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                                                                                                                          108 th CONGRESS, FIRST SESSION
          United States
           of America                               PROCEEDINGS AND DEBATES OF THE


      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.                                                                                                                ate will resume debate on the motion
                                                                                 clerk will please read a communication
                                                                                                                                      to proceed to S. 1751, the class action
                                                                                 to the Senate from the President pro
                                                PRAYER                                                                                fairness bill. At 12:30 p.m., the Senate
                                                                                 tempore (Mr. STEVENS).
                                                                                                                                      will proceed to the vote on the motion
        The Chaplain, Dr. Barry C. Black, of-                                      The legislative clerk read the fol-
                                                                                                                                      to invoke cloture on the motion to pro-
      fered the following prayer:                                                lowing letter:
                                                                                                                                      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,
                                                                                            Washington, DC, October 22, 2003.
                                                                                                                                      am hopeful that cloture will be in-
      are our glory, our hope, and our refuge                                                                                         voked today and that we are able to
                                                                                 To the Senate:
      in the day of trouble. Nothing is sweet-                                                                                        proceed to the legislation for debate
                                                                                   Under the provisions of rule I, para-
      er than Your love.                                                                                                              and amendments.
                                                                                 graph 3, of the Standing Rules of the
        Lord, may we remember that Your                                                                                                 If we are to begin consideration of
                                                                                 Senate, I hereby appoint the Honorable
      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                                                                                          reach an agreement on amendments to
                                                                                 the State of Kansas, to perform the du-
      live to please You.                                                                                                             the bill which would allow us to finish
                                                                                 ties of the Chair.
        May we remember that we are only                                                                     TED STEVENS,             the bill this week. I will be talking to
      pilgrims on Earth, made for eternity,                                                               President pro tempore.      the Democratic leadership about an
      not for time alone. Give the light of                                                                                           agreement for later today, if the clo-
                                                                                   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-                      the Healthy Forests bill, the CARE
        Teach us to depend on You so that                                        pore. The majority leader is recog-                  Act, as well as nominations that are
      our joy may be full. We pray this in                                       nized.                                               available on the Executive Calendar.
      Your strong name. Amen.
                                                                                                 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.                                          conduct a period of morning business                 few remaining weeks left in the ses-
      BROWNBACK led the Pledge of Alle-                                          until 11:30 this morning. During morn-               sion. It will require some give on both
      giance, as 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.

                                                                                                                                                             S12985


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      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 ACTING PRESIDENT pro tem-                     you follow the law? Will you exercise
      the leader knows, he has spoken to the
                                                                   pore. Under the previous order, leader-             your own judgment and be creative on
      Democratic leader and there is an op-
                                                                   ship time is reserved.                              the bench?
      portunity I believe in the next week or
                                                                                   f                                     I daresay if you look at the history—
      so to move a couple of appropriations
                                                                                                                       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-
                                                                                   f                                   much by nominees taking a more con-
      priations bills are critical and we con-
                                                                                                                       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               erals adopting their agenda, and they
      WOMEN’S RIGHTS CENTER IN IRAQ                                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



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      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.
      lican leader and Senator MURKOWSKI                             If the hopes of its sponsors are real-
                                                                   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                 Mr. BENNETT. Mr. President, we
                         f
                                                                   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
      action bill is a travesty. We are not                          We can also expect that the law as
                                                                                                                       is no legislation on the floor dealing
      only being asked to throw the baby out                       now proposed will do serious harm to
                                                                                                                       with Iraq. There are several themes of
      with the bathwater; we are being asked                       the ability of citizens in civil rights
                                                                                                                       this drumbeat that I would like to ad-
      to throw out the bathtub and buy a                           cases to obtain the relief they are enti-
                                                                                                                       dress this morning.
      new one that no sensible parents would                       tled to under State law.
                                                                                                                         The first theme we hear over and
                                                                     There are no legitimate complaints
      even want to put the baby in.                                                                                    over and over again is the theme of
                                                                   about class actions on civil rights. Yet
        We all know what is going on here.                                                                             faulty intelligence. How could the
                                                                   this bill would severely and adversely
      Corporate giants and giant insurance                                                                             President have been so stupid as to
                                                                   affect such cases.
      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



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      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.
      Wesley Clark, had bombed the Chinese                           Now, finally, this issue of preemptive            GRAHAM of South Carolina). The Sen-
      Embassy in Serbia. The Chinese were                          war. I will not take the time to go into            ator from Alaska is recognized under a
      understandably very concerned about                          a full discussion, but I say, particularly          previous 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



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      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.
      fiscal package to build a natural gas                          How do we create these jobs? It is                  I need to talk numbers a little bit
      pipeline from Alaska to the lower 48.                                                                            more because I am sure you are think-
                                                                   through the Energy bill. We ought to
      My constituents are eager to offer our                                                                           ing, well, of course, Senator MUR-
                                                                   call this legislation the national jobs
      State’s natural resources to the Nation                                                                          KOWSKI is advocating this because it
                                                                   bill because that is what the Energy
      to meet our shared energy needs.                                                                                 means good jobs for her constituents in
                                                                   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.                                So where are the rest of these jobs?
      icans.
        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.



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      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                                                                                      of constituents per Representative
                                                                   vidual rights became part of the found-
        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
      still believe that. But I also argue that                                                                        person shall be deprived of life, liberty,
                                                                   Mason participated in the Convention,
      the PATRIOT Act went too far; that it                                                                            or property without due process of law.
                                                                   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



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      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



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      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-
      pretrial detention to cases that may                                         f
                                                                                                                        tially, it is like a voucher. They want
      not even involve terrorism. Finally,                                                                              Medicare to essentially say a person
                                                                      MEDICARE AND PRESCRIPTION                         has X amount of dollars for their
      the third proposal expands the Federal                                         DRUGS                              health care, and if it costs more than
      death penalty.
                                                                     Ms. STABENOW. Mr. President, I                     that, they pay that. If, in fact, they
        Criticism of the PATRIOT Act ap-
                                                                   rise today to speak about the issue of               want to take that and go to an HMO or
      pears to have had the effect of influ-
                                                                   Medicare and prescription drugs and                  PPO, that is what would be encour-
      encing the administration’s strategy to
                                                                   where we are as we have been working                 aged. People would be pushed more and
      secure this new power, but not the sub-
                                                                   to develop a prescription drug benefit               more into an HMO or a PPO in order to
      stance of its effort. Rather than pro-                                                                            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
      one is fooled, however, least of all the                     approach, particularly with our col-
                                                                                                                        amount of dollars or essentially the
      American people. The fact is that these                      leagues on the Republican side of the
                                                                                                                        equivalent of a voucher. This com-
      proposals did appear in the draft ‘‘Pa-                      aisle in the House of Representatives. I
                                                                                                                        pletely undermines what we have put
      triot II’’ leaked earlier this year and                      am deeply concerned about the direc-
                                                                                                                        in place for Medicare. The idea that we
      entitled the Domestic Security En-                           tion that the conference committee ap-
                                                                                                                        would say to our seniors, You have
      hancement Act.                                               pears to be going as it relates to the
                                                                                                                        health care; you can rely on it; you can
        ‘‘Patriot II,’’ whether contained in                       fundamental issue of whether we will
                                                                                                                        count on it; you don’t have to worry
      one bill or a series of bills, is the wrong                  continue to have Medicare as we know
                                                                                                                        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
      want the PATRIOT Act to be amended                           not afford prescription drug coverage
                                                                                                                        unacceptable and I will do whatever I
      to protect privacy and civil liberties.                      and health care in the private sector.
                                                                                                                        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.



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      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-
                                                                                                                        ger America’s ability to gather intelligence
      sharp differences in cost among indi-                        and by the appearance of a conflict of
                                                                                                                        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.
      people paying $58, on the other side you                     this leak is no laughing matter; it is a                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
        They went on to indicate that we                           lishment of elaborate fictions, called ‘‘leg-
                                                                                                                        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
                                                                   bility    to    her   trips   overseas.    . . .
      versus other parts of the State. So if                                                                            2 months.
                                                                   Compounding the damage, the front com-
      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-
                                                                   rectorate of Operations is over. Those she
                                                                                                                        tigation.
      kind of system?                                                                                                      Interestingly, it took 4 days after
                                                                   dealt with—on business or not—may be in
        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
              INTELLIGENCE LEAK                                      This is not just another leak. This is a un-
                                                                                                                        such an investigation would be to ensure all
                  INVESTIGATION                                    precedented exposing of an agent’s identity.
                                                                                                                        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
                                                                   tial damage to the security interests of the         Alberto Gonzales asked for permission to
      mied by foot-dragging and delay and                                                                               delay transmitting the order to preserve evi-
      has continued to be stymied by foot-                         nation.
                                                                                                                        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



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      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,              regardless of whether other States
         There has been coverup after coverup
                                                                   businesses can break loose from these               have reached different conclusions on
      after coverup on this CIA leak, and it
                                                                   magnet State courts and get a fair                  the same issue. By allowing these cases
      is not going to go away. People of
                                                                   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
      the bottom of it.                                                                                                judges have been much more sensitive
                                                                   class action reform, my colleagues
         The PRESIDING OFFICER. The Sen-                                                                               to differences in State laws and the
                                                                   have been dispelling a lot of myths
      ator from Georgia.                                                                                               need to balance various States’ inter-
                                                                   about the Class Action Fairness Act
                                                                   that have been spread around by the                 ests in a controversy, the Class Action
                         f                                                                                             Fairness Act will put an end to this
                                                                   opponents of the bill. I would like to
               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
                                                                   that is, that some critics of the Class             isn’t. It is not perfect but it does deal
        Mr. CHAMBLISS. Mr. President, as I                                                                             with a very complex issue. That is why
      sat here and listened to my friend from                      Action Fairness Act have argued that
                                                                   the bill is an affront to federalism be-            it is difficult to reach out and obtain a
      Iowa once again bring up an issue to                                                                             perfect bill.
      which we are all very sensitive, I can’t                     cause it would move more cases involv-
                                                                   ing State law claims to Federal court.                However, by allowing this to move
      help but respond that I have an en-                                                                              forward, the amendments that have
                                                                     But when it comes to federalism, this
      tirely different outlook and opinion                                                                             now been filed, and other amendments
                                                                   bill is actually the solution and not the
      about what is going on with respect to                                                                           that are being contemplated—and I
                                                                   problem. Right now, magnet State
      this issue. Those of us who have been                                                                            have a couple of amendments myself
                                                                   courts are trampling over the laws of
      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



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      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
                                                                   quire chemical plants to develop secu-              hope they will be debated seriously in
      served; but, by the same token, that
                                                                   rity plans and submit them to the De-               the committee tomorrow. I want folks
      there is some stability on the part of
                                                                                                                       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
      about the act. I look forward to the de-                     would not have to do anything to as-
                                                                                                                       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
      ator from New Jersey.                                        15,000 chemical plants without any                  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-              a chemical producer does not comply
          CHEMICAL PLANT SECURITY                                  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.



