[Congressional Record: April 21, 1999 (Senate)] [Page S4033-S4055] From the Congressional Record Online via GPO Access [wais.access.gpo.gov] [DOCID:cr21ap99-180] OTAY MOUNTAIN WILDERNESS ACT OF 1999 Mrs. FEINSTEIN. Mr. President, I rise today to introduce the Otay Mountain Wilderness Act of 1999. This bill would designate an 18,500 acre portion of the Otay Mountain region in Southern California as wilderness. The bill passed the House last week on a voice vote, with broad bi-partisan support. Otay Mountain, which is located near the U.S.-Mexico border in eastern San Diego County, is one of California's most special wild places. The mountain is a unique ecosystem, home to 20 sensitive plant and animal species. The endangered quino checkerspot butterfly calls Otay Mountain home, and the only known stand of Tecate cypress, as well as the only known population of the Mexican flannel bush, also thrive on the mountain. For these reasons, the U.S. Bureau of Land Management first recommended Otay Mountain for wilderness designation in the 1980s. In addition, Otay Mountain is key to San Diego County's habitat conservation planning efforts. The County has identified the region as a core reserve in the multi-species habitat conservation plan that it is currently developing. Otay Mountain is scenic, rugged, and beautiful. The area is well worth preserving as wilderness for generations to come. This bill will ensure that San Diegans, and indeed all Americans, will be able to experience and enjoy Otay Mountain in all its unique splendor. Unfortunately, in recent years Otay Mountain's sensitive habitat has been damaged by illegal immigration and narcotics activity in the area. The U.S. Bureau of Land Management has worked closely with the U.S. Border Patrol to bring these problems under control, and they have experienced great success. This legislation would specifically allow Border Patrol and firefighting activities to continue in the new wilderness area, so long as they remain in accordance with the 1964 Wilderness Act. This provision in the legislation is specific to Otay Mountain and will not apply to any other wilderness area. I want to thank Congressman Brian Bilbray for his leadership in introducing the Otay Mountain Wilderness Act and guiding it through the House of Representatives. I also want to thank Congressman Filner, who has been a steadfast supporter of the legislation, along with the Clinton Administration. The California Departments of Fish and Game and Fire and Forestry Protection support the bill, as do the Endangered Habitats League and other environmental groups. Finally, the bill has strong support from the San Diego County Board of Supervisors and the San Diego Association of Governments. Mr. President, I hope that the Senate will move expeditiously to approve the Otay Mountain Wilderness Act and send the bill to the President for signature. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record. There being no objection, the bill was ordered to be printed in the Record, as follows: S. 848 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Otay Mountain Wilderness Act of 1999''. SEC. 2. FINDINGS. Congress finds that-- (1) the public land in the Otay Mountain region of California is one of the last remaining pristine locations in western San Diego County, California; (2) this rugged mountain adjacent to the United States- Mexico border is internationally known for having a diversity of unique and sensitive plants; (3) this area plays a critical role in San Diego's multi- species conservation plan, a national model made for maintaining biodiversity; (4) due to the proximity of the Otay Mountain region to the international border, this area is the focus of important law enforcement and border interdiction efforts necessary to curtail illegal immigration and protect the area's wilderness values; and (5) the illegal immigration traffic, combined with the rugged topography, present unique fire management challenges for protecting lives and resources. SEC. 3. DEFINITIONS. In this Act: (1) Public land.--The term ``public land'' has the meaning given the term ``public lands'' in section 103 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702). (2) Secretary.--The term ``Secretary'' means the Secretary of the Interior. (3) Wilderness area.--The term ``Wilderness Area'' means the Otay Mountain Wilderness designated by section 4. SEC. 4. DESIGNATION. (a) In General.--In accordance with the Wilderness Act (16 U.S.C. 1131 et seq.), there is designated as wilderness and as a component of the National Wilderness Preservation System certain public land in the California Desert District of the Bureau of Land Management, California, comprising approximately 18,500 acres as generally depicted on a map entitled ``Otay Mountain Wilderness'' and dated May 7, 1998. (b) Otay Mountain Wilderness.--The area designated under subsection (a) shall be known as the Otay Mountain Wilderness. SEC. 5. MAP AND LEGAL DESCRIPTION. (a) In General.--As soon as practicable after the date of enactment of this Act, a map and a legal description for the Wilderness Area shall be filed by the Secretary with-- (1) the Committee on Energy and Natural Resources of the Senate; and (2) the Committee on Resources of the House of Representatives. (b) Force and Effect.--The map and legal description shall have the same force and effect as if included in this Act, except that the Secretary, as appropriate, may correct clerical and typographical errors in the map and legal description. (c) Availability.--The map and legal description for the Wilderness Area shall be on file and available for public inspection in the offices of the Director and California State Director of the Bureau of Land Management. (d) United States-Mexico Border.--In carrying out this section, the Secretary shall ensure that the southern boundary of the Wilderness Area is-- (1) 100 feet north of the trail depicted on the map referred to in subsection (a); and (2) not less than 100 feet from the United States-Mexico international border. SEC. 6. WILDERNESS REVIEW. All public land not designated as wilderness within the boundaries of the Southern Otay Mountain Wilderness Study Area (CA-060-029) and the Western Otay Mountain Wilderness Study Area (CA-060-028) managed by the Bureau of Land Management and reported to the Congress in 1991-- (1) have been adequately studied for wilderness designation under section 603 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1782); and (2) shall no longer be subject to the requirements contained in section 603(c) of that Act pertaining to the management of wilderness study areas in a manner that does not impair the suitability of those areas for preservation as wilderness. SEC. 7. ADMINISTRATION OF WILDERNESS AREA. (a) In General.--Subject to valid existing rights and to subsection (b), the Wilderness Area shall be administered by the Secretary in accordance with the Wilderness Act (16 U.S.C. 1131 et seq.), except that for the purposes of the Wilderness Area-- (1) any reference in that Act to the effective date of that Act shall be considered to be a reference to the effective date of this Act; and (2) any reference in that Act to the Secretary of Agriculture shall be considered to be a reference to the Secretary of the Interior. (b) Border Enforcement, Drug Interdiction, and Wildland Fire Protection.