ or ‘‘bundling’’ of ors do. That is what county commis- funded mandate on State and local gov- services). These extensions and expansions of sioners and city council men and ernments of up to $9 billion a year. the moratorium constitute intergovern- women do. Every Senator who votes to overturn mental mandates as defined in UMRA be- The inevitable result of such un- the point of order to this bill would be cause they would prohibit states from col- funded mandates from Washington, DC, voting for an unfunded mandate, which lecting taxes that they otherwise could col- telling States what taxes they can and most of us have promised not to do. lect. cannot use, is to transfer more govern- Let the moratorium on access to the ESTIMATED DIRECT COSTS OF MANDATES TO ment to Washington, DC, because here Internet die a well-deserved and nat- STATE AND LOCAL GOVERNMENTS we can print money to pay for it. It ural death when it expires on Novem- CBO estimates that repealing the grand- sounds awfully good to say we are ban- ber 1 and let us remember the Repub- father clause would result in revenue losses for as many as 10 states for several local gov- ning a tax, but what we are actually lican Congress 10 years ago promised to doing is favoring one tax over another ernments totaling between $80 million and end unfunded mandates. $120 million annually, beginning in 2007. We tax with the decision made in Wash- I ask unanimous consent that certain also estimate that the change in the defini- ington, DC. information from the Congressional tion of Internet access could affect tax reve- For example, if Tennessee’s ability to Budget Act describing unfunded man- nues for many states and local governments, have a broad-based sales tax is limited, dates and the point of order that is pos- but we cannot estimate the magnitude or the then the chances that Tennessee will sible to be raised in opposition to such timing of any such additional impacts at this time. have an income tax are higher, or a mandates be printed in the RECORD. UMRA includes in its definition of the di- higher tax on medicine or food, or There being no objection, the mate- higher college tuition for families to rect costs of a mandate the amounts that rial was ordered to be printed in the state and local governments would be pro- pay. The same goes for Florida, Texas, RECORD, as follows: hibited from raising in revenues to comply Washington State, or any other State. [Congressional Budget Office Cost Estimate] with the mandate. The direct costs of elimi- Some say this interference in State S. 150—INTERNET TAX nating the grandfather clause would be the prerogatives and local prerogatives is NONDISCRIMINATION ACT tax revenues that state and local govern- justified by the interstate commerce ments are currently collecting but would be AS ORDERED REPORTED BY THE SENATE COM- precluded from collecting under S. 150. clause of the Constitution, and that MITTEE ON COMMERCE, SCIENCE, AND TRANS- States also could lose revenues that they the Internet is too important to carry PORTATION ON JULY 31, 2003. currently collect on certain services, if those its fair share of the taxes. I ask: Is ac- SUMMARY cess to the Internet more important services are redefined as Internet access S. 150 would permanently extend a morato- under the bill. than food? If not, then why not limit rium on certain state and local taxation of Over the next five years there will likely the State sales tax on food, medicine, online services and electronic commerce, and be changes in the technology and the market electricity, natural gas, water, cor- after October 1, 2006, would eliminate an ex- for Internet access. Such changes are likely porations generally, car tags, tele- ception to that prohibition for certain to affect, at minimum, the price for access to phones, cable TV? They are all in inter- states. Under current law, the moratorium is the Internet as well as the demand for and state commerce. Let us limit the tax set to expire on November 1, 2003. CBO esti- the methods of such access. How these tech- on all of them from Washington, DC. mates that enacting S. 150 would have no im- nological and market changes will ulti- Unless we want to get rid of State pact on the federal budget, but beginning in mately affect state and local tax revenues is 2007, it would impose significant annual unclear, but for the purposes of this esti- and local governments and transfer all costs on some state and local governments. mate, CBO assumes that over the next five responsibilities for local schools, col- By extending and expanding the morato- years, these effects will largely offset each leges, prisons, State parks, and roads rium on certain types of state and local other, keeping revenues from taxes on Inter- to Washington, DC, and claim all wis- taxes, S. 150 would impose an intergovern- net access within the current range.

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THE GRANDFATHER CLAUSE Deputy Assistant Director for Budget Anal- sector mandates in the bill or joint resolu- The primary budget impact of this bill ysis tion will equal or exceed $100,000,000 (ad- would be the revenue losses—starting in Oc- SEC. 424. ø2 U.S.C. 658c¿ DUTIES OF THE DIREC- justed annually for inflation) in the fiscal tober 2006—resulting from eliminating the TOR; STATEMENTS ON BILLS AND year in which any Federal private sector grandfather clause that currently allows JOINT RESOLUTIONS OTHER THAN mandate in the bill or joint resolution (or in some state and local governments to collect APPROPRIATIONS BILLS AND JOINT any necessary implementing regulation) RESOLUTIONS. taxes on Internet access. While there is some would first be effective or in any of the 4 fis- (a) FEDERAL INTERGOVERNMENTAL MAN- uncertainty about the number of jurisdic- cal years following such fiscal year, the Di- DATES IN REPORTED BILLS AND RESOLU- tions currently collecting such taxes—and rector shall so state, specify the estimate, TIONS.—For each bill or joint resolution of a the precise amount of those collections— and briefly explain the basis of the estimate. public character reported by any committee CBO believes that as many as 10 states (Ha- (2) ESTIMATES.—Estimates required under of authorization of the Senate or the House paragraph (1) shall include estimates (and a waii, New Hampshire, New Mexico, North of Representatives, the Director of the Con- brief explanation of the basis of the esti- Dakota, Ohio, South Dakota, Tennessee, gressional Budget Office shall prepare and mates) of— Texas, Washington, Wisconsin) and several submit to the committee a statement as fol- (A) the total amount of direct costs of local jurisdictions in Colorado, Ohio, South lows: complying with the Federal private sector Dakota, Texas, Washington, and Wisconsin (1) CONTENTS.—If the Director estimates mandates in the bill or joint resolution; and are currently collecting such taxes and that that the direct cost of all Federal intergov- (B) the amount, if any, of increase in au- these taxes total between $80 million and ernmental mandates in the bill or joint reso- thorization of appropriations under existing $120 million annually. The estimate is based lution will equal or exceed $50,000,000 (ad- Federal financial assistance programs, or of on information from the states involved, justed annually for inflation) in the fiscal authorization of appropriations for new Fed- from industry sources, and from the Depart- year in which any Federal intergovern- eral financial assistance, provided by the bill ment of Commerce. In arriving at this esti- mental mandate in the bill or joint resolu- or joint resolution usable by the private sec- mate, CBO took into account the fact that tion (or in any necessary implementing regu- tor for the activities subject to the Federal some companies are challenging the applica- lation) would first be effective or in any of private sector mandates. bility of the tax to the service they provide the 4 fiscal years following such fiscal year, (3) ESTIMATE NOT FEASIBLE.—If the Direc- and thus may not be collecting or remitting the Director shall so state, specify the esti- tor determines that it is not feasible to the taxes even though the states feel they mate, and briefly explain the basis of the es- make a reasonable estimate that would be are obligated to do so. So potential liabil- timate. required under paragraphs (1) and (2), the Di- ities are not included in the estimate. (2) ESTIMATES.—Estimates required under rector shall not make the estimate, but shall It is possible that if the moratorium were paragraph (1) shall include estimates (and report in the statement that the reasonable allowed to expire as scheduled under current brief explanations of the basis of the esti- estimate cannot be made and shall include law, some state and local governments would mates) of— the reasons for that determination in the enact new taxes or decide to apply existing (A) the total amount of direct cost of com- statement. taxes to Internet access during the next five plying with the Federal intergovernmental (c) LEGISLATION FALLING BELOW THE DI- years. It is also possible that some govern- mandates in the bill or joint resolution; RECT COSTS THRESHOLDS.—If the Director es- ments would repeal existing taxes or pre- (B) if the bill or resolution contains an au- timates that the direct costs of a Federal clude their application to these services. Be- thorization of appropriations under section mandate will not equal or exceed the thresh- cause such changes are difficult to predict, 425(a)(2)(B), the amount of new budget au- olds specified in subsections (a) and (b), the Director shall so state and shall briefly ex- for the purposes of estimating the direct thority for each fiscal year for a period not plain the basis of the estimate. costs of the mandate, CBO considered only to exceed 10 years beyond the effective date (d) AMENDED BILLS AND JOINT RESOLUTIONS; the revenues from taxes that are currently necessary for the direct cost of the intergov- in place and actually being collected. CONFERENCE REPORTS.—If a bill or joint reso- ernmental mandate; and lution is passed in an amended form (includ- DEFINITION OF INTERNET ACCESS (C) the amount, if any, of increase in au- ing if passed by one House as an amendment Depending on how the language altering thorization of appropriations under existing in the nature of a substitute for the text of the definition of what telecommunications Federal financial assistance programs, or of a bill or joint resolution from the other services are taxable is interpreted, that lan- authorization of appropriations for new Fed- House) or is reported by a committee of con- guage also could result in substantial rev- eral financial assistance, provided by the bill ference in amended form, and the amended enue losses for states and local governments. or joint resolution and usable by State, local form contains a Federal mandate not pre- It is possible that states could lose revenue or tribal governments for activities subject viously considered by either House or which if services that are currently taxes are rede- of the Federal intergovernmental mandates. contains an increase in the direct cost of a fined as Internet ‘‘access’’ under the defini- (3) ADDITIONAL FLEXIBILITY INFORMATION.— previously considered Federal mandate, then tion in S. 150. Revenues could also be lost if The Director shall include in the statement the committee of conference shall ensure, to Internet access providers choose to bundle submitted under this subsection, in the case the greatest extent practicable, that the Di- products and call the product Internet ac- of legislation that makes changes as de- rector shall prepare a statement as provided cess. Such changes would reduce state and scribed in section 421(5)(B)(i)(II)— in this subsection or a supplemental state- local revenues from telecommunications (A) if no additional flexibility is provided ment for the bill or joint resolution in that taxes and possibly revenues from content in the legislation, a description of whether amended form. and how the States can offset the reduction currently subject to sales and use taxes. SEC. 425. [2 U.S.C. 658d] LEGISLATION SUBJECT However, CBO cannot estimate the mag- under existing law; or TO POINT OF ORDER nitude of these losses. (B) if additional flexibility is provided in (a) IN GENERAL.—It shall not be in order in the legislation, whether the resulting sav- ESTIMATED IMPACT ON THE PRIVATE SECTOR the Senate or the House of Representatives ings would offset the reductions in that pro- This bill would impose no new private-sec- to consider— gram assuming the States fully implement (1) any bill or joint resolution that is re- tor mandates as defined in UMRA. that additional flexibility. ported by a committee unless the committee PREVIOUS CBO ESTIMATE (4) ESTIMATE NOT FEASIBLE.—If the Direc- has published a statement of the Director on On July 21, 2003, CBO transmitted a cost tor determines that it is not feasible to the direct costs of Federal mandates in ac- estimate for H.R. 49, the Internet Tax Non- make a reasonable estimate that would be cordance with section 423(f) before such con- discrimination Act, as ordered reported by required under paragraphs (1) and (2), the Di- sideration, except this paragraph shall not the House Committee on the Judiciary on rector shall not make the estimate, but shall apply to any supplemental statement pre- July 16, 2003. Unlike H.R. 49, which would report in the statement that the reasonable pared by the Director under section 424(d); eliminate the grandfather clause upon pas- estimate cannot be made and shall include and sage, S. 150 would allow the grandfather the reasons for that determination in the (2) any bill, joint resolution, amendment, clause to remain in effect until October 2006. statement. If such determination is made by motion, or conference report that would in- Thus, while both bills contain an intergov- the Director, a point of order under this part crease the direct costs of Federal intergov- ernmental mandate with costs above the shall lie only under section 425(a)(1) and as if ernmental mandates by an amount that threshold, the enactment of S. 150 would not the requirement of section 425(a)(1) had not causes the thresholds specified in section result in revenue losses to states until Octo- been met. 424(a)(1) to be exceeded, unless— ber 2006. (b) FEDERAL PRIVATE SECTOR MANDATES IN (A) the bill, joint resolution, amendment, REPORTED BILLS AND JOINT RESOLUTIONS.— motion, or conference report provides new ESTIMATE PREPARED BY: For each bill or joint resolution of a public budget authority or new entitlement author- Impact on State, Local, and Tribal Govern- character reported by any committee of au- ity in the House of Representatives or direct ments: Sarah Puro thorization of the Senate or the House of spending authority in the Senate for each Federal Costs: Melissa Zimmerman Representatives, the Director of the Congres- fiscal year for such mandates included in the Impact on the Private Sector: Paige Piper/ sional Budget Office shall prepare and sub- bill, joint resolution, amendment, motion, or Bach mit to the committee a statement as follows: conference report in an amount equal to or ESTIMATE APPROVED BY: (1) CONTENTS.—If the Director estimates exceeding the direct costs of such mandate; Peter H. Fontaine that the direct cost of all Federal private or

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00050 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13035 (B) the bill, joint resolution, amendment, Committee on Appropriations of the Senate The PRESIDING OFFICER (Ms. COL- motion, or conference report includes an au- or House of Representatives; LINS). Without objection, it is so or- thorization for appropriations in an amount (iii) any legislative provision increasing di- dered. equal to or exceeding the direct cost of such rect costs of a Federal intergovernmental mandate, and— mandate in a conference report accom- AMENDMENT NO. 1894 (i) identifies a specific dollar amount of panying a bill or resolution reported by the Mr. MCCAIN. Madam President, I the direct costs of such mandate for each Committee on Appropriations of the Senate send an amendment to the desk on be- year up to 10 years during which such man- or House of Representatives; and half of Senators SANTORUM and ENZI, date shall be in effect under the bill, joint *** and I ask for its immediate consider- resolution, amendment, motion or con- The PRESIDING OFFICER. The Sen- ation. ference report, and such estimate is con- ator from Oregon. The PRESIDING OFFICER. The sistent with the estimate determined under Mr. WYDEN. Before the Senator from subsection (e) for each fiscal year; clerk will report. Tennessee leaves the floor, I say to him The legislative clerk read as follows: (ii) identifies any appropriations bill that I have my hands full today with spam is expected to provide for Federal funding of The Senator from Arizona [Mr. MCCAIN], the direct cost referred to under clause (i); so I am not going to get into the sub- for Mr. ENZI and Mr. SANTORUM, proposes an and stance of the Internet Tax Freedom amendment numbered 1894. (iii)(I) provides that for any fiscal year the Act that, as my friend knows, I have Mr. MCCAIN. Madam President, I ask responsible Federal agency shall determine been a sponsor of in the Senate with unanimous consent that reading of the whether there are insufficient appropriation OX in the other body. I Congressman C amendment be dispensed with. for that fiscal year to provide for the direct am always anxious to work with my costs under clause (i) of such mandate, and The PRESIDING OFFICER. Without colleague from Tennessee. objection, it is so ordered. shall (no later than 30 days after the begin- Essentially, the arguments being ning of the fiscal year) notify the appro- The amendment is as follows: priate authorizing committees of Congress of made today against the Internet Tax Freedom Act are identical to the ones (Purpose: To require warning labels on the determination and submit either— sexually explicit commercial e-mail) (aa) a statement that the agency has deter- that were made 5 years ago. If we were mined, based on a re-estimate of the direct to look at the transcript 5 years ago On page 51, after line 22, insert the fol- lowing: costs of such mandate, after consultation before the Senate Commerce Com- with State, local, and tribal governments, (d) REQUIREMENT TO PLACE WARNING LA- mittee, we were told the States and lo- BELS ON COMMERCIAL ELECTRONIC MAIL CON- that the amount appropriated is sufficient to calities would be stripped of the rev- pay for the direct costs of such mandate; or TAINING SEXUALLY ORIENTED MATERIAL.— (bb) legislative recommendations for either enue they needed. We were pretty (1) IN GENERAL.—No person may initiate in implementing a less costly mandate or mak- much told western civilization was or affecting interstate commerce the trans- ing such mandate ineffective for the fiscal going to end at that time. mission, to a protected computer, of any un- year; Ever since then, as we have gone solicited commercial electronic mail mes- (II) provides for expedited procedures for through 5 years of experience, we have sage that includes sexually oriented mate- rial and— the consideration of the statement or legis- not seen that to be the case. States and lative recommendations referred to in sub- (A) fail to include in subject heading for localities have not been stripped of the the electronic mail message the marks or clause (I) by Congress no later than 30 days revenue they need. Internet sales are after the statement or recommendations are notices prescribed by the Commission under submitted to Congress; and still perhaps only 2 percent of the econ- this subsection; or (III) provides that such mandate shall— omy. No jurisdiction has shown that (B) fail to provide that the matter in the (aa) in the case of a statement referred to they have been hurt by their inability message that is initially viewable to the re- in subclause (I)(aa), cease to be effective 60 to discriminate against the Internet, cipient, when the message is opened by any days after the statement is submitted unless and that is all this law stands for is recipient and absent any further actions by Congress has approved the agency’s deter- the recipient, includes only— technological neutrality, treating the (i) to the extent required or authorized mination by joint resolution during the 60- online world like the offline world is day period; pursuant to paragraph (2), any such marks or (bb) cease to be effective 60 days after the treated. notices; date the legislative recommendations of the As I said to my good friend, I have (ii) the information required to be included responsible Federal agency are submitted to my hands full today with spam so we in the message pursuant to subsection (a)(5); Congress under subclause (I)(bb) unless Con- will debate the Internet Tax Freedom and gress provides otherwise by law; or Act another day. I am anxious to work (iii) instructions on how to access, or a (cc) in the case that such mandate that has with my colleague. I would only point mechanism to access, the sexually oriented material. not yet taken effect, continue not to be ef- out the reauthorization of the Internet fective unless Congress provides otherwise (2) PRESCRIPTION OF MARKS AND NOTICES.— by law. Tax Freedom Act passed the Commerce Not later than 120 days after the date of the (b) RULE OF CONSTRUCTION.—The provisions Committee unanimously. It is the first enactment of this Act, the Commission in of subsection (a)(2)(B)(iii) shall not be con- time since we have been at this that it consultation with the Attorney General strued to prohibit or otherwise restrict a has been passed unanimously. I think shall prescribe clearly identifiable marks or State, local, or tribal government from vol- it is going to be an important debate I notices to be included in or associated with untarily electing to remain subject to the will certainly be anxious to talk with unsolicited commercial electronic mail that original Federal intergovernmental man- my colleague about at that time. contains sexually oriented material, in order date, complying with the programmatic or Again, we are hoping those with the to inform the recipient of that fact and to fa- financial responsibilities of the original Fed- cilitate filtering of such electronic mail. The eral intergovernmental mandate and pro- amendments that have been made in Commission shall publish in the Federal viding the funding necessary consistent with order to the spam bill will come to the Register and provide notice to the public of the costs of Federal agency assistance, moni- floor. We could finish this legislation the marks or notices prescribed under this toring, and enforcement. in perhaps half an hour, pass a very im- paragraph. (c) COMMITTEE ON APPROPRIATIONS.— portant proconsumer measure by pret- (3) DEFINITION.—In this subsection, the (1) APPLICATION.—The provisions of sub- ty close to a unanimous vote in the term ‘‘sexually oriented material’’ means section (a)— Senate. Senator BURNS and I are cer- any material that depicts sexually explicit (A) shall not apply to any bill or resolution tainly hoping that will be the case and conduct (as that term is defined in section reported by the Committee on Appropria- 2256 of title 18, United States Code), unless tions of the Senate or the House of Rep- hope in particular that Senator the depiction constitutes a small and insig- resentatives; except CORZINE, Senator ENZI, and Senator nificant part of the whole, the remainder of (B) shall apply to— SANTORUM will come to the floor and which is not primarily devoted to sexual (i) any legislative provision increasing di- we could be done very quickly. matters. rect costs of a Federal intergovernmental I suggest the absence of a quorum. (4) PENALTY.—A violation of paragraph (1) mandate contained in any bill or resolution The PRESIDING OFFICER. The is punishable as if it were a violation of sec- reported by the Committee on Appropria- clerk will call the roll. tion 1037(a) of title 18, United States Code. tions of the Senate or House of Representa- The assistant legislative clerk pro- Mr. ENZI. Madam President, today I tives; (ii) any legislative provision increasing di- ceeded to call the roll. introduce an amendment to the CAN– rect costs of a Federal intergovernmental Mr. MCCAIN. Madam President, I ask SPAM Act. As some of my colleagues mandate contained in any amendment of- unanimous consent that the order for have already expressed, unsolicited fered to a bill or resolution reported by the the quorum call be rescinded. commercial e-mail, also known as

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00051 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13036 CONGRESSIONAL RECORD — SENATE October 22, 2003 spam, aggravates many computer to get to the explicit images or text. unsolicited e-mail that contains sexu- users. Not only can it be a nuisance, Adding this firewall allows users to opt ally oriented material unless they la- but its cost may be passed on to con- out of spam e-mail lists and delete of- beled it as prescribed by the FTC. The sumers in the form of wasted time, en- fensive e-mails from their inbox with- criminal penalties for this section ergy and money spent to handle and out ever being exposed to their con- would be the same as those contained filter out unwanted spam e-mails. Also, tent. in the Hatch-Leahy amendment. e-mail service providers incur substan- As a Senator from the rural State of I strongly support the amendment tial costs when they are forced to up- Wyoming, I fully appreciate the value and urge its adoption. grade their equipment to process the that the Internet holds for electronic The PRESIDING OFFICER. The Sen- millions of spam e-mails that they re- communication and business across ator from Oregon. ceive every day. Spam e-mail is a time long distances. This amendment would Mr. WYDEN. Madam President, let and money vacuum. I support the CAN– allow both communication and busi- me associate myself with the remarks SPAM Act because it empowers us to ness to continue and prosper. However, of the distinguished chairman of the stop these unwanted and unwelcome e- it also takes an important step in pro- committee. Every Member understands mails. tecting Internet and e-mails users, es- that pornography being transmitted A recent study conducted by the Fed- pecially minors, from receiving sexu- through spam is a scourge. There is no eral Trade Commission found that 66 ally explicit, offensive and unwanted question about it. What we have done, percent of spam contains false or mis- content in their e-mails. Most people because we have just seen this, is we leading claims. Another 18 percent con- check their inboxes without an idea of have asked the minority on the Judici- tains pornographic or adult content. what might have landed there or who ary Committee, under the leadership of My amendment mandates stronger re- might have sent it. This amendment Senator LEAHY, to take a look at this. strictions that would prevent the in- makes that process more transparent We are very hopeful that we will be creasing amount of spam e-mail con- and gives control back to the Internet able to approve this language in just a taining explicit content from reaching user who doesn’t want to be exposed to few minutes. Again, we are hoping that unintended recipients. There is clearly indecent, offensive or explicit content. this bill will be passed, certainly with- a need to address this in the CAN– Mr. MCCAIN. Madam President, this in 20, 25 minutes, and we will have a SPAM Act because it is potentially the amendment by Senators SANTORUM and comment from the Democrats on the most offensive type of spam on the ENZI requires warning labels on sexu- Judiciary Committee very shortly. I share Chairman MCCAIN’s view that Internet today. There are sorely mis- ally explicit commercial e-mail to reg- this is an extremely important issue. guided individuals—spamers—whose ulate interstate commerce by imposing When you think about spam, the first sole mission is to e-mail as many peo- limitations and penalties on the trans- thing parents all over this country ple as possible, regardless of age, inde- mission of unsolicited commercial elec- think about is the flood that is being cent material. Internet users, espe- tronic mail via the Internet. cially minors, should not be involun- Basically, this amendment says no targeted at families from coast to tarily exposed to explicit content by person may initiate or affect interstate coast. I am hopeful we will get this ap- simply checking their e-mail inbox. My commerce the transmission, to a pro- proved in a matter of minutes. I suggest the absence of a quorum. amendment would protect these people tected computer, of any unsolicited The PRESIDING OFFICER. The in two ways: commercial electronic mail message clerk will call the roll. First, it would place a notice, ap- that includes sexually oriented mate- The legislative clerk proceeded to proved by the FTC, in the subject head- rial and fail to include in the subject call the roll. er of spam e-mail that contains ex- heading for the electronic mail mes- Mr. MCCAIN. Madam President, I ask plicit content. Usually, a subject head- sage the marks or notices prescribed by unanimous consent that the order for er is a title line noting the content of the Commission, or fail to provide that the quorum call be rescinded. the message that has arrived in your the matter in the message that is ini- The PRESIDING OFFICER. Without inbox. However, in a virtual world al- tially viewable to the recipient, when objection, it is so ordered. ready saturated with millions of pieces the message is opened by any recipient, Mr. MCCAIN. Madam President, for of spam e-mail, spammers often title e- and absent any further actions by the the benefit of my colleagues, we have a mails with catchy phrases and what- recipient, includes only to the extent Landrieu amendment which the Sen- ever they think will get the most peo- required or authorized pursuant to any ator from Louisiana has been kind ple to open the message and read their such marks or notices; the information enough to withdraw, but we need to advertisements. Now spam e-mail with required to be included in the message discuss what we need to do in the form explicit and offensive material is often is clear. of sending a letter to the Federal Trade camouflaged by an inviting and com- This amendment also prescribes that Commission instructing them to take pletely misleading subject heading. not later than 120 days after the date of certain actions which I will discuss in This is a common way that many e- the enactment of this act, the Commis- a minute; a Corzine amendment which mail users end up being involuntarily sion, the Federal Trade Commission, in has two parts to it, which both sides exposed to offensive sexual content. consultation with the Attorney Gen- have agreed to; and then I don’t believe Adding a notice in the subject heading eral, shall prescribe clearly identifiable there will be any further amendments, would immediately alert the computer marks or notices to be included in or although that is not completely clear. user that the message contained within associated with unsolicited commercial We could expect a vote on final passage has explicit and possibly offensive con- electronic mail that contains sexually relatively soon. tent and should not be viewed by mi- oriented material, in order to inform Senator LANDRIEU was going to offer nors. This notice would alert the e- the recipient of this message, of the an amendment that would have re- mail recipient and allow him or her to material, of that fact to facilitate fil- quired the Consumer Product Safety organize and filter their mail for any tering of such electronic mail. Commission to undertake a rule- unwanted material. As all of us have discussed in consid- making to have manufacturers create a Second, my amendment would re- eration of this bill, one of the great database for consumers to be notified quire that all spam e-mail with explicit concerns all of us have is pornographic of certain product recalls. I have com- content add an opening page to all cop- material that is transmitted in the mitted to Senator LANDRIEU to work ies of their e-mail being sent to un- form of spam. According to several ex- with the CPSC to solicit these views on known recipients. This opening page perts, 20 percent of unsolicited spam is her legislation and ask how best to ac- would not contain any explicit images pornography. This is an effort on the complish her worthy goals of better in- or text, but instead have a link that part of Senators ENZI and SANTORUM to forming consumers about product re- would link users to that content if try to at least begin addressing this calls. they wished. This valuable provision issue. It is a valuable and important Senator LANDRIEU has hit on a very would protect minors and other e-mail contribution in the form of trying to important issue. Unless you happen to users by requiring that the recipient identify it and to bring it under con- see it by accident mentioned on tele- purposefully act and ‘‘click’’ in order trol. It would make it a crime to send vision, the recalls are very seldom

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00052 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13037 known by at least a majority of those tion for 4 years, that this was some- viders, and others—have to be prepared who would be affected by it. I commit thing that was going to be picked up by to come down on those 200 or 300 big- to Senator LANDRIEU to see how we can a lot of people—the good, the bad, and time spammers with hobnail boots. A best accomplish that. I appreciate her the ugly, so to speak. lot of them are not exactly quaking to- forbearance at this time in with- So we went to work on it then and we night at the prospect of Senate action. drawing the amendment. I hope we can have been working on it ever since. We They are not convinced that the Sen- satisfy her concerns by asking for rapid thought we had a chance last year to ate is really going to insist on strong action on the part of the Consumer pass it. I would say we had not really oversight. We saw today, because of Product Safety Commission. done all of our homework, and we what was said by Senator HATCH and I yield the floor. didn’t get it passed. Senator LEAHY, that they are com- The PRESIDING OFFICER. The Sen- I appreciate the leadership of both mitted to strong enforcement and vig- ator from Oregon. the chairman and ranking member of orous oversight. Mr. WYDEN. Madam President, on the Commerce Committee and also my I believe as a result of the attention behalf of the minority, Senator HOL- good friend from Oregon. We have the Senate has given to this issue, LINGS believes that Senator LANDRIEU worked hard on this legislation. when this bill is signed into law, we are is raising a very important issue for I really believe, with the debate going to see very quickly a handful of consumers and kids. We do want to going on in the House now, that the very tough, significant enforcement ac- work closely with her and move ahead time has come. I don’t go to a townhall tions with real penalties and the pros- on her initiative. It is an important meeting or meet a friend who doesn’t pect of spammers going to jail and pay- one for families. say: Take care of that spam. I tell my ing million-dollar fines. That is the Mr. MCCAIN. Madam President, as friends also that this will not do it to- kind of deterrence we need. we are nearing the end, I am waiting tally. The industry is going to have to The text of this law is very impor- for the Corzine amendment that we come together using new technologies tant, but it is only as good a law as we will discuss and adopt. Then I believe in order to get it done, and I think the see backed up by enforcement. We have we will be able to move to final pas- industry will now because they know a commitment today from Chairman sage. I am not positive, but I think we we are serious about criminal charges, HATCH and Senator LEAHY to follow up will be able to. I would like to again fines, the result of violations of this and ensure that that kind of enforce- express my appreciation to the Senator law. ment takes place. With that, I think from Montana, Mr. BURNS, and Senator So I think we send a very strong mes- we take a very significant step forward WYDEN. Four years is a long time to sage to those people who would use the in terms of protecting the rights of work on a single issue. When these two Internet to do what is not acceptable consumers who right now find a bliz- Senators began work on this issue, to the American public. zard of spam every single time they spam was minuscule as compared to I thank my friends and I yield the turn on their computer. what it is today. I must admit, I didn’t floor. I yield the floor and I suggest the ab- pay much attention to it then, nor did The PRESIDING OFFICER. The Sen- sence of a quorum. the members of the Commerce Com- ator from Oregon is recognized. The PRESIDING OFFICER. The mittee, nor the oversight agencies. Mr. WYDEN. Madam President, I clerk will call the roll. Both Senators had the foresight to see think we are about ready to actually The legislative clerk proceeded to the incredible proportions that this move to final passage. We have the call the roll. spamming would reach and the effect Corzine amendment and another one Mr. MCCAIN. I ask unanimous con- that it would have not only on our coming from the Senator from Iowa. I sent that the order for the quorum call ability to use e-commerce and e-com- think we are very close to being able to be rescinded. munications but also on our ability to move ahead. The PRESIDING OFFICER. Without improve productivity. I wish to express my thanks to the objection, it is so ordered. The costs involved in the spamming leadership of the committee and my Mr. MCCAIN. Madam President, I ask issue are pretty incredible when you partner for over 4 years, Senator unanimous consent that we lay aside count it all up according to certain ex- BURNS, on this legislation. the pending amendment so Senator perts. The bottom line here is that when HARKIN may be recognized. this bill becomes law, big-time So I thank our staffs who have AMENDMENT NO. 1895 spamming, in effect, becomes an out- worked on this for so long. Without the Mr. HARKIN. Madam President, I law business. For the first time, the leadership of the Senator from Mon- send an amendment to the desk. kingpin spammers are going to be at tana, Mr. BURNS, and that of Senator The PRESIDING OFFICER. The risk of Federal prosecution, Federal WYDEN, we would not have been able to clerk will report. Trade Commission enforcement, mil- move this, after several hearings in the The assistant legislative clerk read lion-dollar lawsuits by State attorneys Commerce Committee, to the floor of as follows: the Senate. I have some confidence general and Internet service providers. that our friends on the other side of The reason that is the case is that big- The Senator from Iowa [Mr. HARKIN], for himself, and Mr. GRASSLEY, proposes an the Capitol will act with some dispatch time spammers would have to violate amendment numbered 1895. since they are as wary as we are of the this bill in order for their sleazy oper- Mr. HARKIN. Madam President, I gravity of this problem. As soon as we ations to continue. If they don’t hide ask unanimous consent that further get the Corzine amendment, we will their identity, their messages will get reading of the amendment be dispensed move forward. filtered out. If they don’t use mis- with. The PRESIDING OFFICER. The Sen- leading subject lines, people are going The PRESIDING OFFICER. Without ator from Montana is recognized. to go click and these garbage messages objection, it is so ordered. Mr. BURNS. Madam President, I as- will go straight into the trash unread. sociate myself with the words of the It seems to me there is a chance now, The amendment is as follows: chairman of the committee. Four years recognizing that we still need inter- (To provide competitive grants for training ago we started on this, and it has blos- national cooperation and tough en- court reporters and closed captioners to meet requirements for realtime writers somed. I think it was pretty obvious to forcement, to make a very significant under the Telecommunications Act of 1996, a lot of us what the impact of the step forward for consumers all across and for other purposes) Internet would be on our everyday the country. At the appropriate place add the following: communications and the technologies I will conclude by way of saying that, SECTION 1. SHORT TITLE. and services and information it pro- again, I think enforcement is going to This title may be cited as the ‘‘Training vides. But also starting then was this be the key to making this legislation for Realtime Writers Act of 2003’’. unwanted mail that would show up in work. When this bill is signed into law, SEC. 2. FINDINGS. your mailbox. It didn’t mean much at I have been saying that the enforcers— Congress makes the following findings: first, but it was obvious to a lot of us, the Justice Department, State attor- (1) As directed by Congress in section 723 of who have been working on this legisla- neys general, Internet service pro- the Communications Act of 1934 (47 U.S.C.