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      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-
                                                                   sonable approach. But the term ‘‘sub-                   CLASS ACTION FAIRNESS ACT
      least one glaring weakness.
        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-                  BREAUX’s proposal, a modified ap-
      ernment at all. And that would cer-
                                                                   ingly violated Federal security stand-               proach, that will deal with some of the
      tainly be the preference of many of
                                                                   ards, the only remedies prescribed in                flaws. His bill would preserve state
      their friends in industry. So, yes, there
                                                                   the legislation are civil. That sounds               class actions while sending truly na-
      is every reason to be concerned that,
                                                                   wrong.                                               tional class actions to Federal court.
      unless forced to do so, the administra-                        That disparate treatment of Govern-
      tion will take a hands-off approach and                                                                           At the same time, it addresses the
                                                                   ment employees and chemical industry
      simply ignore these security plans. And                                                                           problem of abusive coupon settlements,
                                                                   officials doesn’t seem fair. Nor does it
      the end result would be a lax security                                                                            which is something that the bill before
                                                                   seem appropriate, given the nature of
      system with no real teeth.                                                                                        us does not touch.
                                                                   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
      quire review of security plans, the leg-                                                                          fighting a war in Iraq, when we are
                                                                   violations of certain anti-pollution
      islation under development in the En-                                                                             fighting a war on terrorism worldwide,
                                                                   laws. Surely violations of a new chem-
      vironment and Public Works Com-                                                                                   and we are facing historic budget defi-
                                                                   ical plant security law—a law designed
      mittee has other problems, as well.                                                                               cits and job losses, we are debating a
                                                                   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,



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      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
      water. Without the class action tool, it                                                                          be to have a hearing where we can get
                                                                             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.



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      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              county court which certified the class
          REGULATION BY LITIGATION
                                                                   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:
      ings in U.S. history, the Hershey Foods Cor-
                                                                                                                          The concerns with this case were not
                                                                     There was no fast food I didn’t eat, and I        due to the interests of ‘‘big insurance.’’
      poration was ordered by a Pennsylvania jury                  ate it more often than not because I was sin-
      to pay $135 billion in restitution to 900,000                                                                    Ralph Nader’s group, Public Citizen,
                                                                   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:                                                                                        that case have made out quite hand-
                                                                   duction’ ’’ in meal size.
        The five-state class action suit accused                     Mr. President, by the way, damages                somely.
      Hershey’s of ‘‘knowingly and willfully mar-                                                                         It is not only appropriate, but nec-
                                                                   in the case were unspecified. Given the
      keting rich, fatty candy bars containing                                                                         essary, to use class actions to effi-
      chocolate and other ingredients of negligible                horror stories we have heard of plain-
                                                                   tiffs getting the short end of the stick            ciently provide remedies to large num-
      nutritional value.’’ The company was also
      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.                                                                             chusetts, Pennsylvania, and other
                                                                   a result of a ‘‘drive-by’’—or should I
        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



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      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
                                                                   nomically sustainable because, of                   time on the floor, all the appropria-
           CONCLUSION OF MORNING
                                                                   course, they have to hire a lawyer, pay             tions bills that we are required by law
                     BUSINESS
                                                                   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.
                                                                   ognize the Senator from Nevada for                  other priority. We ask: Whose priority
        The legislative clerk read as follows:
                                                                   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



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      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



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      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



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      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
                                                                   ahead and foresee.                                    Many people have said the problem is
      court level. We can recognize that
                                                                     I urge my colleagues who want to see              forum shopping; many plaintiffs try to
      there are those times when there is a
                                                                   class action reform to allow this bill to           find the best forum they can possibly
      Federal jurisdictional question.
        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-                   cides whether it belongs in Federal
      ator from Texas.
                                                                   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
        Mr. KOHL. Mr. President, I rise in                                                                             like to point out is the situation of
                                                                   the other half of the Senate. Either                what happens if over two-thirds of the
      support of the Class Action Fairness                         side has the potential to stop anything.
      bill. What those of us who are sup-                                                                              plaintiffs happen to be from one State,
                                                                   That is what happens so many times in               such as Louisiana. It is a big difference
      portive of this bill are trying to do is                     this body during this period of time we
      simply get it to the floor where it can                                                                          in what we do here. If two-thirds or
                                                                   are in now where both sides can say, we             more of the plaintiffs suffer injuries in
      be debated, amended, and even filibus-                       are not going to do it this way, or, do
      tered, so I do not understand the objec-                                                                         my State, or any particular State, by
                                                                   it my way or don’t do it at all. The                the alleged defendant who is doing
      tions of those who want to prevent the                       clear result of that is nothing gets
      bill from even reaching the floor.                                                                               business in that State, who sells prod-
                                                                   done. The end result is that both sides             ucts in that State, and who must fol-
      Those who do not support the final bill                      can blame the other side for failure in
      as it would emerge can vote against it                                                                           low the law of that State passed by the
                                                                   getting anything accomplished.                      State legislature, my proposal says
      and can even filibuster it, which would                        For those who truly want to get
      require 60 votes at that time.                                                                                   that belongs in State court.
                                                                   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



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      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-                                                                     class action system. While they are not
                                                                     I am only saying we need to say no to
      fendant is a citizen of a State that is dif-
      ferent from any member of the plaintiff                      bringing this bill up until we have had             in the business of lobbying for specific
      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



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      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



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      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                                                                               this bill being enacted. Either the
                                                                   do not think it is fair to State legisla-
      provides for keeping some cases in                                                                                State courts will be deluged with indi-
                                                                   tures, which are entitled to have the
      State courts and improving the flexi-                                                                             vidual claims, since class actions can
                                                                   laws that they pass to protect their
      bility to try more cases in Federal                                                                               no longer be maintained there, or there
                                                                   citizens interpreted and applied by
      courts.                                                                                                           will be a huge increase in the workload
                                                                   their own courts. This bill is not only
        I have heard from many of the busi-                                                                             of the Federal courts, resulting in
                                                                   misnamed, it is bad policy. It should be
      ness leaders in my State who have ex-                                                                             delays and lengthy litigation over pro-
                                                                   defeated.
      pressed their concerns about the in-                                                                              cedural issues rather than the sub-
                                                                     First, let me note that S. 1751 is a
      creasing challenges of defending them-                                                                            stance of the claims, or many injured
                                                                   different bill than was reported by the
      selves against the same claims in mul-                                                                            people will never get redress for their
                                                                   Judiciary Committee. It includes a new
      tiple states. I have heard their frustra-                                                                         injuries. I don’t believe any of these
                                                                   and potentially very significant provi-
      tions about seeing the claims dismissed                                                                           three choices are acceptable.
                                                                   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?



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      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
        Diversity jurisdiction in cases be-                                                                            class actions, but they function as
                                                                   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,
      been with us for our entire history. Ar-                                                                         who has observed patterns of class-ac-
                                                                   for State legislatures, and for State
      ticle III, section 2 of the Constitution                                                                         tion litigation can tell you, a reform
                                                                   courts.
      provides: ‘‘The judicial Power shall ex-                                                                         bill that did not apply in Mississippi
                                                                     Mr. President, if the motion to pro-
      tend . . . to Controversies between Citi-                                                                        would hardly be much of a reform at
                                                                   ceed is adopted, I expect there will be
      zens of different States.’’ This is the                                                                          all.
                                                                   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



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      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
      There are no caps on damages or attor-                                                                              The PRESIDING OFFICER. The Sen-
                                                                   not be surprised to learn that the same
      ney’s fees, no limits on joint and sev-                                                                           ator’s time has expired.
                                                                   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-
      profession—I expect that they will                                                                                tion to proceed to S. 1751, a bill to amend the
                                                                   out-of-State defendants from local                   procedures that apply to consideration of
      have little difficulty structuring their                     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
      effect of today’s bill will be not to re-                                                                               Graham of South Carolina, Wayne Al-
                                                                   signed to allow Congress to regulate all                   lard, Pat Roberts, John Ensign, Thad
      move cases to federal court, but rather                      violent crime, and any other subject                       Cochran, John Warner, Jon Kyl, John
      to keep them in the courts of the state                      that touches Congress’s fancy and that                     E. 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. ED-
      the strange new federalism that this                         eloquent plea for class action reform.               WARDS) 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-                                                                              I further announce that, if present
                                                                   very busy calendar of conference com-
      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.                                                                             ‘‘nay.’’
                                                                   and many other issues. The time is
      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:



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      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
      Bayh               Enzi
                                                                   other issues that divide us. I think                 to do.
                                             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-
      Bunning            Graham (SC)                                                                                    and so we come together and work out
                                             Roberts               tiations anytime the majority is pre-
      Burns              Grassley
                                             Santorum
                                                                                                                        what the provisions of this bill ought
      Campbell           Gregg
                                             Sessions
                                                                   pared to do so as well.                              to be, at least the main provisions of
      Carper             Hagel                                       I yield the floor.
      Chafee             Hatch               Smith                                                                      it, and move forward. I am deeply com-
      Chambliss          Hutchison           Snowe                   The PRESIDING OFFICER. The ma-                     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
                                             Sununu                                                                     process where I am being told merely
      Collins            Kohl                                      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.
      Crapo              Lincoln             Voinovich             a few moments ago who said, Let’s pro-
                                                                                                                          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
                            NAYS—39                                the Senate. We were one vote short. I
                                                                                                                        meaningful cooperation, it takes sit-
      Akaka              Dodd                Levin                 accept that. I think we do need to pro-
                                                                                                                        ting down. It is hard work. We have
      Baucus             Dorgan              Mikulski              ceed directly to address this issue, and
      Biden              Durbin              Murray                                                                     done it in the past. As the author of
                                                                   we will work in good faith to do just
      Bingaman           Feingold            Nelson (FL)                                                                the securities litigation reform bill,
      Boxer              Graham (FL)         Pryor                 that.
                                                                                                                        the uniform standards legislation, ter-
      Breaux             Harkin              Reed                    As I mentioned earlier, I think we
                                                                                                                        rorism insurance, the Y2K bill—all
      Byrd               Hollings            Reid                  are very close on the antispam legisla-
      Cantwell           Inouye              Rockefeller                                                                matters that brought together the trial
                                                                   tion that we talked about yesterday
      Clinton            Johnson             Sarbanes                                                                   bar and the business community trying
      Conrad             Kennedy             Schumer               and today.
                                                                                                                        to sort it out—I know that this can be
      Corzine            Landrieu            Shelby                                f                                    done. It took a lot of work and a lot of
      Daschle            Lautenberg          Stabenow
      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,
      Edwards            Kerry                                     that we go into morning business until               that we make the same sort of effort.
        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-
      time for us to sit down and negotiate.                                                                            ting this bill done, then there is a way
                                                                                   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.