--Because of the proximity of the Wilderness Area to the United States-Mexico international border, drug interdiction, border operations, and wildland fire management operations are common management actions throughout the area encompassing the Wilderness Area. This Act recognizes the need to continue such management actions so long as such management actions are conducted in accordance with the Wilderness Act (16 U.S.C. 1131 et seq.) and are subject to such conditions as the Secretary considers appropriate. SEC. 8. FURTHER ACQUISITIONS. Any land within the boundaries of the Wilderness Area that is acquired by the United States after the date of enactment of this Act shall-- (1) become part of the Wilderness Area; and (2) be managed in accordance with this Act and other laws applicable to wilderness areas. SEC. 9. NO BUFFER ZONES. (a) In General.--The designation of the Wilderness Area by this Act shall not lead to the creation of protective perimeters or buffer zones outside the boundary of the Wilderness Area. (b) Nonwilderness Activities.--The fact that nonwilderness activities or uses can be seen or heard from areas within the Wilderness Area shall not, in and of itself, preclude nonwilderness activities or uses outside the boundary of the Wilderness Area. ______ By Mr. BINGAMAN: S. 849. A bill to amend the Public Health Service Act to provide grant programs for youth substance abuse prevention and treatment; to the Committee on Health, Education, Labor, and Pensions. [[Page S4034]] youth substance abuse prevention and treatment act Mr. Bingaman. Mr. President, I rise today to introduce the Youth Substance Abuse Prevention and Treatment Act. This bill is designed to increase access to drug prevention and treatment services for our nation's youth. It also provides for critical training of health care professionals who work tirelessly with young people with drug problems. Nationwide only 20% of the 648,000 youth with severe substance use or dependency receive treatment. The statistics tell the tale and it is an unacceptable story. Heroin use has doubled among teenagers in the 1990's. More than 50% of 12th graders have tried an illicit drug. In senior high schools across the country, 25% of students use an illicit drug on a monthly basis, and by the 12th grade, more than three-fourths of students have used alcohol, and over 30 percent are binge drinkers (more than five drinks at a sitting). By the time they are seniors, almost one in four teens are current marijuana users and 1 in 20 use every day and this number is on the rise. Studies have also indicated that youth who have used marijuana and other drugs in the past year were more likely than non-users to report problem behaviors including running away from home, stealing, skipping school, selling drugs, drunkdriving, and considering suicide. Over the past several months, I have had the opportunity to hear first hand about the drug problem in New Mexico and the barriers for providing services that confront health care professionals and families everyday. Drug use seems to be more common among youth in New Mexico than nationally. In fact, most underage teens in New Mexico drink alcohol; over one-third of seventh grade students and over three-fourths of 12th grade student reported drinking alcohol. Eighteen percent of 8th graders in New Mexico used illegal drugs other than marijuana in the past year compared to 12% nationally. In my state, ninth graders' illicit drug use has been increasing. This trend is of great concern because we also know that the younger people begin to use drugs or alcohol, the greater the chance they will continue to use drugs as adults. With drug and alcohol use come other problem behaviors, violence, property damage, and threatening behavior; and in New Mexico these behaviors occur at a greater frequency than the national rates. In fact, nationally, the majority of teens enter substance abuse treatment only after they have had contact with juvenile justice authorities. There is another significant problem confronting our nation. Illicit drug use among Native American youth is very high. According to Bureau of Indian Affairs officials, alcohol-related automobile accidents are the leading cause of death among Native American youth. We must address this issue. The Youth Substance Abuse Prevention and Treatment Act provides funds for: School-based community after-school prevention programs; schools and health providers working hand-in-hand with students and families to assure early identification and referral for at-risk students. This bill also provides funding for youth treatment and encourages the use of community-based wrap around services. This measure also includes special provisions for youth who live in rural areas as well as for Native Americans. These two youth populations are particularly suffering from a serious lack of prevention and treatment services. The Director of the National Institute of Drug Abuse, Dr. Alan Leschner has stated that addiction is a treatable disease. While there have been advances in the prevention and treatment of substance abuse, dissemination of this valuable and potentially life-saving information is not consistently getting out to grassroots health care providers. That is why this legislation also assists healthcare professionals in accessing the latest information on emerging drug threats and the most recent advances in prevention and treatment techniques. I am especially concerned with rural and remote areas where health care professionals may have to travel hours to attend a conference, many times on their limited time off. The evidence in support of prevention and treatment is overwhelming; both in social and economic terms. Several studies have demonstrated that for every dollar spent on drug treatment the community gets back anywhere from six to seven dollars in reduced crime, and other lowered social costs. For youth especially, we see improved school attendance, better grades, and a reduction in violent and other anti-social behaviors. There is one other benefit that is derived from adequately treating young people; when we help these young people, they are healthier and happier. We cannot forget the personal and family tragedy associated when youth are involved with drugs. I recognize that this bill does not provide the entire solution, but it is a necessary step in addressing this national problem. I am committed to solving the problem of inadequate access to drug prevention and treatment services for all young people. I welcome my colleagues to work with me to ensure that all American youth who need access to these services, have the opportunity to pursue their dreams and when they stumble, we are there as a community to help. That is what this bill is all about and I ask my colleagues for their support. Mr. President, I ask unanimous consent to have the text of the Youth Substance Abuse Prevention and Treatment Act printed in the Record. There being no objection, the bill was ordered to be printed in the Record, as follows: S. 849 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SEC. 1. SHORT TITLE. This Act may be cited as the ``Youth Substance Abuse Prevention and Treatment Act''. SEC. 2. GRANT PROGRAMS. Title V of the Public Health Service Act (42 U.S.C. 290aa et seq.) is amended by adding at the end the following: ``PART G--COMPETITIVE GRANT PROGRAMS FOR YOUTH SUBSTANCE ABUSE PREVENTION AND TREATMENT ``SEC. 581. GRANTS TO CONSORTIA. ``(a) In General.