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613), as added by section 305 of the Tele- tial to train or provide job placement assist- (b) SCHOLARSHIPS.— communications Act of 1996 (Public Law 104– ance to realtime writers; or (1) AMOUNT.—The amount of a scholarship 104; 110 Stat. 126), the Federal Communica- (3) propose the most promising and innova- under subsection (a)(2) shall be based on the tions Commission adopted rules requiring tive approaches for initiating or expanding amount of need of the recipient of the schol- closed captioning of most television pro- training and job placement assistance efforts arship for financial assistance, as deter- gramming, which gradually require new with respect to realtime writers. mined in accordance with part F of title IV video programming to be fully captioned be- (d) DURATION OF GRANT.—A grant under of the Higher Education Act of 1965 (20 U.S.C. ginning in 2006. this section shall be for a period of two 1087kk). (2) More than 28,000,000 Americans, or 8 years. (2) AGREEMENT.—Each recipient of a schol- percent of the population, are considered (e) MAXIMUM AMOUNT OF GRANT.—The arship under subsection (a)(2) shall enter deaf or hard of hearing, and many require amount of a grant provided under subsection into an agreement with the National Tele- captioning services to participate in main- (a) to an entity eligible may not exceed communications and Information Adminis- stream activities. $1,500,000 for the two-year period of the grant tration to provide realtime writing services (3) More than 24,000 children are born in under subsection (d). for a period of time (as determined by the the United States each year with some form SEC. 4. APPLICATION. Administration) that is appropriate (as so of hearing loss. (a) IN GENERAL.—To receive a grant under determined) for the amount of the scholar- (4) According to the Department of Health section 3, an eligible entity shall submit an ship received. and Human Services and a study done by the application to the National Telecommuni- (3) COURSEWORK AND EMPLOYMENT.—The National Council on Aging— cations and Information Administration at Administration shall establish requirements (A) 25 percent of Americans over 65 years such time and in such manner as the Admin- for coursework and employment for recipi- old are hearing impaired; istration may require. The application shall ents of scholarships under subsection (a)(2), (B) 33 percent of Americans over 70 years contain the information set forth under sub- including requirements for repayment of old are hearing impaired; and section (b). scholarship amounts in the event of failure (C) 41 percent of Americans over 75 years to meet such requirements for coursework (b) INFORMATION.—Information in the ap- old are hearing impaired. plication of an eligible entity under sub- and employment. Requirements for repay- (5) The National Council on Aging study section (a) for a grant under section 3 shall ment of scholarship amounts shall take into also found that depression in older adults include the following: account the effect of economic conditions on may be directly related to hearing loss and (1) A description of the training and assist- the capacity of scholarship recipients to find disconnection with the spoken word. ance to be funded using the grant amount, work as realtime writers. (c) ADMINISTRATIVE COSTS.—The recipient (6) Empirical research demonstrates that including how such training and assistance of a grant under section 3 may not use more captions improve the performance of individ- will increase the number of realtime writers. than 5 percent of the grant amount to pay uals learning to read English and, according (2) A description of performance measures administrative costs associated with activi- to numerous Federal agency statistics, could to be utilized to evaluate the progress of in- ties funded by the grant. benefit— dividuals receiving such training and assist- (A) 3,700,000 remedial readers; (d) SUPPLEMENT NOT SUPPLANT.—Grants ance in matters relating to enrollment, com- (B) 12,000,000 young children learning to amounts under this Act shall supplement pletion of training, and job placement and read; and not supplement other Federal or non- retention. (C) 27,000,000 illiterate adults; and Federal funds of the grant recipient for pur- (3) A description of the manner in which (D) 30,000,000 people for whom English is a poses of promoting the training and place- the eligible entity will ensure that recipients second language. ment of individuals as realtime writers. of scholarships, if any, funded by the grant (7) Over the past 5 years, student enroll- will be employed and retained as realtime SEC. 6. REPORTS. ment in programs that train court reporters writers. (a) ANNUAL REPORTS.—Each eligible entity to become realtime writers has decreased (4) A description of the manner in which receiving a grant under section 3 shall sub- significantly, causing such programs to close the eligible entity intends to continue pro- mit to the National Telecommunications on many campuses. viding the training and assistance to be and Information Administration, at the end SEC. 3. AUTHORIZATION OF GRANT PROGRAM TO funded by the grant after the end of the of each year of the grant period, a report on PROMOTE TRAINING AND JOB the activities of such entity with respect to PLACEMENT OF REALTIME WRIT- grant period, including any partnerships or arrangements established for that purpose. the use of grant amounts during such year. ERS. (b) REPORT INFORMATION.— (5) A description of how the eligible entity (a) IN GENERAL.—The National Tele- (1) IN GENERAL.—Each report of an entity will work with local workforce investment communications and Information Adminis- for a year under subsection (a) shall include boards to ensure that training and assistance tration shall make competitive grants to eli- a description of the use of grant amounts by to be funded with the grant will further local gible entities under subsection (b) to pro- the entity during such year, including an as- workforce goals, including the creation of mote training and placement of individuals, sessment by the entity of the effectiveness of educational opportunities for individuals including individuals who have completed a activities carried out using such funds in in- who are from economically disadvantaged court reporting training program, as creasing the number of realtime writers. The backgrounds or are displaced workers. realtime writers in order to meet the re- assessment shall utilize the performance (6) Additional information, if any, of the quirements for closed captioning of video measures submitted by the entity in the ap- eligibility of the eligible entity for priority programming set forth in section 723 of the plication for the grant under section 4(b). in the making of grants under section 3(c). Communications Act of 1934 (47 U.S.C. 613) (2) FINAL REPORT.—The final report of an and the rules prescribed thereunder. (7) Such other information as the Adminis- entity on a grant under subsection (a) shall (b) ELIGIBLE ENTITIES.—For purposes of tration may require. include a description of the best practices this Act, an eligible entity is a court report- SEC. 5. USE OF FUNDS. identified by the entity as a result of the ing program that— (a) IN GENERAL.—An eligible entity receiv- grant for increasing the number of individ- (1) can document and demonstrate to the ing a grant under section 3 shall use the uals who are trained, employed, and retained Secretary of Commerce that it meets min- grant amount for purposes relating to the re- in employment as realtime writers. imum standards of educational and financial cruitment, training and assistance, and job SEC. 7. AUTHORIZATION OF APPROPRIATIONS. accountability, with a curriculum capable of placement of individuals, including individ- There is authorized to be appropriated to training realtime writers qualified to pro- uals who have completed a court reporting carry out this Act, amounts as follows: vide captioning services; training program, as realtime writers, in- (1) $20,000,000 for each of fiscal years 2004, (2) is accredited by an accrediting agency cluding— 2005, and 2006. recognized by the Department of Education; (1) recruitment; (2) Such sums as may be necessary for fis- and (2) subject to subsection (b), the provision cal year 2007. (3) is participating in student aid programs of scholarships; Mr. HARKIN. Madam President, under title IV of the Higher Education Act of (3) distance learning; 1965. (4) development of curriculum to more ef- today I am offering an amendment, a (c) PRIORITY IN GRANTS.—In determining fectively train realtime writing skills, and bill I introduced earlier this year, S. whether to make grants under this section, education in the knowledge necessary for the 480, the Training for Realtime Writers the Secretary of Commerce shall give a pri- delivery of high-quality closed captioning Act of 2003, on behalf of myself and ority to eligible entities that, as determined services; Senator GRASSLEY. The 1996 Telecom by the Secretary of Commerce— (5) assistance in job placement for upcom- Act requires that all television broad- (1) possess the most substantial capability ing and recent graduates with all types of casts were to be captioned by 2006. This to increase their capacity to train realtime captioning employers; was a much-needed reform that has writers; (6) encouragement of individuals with dis- (2) demonstrate the most promising col- abilities to pursue a career in realtime writ- helped millions of deaf and hard-of- laboration with local educational institu- ing; and hearing Americans to be able to take tions, businesses, labor organizations, or (7) the employment and payment of per- full advantage of television program- other community groups having the poten- sonnel for such purposes. ming. As of today, it is estimated that

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00054 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13039 3,000 captioners will be needed to fulfill on many campuses. Yet, the need for Iowa is a worthy cause. We appreciate this requirement, and that number these skills continues to rise. That is very much Senator HARKIN’s continued continues to increase as more and more why I thank the chairman and ranking commitment to those who are hearing broadband stations come online. Unfor- member for giving me this opportunity impaired in America. He has been a tunately, the United States only has to present this vital amendment, and, consistent and longtime advocate of 300 captioners. If our country expects hopefully, it can be accepted. this group of Americans. I thank him to have media fully captioned by 2006, To reiterate, in 1990 I authored a bill, for his other contributions. something must be done. that became legislation, that required I urge adoption of the amendment. This is an issue that I feel very that all television sets that have a size The PRESIDING OFFICER. The Sen- strongly about because my late brother 13-inch screen or larger have incor- ator from Oregon. Frank was deaf. I know personally that porated into that set a chip that would Mr. WYDEN. Mr. President, on behalf access to culture, news, and other automatically decode for closed cap- of Senator HOLLINGS, this is what we media was important to him and to tioning. That went into effect in 1996, think Government ought to be about: others in achieving a better quality of and all television sets now have a chip going to bat for these people. I encour- life. More than 28 million Americans, in them. If you have a remote, you can age the Senate to adopt the Harkin or 8 percent of the population, are con- punch it and closed captions will come amendment. sidered deaf or hard of hearing and up. The PRESIDING OFFICER. Is there many require captioning services to Then in 1996, Congress passed legisla- further debate on the amendment? If participate in mainstream activities. tion that said that, by the year 2006, we not, without objection, the amendment In 1990, I authored legislation that re- would have a policy that all television is agreed to. quired all television sets to be equipped programming would be real-time cap- The amendment (No. 1895) was agreed with a computer chip to decode closed tioned. Right now if you watch the to. Senate in debate, you will see real- captioning. This bill completes the Mr. HARKIN. Mr. President, I ask time captioning coming across the promise of that technology, affording unanimous consent to print in the screen. You see that on news programs deaf and hard of hearing Americans the RECORD the cosponsors of the amend- same equality and access that cap- and sports programs. So it is engaging. But we wanted real-time captioners ment. tioning provides. There being no objection, the mate- Though we do not necessarily think so that deaf and hard-of-hearing people around the country could watch tele- rial was ordered to be printed in the about it, the morning of September 11 RECORD, as follows: was a perfect example of the need for vision in a real-time setting and have COSPONSORS captioners. Holli Miller of Ankeny, IA, real-time captioning. So again, we said was captioning for Fox News. She was that by 2006 we wanted to have this Senators Max Baucus [MT], Jeff Bingaman done. Real-time captioning is a highly [NM], Jim Bunning [KY], Saxby Chambliss supposed to do her three and a half [GA], Thad Cochran [MS], Michael D. Crapo hour shift ending at 8 a.m. but, as we trained skill that people have to have, and it is estimated that it is going to [ID], Christopher J. Dodd [CT], Russell D. all know, disaster struck. Despite the Feingold [WI], Charles E. Grassley [IA], Tim fact that she had already worked most take about 3,000 captioners nationwide Johnson [SD], John F. Kerry [MA], Mary L. of her shift and had two small children to do this. Landrieu [LA], Patrick J. Leahy [VT], Madam President, right now there to care for, Holli Miller stayed right Blanche Lincoln [AR], Richard G. Lugar are only about 300 captioners nation- where she was and for nearly 5 more [IN], Bill Nelson [FL], Harry M. Reid [NV], ally. We only have 2 years to go before hours continued to caption. Without Charles E. Schumer [NY], Gordon Smith the congressionally mandated deadline [OR], Debbie Stabenow [MI], Evan Bayh [IN], even the ability to take bathroom of meeting this requirement. So, ear- John B. Breaux [LA], Conrad R. Burns [MT], breaks, Holli Miller made sure that lier this year, I introduced a bill, S. Hillary Rodham Clinton [NY], Larry E. Craig deaf and hard of hearing people got the 480, along with 40 cosponsors on both [ID], Michael DeWine [OH], John Edwards same news the rest of us got on Sep- sides of the aisle, providing for com- [NC], Lindsey O. Graham [SC], James M. Jef- tember 11. I want to personally say fords [VT], Edward M. Kennedy [MA], Herb petitive grants. These grants would go thank you to Holli Miller and all the Kohl [WI], Frank R. Lautenberg [NJ], Joseph to authorize entities, accredited by I. Lieberman [CT], Trent Lott [MS], Patty many captioners and other people their State education agencies, that across the country that made sure all Murray [WA], Mark Lunsford Pryor [AR], could then use these grants to fund Rick Santorum [PA], Jeff Sessions [AL], Americans were alert and informed on programs to get scholarships for re- Olympia J. Snowe [ME], Ron Wyden [OR]. that tragic day. cruitment, training, and job placement But let me emphasize that the deaf Mr. REID. I move to reconsider the to get this pipeline filled as soon as and hard of hearing population is only vote. possible with these real-time one of a number of groups that will Mr. MCCAIN. I move to lay that mo- captioners over the next couple of tion on the table. benefit from this legislation. The audi- years. ence for captioning also includes indi- The motion to lay on the table was That is the amendment I have sent to agreed to. viduals seeking to acquire or improve the desk. As I said, it has broad sup- literacy skills, including approxi- Mr. MCCAIN. Mr. President, Senator port. It is basically in the Commerce SANTORUM would like to speak about mately 27 million functionally illit- Committee jurisdiction. I know with erate adults, 3 to 4 million immigrants the Santorum-Enzi amendment, and the press of time, it wasn’t acted on then we will have the Corzine amend- learning English as a second language, this year. I thought this might be an and 18 million children learning to read ment, which I will propose, and then appropriate place to put it. I think it we will be ready, I believe, for final in grades kindergarten through 3. In will be widely supported by everybody. addition, I see people using closed cap- passage. I thank the ranking member and oth- I yield the floor. tioning to stay informed everywhere— ers for their positive reception of this from the gym to the airport. Cap- The PRESIDING OFFICER. The Sen- amendment on this bill. ator from Pennsylvania. tioning helps people educate them- The PRESIDING OFFICER (Mr. AMENDMENT NO. 1894 selves and helps all of us stay informed ALEXANDER). The Senator from Ari- and entertained when audio isn’t the zona. Mr. SANTORUM. I thank the Chair. most appropriate medium. Mr. MCCAIN. Mr. President, I ask Mr. President, I say to the Senator Madam President, although we have unanimous consent that Senator from Arizona that I appreciate he and two years to go until the deadline HATCH be added as a cosponsor to the the ranking member accepting this given by the 1996 Telecom Act, our Na- Enzi-Santorum amendment No. 1894, amendment that Senator ENZI and I tion is facing a serious shortage of and I ask unanimous consent that I be have proposed. As a father of six little captioners. Over the past five years, added as a cosponsor of S. 877. children who spend some time—not a student enrollment in programs that The PRESIDING OFFICER. Without lot of time—but some time on the train court reporters to become objection, it is so ordered. Internet, just viewing the amount of realtime writers has decreased signifi- Mr. MCCAIN. Mr. President, I think spam, the pornographic spam that cantly, causing such programs to close the amendment of the Senator from comes into my 10-year-old’s site, in

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00055 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13040 CONGRESSIONAL RECORD — SENATE October 22, 2003 some cases, is just absolutely fright- advertising as anybody else, but it The PRESIDING OFFICER. The ening. reaches a point where it is intruding clerk will call the roll. Senator ENZI and I had been working upon the American family and doing The assistant legislative clerk pro- on separate tracks, and those tracks real damage to young people, and we ceeded to call the roll. came together today in proposing an have to take a stand. Mr. MCCAIN. Mr. President, I ask amendment which would provide a I appreciate the support of the Sen- unanimous consent that the order for warning label on those kinds of mate- ator from Oregon and the Senator from the quorum call be rescinded. rials that will be in the subject line of Arizona. I speak on behalf of Senator The PRESIDING OFFICER. Without the e-mail so young people, as well as ENZI; we appreciate their consideration objection, it is so ordered. old, do not have to subject themselves and adoption of this amendment. AMENDMENT NO. 1896 to this rather disgusting attempt at Mr. MCCAIN. Mr. President, as we Mr. MCCAIN. On behalf of Senator advertising, if you want to call it that. await the completion of the Corzine CORZINE, I have an amendment at the This is an important piece of legisla- amendment, I suggest the absence of a desk. I ask for its immediate consider- tion. quorum. ation. I ask the Senator from Arizona, if I The PRESIDING OFFICER. The The PRESIDING OFFICER. The can get his attention for a moment. clerk will call the roll. clerk will report. Mr. WYDEN. Will the Senator yield? The legislative clerk proceeded to The assistant legislative clerk read Mr. SANTORUM. I am happy to yield call the roll. as follows: to the Senator from Oregon. Mr. MCCAIN. Mr. President, I ask The Senator from Arizona [Mr. MCCAIN], Mr. WYDEN. Mr. President, very unanimous consent that the order for for Mr. CORZINE, for himself, and Mr. GRA- briefly, I think the Senator from Penn- the quorum call be rescinded. HAM of South Carolina, proposes an amend- sylvania is trying to address a very im- The PRESIDING OFFICER. Without ment numbered 1896. portant issue. We have asked for the objection, it is so ordered. The amendment is as follows: Democrats on the Senate Judiciary Mr. MCCAIN. I believe the pending (Purpose: To direct the FTC to develop a sys- Committee, under Senator LEAHY’s amendment is the Santorum-Enzi tem for rewarding those who supply infor- leadership, to take a look at it. I think amendment. mation about violations of this Act and a we will have that answer quickly. The PRESIDING OFFICER. That is system for requiring ADV labeling on un- As the Senator knows, some of the correct. solicited commercial electronic mail) definitions in this area can get fairly Mr. MCCAIN. Mr. President, we have At the appropriate place, insert the fol- technical. We also understand that por- discussed this amendment and we have lowing: nography, which is conveyed through now received clearance from both sides SEC. ll. IMPROVING ENFORCEMENT BY PRO- spam across the Internet, is a real pub- of the aisle and I urge its adoption. VIDING REWARDS FOR INFORMA- The PRESIDING OFFICER. Is there TION ABOUT VIOLATIONS; LABEL- lic scourge. We are interested in get- ING. further debate on the amendment? If ting the Senator’s amendment adopted. (a) IN GENERAL.—The Commission shall I am hopeful we will be able to support not, the question is on agreeing to transmit to the Senate Committee on Com- it. amendment No. 1894. merce, Science, and Transportation and the Mr. SANTORUM. Mr. President, I say The amendment (No. 1894) was agreed House of Representatives Committee on En- to both the Senator from Oregon and to. ergy and Commerce— Mr. MCCAIN. I am told by the staff (1) A report within 9 months after the date the Senator from Arizona, I hear their that we will commence this vote at of enactment of this Act, that sets forth a words of encouragement. I encourage 6:30. I hope by that time we would have system for rewarding those who supply infor- them and would like their assurance the final writing of the Corzine amend- mation about violations of this Act, includ- that this amendment, as it is adopted, ing— ment, which I could propose at that will be held in conference. This is an (A) procedures for the Commission to grant time and have adopted since it is important issue that we need to deal a reward of not less than 20 percent of the agreed to by both sides. We are waiting with, and I hope they will fight to total civil penalty collected for a violation for that. Is that correct? make sure this amendment—the House of this Act to the first person that— Mr. LOTT. Mr. President, will the (i) identifies the person in violation of this has a similar amendment, but I would Senator yield? Act; and argue it is not as strong as this one, Mr. MCCAIN. I am glad to yield. (ii) supplies information that leads to the and I hope they will fight for the Mr. LOTT. Is the vote going to be at successful collection of a civil penalty by the stronger language of the Senate 6:30? Was the Senator asking consent Commission; and amendment in conference. that the final passage be at 6:30? (B) procedures to minimize the burden of Mr. MCCAIN. Mr. President, I assure The PRESIDING OFFICER. The Sen- submitting a complaint to the Commission concerning violations of this Act, including the Senator from Pennsylvania that we ator from Nevada. will do everything we can to hold it. I procedures to allow the electronic submis- Mr. REID. Mr. President, it is my un- sion of complaints to the Commission; and have to tell my friend from Pennsyl- derstanding the only amendment in (2) A report, within 18 months after the vania that probably the greatest single order that has not been resolved is the date of enactment of this Act, that sets forth aspect of this spamming that is so dis- Corzine amendment. Is that correct? a plan for requiring unsolicited commercial turbing to families all over America is Mr. MCCAIN. It has been resolved. We electronic mail to be identifiable from its the issue the Senator from Pennsyl- are just waiting for the language to be subject line, by means of compliance with vania raises, and that is this graphic done. We may have to fire some staff Internet Engineering Task Force standards, the use of the characters ‘‘ADV’’ in the sub- pornography that pops into view when people, I am afraid. Senator WYDEN was children are trying to do their home- ject line, or other comparable identifier, or writing them before. an explanation of any concerns the Commis- work, much less other entertaining as- Mr. REID. So it is my understanding sion has that cause the Commission to rec- pects of using the computer. the vote on this matter would occur at ommend against the plan. I want to work with the Senator from 6:30, is that what is being requested? (b) IMPLEMENTATION OF REWARD SYSTEMS.— Pennsylvania in every way we can to Mr. MCCAIN. Let me put it this way: The Commission may establish and imple- see if we can enact whatever safeguards I ask unanimous consent that after the ment the plan under subsection (a)(1), but to prevent this pollution of young adoption of the Corzine amendment, not earlier than 12 months after the date of Americans’ minds. the bill be read a third time and a final enactment of this Act. Mr. SANTORUM. I thank the Senator vote be taken at 6:30, with the under- Mr. CORZINE. Mr. President, this from Arizona. My 10-year-old John standing that if the Corzine amend- amendment is based on legislation I in- takes cyberclasses on the Internet. I ment is not adopted that would not troduced earlier this year, S. 1327, am appalled by the filth he has to go happen. which proposed an innovative way to through every day, whether it is e- The PRESIDING OFFICER. Is there improve anti-spam laws. The amend- mails or pop-ups, in trying to get his objection? Without objection, it is so ment would move us toward a system work done. ordered. that creates an incentive for individ- We have to do something about this. Mr. MCCAIN. I suggest the absence of uals to assist the FTC in identifying I am as much for free speech and free a quorum. spammers, by giving them a portion of

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00056 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13041 any collections resulting from informa- e-mails include a so-called ‘‘ADV’’ tion about making sure every unsolic- tion provided to the Commission. It label. In my view, such an approach ited e-mail has ADV has been conten- also calls for the FTC to set forth a would give individuals and ISPs consid- tious among a number of small busi- plan for requiring all unsolicited com- erable power to keep spam out of their ness groups, ones that have really been mercial e-mail to be identifiable from in boxes, and I am hopeful that we will burdened by these costs. But I think its subject line by means of the use of return to this proposal before long. In this is a fair compromise. It gives the the characters ‘‘ADV’’ or other com- fact, I understand that some members Federal Trade Commission ample op- parable identifier. If the Commission of the House of Representatives will be portunity to study this and look at the recommends against such a plan, it pursuing this on a related bill, and I feasibility of it. I urge our colleagues will have to provide Congress with a hope there will be a way to include an to support it. full explanation. enforceable labeling requirement in a As soon as we agree to the Corzine The fundamental problem in dealing conference report on anti-spam legisla- amendment, I believe Senator HARKIN with spam is enforcement. It is one tion. has a unanimous consent request he thing to propose rules governing e- Mr. MCCAIN. Mr. President, I support needs to make, and then we are ready mails. But it is often hard for Govern- the amendment by Senator CORZINE. I to go to final passage. I urge my col- ment officials to track down those who thank my colleagues for reaching a leagues now to support the Corzine violate those standards. Spammers compromise at this time. I thank those amendment. typically use multiple e-mail addresses who rapidly wrote this amendment on The PRESIDING OFFICER. If there or disguised routing information to short notice so we could complete work is no further debate, without objection, avoid being identified. As a result, on this legislation. the amendment is agreed to. finding spammers can take not just The amendment has two components. The amendment (No. 1896) was agreed real expertise, but persistence, time, The first part addresses labeling of un- to. energy and commitment. solicited commercial e-mail with the Mr. PRYOR. Mr. President, last The concept of requiring the FTC to term ADV and also addresses the possi- month, this body overwhelmingly pay a bounty to those who track down bility of industry self-regulation. The voted to stop unwanted phone calls spammers actually isn’t my idea. It Federal Trade Commission has raised from telemarketers. We put our foot was originally proposed by one of the serious concerns with both of these down and stopped these uninvited leading thinkers about the Internet, proposals with respect to ADV label- guests from barging into our home, in- Professor Lawrence Lessig of Stanford ing. The FTC has written to me in op- terrupting our family time and invad- Law School, and introduced in the position to labeling: ing our privacy. I would like to think House of Representatives by Congress- First, consumer groups, ISPs, and emailers that families can enjoy a peaceful din- woman ZOE LOFGREN. The proposal at the SPAM Forum roundly criticized the ner now that we have allowed the Do- would invite anyone who uses the mandatory use of an ‘‘ADV’’ label. Labeling Not-Call list to move forward. Internet to hunt down these law-vio- requirements could harm legitimate market- Today we address a similar problem— lating spammers. These would include ers, while illegitimate marketers are likely America’s e-mail inboxes have been in- people who send fraudulent e-mail, e- to ignore the requirement. Indeed, although vaded by unwanted and deceptive e- several States require ‘‘ADV’’ labels on unso- mail with inaccurate routing informa- licited commercial email, in its recent study mail solicitations. Not only is this tion, and e-mail that fails to include on False Claims in SPAM, Commission staff practice annoying and frustrating to the required opt-out. The FTC would found that only 2 percent of email messages our constituents, but the practice is then fine the spammer and pay a por- analyzed contained such a label. costing consumers and businesses valu- tion of that fine as a reward to the per- In lieu of Senator CORZINE’s original able time and resources. son who provided the information. proposal to make ADV labeling an in- In a report dated January 22, 2003, Creating incentives for private indi- dustry self-regulation, the amendment the Federal Trade Commission indi- viduals to help track down spammers is has been modified to require the Fed- cated that at least 40 percent of all e- likely to substantially strengthen the eral Trade Commission to report to mail is spam, with more than half con- enforcement of anti-spam laws. It Congress on whether the ADV labeling sidered to contain false and deceptive promises to create an army of com- and industry self-regulation should be information. This has been a problem puter geeks who seek out spammers for implemented. in my State of Arkansas. The FTC re- their and the public’s—benefit. Those So I think this is a sensible solution corded 2,048 fraud and identity theft who share my belief in the efficiency of in light of the Federal Trade Commis- complaints from Arkansas consumers entrepreneurial capitalism should un- sion’s concerns as I just read from who reported having lost $1.3 million to derstand the potential value of this their report to Congress. these scams. free market approach to enforcement. The second part of the amendment In addition, businesses are losing At the request of the managers, I would authorize the Federal Trade money as employees spend time wading have modified the original proposal I Commission to adopt a bounty hunter through unsolicited e-mail messages introduced earlier this year. This proposal to give people a portion of the and are forced to continuously update amendment calls for the FTC to de- fines collected from spammers that their servers and software in an at- velop a plan to implement a bounty they hope to catch. As with the Do Not tempt to avoid spam and prevent hunting system and issue a report to Spam Registry, the FTC would be au- worms and viruses that are submitted the Congress within 9 months of enact- thorized to act after first sending a re- through spam. ment. The Commission then could im- port to Congress. One thing I have learned as Senator plement the plan, but not before 12 I support the amendment. is that this body does not agree often months after the date of enactment. The PRESIDING OFFICER. The Sen- on the root of a problem. But I know While this doesn’t go quite as far as I ator from Oregon. for sure that each of us can agree that proposed originally, I think it is an im- Mr. WYDEN. Mr. President, I also we have better things to do with our portant step forward. And I am pleased support the amendment. This is a com- time than delete dozens of emails that the managers have committed to promise. Both of these topics are topics about the latest diet craze or money me that they will secure inclusion of about which we really have not heard a scheme. Even more, I know none of the the proposal in any related conference lot. We have not had a chance to dis- mothers and fathers in this body want report. cuss them in hearings. Senator CORZINE their children to receive emails that I also am pleased that the amend- has been working constructively with contain inappropriate sexual material. ment calls on the FTC to investigate us. I urge the passage of it. Neither do the mothers and fathers in another proposal that I actually be- The bounty issue essentially comes Arkansas. lieve is very important in the reduc- from Professor Lessig at Stanford, Now is the time to crack down on de- tion of spam, and that also was in- looking at innovative ways to create ceptive and unsolicited spam once and cluded in legislation I introduced ear- incentives to deal with the problem. It for all. lier this year: a requirement that the is certainly one the Federal Trade This bill which I support has two subject line of unsolicited commercial Commission should look at. The ques- strong elements:

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00057 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13042 CONGRESSIONAL RECORD — SENATE October 22, 2003 First, it would require anyone send- gets really bad, you may have to also infected Windows machines via e- ing unsolicited bulk e-mail directly, or change your address.’’ This experience mail, then sent out dozens of copies of through an intermediary, to provide is echoed nationwide. itself. Antivirus experts say one of the each recipient with a valid ‘‘opt-out’’ E-mail users are having the online main reasons virus writers continue to process for declining any future spam. equivalent of the experience of the modify and re-release this particular Second, it would outlaw transmitting woman in the Monty Python skit, who piece of ‘‘malware’’ is that it high-volume unsolicited e-mail sources seeks to order a Spam-free breakfast at downloads a Trojan horse to infected if they contain false, misleading or de- a restaurant. Try as she might, she computers, which are then used to send ceptive routing information, or forged cannot get the waitress to bring her spam. e-mail addresses. the meal she desires. Every dish in the Spammers are constantly in need of I am pleased that this bill has been restaurant comes with Spam; it’s just a new machines through which to route made even stronger with the inclusion matter of how much. There’s ‘‘egg, their garbage e-mail, and a virus of Senator BILL NELSON’s RICO statute bacon and Spam’’; ‘‘egg, bacon, sausage makes a perfect delivery mechanism amendment. I am proud to be named as and Spam’’; ‘‘Spam, bacon, sausage and for the engine they use for their mass the provision’s original cosponsor. Spam’’; ‘‘Spam, egg, Spam, Spam, mailings. Some analysts said the This amendment encourages the bacon and Spam’’; ‘‘Spam, sausage, SoBigF virus may have been created prosecution of those people who use Spam, Spam, Spam, bacon, Spam, to- with a more malicious intent than spam to seek money illegally or who mato and Spam’’; and so on. Exas- most viruses, and may even be linked engage in other illegal acts by making perated, the woman finally cries out: to spam e-mail schemes that could be a use of the civil Federal Racketeer In- ‘‘I don’t like Spam!... I don’t want source of cash for those involved in the fluenced and Corrupt Organizations ANY Spam!’’ scheme. Act, commonly known as RICO. Individuals and businesses are react- The interconnection between com- RICO makes it illegal to acquire or ing similarly to electronic spam. A puter viruses and spam is readily ap- maintain a business through a pattern Harris poll taken late last year found parent: Both flood the Internet in an of racketeering activity. This law lets that 80 percent of respondents view attempt to force a message on people authorities seize the assets of such an spam as ‘‘very annoying,’’ and fully 74 who would not otherwise choose to re- operation and allows victims grounds percent of respondents favor making ceive it. Criminal laws I wrote prohib- for recovery in civil court. mass spamming illegal. Earlier this iting the former have been invoked and By adopting the amendment, this month, more than 3 out of 4 people sur- enforced from the time they were body has given the overall bill teeth, veyed by Yahoo! Mail said it was ‘‘less passed it is the latter dilemma we must which will go along way toward pun- aggravating to clean a toilet’’ than to now confront headon. ishing those scam artists who prey on sort through spam. Americans are fed Spam is also fertile ground for decep- the everyday trusting, law-abiding citi- up. tive trade practices. The FTC has esti- zens of our land. Some 30 States now have antispam mated that 96 percent of the spam in- As Attorney General I fought to cur- laws, but the globe-hopping nature of volving investment and business oppor- tail mail fraud and I think some of the e-mail makes these laws difficult to en- tunities, and nearly half of the spam spam being sent to Arkansans online is force. Technology will undoubtedly advertising health services and prod- in that same category. The only dif- play a key role in fighting spam, but a ucts, and travel and leisure, contains ference is that this type of fraud technological solution to the problem false or misleading information. reaches many more victims in a short- is not likely in the foreseeable future. This rampant deception has the po- er period of time. ISPs block billions of unwanted e- tential to undermine Americans’ trust I look forward to the completion of mails each day, but spammers are win- of valid information on the Internet. this bill, and I am pleased that we have ning the battle. Indeed, it has already caused some again been able to work in a bipartisan Millions of unwanted, unsolicited Americans to refrain from using the matter to carry out the will of the pop- commercial e-mails are received by Internet to the extent they otherwise ulace. American businesses and individuals would. For example, some have chosen Mr. LEAHY. Mr. President, it is in- each day, despite their own, additional not to participate in public discussion creasingly apparent that unwanted filtering efforts. A recent study by Fer- forums, and are hesitant to provide commercial e-mail, commonly known ris Research estimates that spam costs their addresses in legitimate business as ‘‘spam,’’ is more than just a nui- U.S. firms $8.9 billion annually in lost transactions, for fear that their e-mail sance. In the past few years, it has be- worker productivity, consumption of addresses will be harvested for junk e- come a serious and growing problem bandwidth, and the use of technical mail lists. And they are right to be that threatens to undermine the vast support to configure and run spam fil- concerned. The FTC found spam arriv- potential of the Internet. ters and provide helpdesk support for ing at its computer system just 9 min- Businesses and individuals currently spam recipients. utes after posting an e-mail address in wade through tremendous amounts of The costs of spam are significant to an online chat room. spam in order to access e-mail that is individuals as well, including time I have often said that Congress must of relevance to them—and this is after spent identifying and deleting spam, exercise great caution when regulating ISPs, businesses, and individuals have inadvertently opening spam, installing in cyberspace. Any legislative solution spent time and money blocking a large and maintaining antispam filters, to spam must tread carefully to ensure percentage of spam from reaching its tracking down legitimate messages that we do not impede or stifle the free intended recipients. mistakenly deleted by spam filters, flow of information on the Internet. In my home State of Vermont, one and paying for the ISP’s blocking ef- The United States is the birthplace of legislator recently found that two- forts. the Internet, and the whole world thirds of the 96 e-mails in his inbox And there are other prominent and watches whenever we decide to regu- were spam. And this occurred after the equally important costs of spam. It late it. Whenever we choose to inter- legislature had installed new spam- may introduce viruses, worms, and vene in the Internet with government blocking software on its computer sys- Trojan horses into personal and busi- action, we must act carefully, pru- tem that seemed to be catching 80 per- ness computer systems, including those dently, and knowledgeably, keeping in cent of the spam. The assistant attor- that support our national infrastruc- mind the implications of what we do ney general in Vermont was forced to ture. and how we do it. And we must not for- suggest to computer users the fol- The public has recently witnessed the get that spam, like more traditional lowing means to avoid these unsolic- potentially staggering effects of a forms of commercial speech, is pro- ited commercial e-mails: ‘‘It’s very bad virus, not only through the Blaster tected by the first amendment. to reply, even to say don’t send any- case I discussed earlier, but with the At the same time, we must not allow more. It tells the spammer they have a appearance of the SoBigF virus just 8 spam to result in the ‘‘virtual death’’ live address... The best thing you days after Blaster began chewing its of the Internet, as one Vermont news- can do is just keep deleting them. If it way through the Internet. This variant paper put it.