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      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.
      licly many times and will continue to                                                                              This year Ms. Ebadi established a
                                                                   place. That is what we are trying to do
      state publicly that intention.                                                                                   nonprofit organization, a legal defense
                                                                   with this.
        There are two or three reasons I                                                                               center for the families of Iranian dis-
                                                                                   f                                   sidents and activists. This is chal-
      could not vote to move to debate on
      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-
      increase jobs, to remove the forum                           nent human rights activist in Iran. She
                                                                                                                       tion of that protest. There are reports
      shopping, and to eliminate the abuses                        was awarded the 2003 Nobel Peace
                                                                                                                       he is enduring torture during his deten-
      that are in this system, without under-                      Prize.
                                                                                                                       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



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      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                                                                             class action reform. The Breaux pro-
                                                                   1,000 citizens of my State of North Da-
      believe that there have been abuses in                                                                           posal is a good one. I suggest we begin
                                                                   kota were cheated by a company in
      the area of class action litigation, and                                                                         now seriously negotiating a balanced,
                                                                   Houston, TX, they could not form a
      that reform is needed.
                                                                   class and file an action in North Da-               responsible solution, that takes care of
        But class action reform has to be sen-
                                                                   kota under North Dakota law. They                   the problem of class action abuses.
      sible and thoughtful, and it needs to be
                                                                   simply could not do that under the bill               Let me also say parenthetically that
      resolved through negotiation. I am
                                                                   brought to the floor of the Senate.                 there is another issue, in addition to
      hopeful that this will be accomplished.
                                                                     That is not fair. That doesn’t make               class action reform, that requires
      The minority leader indicated he is
                                                                   any sense.                                          meaningful negotiations. That is the
      willing to negotiate. The majority
                                                                     Now, I understand that forum shop-                issue of asbestos litigation. That, too,
      leader indicated he is willing to nego-
                                                                   ping is a problem and we ought to deal              is a real problem and we ought to deal
      tiate on these issues. It is my hope that
                                                                   with it. But there is a right way and a             with it. It, too, in my judgment, will
      these negotiations will be fruitful.
        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



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      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-                                                                      The legislative clerk proceeded to
                                                                   immediately. Let this commission do
      fort to get prompt access to some key execu-                                                                     call the roll.
      tive branch and White House documents that                   its work and finish its work, make a
      the commission needs to complete its work                    report to the Congress and to the                     Mr. INHOFE. Madam President, I ask
      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-                                                                        usual form. I further ask unanimous
      ments.
                                                                   my thanks to the 58 other Democrats
                                                                   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                                                                             intervening action or debate; I further
                                                                   amendment legislation that would re-
      this disturbing development at one                                                                               ask consent that following the vote,
                                                                   form the way we handle class action
      agency has led the commission to reex-                                                                           the President be immediately notified
                                                                   lawsuits in this country.
      amine its general policy of relying on                                                                           of the Senate’s action and the Senate
                                                                     I am disappointed with the vote, that
      document requests rather than sub-                                                                               then resume legislative session.
                                                                   we fell one vote short, but I am encour-
      poenas. They have voted to issue a sub-                                                                            The PRESIDING OFFICER. Is there
                                                                   aged by some of the conversation that
      poena to the FAA for documents which                                                                             objection?
                                                                   took place immediately following the
      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
      would think every single Federal agen-                       give up on this issue. It is one that we
                                                                                                                       yield the floor.
      cy, starting with the White House,                           need to address and we can address sat-
                                                                                                                         Mr. MCCAIN. Madam President, I
      would open its records immediately to                        isfactorily. My own belief is it is one
                                                                                                                       suggest the absence of a quorum.
      this commission so we can understand                         we can address this year.                             The PRESIDING OFFICER. The
      what happened.                                                 I have talked to any number of Sen-
                                                                                                                       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.



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      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(2) senders of unsolicited commercial elec-
      public 48 hours before the conference.                       brackets and insert the part shown in
                                                                                                                       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.
                                                                   øSECTION 1. SHORT TITLE.
      and many national issues that pertain                                                                            øSEC. 3. DEFINITIONS.
                                                                     øThis Act may be cited as the ‘‘Controlling
      to energy and America’s future. We are                       the Assault of Non-Solicited Pornography               øIn this Act:
      on the verge of completing work on a                         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         tive.
      mittee in the Senate, are announcing                         a critical mode of global communication and
      we will have a meeting of the conferees                                                                             ø(2) COMMERCIAL ELECTRONIC MAIL MES-
                                                                   now presents unprecedented opportunities            SAGE.—
      on the Energy bill on October 28, Tues-                      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
      morning, but implicit in my statement                          ø(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
      gesting in this announcement they                                                                                   ø(B) REFERENCE TO COMPANY OR WEBSITE.—
                                                                   other users and Internet service providers
      should have their work completed in                                                                              The inclusion of a reference to a commercial
                                                                   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
      conference report, since it is part of it,                     ø(4) Unsolicited commercial electronic
                                                                                                                       does not, by itself, cause such message to be
      without which there is not a con-                            mail can be a mechanism through which
                                                                                                                       treated as a commercial electronic mail mes-
      ference, without which we do not know                        businesses advertise and attract customers
                                                                                                                       sage for purposes of this Act if the contents
      whether the rest of the work is valid or                     in the online environment.
                                                                                                                       or circumstances of the message indicate a
                                                                     ø(5) The receipt of unsolicited commercial
      has to be changed.                                           electronic mail may result in costs to recipi-
                                                                                                                       primary purpose other than commercial ad-
        Everyone who is interested at the                          ents who cannot refuse to accept such mail
                                                                                                                       vertisement or promotion of a commercial
      leadership level is working to get this                      and who incur costs for the storage of such         product or service.
      tax provision done. I want to repeat, it                     mail, or for the time spent accessing, review-         ø(3) COMMISSION.—The term ‘‘Commission’’
      is not done. We do expect it to be done                      ing, and discarding such mail, or for both.         means the Federal Trade Commission.
                                                                     ø(6) Unsolicited commercial electronic               ø(4) DOMAIN NAME.—The term ‘‘domain
      in time for this announcement to be ef-                                                                          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-
                                                                   tutions that carry and receive such mail, as        istry, or other domain name registration au-
              CAN–SPAM ACT OF 2003
                                                                   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
                                                                   cipients may consider vulgar or porno-              or mailbox (commonly referred to as the
      agreed to and be considered original
                                                                   graphic in nature.                                  ‘‘local part’’) and a reference to an Internet
      text for the purpose of further amend-                                                                           domain (commonly referred to as the ‘‘do-
                                                                     ø(8) While some senders of unsolicited com-
      ment.                                                                                                            main part’’), to which an electronic mail
                                                                   mercial electronic mail messages provide
        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.).
                                                                   the future, or both.                                   ø(8) HEADER INFORMATION.—The term
      unanimous consent that the order for
                                                                     ø(9) An increasing number of senders of un-       ‘‘header information’’ means the source, des-
      the quorum call be rescinded.                                                                                    tination, and routing information attached
                                                                   solicited commercial electronic mail pur-
        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—
      merce by imposing limitations and penalties                  the recipients to view the messages.                   ø(A) within the 3-year period ending upon
      on the transmission of unsolicited commer-                     ø(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




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      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.—
      øIf a sender operates through separate lines                   ø(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
      that particular line of business or division                    ø‘‘(a) IN GENERAL.—Any person who initi-          to receive or does not want to receive from
      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.                   knowledge and intent that the message con-           electronic mail messages from the sender.
         ø(10) INITIATE.—The term ‘‘initiate’’, when               tains or is accompanied by header informa-             ø(C) TEMPORARY INABILITY TO RECEIVE MES-
      used with respect to a commercial electronic                                                                      SAGES OR PROCESS REQUESTS.—A return elec-
                                                                   tion that is materially false or materially
      mail message, means to originate such mes-                                                                        tronic mail address or other mechanism does
                                                                   misleading shall be fined or imprisoned for
      sage or to procure the origination of such                                                                        not fail to satisfy the requirements of sub-
                                                                   not more than 1 year, or both, under this
      message, but shall not include actions that                                                                       paragraph (A) if it is unexpectedly and tem-
                                                                   title. For purposes of this subsection, header
      constitute routine conveyance of such mes-                                                                        porarily unable to receive messages or proc-
                                                                   information that is technically accurate but
      sage.                                                                                                             ess requests due to technical or capacity
                                                                   includes an originating electronic mail ad-
         ø(11) INTERNET.—The term ‘‘Internet’’ has                                                                      problems, if the problem with receiving mes-
                                                                   dress the access to which for purposes of ini-
      the meaning given that term in the Internet                                                                       sages or processing requests is corrected
                                                                   tiating the message was obtained by means
      Tax Freedom Act (47 U.S.C. 151 nt).                                                                               within a reasonable time period.
                                                                   of false or fraudulent pretenses or represen-
         ø(12) INTERNET ACCESS SERVICE.—The term                                                                          ø(4) PROHIBITION OF TRANSMISSION OF UNSO-
                                                                   tations shall be considered materially mis-          LICITED COMMERCIAL ELECTRONIC MAIL AFTER
      ‘‘Internet access service’’ has the meaning                  leading.
      given that term in section 231(e)(4) of the                                                                       OBJECTION.—If a recipient makes a request to
                                                                      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(14) RECIPIENT.—The term ‘‘recipient’’,                                                                       mission to the recipient, more than 10 busi-
                                                                   the following:                                       ness days after the receipt of such request, of
      when used with respect to a commercial
      electronic mail message, means an author-                    ø‘‘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
                                                                              LICITED COMMERCIAL ELECTRONIC             sender to initiate the transmission to the re-
      message has 1 or more electronic mail ad-
                                                                              MAIL.                                     cipient, more than 10 business days after the
      dresses in addition to the address to which
      the message was sent or delivered, the recipi-                 ø(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
      with respect to each such address. If an elec-                 ø(1) PROHIBITION OF FALSE OR MISLEADING            such person knows or consciously avoids
                                                                   TRANSMISSION INFORMATION.—It is unlawful             knowing falls within the scope of the re-
      tronic mail address is reassigned to a new
      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




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      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
      a notice stating that the operator of such a                   ø(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
        ø(2) DISCLAIMER.—Nothing in this sub-                      ance, by the applicable State insurance au-          degree of culpability, any history of prior
      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-        action under paragraph (1) upon the Federal
      tice proscribed under section 18(a)(1)(B) of
                                                                   nications Commission with respect to any             Trade Commission or the appropriate Fed-
      the Federal Trade Commission Act (15 U.S.C.
                                                                   person subject to the provisions of that Act.        eral regulator determined under subsection
      57a(a)(1)(B)).                                                 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-        priate Federal regulator with a copy of its
      AGENCIES.—Compliance with this Act shall
                                                                   ferred to in subsection (b) of its powers under      complaint, except in any case in which such
      be enforced—
                                                                   any Act referred to in that subsection, a vio-       prior notice is not feasible, in which case the
        ø(1) under section 8 of the Federal Deposit
                                                                   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                                                                        regulator shall have the right—
                                                                   each of the agencies referred to in that sub-
      any subsidiaries of such entities (except bro-               section may exercise, for the purpose of en-           ø(A) to intervene in the action;
      kers, dealers, persons providing insurance,                  forcing compliance with any requirement                ø(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
      of the Federal Reserve System) insured                                                                            court of the United States that meets appli-
                                                                   made a part of that subtitle.
      State branches of foreign banks, and any                       ø(e) ENFORCEMENT BY STATES.—                       cable requirements relating to venue under
      subsidiaries of such entities (except brokers,                 ø(1) CIVIL ACTION.—In any case in which the        section 1391 of title 28, United States Code.
      dealers, persons providing insurance, invest-                attorney general of a State has reason to be-          ø(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