--The Secretary shall award grants on a competitive basis to eligible consortia to enable such consortia to establish the programs described in subsection (c). ``(b) Priority.--In awarding grants under subsection (a), the Secretary shall give priority to applications from eligible consortia that provide services in rural areas or for Native Americans. ``(c) Use of Funds.--An eligible consortium receiving amounts under subsection (a) shall use such amounts to establish school-based substance abuse prevention and student assistance programs for youth, including after school programs, to provide services that address youth substance abuse, including services that-- ``(1) identify youth at risk for substance abuse; ``(2) refer any youth at risk for substance abuse for substance abuse treatment; ``(3) provide effective primary prevention programing; ``(4) target underserved areas, such as rural areas; and ``(5) target populations, such as Native Americans, that are underserved. ``(d) Application.--An eligible consortium that desires a grant under subsection (a) shall submit an application to the Secretary at such time, in such manner, and containing such information as the Secretary may require. ``(e) Report.--Not later than 1 year after the date of enactment of this section and annually thereafter, an eligible consortium receiving a grant under subsection (a) shall submit to the Secretary a report describing the programs carried out pursuant to this section. ``(f) Definitions.--In this section: ``(1) Eligible consortium.--The term `eligible consortium' means an entity composed of a local educational agency and community-based substance abuse prevention providers and student assistance providers in which the agency and providers maintain equal responsibility in providing the services described in subsection (c). ``(2) Local educational agency.--The term `local educational agency' has the meaning given such term in section 14101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 8801). ``(g) Authorization of Appropriations.--There is authorized to be appropriated to carry out this section, $15,000,000 for each of fiscal years 2000 through 2004. ``SEC. 582. GRANTS TO TREATMENT FACILITIES. ``(a) In General.--The Secretary shall award grants on a competitive basis to inpatient and outpatient treatment facilities that provide the substance abuse treatment services described in subsection (d). [[Page S4035]] ``(b) Eligible Applicant.--To be eligible to receive a grant under subsection (a), a treatment facility must provide or propose to provide alcohol or drug treatment services for individuals under the age of 22 years. ``(c) Priority.--In awarding grants under subsection (a), the Secretary shall give priority to applications from treatment facilities that provide treatment services in rural areas, for Native Americans, or for underserved populations. ``(d) Use of Funds.--A treatment facility receiving amounts under subsection (a) shall use such amounts to provide substance abuse treatment services for youth, including community-based aftercare services that provide treatment for the period of time following an individual's discharge from a drug treatment center. ``(e) Application.--A treatment facility that desires a grant under subsection (a) shall submit an application to the Secretary at such time, in such manner, and containing such information as the Secretary may require. ``(f) Report.--Not later than 1 year after the date of enactment of this section and annually thereafter, a treatment facility receiving a grant under subsection (a) shall submit to the Secretary a report describing the services provided pursuant to this section. ``(g) Authorization of Appropriations.--There is authorized to be appropriated to carry out this section, $15,000,000 for each of the fiscal years 2000 through 2004. ``SEC. 583. GRANTS TO SUBSTANCE ABUSE PREVENTION AND TREATMENT PROVIDERS. ``(a) In General.--The Secretary shall award grants on a competitive basis to State and local substance abuse prevention and treatment providers to enable such providers to offer training to provide prevention and treatment services for youth. ``(b) Priority.--In awarding grants under subsection (a), the Secretary shall give priority to applications from areas in which-- ``(1) there is a demonstrated high rate of substance abuse by youth; and ``(2) the population is identified as underserved or the prevention and treatment providers in the area use distance learning. ``(c) Application.--A treatment provider that desires a grant under subsection (a) shall submit an application to the Secretary at such time, in such manner, and containing such information as the Secretary may require. ``(d) Report.--Not later than 1 year after the date of enactment of this section and annually thereafter, a treatment provider receiving a grant under subsection (a) shall submit to the Secretary a report describing the services provided pursuant to this section. ``(e) Authorization of Appropriations.--There is authorized to be appropriated to carry out this section, $2,000,000 for each of the fiscal years 2000 through 2004. ______ By Mrs. BOXER: S. 850. A bill to make schools safer by waiving the local matching requirement under the Community Policing program for the placement of law enforcement officers in local schools; to the Committee on the Judiciary. cops in schools act of 1999 Mrs. BOXER. Mr. President, today we are faced again with an tragedy in one of America's schools. There are many things that schools are and could be doing to prevent violence--and many ways the federal government could help. But, today, I am going to speak to just one of them. Under the COPS program--President Clinton's initiative to put 100,000 new police officers on our streets--local governments are required to provide 25 percent of the funding. But, the Attorney General has the authority to waive the local matching requirement for any reason. Last summer, I called on the Justice Department to establish a blanket waiver policy for any local community that wanted to place a law enforcement officer in a public school. To its credit, the Department has done so in some cases, and it says it will continue to do so on a case-by-case basis. But, Mr. President, that is not good enough. We need to tell our local communities that the local match will be waived, period, for any new police officer hired to be in the schools. I have again called on the Administration to establish such a waiver policy--and to tell our local communities about it. Just in case, however, I am also introducing legislation today--the COPS in Schools Act--to require a waiver. I am not advocating putting police officers in the schools just to patrol. Nor do I want people to think our schools are or should be jails or combat zones. Police officers in schools are important to work with