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00058 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13043 The Internet is a valuable asset to Fourth, the Hatch-Leahy amendment also supported by the administration: our Nation, to our economy, and to the prohibits registering for multiple e- In its September 11, 2003, views letter lives of Americans, and we should act mail accounts or Internet domain regarding the CAN SPAM Act, the ad- prudently to secure its continued via- names, and sending bulk e-mail from ministration advocated the addition to bility and vitality. those accounts or domains. This provi- CAN SPAM of felony triggers similar On June 19 of this year, Senator sion targets deceptive ‘‘account churn- to those proposed in the Criminal HATCH and I introduced S.1293, the ing,’’ a common outlaw spammer tech- Spam Act. The administration further Criminal Spam Act, together with sev- nique that works as follows. The supported our proposal, advanced in eral of our colleagues on the Judiciary spammer registers—usually by means the Hatch-Leahy amendment, to direct Committee. On September 25, the com- of an automatic computer program— the Sentencing Commission to consider mittee unanimously voted to report for large numbers of e-mail accounts or sentencing enhancements for convicted the bill to the floor. Today, Senators domain names, using false registration spammers that have additionally ob- HATCH, NELSON, SCHUMER, GRASSLEY information, then sends bulk spam tained e-mail addresses by harvesting. and I offered the criminal provisions of from one account or domain after an- Again, the purpose of the Hatch- S. 1293 as an amendment to S. 877, the other. This technique stays ahead of Leahy amendment is to deter the most CAN SPAM Act. The amendment was ISP filters by hiding the source, size, pernicious and unscrupulous types of adopted by voice vote. and scope of the sender’s mailings, and spammers—those who use trickery and I thank the lead cosponsors of S. 877 prevents the e-mail account provider or deception to induce others to relay and for working with us on this amend- domain name registrar from identi- view their messages. Ridding America’s ment, and for their support and cospon- fying the registrant as a spammer and inboxes of deceptively delivered spam sorship of the Criminal Spam Act. I denying his registration request. Fal- will significantly advance our fight also thank Senator BILL NELSON for his sifying registration information for do- against junk e-mail. But it is not a contribution to the amendment. main names also violates a basic con- cure-all for the spam pandemic. The Hatch-Leahy amendment pro- The fundamental problem inherent to tractual requirement for domain name hibits five principal techniques that spam—its sheer volume—may well per- registration falsification. spammers use to evade filtering soft- sist even in the absence of fraudulent Fifth and finally, our amendment ad- ware and hide their trails. routing information and false identi- dresses a major hacker spammer tech- First, our amendment prohibits ties. In a recent survey, 82 percent of nique for hiding identity that is a com- hacking into another person’s com- respondents considered unsolicited mon and pernicious alternative to do- puter system and sending bulk spam bulk e-mail, even from legitimate busi- main name registration—hijacking un- from or through that system. This nesses, to be unwelcome spam. Given used expanses of Internet address space criminalizes the common spammer this public opinion, and in light of the and using them as launch pads for junk technique of obtaining access to other fact that spam is, in essence, cost- e-mail. Hijacking Internet Protocol— people’s e-mail accounts on an ISP’s e- shifted advertising, we need to take a IP—addresses is not difficult: mail network, whether by password more comprehensive approach to our theft or by inserting a ‘‘Trojan horse’’ Spammers simply falsely assert that fight against spam. program—that is, a program that they have the right to use a block of IP While I am generally supportive of unsuspecting users download onto their addresses, and obtain an Internet con- the CAN SPAM Act, and will vote in computers and that then takes control nection for those addresses. Hiding be- favor of passage, it does raise some of those computers—to send bulk spam. hind those addresses, they can then concerns. The bill takes an ‘‘opt out’’ Second, our amendment prohibits send vast amounts of spam that is ex- approach to spam—that is, it requires using a computer system that the tremely difficult to trace. all commercial e-mail to include an owner makes available for other pur- Penalties for violations of these new ‘‘opt out’’ mechanism, by which e-mail poses as a conduit for bulk spam, with criminal prohibitions are tough but recipients may opt out of receiving fur- the intent of deceiving recipients as to measured. Recidivists and those who ther unwanted spam. My concern is the spam’s origins. This prohibition send spam in furtherance of another that this approach permits spammers criminalizes another common spammer felony may be imprisoned for up to 5 to send at least one piece of spam to technique—the abuse of third parties’ years. Large-volume spammers, those each e-mail address in their database, ‘‘open’’ servers, such as e-mail servers who hack into another person’s com- while placing the burden on e-mail re- that have the capability to relay mail, puter system to send bulk spam, and cipients to respond. People who receive or Web proxy servers that have the spam ‘‘kingpins’’ who use others to op- dozens, even hundreds, of unwanted e- ability to generate ‘‘form’’ mail. erate their spamming operations may mails each day may have little time or Spammers commandeer these servers be imprisoned for up to 3 years. Other energy for anything other than opting- to send bulk commercial e-mail with- offenders may be fined and imprisoned out from unwanted spam. out the server owner’s knowledge, ei- for no more than one year. Convicted According to one organization’s cal- ther by ‘‘relaying’’ their e-mail offenders are also subject to forfeiture culations, if just one percent of the ap- through an ‘‘open’’ e-mail server, or by of proceeds and instrumentalities of proximately 24 million small busi- abusing an ‘‘open’’ Web proxy server’s the offense. nesses in the U.S. sent every American capability to generate form e-mails as In addition to these penalties, the just one spam a year, that would a means to originate spam, thereby ex- Hatch-Leahy amendment directs the amount to over 600 pieces of spam for ceeding the owner’s authorization for Sentencing Commission to consider each person to sift through and opt out use of that e-mail or Web server. In providing sentencing enhancements for of each day. And this figure may be some instances the hijacked servers are those convicted of the new criminal conservative, as it does not include the even completely shut down as a result provisions who obtained e-mail ad- large businesses that also engage in on- of tens of thousands of undeliverable dresses through improper means, such line advertising. messages generated from the as harvesting, and those who know- I am also troubled by the labeling re- spammer’s e-mail list. ingly sent spam containing or adver- quirement in the CAN SPAM Act, The amendment’s third prohibition tising a falsely registered Internet do- which makes it unlawful to send an un- targets another way that outlaw main name. We have also worked with solicited commercial e-mail message spammers evade ISP filters: falsifying Senator NELSON on language directing unless it provides, among other things, the ‘‘header information’’ that accom- the Sentencing Commission to consider ‘‘ clear and conspicuous identification panies every e-mail, and sending bulk enhancements for those who commit that the message is an advertisement spam containing that fake header in- other crimes that are facilitated by the or solicitation,’’ and ‘‘a valid physical formation. More specifically, the sending of spam. postal address of the sender’’. While we amendment prohibits forging informa- I should note that the Criminal Spam all want to curb spam, we must be tion regarding the origin of the e-mail Act, from which the amendment is mindful of its status as protected com- message, and the route through which taken, enjoys broad support from ISPs, mercial speech, and ensure that any re- the message attempted to penetrate direct marketers, consumer groups, strictions we impose on it are as nar- the ISP filters. and civil liberties groups alike. It is rowly tailored as possible.

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00059 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13044 CONGRESSIONAL RECORD — SENATE October 22, 2003 Reducing the volume of junk com- Wyden CAN–SPAM Act, which would velop legislation to establish a na- mercial e-mail, and so protecting le- impose limitations and penalties on tional Do Not Email registry modeled gitimate Internet communications, is the transmission of unsolicited com- on the Do Not Call registry, but I be- not an easy matter. There are impor- mercial electronic mail via the Inter- lieve there may come a point at which tant First Amendment interests to net. additional protections are necessary to consider, as well as the need to pre- I would like to thank my colleagues, protect consumers and to protect the serve the ability of legitimate market- Senators WYDEN and BURNS, for their growth of the information economy. ers to use e-mail responsibly. We must leadership in tackling this problem I think we all recognize that we have be sure we get this right, so as not to which affects so many consumers in much more work to do to solve this exacerbate an already terribly vexing my State of Washington. Unsolicited problem, but the Burns-Wyden bill is problem. This is especially important commercial email or ‘‘spam’’ is a an excellent first step in addressing the given the preemption provisions of the major irritant to consumers and busi- problem, and I am pleased to help pass CAN SPAM Act, which will override nesses alike. Spam exposes computer this important legislation. many of the tough anti-spamming laws users—often young children—to por- Mr. MCCAIN. Mr. President, I suggest already enacted by the States. nography, sexual predators, fraudulent the absence of a quorum. Under the My distinguished colleagues from schemes, and other unwanted or harm- previous order, I believe the vote will Wyoming and Pennsylvania offered an ful messages. In addition, spam costs start at 6:30. amendment requiring ‘‘warning labels’’ American business close to $10 billion The PRESIDING OFFICER. That is on certain commercial electronic mail. each year in lost productivity, addi- correct. The clerk will call the roll. While I appreciate my colleagues’ ef- tional infrastructure costs, and legal The assistant legislative clerk pro- forts to protect our children from the fees—costs that are ultimately borne ceeded to call the roll. on-line assault of internet pornog- by consumers. By clogging our com- Mr. BURNS. Mr. President, I ask raphy—an important goal that we all puters, spam threatens to deprive us of unanimous consent that the order for share—I fear the amendment has been the tremendous benefits provided by the quorum call be rescinded. drafted in haste and raises significant the Internet. The PRESIDING OFFICER. Without constitutional issues that require fur- This bill represents a crucial first objection, it is so ordered. ther analysis. step in combating the exponential in- Under the previous order, the ques- First, the amendment incorporates crease in the volume of spam, which tion is on the engrossment and third broad and vague phrases such as ‘‘de- today accounts for half of all email reading of the bill. voted to sexual matters’’ that are not messages. Because of the global nature The bill was ordered to be engrossed otherwise defined in the law. I ex- of this problem and the anonymity for a third reading and was read the pressed similar concerns during debate that the Internet affords spammers, it third time. on the Communications Decency Act, is impossible for states or individuals The bill having been read the third CDA, which the Supreme Court struck alone to take meaningful steps to re- time, the question is, Shall it pass? down as unconstitutional in 1996. The duce the impact of this nuisance, and Mr. BURNS. Mr. President, I ask for CDA also punished as a felony anyone self-regulation is simply not an option. the yeas and nays. who transmitted ‘‘obscene’’ or ‘‘inde- The overwhelming volume of sleazy The PRESIDING OFFICER. Is there a cent’’ material over the Internet. The and fraudulent solicitations origi- sufficient second? CDA was deemed too vague as to what nating from criminal organizations de- There is a sufficient second. was ‘‘indecent’’ or ‘‘obscene.’’ Some of mands a tough response that imposes The clerk will call the roll. the terms and phrases used in the Enzi- both civil and criminal penalties. Mr. REID. I announce that the Sen- Santorum amendment may be deemed That is precisely why this bill is so ator from North Carolina (Mr. equally vague when subjected to judi- necessary. To protect computer users EDWARDS), the Senator from Hawaii cial scrutiny. in my State and across the country, we (Mr. INOUYE), and the Senator from There are also first amendment con- must take immediate steps to stem the Massachusetts (Mr. KERRY) are nec- cerns to regulating commercial elec- mountain of spam hitting email essarily absent. tronic mail in ways that require spe- inboxes every day. I further announce that, if present cific labels on protected speech. Such The Burns-Wyden bill is a long- and voting, the Senator from Massa- requirements inhibit both the speak- awaited step in the right direction. The chusetts (Mr. KERRY) would vote er’s right to express and the listener’s bill has been carefully negotiated and ‘‘yea.’’ right to access constitutionally pro- improved. By allowing enforcement by The PRESIDING OFFICER (Mr. TAL- tected material. State attorneys general and by Inter- ENT). Are there any other Senators in More importantly, existing laws al- net service providers, we have in- the Chamber desiring to vote? ready ban obscenity, harassment, child creased the odds of successful enforce- The result was announced—yeas 97, pornography and enticing minors into ment against the worst spammers. By nays 0, as follows: prohibiting harvesting of email ad- sexual activity. [Rollcall Vote No. 404 Leg.] As a father and a grandfather, I well dresses, the use of technology to send YEAS—97 appreciate the challenge of limiting a thousands of spammed messages, and child’s exposure to sexually inappro- by prohibiting false and misleading Akaka Conrad Hatch Alexander Cornyn Hollings priate material. Yet, no legislation we message headers, the bill will send a Allard Corzine Hutchison could pass would be an effective sub- clear message to the most abusive Allen Craig Inhofe stitute for parental involvement. We spammers that their practices will no Baucus Crapo Jeffords Bayh Daschle Johnson must be vigilant about feel-good efforts longer be tolerated. Bennett Dayton Kennedy to involve government, either directly But enforcement will remain a chal- Biden DeWine Kohl or indirectly, in regulating the content lenge. Spammers have every incentive Bingaman Dodd Kyl of the Internet. to increase the volume of their mes- Bond Dole Landrieu Boxer Domenici Lautenberg For these reasons, the Enzi- sages because the marginal cost of Breaux Dorgan Leahy Santorum amendment raises serious sending another message is virtually Brownback Durbin Levin legal issues that mandate further ex- nothing. And because of the anonymity Bunning Ensign Lieberman and global nature of the internet, Burns Enzi Lincoln ploration before a determination can Byrd Feingold Lott be made on the proposed law’s con- spammers can hide their identity and Campbell Feinstein Lugar stitutional viability. move their operations offshore. Cantwell Fitzgerald McCain I look forward to continuing to work While the bill before us will finally Carper Frist McConnell Chafee Graham (FL) Mikulski with the sponsors of the CAN SPAM put in place a Federal approach to the Chambliss Graham (SC) Miller Act on these issues as the bill proceeds global problem of spam, there is no sin- Clinton Grassley Murkowski to conference. gle solution to this complex problem. I Cochran Gregg Murray Ms. CANTWELL. Mr. President, I am pleased that the bill will require Coleman Hagel Nelson (FL) Collins Harkin Nelson (NE) rise today in support of the Burns- the Federal Trade Commission to de-

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00060 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13045 Nickles Schumer Sununu older. But starting at the age of 38 af- submitted by former Senators Garn Pryor Sessions Talent fords an opportunity to develop skills and D’Amato. Reed Shelby Thomas Reid Smith Voinovich and expertise on the district court as a There being no objection, the mate- Roberts Snowe Warner trial judge. rial was ordered to be printed in the Rockefeller Specter Wyden From what I know about him, and I RECORD, as follows: Santorum Stabenow Sarbanes Stevens have observed him over the better part ON THE PASSING OF IRA PAULL of the past decade, he has the capa- Senator Jake Garn NOT VOTING—3 bility perhaps to become an appellate I first met Ira Paull in 1988 when he joined Edwards Inouye Kerry judge. That will depend upon the devel- the staff of Senator John Heinz as his legis- The bill (S. 877), as amended, was opment of his skills and his profes- lative assistant specializing in securities passed, as follows: sional accomplishments as a judge. issues. A year later he joined the Banking Mr. DASCHLE. Mr. President, I sug- He was recommended by the non- Committee staff and I saw first hand how gest the absence of a quorum. partisan nominating panel which Sen- Ira’s expertise in banking, securities and ac- The PRESIDING OFFICER. The ator SANTORUM and I have. He is a vig- counting made an invaluable contribution to the work of the Committee. Ira played a key clerk will call the roll. orous young man. He has a family, a wife and three children, residing in Fox role in all of the key significant legislation The legislative clerk proceeded to addressed by the Committee during my ten- call the roll. Chapel. I think he will make an out- ure as ranking member. Many of these laws Mr. FRIST. Mr. President, I ask standing addition to the United States were of critical importance to the financial unanimous consent that the order for District Court for the Western District stability of the United States, such as the the quorum call be rescinded. of Pennsylvania. legislation that resolved the savings and The PRESIDING OFFICER. Without f loan crisis and the law that restored the fi- objection, it is so ordered. nancial strength of the Federal Deposit In- IN MEMORY OF IRA PAULL surance Corporation. Ira’s knowledge of ac- f Mr. DODD. Mr. President, I rise to counting was especially crucial to the Com- MORNING BUSINESS speak in memory of Ira Paull, who mittee’s work on these measures, and the passed away suddenly on September 28 legislation adopted by the Congress reflects Mr. FRIST. Mr. President, I ask that much of the input and advice we received there now be a period for morning busi- at the age of 52. I was very fortunate to work with Ira from him. ness, with Senators speaking for up to Ira’s intellect and technical expertise during the 7 years he spent on Capitol 10 minutes each. alone would have made him a wonderful Hill as a staff member on the Senate The PRESIDING OFFICER. Without asset to the Banking Committee staff. But Banking Committee. He worked on the objection, it is so ordered. Ira’s contribution went well beyond that. Ira staff of Senators John Heinz, Jake took it upon himself to share his knowledge f Garn, and Alfonse D’Amato. Ira was an and become an adviser to senior staff and a NOMINATION OF THOMAS M. integral part of virtually every critical mentor to younger staff. He was universally HARDIMAN piece of legislation that came out of respected for his personal integrity and the Banking Committee. His knowl- strength of convictions. Ira had strong be- Mr. SPECTER. Mr. President, it is liefs about Aright and wrong—and to his my understanding that the Senate will edge was vast and his counsel well-re- credit, never feared to express his views. He soon take up in executive session the spected by Senators on both sides of also had a remarkable sense of humor, and nomination of Thomas M. Hardiman to the aisle. I personally had the privilege members of the Committee on both sides of be a judge on the U.S. District Court of working with Ira in my capacity as the aisle enjoyed the statements Ira pre- for the Western District of Pennsyl- chairman of the Securities Sub- pared. His sense of humor also served to keep committee. In particular, I have fond staff morale high during the periods of high vania, and I recommend to my col- memories of Ira as he accompanied me, stress when staff was required to work long leagues that he be confirmed. He has Senator Heinz, and my staff on a con- hours due to the press of the legislative an outstanding academic record. gressional delegation to Europe in 1990 schedule. Mr. Hardiman received his bachelor’s The passing of Ira Paull is a loss for all of looking into European Community Fi- degree, cum laude, from the University us. He was a bright light that shone on many nancial Services issues. of Notre Dame in 1987. He received his people, including myself. He will be missed Ira’s reputation on the Hill was that by many, but forgotten by no one. law degree, cum laude again, from of a bright and talented lawyer, and Georgetown University Law Center. He also of an individual with a quick wit IN MEMORY OF IRA PAULL was notes and comments editor of the and a tremendous sense of humor. He Senator Alfonse M. D’Amato Georgetown Law Journal, which is an became well-known for writing opening It is with deep sadness that I submit this indication of academic achievement statements for committee hearings statement about the passing of former Sen- and legal excellence in writing. He has that were not only well-informed and ate Banking Committee staff person, Ira been admitted to the bars of Massachu- comprehensive, but would even, on oc- Paull. setts, the District of Columbia, and the casion, incorporate rhyme or poetry Ira was a strong presence on the Com- Commonwealth of Pennsylvania. He that would bring a smile to everyone’s mittee staff for a number of years, staffing first Senator Heinz, then Senator Garn and has been in the active practice of law face. since 1990. He currently is a partner in finally me when he became the Deputy Staff Though his job on the committee was Director under my Chairmanship. the prestigious Pittsburgh firm of Reed to provide counsel to Republican Sen- No matter who Ira worked for at the time, Smith. ators, he earned a great deal of respect though, we all looked to him for his quick He has been very active with profes- from Democrats as well. He formed and concise explanations—Ira could always sional affiliations as a Pennsylvania deep and lasting friendships with staff cut to the chase. If any of us wanted some- Young Lawyers Division delegate to members from both sides of the aisle, thing more than that, Ira could also spend the American Bar Association’s House including my own staff, who valued his days on the details. He was one of the few staff people that could actually do both. of Delegates. He served as a hearing of- advice and counsel and cherished his ficer for the Pennsylvania Disciplinary Whether the explanation was a few minutes friendship. or a few hours though, he was always pas- Board. He has been active in commu- Ira Paull was a hard worker, a dedi- sionate about whatever the Committee was nity affairs, president of Big Brothers cated public servant, and a wonderful doing. Big Sisters of Greater Pittsburgh, and person who was taken from us far too In fact, few could show such passion as Ira he currently serves as director of that soon. He will be greatly missed by ev- about the Public Utility Holding Company organization. He was formerly an ad- eryone who had the opportunity to Act of 1935 or the minutiae of thrift regula- junct faculty member of LaRoche Col- know him. tion. Ira’s passion for the law showed no lege. I offer my deepest sympathies to his mercy for lobbyists or staff representing As suggested by the dates of gradua- members with contrary positions to Ira’s brother Gerson, to his sisters, Susan, successive bosses. He was a strong advocate tion, Mr. Hardiman is a young man, in Leah, and Linda, and to his entire fam- for his member and very effective at getting his late thirties. I think he brings an ily. what his boss needed. element of diversity to the court, tem- I ask unanimous consent to print in I remember one particular situation back pering some of the judges who are the RECORD statements on Ira’s passing when Congress passed FDICIA in 1991. It was

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00061 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13046 CONGRESSIONAL RECORD — SENATE October 22, 2003 right around the time that a minority-owned In Stenberg vs. Carhart, a case in- death; and uterine ruptures which New York bank, Freedom National Bank, volving the constitutionality of Ne- could result in infertility. had failed. They had all kinds of community braska’s partial birth abortion ban Second, the language also applied funds commingled and when the bank failed, when a woman has a life-threatening FDIC insurance would look at all of the ac- statute, the Supreme Court invalidated counts as one big, single account. My office the Nebraska statute because it lacks condition which requires life-saving had gotten dozens of calls from the Harlem an exception for the performance of the treatment. It applies to those tragic community that stood to lose college schol- D & X dilation and extraction proce- cases, for example, when a woman arship funds and all kinds of community pro- dure when necessary to protect the needs chemotherapy when pregnant, so gram money. During the conference, I ex- health of the mother, and because it the families face the terrible choice of plained the bank’s predicament and got in- imposes an undue burden on a woman’s continuing the pregnancy or providing cluded in the bill an amendment to look at life-saving treatment. These conditions each account separately and basically cover ability to have an abortion. This case all the deposits made by the community pro- was representative of 21 cases through- include: breast cancer; lymphoma, grams. out the Nation. Regrettably, however, which has a 50 percent mortality rate if FDICIA had one of those conferences that Senator SANTORUM’s legislation dis- untreated; and primary pulmonary hy- finished at 3:00 am and when the bill was regards both Supreme Court decisions pertension, which has a 50 percent ma- voted on by the House and Senate the next by not providing an exception for the ternal mortality rate. day, the Freedom National Bank amendment health of the mother and providing Now, I ask my colleagues, who could was nowhere to be found. Both Houses were seriously object under these cir- set to adjourn right after the bill passed, but only a narrowly defined life exception. Ira worked Legislative Councils of both And let there be no mistake I stand cumstances? Houses, the Chairmen of the Committees, here today to reaffirm that no viable I cosponsored this amendment be- the staff people, and the Parliamentarians. fetus should be aborted—by any meth- cause I believed that it was a common- With the usual Ira tenaciousness, he tracked od—unless it is absolutely necessary to sense approach to a serious problem for down every person who could help—no mat- protect the life or health of the moth- American women and a contentious ter where they were. Finally, Ira and I ran er. Period. issue for the United States Congress. over to the House to do what couldn’t be During the Senate consideration of Unfortunately, the omission of this or done over the telephone. We arrived on the any other exemption from this ban in floor, right as the House announced its ad- this bill earlier this year, I once again journment sine die. Two minutes later, the cosponsored Senator DURBIN’s amend- cases when the life of the mother is House floor reopened, passed the Freedom ment which specifies that postviability threatened poses a significant and like- National amendment, and readjourned. abortions would only be lawful if the ly a constitutional problem, and with- That kind of dedication, that kind of pas- physician performing the abortion and out such an exception, I could not sup- sion and that kind of can do and do attitude an independent physician certified in port this conference report. is what I will always remember about Ira. The Freedom National Bank situation hap- writing that continuation of the preg- f pened long before I was Chairman of Bank- nancy would threaten the mother’s life POST-ELECTION VIOLENCE IN ing—at the time, I was third in seniority at or risk grievous injury to her physical AZERBAIJAN the Committee. Ira was a pro and worked health. It mirrors laws already on the that issue as if it was his money at stake. books in 41 States, including my home Mr. MCCAIN. Mr. President, today He was a wonderful person, with a great State of Maine, which ban postviability Human Rights Watch released a state- passion and a great way with words—draft- abortions while at the same time in- ment condemning what it calls a ‘‘bru- ing the most imaginative and creative state- tal political crackdown’’ in Azerbaijan ments which the Congressional Record will cluding life and health exceptions man- dated by the Supreme Court under Roe following its flawed October 15 presi- memorialize forever. And, of course, I will dential elections. In the words of Peter always remember Ira’s laugh, the great guf- v. Wade. faw. This amendment, which was tabled Bouckaert of Human Rights Watch, I join my colleagues today to bid a fond during the Senate’s debate, would have ‘‘Azerbaijan is going through its most farewell to Ira Paull and to thank him one lowered the number of abortions be- serious human rights crisis of the past last time for all he did during his time at the cause it bans all postviability abor- decade. If this crackdown continues, Senate. tions. S. 3, in contrast, will not prevent there won’t be an opposition left in f a single abortion. Sadly, it will force Azerbaijan by the end of the month.’’ I PARTIAL BIRTH ABORTION BAN women to choose another potentially, direct my colleagues’ attention to ACT more harmful procedure. Human Rights Watch’s disturbing con- Is this what we really want? To put clusions and ask unanimous consent Ms. SNOWE. Mr. President, I am op- that its report be printed in the posed to the conference report on S. 3, women’s health and lives at risk? And shouldn’t these most critical decisions RECORD. the Partial Birth Abortion Act. There being no objection, the mate- In 1973—26 years ago now—the Su- be left to those with medical training— rial was ordered to be printed in the preme Court affirmed for the first time not politicians? RECORD, as follows: a woman’s right to choose. This land- The findings in S. 3 would have you AZERBAIJAN: GOVERNMENT LAUNCHES CRACK- mark decision was carefully crafted to believe that this procedure is never necessary to preserve the life or health DOWN AFTER ELECTION, HUNDREDS OF OPPO- be both balanced and responsible while SITION MEMBERS ARRESTED holding the rights of women in Amer- of the mother and that in fact it poses significant health risks to a woman. NEW YORK, October 22, 2003.—Azerbaijani ica paramount in reproductive deci- authorities have unleashed a massive and sions. It is clear that the underlying This is simply not true. Let me explain brutal political crackdown, arresting hun- Santorum bill does not hold the rights why there must be a health exception dreds of opposition leaders and activists of women paramount—instead, it in- for ‘‘grievous physical injury’’ in two since the October 15 presidential election, fringes on those rights in the most circumstances. Human Rights Watch said today. Ilham grievous of circumstances. First, the language was to apply in Aliev, the son of the outgoing leader, was Indeed, S. 3 undermines basic tenets those heart-wrenching cases where a elected president in a vote that international of Roe v. Wade, which maintained that wanted pregnancy seriously threatens and local observers said was marred by wide- the health of the mother. The language spread fraud. women have a constitutional right to ‘‘The Azerbaijani authorities are using the an abortion, but after viability—the would allow a doctor in these tragic post-election violence, an affair in which time at which it first becomes realisti- cases to perform an abortion because they themselves played a major role, to jus- cally possible for fetal life to be main- he or she believes it is critical to pre- tify a massive crackdown on the opposition,’’ tained outside the women’s body— serving the health of a woman facing: said Peter Bouckaert, Human Rights States could ban abortions only if they peripartal cardiomyopathy, a form of Watch’s senior emergencies researcher. ‘‘Ar- also allowed exceptions for cases in cardiac failure which is often caused by bitrary arrests have to stop. Those arrested which a woman’s life or health is en- the pregnancy, which can result in without cause must be released immediately, death or untreatable heart disease; pre- and those in custody should have access to dangered. And the Supreme Court re- an attorney.’’ affirmed their support for exceptions eclampsia, or high blood pressure Human Rights Watch called on the govern- for health of the mother just 3 years which is caused by a pregnancy, which ment to publish a full list of all those ar- ago. can result in kidney failure, stroke or rested in the aftermath of the election, their