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      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-
        ø(a) FEDERAL LAW.—                                         SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.            operative efforts with other countries will be
        ø(1) Nothing in this Act shall be construed                                                                      necessary as well.
                                                                     (a) FINDINGS.—The Congress finds the fol-
      to impair the enforcement of section 223 or                                                                           (b) CONGRESSIONAL DETERMINATION OF PUB-
                                                                   lowing:
      231 of the Communications Act of 1934 (47                                                                          LIC POLICY.—On the basis of the findings in
                                                                      (1) Electronic mail has become an extremely
      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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      S13016                                             CONGRESSIONAL RECORD — SENATE                                                            October 22, 2003
      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        SEC. 5. OTHER PROTECTIONS FOR USERS OF
      mail message, including the originating domain               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-
         (A) IN GENERAL.—The term ‘‘implied consent’’,                                                                    any person to initiate the transmission, to a pro-
                                                                   sage, means a person who initiates such a mes-
      when used with respect to a commercial elec-                                                                        tected computer, of a commercial electronic mail
                                                                   sage and whose product, service, or Internet
      tronic mail message, means that—                                                                                    message that contains, or is accompanied by,
                                                                   web site is advertised or promoted by the mes-
         (i) within the 3-year period ending upon re-                                                                     header information that is false or misleading.
                                                                   sage.
      ceipt of such message, there has been a business                                                                    For purposes of this paragraph—
                                                                      (18) TRANSACTIONAL OR RELATIONSHIP MES-
      transaction between the sender and the recipi-                                                                         (A) header information that is technically ac-
                                                                   SAGE.—The term ‘‘transactional or relationship
      ent (including a transaction involving the provi-                                                                   curate but includes an originating electronic
                                                                   message’’ means an electronic mail message the
      sion, free of charge, of information, goods, or                                                                     mail address the access to which for purposes of
                                                                   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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      October 22, 2003                                   CONGRESSIONAL RECORD — SENATE                                                                          S13017
      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-                                                                          violations of this section.
                                                                   messages; or
      SAGES OR PROCESS REQUESTS.—A return elec-                                                                           SEC. 7. ENFORCEMENT BY FEDERAL TRADE COM-
                                                                      (ii) the electronic mail address of the recipient
      tronic mail address or other mechanism does not                                                                                 MISSION.
                                                                   was obtained using an automated means that
      fail to satisfy the requirements of subparagraph                                                                      (a) VIOLATION IS UNFAIR OR DECEPTIVE ACT
                                                                   generates possible electronic mail addresses by
      (A) if it is unexpectedly and temporarily unable                                                                    OR PRACTICE.—Except as provided in subsection
                                                                   combining names, letters, or numbers into nu-
      to receive messages or process requests due to                                                                      (b), this Act shall be enforced by the Commission
                                                                   merous permutations.
      technical or capacity problems, if the technical                                                                    as if the violation of this Act were an unfair or
                                                                      (B) DISCLAIMER.—Nothing in this paragraph
      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                                                                          forced—
                                                                   to establish multiple electronic mail accounts or
      paragraph shall not apply to a message that is                                                                         (1) under section 8 of the Federal Deposit In-
                                                                   online user accounts from which to transmit to
      a transactional or relationship message.                                                                            surance Act (12 U.S.C. 1818), in the case of—
         (4) PROHIBITION OF TRANSMISSION OF UNSOLIC-               a protected computer, or enable another person
                                                                   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
                                                                   unlawful under subsection (a).                         sidiaries of such entities (except brokers, deal-
      mechanism provided pursuant to paragraph (3)                                                                        ers, persons providing insurance, investment
      not to receive some or any unsolicited commer-                  (3) RELAY OR RETRANSMISSION THROUGH UNAU-
                                                                   THORIZED ACCESS.—It is unlawful for any per-           companies, and investment advisers), by the Of-
      cial electronic mail messages from such sender,                                                                     fice of the Comptroller of the Currency;
                                                                   son knowingly to relay or retransmit an unsolic-
      then it is unlawful—                                                                                                   (B) member banks of the Federal Reserve Sys-
         (A) for the sender to initiate the transmission           ited commercial electronic mail message that is
                                                                   unlawful under subsection (a) from a protected         tem (other than national banks), branches and
      to the recipient, more than 10 business days                                                                        agencies of foreign banks (other than Federal
      after the receipt of such request, of an unsolic-            computer or computer network that such person
                                                                   has accessed without authorization.                    branches, Federal agencies, and insured State
      ited commercial electronic mail message that                                                                        branches of foreign banks), commercial lending
      falls within the scope of the request;                          (c) COMPLIANCE PROCEDURES.—An action for
                                                                   violation of paragraph (2), (3), (4), or (5) of sub-   companies owned or controlled by foreign
         (B) for any person acting on behalf of the
                                                                   section (a) may not proceed if the person              banks, organizations operating under section 25
      sender to initiate the transmission to the recipi-
                                                                   against whom the action is brought dem-                or 25A of the Federal Reserve Act (12 U.S.C. 601
      ent, more than 10 business days after the receipt
                                                                   onstrates that —                                       and 611), and bank holding companies and their
      of such request, of an unsolicited commercial
                                                                      (1) the person has established and imple-           nonbank subsidiaries or affiliates (except bro-
      electronic mail message that such person knows
                                                                   mented, with due care, reasonable practices and        kers, dealers, persons providing insurance, in-
      or consciously avoids knowing falls within the
                                                                   procedures to effectively prevent violations of        vestment companies, and investment advisers),
      scope of the request;
         (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.                                    vestment advisers), by the Board of Directors of
      (A) or (B); or
         (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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      S13018                                             CONGRESSIONAL RECORD — SENATE                                                            October 22, 2003
      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.
      exercise, for the purpose of enforcing compliance               (D) to file petitions for appeal.                    (a) FEDERAL LAW.—
      with any requirement imposed under this Act,                    (5) CONSTRUCTION.—For purposes of bringing
                                                                                                                           (1) Nothing in this Act shall be construed to
      any other authority conferred on it by law.                  any civil action under paragraph (1), nothing in
                                                                                                                         impair the enforcement of section 223 or 231 of
        (d) ACTIONS BY THE COMMISSION.—The Com-                    this Act shall be construed to prevent an attor-
                                                                                                                         the Communications Act of 1934 (47 U.S.C. 223
      mission shall prevent any person from violating              ney general of a State from exercising the pow-
                                                                                                                         or 231, respectively), chapter 71 (relating to ob-
      this Act in the same manner, by the same                     ers conferred on the attorney general by the
                                                                                                                         scenity) or 110 (relating to sexual exploitation of
      means, and with the same jurisdiction, powers,               laws of that State to—
                                                                                                                         children) of title 18, United States Code, or any
      and duties as though all applicable terms and                   (A) conduct investigations;
                                                                                                                         other Federal criminal statute.
      provisions of the Federal Trade Commission Act                  (B) administer oaths or affirmations; or
                                                                                                                           (2) Nothing in this Act shall be construed to
      (15 U.S.C. 41 et seq.) were incorporated into and               (C) compel the attendance of witnesses or the
                                                                                                                         affect in any way the Commission’s authority to
      made a part of this Act. Any entity that violates            production of documentary and other evidence.
                                                                                                                         bring enforcement actions under FTC Act for
      any provision of that subtitle is subject to the                (6) VENUE; SERVICE OF PROCESS.—
                                                                                                                         materially false or deceptive representations or
      penalties and entitled to the privileges and im-                (A) VENUE.—Any action brought under para-
                                                                                                                         unfair practices in commercial electronic mail
      munities provided in the Federal Trade Commis-               graph (1) may be brought in the district court of
                                                                                                                         messages.
      sion Act in the same manner, by the same                     the United States that meets applicable require-
                                                                                                                           (b) STATE LAW.—
      means, and with the same jurisdiction, power,                ments relating to venue under section 1391 of
                                                                                                                           (1) IN GENERAL.—This Act supersedes any
      and duties as though all applicable terms and                title 28, United States Code.
                                                                                                                         statute, regulation, or rule of a State or political
      provisions of the Federal Trade Commission Act                  (B) SERVICE OF PROCESS.—In an action
                                                                                                                         subdivision of a State that expressly regulates
      were incorporated into and made a part of that               brought under paragraph (1), process may be
                                                                                                                         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.
                                                                      (7) LIMITATION ON STATE ACTION WHILE FED-          in any portion of a commercial electronic mail
      attorney general of a State has reason to believe
                                                                   ERAL ACTION IS PENDING.—If the Commission or
                                                                                                                         message or information attached thereto.
      that an interest of the residents of that State
                                                                   other appropriate Federal agency under sub-             (2) STATE LAW NOT SPECIFIC TO ELECTRONIC
      has been or is threatened or adversely affected
                                                                                                                         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-
                                                                   ministrative action for violation of this Act, no     empt the applicability of State laws that are not
      lates section 5 of this Act, the State, as parens
                                                                   State attorney general may bring an action            specific to electronic mail, including State tres-
      patriae, may bring a civil action on behalf of
                                                                   under this subsection during the pendency of          pass, contract, or tort law, and State laws relat-
      the residents of the State in a district court of
                                                                   that action against any defendant named in the        ing to acts of fraud or computer crime.
      the United States of appropriate jurisdiction or
                                                                   complaint of the Commission or the other agen-          (c) NO EFFECT ON POLICIES OF PROVIDERS OF
      in any other court of competent jurisdiction—
                                                                   cy for any violation of this Act alleged in the       INTERNET ACCESS SERVICE.—Nothing in this Act
        (A) to enjoin further violation of section 5 of
                                                                   complaint.                                            shall be construed to have any effect on the
      this Act by the defendant; or
                                                                      (f) ACTION BY PROVIDER OF INTERNET ACCESS          lawfulness or unlawfulness, under any other
        (B) to obtain damages on behalf of residents
                                                                   SERVICE.—                                             provision of law, of the adoption, implementa-
      of the State, in an amount equal to the greater
                                                                      (1) ACTION AUTHORIZED.—A provider of Inter-        tion, or enforcement by a provider of Internet
      of—
        (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




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      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                   we can implement a Do Not Spam pro-
      the need (if any) for the Congress to modify
      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
      which consumers access their electronic mail
                                                                   we could not get it up. We have learned              leagues and to Senator SCHUMER for
      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                                                                    The bill would prohibit senders of
                                                                   ator WYDEN and Senator BURNS for
      Federal government could pursue through inter-
                                                                   their leadership, and particularly my                commercial e-mail from falsifying or
      national negotiations, fora, organizations, or
      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.                                                                                               The bill would also require senders of
                                                                   months, although I think it can be
        If any provision of this Act or the application                                                                 commercial e-mail to give their recipi-
      thereof to any person or circumstance is held in-            done in a much shorter period.
      valid, the remainder of this Act and the applica-              We will be riding herd on the Federal              ents an opportunity to opt out of re-
      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



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      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-
      the way that businesses may legiti-                             Regardless of whether we call all so-
                                                                                                                        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-
        We must keep in mind the tremen-                           affecting how consumers and busi-
                                                                                                                        tant relatives. Yet, parents today
      dous promise that the Internet and                           nesses use e-mail. Less than 2 years
                                                                                                                        spend more and more of their time wor-
      more specifically e-mail, holds for con-                     ago, spam made up only 8 percent of all
                                                                                                                        rying that their children may open up
      sumers and businesses alike. We must                         e-mail. In a hearing before the Com-
                                                                                                                        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.
        The Federal Trade Commission de-                           counted for more than 45 percent of all
                                                                                                                          This greatly concerns me as a parent,
      fines spam generally as ‘‘unsolicited                        global e-mail traffic and, worse, it
                                                                                                                        as a legislator and as an American cit-
      commercial e-mail.’’ and some Ameri-                         would probably exceed the 50 percent
                                                                                                                        izen. First and foremost, parents
                                                                   mark by year’s end.
      cans do not want any of it. Other con-                                                                            should not have to think twice before
                                                                      In the committee’s hearing, America
      sumers like to receive unsolicited of-                                                                            encouraging their children to use the
                                                                   Online—our Nation’s largest Internet
      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-                                                                                of it peddling get-rich-quick schemes,
                                                                   messages it receives each day. Not sur-
      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



