CDT SUMMARY OF HOUSE ACTION ON TERRORISM BILL

October 12, 2001

"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." - Louis D. Brandeis, dissenting, Olmstead v. US, 277 US 438 (1928).

The bill on the House floor today (H.R. 3108) is largely the Senate bill, S. 1510, with a few provisions drawn from H.R. 2975 as approved unanimously by the House Judiciary Committee on October 3. (S. 1510 passed the Senate by a vote of 96-1 on Thursday night after debate was cut off.)

This new House bill resulted from negotiations brokered by House GOP leadership and Administration officials. Essentially, the brokered deal consisted of taking the Senate bill and incorporating some House provisions like sunset, sharing of grand jury information, and a few immigration subjects. Many carefully-crafted provisions from H.R. 2975 as marked-up by the Judiciary Committee are not included in the new bill because of the mandate to start with the Senate bill, negotiate over a few major issues, and then jettison House provisions that were not in the Senate bill.

The new House bill contains a 5 year sunset provision (three years plus the possibility of a two year extension), as opposed to the Judiciary Committee's 2 year sunset, for the electronic surveillance provisions. That and the absence from the House bill of the major money laundering proposal adopted in the Senate are the two major differences at this point between the House and the Senate.

Below is a description of the some of the major provisions of the new House bill.

Pen registers/ Trap & Trace for the Internet

Extends the pen register and trap and trace statute to the Internet, with broad language covering "dialing, routing, addressing and signaling information."

Includes language that prohibits capturing content, without defining what that means on the Internet.

Includes the "no technical mandates" language (Sec 222)

Includes what seems to be Carnivore audit trail language not previously seen in either bill (see new 3123(a)(3)(A) - p. 39)

Computer trespasser provision

Includes Senate language excluding from definition of computer trespasser those who have a preexisting contractual relationship with the computer system operator

Roving ("Multi-point") Wiretaps for FISA (Foreign Intelligence Surveillance Act)

Allows the FISA court to authorize taps of any phones or computers which a target may use. Does not include language proposed by Rep. Scott requiring gov't to focus surveillance on specific targeted persons.

Eliminates the requirement that FISA wiretaps be undertaken for the purpose of collecting foreign intelligence or counter-intelligence

Current FISA law requires that in order to obtain a FISA wiretap the Attorney General must certify that the gathering of foreign intelligence is the primary purpose of the investigation.

Allows FISA intercepts if foreign intelligence is a "significant" purpose, thus allowing FISA taps to be used for the express purpose of gathering criminal evidence.

Includes coordination language from Senate

Authorizes sharing criminal information with intelligence agencies

Permits providing criminal information (including wiretap and email intercepts and grand jury information) to intelligence agencies when it involves foreign intelligence or counterintelligence or "foreign intelligence information," a new defined term

Based on House Judiciary bill, permits disclosure of grand jury information followed by post-disclosure notification to the court of the agencies to which the information was provided.

Expands the ability to obtain business records in FISA investigations, without showing that they pertain to an agent of a foreign power

Lowers standard for FISA Pen Register / Trap & Trace and National Security Letters for certain records

To get authority for pen registers and trap & trace investigations, government need only certify to the FISA court that information sought is relevant to foreign intelligence investigation, without having to show that the information sought pertains to an agent of a foreign power

Same concept for issuance of national security letters for certain phone billing records, bank records, and credit records.

Secret Searches

Includes secret search provision that House Judiciary Comm had deleted

Disclosure of Educational Records

Includes provisions that House Judiciary Committee had deleted

Nationwide service of warrants for electronic evidence (content of e-mails) & search warrants for terrorism

New wiretap predicates from Senate bill, including felony violations of the federal hacker statute, 18 USC 1030

Modified Frank amendment on disciplinary proceedings and civil actions for improper disclosure of wiretap information

Amendments to Computer Fraud and Abuse Act, 18 USC 1030

Designation of one official within the office of the Inspector General to review information and receive complaints regarding abuses of civil rights and civil liberties

The new House bill does not contain the statutory exclusionary rule provision from the reported House Judiciary Committee bill, nor the requirement for reports concerning the disclosure of the contents of electronic communications.