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00062 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13047 whereabouts and the charges against them. Chingiz Umudov, the local chief of the Lib- anol and electricity. I learned about Human Rights Watch urged the inter- eral Party; and Fakhreddin Abdiev, the local these developments, as did my other national community to press the Azerbaijani chief of the Azerbaijan Popular Front Party Democratic colleagues who serve on government to launch an independent com- (APFP). the conference committee to the en- mission, with international participation, to Among other local leaders whose arrest investigate election fraud. Human Rights Watch has been able to con- ergy bill, not from meeting with the Almost immediately after the polls closed firm are: the chairs or deputy chairs of the chairman of the conference, but on October 15, violence erupted between op- Musavat party branches of Ali Bairamli, through third-hand news accounts. position supporters and the police. Later Gazakh, Gabala, Ismaili, and Jalilabad, The exclusion of Democrats from the that evening, Azerbaijani security forces at- Sumgait; the head of the ADP branches in conference committee process is well tacked peaceful opposition supporters gath- Ali Bairamli, Imishli, and Zagatla; the known. Yesterday, Senator BINGAMAN, ered outside the headquarters of the main chairs of the Azerbaijani National Independ- the ranking democrat on the Senate opposition party, Musavat (‘‘Equality’’), in- ence Party (ANIP) branches in Ganja, Quba, Energy Committee and one of the Sen- juring at least 50 protesters. and Shamkir; and the chairs of the APFP ate’s foremost experts on energy mat- Most of the arrests have occurred since Oc- branches in Jalilabad and Siazan. Human tober 16, when attempts by the security Rights Watch also confirmed the arrest of ters, raised these same points on the forces to prevent a march organized by the the head of the Umid party in Ali Bairamli. Senate floor. By choosing not to re- opposition turned violent. For details, please All of their names are on file with Human lease to the public Republican-bar- see Human Rights Watch press release Rights Watch. gained agreements on ethanol and elec- ‘‘Azerbaijan: Post-Election Clashes Turn In addition, the Azerbaijani authorities tricity, the Congress runs a substantial Deadly.’’ have arrested dozens of opposition members risk of harming South Dakota farmers Human Rights Watch has been able to con- who served as observers and polling-station firm at least 190 arrests of opposition leaders and consumers, while failing to officials during the October 15 election be- produce the long-term energy policy and supporters, although the actual number cause they refused to sign vote tallies from of detainees is much higher. For example, their polling stations that they believed our country requires. the Minister of Interior stated on October 17 were fraudulent. The tallies, known as proto- Implementing an aggressive renew- that 190 persons had been detained during cols, require the signatures of polling-station able fuels standard that grows demand the October 16 violence alone. Many of those officials. In the town of Ganja alone, Human for ethanol is vitally important to the arrested were beaten while being taken into Rights Watch has obtained the names of 32 ethanol industry, American farmers, custody. opposition polling-station officials who are and our long-term energy security. The charges, if any, against those detained currently being detained for their refusal to are unknown, as in many cases they have not South Dakota is at the forefront of ex- sign fraudulent vote tallies. panding ethanol production with 1 of had access to counsel. International monitors from the Organiza- Several national leaders of the opposition every 3 rows of corn in South Dakota tion for Security and Cooperation in Europe have been among those arrested, including (OSCE), the Council of Europe and the Na- devoted to ethanol production. Nearly Sardar Jalaloglu, secretary-general of the tional Institute for Democracy (NDI) have 8,000 South Dakota farm families are Azerbaijan Democratic Party (ADP), taken confirmed widespread fraud on election day. connected to my State’s nine ethanol from his home on October 18 by armed According to many reports, the families of facilities. Implementing a Renewable masked men; Igbal Agazadeh, chair of the opposition election officials who refused to Fuels Standard, RFS, that signifi- Umid (‘‘Hope’’) Party, arrested on October sign forged protocols have also come under 17; Panah Huseinov, chair of the Khalq (‘‘Na- cantly benefits this growing industry is pressure and been victims of intimidation tion’’) Party, and a former prime minister of more important than slapping together from government officials, and in some cases Azerbaijan, arrested on October 19; and Vagif an agreement cut by a few Senators in have themselves been arrested. Hajibeili, chair of the Ahrar party, arrested Human Rights Watch calls on the Azer- order to grease the wheels for passage on October 17. baijani authorities to immediately end the of a broader energy bill. Most of the national leaders are being held crackdown against members of the opposi- As I look at the list of Republican at the Organized Crime Unit of the Ministry tion. Human Rights Watch further urged the conferees serving on the energy con- of Interior, a department that routinely uses Azerbaijani government to carry out a ference, I am very concerned that by torture and other physical abuse against de- prompt, independent and impartial inves- tainees, according to Human Rights Watch excluding Democrats, such as Senators tigation into the violence plaguing the coun- research. For details, please see Human DORGAN, DASCHLE, and BAUCUS, that try prior and subsequent to the election, and Rights Watch briefing paper ‘‘Azerbaijan: the ethanol agreement constructed will to investigate and prosecute security offi- Presidential Elections 2003.’’ not produce the long-term benefits cials and others implicated in abuses. Urgent The main opposition leader and presi- South Dakota’s member-owned ethanol dential contender Isa Gambar, chair of the international action is needed to prevent a further decline in human rights conditions in facilities and farmers expect from this Musavat party, is under house arrest, and his bill. This concern is not only shared by bodyguards have been detained. Several Azerbaijan, Human Rights Watch stressed. Musavat deputy chiefs have been arrested, Human Rights Watch also urges the Coun- Senate Democrats, but many Repub- including Sulheddin Akper, deputy chief for cil of Europe and the OSCE, together with lican Senators who want to grow eth- international affairs; Ibrahim Ibrahimli, dep- the United States and the European Union, anol production. Last Friday, 29 Sen- uty chief for humanitarian affairs; Arif to press the Aerbaijani government to form ators wrote to Senator DOMENICI and an independent commission to investigate Hajiev, deputy chief for organizational af- Representative TAUZIN reiterating that election fraud. Election experts from the fairs; and Mirbaba Babaev, a member of the the conference accept the Senate’s eth- Musavat supreme council. Council of Europe and OSCE should be part of this commission. anol agreement that passed on a bipar- The campaign of arrest has also focused on tisan vote of 68 to 28. Unfortunately, members of the ‘‘Our Azerbaijan’’ bloc, in- ‘‘Azerbaijan is giong through its most seri- cluding many civil society leaders, who sup- ous human rights crisis of the past decade,’’ opponents of renewable fuels appear to ported the candidacy of Musavat leader Isa said Bouckaert. ‘‘If this crackdown con- be prevailing within the conference. Gambar. Mehti Mehtiev, director of the tinues, there won’t be an opposition left in Therefore, I have great concerns with Human Rights Resource Center, was arrested Azerbaijan by the end of the month.’’ the decision by Senator DOMENICI not at his home on October 18. Itimar Asadov, f to release the ethanol and electricity chair of the Karabakh Invalids Association, agreements to the public so that it was arrested on October 17. The security STATUS OF ENERGY BILL CON- could be reviewed by all conferees. forces also attempted to arrest Ilgar FERENCE COMMITTEE NEGOTIA- By refusing to release the ethanol Ibrahimoglu, a major religious leader and TIONS the head of the Center for the Protection of and electricity agreements, South Da- Conscience and Religious Freedom; he re- Mr. JOHNSON. Mr. President, yester- kotans are deprived of the opportunity ceived refuge in the Norwegian Embassy day, in a joint statement, Senator to understand how this bill will impact after two of his associates, Azad DOMENICI and Representative TAUZIN their pocketbook and livelihood. Not- Nazimanoglu and Najaf Allahverdiyev, were indicated that because of continued withstanding a vague agreement to arrested on October 17. disagreements over energy tax provi- allow conferees to review the language The authorities have also detained local sions that additional conference meet- 24 hours before a final vote, this closed opposition activists in villages and towns ings on comprehensive energy legisla- process could ultimately produce a bill throughout Azerbaijan. For example, on Oc- tober 17, police in the town of Saatli arrested tion will not occur this week. At the that hurts my constituents. The elec- Agarza Miriev, the local Musavat chief; same time, Representative TAUZIN and tricity provisions in this bill have a Beibala Akperov, his deputy; Mikhail Senator DOMENICI announced that final significant impact on the thousands of Humbatov, chair of the local ADP branch; agreements had been reached on eth- customers in my State served by rural

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00063 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13048 CONGRESSIONAL RECORD — SENATE October 22, 2003 electric cooperatives, yet this com- McGinty, upon his retirement from the explaining contract-management ini- plicated section that could easily com- Federal Government after 33 years of tiatives to congressional staff, Dan prise over 100 pages of text will be re- distinguished and dedicated service to McGinty carried out his pressure- leased only one day before a final vote. our Nation and the Department of De- packed responsibilities with unwaver- My concerns go far beyond procedural fense. ing diligence, integrity, and com- fairness but speak directly to what Over the last 10 years, some of us in petence. type of electricity market Congress en- this Chamber have had dealings with On the occasion of his retirement visions taking shape in the next dec- Dan, as he carried out his responsibil- from Federal service, I offer my con- ade, and how to ensure that markets do ities as the director of congressional gratulations and thanks to this re- not disadvantage consumers. Will the and public affairs for the Defense Lo- spected resident of northern Virginia, authority over setting rates and ensur- gistics Agency (DLA) and most re- and wish him and his wife, Sue, well in ing the reliability of the power grid be cently with the Defense Contract Man- their future pursuits.∑ handled primarily through individual agement Agency (DCMA). His frequent f States or the Federal Government? dealings with the staff of the Armed CELEBRATING WORLD CUP What incentives are contained in the Services Committees of the Senate and SPEEDSKATING IN MARQUETTE, bill to encourage utilities to serve less House have been a paragon of profes- MICHIGAN populated regions of the country and sionalism, diplomacy, and conscien- ∑ Ms. STABENOW. Mr. President, I maintain the infrastructure needed for tious service. With integrity and an en- call attention to a wonderful sporting reliable and dependable service? The gaging personal style, Dan consisently event that will be held Friday, Satur- answers to these complicated questions exercised a remarkable talent for rec- day and Sunday in the city of Mar- lie within the closely guarded deals onciling divergent points of view, and agreed to by a handful of Senators and quette in Michigan’s Upper Peninsula. doing so in a way that resulted in mu- On those days the United States Congressman. tually acceptable outcome for all in- Olympic Education Center will host It is very important that the con- volved, be it in the arena of legislation ferees have access to these agreements World Cup speedskating at the Berry or constituent services. Events Center at Northern Michigan as soon as possible so that conferees Dan’s career journey began more University. can share them with our constituents. than three decades ago. Upon his grad- I am sure you recall how short track The Senate has twice passed com- uation from Eastern New Mexico Uni- speedskating suddenly became the prehensive energy legislation in the versity in 1970, he entered the Army as sport of the hour during the 2002 Win- last 2 years because of an open and de- a counterintelligence agent at Ft. Ord, ter Olympics in Salt Lake City, as we liberative process that produced com- California. Following an honorable dis- all cheered on the American promise and solutions on ethanol and charge in 1973, Dan began his Federal speedskating phenomenon Apolo Ohno. electricity, as well as other conten- civilian career at Kirtland Air Force The excitement of this high-speed tious provisions. That same openness is Base, NM, progressing through a vari- sport, where a slip and a fall always needed at this time if we are to con- ety of contract-management positions seems to be just a step away, became struct an energy policy that grows do- over the ensuing 10 years. one of the most-talked about events of mestic energy sources and secures reli- In the mid-1980s, Dan got his first the games. able and available supplies of energy. taste of life in the Nation’s Capital, When the Olympic games were fin- f serving as the strategic planning offi- ished and Apolo left with his medals, I LOCAL LAW ENFORCEMENT ACT cer on the staff of the Commander, Air am afraid that for most viewers OF 2003 Force Systems Command. After 4 years speedskating slipped back into the in that position, he returned to sports shadows. It was not likely to be Mr. SMITH. Mr. President, I rise Kirtland AFB to head up the resources- a sport that would bump football, golf today to speak about the need for hate planning division. Then in 1989, upon or NASCAR from the prime Sunday crimes legislation. On May 1, 2003, Sen- the issuance of Defense Management afternoon viewing slot. ator KENNEDY and I introduced the Review Decision 916, which placed all Despite this media eclipse, however, Local Law Enforcement Enhancement Defense contract administration under speedskating remains as riveting as it Act, a bill that would add new cat- DLA’s Defense Contract Management was during the Olympics. Highly- egories to current hate crimes law, Command, Dan returned to the Wash- trained athletes still challenge both sending a signal that violence of any ington, DC, area to serve as the direc- gravity and centrifugal force on the kind is unacceptable in our society. razor edge of their skates. Strategists I would like to describe a terrible tor of program and technical support for special programs at DCMC head- on the track still plot their pace, wait- crime that occurred in Washington, ing for the right moment to begin a D.C. On August 21, 2003, Aaryn Mar- quarters. But all that was mere prelude to sprint or challenge for the lead. And shall, 25, was shot and killed. Mr. MAR- what Dan will best be remembered 150 of the world’s best speedskaters SHALL was a transgender individual, for—his proficiency, acumen, and from more than 25 countries will thrill and dressed and lived as a woman. Po- credibility as the congressional affairs crowds of northern Michigan residents lice have classified the second-degree impresario for DLA and DCMA, two of who know their winter sports, from murder as a hate crime. Mr. MARSHALL dog-sledding to ski-jumping. the Defense Department’s leading com- was one of three transgendered resi- The event also promises an economic bat-support agencies. Since February dents shot in the city in a six-day pe- boost to an area that has been sus- 1994, he has been a highly effective am- riod in August. tained many economic blows, and it I believe that Government’s first bassador to Capitol Hill, articulating will showcase Marquette, MI, an All- duty is to defend its citizens, to defend agency programs and deftly conveying American community. them against the harms that come out his agencies’ perspective on emerging I have long supported the United of hate. The Local Law Enforcement legislation. States Olympic Education Center at Displaying an enviable blend of affa- Enhancement Act is a symbol that can Northern Michigan University, and I bility and sophistication, Dan estab- become substance. I believe that by praise them for their successful effort lished and enjoyed a marvelous rapport passing this legislation and changing in matching this world-class event to with Senate and House staff. Always current law, we can change hearts and an area that I have always considered responsive and informed, he consist- minds as well. world-class in its natural beauty— ently met the congressional and media Michigan’s Upper Peninsula.∑ f demands placed on him while pro- f ADDITIONAL STATEMENTS tecting and promoting the interests of the agencies he represented. IN RECOGNITION OF MONTGOMERY Whether he was contributing to the COUNTY HOUSING OPPORTUNI- TRIBUTE TO DANIEL W. MCGINTY successful development of a classified TIES COMMISSION ∑ Mr. WARNER. Mr. President, I rise weapons systems program, responding ∑ Mr. SARBANES. Mr. President, I today to pay tribute to Daniel W. to pointed questions from reporters, or wish to recognize the work of the Hous-

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00064 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13049 ing Opportunities Commission of Mont- this year’s participants in HOC’s pro- net access, while Hispanics and African gomery County, MD. Today, the Hous- gram. This year, 36 new families will Americans are far less likely to have Inter- ing Opportunities Commission is cele- graduate from the FSS program in net access; and brating the 10th anniversary of its Montgomery County, and I want to Whereas, there is a growing ‘‘digital di- vide’’ between those citizens able to access Family Self Sufficiency, FSS, program, recognize the work that they have done the technology of the new economy and which helps low-income families with to become self-sufficient. Ninety-two those who cannot; and section 8 housing vouchers or living in percent of these graduates have par- Whereas, increased access to the Internet public housing meet their educational ticipated in education and/or job train- will create jobs and contribute to economic and employment goals. The Housing ing courses and seven graduates have development; and Opportunities Commission has estab- become homeowners. Whereas, taxing access to the Internet will lished a wonderful program that pro- These individuals are not only better make access to the Internet less affordable vides resources to low-income families and therefore less available; and positioned to participate in the job Whereas, taxing Internet access contrib- to help them find and retain employ- market, but they are providing sta- utes to this condition and unfairly burdens ment along with the opportunity for bility for their families and models for citizens who are least able to afford Internet families to put away savings. These their communities. The staff at HOC access; and savings allow families to pay for edu- and the graduates of the FSS program, Whereas, the Wisconsin legislature has pre- cational opportunities, transportation present, past, and future, are to be viously voted to repeal the state’s sales tax or even the purchase of a home. While commended for their efforts.∑ on Internet access thus demonstrating its many housing authorities operate commitment to making sure that Wisconsin f Family Self Sufficiency programs, I be- is on the leading edge of this new technology and providing incentives for even more ac- lieve that the Housing Opportunities MESSAGES FROM THE PRESIDENT cess and creative use of the Internet: Now, Commission has done an extraordinary Messages from the President of the therefore, be it job of helping its residents achieve eco- United States were communicated to Resolved by the Senate, That the members nomic independence. the Senate by Ms. Evans, one of his of the Wisconsin senate memorialize Con- In the 10 years that the Commission secretaries. gress to pass legislation that will imme- has operated the Family Self Suffi- diately and permanently prohibit any state ciency program, almost 350 people have f from imposing a tax on access to the Inter- graduated and are well on their way to net; and be it further EXECUTIVE MESSAGES REFERRED Resolved, That the Senate chief shall pro- financial independence. These families As in executive session the Presiding vide a copy of this resolution to the gov- faced significant barriers to gaining ernor, to each member of the Wisconsin con- employment—33 percent were on wel- Officer laid before the Senate messages from the President of the United gressional delegation, to the president and fare or were unemployed, many had no vice president of the United States, to each States submitting sundry nominations high school degree and 95 percent are member of the president’s cabinet, and to single parents. Despite these obstacles, which were referred to the appropriate the secretary of the U.S. Senate and clerk of all 347 graduates have been able to re- committees. the U.S. House of Representatives. tain stable employment, and 25 percent (The nominations received today are POM–305. A joint resolution adopted by the of the FSS graduates have purchased printed at the end of the Senate pro- ceedings.) Legislature of the State of Maine relative to their own homes, a remarkable the Head Start Program; to the Committee achievement. f on Health, Education, Labor, and Pensions. The Housing Opportunities Commis- MEASURES PLACED ON THE POM–306. A concurrent resolution adopted sion, HOC, has been committed to this by the House of Representatives of the Gen- CALENDAR important program for 10 years. By eral Assembly of the State of Ohio relative providing intensive case management, The following bill and joint resolu- to the Human Cloning Prohibition Act of opportunities for education and job tion were read the second time, and 2003; to the Committee on Health, Education, training and assistance in finding and placed on the calendar: Labor, and Pensions. paying for child care, HOC has ensured H.R. 1446. An act to support the efforts of HOUSE CONCURRENT RESOLUTION NO. 6 that the families enrolled in FSS can the California Missions Foundation to re- Whereas, the human embryo is a living or- make the transition from welfare to store and repair the Spanish colonial and ganism of the species Homo sapiens at the work a successful one. mission-era missions in the State of Cali- earliest stages of development (including the In addition to working to better the fornia and to preserve the artworks and arti- single-celled stage), and human cloning a facts of these missions, and for other pur- human being at the embryonic stage of life lives of Montgomery County residents, poses. and grows this new human being solely to be the Housing Opportunities Commission H.J. Res. 73. Joint resolution making fur- exploited (‘‘reproductive cloning) or de- has been a strong advocate for the pro- ther continuing appropriations for the fiscal stroyed (so-called ‘‘therapeutic’’ cloning) gram, helping me and others in Con- year 2004, and for other purposes. through nontherapeutic research and experi- mentation; and gress fight to continue and even expand f the FSS program. In 1998, my col- Whereas, human cloning is a manufac- leagues and I fought to keep this pro- PETITIONS AND MEMORIALS turing process in which a human being is created in a laboratory; human cloning indi- gram and thankfully, we were able to The following petitions and memo- cates a utilitarian view in which a human strengthen it by requiring that certain rials were laid before the Senate and being is created merely for usefulness with increases in income were disregarded were referred or ordered to lie on the no respect for the dignity of that human for purposes of determining the table as indicated: being; and human cloning creates a human being who is the twin of a parent, has no amount of rent a family pays. Families POM304. A resolution adopted by the Sen- other biological parent, and is the child of who take part in FSS and increase ate of the Legislature of the State of Wis- the grandparents, thereby causing serious their incomes are able to save money consin relative to a tax on Internet access; moral, social, and legal issues; and in an escrow account instead of paying to the Committee on Commerce, Science, Whereas, current human cloning attempts and Transportation. more in rent. This is a great encour- pose a substantial risk of producing human agement for families to find better em- SENATE RESOLUTION NO. 18 beings with unpredictable but potentially ployment, and it ensures that funds are Whereas, the emergence of the Internet as devastating health problems; and available when necessary for emer- a means of communication has profoundly Whereas, such human cloning attempts are gencies. In addition, last year, I intro- influenced our society and will pave the way grossly irresponsible and unethical; and duced legislation which would expand for the global marketplace; and Whereas, the United States House of Rep- the program so that families living in Whereas, Wisconsin is one of only 8 states resentatives passed the Human Cloning Pro- project-based section 8 developments that imposes a sales tax on Internet access, hibition Act of 2001, a complete ban, and the thereby putting Wisconsin companies that President of the United States has called for could also benefit from a housing agen- conduct business over the Internet at a com- a complete human cloning ban; and cy’s self-sufficiency programs. petitive disadvantage; and Whereas, a complete human cloning ban is The Family Self Sufficiency program Whereas, the U.S. Department of Com- achieved by the passage of the Human is one that changes lives for the better, merce has estimated that wealthy Ameri- Cloning Prohibition Act of 2003 as introduced and that is evident when looking at cans are 20 times more likely to have Inter- in the United States Senate by Senator SAM

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BROWNBACK (S. 245) and in the United States Resolved, That the Northwest states should children in Neurodevelopmental Centers House of Representatives by Representative consider cooperative strategies to address such as the seventeen model DAVE WELDON (H.R. 234) and is not achieved the challenge of the high cost of prescription Neurodevelopmental Centers in Washington by the passage of other human cloning prohi- medications, including; State which have successfully served thou- bition acts that allow the creation of human (1) Model legislation to ensure citizens ac- sands of children for more than forty years embryos by cloning so long as they are killed cess to prescription medications at reason- with a constantly improving program; for research: Now, therefore, be it able and affordable prices; Now, therefore, your Memorialists respect- Resolved, That the General Assembly of the (2) Joint pricing and purchasing agree- fully pray that Congress, through its process State of Ohio urges the 108th Congress of the ments for prescription medications; to reauthorize IDEA, modify the wording re- United States to pass and the President to (3) Programs to provide and facilitate ac- garding ‘‘natural environments’’ to allow for sign the Human Cloning Prohibition Act of cess of qualified citizens to supplies of free parent choice for assessment and treatment 2003; and be it further * * * and discounted prescription medications of- of their developmentally delayed infants and fered by pharmaceutical manufacturers; and toddlers at a Neurodevelopmental Center POM–307. A joint memorial adopted by the (4) Initiatives to encourage and ensure such as the seventeen outstanding Legislature of the State of Washington rel- medications are prescribed in the most effec- Neurodevelopmental Centers serving chil- ative to prescription drug prices; to the Com- tive manner; and be it further dren and families in Washington State. mittee on Health, Education, Labor, and Resolved, That copies of this Memorial be Be it Resolved, That copies of this Memo- Pensions. immediately transmitted to the Honorable rial be immediately transmitted to the Hon- orable George W. Bush, President of the SENATE JOINT MEMORIAL 8001 Governors of the States of Washington, Or- egon, Idaho, Alaska, and Montana, and to United States, the Secretary of the Depart- Whereas, thanks to significant invest- the Honorable George W. Bush, President of ment of Education, the President of the ments in research and development by phar- the United States of America, the President United States Senate, the Speaker of the maceutical manufacturers, prescription of the United States Senate, the Speaker of House of Representatives, and each member medications offer ever more safe, effective, the House of Representatives, and each mem- of Congress from the State of Washington. and economical means of managing and ber of Congress from the State of Wash- treating a widening range of illnesses and POM–309. A resolution adopted by the ington. conditions; and House of Representatives of the Legislature Whereas, prescription medications are the of the Commonwealth of Massachusetts rel- POM¥308. A joint memorial adopted by most rapidly expanding component of health ative to the Government Pension Offset the Legislature of the State of Washington care in the Northwest and the United States; Rule; to the Committee on Health, Edu- relative to developmentally delayed infants; and cation, Labor, and Pensions. to the Committee on Health, Education, Whereas, the prices of most prescription Labor, and Pensions. RESOLUTION medications developed and marketed in the Whereas, the Government Pension Offset HOUSE JOINT MEMORIAL 4025 United States are relatively high compared Rule of Title II of the Social Security Act, to the prices of these same medications in Whereas, infants and toddlers from birth to originally enacted in 1977, went into effect in other countries and other markets; and the age of three with developmental delays 1983; and Whereas, expenditures on prescription and special needs are our most vulnerable Whereas, the Government Pension Offset medications for Medicaid recipients in Wash- population; and Rule unfairly reduces Social Security bene- ington has risen substantially in recent Whereas, research shows that early inter- fits that a person receives as a spouse if he years, placing severe strains on the oper- vention to assess their needs and initiate in- or she also has a Government Pension Based ating budget of the department of social and tensive, effective therapy can change and on work that was not covered by Social Se- health services; and improve such a child’s ability to function curity; and Whereas, the federal government, unlike throughout his or her life; and Whereas, since its inception, the Govern- its counterparts in other countries, applies Whereas, Washington State through re- ment Pension Offset Rule has negatively and neither its regulatory authority nor its pur- search and demonstration at the University unfairly affected over 340,000 Federal, State, chasing power to the prices of prescription of Washington and the state’s seventeen and local retirees; and medication which consequently are mark- Neurodevelopmental Centers has been the Whereas, Massachusetts is one of 15 States edly higher in the United States than in leader in assessment and remediation for de- in which the Government Pension Offset other countries; and velopmentally delayed infants and toddlers Provision financially impacts Federal and Whereas, the United States stands vir- for more than forty years; and State retirees particularly hard; and tually alone among the major countries of Whereas, therapy before the age of three at Whereas, the Government Pensions Offset the world in recognizing and protecting the one of Washington State’s excellent Provision is complicated and difficult to un- legitimate patent rights of companies that Neurodevelopmental Centers results in a sig- derstand for many individuals affected by it; develop new prescription medications yet nificant percentage of children who need no and places no reciprocal obligations on these further intervention or special services pro- Whereas, the Government Pension Offset companies to provide reasonable and afford- vided at federal, state, local, and private ex- Rule has uneven results, especially for sur- able access to these patent medications; and pense; and viving spouses of low-paid workers; and Whereas, as of December 2001, 349,000 Gov- Whereas, the federal government, by legis- Whereas, basing early intervention serv- ernment annuitants had their Social Secu- lating to ensure relatively low prices for pre- ices on an itinerant model will reduce the rity spousal benefits affected by the Govern- scription medications purchased by federal amount of specialized services for each child ment Pension Offset Rule; and agencies like the Veterans’ Administration and family; and Whereas, in December 1999, the average off- and for federal programs taking similar Whereas, serving all developmentally de- set caused by the Government Pensions Off- measures, has exacerbated the impact of pre- layed children outside of centers will more set Rule was $276 a month for men and $391 scription medication prices on the citizens of than double the cost to federal, state, local, a month for women; and the state; and and private sources; and Whereas, Massachusetts State employees, Whereas, the high prices of prescription Whereas, inclusion for developmentally de- including teachers, do not pay into the Fed- medications weigh most heavily on the least layed children in their families, schools, and eral Social Security system and therefore, fortunate and most vulnerable citizens, the communities is now and has always been the are unfairly penalized once they reach retire- uninsured and underinsured, as well as those goal of assessment and treatment for Wash- ment by the Government Pension Offset stricken by serious and chronic illnesses and ington State’s seventeen Rule; and conditions requiring intensive and extensive Neurodevelopmental Centers; and Whereas, it is unlikely that people will treatment; and Whereas, support and education of parents, turn to teaching professions at the end of Whereas, managing prices of prescription families, and caregivers has been a major their careers due to the loss of Social Secu- medications and expanding access to nec- component of treatment for children with rity benefits they will endure once they essary medication will decrease the overall developmental delays at Washington State’s leave private sector professions; and cost of health care by reducing the demand seventeen Neurodevelopmental Centers; and Whereas, individuals who worked all their for hospital visits and emergency services Whereas, parent choice for the assessment lives as public servants in teaching profes- and the need for surgical and other expensive and treatment of their children is an inalien- sions or social service professions are not eli- procedures; able right; and gible to receive Social Security widow’s ben- Now, therefore, your Memorialists respect- Whereas, wording for the original Edu- efits as a result of the Government Pension fully pray that in seeking to ensure reason- cation for All Act of 1975, now known as Indi- Offset Rule and are thus unjustly penalized able prescription medication prices for the viduals with Disabilities Education Act for choosing public sector careers; and citizens of Washington, the state of Wash- (IDEA), is taken directly from legislation en- Whereas, the reforms that led to the Gov- ington, through its duly elected and ap- acted in Washington State in 1971 (HB 90); ernment Pension Offset Rule are over 20 pointed officials, should explore the possi- and years old and outdated; and bility of acting in concert with other North- Whereas, wording in the amended IDEA Whereas, over the past several years, more west states to pursue this goal; and be it fur- takes away parent choice of assessment and than 300 members of Congress have sup- ther treatment for their developmentally delayed ported or co-sponsored legislation to amend