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      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-
                                                                                                                        tive to send spam, the potential interest of a
      could send spam past the filters to the                      nesses often escape liability because
                                                                                                                        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-
                                                                   falsified routing information. I urge                proach. A copy of our principles regarding
        I mention these things only to em-
                                                                                                                        spam is attached for your review.
      phasize the complexity of this problem                       my colleagues to support this principle
                                                                                                                          Please contact me or Joe Keeley in BSA’s
      and to remind my colleagues that the                         of holding businesses that benefit from
                                                                                                                        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-
                                                                   rial was ordered to be printed in the                ers in the effort to address the spam problem
      but we should make no mistake—un-
                                                                   RECORD, as follows:                                  working with industry and public interest
      less we can effectively enforce the laws                                                                          groups to refine their legislation over the
      we write, those laws will have little                                              CONSUMERS UNION,
                                                                                                                        last two sessions.
      meaning or deterrent effect on any                                                            June 18, 2003.
                                                                   Subject: McCain FTC Enforcement Amend-                 CDT is conducting a consultative study on
      would-be purveyor of spam.                                                                                        the most effective ways to prevent spam
                                                                       ment to Burns-Wyden Spam bill.
        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:
      would empower the FTC to take action                                                                              tinue working with you and Senators Burns
                                                                      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
                                                                   CAN–SPAM bill. This amendment is an im-              legislative process unfolds.
      efit from the sending of spam with de-
                                                                   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
                                                                      However, we still have significant reserva-       email. We hope that this provision—in con-
      man and Commissioners of the FTC                                                                                  cert with effective baseline federal legisla-
                                                                   tions about the Burns-Wyden bill, because
      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.
                                                                   safeguards established in this legislation (a
      most effective when ‘‘following the
                                                                   private right of action).                                                             JUNE 18, 2003.
      money’’ to track down spammers. By                              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.
      money to purchase the product or serv-                              Sincerely,                                      DEAR MR. CHAIRMAN: I am writing on be-
      ice promoted in the spam. From there,                                                  CHRIS MURRAY,              half of the U.S. Chamber of Commerce, the
                                                                                             Legislative Counsel.
      the FTC attempts to prove a connec-                                                                               world’s largest business federation, rep-
      tion between the business and a                                                                                   resenting more than three million businesses
                                                                            BUSINESS SOFTWARE ALLIANCE,
      spammer who sent it out on their be-                                                                              of every size, sector and region, regarding S.
                                                                                  Washington, DC, June 18, 2003.
                                                                                                                        877, the CAN SPAM Act.
      half. In essence, they spend significant                     Hon. JOHN MCCAIN,
                                                                                                                          Spam has become more than a nuisance—
      time and effort attempting to follow                         Chairman, Senate Commerce Committee,
                                                                   U.S. Senate, Washington, DC.                         it has become so overwhelming that all as-
      the money trail all the way back to the                                                                           pects of the business community, from ISPs
      spammer—if they can find them.                                 DEAR CHAIRMAN MCCAIN: On behalf of the
                                                                   member companies of the Business Software            who have to invest millions of dollars in
        As an alternative to the inefficient                       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-
                                                                   at an exponential rate, clogging inboxes, di-        nology, increased FTC enforcement, and en-
      money trail that are promoted in the                                                                              hanced ability of ISPs to go after the bad ac-
                                                                   verting network resources, damaging reputa-
      spam consumers receive. They need to                                                                              tors.
                                                                   tions and brands of responsible companies,
      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




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      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               tion or technology that ferrets out the
      companies who communicate with their cus-
      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:
      the extent to which businesses, whose prod-
                                                                   and important and complex issue, as I                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
      lems. In particular, the amendment empow-
                                                                                                                        ity to the Federal Trade Commission
      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                     steep fines up to $3 million on
      of the fight against spam, including the
      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-
      ments.
                                                                   rehash everything he said because his                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
      When a website owner know the person ad-
                                                                   WYDEN, was the E 9–1–1 which is prob-                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                who has worked very hard on this
      of spam crossing the networks of email serv-
      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



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      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 provisions in this legisla-
                                                                   enforcement regime.
      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                                                                              use all of the enforcement tools, in-
                                                                   States here this afternoon. At this
      Internet service providers—when this                                                                             cluding measures such as the RICO
                                                                   point, over half the States have en-
      bill is signed into law, to bring a hand-                                                                        statute, against these particularly rep-
                                                                   acted State-level spam legislation. It is
      ful of actions very quickly to establish                                                                         rehensible violators. I commend Sen-
                                                                   pretty easy to see why the States have
      that for the first time there is a real                                                                          ator NELSON for this effort as well.
                                                                   acted. They are frustrated that the
      deterrent, there will be real con-                                                                                  Finally, as we put together a coordi-
                                                                   Congress has not moved.
      sequences      when     those    big-time                                                                        nated game plan against the spammers,
                                                                     But I believe a State-by-State ap-
      spammers try to exploit our citizens.                                                                            I would also like to emphasize that we
                                                                   proach cannot work in this area. The
      When the bill takes effect, for the first                                                                        expect our trading partners, and the
                                                                   numerous State laws to date certainly
      time those violators are going to risk                                                                           many countries that look to do busi-
                                                                   have not put in place a coordinated ef-
      criminal prosecution, Federal Trade                                                                              ness with the United States, to play a
                                                                   fort against spam. Neither the Internet
      Commission enforcement, and million-                                                                             more activist role in this area. As sure
                                                                   nor the big-time spammers is sitting
      dollar lawsuits by the State attorneys                                                                           as night follows day, some of these
      general and Internet service providers.                      around saying: Let’s tip our hat to
                                                                                                                       kingpin spammers are going to just
        The reason that is the case is because                     State jurisdictions. And certainly an e-
                                                                                                                       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.



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      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
                                                                     (6) MATERIALITY DEFINED.—For purposes of
      leagues have already asked of the man-                                                                           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-
      This is an opportunity for the Senate                                                                              The PRESIDING OFFICER. Is there
                                                                   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
                                                                   mines that a different period would be more         move to reconsider the vote.
      coupled with an enforcement strategy
                                                                   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
      the floor.                                                                                                         Mr. SCHUMER. Madam President, I
                                                                   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-    MER],for himself, Mr. MCCAIN, Mr. HOLLINGS,
      my understanding that the Senator                            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
                                                                   any such statute, regulation, or rule that’’          Mr. SCHUMER. I ask unanimous con-
      amendment.
        It is also my understanding that Sen-                      and insert ‘‘to the extent that any such stat-      sent that reading of the amendment be
      ator HATCH, Senator SANTORUM, and                            ute, regulation, or rule’’.                         dispensed with.
                                                                     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-                   (Purpose: To authorize the Commission to
      we can dispense with those amend-                            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-
                                                                   ingly route messages through what are               tives Committee on Energy and Commerce a
        The assistant legislative clerk read
                                                                                                                       report that—
      as follows:                                                  called open relays in order to erase the              (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-
                                                                   formation.                                          ability, or other concerns that the Commis-
      (Purpose: To clarify the provision prohib-
                                                                     It permits the Federal Trade Com-                 sion has regarding such a registry; and
        iting false or misleading transmission in-
                                                                   mission to modify the bill’s deadline                 (3) includes an explanation of how the reg-
        formation, and for other purposes)
                                                                                                                       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’’                                                                   Mr. SCHUMER. Madam President, I
                                                                   punishable.
      and insert ‘‘materially misleading;’’.                                                                           offer this amendment on behalf of my-
        On page 45, line 5, strike ‘‘false or mis-
                                                                     The amendment permits the Federal
      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                                                                       ing on quite a few pieces of legislation
                                                                   those techniques to the list of what are
      the person initiating the message knowingly
                                                                   called aggravated violations so that                together. He is a good legislator and a
      uses another protected computer to relay or
      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.



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      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                   already said it is technologically pos-
      GRAHAM, and Senator MCCAIN. We are
                                                                   about spam infested with pornography                sible to create and secure the list. This
      all going to miss FRITZ HOLLINGS. He is
                                                                   and how it impacts their children. The              is no longer a worry and one of the
      one of the true gems of the Senate. He
                                                                   bottom line is, if parents can control              breakthroughs we made in the last few
      is a forthright man and a direct man.
                                                                   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
        Finally, Senator MCCAIN and I have                                                                             hands.
                                                                   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.



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      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               partment of Justice should use all existing
      derlying base of the bill, will put a                        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
                                                                   sistent. Senator WYDEN and Senator                  States Sentencing Commission, which
      this is a very fine day for those who
                                                                   BURNS kept after it. It is an idea whose            is the normal course of action, that
      use computers and e-mail and for
                                                                   time has come simply by virtue of the               they shall consider sentencing en-
      American technology in general. It
                                                                   fact that people can hardly even use                hancements for those convicted of
      shows that we can all work together
      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



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      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
                                                                                                                         On page 43, beginning with line 11, strike
      the view of some, a misguided member                         the nature of this, because clearly em-
                                                                                                                       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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      S13028                                             CONGRESSIONAL RECORD — SENATE                                                        October 22, 2003
         (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     NELSON of Florida, and Senator SCHU-
         ‘‘(a) IN GENERAL.—Whoever, in or affecting
                                                                   the Federal Rules of Criminal Procedure,
      interstate or foreign commerce, knowingly—                                                                        MER to offer an amendment to the CAN
         ‘‘(1) accesses a protected computer without               shall apply to all stages of a criminal for-
                                                                   feiture proceeding under this section.               SPAM Act of 2003. This amendment
      authorization, and intentionally initiates                                                                        strengthens the act’s criminal provi-
                                                                      ‘‘(d) DEFINITIONS.—In this section:
      the transmission of multiple commercial                                                                           sions by incorporating key provisions
                                                                      ‘‘(1) LOSS.—The term ‘loss’ has the mean-
      electronic mail messages from or through
      such computer,
                                                                   ing given that term in section 1030(e) of this       of the Criminal Spam Act of 2003,
                                                                   title.                                               which I worked closely with Senators
         ‘‘(2) uses a protected computer to relay or
                                                                      ‘‘(2) MULTIPLE.—The term ‘multiple’ means         LEAHY, GRASSLEY, SCHUMER, NELSON of
      retransmit multiple commercial electronic
                                                                   more than 100 electronic mail messages dur-          Florida and others to draft earlier this
      mail messages, with the intent to deceive or
                                                                   ing a 24-hour period, more than 1,000 elec-
      mislead recipients, or any Internet access
                                                                   tronic mail messages during a 30-day period,
                                                                                                                        year and which was favorably reported
      service, as to the origin of such messages,                                                                       out of the Judiciary Committee. To
         ‘‘(3) falsifies header information in mul-                or more than 10,000 electronic mail messages
                                                                   during a 1-year period.                              send an effective and adequate message
      tiple commercial electronic mail messages
                                                                      ‘‘(3) OTHER TERMS.—Any other term has             of deterrence to the most egregious
      and intentionally initiates the transmission
      of such messages,
                                                                   the meaning given that term by section 3 of          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
                                                                   the following:
                                                                                                                        Congresses we have become more and
      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
                                                                                  tion with electronic mail.’’.         spam. Rarely a minute passes that
      accounts or domain names, or
         ‘‘(5) falsely represents the right to use 5 or               (b) UNITED STATES SENTENCING COMMIS-
                                                                                                                        American consumers and their children
      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
      offense under subsection (a) is—                             to provide appropriate penalties for viola-
                                                                   tions of section 1037 of title 18, United States
                                                                                                                        spam has imposed enormous costs on
         ‘‘(1) a fine under this title, imprisonment
      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
      volving the transmission of multiple com-                    for—
                                                                      (A) those convicted under section 1037 of         children who have opened unsolicited
      mercial electronic mail messages or unau-
      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-
                                                                   petrate fraudulent schemes, and introduce
                                                                                                                        ability of all e-commerce. The time has
      cupied a position of organizer or leader; and
         ‘‘(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