school staff to develop anti-crime policies on campus, to implement procedures to ensure a safer school environment, and to reassure parents that a police officer is there to deal with those students that might cause problems. Children in public schools have a right to be safe, and it is our obligation to ensure their safety. It is as fundamental as the right to a free public education. Let's not wait for yet another tragedy to get adequate protection for America's school children. My bill is a small step, and it is not the only step we need to take. But, it can help to reduce the chance of more bloodshed at yet another school. ______ By Mr. CHAFEE (for himself and Mr. Moynihan) S. 851. A bill to allow Federal employees to take advantage of the transportation fringe benefit provisions of the Internal Revenue Code that are available to private sector employees; to the Committee on Governmental Affairs. FEDERAL EMPLOYEE FLEXIBILITY ACT OF 1999 Mr. CHAFEE. Mr. President, I rise today to introduce, with Senator Moynihan, the Federal Employee Flexibility Act of 1999, a bill that would provide flexibility and choices for Federal employees. This flexibility was provided to private sector employees in the Taxpayer Relief Act of 1997 and the Transportation Equity Act for the 21st Century (TEA 21). We believe that these provisions provide to employers and employees important new flexibility which should reduce single occupant vehicle trips from our highways and therefore contribute to reduced congestion, a cleaner environment, and increased energy conservation. The Taxpayer Relief Act of 1997 and the Transportation Equity Act for the 21st Century include significant changes to the way the Internal Revenue Code treats employer-provided transportation fringe benefits. Unfortunately, we have become aware that personnel compensation law for Federal employees restricts implementation of this new flexibility. Prior to enactment of these two bills, the Federal tax code provided that employer-provided parking is not subject to Federal taxation, up to $170 per month. However, this tax exemption was lost for all employees if the parking was offered in lieu of compensation for just one employee. In other words, if an employer gave just one employee a choice between parking and some other benefit (such as a transit pass, or increased salary), the parking of all other employees in the company became taxable. It goes without saying that no employers jeopardized a tax benefit for the overwhelming majority of their employees to provide flexibility to others. In effect, the tax code prohibited employers from offering their employees a choice. Parking was a take-it or leave- it benefit. The changes in these two laws make it possible for employers to offer their employees more choices by eliminating the take-it or leave-it restriction in the Federal tax code. Employees whose only transportation benefit is parking can now instead accept a salary enhancement, and find other means to get to work such as car pooling, van pooling, biking, walking, or taking transit. Unfortunately, Federal employees will not be able to benefit from the increased flexibility available to private sector employees, unless Federal compensation law is modified. Current Federal law provides that a Federal employee may not receive additional pay unless specifically authorized by law. Therefore, a Federal employee could not ``cash out'' a parking space at work, and instead receive cash or other benefits. To address this limitation for transit passes and similar benefits, the ``Federal Employees Clean Air Incentives Act'' enacted in 1993 allows the Federal government to provide transit benefits, bicycle services, and non-monetary incentives to employees. However, when this legislation was enacted, the Federal tax code prohibited the so-called ``cash out'' option discussed above, and therefore was not included in the list of transportation-related exemptions in that statute. The short and simple bill we introduce today would add ``taxable cash reimbursement for the value of an employer-provided parking space'' to the list of benefits that can be received by Federal employees. This bill is very similar to a bill Senator Moynihan and I sponsored in the 105th Congress, S. 2575 and H.R. 4777 sponsored in the House by Representatives Norton, Nadler, Morella, and [[Page S4036]] Moran. These same House colleagues are today introducing a bill identical to the bill we introduce today. Let me assure my colleagues and Federal employees that this bill would not require that Federal employees lose their parking spaces, as may be feared when there is discussion of Federal employee parking spaces. The bill simply provides Federal employees the same flexibility that is available to private sector employees. Employees who want to retain their tax-free parking space would be free to do so. We think it is vital that the Federal government show leadership on the application of new and innovative ways to solve our transportation and environmental problems. I hope that my colleagues will join me in supporting this bill and that we can act swiftly on it in this session of Congress. Mr. President, I ask that the text of the bill be inserted in the Record. There being no objection, the bill was ordered to be printed in the Record, as follows: S. 851 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. CASH PAYMENT TO FEDERAL EMPLOYEES FOR PARKING SPACES. (a) Short Title.--This Act may be cited as the ``Federal Employee Flexibility Act of 1999''. (b) In General.--Section 7905 of title 5, United States Code, is amended-- (1) in subsection (a)-- (A) in paragraph (2)(C) by inserting ``and'' after the semicolon; (B) in paragraph (3) by striking ``; and'' and inserting a period; and (C) by striking paragraph (4); and (2) in subsection (b)(2)-- (A) by amending subparagraph (A) to read as follows: ``(A) a qualified transportation fringe as defined in section 132(f)(1) of the Internal Revenue Code of 1986;''; (B) in subparagraph (B) by striking ``and'' after the semicolon; (C) in subparagraph (C) by striking the period and inserting a semicolon and ``and''; and (D) by adding at the end the following: ``(D) taxable cash payment to an employee in lieu of an agency-provided parking space.''