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00066 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13051 this provision in Title II of the Social Secu- Choinumni Tribe full federal recognition and bols of America’s extraordinary strength; rity Act; Therefore be it all the rights and privileges that arise from and Resolved, That the Massachusetts house of that declaration, including listing the tribe Whereas, millions more people in this na- representatives respectfully requests the in the Federal Register under the relevant tion, and across the world, were sickened as United States Congress to repeal the Govern- provisions of the Federally Recognized In- they witnessed walls collapsing into rubble ment Pension Offset Rule of Title II of the dian Tribe List Act of 1994 (Public Law 103– and faces collapsing into horror: Now, there- Social Security Act; and be it further 454), Title I; and be it further fore, be it Resolved, That a copy of these resolutions Resolved, That the Chief Clerk of the As- Resolved, That We, the Members of the be forwarded by the clerk of the House of sembly transmit copies of this resolution to One Hundred and Twentieth Legislature now Representatives to the President of the the President and Vice President of the assembled in the Second Regular Session, United States, to the Presiding Officer of United States, to each Senator and Rep- join the citizens throughout Maine in ac- each branch of Congress and to the Members resentative from California in the Congress knowledging and expressing our sorrow to all thereof from this commonwealth. of the United States, and to the Assistant those who have suffered loss through the Secretary for Indian Affairs in the United deaths of loved ones or injury to themselves; POM–310. A joint resolution adopted by the States Department of the Interior. and be it further Assembly of the State of California relative Resolved, That We, the Members of the to the Choinumni Tribe; to the Committee POM–311. A resolution adopted by the One Hundred and Twentieth Legislature, be- on Indian Affairs. House of Representatives of the General As- lieve that all those who participated in or JOINT RESOLUTION NO. 8 sembly of the State of Ohio relative to estab- sponsored these terrible crimes against hu- lishing a National Funeral Service Edu- manity should be brought to justice without Whereas, the Choinumni Tribe of Yokuts is cation Week; to the Committee on the Judi- regard to region or border; and be it further a sovereign Indian Nation, located in Fresno ciary. Resolved, That We, the Members of the County, California, consisting of 103 enrolled One Hundred and Twentieth Legislature, and documented members, with its tribal HOUSE RESOLUTION NO. 131 avow and affirm our love for and belief in headquarters located approximately 15 miles Whereas, the well-planned, thoughtful fu- this country and its people and principles from Choinumni State Park named in honor neral service, which formally commemorates and its confidence in our President and lead- of and as recognition of, the Choinumni and celebrates the life of a deceased person, ers as they guide us through these difficult Tribe; and often helps to comfort the person’s family days; and be it further Whereas, the leaders of the Choinumni and to foster the family’s healing process; Resolved, That We, the Members of the Tribe met with representatives of the United and One Hundred and Twentieth Legislature, ex- States for treaty negotiations, and a treaty Whereas, in the midst of the emotional dis- press the collective grief and anguish of our was signed by both the tribal leaders and the tress and upheaval that may accompany the friends and neighbors throughout the nation United States on April 29, 1851; and death of a loved one, bereaved families seek and our allies in other countries who suf- Whereas, the Choinumni Tribe was thus reassurance and consolation from funeral di- fered loss in the aftermath of the appalling recognized by the United States government rectors and morticians and may rely heavily airplane hijackings and attacks on Sep- as early as 1851; and on them for guidance in planning and imple- tember 11, 2001 and pledge our prayers and Whereas, the Choinumni Tribe signed the menting a meaningful funeral ceremony; and our purpose in sustaining the strength and treaty, on April 29, 1851, with four other In- Whereas, funeral service directors provide solidarity of this nation, our President and dian tribes, Picaynue Rancheria, Table invaluable assistance to grieving families by our leaders as we respond to this unprece- Mountain Rancheria, Santa Rosa Rancheria, assisting the families in making informed fu- dented attack on America; and be it further and Big Sandy Rancheria, all of whom are neral service choices, providing them with Resolved, That suitable copies of this reso- currently fully federally recognized Indian information necessary to make funeral serv- lution, duly authenticated by the Secretary tribes; and ice arrangements, and orchestrating mean- of State, be transmitted to the Honorable Whereas, the Choinumni Tribe is the only ingful funeral services to memorialize their George W. Bush, President of the United tribe to have signed this treaty that has not loved ones; and States, to the President of the United States yet been granted full federal recognition; Whereas, national funeral organizations Senate, to the Speaker of the United States and have designated the week of September 21 House of Representatives, to the governors Whereas, between 1851 and 1915, the United through September 27, 2003, as National Fu- of the states of Maine and New York and the States government began an unwarranted, neral Service Education Week to reflect the commonwealths of Pennsylvania and Vir- hostile relationship with the Choinumni efforts by funeral service directors and mor- ginia. Tribe that forced many of its members to ticians to help grieving families to com- flee into the hills; and memorate and celebrate the lives of their POM–313. A resolution adopted by the Whereas, around 1887, the United States loved ones; and House of Representatives of the Legislature government granted individual land allot- Whereas, during the week of September 21 of the State of Texas relative to a constitu- ments to some tribal members, but those al- through September 27, 2003, funeral directors tional amendment to prohibit courts from lotments were devoid of any water or other and consumer advocates will intensify their mandating states or political subdivisions to vital natural resources, forcing surviving efforts to provide consumers with necessary levy or increase taxes; to the Committee on tribal members to move to the City of Fres- information regarding funeral planning, the the Judiciary. no to seek economic sustainability; and arrangement of funeral ceremonies, and the Whereas, the Congress of the United States selection of funeral goods and services: Now, HOUSE RESOLUTION NO. 526 has recognized the Choinumni Tribe pursu- therefore, be it Whereas, in 1990, the United States Su- ant to subchapter XXV (commencing with Resolved, That we, the members of the preme Court, in the case of Missouri, et al. v. Section 651) of Chapter 14 of Title 25 of the House of Representatives of the 125th Gen- Jenkins, et al. (495 U.S. 33), chose to dis- United States Code, which recognition was eral Assembly of the State of Ohio, strongly regard Article I, Section 8, of the United judicially affirmed by the United States encourage the Congress of the United States States Constitution, which reserves exclu- Court of Claims in the case of Indians of to support efforts to establish National Fu- sively to the legislative branch of govern- California v. United States (1942) 98 Ct.C1. neral Service Education Week; and be it fur- ment the authority to tax the citizenry; and 583; and ther Whereas, in drafting that constitutional Whereas, since the Choinumni Tribe is not *** section and allocating the power of taxation, listed as an Indian tribe eligible to receive the Founding Fathers drew upon the Peti- federal programs set aside for Native Amer- POM–312. A joint resolution adopted by the tion of Right, an English law initiated by Sir ican tribes, the Choinumni Tribe cannot par- Legislature of the State of Maine relative to Edward Coke, then approved by the British ticipate in health, education, and social pro- Maine victims of the September 11th trag- House of Commons and accepted by King grams provided by the Bureau of Indian Af- edy; to the Committee on the Judiciary. Charles I on June 7, 1628, which states in per- fairs and the Indian Health Service; and H.P. 1542 tinent part that ‘‘. . . no man hereafter Whereas, the Choinumni Tribe has long Whereas, on September 11, 2001 thousands [may] be compelled to make or yield any . . . been in a position of poverty that can be cor- of innocent people from Maine and across the tax . . . without common consent by Act of rected by federal recognition; and United States lost their lives and their loved Parliament . . .’’; and Whereas, the Choinumni Tribe has been ones or were injured in a shocking assault on Whereas, in 1787, the framers of the United working since 1959 for federal recognition, the World Trade Center and the Pentagon; States Constitution reiterated that time- including a 1987 application that is still and tested principle of limited taxation, specifi- pending; Now, therefore, be it Whereas, on the same day an airplane hi- cally vesting with the legislative branch Resolved by the Assembly and senate of the jacked as a part of those cowardly acts alone the ‘‘. . . Power To lay and collect State of California, jointly, That the Legisla- crashed in the countryside outside Pitts- Taxes, Duties, Imposts and Excises . . .’’; ture respectfully memorializes the President burgh, Pennsylvania, killing all aboard; and and and the Congress, and the Assistant Sec- Whereas, these losses were suffered by or- Whereas, their intent is unambiguous, retary for Indian Affairs in the United States dinary people as they were traveling or were made clear by the analysis of James Madi- Department of the Interior to grant the working in buildings that had become sym- son, who observed in The Federalist No. 48

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00067 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13052 CONGRESSIONAL RECORD — SENATE October 22, 2003 that ‘‘. . . the legislative department alone the Michigan Legislature in 1996 (Senate ‘‘Article Neither the Supreme Court nor has access to the pockets of the people . . .’’; Concurrent Resolution No. 278) designated as any inferior court of the United States shall and POM–444 in Volume 144 of the Congressional have the power to instruct or order a state or Whereas, the same view is expressed by Record at page S5515; political subdivision thereof, or an official of Alexander Hamilton, who asked rhetorically the South Dakota Legislature in 1996 such state or political subdivision, to levy or in The Federalist No. 33, ‘‘[w]hat is the (House Concurrent Resolution No. 1010) des- increase taxes’’; and be it further power of laying and collecting taxes but a ignated as POM–526 in Volume 142 of the Resolved, That the chief clerk of the Texas legislative power . . .?,’’ and follows consist- Congressional Record at page 6587; House of Representatives forward official ently in The Federalist No. 78, in which he the Delaware General Assembly in 1997 copies of this resolution to the vice president argued that the judiciary should be the least (House Concurrent Resolution No. 6) des- of the United States, to the speaker of the dangerous branch of government inasmuch ignated as POM–20 in Volume 143 of the Con- United States House of Representatives, and as judges would have ‘‘. . . no influence over gressional Record at page S5252; to all members of the Texas delegation to either the sword or the purse . . .’’; and the Alabama Legislature in 1998 (House the Congress, with the request that this reso- Whereas, yet today, Hamilton’s argument Joint Resolution No. 261) designated as lution be entered officially in the Congres- no longer rings true; through legal orders POM–416 in Volume 144 of the Congressional sional Record as a memorial to the Congress and the exercise of judicial threat and in- Record at page S9405; of the United States of America to propose the Oklahoma Legislature in 1998 (Senate timidation, federal courts have usurped the for ratification a federal constitutional Concurrent Resolution No. 50) designated as role of the legislative branch and have gone amendment to prohibit judicially imposed POM–479 in Volume 144 of the Congressional so far as to apply it even to non-federal lev- taxes. els of government, mandating state and local Record at pages S6404 and S6405; requirements that have the direct, or indi- the Illinois Senate in 1999 (Senate Resolu- tion No. 216) designated as POM–449 in Vol- POM–314. A resolution adopted by the rect, effect of imposing judicial taxes upon House of Representatives of the Legislature the states and their political subdivisions; ume 146 of the Congressional Record at page S1814 and designated as POM–512 at page of the State of Michigan relative to visas for and temporary agricultural workers; to the Com- Whereas, in so vesting itself by fiat with S3611; the Utah Legislature in 1999 (House Joint mittee on the Judiciary. control of the public purse strings, the fed- Resolution No. 5) designated as POM–285 in HOUSE RESOLUTION NO. 314 eral judiciary has contravened and over- Volume 145 of the Congressional Record at ridden the constitutional separation of pow- Whereas, the tragic events of September page S9945; ers between the different branches—and lev- 11, 2001, have caused us to reexamine a host the Kansas Legislature in 2000 (House Con- els—of government, threatening creation of of policies and practices to do all we can to current Resolution No. 5059) designated as a fiscal oligarchy unbeholden to influence by increase the security of our state and nation. POM–527 in Volume 146 of the Congressional the electorate; and Because of the magnitude of the attacks and Record at page S4378; the fact that murderers plotted the attacks Whereas, the states and Congress have too the New Hampshire General Court in 2000 long ignored this self-proclamation and sei- over a long period of time, we are now mak- (House Concurrent Resolution No. 27) des- ing greater efforts to address the issue of zure of taxation prerogatives, and it be- ignated as POM–531 in Volume 146 of the hooves all Americans to preserve their rights aliens who are here illegally; and Congressional Record at page S6469; Whereas, as the issue of immigration is by the adoption of an amendment to the the Pennsylvania General Assembly in 2000 closely examined, it is imperative that our Constitution of the United States, re-estab- (Senate Resolution No. 47) designated as nation remember the vitally important role lishing the fundamental link between tax- POM–642 in Volume 146 of the Congressional that law-abiding aliens play in our country. ation and representation; and Record at pages S11788 and S11789; Whereas, seeking to reverse the aforemen- the South Carolina General Assembly in Temporary workers meet a necessary and tioned Jenkins decision of 1990, lawmakers in 2000 (House Concurrent Resolution No. 4434) productive need in many sectors of our econ- 23 other States—and in two territories of the designated as POM–641 in Volume 146 of the omy. This is most apparent in the area of ag- United States—beginning in 1993, have al- Congressional Record at page S11575; riculture. Michigan, which benefits greatly ready adopted and transmitted to Congress the West Virginia Legislature in 2000 from the efforts of seasonal agricultural memorials requesting that Congress propose (House Concurrent Resolution No. 5) des- workers, especially from Mexico, is keenly an amendment to the United States Con- ignated as POM–442 in Volume 146 of the aware of how much these workers contribute stitution, and those memorials have been en- Congressional Record at page S1669; to our state; and tered in the Congressional Record as follows: the House of Representatives of the Com- Whereas, the country’s policies toward the Missouri General Assembly in 1993 monwealth of the Northern Mariana Is- temporary agricultural workers need to be (Senate Concurrent Resolution No. 9) des- lands—a territory of the United States—in assessed in the context of the importance of ignated as POM–175 in Volume 139 of the 2000 (House Resolution No. 12–109) designated these people to our nation. The current num- Congressional Record at page 14565; as Memorial No. 1 in Volume 147 of the Con- ber of visas for temporary agricultural work- the Colorado General Assembly in 1994 gressional Record at page H111; as well as ers may not be sufficient. If this number is (Senate Joint Memorial No. 94–2) designated the Senate of the Commonwealth of the too low, it may have the effect of increasing as POM–569 in Volume 140 of the Congres- Northern Mariana Islands, likewise in 2000 the number of aliens here without docu- sional Record at page 15070; (Senate Resolution No. 12–33) designated as mentation, even though seasonal farm work- the New York Senate in 1994 (Senate No. POM–46 in Volume 147 of the Congressional ers would rather be here by following all of 3352) designated as POM–578 in Volume 140 of Record at page S4244; the regulations. The current program used the Congressional Record at page 15073; the North Dakota Legislative Assembly in for temporary agricultural workers visa the Tennessee General Assembly in 1994 2001 (House Concurrent Resolution No. 3031) processing (H2A) should be reformed. Making (Senate Joint Resolution No. 372) designated designated as POM–7 in Volume 147 of the the process of gaining the proper visa as POM–580 in Volume 140 of the Congres- Congressional Record at pages S3704 and smoother and increasing the number of these sional Record at page 15074; S3705; workers who can be here lawfully may well the Arizona Legislature in 1995 (Senate the Legislature of the United States Terri- benefit the economy as well as increase na- Concurrent Resolution No. 1014) designated tory of Guam in 2001 (Resolution No. 6) des- tional security: Now, therefore, be it as POM–523 in Volume 142 of the Congres- ignated as POM–357 in Volume 148 of the Resolved by the house of representatives, sional Record at pages 6586 and 6587; Congressional Record at page S10570; and That we memorialize the Congress of the the Louisiana Legislature in 1995 (Senate the Wyoming Legislature in 2002 (Senate United States and the Immigration and Nat- Concurrent Resolution No. 11) designated as Joint Resolution No. SJ003, later styled En- uralization Service to determine the appro- POM–525 in Volume 142 of the Congressional rolled Joint Resolution No. 2) designated as priateness of increasing the number of visas Record at page 6587; POM–250 in Volume 148 of the Congressional for temporary agricultural workers, and be the Massachusetts Senate in 1995 (unnum- Record at pages S5630 and S5631: Now, there- it further bered resolution) designated as POM–625 in fore, be it Resolved, That copies of this resolution be Volume 142 of the Congressional Record at Resolved, That the House of Representa- transmitted to the President of the United pages 14940 and 14941 and designated as POM– tives of the 78th Legislature of the State of States Senate, the Speaker of the United 638 at page 15486; Texas, Regular Session, 2003, hereby memori- States House of Representatives, the mem- the Nevada Legislature in 1995 (Senate alize the United States Congress to propose bers of the Michigan congressional delega- Joint Resolution No. 2) designated as POM– and submit to the states for ratification an tion, and the Immigration and Naturaliza- 287 in Volume 141 of the Congressional amendment to the United States Constitu- tion Service. Record at page 22422; tion to prohibit all federal courts from order- f the Alaska Legislature in both 1996 and ing or instructing any state or political sub- 1998 (House Joint Resolution No. 30 in 1996) division thereof, or an official of any state or REPORTS OF COMMITTEES designated as POM–622 in Volume 142 of the political subdivision, to levy or increase The following reports of committees Congressional Record at pages 14939 and taxes; and be it further 14940; (House Joint Resolution No. 57 in 1998) Resolved, That the Congress be respectfully were submitted: designated as POM–515 in Volume 144 of the requested to entertain the following sug- By Mr. HATCH, from the Committee on Congressional Record at page S9042; gested text for such an amendment: the Judiciary:

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00068 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13053 Report to accompany S. 1293, A bill to the Senate, relating to cloture; to the Com- S. 976, a bill to provide for the issuance criminalize the sending of predatory and mittee on Rules and Administration. of a coin to commemorate the 400th an- abusive e-mail (Rept. No. 108–170). By Mrs. CLINTON (for herself, Mr. niversary of the Jamestown settle- f SHELBY, Mrs. LINCOLN, Mr. DEWINE, ment. Mr. KENNEDY, Mr. LAUTENBERG, Mr. EXECUTIVE REPORTS OF HAGEL, and Mr. MILLER): S. 985 COMMITTEES S. Con. Res. 74. A concurrent resolution ex- At the request of Mr. DODD, the name The following executive reports of pressing the sense of the Congress that a of the Senator from Minnesota (Mr. postage stamp should be issued as a testi- DAYTON) was added as a cosponsor of S. committees were submitted: monial to the Nation’s tireless commitment By Ms. COLLINS for the Committee on 985, a bill to amend the Federal Law to reuniting America’s missing children with Enforcement Pay Reform Act of 1990 to Governmental Affairs. their families, and to honor the memories of Joseph Michael Francis Ryan III, of the those children who were victims of abduction adjust the percentage differentials pay- District of Columbia, to be an Associate and murder; to the Committee on Govern- able to Federal law enforcement offi- Judge of the Superior Court of the District mental Affairs. cers in certain high-cost areas, and for of Columbia for the term of fifteen years. other purposes. Jerry Stewart Byrd, of the District of Co- f S. 1098 lumbia, to be an Associate Judge of the Su- ADDITIONAL COSPONSORS perior Court of the District of Columbia for At the request of Mr. CONRAD, the the term of fifteen years. S. 286 name of the Senator from Louisiana Brian F. Holeman, of the District of Co- At the request of Mr. BOND, the name (Ms. LANDRIEU) was added as a cospon- lumbia, to be an Associate Judge of the Su- of the Senator from Oregon (Mr. SMITH) sor of S. 1098, a bill to amend title perior Court of the District of Columbia for was added as a cosponsor of S. 286, a XVIII of the Social Security Act to up- the term of fifteen years. bill to revise and extend the Birth De- Craig S. Iscoe, of the District of Columbia, date the renal dialysis composite rate. to be Associate Judge of the Superior Court fects Prevention Act of 1998. S. 1143 of the District of Columbia for the term of S. 392 At the request of Mrs. HUTCHISON, the fifteen years. At the request of Mr. REID, the name of the Senator from Nebraska *Dale Cabaniss, of Virginia, to be a Mem- names of the Senator from Connecticut (Mr. HAGEL) was added as a cosponsor ber of the Federal Labor Relations Authority (Mr. DODD) and the Senator from North of S. 1143, a bill to amend the Public for a term of five years expiring July 29, 2007. By Mr. CAMPBELL for the Committee on Carolina (Mrs. DOLE) were added as co- Health Service Act to direct the Sec- Indian Affairs. sponsors of S. 392, a bill to amend title retary of Health and Human Services *David Wayne Anderson, of Minnesota, to 10, United States Code, to permit re- to establish, promote, and support a be an Assistant Secretary of the Interior. tired members of the Armed Forces comprehensive prevention, research, *Nomination was reported with rec- who have a service-connected dis- and medical management referral pro- ommendation that it be confirmed sub- ability to receive both military retired gram for hepatitis C virus infection. ject to the nominee’s commitment to pay by reason of their years of military S. 1297 respond to requests to appear and tes- service and disability compensation At the request of Mr. BUNNING, his tify before any duly constituted com- from the Department of Veterans Af- name was added as a cosponsor of S. mittee of the Senate. fairs for their disability. 1297, a bill to amend title 28, United (Nominations without an asterisk S. 473 States Code, with respect to the juris- were reported with the recommenda- At the request of Mr. FEINGOLD, the diction of Federal courts inferior to the tion that they be confirmed.) name of the Senator from Minnesota Supreme Court over certain cases and f (Mr. DAYTON) was added as a cosponsor controversies involving the Pledge of INTRODUCTION OF BILLS AND of S. 473, a bill to amend the Federal Allegiance to the Flag. JOINT RESOLUTIONS Water Pollution Control Act to clarify S. 1298 the jurisdiction of the United States At the request of Mr. AKAKA, the The following bills and joint resolu- over waters of the United States. tions were introduced, read the first name of the Senator from Washington S. 478 and second times by unanimous con- (Ms. CANTWELL) was added as a cospon- At the request of Mr. SARBANES, the sent, and referred as indicated: sor of S. 1298, a bill to amend the Farm name of the Senator from Missouri Security and Rural Investment Act of By Mr. SANTORUM (for himself and (Mr. BOND) was added as a cosponsor of 2002 to ensure the humane slaughter of Mr. CARPER): S. 1773. A bill to permit biomedical re- S. 478, a bill to grant a Federal charter non-ambulatory livestock, and for search corporations to engage in certain eq- Korean War Veterans Association, In- other purposes. uity financings without incurring limita- corporated, and for other purposes. S. 1369 tions on net operating loss carryforwards S. 816 At the request of Mr. AKAKA, the and certain built-in losses, and for other pur- At the request of Mr. CONRAD, the name of the Senator from West Vir- poses; to the Committee on Finance. name of the Senator from Virginia (Mr. ginia (Mr. ROCKEFELLER) was added as By Mr. KENNEDY (for himself, Mrs. ARNER CLINTON, Mr. CORZINE, Mrs. FEIN- W ) was added as a cosponsor of S. a cosponsor of S. 1369, a bill to ensure STEIN, Mr. LAUTENBERG, Mr. LEVIN, 816, a bill to amend title XVIII of the that prescription drug benefits offered Mr. REED, and Mr. SCHUMER): Social Security Act to protect and pre- to medicare eligible enrollees in the S. 1774. A bill to repeal the sunset provi- serve access of medicare beneficiaries Federal Employees Health Benefits sions in the Undetectable Firearms Act of to health care provided by hospitals in Program are at least equal to the actu- 1988; to the Committee on the Judiciary. rural areas, and for other purposes. arial value of the prescription drug By Mr. BOND (for himself, Mr. KEN- S. 877 benefits offered to enrollees under the NEDY, Mr. BINGAMAN, Mr. GRAHAM of plan generally. South Carolina, and Mr. TALENT): At the request of Mr. PRYOR, his S. 1775. A bill to make certain technical name was added as a cosponsor of S. S. 1379 and conforming amendments to correct the 877, a bill to regulate interstate com- At the request of Mr. JOHNSON, the Health Care Safety Net Amendments of 2002; merce by imposing limitations and name of the Senator from Louisiana to the Committee on Health, Education, penalties on the transmission of unso- (Ms. LANDRIEU) was added as a cospon- Labor, and Pensions. licited commercial electronic mail via sor of S. 1379, a bill to require the Sec- f the Internet. retary of the Treasury to mint coins in SUBMISSION OF CONCURRENT AND At the request of Mr. MCCAIN, his commemoration of veterans who be- SENATE RESOLUTIONS name and the name of the Senator came disabled for life while serving in The following concurrent resolutions from Illinois (Mr. FITZGERALD) were the Armed Forces of the United States. and Senate resolutions were read, and added as cosponsors of S. 877, supra. S. 1380 referred (or acted upon), as indicated: S. 976 At the request of Mr. SMITH, the By Mr. MILLER: At the request of Mr. WARNER, the name of the Senator from Michigan S. Res. 249. A resolution to strike para- name of the Senator from Wyoming (Mr. LEVIN) was added as a cosponsor of graph 2 of rule XXII of the Standing Rules of (Mr. ENZI) was added as a cosponsor of S. 1380, a bill to distribute universal

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00069 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13054 CONGRESSIONAL RECORD — SENATE October 22, 2003 service support equitably throughout (Mr. BURNS) was added as a cosponsor S. 1769 rural America, and for other purposes. of S. 1664, a bill to amend the Federal At the request of Mr. DORGAN, his S. 1506 Insecticide, Fungicide, and Rodenticide name was added as a cosponsor of S. At the request of Mr. BUNNING, the Act to provide for the enhanced review 1769, a bill to provide for class action name of the Senator from North Da- of covered pesticide products, to au- reform, and for other purposes. kota (Mr. CONRAD) was added as a co- thorize fees for certain pesticide prod- At the request of Mr. BREAUX, the sponsor of S. 1506, a bill to amend the ucts, and to extend and improve the name of the Senator from New Mexico Internal Revenue Code of 1986 to allow collection of maintenance fees. (Mr. BINGAMAN) was added as a cospon- distilled spirits wholesalers a credit S. 1686 sor of S. 1769, supra. against income tax for their cost of At the request of Mr. GRASSLEY, the S. CON. RES. 21 carrying Federal excise taxes prior to name of the Senator from New Mexico At the request of Mr. BUNNING, the the sale of the product bearing the tax. (Mr. BINGAMAN) was added as a cospon- name of the Senator from Massachu- S. 1531 sor of S. 1686, a bill to reauthorize the setts (Mr. KENNEDY) was added as a co- At the request of Mr. HATCH, the adoption incentive payments program sponsor of S. Con. Res. 21, a concurrent name of the Senator from Arkansas under part E of title IV of the Social resolution expressing the sense of the (Mrs. LINCOLN) was added as a cospon- Security Act, and for other purposes. Congress that community inclusion sor of S. 1531, a bill to require the Sec- S. 1708 and enhanced lives for individuals with retary of the Treasury to mint coins in At the request of Mr. KENNEDY, the mental retardation or other develop- commemoration of Chief Justice John name of the Senator from Montana mental disabilities is at serious risk Marshall. (Mr. BAUCUS) was added as a cosponsor because of the crisis in recruiting and S. 1557 of S. 1708, a bill to provide extended un- retaining direct support professionals, At the request of Mr. SARBANES, the employment benefits to displaced which impedes the availability of a sta- name of the Senator from Rhode Island workers, and to make other improve- ble, quality direct support workforce. (Mr. REED) was added as a cosponsor of ments in the unemployment insurance S. CON. RES. 58 S. 1557, a bill to authorize the exten- system. At the request of Mr. DEWINE, the sion of nondiscriminatory treatment S. 1717 name of the Senator from Louisiana (normal trade relations treatment) to (Ms. LANDRIEU) was added as a cospon- the products of Armenia. At the request of Mr. HATCH, the name of the Senator from Vermont sor of S. Con. Res. 58, a concurrent res- S. 1595 (Mr. JEFFORDS) was added as a cospon- olution expressing the sense of Con- At the request of Mr. KERRY, the sor of S. 1717, a bill to amend the Pub- gress with respect to raising awareness name of the Senator from Arkansas lic Health Service Act to establish a and encouraging prevention of stalking (Mr. PRYOR) was added as a cosponsor National Cord Blood Stem Cell Bank in the United States and supporting of S. 1595, a bill to amend the Internal Network to prepare, store, and dis- the goals and ideals of National Stalk- Revenue Code of 1986 to allow small tribute human umbilical cord blood ing Awareness Month. business employers a credit against in- stem cells for the treatment of patients S CON RES 73 come tax with respect to employees . . . and to support peer-reviewed research who participate in the military reserve At the request of Mrs. FEINSTEIN, the using such cells. components and are called to active name of the Senator from Indiana (Mr. duty and with respect to replacement S. 1741 BAYH) was added as a cosponsor of S. employees and to allow a comparable At the request of Ms. COLLINS, the Con. Res. 73, a concurrent resolution credit for activated military reservists names of the Senator from Washington expressing the deep concern of Con- who are self-employed individuals, and (Mrs. MURRAY), the Senator from Ha- gress regarding the failure of the Is- for other purposes. waii (Mr. AKAKA), the Senator from lamic Republic of Iran to adhere to its S. 1612 Ohio (Mr. VOINOVICH), the Senator from obligations under a safeguards agree- At the request of Ms. COLLINS, the Minnesota (Mr. COLEMAN) and the Sen- ment with the International Atomic name of the Senator from Connecticut ator from Arkansas (Mr. PRYOR) were Energy Agency and the engagement by (Mr. LIEBERMAN) was added as a co- added as cosponsors of S. 1741, a bill to Iran in activities that appear to be de- sponsor of S. 1612, a bill to establish a provide a site for the National Wom- signed to develop nuclear weapons. technology, equipment, and informa- en’s History Museum in the District of S. RES. 202 tion transfer within the Department of Columbia. At the request of Mr. CAMPBELL, the Homeland Security. S. 1751 name of the Senator from California S. 1619 At the request of Mr. GRASSLEY, the (Mrs. BOXER) was added as a cosponsor At the request of Mrs. MURRAY, the name of the Senator from Tennessee of S. Res. 202, a resolution expressing name of the Senator from Wisconsin (Mr. ALEXANDER) was added as a co- the sense of the Senate regarding the (Mr. FEINGOLD) was added as a cospon- sponsor of S. 1751, a bill to amend the genocidal Ukraine Famine of 1932-33. sor of S. 1619, a bill to amend the Indi- procedures that apply to consideration AMENDMENT NO. 1828 viduals with disabilities Education Act of interstate class actions to assure At the request of Mr. COCHRAN, the to ensure that children with disabil- fairer outcomes for class members and names of the Senator from Utah (Mr. ities who are homeless or are wards of defendants, and for other purposes. BENNETT), the Senator from Georgia the State have access to special edu- At the request of Mr. HATCH, the (Mr. CHAMBLISS) and the Senator from cation services, and for other purposes. name of the Senator from Virginia (Mr. Utah (Mr. HATCH) were added as co- S. 1637 ALLEN) was added as a cosponsor of S. sponsors of amendment No. 1828 in- At the request of Mr. GRASSLEY, the 1751, supra. tended to be proposed to H.R. 1904, a name of the Senator from Rhode Island S. 1756 bill to improve the capacity of the Sec- (Mr. CHAFEE) was added as a cosponsor At the request of Mr. CONRAD, the retary of Agriculture and the Sec- of S. 1637, a bill to amend the Internal names of the Senator from Virginia retary of the Interior to plan and con- Revenue Code of 1986 to comply with (Mr. ALLEN) and the Senator from duct hazardous fuels reduction projects the World Trade Organization rulings Texas (Mrs. HUTCHISON) were added as on National Forest System lands and on the FSC/ETI benefit in a manner cosponsors of S. 1756, a bill to amend Bureau of Land Management lands that preserves jobs and production ac- the Internal Revenue Code of 1986 to aimed at protecting communities, wa- tivities in the United States, to reform protect the health benefits of retired tersheds, and certain other at-risk and simplify the international taxation miners and to restore stability and eq- lands from catastrophic wildfire, to en- rules of the United States, and for uity to the financing of the United hance efforts to protect watersheds and other purposes. Mine Workers of America Combined address threats to forest and rangeland S. 1664 Benefit Fund by providing additional health, including catastrophic wildfire, At the request of Mr. COCHRAN, the sources of revenue to the Fund, and for across the landscape, and for other pur- name of the Senator from Montana other purposes. poses.