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      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
      e-mail accounts or domain names that                         mendously valuable deterrent.                        them to do is to conduct these criminal
                                                                     I would like to work with the distin-              activities on a much broader scale at
      falsify the identity of the actual reg-
                                                                   guished chairman of the committee to                 dramatically reduced costs. They can
      istrant, or from Internet Protocol, IP,
                                                                   have some vigorous oversight hearings                literally reach millions of people at the
      addresses that have been hijacked from
                                                                                                                        push of a button.
      their true assignees.                                        after this bill has gone into effect.
                                                                                                                          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-
      harvesting and dictionary attacks.                             Mr. MCCAIN. I thank Senator HATCH                  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



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      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



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      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-                 chokes this very new way of commu-
      John Cleese and everybody else in the
                                                                   leagues on the floor, Senator BURNS                 nicating and brings us not only infor-
      Monty Python skit.
         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-                 from Vermont and thank him for it.
      family down to my 5-year-old grand-
                                                                   gether. I certainly compliment the two                I yield the floor.
      child, knows how annoying spam can
                                                                   of them, as well as Senator HATCH,                    The PRESIDING OFFICER. The Sen-
      be.
         A Harris poll taken last year found                       Senator NELSON, and Senator SCHUMER.                ator from North Dakota.
                                                                   I think we are putting together some-                 Mr. DORGAN. Mr. President, I have
      that 80 percent of the respondents
                                                                   thing that is worth passing.                        been watching. Everybody is pretty
      viewed spam as ‘‘very annoying’’ and 74
                                                                      Mr. WYDEN. Will the Senator yield?               much congratulating everybody else.
      percent wanted to make it illegal.                              Mr. LEAHY. Sure.
         Some 30 States now have anti-spam                                                                             Let me add my congratulations. This is
                                                                      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.
      ISPs every day. Hundreds of millions of                                                                            I don’t know where the word spam
                                                                   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



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      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.
      a serious way. There is so much spam                                                                               The amendment (No. 1893) was agreed
                                                                   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



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      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
                                                                                                                       and local governments to lose revenue begin-
      standards for highly qualified teachers,                     mate services.
                                                                                                                       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                                                                              ally, beginning in 2007. The bill contains no
                                                                   and to State and locally elected offi-
                                                                                                                       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
                                                                                                                       governments to tax Internet access if such
      extend the moratorium on State and                           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.                                                                             ITFA would not include telecommunications
                                                                   exempt telephone and cable companies
      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                                                                           lect.
                                                                   most of us have promised not to do.
      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                                                                                     STATE AND LOCAL GOVERNMENTS
                                                                   Internet die a well-deserved and nat-
      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-                                                                           father clause would result in revenue losses
                                                                   ber 1 and let us remember the Repub-
      ning a tax, but what we are actually                                                                             for as many as 10 states for several local gov-
                                                                   lican Congress 10 years ago promised to             ernments totaling between $80 million and
      doing is favoring one tax over another                       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
      have an income tax are higher, or a                                                                              this time.
                                                                   mandates be printed in the RECORD.
      higher tax on medicine or food, or                                                                                  UMRA includes in its definition of the di-
                                                                     There being no objection, the mate-               rect costs of a mandate the amounts that
      higher college tuition for families to                       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                                                                            nating the grandfather clause would be the
                                                                              S. 150—INTERNET TAX
      prerogatives and local prerogatives is                                NONDISCRIMINATION ACT                      tax revenues that state and local govern-
      justified by the interstate commerce                         AS ORDERED REPORTED BY THE SENATE COM-
                                                                                                                       ments are currently collecting but would be
      clause of the Constitution, and that                                                                             precluded from collecting under S. 150.
                                                                     MITTEE ON COMMERCE, SCIENCE, AND TRANS-
      the Internet is too important to carry                                                                           States also could lose revenues that they
                                                                     PORTATION ON JULY 31, 2003.
      its fair share of the taxes. I ask: Is ac-                                                                       currently collect on certain services, if those
                                                                                     SUMMARY                           services are redefined as Internet access
      cess to the Internet more important                            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-
                                                                   pact on the federal budget, but beginning in        mately affect state and local tax revenues is
        Unless we want to get rid of State
                                                                   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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      S13034                                             CONGRESSIONAL RECORD — SENATE                                                         October 22, 2003
                  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
                                                                                JOINT RESOLUTIONS OTHER THAN            mandate in the bill or joint resolution (or in
      grandfather clause that currently allows
                                                                                APPROPRIATIONS BILLS AND JOINT          any necessary implementing regulation)
      some state and local governments to collect                               RESOLUTIONS.
      taxes on Internet access. While there is some                                                                     would first be effective or in any of the 4 fis-
                                                                     (a) FEDERAL INTERGOVERNMENTAL MAN-                 cal years following such fiscal year, the Di-
      uncertainty about the number of jurisdic-
                                                                   DATES IN REPORTED BILLS AND RESOLU-                  rector shall so state, specify the estimate,
      tions currently collecting such taxes—and
                                                                   TIONS.—For each bill or joint resolution of a        and briefly explain the basis of the estimate.
      the precise amount of those collections—
                                                                   public character reported by any committee             (2) ESTIMATES.—Estimates required under
      CBO believes that as many as 10 states (Ha-
                                                                   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                                                                      complying with the Federal private sector
                                                                   lows:
      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-                                                                      RECT COSTS THRESHOLDS.—If the Director es-
                                                                   mandates in the bill or joint resolution;
      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
      for the purposes of estimating the direct                                                                         Director shall so state and shall briefly ex-
                                                                   thority for each fiscal year for a period not
      costs of the mandate, CBO considered only                                                                         plain the basis of the estimate.
                                                                   to exceed 10 years beyond the effective date
      the revenues from taxes that are currently                                                                          (d) AMENDED BILLS AND JOINT RESOLUTIONS;
                                                                   necessary for the direct cost of the intergov-       CONFERENCE REPORTS.—If a bill or joint reso-
      in place and actually being collected.                       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.
      currently subject to sales and use taxes.                    and how the States can offset the reduction          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-          the Senate or the House of Representatives
        ESTIMATED IMPACT ON THE PRIVATE SECTOR
                                                                   ings would offset the reductions in that pro-        to consider—
        This bill would impose no new private-sec-                 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,
                  ESTIMATE PREPARED BY:                            REPORTED BILLS AND JOINT RESOLUTIONS.—               motion, or conference report provides new
                                                                   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                                                                                  fiscal year for such mandates included in the
                                                                   Representatives, the Director of the Congres-
      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




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      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 in a conference report accom-                              AMENDMENT NO. 1894
      mandate, and—
        (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.
      sistent with the estimate determined under
                                                                                                                          The PRESIDING OFFICER. The
                                                                     Mr. WYDEN. Before the Senator from                 clerk will report.
      subsection (e) for each fiscal year;                         Tennessee leaves the floor, I say to him
        (ii) identifies any appropriations bill that                                                                      The legislative clerk read as follows:
      is expected to provide for Federal funding of
                                                                   I have my hands full today with spam
                                                                                                                          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
      whether there are insufficient appropriation                                                                      unanimous consent that reading of the
                                                                   Congressman COX in the other body. I
      for that fiscal year to provide for the direct                                                                    amendment be dispensed with.
                                                                   am always anxious to work with my                      The PRESIDING OFFICER. Without
      costs under clause (i) of such mandate, and
                                                                   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
                                                                                                                            (Purpose: To require warning labels on
      the determination and submit either—                         Freedom Act are identical to the ones
                                                                                                                             sexually explicit commercial e-mail)
        (aa) a statement that the agency has deter-                that were made 5 years ago. If we were
                                                                                                                          On page 51, after line 22, insert the fol-
      mined, based on a re-estimate of the direct                  to look at the transcript 5 years ago                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-               TAINING SEXUALLY ORIENTED MATERIAL.—
      pay for the direct costs of such mandate; or
        (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                                                                      sage that includes sexually oriented mate-
                                                                   through 5 years of experience, we have
      the consideration of the statement or legis-                                                                      rial and—
                                                                   not seen that to be the case. States and               (A) fail to include in subject heading for
      lative recommendations referred to in sub-                   localities have not been stripped of the
      clause (I) by Congress no later than 30 days                                                                      the electronic mail message the marks or
      after the statement or recommendations are
                                                                   revenue they need. Internet sales 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                                                                      recipient and absent any further actions by
                                                                   and that is all this law stands for is
      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               pursuant to paragraph (2), any such marks or
      day period;
        (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
      not yet taken effect, continue not to be ef-                                                                      material.
                                                                   out the reauthorization of the Internet                (2) PRESCRIPTION OF MARKS AND NOTICES.—
      fective unless Congress provides otherwise
      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                                                                          to inform the recipient of that fact and to fa-
                                                                     Again, we are hoping those with the                cilitate filtering of such electronic mail. The
      financial responsibilities of the original Fed-
      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                                                                   conduct (as that term is defined in section
      reported by the Committee on Appropria-
                                                                   tainly hoping that will be the case and              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



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      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.
      Internet today. There are sorely mis-                                                                               I share Chairman MCCAIN’s view that
                                                                   ally explicit commercial e-mail to reg-
      guided      individuals—spamers—whose                                                                             this is an extremely important issue.
                                                                   ulate interstate commerce by imposing
      sole mission is to e-mail as many peo-                                                                            When you think about spam, the first
                                                                   limitations and penalties on the trans-
      ple as possible, regardless of age, inde-                                                                         thing parents all over this country
                                                                   mission of unsolicited commercial elec-
      cent material. Internet users, espe-                                                                              think about is the flood that is being
                                                                   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