. ______ By Mrs. FEINSTEIN: S. 852. A bill to award grants for school construction; to the Committee on Health, Education, Labor, and Pensions. excellence in education act of 1999 Mrs. FEINSTEIN. Mr. President, today I am introducing a bill to provide funds to build new schools. It is the Excellence in Education Act of 1999. The purpose of this bill is to (1) reduce the size of schools and (2) reduce the size of classes. The bill would create a 50-50 matching grant program to build new schools to meet the following size requirements: School size requirement: for kindergarten through 5th grade, not more than 500 students; for grades 6 through 8, not more than 750 students; and for grades 9 through 12, not more than 1,500 students. Class size requirement: for kindergarten through grade 6, not more than 20 students per teacher; for grades 7 through 12, not more than 28 students per teacher. The bill authorizes $5 billion each year for the next five years for the U.S. Department of Education to award grants to local school districts. School districts would have to match federal funds with an equal amount. In addition to making the above reductions, school districts would be required to terminate social promotion, provide remedial education and require that students be subject to state achievement standards in the core academic curriculum. Why do we need this bill? First, many of our schools are just too big, especially in urban areas. The ``shopping mall'' high school is all too common. ``It's not unusual to find high schools of 2,000, 3,000, or even 4,000 students and junior high schools of 1,500 or more, especially in urban school systems,'' writes Thomas Toch in the Washington Post. In these monstrous schools, the principal is just a disembodied voice over the public address system. Equally serious is the fact that our classes are too big. Even though we have begun to reduce class sizes in my state, California still has some of the largest class sizes in the U.S. The National Center for Education Statistics says California's classrooms have the highest pupil-teacher ratios in the nation. This bill will provide a new funding source for school districts or states to match to build new schools and reduce both school size and class size. There is no good estimate of how many schools would be needed to reduce schools and classes to the levels specified in the amendment, but we all know that there are many large schools and large classes in public education today. The U.S. Department of Education estimates that we need to build 6,000 new schools just to meet enrollment growth projections. This estimate does not take into account the need to cut class and school sizes. The needs are no doubt huge. My state that has some of the largest schools in the country. Our students are crammed into every available space, even in cafeterias and libraries. Today, 20 percent of our students are in portable classrooms. There were 63,000 relocatable classrooms in use in 1998. Here are some examples: High Schools: Roosevelt High School (Los Angeles), 4,902; Huntington Park High School, 4,275; Roosevelt High School, Fresno, 3,692; Berkeley High School, Berkeley, 3,025; and Mt. Carmel High School, San Diego, 3,279. Intermediate Schools: Clark Intermediate School, Clovis, 2,744 students; Gianni Middle School, San Francisco, 1,336; and O'Farrell Middle School, San Diego, 1,441. Elementary Schools: Rosa Parks Elementary School, San Diego, 1,423; Winchell Elementary School Fresno, 1,392; Zamorano Elementary School, San Diego, 1,424; and Kerman/Floyd Elementary School, Fresno, 1,000. California also has some of the largest classes sizes in the nation. In 1996-1997, California had the second highest teacher-pupil ratio in the nation, at 22.8 students per teacher. Fortunately since 1996, the state has significantly cut class sizes in grades K-3, but 15 percent or 300,000 of our K-3 students have not benefitted from this reform. And students above grade 3 have not been touched. Here are some examples of classes in my state: Fourth grade, statewide, 29 students; sixth grade, statewide, 29.5 students. National City Middle School San Diego, English and math, 34 to 36 students. Berryessa School District in San Jose--fourth grade, 32 students; eighth grade, 31 students. Long Beach and El Cajon School Districts, tenth grade English, 35 students. Santa Rosa School District--fourth grade, 32 students. San Diego City Schools, tenth grade biology, 38 students. Hoover Elementary and Knox Elementary in E. San Diego Elementary, grades 5 and 6, 31 to 33 students. Hoover High School 10th grade Algebra, 39 students. To add to the problem, California will have a school enrollment rate between 1997 and 2007 of 15.7 percent, triple the national rate of 4.1 percent. We will have the largest enrollment increase of all states during the next ten years. By 2007, our enrollment will have increased by 35.3 percent. To put it another way, California needs to build seven new classrooms a day at 25 students per class just to keep up with the surge in student enrollment. The California Department of Education says that we need to add about 327 schools over the next three years, just to keep pace with the projected growth. The cost of building a high school in California is almost twice the national cost. The U.S. average is $15 million; in California, it is $27 million. In California, our costs are higher than other states in part because our schools must be built to withstand earthquakes, floods, El Nino and a myriad of other natural disasters. California's state earthquake building standards add 3 to 4 percent to construction costs. Here's what it costs to build a schools in California: an elementary school (K-6), $5.2 million; a middle school (7-8), $12.0 million; a high school (9-12), $27.0 million. Studies show that student achievement improves when school and class sizes are reduced. [[Page S4037]] The American Education Research Association says that the ideal high school size is between 600 and 900 students. Study after study shows that small schools have more learning, fewer discipline problems, lower dropout rates, higher levels of student participating, higher graduation rates (The School Administrator, October 1997). The nation's school administrators are calling for more personalized schools. California's education reforms relied on a Tennessee study called Project STAR, in which 6,500 kindergartners were put in 330 classes of different sizes. The students stayed in small classes for four years and then returned to larger ones in the fourth grade. The test scores and behavior of students in the small classes were better than those of children in the larger classes. A similar 1997 study by Rand found that smaller classes benefit students from low-income families the most. Take the example of Sandy Sutton, a teacher in Los Angeles's Hancock Park Elementary School. She used to have 32 students in her second grade class. In the fall of 1997, she had 20. She says she can spend more time on individualized reading instruction with each student. She can now more readily draw out shy children and more easily identify slow readers early in the school year. The November 25, 1997, Sacramento Bee reported that when teachers in the San Juan Unified School Districts started spending more time with students, test scores rose and discipline problems and suspensions dropped. A San Juan teacher, Ralphene Lee, said, ``This is the most wonderful thing that has happened in education in my lifetime.'' A San Diego initiative to bring down class sizes found that smaller classes mean better classroom management; more individual instruction; more contact with parents; more time for team teaching; more diverse instructional methods; and a higher morale. Teachers say that students in smaller classes pay better attention, ask more questions and have fewer discipline problems. Smaller schools and smaller classes make a difference, it is clear. My state needs a total of $34 billion to build schools from 1998 to 2008. Of this, $26 billion is needed to modernize and repair existing schools and $8 billion is needed to build schools to meet enrollment growth. In November 