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00070 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13055 STATEMENTS ON INTRODUCED uity in successive financing rounds. tion has made no public statements on BILLS AND JOINT RESOLUTIONS This practice is essential to success- the need to renew it, and neither has By Mr. SANTORUM (for himself fully negotiating the long product de- the Republican leadership of the House and Mr. CARPER): velopment and Food and Drug Admin- or Senate. Unless Congress and the S. 1773. A bill to permit biomedical istration approval processes. President act soon, Americans will find research corporations to engage in cer- These limitations unintentionally themselves needlessly vulnerable to tain equity financings without incur- discourage biotechnology research and terrorist attacks and other gun vio- ring limitations on net operating loss leave the firms that would otherwise lence in airlines, airports, schools, and carryforwards and certain built-in conduct that research in dire financial office buildings. losses, and for other purposes; to the straits. Without these firms, the The gun industry clearly has the Committee on Finance. money that is being poured into re- technology to manufacture firearms Mr. SANTORUM. Mr. President, search at the National Institutes of that cannot be detected by metal de- today, I am introducing the Bio- Health (NIH) and elsewhere to combat tectors and x-ray machines. technology Future Investment Expan- diseases such as cancer, AIDS, hepa- As early as 1986, Congress’s Office of sion Act of 2003. I am pleased that Sen- titis, cardiovascular ailments, diabe- Technology Assessment found that ator CARPER is cosponsoring this im- tes, and central nervous system dis- ‘‘technology does exist to manufacture portant, bipartisan bill. orders, as well as many rare diseases, certain firearms which would be com- Biotechnology holds great promise will have a significantly reduced poten- pletely or almost completely non-me- for breakthroughs in health care, agri- tial to lead to new cures. We may never tallic,’’ and that ‘‘plastic handguns culture and defense against bioter- know what cures will be lost without may be available on the commercial rorism. However, recent years have action. market quite soon.’’ seen promising biotech medical thera- Recognizing the unique structure of A 1985 report by the American Fire- pies endangered due to flawed tax the biotech industry—a structure that arms Industry emphasized the profit- treatment and a lack of willing capital. the architects and stewards of the Tax ability of plastic guns for the industry: This legislation will level the playing Code likely never imagined—this legis- ‘‘The American plastic gun will shortly field to encourage further investment lation is narrowly drafted to exempt make its appearance. Plastic is the ‘common’ word, but it’s really liquid and innovation in this vital sector of certain qualified investments in bio- crystal polymer. . . . [I]n the long run, our economy. technology from Section 382 restric- if a 100% plastic gun works, this would The nearly 1,500 biotechnology com- tions. This change will spur investment be great for sales. What this does is panies in the U.S. have produced 130 in biotechnology, so we can continue make everything that has been pro- FDA-approved products while another the pursuit of innovative and life-sav- duced in this century obsolete. That is 350 biotech drug products and vaccines ing therapies, all while continuing to exactly what our industry desperately are currently in clinical trials. Most prevent the fraudulent use of NOLs, as needs. This will give us a whole new, biotechnology researchers work in Section 382 intends. and real reason to resell every hunter promising, but relatively narrow fields, I encourage all of my colleagues to and shooter in America.’’ and only a small number of their peers join us in supporting this bill. are qualified to evaluate the theo- In 1986, Libyan dictator Muammar Qaddafi tried to purchase more than retical promise of any new idea. On av- By Mr. KENNEDY (for himself, 100 handguns produced in Austria and erage, it takes these researchers more Mrs. CLINTON, Mr. CORZINE, made almost entirely of hardened plas- than 10 years and $500 million to de- Mrs. FEINSTEIN, Mr. LAUTEN- tic. BERG, Mr. LEVIN, Mr. REED, and velop a new biotech therapy, and this The technology of gun manufacturers Mr. SCHUMER): highly capital-intensive research is has clearly improved since the 1980’s— S. 1774. A bill to repeal the sunset more often done at small-to-medium- and the desire of terrorists to attack provisions in the Undetectable Fire- sized companies that are yet to market Americans has soared. We know that arms Act of 1988; to the Committee on a saleable product. terrorists are exploiting the weak- These factors combine to create an the Judiciary. nesses and loopholes in U.S. gun laws. industry structure that is unique in Mr. KENNEDY. Mr. President, it’s a In 2000, a member of the Middle East our economic history. Unfortunately, privilege to join my colleagues in in- terrorist group Hezbollah was con- this unique structure prevents the bio- troducing the Terrorist Firearms De- victed in Detroit on gun charges and technology industry from utilizing re- tection Act of 2003. conspiracy to ship guns and ammuni- search incentives intended to promote Since the atrocities of September 11, tion to Lebanon. He had bought many just the kind of research it engages in. Congress has acted with strong bipar- of those guns at gun shows in Michi- Specifically, net operating loss tisan support to win the war on ter- gan. carryforwards (NOLs), which are meant rorism and protect the country from In 2001, American soldiers found a to allow research-intensive industries future attacks. We’ve improved the se- terrorist training manual entitled like biotechnology to apply current curity of our airports and our borders, ‘‘How Can I Train Myself for Jihad’’ in losses against future profits for tax strengthened our defenses against bio- a house in Afghanistan. It stated: ‘‘In purposes, are routinely made worthless terrorism, and given law enforcement other countries, e.g., some states of to biotech companies due to an unin- new powers to investigate terrorist USA. . . . it is perfectly legal for mem- tended consequence of the tax code. In threats and prevent terrorism. bers of the public to own certain types fact, the current tax treatment of But Congress has not yet acted to of firearms. If you live in such a coun- NOLs impairs, rather than fosters, bio- renew one of the Nation’s most essen- try, obtain an assault rifle legally . . . technology research. This is because tial protections against terrorism. The learn how to use it properly and go and rules designed to prevent abuse of Undetectable Firearms Act—also practice in the areas allowed for such NOLs through acquisition often inad- known as the ‘‘plastic gun’’ law— training.’’ vertently trigger restrictions on the makes it illegal to manufacture, im- What could be clearer? We know use of a biotech firm’s NOLs, rendering port, possess, or transfer a firearm that what’s coming. Terrorists are eager to them useless in many cases, when all is not detectable by walk-through exploit weaknesses in our gun laws, the company has done is raise more metal detectors or airport x-ray ma- and there is no doubt that Americans capital. chines. Only firearms necessary for cer- will be at much greater risk if Congress Section 382, which for the most part tain military and intelligence uses are fails to renew the Undetectable Fire- has proven to be an effective guard exempt. arms Act. against tax abusive NOL trafficking, This law was first enacted in 1988, Just last week, Admiral James M. describes the many circumstances that long before the attacks on 9/11, and it Loy of the Transportation Security Ad- can be classified as an ownership is more important than ever now. It ministration testified that, according change. Unfortunately, those cir- has been extended once since it was to U.S. intelligence, terrorists are cumstances apply to and penalize the first enacted, but it is now scheduled to more likely to try to hijack a commer- frequent biotech practice of raising eq- expire on December 10. The administra- cial airliner than attempt to shoot

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00071 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13056 CONGRESSIONAL RECORD — SENATE October 22, 2003 down an aircraft with shoulder-fired SENATE CONCURRENT RESOLU- and national legislation to help pre- missiles. The December 2001 arrest of TION 74—EXPRESSING THE vent future abductions and to protect attempted ‘‘shoe bomber’’ Richard Reid SENSE OF THE CONGRESS THAT thousands of children from sexual pred- showed just how committed terrorists A POSTAGE STAMP SHOULD BE ators. are to smuggling undetectable plastic ISSUED AS A TESTIMONIAL TO There are 800,000 parents every year, like the Wetterlings, who endure the explosives onto airplanes. Reid was THE NATION’S TIRELESS COM- loss of a child and are struggling to stopped at the last minute by alert pas- MITMENT TO REUNITING AMER- ICA’S MISSING CHILDREN WITH come to terms with the helplessness, sengers and crew, not by any detection THEIR FAMILIES, AND TO HONOR anger, and frustration that consume machinery. The legalization of THE MEMORIES OF THOSE CHIL- them during the ensuing weeks and undetectable guns will clearly increase DREN WHO WERE VICTIMS OF months. Many of my colleagues know the danger to flight crews, passengers ABDUCTION AND MURDER all too well the agony of losing a child. and other citizens exponentially. As parents, community members, legis- Mrs. CLINTON (for herself, Mr. lators, we are all affected when a child The need for action is urgent. The SHELBY, Mrs. LINCOLN, Mr. DEWINE, Terrorist Firearms Detection Act will goes missing. Mr. KENNEDY, Mr. LAUTENBERG, Mr. I want to take this opportunity to renew the Act and make it permanent. HAGEL, and Mr. MILLER) submitted the recognize the important work of the The danger to security from plastic following concurrent resolution; which National Center for Missing and Ex- firearms will not sunset, and the law was referred to the Committee on Gov- ploited Children (NCMEC). This organi- that bans them shouldn’t sunset either. ernmental Affairs: zation was established by Congress in The Terrorist Firearms Detection S. CON. RES. 74 1984 through the Missing Children’s As- Act is supported by Americans for Gun Whereas there are reported missing in the sistance Act to carry out the mission United States approximately 2,000 children of finding missing children, combating Safety, the Brady Campaign to Prevent each day and up to 800,000 children each year; Gun Violence United with the Million Whereas the National Center for Missing child sexual exploitation, and pre- Mom March, the Coalition to Stop Gun and Exploited Children was established 19 venting child victimization. Through Violence, and the Violence Policy Cen- years ago as the Nation’s resource center its partnership with 18,000 law enforce- ment agencies across the United States ter. The only organization to have op- and clearinghouse for information on Amer- ica’s missing children, and issued a national and abroad, NCMEC’s is unparalleled in posed the ban on plastic guns in the call to action requesting the participation of its commitment to this issue. past is the National Rifle Association, every citizen to assist in the search for the Last year, I was proud to submit the and it’s fair to ask, ‘‘Whose side are country’s missing youth; Code Adam Act, a resolution encour- they on?’’ If they insist on another sun- Whereas it is the collective responsibility aging public places to employ a Code set, perhaps we can sunset the NRA in- of all Americans to better protect the Na- tion’s children, as well as to assist in the Adam protocol to thwart child abduc- stead. search for those who are missing; tions in commercial establishments. The bill we are introducing today is Whereas the issuance of a stamp bearing The Code Adam protocol was named in only one of several steps that Congress the image of a missing child sends a powerful memory of 6-year-old Adam Walsh, the message, both at its unveiling and on each son of John Walsh, co-founder of the should take to protect our people from letter on which it is sent, that Americans National Center for Missing and Ex- gun violence. Senator LAUTENBERG’s will neither tolerate the victimization of ploited Children and host of ‘‘Amer- Homeland Security Gun Safety Act their children nor rest until each missing ica’s Most Wanted.’’ Adam was mur- child is reunited with his or her family; and will close the loopholes in our gun laws dered after being kidnapped from a that allow rogue gun dealers to evade Whereas the Missing Children’s Stamp Committee, headquartered in New York Florida shopping mall in 1981. The Code the law and sell guns illegally to crimi- State, has collected more than 26,000 letters Adam Protocol requires store employ- nals and terrorists. That’s how the D.C. from around the world in support of such a ees to announce a ‘‘Code Adam’’ alert snipers acquired their Bushmaster stamp: Now, therefore, be it over the public-address system when a rifle. Resolved by the Senate (the House of Rep- customer reports a missing child. All resentatives concurring), That it is the sense Congress should also act to strength- designated employees receive a brief of the Congress that— description of the child, immediately en criminal background checks for gun (1) a postage stamp should be issued by the stop their normal work to search for purchases under the Brady Law, renew United States Postal Service to honor all that child, and monitor all exists to the assault weapons ban, and close the missing children; and (2) the Citizens’ Stamp Commission of the help prevent the child from leaving the ‘‘gun show loophole’’ once and for all. United States Postal Service should rec- store. The Code Adam Act was ap- Each of these gun-safety measures is ommend to the Postmaster General that proved by Congress in April of this needed to protect our people in com- such a stamp be issued. year as part of the PROTECT Act and munities across the country, and I urge Mrs. CLINTON. Mr. President, I rise was signed into law on April 30, 2003 by my colleagues to support them. today with my colleague, Senator the President. It will undoubtedly play SHELBY, to submit a resolution to en- an important role in finding missing f courage the United States Postal Serv- children and returning them safely to ice Stamp Advisory Committee to their homes. SUBMITTED RESOLUTIONS issue the National Missing and Ex- I was also a proud cosponsor of the ploited Children’s Postage Stamp. I am National AMBER Alert Network Act of proud to join my colleague Congress- 2003. This Act brings critical financial man BOEHLERT, the champion of this assistance to States to help them im- SENATE RESOLUTION 249—TO legislation in the House, and am hon- plement AMBER plans. It also creates STRIKE PARAGRAPH 2 OF RULE ored to be a part of this effort. an AMBER coordinator within the De- XXII OF THE STANDING RULES We introduce this resolution today partment of Justice. AMBER, which OF THE SENATE, RELATING TO on the 14th anniversary of the abduc- stands for America’s Missing: Broad- CLOTURE tion of Jacob Wetterling. Jacob was cast Emergency Response was created only 11 years old when he was kid- in 1996 after the abduction and murder Mr. MILLER submitted the following napped at gunpoint while riding his of Amber Hagerman in Texas. It’s an resolution; which was referred to the bike on his way home from a conven- emergency alert plan like that used in Committee on Rules and Administra- ience store in St. Joseph, MN. Though storm warnings that alerts a commu- tion: he was taken from his family and nity about the recent disappearance of friends on this day his memory is still a child. With the help of the National S. RES. 249 alive. With support from his commu- Center of Missing and Exploited Chil- Resolved, That rule XXII of the Standing nity, Jacob’s parents established the dren, the broadcast community, and Rules of the Senate is amended by striking Jacob Wetterling Foundation, which members of law enforcement, the paragraph 2. has successfully advocated for local AMBER Alert helped find 105 children

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00072 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13057 across the country. Justice Depart- recruiting and retaining direct support pro- MCCAIN, and Mr. HOLLINGS) proposed ment Statistics show that 74 percent of fessionals, which impedes the availability of an amendment to the bill S. 877, to reg- kidnapped children who are later found a stable, quality direct support workforce. ulate interstate commerce by imposing murdered are killed within the first 3 SA 1898. Mr. FRIST (for Mr. BUNNING) pro- limitations and penalties on the trans- posed an amendment to the concurrent reso- hours of their abduction. The National lution S. Con. Res. 21, supra. mission of unsolicited commercial elec- Amber Alert Network Act will help law tronic mail via the Internet; as follows: f enforcement, in those early critical On page 66, strike lines 1 through 11 and in- hours, as they work hard to find a TEXT OF AMENDMENTS sert the following: missing child. I am pleased that it was SA 1891. Mr. WYDEN (for himself and SEC. 9. DO-NOT-E-MAIL REGISTRY. also approved by Congress and signed Mr. BURNS) proposed an amendment to (a) IN GENERAL.—Not later than 6 months into law as part of the PROTECT Act. the bill S. 877, to regulate interstate after the date of enactment of this Act, the Commission shall transmit to the Senate Ten years ago, on August 18, 1993, commerce by imposing limitations and Sara Ann Woods, a child of Herkimer Committee on Commerce, Science, and penalties on the transmission of unso- Transportation and the House of Representa- County, NY, was abducted as she was licited commercial electronic mail via tives Committee on Energy and Commerce a riding home from her father’s church the Internet; as follows: report that— in Litchfield, NY. After 3 years her kid- On page 37, line 12, after the comma, insert (1) sets forth a plan and timetable for es- napper confessed to her murder, leav- ‘‘whether or not not displayed,’’. tablishing a nationwide marketing Do-Not- ing the town devastated. Sara’s death On page 44, line 20, strike ‘‘false or mis- E-mail registry; has been and continues to be the inspi- leading.’’ and insert ‘‘materially false or ma- (2) includes an explanation of any prac- ration behind this legislation. I also terially misleading.’’. tical, technical, security, privacy, enforce- On page 45, line 2, strike ‘‘misleading; and’’ ability, or other concerns that the Commis- want to mention Marc Klaas and John sion has regarding such a registry; and Walsh, the honorary co-chairmen of and insert ‘‘materially misleading;’’. On page 45, line 5, strike ‘‘false or mis- (3) includes an explanation of how the reg- the Missing Children’s Stamp Com- leading.’’ and insert ‘‘materially false or ma- istry would be applied with respect to chil- mittee in Mohawk Valley, NY, and terially misleading; and’’. dren with e-mail accounts. Herkimer County Legislator John On page 45, between lines 5 and 6, insert (b) AUTHORIZATION TO IMPLEMENT.—The Brezinski, who has worked tirelessly the following: Commission may establish and implement on this effort. ‘‘(C) if header information attached to a the plan, but not earlier than 9 months after the date of enactment of this Act. I am pleased to be joined in this ef- message fails to identify a protected com- fort with Senators SHELBY, DEWINE, puter used to initiate the message because the person initiating the message knowingly SA 1893. Mr. HATCH (for himself, Mr. LINCOLN, KENNEDY, LAUTENBERG, uses another protected computer to relay or LEAHY, Mr. NELSON of Florida, and Mr. HAGEL and MILLER as original cospon- retransmit the message for purposes of dis- SCHUMER) proposed an amendment to sors. guising its origin, then such header informa- the bill S. 877, to regulate interstate According to a poll by Zogby, more tion shall be considered materially mis- commerce by imposing limitations and than two out of every three Americans leading.’’. penalties on the transmission of unso- support a National Missing and Ex- On page 49, between lines 11 and 12, insert licited commercial electronic mail via ploited Children’s Postage Stamp. This the following: the Internet; as follows: (6) Materiality defined.—For purposes of commemorative stamp will help raise On page 43, beginning with line 11, strike awareness and honor these missing paragraph (1), an inaccuracy or omission in header information is material if it would through the matter appearing between lines children and their families. This stamp materially impede the ability of a party 10 and 11 on page 44 and insert the following: will reach individuals across geo- seeking to allege a violation of this Act to SEC. 4. PROHIBITION AGAINST PREDATORY AND graphic and socioeconomic spectrums, locate the person who initiated the message ABUSIVE COMMERCIAL E-MAIL. and we know that when it comes to or to investigate the alleged violation. (a) OFFENSE.— combating these terrible crimes, On page 50, beginning in line 24, strike ‘‘es- (1) IN GENERAL.—Chapter 47 of title 18, tablish’’ and insert ‘‘register for’’. United States Code, is amended by adding at awareness is crucial. I urge my col- the end the following new section: leagues to support this resolution. I be- On page 51, after line 22, insert the fol- ‘‘§ 1037. Fraud and related activity in connec- lieve that it will make a difference in lowing: ‘‘(d) SUPPLEMENTARY RULEMAKING AUTHOR- tion with electronic mail protecting the lives of our children. ITY.— ‘‘(a) IN GENERAL.—Whoever, in or affecting f The Commission may by rule— interstate or foreign commerce, knowingly— AMENDMENTS SUBMITTED & ‘‘(1) modify the 10-business-day period ‘‘(1) accesses a protected computer without under subsection (a)(4)(A) or subsection authorization, and intentionally initiates PROPOSED (a)(4)(B), or both, if the Commission deter- the transmission of multiple commercial SA 1891. Mr. WYDEN (for himself and Mr. mines that a different period would be more electronic mail messages from or through BURNS) proposed an amendment to the bill S. reasonable after taking into account— such computer, 877, to regulate interstate commerce by im- ‘‘(A) the purposes of subsection (a); ‘‘(2) uses a protected computer to relay or posing limitations and penalties on the ‘‘(B) the interests of recipients of commer- retransmit multiple commercial electronic transmission of unsolicited commercial elec- cial electronic mail; and mail messages, with the intent to deceive or tronic mail via the Internet. ‘‘(C) the burdens imposed on senders of mislead recipients, or any Internet access SA 1892. Mr. SCHUMER (for himself, Mr. lawful commercial electronic mail; and service, as to the origin of such messages, GRAHAM, of South Carolina, Mr. MCCAIN, and ‘‘(2) specify additional activities or prac- ‘‘(3) falsifies header information in mul- Mr. HOLLINGS) proposed an amendment to tices to which subsection (b) applies if the tiple commercial electronic mail messages the bill S. 877, supra. Commission determines that those activities and intentionally initiates the transmission SA 1893. Mr. HATCH (for himself, Mr. or practices are contributing substantially of such messages, LEAHY, Mr. NELSON, of Florida, and Mr. to the proliferation of commercial electronic ‘‘(4) registers, using information that fal- SCHUMER) proposed an amendment to the bill mail messages that are unlawful under sub- sifies the identity of the actual registrant, S. 877, supra. section (a).’’ for 5 or more electronic mail accounts or on- SA 1894. Mr. MCCAIN (for Mr. ENZI (for On page 58, beginning in line 16, strike ‘‘ju- line user accounts or 2 or more domain himself, Mr. SANTORUM, and Mr. HATCH)) pro- risdiction or in any other court of com- names, and intentionally initiates the trans- posed an amendment to the bill S. 877, supra. petent’’. mission of multiple commercial electronic SA 1895. Mr. HARKIN proposed an amend- On page 62, beginning in line 14, strike ‘‘de- mail messages from any combination of such ment to the bill S. 877 , supra. fendant, or in any other court of competent accounts or domain names, or SA 1896. Mr. MCCAIN (for Mr. CORZINE (for jurisdiction, to—’’ and insert ‘‘defendant—’’. ‘‘(5) falsely represents the right to use 5 or himself and Mr. GRAHAM, of South Carolina)) On page 65, beginning in line 7, strike ‘‘for more Internet protocol addresses, and inten- proposed an amendment to the bill S. 877, any such statute, regulation, or rule that’’ tionally initiates the transmission of mul- supra. and insert ‘‘to the extent that any such stat- tiple commercial electronic mail messages SA 1897. Mr. FRIST (for Mr. BUNNING) pro- ute, regulation, or rule’’. from such addresses, posed an amendment to the concurrent reso- On page 65, line 16, strike ‘‘State laws’’ and or conspires to do so, shall be punished as lution S. Con. Res. 21, expressing the sense of insert ‘‘other State laws to the extent that provided in subsection (b). the Congress that community inclusion and those laws relate’’. ‘‘(b) PENALTIES.—The punishment for an enhanced lives for individuals with mental offense under subsection (a) is— retardation or other developmental disabil- SA 1892. Mr. SCHUMER (for himself, ‘‘(1) a fine under this title, imprisonment ities is at serious risk because of the crisis in Mr. GRAHAM of South Carolina, Mr. for more than 5 years, or both, if—

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‘‘(A) the offense is committed in further- of large quantities of unsolicited electronic (2) PRESCRIPTION OF MARKS AND NOTICES.— ance of any felony under the laws of the mail. Not later than 120 days after the date of the United States or of any State; or (2) REQUIREMENTS.—In carrying out this enactment of this Act, the Commission in ‘‘(B) the defendant has previously been subsection, the Sentencing Commission shall consultation with the Attorney General convicted under this section or section 1030, consider providing sentencing enhancements shall prescribe clearly identifiable marks or or under the law of any State for conduct in- for— notices to be included in or associated with volving the transmission of multiple com- (A) those convicted under section 1037 of unsolicited commercial electronic mail that mercial electronic mail messages or unau- title 18, United States Code, who— contains sexually oriented material, in order thorized access to a computer system; (i) obtained electronic mail addresses to inform the recipient of that fact and to fa- ‘‘(2) a fine under this title, imprisonment through improper means, including— cilitate filtering of such electronic mail. The for not more than 3 years, or both, if— (I) harvesting electronic mail addresses of Commission shall publish in the Federal ‘‘(A) the offense is an offense under sub- the users of a website, proprietary service, or Register and provide notice to the public of section (a)(1); other online public forum operated by an- the marks or notices prescribed under this ‘‘(B) the offense is an offense under sub- other person, without the authorization of paragraph. section (a)(4) and involved 20 or more fal- such person; and (3) DEFINITION.—In this subsection, the sified electronic mail or online user account (II) randomly generating electronic mail term ‘‘sexually oriented material’’ means registrations, or 10 or more falsified domain addresses by computer; or any material that depicts sexually explicit name registrations; (ii) knew that the commercial electronic conduct (as that term is defined in section ‘‘(C) the volume of electronic mail mes- mail messages involved in the offense con- 2256 of title 18, United States Code), unless sages transmitted in furtherance of the of- tained or advertised an Internet domain for the depiction constitutes a small and insig- fense exceeded 2,500 during any 24-hour pe- which the registrant of the domain had pro- nificant part of the whole, the remainder of riod, 25,000 during any 30-day period, or vided false registration information; and which is not primarily devoted to sexual (B) those convicted of other offenses, in- 250,000 during any 1-year period; matters. cluding offenses involving fraud, identity ‘‘(D) the offense caused loss to 1 or more (4) PENALTY.—A violation of paragraph (1) theft, obscenity, child pornography, and the persons aggregating $5,000 or more in value is punishable as if it were a violation of sec- sexual exploitation of children, if such of- during any 1-year period; tion 1037(a) of title 18, United States Code. ‘‘(E) as a result of the offense any indi- fenses involved the sending of large quan- vidual committing the offense obtained any- tities of unsolicited electronic mail. Mr. HARKIN proposed an (c) SENSE OF CONGRESS.—It is the sense of SA 1895. thing of value aggregating $5,000 or more Congress that— amendment to the bill S. 877, to regu- during any 1-year period; or (1) Spam has become the method of choice late interstate commerce by imposing ‘‘(F) the offense was undertaken by the de- for those who distribute pornography, per- limitations and penalties on the trans- fendant in concert with 3 or more other per- petrate fraudulent schemes, and introduce sons with respect to whom the defendant oc- mission of unsolicited commercial elec- viruses, worms, and Trojan horses into per- cupied a position of organizer or leader; and tronic mail via the Internet; as follows: sonal and business computer systems; and At the appropriate place add the following: ‘‘(3) a fine under this title or imprisonment (2) the Department of Justice should use for not more than 1 year, or both, in any all existing law enforcement tools to inves- SECTION 1. SHORT TITLE. other case. tigate and prosecute those who send bulk This title may be cited as the ‘‘Training ‘‘(c) FORFEITURE.— commercial e-mail to facilitate the commis- for Realtime Writers Act of 2003’’. ‘‘(1) IN GENERAL.—The court, in imposing sion of Federal crimes, including the tools SEC. 2. FINDINGS. sentence on a person who is convicted of an contained in chapters 47 and 63 of title 18, Congress makes the following findings: offense under this section, shall order that United States Code (relating to fraud and (1) As directed by Congress in section 723 of the defendant forfeit to the United States— false statements); chapter 71 of title 18, the Communications Act of 1934 (47 U.S.C. ‘‘(A) any property, real or personal, consti- United States Code (relating to obscenity); 613), as added by section 305 of the Tele- tuting or traceable to gross proceeds ob- chapter 110 of title 18, United States Code communications Act of 1996 (Public Law 104– tained from such offense; and (relating to the sexual exploitation of chil- 104; 110 Stat. 126), the Federal Communica- ‘‘(B) any equipment, software, or other dren); and chapter 95 of title 18, United tions Commission adopted rules requiring technology used or intended to be used to States Code (relating to racketeering), as ap- closed captioning of most television pro- commit or to facilitate the commission of propriate. gramming, which gradually require new such offense. video programming to be fully captioned be- ‘‘(2) PROCEDURES.—The procedures set SA 1894. Mr. MCCAIN (for Mr. ENZI ginning in 2006. forth in section 413 of the Controlled Sub- (2) More than 28,000,000 Americans, or 8 stances Act (21 U.S.C. 853), other than sub- (for himself, Mr. SANTORUM, and Mr. percent of the population, are considered section (d) of that section, and in Rule 32.2 of HATCH)) proposed an amendment to the deaf or hard of hearing, and many require the Federal Rules of Criminal Procedure, bill S. 877, to regulate interstate com- captioning services to participate in main- shall apply to all stages of a criminal for- merce by imposing limitations and stream activities. feiture proceeding under this section. penalties on the transmission of unso- (3) More than 24,000 children are born in ‘‘(d) DEFINITIONS.—In this section: licited commercial electronic mail via the United States each year with some form ‘‘(1) LOSS.—The term ‘loss’ has the mean- the Internet; as follows: of hearing loss. ing given that term in section 1030(e) of this On page 51, after line 22, insert the fol- (4) According to the Department of Health title. lowing: and Human Services and a study done by the ‘‘(2) MULTIPLE.—The term ‘multiple’ means (d) REQUIREMENT TO PLACE WARNING LA- National Council on Aging— more than 100 electronic mail messages dur- BELS ON COMMERCIAL ELECTRONIC MAIL CON- (A) 25 percent of Americans over 65 years ing a 24-hour period, more than 1,000 elec- TAINING SEXUALLY ORIENTED MATERIAL.— old are hearing impaired; tronic mail messages during a 30-day period, (1) IN GENERAL.—No person may initiate in (B) 33 percent of Americans over 70 years or more than 10,000 electronic mail messages or affecting interstate commerce the trans- old are hearing impaired; and during a 1-year period. mission, to a protected computer, of any un- (C) 41 percent of Americans over 75 years ‘‘(3) OTHER TERMS.—Any other term has solicited commercial electronic mail mes- old are hearing impaired. the meaning given that term by section 3 of sage that includes sexually oriented mate- (5) The National Council on Aging study the CAN-SPAM Act of 2003.’’. rial and— also found that depression in older adults (2) CONFORMING AMENDMENT.—The chapter (A) fail to include in subject heading for may be directly related to hearing loss and analysis for chapter 47 of title 18, United the electronic mail message the marks or disconnection with the spoken word. States Code, is amended by adding at the end notices prescribed by the Commission under (6) Empirical research demonstrates that the following: this subsection; or captions improve the performance of individ- ‘‘Sec. 1037. Fraud and related activity in con- (B) fail to provide that the matter in the uals learning to read English and, according nection with electronic mail.’’. message that is initially viewable to the re- to numerous Federal agency statistics, could (b) UNITED STATES SENTENCING COMMIS- cipient, when the message is opened by any benefit— SION.— recipient and absent any further actions by (A) 3,700,000 remedial readers; (1) DIRECTIVE.—Pursuant to its authority the recipient, includes only— (B) 12,000,000 young children learning to under section 994(p) of title 28, United States (i) to the extent required or authorized read; Code, and in accordance with this section, pursuant to paragraph (2), any such marks or (C) 27,000,000 illiterate adults; and the United States Sentencing Commission notices; (D) 30,000,000 people for whom English is a shall review and, as appropriate, amend the (ii) the information required to be included second language. sentencing guidelines and policy statements in the message pursuant to subsection (a)(5); (7) Over the past 5 years, student enroll- to provide appropriate penalties for viola- and ment in programs that train court reporters tions of section 1037 of title 18, United States (iii) instructions on how to access, or a to become realtime writers has decreased Code, as added by this section, and other of- mechanism to access, the sexually oriented significantly, causing such programs to close fenses that may be facilitated by the sending material. on many campuses.