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      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.
        So I thank our staffs who have                             this    bill   becomes   law,    big-time                          AMENDMENT NO. 1895
      worked on this for so long. Without the                      spamming, in effect, becomes an out-
                                                                                                                         Mr. HARKIN. Madam President, I
      leadership of the Senator from Mon-                          law business. For the first time, the
                                                                                                                       send an amendment to the desk.
      tana, Mr. BURNS, and that of Senator                         kingpin spammers are going to be at
                                                                                                                         The PRESIDING OFFICER. The
      WYDEN, we would not have been able to                        risk of Federal prosecution, Federal
                                                                                                                       clerk will report.
      move this, after several hearings in the                     Trade Commission enforcement, mil-
                                                                                                                         The assistant legislative clerk read
      Commerce Committee, to the floor of                          lion-dollar lawsuits by State attorneys
                                                                                                                       as follows:
      the Senate. I have some confidence                           general and Internet service providers.
                                                                                                                         The Senator from Iowa [Mr. HARKIN], for
      that our friends on the other side of                        The reason that is the case is that big-
                                                                                                                       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-
        The PRESIDING OFFICER. The Sen-                                                                                with.
                                                                   leading subject lines, people are going
                                                                                                                         The PRESIDING OFFICER. Without
      ator from Montana is recognized.                             to go click and these garbage messages
        Mr. BURNS. Madam President, I as-                                                                              objection, it is so ordered.
                                                                   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
                                                                                                                         court reporters and closed captioners to
      ago we started on this, and it has blos-                     national cooperation and tough en-
                                                                                                                         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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      S13038                                             CONGRESSIONAL RECORD — SENATE                                                         October 22, 2003
      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                    (b) INFORMATION.—Information in the ap-            to meet such requirements for coursework
      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.
        (6) Empirical research demonstrates that                                                                          (c) ADMINISTRATIVE COSTS.—The recipient
                                                                   including how such training and assistance
      captions improve the performance of individ-                                                                      of a grant under section 3 may not use more
                                                                   will increase the number of realtime writers.
      uals learning to read English and, according                                                                      than 5 percent of the grant amount to pay
                                                                     (2) A description of performance measures
      to numerous Federal agency statistics, could                                                                      administrative costs associated with activi-
                                                                   to be utilized to evaluate the progress of in-
      benefit—                                                                                                          ties funded by the grant.
                                                                   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-                                                                      SEC. 6. REPORTS.
                                                                   will be employed and retained as realtime
      ment in programs that train court reporters                                                                         (a) ANNUAL REPORTS.—Each eligible entity
                                                                   writers.
      to become realtime writers has decreased                                                                          receiving a grant under section 3 shall sub-
                                                                     (4) A description of the manner in which
      significantly, causing such programs to close                                                                     mit to the National Telecommunications
                                                                   the eligible entity intends to continue pro-
      on many campuses.                                                                                                 and Information Administration, at the end
                                                                   viding the training and assistance to be
      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.—
        (a) IN GENERAL.—The National Tele-                           (5) A description of how the eligible entity
                                                                                                                          (1) IN GENERAL.—Each report of an entity
      communications and Information Adminis-                      will work with local workforce investment
                                                                                                                        for a year under subsection (a) shall include
      tration shall make competitive grants to eli-                boards to ensure that training and assistance
                                                                                                                        a description of the use of grant amounts by
      gible entities under subsection (b) to pro-                  to be funded with the grant will further local
                                                                                                                        the entity during such year, including an as-
      mote training and placement of individuals,                  workforce goals, including the creation of
                                                                                                                        sessment by the entity of the effectiveness of
      including individuals who have completed a                   educational opportunities for individuals
                                                                                                                        activities carried out using such funds in in-
      court reporting training program, as                         who are from economically disadvantaged
                                                                                                                        creasing the number of realtime writers. The
      realtime writers in order to meet the re-                    backgrounds or are displaced workers.
                                                                                                                        assessment shall utilize the performance
      quirements for closed captioning of video                      (6) Additional information, if any, of the
                                                                                                                        measures submitted by the entity in the ap-
      programming set forth in section 723 of the                  eligibility of the eligible entity for priority
                                                                                                                        plication for the grant under section 4(b).
      Communications Act of 1934 (47 U.S.C. 613)                   in the making of grants under section 3(c).            (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



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      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.
      captioning. This bill completes the                          Senate in debate, you will see real-                   Mr. HARKIN. Mr. President, I ask
      promise of that technology, affording                        time captioning coming across the                    unanimous consent to print in the
      deaf and hard of hearing Americans the                       screen. You see that on news programs                RECORD the cosponsors of the amend-
      same equality and access that cap-                           and sports programs. So it is engaging.              ment.
      tioning provides.                                              But we wanted real-time captioners                   There being no objection, the mate-
         Though we do not necessarily think                        so that deaf and hard-of-hearing people              rial was ordered to be printed in the
      about it, the morning of September 11                        around the country could watch tele-                 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
                                                                                                                          Senators Max Baucus [MT], Jeff Bingaman
      was captioning for Fox News. She was                         that by 2006 we wanted to have this                  [NM], Jim Bunning [KY], Saxby Chambliss
      supposed to do her three and a half                          done. Real-time captioning is a highly               [GA], Thad Cochran [MS], Michael D. Crapo
      hour shift ending at 8 a.m. but, as we                       trained skill that people have to have,              [ID], Christopher J. Dodd [CT], Russell D.
      all know, disaster struck. Despite the                       and it is estimated that it is going to              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],
      to care for, Holli Miller stayed right                         Madam President, right now there                   Blanche Lincoln [AR], Richard G. Lugar
      where she was and for nearly 5 more                          are only about 300 captioners nation-                [IN], Bill Nelson [FL], Harry M. Reid [NV],
                                                                                                                        Charles E. Schumer [NY], Gordon Smith
      hours continued to caption. Without                          ally. We only have 2 years to go before              [OR], Debbie Stabenow [MI], Evan Bayh [IN],
      even the ability to take bathroom                            the congressionally mandated deadline                John B. Breaux [LA], Conrad R. Burns [MT],
      breaks, Holli Miller made sure that                          of meeting this requirement. So, ear-                Hillary Rodham Clinton [NY], Larry E. Craig
      deaf and hard of hearing people got the                      lier this year, I introduced a bill, S.              [ID], Michael DeWine [OH], John Edwards
      same news the rest of us got on Sep-                         480, along with 40 cosponsors on both                [NC], Lindsey O. Graham [SC], James M. Jef-
      tember 11. I want to personally say                          sides of the aisle, providing for com-               fords [VT], Edward M. Kennedy [MA], Herb
      thank you to Holli Miller and all the                        petitive grants. These grants would go               Kohl [WI], Frank R. Lautenberg [NJ], Joseph
      many captioners and other people                             to authorize entities, accredited by                 I. Lieberman [CT], Trent Lott [MS], Patty
                                                                                                                        Murray [WA], Mark Lunsford Pryor [AR],
      across the country that made sure all                        their State education agencies, that                 Rick Santorum [PA], Jeff Sessions [AL],
      Americans were alert and informed on                         could then use these grants to fund                  Olympia J. Snowe [ME], Ron Wyden [OR].
      that tragic day.                                             programs to get scholarships for re-
         But let me emphasize that the deaf                                                                               Mr. REID. I move to reconsider the
                                                                   cruitment, training, and job placement
      and hard of hearing population is only                                                                            vote.
                                                                   to get this pipeline filled as soon as
      one of a number of groups that will                                                                                 Mr. MCCAIN. I move to lay that mo-
                                                                   possible     with      these    real-time
      benefit from this legislation. The audi-                                                                          tion on the table.
                                                                   captioners over the next couple of
      ence for captioning also includes indi-                                                                             The motion to lay on the table was
                                                                   years.
      viduals seeking to acquire or improve                                                                             agreed to.
                                                                     That is the amendment I have sent to
      literacy skills, including approxi-                                                                                 Mr. MCCAIN. Mr. President, Senator
                                                                   the desk. As I said, it has broad sup-
      mately 27 million functionally illit-                                                                             SANTORUM would like to speak about
                                                                   port. It is basically in the Commerce
      erate adults, 3 to 4 million immigrants                                                                           the Santorum-Enzi amendment, and
                                                                   Committee jurisdiction. I know with
      learning English as a second language,                                                                            then we will have the Corzine amend-
                                                                   the press of time, it wasn’t acted on
      and 18 million children learning to read                                                                          ment, which I will propose, and then
                                                                   this year. I thought this might be an
      in grades kindergarten through 3. In                                                                              we will be ready, I believe, for final
                                                                   appropriate place to put it. I think it
      addition, I see people using closed cap-                                                                          passage.
                                                                   will be widely supported by everybody.
      tioning to stay informed everywhere—                           I thank the ranking member and oth-                  I yield the floor.
      from the gym to the airport. Cap-                            ers for their positive reception of this               The PRESIDING OFFICER. The Sen-
      tioning helps people educate them-                           amendment on this bill.                              ator from Pennsylvania.
      selves and helps all of us stay informed                       The PRESIDING OFFICER (Mr. AL-                                   AMENDMENT NO. 1894
      and entertained when audio isn’t the                         EXANDER). The Senator from Arizona.                    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



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      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.
      briefly, I think the Senator from Penn-                      the quorum call be rescinded.                       GRAHAM of South Carolina, proposes an
      sylvania is trying to address a very im-                       The PRESIDING OFFICER. Without                    amendment 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-
                                                                   of the aisle and I urge its adoption.                         VIDING REWARDS FOR INFORMA-
      spam across the Internet, is a real pub-                                                                                   TION ABOUT VIOLATIONS; LABEL-
      lic scourge. We are interested in get-                         The PRESIDING OFFICER. Is there                             ING.
      ting the Senator’s amendment adopted.                        further debate on the amendment? If                   (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                                                                           of enactment of this Act, that sets forth a
                                                                   that we will commence this vote at
      words of encouragement. I encourage                                                                              system for rewarding those who supply infor-
                                                                   6:30. I hope by that time we would have
      them and would like their assurance                                                                              mation about violations of this Act, includ-
                                                                   the final writing of the Corzine amend-
      that this amendment, as it is adopted,                                                                           ing—
                                                                   ment, which I could propose at that                   (A) procedures for the Commission to grant
      will be held in conference. This is an
                                                                   time and have adopted since it is                   a reward of not less than 20 percent of the
      important issue that we need to deal
                                                                   agreed to by both sides. We are waiting             total civil penalty collected for a violation
      with, and I hope they will fight to
                                                                   for that. Is that correct?                          of this Act to the first person that—
      make sure this amendment—the House
                                                                     Mr. LOTT. Mr. President, will the                   (i) identifies the person in violation of this
      has a similar amendment, but I would                                                                             Act; and
                                                                   Senator yield?
      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.                                                                                           (B) procedures to minimize the burden of
                                                                   that the final passage be at 6:30?
        Mr. MCCAIN. Mr. President, I assure                                                                            submitting a complaint to the Commission
                                                                     The PRESIDING OFFICER. The Sen-                   concerning violations of this Act, including
      the Senator from Pennsylvania that we                        ator from Nevada.                                   procedures to allow the electronic submis-
      will do everything we can to hold it. I                        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,
      pornography that pops into view when                                                                             the use of the characters ‘‘ADV’’ in the sub-
                                                                   people, I am afraid. Senator WYDEN was
                                                                                                                       ject line, or other comparable identifier, or
      children are trying to do their home-                        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



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      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-
                                                                   to ignore the requirement. Indeed, although
      people who send fraudulent e-mail, e-                                                                            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:



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      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.



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      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
      hacking into another person’s com-                           nique for hiding identity that is a com-
                                                                                                                       respondents     considered    unsolicited
      puter system and sending bulk spam                           mon and pernicious alternative to do-
                                                                                                                       bulk e-mail, even from legitimate busi-
      from or through that system. This                            main name registration—hijacking un-
                                                                                                                       nesses, to be unwelcome spam. Given
      criminalizes the common spammer                              used expanses of Internet address space
                                                                                                                       this public opinion, and in light of the
      technique of obtaining access to other                       and using them as launch pads for junk
                                                                                                                       fact that spam is, in essence, cost-
      people’s e-mail accounts on an ISP’s e-                      e-mail. Hijacking Internet Protocol—
                                                                                                                       shifted advertising, we need to take a
      mail network, whether by password                            IP—addresses       is    not   difficult:
                                                                                                                       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.