1998, California voters approved state bonds providing $6.5 billion for school construction. California needs to build 7 new classrooms a day at 25 students per class between now and 2001 just to keep up with the growth in student population. By 2007, California will need 22,000 new classrooms. California needs to add about 327 schools over the next three years just to keep pace with the projected growth. Other bills in the Congress that I am supporting provide tax incentives for holders of school bonds to modernize old schools and we have many old schools. One third of the nation's 110,000 schools were built before World War II and only about one of 10 schools was built since 1980. More than one-third of the nation's existing schools are currently over 50 or more years old and need to be repaired or replaced. The General Accounting Office has said that nationally we need over $112 billion for construction and repairs to bring schools up to date. Big schools and big classes place a heavy burden on teachers and students. They can be a stressful learning environment. The American public supports increased federal funding for school construction. The Rebuild American Coalition last month announced that 82 percent of Americans favor federal spending for school construction, up from 74 percent in a 1998 National Education Association poll. Every parent knows the importance of a small class where the teacher can give individualized attention to a student. Every parent knows the importance of the sense of a school community that can come with a small school. I hope my colleagues will join me today in passing this important education reform. Mr. President, I ask unanimous consent that the text of the bill and a summary be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: S. 852 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Excellence in Education Act of 1999''. SEC. 2. DEFINITIONS In this Act: (1) Core curriculum.--The term ``core curriculum'' means curriculum in subjects such as reading and writing, language arts, mathematics, social sciences (including history), and science. (2) Elementary school; local educational agency; secondary school; secretary.--The terms ``elementary school'', ``local educational agency'', ``secondary school'' and ``Secretary'' have the meanings given the terms in section 14101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 8801). (3) Practice of social promotion.--The term ``practice of social promotion'' means a formal or informal practice of promoting a student from the grade for which the determination is made to the next grade when the student fails to meet State achievement standards in the core academic curriculum, unless the practice is consistent with the student's individualized education program under section 614(d) of the Individuals with Disabilities Education Act (20 U.S.C. 1414(d)). (4) Construction.-- (A) In general.--Subject to subparagraph (B), the term ``construction'' means-- (i) preparation of drawings and specifications for school facilities; (ii) building new school facilities, or acquiring, remodeling, demolishing, renovating, improving, or repairing facilities to establish new school facilities; and (iii) inspection and supervision of the construction of new school facilities. (B) Rule.--An activity described in subparagraph (A) shall be considered to be construction only if the labor standards described in section 439 of the General Education Provisions Act (20 U.S.C. 1232b) are applied with respect to such activity. (5) School facility.--The term ``school facility'' means a public structure suitable for use as a classroom, laboratory, library, media center, or related facility the primary purpose of which is the instruction of public elementary school or secondary school students. The term does not include an athletic stadium or any other structure or facility intended primarily for athletic exhibitions, contests, or games for which admission is charged to the general public. SEC. 3. AUTHORIZATION OF APPROPRIATIONS. There are authorized to be appropriated to carry out this Act $5,000,000,000 for each of the fiscal years 2000 through 2004. SEC. 4. PROGRAM AUTHORIZED. The Secretary is authorized to award grants to local educational agencies to enable the local educational agencies to carry out the construction of new public elementary school and secondary school facilities. SEC. 5. CONDITIONS FOR RECEIVING FUNDS. In order to receive funds under this Act a local educational agency shall meet the following requirements: (1) Reduce class and school sizes for public schools served by the local educational agency as follows: (A) Limit class size to an average student-to-teacher ratio of 20 to 1, in classes serving kindergarten through grade 6 students, in the schools served by the agency. (B) Limit class size to an average student-to-teacher ratio of 28 to 1, in classes serving grade 7 through grade 12 students, in the schools served by the agency. (C) Limit the size of public elementary schools and secondary schools served by the agency to-- (i) not more than 500 students in the case of a school serving kindergarten through grade 5 students; (ii) not more than 750 students in the case of a school serving grade 6 through grade 8 students; and (iii) not more than 1,500 students in the case of a school serving grade 9 through grade 12 students. (2) Terminate the practice of social promotion in the public schools served by the agency. (3) Require that students be subject to State achievement standards in the core curriculum at key transition points, to be determined by the State, for all kindergarten through grade 12 students. (4) Use tests and other indicators, such as grades and teacher evaluations, to assess student performance in meeting the State achievement standards, which tests shall be valid for the purpose of such assessment. (5) Provide remedial education for students who fail to meet the State achievement standards, including tutoring, mentoring, summer programs, before-school programs, and after-school programs. (6) Provide matching funds, with respect to the cost to be incurred in carrying out the activities for which the grant is awarded, from non-Federal sources in an amount equal to the Federal funds provided under the grant. SEC. 6. APPLICATIONS. (a) In General.--Each local educational agency desiring to receive a grant under this [[Page S4038]] Act shall submit an application to the Secretary at such time and in such manner as the Secretary may require. (b) Contents.