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00074 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13059 SEC. 3. AUTHORIZATION OF GRANT PROGRAM TO funded by the grant after the end of the of each year of the grant period, a report on PROMOTE TRAINING AND JOB grant period, including any partnerships or the activities of such entity with respect to PLACEMENT OF REALTIME WRIT- arrangements established for that purpose. the use of grant amounts during such year. ERS. (5) A description of how the eligible entity (b) REPORT INFORMATION.— (a) IN GENERAL.—The National Tele- will work with local workforce investment (1) IN GENERAL.—Each report of an entity communications and Information Adminis- boards to ensure that training and assistance for a year under subsection (a) shall include tration shall make competitive grants to eli- to be funded with the grant will further local a description of the use of grant amounts by gible entities under subsection (b) to pro- workforce goals, including the creation of the entity during such year, including an as- mote training and placement of individuals, educational opportunities for individuals sessment by the entity of the effectiveness of including individuals who have completed a who are from economically disadvantaged activities carried out using such funds in in- court reporting training program, as backgrounds or are displaced workers. creasing the number of realtime writers. The realtime writers in order to meet the re- (6) Additional information, if any, of the assessment shall utilize the performance quirements for closed captioning of video eligibility of the eligible entity for priority measures submitted by the entity in the ap- programming set forth in section 723 of the in the making of grants under section 3(c). plication for the grant under section 4(b). Communications Act of 1934 (47 U.S.C. 613) (7) Such other information as the Adminis- (2) FINAL REPORT.—The final report of an and the rules prescribed thereunder. tration may require. entity on a grant under subsection (a) shall (b) ELIGIBLE ENTITIES.—For purposes of include a description of the best practices this Act, an eligible entity is a court report- SEC. 5. USE OF FUNDS. (a) IN GENERAL.—An eligible entity receiv- identified by the entity as a result of the ing program that— grant for increasing the number of individ- (1) can document and demonstrate to the ing a grant under section 3 shall use the uals who are trained, employed, and retained Secretary of Commerce that it meets min- grant amount for purposes relating to the re- in employment as realtime writers. imum standards of educational and financial cruitment, training and assistance, and job accountability, with a curriculum capable of placement of individuals, including individ- SEC. 7. AUTHORIZATION OF APPROPRIATIONS. training realtime writers qualified to pro- uals who have completed a court reporting There is authorized to be appropriated to vide captioning services; training program, as realtime writers, in- carry out this Act, amounts as follows: (2) is accredited by an accrediting agency cluding— (1) $20,000,000 for each of fiscal years 2004, recognized by the Department of Education; (1) recruitment; 2005, and 2006. and (2) subject to subsection (b), the provision (2) Such sums as may be necessary for fis- (3) is participating in student aid programs of scholarships; cal year 2007. under title IV of the Higher Education Act of (3) distance learning; 1965. (4) development of curriculum to more ef- SA 1896. Mr. MCCAIN (for Mr. (c) PRIORITY IN GRANTS.—In determining fectively train realtime writing skills, and CORZINE (for himself and Mr. GRAHAM whether to make grants under this section, education in the knowledge necessary for the of South Carolina)) proposed an amend- the Secretary of Commerce shall give a pri- delivery of high-quality closed captioning ment to the bill S. 877, to regulate ority to eligible entities that, as determined services; (5) assistance in job placement for upcom- interstate commerce by imposing limi- by the Secretary of Commerce— tations and penalties on the trans- (1) possess the most substantial capability ing and recent graduates with all types of to increase their capacity to train realtime captioning employers; mission of unsolicited commercial elec- writers; (6) encouragement of individuals with dis- tronic mail via the Internet; as follows: (2) demonstrate the most promising col- abilities to pursue a career in realtime writ- At the appropriate place, insert the fol- laboration with local educational institu- ing; and lowing: tions, businesses, labor organizations, or (7) the employment and payment of per- SEC. ll. IMPROVING ENFORCEMENT BY PRO- other community groups having the poten- sonnel for such purposes. VIDING REWARDS FOR INFORMA- tial to train or provide job placement assist- (b) SCHOLARSHIPS.— TION ABOUT VIOLATIONS; LABEL- ance to realtime writers; or (1) AMOUNT.—The amount of a scholarship ING. (3) propose the most promising and innova- under subsection (a)(2) shall be based on the (a) IN GENERAL.—The Commission shall tive approaches for initiating or expanding amount of need of the recipient of the schol- transmit to the Senate Committee on Com- training and job placement assistance efforts arship for financial assistance, and deter- merce, Science, and Transportation and the with respect to realtime writers. mined in accordance with part F of title IV House of Representatives Committee on En- (d) DURATION OF GRANT.—A grant under of the Higher Education Act of 1965 (20 U.S.C. ergy and Commerce— this section shall be for a period of two 1087kk). (1) a report, within 9 months after the date years. (2) AGREEMENT.—Each recipient of a schol- of enactment of this Act, that sets forth a (e) MAXIMUM AMOUNT OF GRANT.—The arship under subsection (a)(2) shall enter system for rewarding those who supply infor- amount of a grant provided under subsection into an agreement with the National Tele- mation about violations of this Act, includ- (a) to an entity eligible may not exceed communications and Information Adminis- ing— $1,500,000 for the two-year period of the grant tration to provide realtime writing services (A) procedures for the Commission to grant under subsection (d). for a period of time (as determined by the a reward of not less than 20 percent of the SEC. 4. APPLICATION. Administration) that is appropriate (as so total civil penalty collected for a violation (a) IN GENERAL.—To receive a grant under determined) for the amount of the scholar- of this Act to the first person that— section 3, an eligible entity shall submit an ship received. (i) identifies the person in violation of this application to the National Telecommuni- (3) COURSEWORK AND EMPLOYMENT.—The Act; and cations and Information Administration at Administration shall establish requirements (ii) supplies information that leads to the such time and in such manner as the Admin- for coursework and employment for recipi- successful collection of a civil penalty by the istration may require. The application shall ents of scholarships under subsection (a)(2), Commission; and contain the information set forth under sub- including requirements for repayment of (B) procedures to minimize the burden of section (b). scholarship amounts in the event of failure submitting a complaint to the Commission (b) INFORMATION.—Information in the ap- to meet such requirements for coursework concerning violations of this Act, including plication of an eligible entity under sub- and employment. Requirements for repay- procedures to allow the electronic submis- section (a) for a grant under section 3 shall ment of scholarship amounts shall take into sion of complaints to the Commission; and include the following: account the effect of economic conditions on (1) a report, within 18 months after the (1) A description of the training and assist- the capacity of scholarship recipients to find date of enactment of this Act, that sets forth ance to be funded using the grant amount, work as realtime writers. a plan for requiring unsolicited commercial including how such training and assistance (c) ADMINSTRATIVE COSTS.—The recipient electronic mail to be identifiable from its will increase the number of realtime writers. of a grant under section 3 may not use more subject line, by means of compliance with (2) A description of performance measures than 5 percent of the grant amount to pay Internet Engineering Task Force standards, to be utilized to evaluate the progress of in- administrative costs associated with activi- the use of the characters ‘‘ADV’’ in the sub- dividuals receiving such training and assist- ties funded by the grant. ject line, or other comparable identifier, or ance in matters relating to enrollment, com- (d) SUPPLEMENT NOT SUPPLANT.—Grants an explanation of any concerns the Commis- pletion of training, and job placement and amounts under this Act shall supplement sion has that cause the Commission to rec- retention. and not supplant other Federal or non-Fed- ommend against the plan. (3) A description of the manner in which eral funds of the grant recipient for purposes (b) IMPLEMENTATION OF REWARD SYSTEM.— the eligible entity will ensure that recipients of promoting the training and placement of The Commission may establish and imple- of scholarships, if any, funded by the grant individuals as realtime writers. ment the plan under subsection (a)(1), but will be employed and retained as realtime SEC. 6. REPORTS. not earlier than 12 months after the date of writers. (a) ANNUAL REPORTS.—Each eligible entity enactment of this Act. (4) A description of the manner in which receiving a grant under section 3 shall sub- the eligible entity intends to continue pro- mit to the National Telecommunications SA 1897. Mr. FRIST (for Mr. BUN- viding the training and assistance to be and Information Administration, at the end NING) proposed an amendment to

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00075 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13060 CONGRESSIONAL RECORD — SENATE October 22, 2003 the concurrent resolution S. Con. Res. on Wednesday, October 22, 2003, at 9:30 9. H.R. 1610, to redesignate the facility of 21, expressing the sense of the Congress am on the Federal Involvement in the the United States Postal Service, located at that community inclusion and en- Regulation of the Insurance Industry. 120 East Ritchie Avenue in Marceline, Mis- hanced lives for individuals with men- The PRESIDING OFFICER. Without souri, as the ‘‘Walt Disney Office Building.’’ 10. H.R. 1882, to designate the facility of tal retardation or other developmental objection, it is so ordered. the United States Postal Service, located at disabilities is at serious risk because of COMMITTEE ON FOREIGN RELATIONS 440 South Orange Blossom Trail, in Orlando, the crisis in recruiting and retaining Mr. CORNYN. Mr. President, I ask Florida, as the ‘‘Arthur ‘Pappy’ Kennedy direct support professionals, which im- unanimous consent that the Com- Post Office Building.’’ pedes the availability of a stable, qual- mittee on Foreign Relations be author- 11. H.R. 1883, to designate the facility of ity direct support workforce; as fol- ized to meet during the session of the the United States Postal Service, located at lows: Senate on Wednesday, October 22, 2003 1601–1 Main Street in Jacksonville, Florida, as the ‘‘Eddie Mae Steward Post Office In section 2, strike ‘‘ensure’’ and insert at 2:30 p.m. to hold a hearing Anti- Building.’’ ‘‘promote’’. Semitism In Europe. 12. H.R. 2075, to designate the facility of The PRESIDING OFFICER. Without the United States Postal Service, located at SA 1898. Mr. FRIST (for Mr. BUN- objection, it is so ordered. 1905 West Blue Heron Boulevard in West NING) proposed an amendment to the COMMITTEE ON GOVERNMENTAL AFFAIRS Palm Beach, Florida, as the ‘‘Judge Edward concurrent resolution S. Con. Res. 21, Mr. CORNYN. Mr. President, I ask Rodgers Post Office Building.’’ expressing the sense of the Congress unanimous consent that the Com- 13. H.R. 2254, to designate the facility of that community inclusion and en- the United States Postal Service, located at mittee on Governmental Affairs be au- 1101 Colorado Street in Boulder City, Ne- hanced lives for individuals with men- thorized to meet on Wednesday, Octo- tal retardation or other development vada, as the ‘‘Bruce Woodbury Post Office ber 22, 2003 at 10:30 a.m. to hold a busi- Building.’’ disabilities is at serious risk because of ness meeting to consider pending Com- 14. H.R. 2309, to designate the facility of the crisis in recruiting and retaining mitted business. the United States Postal Service, located at direct support professionals, which im- AGENDA 2300 Redondo Avenue in Signal Hill, Cali- pedes the availability of a stable, qual- fornia, as the ‘‘J. Stephen Horn Post Office LEGISLATION ity direct support workforce; as fol- Building.’’ lows: 1. S. 129, Federal Workforce Flexibility Act 15. H.R. 2328, to designate the facility of of 2003. the United States Postal Service, located at In the first whereas clause of the preamble, 2. S. 1741, National Women’s History Mu- 2001 East Willard Street in Philadelphia, before the semicolon, insert ‘‘, including seum Act of 2003. Pennsylvania, as the ‘‘Robert A. Borski Post mental retardation, autism, cerebral palsy, 3. S. 1267, District of Columbia Budget Au- Office Building.’’ Down syndrome, epilepsy, and other related tonomy Act of 2003. 16. H.R. 2396, to designate the facility of conditions’’. 4. S. 1522, GAO Human Capital Reform Act the United States Postal Service, located at Strike the second whereas clause of the of 2003. 1210 Highland Avenue in Duarte, California, preamble. 5. S. 1561, a bill to preserve existing judge- as the ‘‘Francisco A. Martinez Flores Post Strike the eighth whereas clause of the ships on the Superior Court of the District of Office Building.’’ preamble. Columbia. 17. H.R. 2452, to designate the facility of Strike the ninth whereas clause of the pre- 6. S. 1567, Department of Homeland Secu- the United States Postal Service, located at amble. rity Financial Accountability Act. 339 Hicksville Road in Bethpage, New York, 7. S. 1612, Homeland Security Technology as the ‘‘Brian C. Hickey Post Office Build- f Improvement Act of 2003. ing.’’ NOTICES OF HEARINGS/MEETINGS 8. S. 1683, Federal Law Enforcement Pay and Benefits Parity Act of 2003. 18. H.R. 2533, to designate the facility of the United States Postal Service, located at COMMITTEE ON INDIAN AFFAIRS 9. H.R. 1416, Homeland Security Technical Corrections Act of 2003. 10701 Abercorn Street in Savannah, Georgia, Mr. CAMPBELL. Mr. President, I as the ‘‘J.C. Lewis, Jr., Post Office Build- would like to announce that the Com- 10. H.R. 3159, Government Network Secu- rity Act of 2003. ing.’’ mittee on Indian Affairs will meet on 19. H.R. 2746, to designate the facility of POST OFFICE NAMING BILLS Wednesday, October 29, 2003 at 10 a.m. the United States Postal Service, located at in Room ‘‘TBA’’ of the Senate Office 1. S. 1405, a bill to designate the facility of 141 Weston Street in Hartford, Connecticut, the United States Postal Service, located at as the ‘‘Barbara B. Kennelly Post Office Building to conduct a business meeting 514 17th Street in Moline, Illinois, as the to consider pending committee busi- Building.’’ ‘‘David Bybee Post Office Building.’’ 20. H.R. 3011, to designate the facility of ness; to be followed immediately by a 2. S. 1415, a bill to designate the facility of the United States Postal Service, located at hearing on S. 1770, the Indian Money the United States Postal Service, located at 135 East Olive Avenue in Burbank, Cali- Account Claims Satisfaction Act of 141 Weston Street in Hartford, Connecticut, fornia, as the ‘‘Bob Hope Post Office Build- 2003. as the ‘‘Barbara B. Kennelly Post Office ing.’’ Those wishing additional information Building.’’ 3. S. 1590, a bill to designate the facility of NOMINATIONS may contact the Indian Affairs Com- the United States Postal Service, located at 1. Jerry S. Byrd to be an Associate Judge mittee at 224–2251. 315 Empire Boulevard in Crown Heights, of the Superior Court of the District of Co- f Brooklyn, New York, as the ‘‘James E. Davis lumbia (Family Court). Post Office Building.’’ 2. Joseph Michael Ryan to be an Associate AUTHORITY FOR COMMITTEES TO 4. S. 1659, a bill to designate the facility of Judge of the Superior Court of the District MEET the United States Postal Service, located at of Columbia (Family Court). 57 Old Tappan Road in Tappan, New York, as 3. Dale Cabaniss to be Chairman, Federal COMMITTEE ON BANKING, HOUSING, AND URBAN the ‘‘John G. Dow Post Office Building.’’ Labor Relations Authority. AFFAIRS 5. S. 1671, a bill to designate the facility of 4. Brian F. Holeman to be an Associate Mr. CORNYN. Mr. President, I ask the United States Postal Service, located at Judge of the Superior Court of the District unanimous consent that the Com- 10701 Abercorn Street in Savannah, Georgia, of Columbia. mittee on Banking, Housing, and as the ‘‘J.C. Lewis, Jr., Post Office Build- 5. Craig S. Iscoe to be an Associate Judge Urban Affairs be authorized to meet ing.’’ of the Superior Court of the District of Co- during the session of the Senate on Oc- 6. S. 1692, a bill to designate the facility of lumbia. tober 22, 2003, at 10 a.m. to conduct a the United States Postal Service, located at The PRESIDING OFFICER. Without 38 Spring Street in Nashua, New Hampshire, objection, it is so ordered. hearing on ‘‘Counterterror Initiatives as the ‘‘Hugh Gregg Post Office Building.’’ in the Terror Finance Program.’’ 7. S. 1718, a bill to designate the facility of COMMITTEE ON INDIAN AFFAIRS The PRESIDING OFFICER. Without the United States Postal Service, located at Mt. CORNYN. Mr. President, I ask objection, it is so ordered. 3710 West 73rd Terrace in Prairie Village, unanimous consent that the Com- COMMITTEE ON COMMERCE, SCIENCE AND Kansas, as the ‘‘Senator James B. Pearson mittee on Indian Affairs be authorized Post Office Building.’’ TRANSPORTATION to meet on Wednesday, October 22, 2003 8. S. 1746, a bill to designate the facility of Mr. CORNYN. Mr. President: I ask the United States Postal Service, located at at 10 a.m. in room 106 of the Dirksen unanimous consent that the Com- 339 Hicksville Road in Bethpage, New York, Senate Office Building to conduct a mittee on Commerce, Science, and as the ‘‘Brian C. Hickey Post Office Build- hearing on the nomination of Mr. Transportation be authorized to meet ing.’’ David W. Anderson to be the Assistant

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00076 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13061 Secretary for Indian Affairs, U.S. De- 2, and that any statements relating to opportunity earlier today, on the im- partment of the Interior; to be followed the bill be printed in the RECORD. portance of class action reform. I immediately by a business meeting to The PRESIDING OFFICER. The Sen- should preface that by saying that just consider pending committee business. ator from Nevada. yesterday I came to the floor to talk The PRESIDING OFFICER. Without Mr. REID. Mr. President, for the rea- about my upbeat optimism for really objection, it is so ordered. sons previously stated in regard to this the first time in the last several COMMITTEE ON THE JUDICIARY legislation at least on two or three sep- months with regard to our economy. arate occasions, I would reiterate those Mr. CORNYN. Mr. President, I ask That is in part for having traveled and object. around the country this past weekend unanimous consent that the Com- The PRESIDING OFFICER. Objec- and talked to a lot of people in various mittee on the Judiciary be authorized tion is heard. The majority leader. occupations and various jobs. You can to meet to conduct a hearing on just see and sense and you can feel that Wednesday, October 22, 2003, at 10 a.m., f increased consumer optimism that is on ‘‘Judicial Nominations,’’ in the Hart WORK OF THE SENATE around the country. Senate Office Building room 216. Mr. FRIST. Mr. President, I wish to Indeed, we had some very good eco- Witness List: take a moment to congratulate Chair- nomic numbers, some of which I men- man MCCAIN and Senator BURNS and tioned yesterday. The Department of Panel I: Senators. others who have fought so hard for the Commerce reported that consumption Panel II: Janice R. Brown to be anti-spam legislation that passed not is strong in this third quarter. Con- United States Circuit Judge for the too long ago tonight. sumption grew by an annualized rate of District of Columbia Circuit. Although I am disappointed we have over 12 percent. Many economists say The PRESIDING OFFICER. Without not been able to proceed to conference this third-quarter consumption may be objection, it is so ordered. on the CARE Act, I am very hopeful the strongest in almost 4 years. SELECT COMMITTEE ON INTELLIGENCE that ultimately we will be able to do New housing starts are annualized to Mr. CORNYN. Mr. President, I ask that and I am very hopeful we will at be about 1.9 million based on the re- unanimous consent that the Select some point receive unanimous consent sults from last month. That is probably Committee on Intelligence be author- to do just that. the highest in terms of housing starts ized to meet during the session of the Today’s vote, 97 to 0, on the anti- in the last 17 years. Production from Senate on Wednesday, October 22, 2003 spam legislation, reflects a lot of the our factories increased 3.5 percent in at 2:30 p.m. to hold a closed hearing. hard, bipartisan work—both sides of this quarter. It had been negative the The PRESIDING OFFICER. Without the aisle—that was put into the anti- quarter before that. The Department of objection, it is so ordered. spam bill. I do thank all of our col- Labor also delivered the report that SUBCOMMITTEE ON OCEANS, FISHERIES, AND leagues who have worked so diligently initial jobless claims are at their low- COAST GUARD on this legislation. est levels since February and that in Mr. CORNYN. Mr. President: I ask We started on this bill about 2 August the nonfarm sector employ- unanimous consent that the Sub- o’clock today and we had final passage ment rose by 57,000 jobs. 1 committee on Oceans, Fisheries, and 4 ⁄2 hours later. I am very hopeful we All of that I think is very encour- Coast Guard be authorized to meet on can continue with this sort of efficient aging news. As these economic indices Wednesday, October 22, 2003, at 9:30 movement on the floor of the Senate continue to improve, with some lag a.m., on Fisheries Oversight to be held for the remaining issues we have this time, that is translated into increased in SR–428A. year. jobs. But that is not enough. We have a We do continue to work toward an The PRESIDING OFFICER. Without lot we can do and we should be doing agreement on a range of issues. They objection, it is so ordered. on the floor of Senate. We need to have include Healthy Forests and the Inter- smart progrowth fiscal policies because f net tax moratorium, which is currently we know that helps create jobs. It gives PRIVILEGE OF THE FLOOR being worked on. job security for those who are cur- The CARE Act, as my colleagues can Mr. HATCH. I ask unanimous consent rently working. tell, continues to be a challenge, but I I am optimistic that we are going to that Sandra Wilkinson, a detailee to hold out the hope that we will be able see this continued improvement in the the Democratic staff and the Senate to send that bill to conference. Senator economy, but equally importantly in Judiciary Committee, be granted full RICK SANTORUM has done just a superb job creation. floor privileges for the remainder of job in shepherding that bill through The sort of structural problems we the debate on the CAN–SPAM Act of the Senate. The companion bill has need to address: Taking action on class 2003. passed the House of Representatives, action reform. Class action lawsuits f and indeed it is time to address it in are a problem. What makes it even UNANIMOUS CONSENT REQUEST— the conference. more important for us to address now We are also looking toward an agree- H.R. 7 is it is a problem that is getting worse ment on fair credit reporting which with time. A recent survey found that Mr. FRIST. I ask unanimous consent does have strong bipartisan support in State court class action filings sky- that the Senate proceed to the imme- this body. There are very few objec- rocketed by 1,315 percent in just 10 diate consideration of H.R. 7, the chari- tions. I hope we can take care of that years. The result of this glut of table choice bill. I further ask unani- in short order. We will continue to claims—many unnecessary, many friv- mous consent that all after the enact- push very hard for that particular bill. olous claims—is that it clogs the State ing clause be stricken, that the Snowe Also today, we addressed an issue on courts, it wastes taxpayer dollars, and amendment and the Grassley-Baucus which we can’t give up. We can’t really it inhibits innovative in entrepreneur- amendment, which are at the desk, be accept as the final punctuation mark ship that we all know is so crucial to agreed to en bloc, that the substitute the outcome of the vote today where job growth. All the purported victims amendment, which is the text of S. 476, we had 59 Senators say it is time for us ever get in this sordid process is a lit- the Senate-passed version of the chari- to solve the class action challenge be- tle coupon—a measly little coupon. I table choice bill as amended by the fore this body. We didn’t have 60 Sen- say that not just figuratively but lit- Snowe and Grassley-Baucus amend- ators. We had 59—1 short. If we had just erally. ments be agreed to, that the bill, as one other colleague come forward and A couple of examples: amended, be read the third time and say, yes, this is a problem for the In a suit against Blockbuster, plain- passed, that the motion to reconsider American people, it is a problem for tiffs’ lawyers alleged that their clients be laid upon the table; further, that the our economy, it is a problem for our were being fleeced by excessive late Senate insist upon its amendments and families, we would have been able to fees. They sued the video rental chain request a conference with the House, proceed with class action reform. for restitution. The result was that and last, that the Chair be authorized I want to take a couple of minutes each of their clients received a $1 cou- to appoint conferees with a ratio of 3 to and comment, because I didn’t have the pon offer for future rentals while the

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00077 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13062 CONGRESSIONAL RECORD — SENATE October 22, 2003 lawyers at the same time pocketed which is a burden on the taxpayer. It is mental retardation, autism, cerebral palsy, over $9 million. What is interesting is a burden on working men and women. Down syndrome, epilepsy, and other related that, meanwhile, Blockbuster was al- It is a burden on small businesses. It is conditions’’. lowed to continue that same late fee a burden on families. Strike the second whereas clause of the practice that the lawsuit was osten- That was a majority. But in this preamble. sibly launched to end—$9 million to the body it takes 60 votes, not just a ma- Strike the eighth whereas clause of the preamble. lawyers and a $1 coupon—but the prac- jority, 60 of 100 Senators to say, yes, we are going to address that. We only had Strike the ninth whereas clause of the pre- tice continued. amble. You say that is outrageous and it 59. couldn’t be. It is a fact. I hope my colleagues will come back The preamble, as amended, was Another anecdote and equally out- to the table. As majority leader, I agreed to. rageous had to do with Coca-Cola and promise I will stay on this issue until The concurrent resolution, as amend- apple juice. What happened a few years we have it resolved. It may take con- ed, with its preamble, as amended, ago was the plaintiffs’ lawyers charged stituents around the country saying, reads as follows: that the Coca-Cola drink company was yes, it is important to call Senators, to S. CON. RES. 21 improperly adding sweeteners to its talk to Senators and encourage Sen- Whereas there are more than 8,000,000 apple juice. These plaintiffs’ lawyers, ators in town meetings, to say, yes, it Americans who have mental retardation or who were parading as vigilant deans of is important to address this problem. other developmental disabilities, including public health, managed to secure—yes, I hope my colleagues recognize the mental retardation, autism, cerebral palsy, once again—a 50-cent coupon for the significance of this issue to our econ- Down syndrome, epilepsy, and other related apple juice victims but the lawyers re- omy and to working families. conditions; ceived $1.5 million. If one more person came forward, we Whereas individuals with mental retarda- If you think that is outrageous, in a would be able to address this once and tion or other developmental disabilities have for all. That would be good for the substantial limitations on their functional class action suit against the Bank of capacities, including limitations in two or Boston plaintiffs actually lost money country. It would be good for the law. more of the areas of self-care, receptive and when their accounts were drawn down It would be good for the economy. And expressive language, learning, mobility, self- to pay their lawyers $8.5 million in it is good for the legitimate claims direction, independent living, and economic fees. that are out there and should be fairly self-sufficiency, as well as the continuous That is large business. Also, these and appropriately settled. need for individually planned and coordi- large suits have a direct impact on f nated services; small businesses. These small busi- Whereas for the past two decades individ- DIRECT SUPPORT PROFESSIONALS nesses get drawn into this feeding fren- uals with mental retardation or other devel- RECOGNITION opmental disabilities and their families have zy that is going on around the country. Mr. FRIST. I ask unanimous consent increasingly expressed their desire to live What happens is that in order to avoid and work in their communities, joining the going to Federal court, the class action the HELP Committee be discharged mainstream of American life; legal team will rope in local small from further action on S. Con. Res. 21 Whereas the Supreme Court, in its businesses in the area as codefendants and the Senate proceed to its imme- Olmstead decision, affirmed the right of indi- in order to get that case decided in—it diate consideration. viduals with mental retardation or other de- may be an adjacent county or an adja- The PRESIDING OFFICER. Without velopmental disabilities to receive commu- cent State—a favorable State. Once the objection, it is so ordered. The clerk nity-based services as an alternative to insti- will report the concurrent resolution tutional care; window during which the real class ac- Whereas the demand for community sup- tion target can remove the case to the by title. The legislative clerk read as follows: ports and services is rapidly growing, as Federal court closes, that unlucky States comply with the Olmstead decision mom-and-pop shop that happened to be A concurrent resolution (S. Con. Res. 21) and continue to move more individuals from in the wrong county or the wrong town expressing the sense of the Congress that institutions into the community; community inclusion and enhanced lives for at the wrong time is dropped from the Whereas the demand will also continue to individuals with mental retardation or other grow as family caregivers age, individuals case, but not before they have had to developmental disabilities is at serious risk invest considerable sums of money in with mental retardation or other develop- because of the crisis in recruiting and retain- mental disabilities live longer, waiting lists this process of defending themselves. ing direct support professionals, which im- grow, and services expand; Such lawsuits are frivolous. Such pedes the availability of a stable, quality di- Whereas outside of families, private pro- lawsuits are unnecessary. They are rect support workforce. viders that employ direct support profes- wasteful and they translate into a bur- There being no objection, the Senate sionals deliver the majority of supports and den on our economy, a burden on our proceeded to consider the concurrent services for individuals with mental retarda- judicial system, a burden on taxpayers, resolution. tion or other developmental disabilities in and clearly a burden on the practice of Mr. FRIST. I ask unanimous consent the community; law. Who can help but be cynical about the amendment at the desk be agreed Whereas direct support professionals pro- to, the concurrent resolution, as vide a wide range of supportive services to a system which we have today that individuals with mental retardation or other awards lawyers millions of dollars over amended, be agreed to, the amendment developmental disabilities on a day-to-day an apple juice sweetener dispute? to the preamble, which is at the desk, basis, including habilitation, health needs, So this can’t go on. Too many of be agreed to, the preamble, as amend- personal care and hygiene, employment, these lawsuits are little more than op- ed, be agreed to, the motion to recon- transportation, recreation, and housekeeping erations which shake down these small sider be laid upon the table, and any and other home management-related sup- businesses or these large businesses. statements regarding this matter be ports and services so that these individuals Oftentimes the lawyers are counting printed in the RECORD. can live and work in their communities; on the company to pay a sizable settle- The PRESIDING OFFICER. Without Whereas direct support professionals gen- objection, it is so ordered. erally assist individuals with mental retar- ment just to avoid that higher cost of dation or other developmental disabilities to going to court. Companies—whether The amendment (No. 1897) was agreed lead a self-directed family, community, and big or small—should no longer be sub- to, as follows: social life; jected to this blackmail, which is AMENDMENT NO. 1897 Whereas private providers and the individ- wrong and unfair. It needs to stop. In section 2, strike ‘‘ensure’’ and insert uals for whom they provide supports and Today, we tried to take this issue to ‘‘promote’’. services are in jeopardy as a result of the the floor of the Senate so it could, once The concurrent resolution (S. Con. growing crisis in recruiting and retaining a and for all, be addressed. Indeed, a ma- Res. 21), as amended, was agreed to. direct support workforce; jority—it was a bipartisan majority—of The amendment (No. 1898) was agreed Whereas providers of supports and services to individuals with mental retardation or Senators said, yes, it is a problem; yes, to, as follows: other developmental disabilities typically it deserves to be debated in the Senate; AMENDMENT NO. 1898 draw from a labor market that competes yes, several may have wanted to amend In the first whereas clause of the preamble, with other entry-level jobs that provide less it; yes, it is time to address this issue before the semicolon, insert ‘‘, including physically and emotionally demanding work,

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00078 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13063 and higher pay and other benefits, and there- ers range from 40 percent and 75 per- to consider the following nomination fore these direct support jobs are not cur- cent. on today’s Executive Calendar, cal- rently competitive in today’s labor market; Several factors have contributed to endar No. 249. I further ask unanimous Whereas annual turnover rates of direct this crisis, including a tightened labor consent that the nomination be con- support workers range from 40 to 75 percent; Whereas high rates of employee vacancies market, growing demand for commu- firmed, the motion to reconsider be and turnover threaten the ability of pro- nity-based care, and legal decisions laid upon the table, the President be viders to achieve their core mission, which is supporting community integration. immediately notified of the Senate’s the provision of safe and high-quality sup- Unfortunately, many parents who rely action, and the Senate then return to ports to individuals with mental retardation on direct support professionals to help legislative session. or other developmental disabilities; care for with disabled child in the com- The PRESIDING OFFICER. Without Whereas direct support staff turnover is munity are becoming concerned that objection, it is so ordered. emotionally difficult for the individuals these professionals may not be avail- The nomination considered and con- being served; firmed is as follows: Whereas many parents are becoming in- able in the future. No parent should be THE JUDICIARY creasingly afraid that there will be no one faced with these types of worries. available to take care of their sons and This resolution draws much-needed Thomas M. Hardiman, of Pennsylvania, to be United States District Judge for the West- daughters with mental retardation or other attention to the problems surrounding ern District of Pennsylvania. developmental disabilities who are living in the long-term care infrastructure for the community; and individuals with developmental disabil- Mr. LEAHY. Mr. President, the Sen- Whereas this workforce shortage is the ities who live in their communities. ate recently voted to confirm an out- most significant barrier to implementing the The resolution calls on the Federal and standing district court nominee to the Olmstead decision and undermines the ex- State governments to make it a pri- Western District of Pennsylvania pansion of community integration as called named Kim Gibson. Today, the leader- for by President Bush’s New Freedom Initia- ority to promote a quality, stable di- rect support workforce that advances ship has decided to bring up the nomi- tive, placing the community support infra- nation of Thomas Hardiman who hap- structure at risk: Now, therefore, be it this nation’s commitment to commu- pens to be nominated to the very same Resolved by the Senate (the House of Rep- nity integration for individuals with resentatives concurring), court. mental retardation and other develop- Unfortunately, this nominee’s suit- SECTION 1. SHORT TITLE. mental disabilities. This resolution may be cited as the ‘‘Di- ability for the Federal bench pales in Without well-trained and quality di- rect Support Professional Recognition Reso- comparison to Judge Gibson. Judge lution’’. rect support professionals, many dis- Gibson came to us with judicial experi- SEC. 2. SENSE OF CONGRESS REGARDING SERV- abled individuals may find living in the ence, a unanimous ‘‘well qualified’’ rat- ICES OF DIRECT SUPPORT PROFES- community more difficult. We ing from the ABA, and the highest rat- SIONALS TO INDIVIDUALS WITH DE- shouldn’t let that happen, and I hope ing from his local bar association. VELOPMENTAL DISABILITIES. this resolution can help focus It is the sense of the Congress that the In contrast, Mr. Hardiman has no ju- Federal Government and the States should Congress’s and the Nation’s attention dicial experience, a relatively small make it a priority to promote a stable, qual- on this important matter. amount of litigation experience and ity direct support workforce for individuals I am grateful for the Senate’s pas- has been given very low peer-review with mental retardation or other develop- sage of this resolution and its concern ratings by the ABA and the same local mental disabilities that advances our Na- for our direct support professionals and bar association that ‘‘highly rec- tion’s commitment to community integra- those individuals they care for. ommended’’ Judge Gibson. The Alle- tion for such individuals and to personal se- curity for them and their families. f gheny County Bar Association recently released its opinions about the three Mr. BUNNING. Mr. President, I am MEASURES PLACED ON THE CAL- pending judicial nominees from their pleased the Senate has agreed to pass ENDAR—H.J. RES. 73 AND H.R. community. After their extensive re- S. Con. Res. 21, the Direct Support Pro- 1446 view, the Bar Association determined fessional Recognition Resolution. Ear- Mr. FRIST. I understand there are that they could simply ‘‘not rec- lier this year, I introduced this bipar- two bills at the desk due for a second ommend’’ Mr. Hardiman for a lifetime tisan resolution with Senator LINCOLN. reading and I ask unanimous consent appointment to their Federal trial This resolution recognizes the impor- the bills be given a second reading en court. tance of direct support professionals bloc. Although neither Bar Association ex- who are responsible for helping those The PRESIDING OFFICER. Without plained precisely why Mr. Hardiman re- with mental retardation and disabil- objection, it is so ordered. ceived such bad reviews, his commu- ities integrate into and excel in com- The clerk will report. nications with the Judiciary Com- munities across the nation. The legislative clerk read as follows: mittee potentially shed some light on These professionals provide a wide A joint resolution (H.J. Res. 73) making their concerns. range of supportive services to their Mr. Hardiman showed a lack of can- clients on a daily basis, including habi- further continuing appropriations for fiscal year 2004, and for other purposes; dor in describing the extent of his liti- tation, health needs, personal care and A bill (H.R. 1446) to support the efforts of gation experience. After reporting that hygiene, employment, transportation, the California Missions Foundation to re- he had tried 54 cases to judgment, he recreation, housekeeping and other store and repair the Spanish colonial and subsequently revised the number down- home management-related supports mission-era missions in the State of Cali- ward to 19, and then upon further re- and services so that these individuals fornia and to preserve the artworks and arti- view he explained that several of these can live and work in their commu- facts of these missions, and for other pur- 19 cases were not actually trials that poses. nities. These jobs are demanding both resulted in a judgment. physically and emotionally, and these Mr. FRIST. I object to further pro- In addition, opposing counsel con- direct support professionals should be ceedings to the measures en bloc at tacted the committee to raise concerns commended for the important work this time. about Mr. Hardiman’s exceedingly nar- they do. This resolution and action by The PRESIDING OFFICER. The ob- row view of fair housing statutes and the Senate recognizes just how impor- jection having been heard, the meas- his questionable litigation tactics. tant they are to others in need. ures will be placed on the Calendar. Counsel in a housing discrimination The recruitment and retention of f case entitled, Alexander v. Riga, criti- quality, trained direct support workers cized Mr. Hardiman’s conduct when he is critical to providing high-quality EXECUTIVE SESSION represented landlords who repeatedly support and services to disabled indi- refused to show African-American cou- viduals. Unfortunately, there is a crisis ples an apartment that was for rent. in the direct support field, particularly EXECUTIVE CALENDAR Despite a jury finding of discrimina- in finding and keeping quality direct Mr. FRIST. Mr. President, I ask tion, Mr. Hardiman argued that there support workers. In fact, the annual unanimous consent that the Senate im- was no resulting damage and the dis- turnover rates of direct support work- mediately proceed to executive session trict court adopted his reasoning.