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      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. ED-
      equally vague when subjected to judi-                        necessary. To protect computer users                 WARDS), the Senator from Hawaii (Mr.
      cial scrutiny.                                               in my State and across the country, we               INOUYE), and the Senator from Massa-
        There are also first amendment con-                        must take immediate steps to stem the                chusetts (Mr. KERRY) are necessarily
      cerns to regulating commercial elec-                         mountain of spam hitting email                       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:
      sexual activity.                                             prohibiting harvesting of email ad-                              [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
                                                                                                                        Akaka             Conrad          Hatch
      child’s exposure to sexually inappro-                        by prohibiting false and misleading                  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
                                                                   to increase the volume of their mes-                 Bond              Dole            Landrieu
      of the Internet.                                                                                                  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
                                                                                                                        Burns             Enzi            Lincoln
      ploration before a determination can                         and global nature of the internet,                   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-



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      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
      Reed               Shelby              Thomas
                                                                    fords an opportunity to develop skills               and D’Amato.
      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-
                                                                    ator SANTORUM and I have. He is a vig-               counting made an invaluable contribution to
        The PRESIDING OFFICER. The
                                                                    orous young man. He has a family, a                  the work of the Committee. Ira played a key
      clerk will call the roll.                                                                                          role in all of the key significant legislation
        The legislative clerk proceeded to                          wife and three children, residing in Fox
                                                                                                                         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-
                                                                                                                         nancial strength of the Federal Deposit In-
      objection, it is so ordered.                                       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.
                                                                                                                         from him.
                                                                      I was very fortunate to work with Ira
      ness, with Senators speaking for up to                                                                               Ira’s intellect and technical expertise
                                                                    during the 7 years he spent on Capitol               alone would have made him a wonderful
      10 minutes each.
                                                                    Hill as a staff member on the Senate                 asset to the Banking Committee staff. But
        The PRESIDING OFFICER. Without
                                                                    Banking Committee. He worked on the                  Ira’s contribution went well beyond that. Ira
      objection, it is so ordered.
                                                                    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
                                                                                                                         strength of convictions. Ira had strong be-
        Mr. SPECTER. Mr. President, it is                           the Banking Committee. His knowl-
                                                                                                                         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-                                                                                  stress when staff was required to work long
                                                                    memories of Ira as he accompanied me,
      leagues that he be confirmed. He has                                                                               hours due to the press of the legislative
                                                                    Senator Heinz, and my staff on a con-
      an outstanding academic record.                                                                                    schedule.
                                                                    gressional delegation to Europe in 1990
        Mr. Hardiman received his bachelor’s                                                                               The passing of Ira Paull is a loss for all of
                                                                    looking into European Community Fi-                  us. He was a bright light that shone on many
      degree, cum laude, from the University
                                                                    nancial Services issues.                             people, including myself. He will be missed
      of Notre Dame in 1987. He received his                          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                                                                                   mittee staff for a number of years, staffing
                                                                    that would bring a smile to everyone’s               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                                                                               days on the details. He was one of the few
                                                                    including my own staff, who valued his
      of Delegates. He served as a hearing of-                                                                           staff people that could actually do both.
                                                                    advice and counsel and cherished his                 Whether the explanation was a few minutes
      ficer for the Pennsylvania Disciplinary                       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
                                                                                                                         members with contrary positions to Ira’s
        As suggested by the dates of gradua-                        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




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      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,
                                                                   statute, the Supreme Court invalidated               when a woman has a life-threatening
      FDIC insurance would look at all of the ac-
      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-                                                                        continuing the pregnancy or providing
                                                                   imposes an undue burden on a woman’s
      cluded in the bill an amendment to look at
                                                                   ability to have an abortion. This case               life-saving treatment. These conditions
      each account separately and basically cover
      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                                                                             Now, I ask my colleagues, who could
      was nowhere to be found. Both Houses were
                                                                   health of the mother and providing
                                                                   only a narrowly defined life exception.              seriously object under these cir-
      set to adjourn right after the bill passed, but
      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                                                                          Unfortunately, the omission of this or
                                                                     During the Senate consideration of
      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.
                                                                   writing that continuation of the preg-                              f
      The Freedom National Bank situation hap-
      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.                                                                                                           there won’t be an opposition left in
                                                                   tions. S. 3, in contrast, will not prevent
                       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—
                                                                   not politicians?                                     rial was ordered to be printed in the
      preme Court affirmed for the first time
                                                                     The findings in S. 3 would have you                RECORD, as follows:
      a woman’s right to choose. This land-
                                                                   believe that this procedure is never                 AZERBAIJAN: GOVERNMENT LAUNCHES CRACK-
      mark decision was carefully crafted to                                                                              DOWN AFTER ELECTION, HUNDREDS OF OPPO-
      be both balanced and responsible while                       necessary to preserve the life or health
                                                                                                                          SITION MEMBERS ARRESTED
      holding the rights of women in Amer-                         of the mother and that in fact it poses
                                                                                                                          NEW YORK, October 22, 2003.—Azerbaijani
      ica paramount in reproductive deci-                          significant health risks to a woman.
                                                                                                                        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
                                                                   wanted pregnancy seriously threatens                 and local observers said was marred by wide-
      of Roe v. Wade, which maintained that
                                                                   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
                                                                   the pregnancy, which can result in                   without cause must be released immediately,
      which a woman’s life or health is en-
                                                                                                                        and those in custody should have access to
      dangered. And the Supreme Court re-                          death or untreatable heart disease; pre-             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




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      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
        Most of the arrests have occurred since Oc-                                                                     ate’s foremost experts on energy mat-
                                                                   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                                                                        8,000 South Dakota farm families are
                                                                   tional Institute for Democracy (NDI) have
      Azerbaijan Democratic Party (ADP), taken                                                                          connected to my State’s nine ethanol
                                                                   confirmed widespread fraud on election day.
      from his home on October 18 by armed                                                                              facilities. Implementing a Renewable
                                                                   According to many reports, the families of
      masked men; Igbal Agazadeh, chair of the
      Umid (‘‘Hope’’) Party, arrested on October
                                                                   opposition election officials who refused to         Fuels Standard, RFS, that signifi-
                                                                   sign forged protocols have also come under           cantly benefits this growing industry is
      17; Panah Huseinov, chair of the Khalq (‘‘Na-
                                                                   pressure and been victims of intimidation            more important than slapping together
      tion’’) Party, and a former prime minister of
                                                                   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.                                                                                                    of a broader energy bill.
                                                                   baijani authorities to immediately end the
        Most of the national leaders are being held                                                                       As I look at the list of Republican
                                                                   crackdown against members of the opposi-
      at the Organized Crime Unit of the Ministry                                                                       conferees serving on the energy con-
                                                                   tion. Human Rights Watch further urged the
      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-             excluding Democrats, such as Senators
      tainees, according to Human Rights Watch
                                                                   tigation into the violence plaguing the coun-        DORGAN, DASCHLE, and BAUCUS, that
      research. For details, please see Human
                                                                   try prior and subsequent to the election, and        the ethanol agreement constructed will
      Rights Watch briefing paper ‘‘Azerbaijan:
                                                                   to investigate and prosecute security offi-
      Presidential Elections 2003.’’                                                                                    not produce the long-term benefits
        The main opposition leader and presi-                      cials and others implicated in abuses. Urgent
                                                                   international action is needed to prevent a          South Dakota’s member-owned ethanol
      dential contender Isa Gambar, chair of the                                                                        facilities and farmers expect from this
      Musavat party, is under house arrest, and his                further decline in human rights conditions in
                                                                   Azerbaijan, Human Rights Watch stressed.             bill. This concern is not only shared by
      bodyguards have been detained. Several
      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
      fairs; and Mirbaba Babaev, a member of the                   election fraud. Election experts from the
                                                                   Council of Europe and OSCE should be part            the conference accept the Senate’s eth-
      Musavat supreme council.                                                                                          anol agreement that passed on a bipar-
        The campaign of arrest has also focused on                 of this commission.
      members of the ‘‘Our Azerbaijan’’ bloc, in-                    ‘‘Azerbaijan is giong through its most seri-       tisan vote of 68 to 28. Unfortunately,
      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



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      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-
      maintain the infrastructure needed for                                                                            ∑ Ms. STABENOW. Mr. President, I
                                                                   tious service. With integrity and an en-
      reliable and dependable service? The                                                                              call attention to a wonderful sporting
                                                                   gaging personal style, Dan consisently
      answers to these complicated questions                                                                            event that will be held Friday, Satur-
                                                                   exercised a remarkable talent for rec-
      lie within the closely guarded deals                                                                              day and Sunday in the city of Mar-
                                                                   onciling divergent points of view, and               quette in Michigan’s Upper Peninsula.
      agreed to by a handful of Senators and                       doing so in a way that resulted in mu-                 On those days the United States
      Congressman.                                                 tually acceptable outcome for all in-
        It is very important that the con-                                                                              Olympic Education Center will host
                                                                   volved, be it in the arena of legislation            World Cup speedskating at the Berry
      ferees have access to these agreements                       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                                                                                a sport that would bump football, golf
                                                                   Kirtland AFB to head up the resources-
      today to speak about the need for hate                                                                            or NASCAR from the prime Sunday
                                                                   planning division. Then in 1989, upon
      crimes legislation. On May 1, 2003, Sen-                                                                          afternoon viewing slot.
                                                                   the issuance of Defense Management
      ator KENNEDY and I introduced the                                                                                   Despite this media eclipse, however,
                                                                   Review Decision 916, which placed all
      Local Law Enforcement Enhancement                                                                                 speedskating remains as riveting as it
                                                                   Defense contract administration under
      Act, a bill that would add new cat-                                                                               was during the Olympics. Highly-
                                                                   DLA’s Defense Contract Management
      egories to current hate crimes law,                                                                               trained athletes still challenge both
                                                                   Command, Dan returned to the Wash-
      sending a signal that violence of any                                                                             gravity and centrifugal force on the
                                                                   ington, DC, area to serve as the direc-
      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-                                                                          150 of the world’s best speedskaters
                                                                   what Dan will best be remembered
      SHALL was a transgender individual,                                                                               from more than 25 countries will thrill
                                                                   for—his proficiency, acumen, and
      and dressed and lived as a woman. Po-                                                                             crowds of northern Michigan residents
                                                                   credibility as the congressional affairs
      lice have classified the second-degree                                                                            who know their winter sports, from
                                                                   impresario for DLA and DCMA, two of
      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                 boost to an area that has been sus-
      dents shot in the city in a six-day pe-
                                                                   1994, he has been a highly effective am-             tained many economic blows, and it
      riod in August.
        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-              Northern Michigan University, and I
      Enhancement Act is a symbol that can
                                                                   bility and sophistication, Dan estab-                praise them for their successful effort
      become substance. I believe that by
                                                                   lished and enjoyed a marvelous rapport               in matching this world-class event to
      passing this legislation and changing
                                                                   with Senate and House staff. Always                  an area that I have always considered
      current law, we can change hearts and
                                                                   responsive and informed, he consist-                 world-class in its natural beauty—
      minds as well.
                                                                   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-



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      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
                                                                                                                         Whereas, there is a growing ‘‘digital di-
      brating the 10th anniversary of its                          Montgomery County, and I want to                    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-                                                                             make access to the Internet less affordable
                                                                     These individuals are not only better
                                                                                                                       and therefore less available; and
      vides resources to low-income families                       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. Thes