--Each application shall contain-- (1) an assurance that the grant funds will be used in accordance with this Act; (2) a brief description of the construction to be conducted; (3) a cost estimate of the activities to be conducted; and (4) a description of available non-Federal matching funds. ____ Summary of the Excellence in Education Act of 1999 Funds authorized, purpose: Authorizes $20 billion over 5 years ($5 billion each year) for the U.S. Department of Education to award grants to local education agencies to construct new school facilities from fiscal year 2000 to 2004. Eligibility: Local education agencies as defined in 14101 of the Elementary and Secondary Education Act of 1965 (public schools). Use of funds: Local education agencies are authorized to use funds to construct new school facilities. Conditions for receiving funds: As a condition of receiving funds, local education agencies are required to-- Reduce school and class sizes as follows: Limit class size to-- In the elementary grades to an average student-teacher ratio of 20 to one. In grades 7 through 12 to an average student-teacher ratio of 28 to one. Limit school size to-- Elementary schools (K-5): no more than 500 students. Middle schools (6-8): no more than 750 students. High schools (9-12): no more than 1,500 students. Terminate the practice of social promotion; Require that students be subject to state academic achievement standards, to be determined by the states, for all K-12 students in the core curriculum, defined as subjects such as reading and writing, language arts, mathematics, social sciences (including history); and science; Test student achievement in meeting achievement standards periodically for advancement to the next grade, in at least three grades (such as the 4th, 8th and 12th grades), distributed evenly over the course of a student's education; Provide remedial education for students who fail to meet academic achievement standards, including tutoring, mentoring, summer, before-school and after-school programs; and Provide matching funds from non-Federal sources in an amount equal to the Federal funds provided under the grant. ______ By Mrs. FEINSTEIN: S. 853. A bill to assist local educational agencies to help all students achieve State achievement standards, to end the practice of social promotion, and for other purposes; to the Committee on Health, Education, Labor, and Pensions. STUDENT ACHIEVEMENT ACT OF 1999 Mrs. FEINSTEIN. Mr. President, today I am introducing legislation to end the practice of social promotion in our public schools and to provide remedial education to help students meet academic achievement standards. The Student Achievement Act of 1999 authorizes $500 million for five years for local school districts to provide extended learning time so that K-12 students can achieve. Social promotion is the formal or informal practice of promoting a student from grade to grade even when the student fails to achieve a level of achievement and proficiency in the core curriculum. To receive funds, schools would have to: Adopt a policy prohibiting social promotion; Require that students be subject to academic achievement standards in the core curriculum, defined as subjects such as reading, writing, language arts, mathematics, social sciences and science; Test student achievement in meeting standards at certain benchmarks, to be determined by the states; Provide remedial education; and Have substantial numbers of low-performing students. I am introducing this bill because I believe that the linchpin to educational reform is the elimination of the path of least resistance whereby students who are failing are simply promoted to the next grade in hopes that they will learn. The product of this practice of simply promoting youngsters when they are failing to adequately learn has produced a generation of young people who are below standard and high school graduates that cannot read or write, count change in their pockets or fill out an employment application. It is that bad. And my state is just about the worst. There's a steady stream of bad news. On March 5, we learned, yet again that California ranks second to last among 39 states in fourth-grade reading skills. Eighty percent of my state's fourth graders are not proficient readers. For eighth graders, California is 33rd out of 36 states and only 22 percent of California's eighth graders are proficient readers. On March 24, the San Francisco Chronicle reported that the state received a grade of D+ from the American Electronics Association for the quality and availability of an educated workforce. This conclusion is in the state that is the home of Silicon Valley, the premier high- tech area of the country, in a state that received an A for electronic commerce and is number one in high tech employment. But California does not have a school system that trains students well enough to work in the high-paying, skilled jobs available. These numbers are a stunning indictment of a failing system. It is time to end social promotion, a practice which misleads our students, their parents and the public. As long as social promotion exists and is widespread, youth who cannot read or write and who won't be able to find jobs in the future will continue to graduate from high school. I agree with the conclusion of the September 1997 study conducted by the American Federation of Teachers: ``Social promotion is an insidious practice that hides school failure and creates problems for everybody--for kids, who are deluded into thinking they have learned the skills to be successful or get the message that achievement doesn't count; for teachers who must face students who know that teachers wield no credible authority to demand hard work; for the business community and colleges that must spend millions of dollars on remediation, and for society that must deal with a growing proportion of uneducated citizens, unprepared to contribute productively to the economic and civic life of the nation.'' There is no hard data on the extent of social promotion in our public schools, but most authorities, in the schools and out, know that it is happening--and in fact, in some districts it is standard operating procedure. The September AFT study surveyed 85 of the nation's 820 largest school districts in 32 states, representing one-third of the nation's public school enrollment, about their promotion policies. Saying that social promotion is ``rampant,'' AFT leaders found that school districts' criteria for passing and retaining students is vague. Only 17 states have standards in the four core disciplines (English, math, social studies and science) that are well grounded in content and that are clear enough to be used. A January 14, 1998 Los Angeles Times article reported that four in 10 teachers said that their schools automatically promote students when they reach the maximum age for their grade level. None of the districts surveyed by AFT have an explicit policy of social promotion, but almost every district has an implicit practice of social promotion. Almost all districts view holding students back as a policy of last resort and many put explicit limits on retaining students. Districts have loose and vague criteria for moving a student from one grade to the next. This approach, concludes AFT, is implicit approval of social promotion. Last fall, thankfully, former California Governor Pete Wilson signed into law a bill to end social promotion. In July 1998, I wrote some of California's school districts and asked about their policy on social promotion. Here are some of the reports I got back: Some school districts did not have specific policies in place regarding social promotion. Exceptions to normal progression from one grade to another may be made when it is ``in the best interest of the student.'' Teachers may provide recommendations but final decisions on retention are made by the parent of the student. In other cases, school districts