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00079 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S13064 CONGRESSIONAL RECORD — SENATE October 22, 2003 On appeal to the Third Circuit, Mr. Reagan’s first term, President George In fact, 25 of this President’s judicial Hardiman analogized the harm result- H.W. Bush’s term, or either of Presi- nominees have earned partial or major- ing from the racial discrimination at dent Clinton’s terms. ity ‘‘Not Qualified’’ ratings from the issue to running a red light. The Third The Senate has held hearings for 13 ABA. In addition to the ABA’s review, Circuit criticized his dismissive anal- Pennsylvania nominees of President Mr. Hardiman was also ‘‘not rec- ogy and found that his argument and Bush’s to the Federal courts in Penn- ommended’’ by his county bar associa- the district court’s adoption of it sylvania. While I was chairman, the tion. would undermine the Federal housing Senate held hearings for and confirmed Certainly, the citizens of Western statutes. The Third Circuit rejected 10 nominees to the district courts in Pennsylvania deserve a well-qualified Mr. Hardiman’s argument and reversed Pennsylvania, plus Judge D. Brooks judiciary to hear their important legal the trial court. Smith to the Third Circuit Court of claims in Federal court. I am also troubled by Mr. Hardiman’s Appeals. In total, we have already con- I have great respect for the senior discovery tactics. In answers to writ- firmed 13 of this President’s judicial Senator from Pennsylvania. I appre- ten committee questions, he admitted nominees to the Federal courts in the ciate his efforts to help shepherd the that in the Riga case he repeatedly vio- State of Pennsylvania. Five of these White House’s nomination through the lated the Federal Rules of Civil Proce- new judges have already been con- Senate. dure by issuing a subpoena to a firmed to the Western District of Penn- After considering the negative im- nonparty without noticing opposing sylvania. pression Mr. Hardiman has made on his counsel in this case. After answering A look at the Federal judiciary in fellow Pennsylvanians regarding his two rounds of written questions, Mr. Pennsylvania indicates that President suitability for this lifetime appoint- Bush’s nominees have been treated far Hardiman subsequently admitted that ment and his conduct before the Judi- better than President Clinton’s. This he had not even reviewed his Riga files ciary Committee, I believe that this is treatment is in sharp contrast to the before submitting his answers to the among the weakest nominees we have way vacancies in Pennsylvania were committee. considered. Even the trial judge criticized Mr. kept vacant during Republican control f Hardiman’s associate about their liti- of the Senate when President Clinton gation strategy and tactics in this was in the White House, particularly LEGISLATIVE SESSION regarding nominees in the western half case, including the improper sub- of the State. The PRESIDING OFFICER. The Sen- poenas. Significantly less troubling Just a few months ago, on May 16, ate will now return to legislative ses- matters stalled many judicial nomi- 2003, Jon Delano wrote in the Pitts- sion. nees of President Clinton. burgh Business Times, an article titled f If this were anytime between 1995 and ‘‘Despite Bush Protests, Court Vacan- 2000 and this were a Clinton nominee, cies are Down,’’ about how this Presi- UNANIMOUS CONSENT the Republican majority would never dent’s nominees in the western part of AGREEMENT—H.R. 2989 have accorded this type of nomination Pennsylvania have been treated more Mr. FRIST. Mr. President, I ask a vote. Recall the fate of Clarence fairly than President Clinton’s nomi- unanimous consent that on Thursday, Sundrum, Dolly Gee, the 8 district nees. October 23, following the period of court nominees to vacancies in Penn- He wrote: morning business, the Senate proceed sylvania and so many others blocked Take the Western District of Pennsyl- to the consideration of calendar No. by Republicans from ever being consid- vania, for example. During the years of the 279, H.R. 2989, the Transportation ap- ered. Santorum filibuster, that court of 10 judges propriations bill. The Senate has already confirmed 165 had as many as five vacancies. Today, the The PRESIDING OFFICER. Without of this President’s judicial nominees. Senate has confirmed four Bush appointees— objection, it is so ordered. The current pace of confirmation Judges Joy Conti, David Cercone, Terry McVerry, and Art Schwab—and the fifth f stands in stark contrast to what oc- nomination, attorney Tom Hardiman, has curred with judicial nominees during just been sent to the Senate. ORDERS FOR THURSDAY, OCTOBER the Clinton administration. It was not With the elevation and confirmation of 23, 2003 until well into the fourth year of Presi- Judge Brooks Smith to the U.S. Court of Ap- dent Clinton’s second term, when Re- peals, the president still needs to name one Mr. FRIST. Mr. President, I ask publicans controlled the Senate, before more judge to the local court, but once com- unanimous consent that when the Sen- this many judicial nominees were con- pleted, Mr. Bush, with less than three years ate completes its business today, it ad- in office, will have named—and the Senate journ until 9:30 a.m., Thursday, Octo- firmed. will have confirmed—six of the 10 judges on It took President Reagan his entire ber 23. I further ask consent that fol- the local Federal court. That hardly sounds lowing the prayer and the pledge, the first term to get this many judicial like obstructionism. nominees confirmed, and that was with morning hour be deemed expired, the Despite the best efforts and diligence Journal of proceedings be approved to a Senate that was controlled by the of the senior Senator from Pennsyl- date, the time for the two leaders be same party. vania, Senator SPECTER, to secure the reserved for their use later in the day, It also took President George H.W. confirmation of all of the judicial and the Senate then begin a period of Bush well into his fourth year to get nominees from every part of his home morning business for 60 minutes, with this many of his judicial nominees con- State, there were 10 nominees by Presi- the first 30 minutes under the control firmed. dent Clinton to Pennsylvania vacancies of the minority leader or his designee In contrast, today, with the shifts in who never got a vote: Patrick Toole, and the second 30 minutes under the Senate control, it has effectively taken John Bingler, Robert Freedberg, Ly- control of Senator HUTCHISON or her a little more than 2 years of rapid Sen- nette Norton, Legrome Davis, David designee; provided further, that fol- ate action to confirm 165 judicial nomi- Fineman, David Cercone, Harry nees for this President, including 100 Litman, Stephen Lieberman, and Rob- lowing morning business, the Senate during Democratic control. This year ert Cindrich to the Third Circuit. begin consideration of calendar No. 279, alone the Senate has confirmed 65 judi- Despite how well-qualified these H.R. 2989, the Transportation appro- cial nominees, including 12 circuit nominees were, they were never consid- priations bill, as provided under the court nominees in 2003. This includes ered by the Senate, many waited more previous order more judicial confirmations in just 10 than a year for action. The PRESIDING OFFICER. Without months than Republicans allowed for Unfortunately, Mr. Hardiman’s objection, it is so ordered. President Clinton in 1995, 1996, 1997, record is similar to the record of far f 1999, or 2000. Overall, we have con- too many of President Bush’s judicial firmed 29 circuit court nominees of nominees. Far too many of this Presi- PROGRAM President Bush since July of 2001, dent’s judicial nominees have less Mr. FRIST. Mr. President, for the in- which is more than were confirmed at courtroom experience than partisan ex- formation of all Senators, tomorrow, this time in the third year of President perience. following morning business, the Senate

VerDate Mar 15 2010 21:51 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00080 Fmt 0637 Sfmt 0634 E:\2003SENATE\S22OC3.REC S22OC3 mmaher on DSKCGSP4G1 with SOCIALSECURITY October 22, 2003 CONGRESSIONAL RECORD — SENATE S13065 will begin consideration of the Trans- ADJOURNMENT UNTIL 9:30 A.M. IN THE NAVY portation appropriations bill. It is my TOMORROW THE FOLLOWING NAMED OFFICER FOR REAPPOINT- MENT AS CHIEF OF NAVAL OPERATIONS, UNITED STATES hope we can complete action on this Mr. FRIST. If there is no further NAVY, FOR AN ADDITIONAL TERM OF TWO YEARS, AND bill in an expedited manner, and the business to come before the Senate, I APPOINTMENT TO THE GRADE INDICATED WHILE AS- SIGNED TO A POSITION OF IMPORTANCE AND RESPONSI- two managers will be here tomorrow ask unanimous consent that the Sen- BILITY UNDER TITLE 10, U.S.C., SECTIONS 601 AND 5033: ate stand in adjournment under the morning to begin working through To be admiral amendments to that bill. Senators previous order. There being no objection, the Senate, ADM. VERNON E. CLARK, 0000 should expect amendments to be of- at 8:09 p.m., adjourned until Thursday, fered and debated throughout the October 23, 2003, at 9:30 a.m. f course of the day. Therefore, rollcall f votes should be expected throughout CONFIRMATION the day as well. Senators will be noti- NOMINATIONS Executive nomination confirmed by fied when the first vote is scheduled. Executive nominations received by the Senate October 22, 2003: the Senate October 22, 2003: THE JUDICIARY THE JUDICIARY NEIL VINCENT WAKE, OF ARIZONA, TO BE UNITED THOMAS M. HARDIMAN, OF PENNSYLVANIA, TO BE STATES DISTRICT JUDGE FOR THE DISTRICT OF ARI- UNITED STATES DISTRICT JUDGE FOR THE WESTERN ZONA, VICE PAUL G. ROSENBLATT, RETIRING. DISTRICT OF PENNSYLVANIA.

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SENATE COMMITTEE MEETINGS be United States District Judge for the Judiciary Northern District of Illinois. To hold hearings to examine competitive Title IV of Senate Resolution 4, SD–226 and economic effects of the Bowl agreed to by the Senate on February 4, Conferees Championship series on and off the 1977, calls for establishment of a sys- Meeting of conferees on H.R. 6, to en- field. tem for a computerized schedule of all hance energy conservation and re- SD–226 meetings and hearings of Senate com- search and development, to provide for Health, Education, Labor, and Pensions mittees, subcommittees, joint commit- security and diversity in the energy Substance Abuse and Mental Health Serv- tees, and committees of conference. supply for the American people. ices Subcommittee SD–106 To hold hearings to examine the New This title requires all such committees 10:15 a.m. to notify the Office of the Senate Daily Freedom Commission Report. Foreign Relations SD–430 Digest—designated by the Rules Com- To hold hearings to examine security 2 p.m. mittee—of the time, place, and purpose threats and U.S. policy in relation to Health, Education, Labor, and Pensions of the meetings, when scheduled, and Iran. To hold hearings to examine intellectual any cancellations or changes in the SH–216 diversity on America’s college cam- meetings as they occur. 2:15 p.m. puses. Veterans’ Affairs SD–430 As an additional procedure along To hold hearings to examine the nomina- Judiciary with the computerization of this infor- tions of Cynthia R. Church, of Virginia, To hold hearings to examine the nomina- mation, the Office of the Senate Daily to be an Assistant Secretary of Vet- tion of James B. Comey, of New York, Digest will prepare this information for erans Affairs (Public and Intergovern- to be Deputy Attorney General. mental Affairs), and Robert N. McFar- printing in the Extensions of Remarks SD–226 land, of Texas, to be an Assistant Sec- section of the CONGRESSIONAL RECORD 2:30 p.m. on Monday and Wednesday of each retary of Veterans Affairs (Information and Technology). Foreign Relations week. SR–418 To hold hearings to examine challenges Meetings scheduled for Thursday, Oc- for U.S. policy toward Colombia. tober 23, 2003 may be found in the Daily OCTOBER 29 SD–419 Digest of today’s RECORD. 10 a.m. OCTOBER 30 Health, Education, Labor, and Pensions MEETINGS SCHEDULED Business meeting to consider S. 423, to 10 a.m. promote health care coverage parity Health, Education, Labor, and Pensions Aging Subcommittee OCTOBER 28 for individuals participating in legal recreational activities or legal trans- To hold hearings to examine financial 9 a.m. portation activities, S. 1172, to estab- abuse and exploitation. Foreign Relations lish grants to provide health services SD–430 To hold a closed briefing to examine se- for improved nutrition, increased phys- Banking, Housing, and Urban Affairs curity threats and U.S. policy in rela- ical activity, obesity prevention, pro- To hold hearings to examine the Treas- tion to Iran. posed Head Start Improvement and ury Department’s report to Congress SH–219 School Readiness Act, proposed Human on international economic and ex- 9:30 a.m. Services Reauthorization Act, proposed change rate policy. Rules and Administration Pension Stability Act, proposed Health SD–538 To hold hearings to examine the nomina- Care Safety Net Amendments Tech- 2:30 p.m. tions of Paul S. DeGregorio, of Mis- nical Corrections Act, and the nomina- Foreign Relations souri, Gracia M. Hillman, of the Dis- tions of Robert Lerner, of Maryland, to European Affairs Subcommittee trict of Columbia, Raymundo Martinez be Commissioner of Education Statis- To hold hearings to examine combating III, of Texas, and Deforest B. Soaries, tics, Leslie Silverman, of Virginia, to transnational crime and corruption in Jr., of New Jersey, each to be a Mem- be a Member of the Equal Employment Europe. ber of the Election Assistance Commis- Opportunity Commission, and Stuart SD–419 sion. Ishimaru, of the District of Columbia, Energy and Natural Resources SR–301 to be a Member of the Equal Employ- Water and Power Subcommittee 10 a.m. ment Opportunity Commission. To hold hearings to examine S. 1097, to Health, Education, Labor, and Pensions SD–430 authorize the Secretary of the Interior To hold hearings to examine certain Indian Affairs to implement the Calfed Bay-Delta health issues. Business meeting to consider pending Program. SD–430 calendar business; to be immediately SD–366 Judiciary followed by a hearing on S. 1770, to es- 3 p.m. To hold hearings to examine the nomina- tablish a voluntary alternative claims Health, Education, Labor, and Pensions tions of Claude A. Allen, of Virginia, to resolution process to reach a settle- To hold hearings to examine Senator be United States Circuit Judge for the ment of pending class action litigation. Frist’s Report on Africa. Fourth Circuit, and Mark R. Filip, to SR–485 SH–902

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor. Matter set in this typeface indicates words inserted or appended, rather than spoken, by a Member of the House on the floor.

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HIGHLIGHTS Senate passed S. 877, Controlling the Assault of Non-Solicited Pornog- raphy and Marketing Act (CAN SPAM Act). Senate McCain (for Enzi/Santorum) Amendment No. Chamber Action 1894, to require warning labels on sexually explicit Routine Proceedings, pages S12985–S13065 commercial e-mail. Pages S13035–37, S13039–40 Measures Introduced: Three bills and two resolu- McCain (for Corzine) Amendment No. 1896, to tions were introduced, as follows: S. 1773–1775, S. direct the FTC to develop a system for rewarding Res. 249 and S. Con. Res. 74. Page S13053 those who supply information about violations of this Act and a system for requiring ADV labeling Measures Reported: on unsolicited commercial electronic mail. Report to accompany S. 1293, to criminalize the Pages S13040–41 sending of predatory and abusive e-mail. (S. Rept. No. 108–170) Pages S13052–53 Developmental Disabilities Support: Committee on Health, Education, Labor, and Pensions was dis- Measures Passed: charged from further consideration of S. Con. Res. Controlling the Assault of Non-Solicited Pornog- 21, expressing the sense of the Congress that com- raphy and Marketing Act (CAN SPAM Act): By a munity inclusion and enhanced lives for individuals unanimous vote of 97 yeas (Vote No. 404), Senate with mental retardation or other developmental dis- passed S. 877, to regulate interstate commerce by abilities is at serious risk because of the crisis in re- imposing limitations and penalties on the trans- cruiting and retaining direct support professionals, mission of unsolicited commercial electronic mail via which impedes the availability of a stable, quality the Internet, after taking action on the following direct support workforce, and the resolution was amendments proposed thereto: Pages S13012–45 then agreed to, after agreeing to the following Adopted: amendments proposed thereto: Pages S13062–63 Wyden/Burns Amendment No. 1891, to clarify Frist (for Bunning) Amendment No. 1897, to the provision prohibiting false or misleading trans- make a certain technical correction. Page S13062 mission information. Pages S13024–26 Frist (for Bunning) Amendment No. 1898, to Subsequently, Wyden/Burns Amendment No. amend the preamble. Pages S13062–63 1891 was modified. Pages S13026–27 Class Action Reform: Senate continued consider- Schumer Amendment No. 1892, to authorize the ation of the motion to proceed to consideration of S. Commission to implement a nationwide ‘‘Do Not E- 1751, to amend the procedures that apply to consid- mail’’ registry. Pages S13024, S13027 eration of interstate class actions to assure fairer out- Hatch Amendment No. 1893, to revise the crimi- comes for class members and defendants. nal penalty provisions of the bill as reported. Pages S12999–13008 Pages S13027–35 During consideration of this measure today, Senate Harkin Amendment No. 1895, to provide com- also took the following action: petitive grants for training court reporters and closed By 59 yeas to 39 nays (Vote No. 403), three-fifths captioners to meet requirements for realtime writers of those Senators duly chosen and sworn, not having under the Telecommunications Act of 1996. voted in the affirmative, Senate rejected the motion Pages S13037–39 to close further debate on the motion to proceed to consideration of the bill. Page S13008 D1155

VerDate jul 14 2003 03:26 Oct 23, 2003 Jkt 029060 PO 00000 Frm 00001 Fmt 0627 Sfmt 0627 E:\CR\FM\D22OC3.REC D22OC3 D1156 CONGRESSIONAL RECORD — DAILY DIGEST October 22, 2003 Transportation/Treasury Appropriations— Islamic banking system, charities, and the role of Agreement: A unanimous consent agreement was Saudi Arabia, after receiving testimony from Richard reached providing that on Thursday, October 23, A. Clarke, Good Harbor Consulting, LLC, Arling- 2003, Senate begin consideration of H.R. 2898, ton, Virginia; Louise Richardson, Harvard University making appropriations for the Departments of Trans- Radcliffe Institute for Advanced Study, Cambridge, portation and Treasury, and independent agencies for Massachusetts; Jean-Charles Brisard, JCB Consulting the fiscal year ending September 30, 2004. International, Paris, France; and Matthew A. Levitt, Page S13064 Washington Institute for Near East Policy, Wash- Nominations Confirmed: Senate confirmed the fol- ington, D.C. lowing nomination: THE INSURANCE INDUSTRY Thomas M. Hardiman, of Pennsylvania, to be Committee on Commerce, Science, and Transportation: United States District Judge for the Western Dis- Committee concluded a hearing to examine federal trict of Pennsylvania. Page S13065 involvement in the regulation of the insurance in- Nominations Received: Senate received the fol- dustry, including proposals for an insurance regu- lowing nominations: latory modernization action plan and an optional Neil Vincent Wake, of Arizona, to be United federal charter, improvements to State insurance reg- States District Judge for the District of Arizona. ulation, and a draft of consumer principles and 1 Navy nomination in the rank of admiral. standards for insurance regulation, after receiving Page S13065 testimony from Ernst Csiszar, South Carolina De- partment of Insurance, Columbia, on behalf of the Measures Placed on Calendar: Page S13049 National Association of Insurance Commissioners; Petitions and Memorials: Pages S13049–52 Thomas Ahart, Ahart, Frinzi, and Smith Insurance, Executive Reports of Committees: Page S13053 Alexandria, Virginia, on behalf of the Independent Insurance Agents and Brokers of America; Stephen Additional Cosponsors: Pages S13053–55 E. Rahn, Lincoln National Life Insurance Company, Statements on Introduced Bills/Resolutions: Fort Wayne, Indiana, on behalf of the American Pages S13055–57 Council of Life Insurers; Douglas Heller, Foundation Additional Statements: Pages S13048–49 for Taxpayer and Consumer Rights, Santa Monica, California; and Craig A. Berrington, American Insur- Amendments Submitted: Pages S13057–60 ance Association, and J. Robert Hunter, Consumer Notices of Hearings/Meetings: Page S13060 Federation of America, both of Washington, D.C. Authority for Committees to Meet: FISHERIES MANAGEMENT Pages S13060–61 Committee on Commerce, Science, and Transportation: Sub- Privilege of the Floor: Page S13061 committee on Oceans, Fisheries, and Coast Guard Record Votes: Two record votes were taken today. concluded an oversight hearing on fisheries, focusing (Total—404) Pages S13008, S13044 on the Magnuson-Stevens Act National Standards, Adjournment: Senate met at 9:30 a.m., and ad- and the condition of New England groundfish fish- journed at 8:09 p.m., until 9:30 a.m., on Thursday, eries, after receiving testimony from William Ho- October 23, 2003. (For Senate’s program, see the re- garth, Assistant Administrator for Fisheries, National marks of the Majority Leader in today’s Record on Oceanic and Atmospheric Administration, Depart- page S13065.) ment of Commerce. ANTI-SEMITISM IN EUROPE Committee Meetings Committee on Foreign Relations: Subcommittee on Eu- ropean Affairs concluded a hearing to examine the (Committees not listed did not meet) scope of anti-Semitism in Europe, including selected incidents that occurred across Europe and Eurasia in TERRORIST FINANCING 2003, international anti-prejudice programs, and Committee on Banking, Housing, and Urban Affairs: anti-Americanism, after receiving testimony from Committee concluded a hearing to examine Edward B. O’Donnell, Jr., Special Envoy for Holo- counterterror initiatives in the terror finance pro- caust Issues, Department of State; Abraham H. gram and organization of terror groups for funding Foxman, Anti-Defamation League, and David Harris, and future U.S. responses, focusing on related provi- American Jewish Committee, both of New York, sions of the PATRIOT Act (Public Law 107–56), in- New York; and Mark B. Levin, National Conference cluding fundraising methods, financial conduits, the on Soviet Jewry, Washington, D.C.

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BUSINESS MEETING S. 1692, to designate the facility of the United Committee on Governmental Affairs: Committee ordered States Postal Service located at 38 Spring Street in favorably reported the following business items: Nashua, New Hampshire, as the ‘‘Hugh Gregg Post S. 129, to provide for reform relating to Federal Office Building’’; employment, with an amendment in the nature of a S. 1718, to designate the facility of the United substitute; States Postal Service located at 3710 West 73rd Ter- S. 1741, to provide a site for the National Wom- race in Prairie Village, Kansas, as the ‘‘Senator James en’s History Museum in the District of Columbia; B. Pearson Post Office Building’’; S.1267, to amend the District of Columbia Home S. 1746, to designate the facility of the United Rule Act to provide the District of Columbia with States Postal Service located at 339 Hicksville Road autonomy over its budgets, with an amendment; in Bethpage, New York, as the ‘‘Brian C. Hickey Post Office Building’’; S. 1522, to provide new human capital flexibility H.R. 1610, to redesignate the facility of the with respect to the GAO, with an amendment; United States Postal Service located at 120 East S. 1561, to preserve existing judgeships on the Ritchie Avenue in Marceline, Missouri, as the ‘‘Walt Superior Court of the District of Columbia; Disney Post Office Building’’; S. 1567, to amend title 31, United States Code, H.R. 1882, to designate the facility of the United to improve the financial accountability requirements States Postal Service located at 440 South Orange applicable to the Department of Homeland Security, Blossom Trail in Orlando, Florida, as the ‘‘Arthur with an amendment in the nature a substitute; ‘Pappy’ Kennedy Post Office Building’’; S. 1612, to establish a technology, equipment, H.R. 1883, to designate the facility of the United and information transfer within the Department of States Postal Service located at 1601–1 Main Street Homeland Security, with an amendment in the na- in Jacksonville, Florida, as the ‘‘Eddie Mae Steward ture of a substitute; Post Office Building’’. S. 1683, to provide for a report on the parity of H.R. 2075, to designate the facility of the United pay and benefits among Federal law enforcement of- States Postal Service located at 1905 West Blue ficers and to establish an exchange program between Heron Boulevard in West Palm Beach, Florida, as Federal law enforcement employees and State and the ‘‘Judge Edward Rodgers Post Office Building’’; local law enforcement employees; H.R. 2254, to designate the facility of the United H.R. 1416, to make technical corrections to the States Postal Service located at 1101 Colorado Street Homeland Security Act of 2002, with an amend- in Boulder City, Nevada, as the ‘‘Bruce Woodbury ment; Post Office Building’’; H.R. 3159, to require Federal agencies to develop H.R. 2309, to designate the facility of the United and implement plans to protect the security and pri- States Postal Service located at 2300 Redondo Ave- vacy of government computer systems from the risks nue in Long Beach, California, as the ‘‘Stephen Horn posed by peer-to-peer file sharing; Post Office Building’’; S. 1405, to designate the facility of the United H.R. 2328, to designate the facility of the United States Postal Service located at 514 17th Street in States Postal Service located at 2001 East Willard Moline, Illinois, as the ‘‘David Bybee Post Office Street in Philadelphia, Pennsylvania, as the ‘‘Robert Building’’; A. Borski Post Office Building’’; S. 1415, to designate the facility of the United H.R. 2396, to designate the facility of the United States Postal Service located at 141 Weston Street in States Postal Service located at 1210 Highland Ave- Hartford, Connecticut, as the ‘‘Barbara B. Kennelly nue in Duarte, California, as the ‘‘Francisco A. Mar- Post Office Building’’; tinez Flores Post Office Building’’; S. 1590, to redesignate the facility of the United H.R. 2452, to designate the facility of the United States Postal Service, located at 315 Empire Boule- States Postal Service located at 339 Hicksville Road vard in Crown Heights, Brooklyn, New York, as the in Bethpage, New York, as the ‘‘Brian C. Hickey ‘‘James E. Davis Post Office Building’’; Post Office Building’’; S. 1659, to designate the facility of the United H.R. 2533, to designate the facility of the United States Postal Service located at 57 Old Tappan Road States Postal Service located at 10701 Abercorn in Tappan, New York, as the ‘‘John G Dow Post Street in Savannah, Georgia, as the ‘‘J.C. Lewis, Jr. Office Building’’; Post Office Building’’; S. 1671, to designate the facility of the United H.R. 2746, to designate the facility of the United States Postal Service located at 10701 Abercorn States Postal Service located at 141 Weston Street in Street in Savannah, Georgia, as the ‘‘J.C. Lewis, Jr., Hartford, Connecticut, as the ‘‘Barbara B. Kennelly Post Office Building’’; Post Office Building’’;

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H.R. 3011, to designate the facility of the United Testimony was also received on the nomination from States Postal Service located at 135 East Olive Ave- Louis Taylor, Lac Courte Oreilles Band of Lake Supe- nue in Burbank, California, as the ‘‘Bob Hope Post rior Chippewa Indians, Hayward, Wisconsin; and Office Building’’; and Audrey Bennett, Prairie Island Indian Community, The nominations of Dale Cabaniss, of Virginia, to Welch, Minnesota. be a Member of the Federal Labor Relations Author- ity, Jerry Stewart Byrd, Joseph Michael Francis Ryan NOMINATION III, Brian F. Holeman, and Craig S. Iscoe, each to Committee on the Judiciary: Committee concluded a be Associate Judge of the Superior Court of the Dis- hearing on the nomination of Janice R. Brown, of trict of Columbia. California, to be United States Circuit Judge for the NOMINATION District of Columbia Circuit, after the nominee, who Committee on Indian Affairs: Committee ordered favor- was introduced by Senator Cornyn, testified and an- ably reported the nomination of David Wayne An- swered questions in her own behalf. derson, of Minnesota, to be an Assistant Secretary of the Interior for Indian Affairs. INTELLIGENCE Prior to this action, Committee concluded a hear- Select Committee on Intelligence: Committee held closed ing on the nomination of Mr. Anderson, after the hearings on intelligence matters, receiving testimony nominee, who was introduced by Senator Coleman, from officials of the intelligence community. testified and answered questions in his own behalf. Committee recessed subject to call.

VerDate jul 14 2003 03:26 Oct 23, 2003 Jkt 029060 PO 00000 Frm 00004 Fmt 0627 Sfmt 0627 E:\CR\FM\D22OC3.REC D22OC3 October 22, 2003 CONGRESSIONAL RECORD — DAILY DIGEST D1159 House of Representatives issues and S. 919, to amend title 49, United States Code, Chamber Action to enhance competition among and between rail carriers The House was not in session today. It will meet in order to ensure efficient rail service and reasonable rail at 10 a.m. on Friday, October 24 in a pro forma ses- rates, 2:30 p.m., SR–253. sion and at 12:30 p.m. on Tuesday, October 28 for Committee on Environment and Public Works: business morning hour debate. meeting to consider S. 994, to protect human health and the environment from the release of hazardous substances Committee Meetings by acts of terrorism, and S.1757, to amend the John F. No Committee meetings were held. Kennedy Center Act to authorize appropriations for the John F. Kennedy Center for the Performing Arts, 9:30 f a.m., SD–406. COMMITTEE MEETINGS FOR THURSDAY, Committee on Finance: to hold hearings to examine com- OCTOBER 23, 2003 pany owned life insurance, 2 p.m., SD–215. Committee on Foreign Relations: Subcommittee on Inter- (Committee meetings are open unless otherwise indicated) national Operations and Terrorism, to hold hearings to Senate examine how to achieve the necessary security improve- Committee on Armed Services: business meeting to con- ments in a global environment relating to the post-9/11 sider pending military nominations, 10:30 a.m., SR–222. visa reforms and new technology, 9:30 a.m., SD–419. Committee on Banking, Housing, and Urban Affairs: to re- Committee on Health, Education, Labor, and Pensions: to sume hearings to examine proposals for improving the hold hearings to examine federal and state role in phar- regulation of the Housing GSEs; and to hold a business macy compounding and reconstitution, 10 a.m., SD–430. meeting to consider the nominations of Roger Walton Committee on the Judiciary: business meeting to consider Ferguson, Jr., of Massachusetts, to be Vice Chairman of pending calendar business, 9:30 a.m., SD–226. the Board of Governors of the Federal Reserve System, Select Committee on Intelligence: to hold closed hearings to Ben S. Bernanke, of New Jersey, to be a Member of the examine certain intelligence matters, 2:30 p.m., SH–219. Board of Governors of the Federal Reserve System, and Paul S. Atkins, of Virginia, to be a Member of the Secu- House rities and Exchange Commission, 10 a.m., SD–538. Committee on Government Reform, hearing entitled ‘‘Open Committee on Commerce, Science, and Transportation: to for Business: Ensuring Employee and Customer Safety at hold hearings to examine Boeing, 9:30 a.m., SR–253. the Former Brentwood Postal Facility,’’ 1:30 p.m., 2154 Subcommittee on Surface Transportation and Merchant Rayburn. Marine, to hold hearings to examine railroad shipper

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Next Meeting of the SENATE Next Meeting of the HOUSE OF REPRESENTATIVES 9:30 a.m., Thursday, October 23 10 a.m., Friday, October 24

Senate Chamber House Chamber Program for Thursday: After the transaction of any Program for Friday: Pro forma session. morning business (not to extend beyond 10:30 a.m.), Sen- ate will begin consideration of H.R. 2989, Transpor- tation/Treasury Appropriations Act.

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