required students to earn 220 credits to receive a high school diploma so that the district feels that ``social promotion is not an issue.'' One school district believes that ``it is seldom desirable for a student to be retained by reason of achievement, maturity or attendance because research has shown that retention is likely to [[Page S4039]] have strong negative effects.'' Retention is therefore discouraged in the primary grades and prohibited thereafter. Here's another example: Dr. Rudy Crew, Chancellor of the New York City Schools, said in the January 25 New York Times that virtually every student is promoted from one grade to the next, regardless of performance on standardized tests. Mike Wright, a San Diegian, is an example. Cited in the February 16 San Diego Union-Tribune, Mr. Wright says he routinely got promoted from grade to grade and even graduated from high school, even though he failed some subjects. At age 29, he is now enrolled in a community college program to learn to read--at age 29! Here are some examples of the harm of social promotion: In California, a December 1997 report from a state education accountability task force estimated that at least half of the state's students--3 million children--perform below levels considered proficient for their grade level. A January 1998 poll by Public Agenda asked employers and college professors whether they believe a high school diploma guarantees that a student has mastered basic skills. In this poll, 63% of employers and 76 percent of professors said that the diploma is not a guarantee that a graduate can read, write or do basic math. Nationwide, about one third of college freshmen take remedial courses in college and three-quarters of all campuses, public and private, offer remediation, says the AFT study. A March 27 California State University study found that more than two-thirds of students entering Cal State campuses in Los Angeles lack the math or English they should have mastered in high school. At some high schools, not one graduate going on to one of Cal State's campuses passed a basic skills test. At Cal State Dominguez Hills, for example, 8 out of 10 freshmen enrollees last fall needed remedial English and 87 percent needed remedial math. Sadly, these numbers represent an increase. In the fall of 1997, 47 percent of freshmen enrolled at CSU needed remediation, compared to 43 percent in each of the previous three years. In math, 54 percent needed remedial help, compared to 48 percent in 1994. Similarly, almost 35 percent of entering freshmen at the University of California do poorly on UC's English proficiency test and must receive help in their first year. Florida spent $53 million in college on remedial education, says the AFT study. In Boston, school principals estimate that half their ninth graders are not prepared for high school work. In Ohio, nearly one fourth of all freshmen who attend state public universities must take remedial math or English (Cleveland Plain Dealer, July 7, 1997) Employers tell me that their new hires are unprepared for work and they have to provide very basic training to make them employable. For example, last year, MCI spent $7.5 million to provide basic skills training. Fortunately, many policymakers are beginning to realize that we must stop social promotion. President Clinton called for ending it in his last two State of the Union speeches. Last year, he said, ``We must also demand greater accountability. When we promote a child from grade to grade who hasn't mastered the work, we don't do that child any favors. It is time to end social promotion in America's schools.'' Last year, California's former Governor Pete Wilson, signed into law a bill to end social promotion in our public education system. The bill requires school districts to identify students who are failing based on their grades or scores on the new statewide performance tests. The schools would have to hold back the student unless their teachers submitted a written finding that the student should be allowed to advance to the next grade. In such a case, the teacher would be required to recommend remediation to get the student to the next level, which could include summer school or after-school instruction. Los Angeles Unified School District is currently working to develop a plan to end the practice of social promotion. Los Angeles Unified School Board plans to identify those students who are at risk of flunking and require them to participate in remedial classes. The alternative curriculum will stress the basics in reading, language arts and math, and special after-school tutoring. The district's plan would take effect in the 1999-2000 school year and target students moving in the third through sixth grades and into the ninth grade. In San Diego, the School Board adopted requirements that all students in certain grades must demonstrate grade-level performance. And they will require all students to earn a C overall grade average and a C grade in core subjects for high school graduation, effectively ending social promotion for certain grades and for high school graduation. For example, San Diego's schools are requiring that eighth graders who do not pass core courses be retained or pass core courses in summer school. At least three other states--Florida, Arkansas and Texas--explicitly outlaw social promotion. The Chicago Public Schools have ditched social promotion. After their new policy was put in place in the spring of 1997, over 40,000 students failed tests in the third, sixth, eight and ninth grades and then went to mandatory summer school. Chicago School Superintendent calls social promotion ``educational malpractice.'' He says from now on his schools' only product will be student achievement. Cincinnati's students are now promoted based on specific standards that define what students must know. The AFT study says: ``In most districts, there are no agreed-upon explicit standards of performance to which students are held accountable.'' Our schools need clear, specific achievement levels for the core academic disciplines for every student. Many states are developing those achievement levels or standards. California's Commission for the Establishment of Academic Content and Performance Standards is developing statewide, grade-by-grade academic standards. Without them, we will never know (1) what our students need to learn and (2) whether they have learned what they should learn. How, I ask, can you measure what you have accomplished if you don't know where you are going? Sixty-one percent of Californians agreed in 1998 that our schools need a ``major overhaul,'' up from 54 percent who answered the same question two years earlier. A mere six percent believe that schools provide a ``quality education.'' A poll by Policy Analysis for California Education found that only 17 percent of the public considers the state's schools ``good'' or ``excellent,'' down from about 33 percent three years ago. I hope my colleagues will join me today in stopping social promotion and providing remedial education because we must stop shortchanging our students. School achievement must mean something. It must mean more than filling up a seat at a desk for 12 years. A diploma should not just be a symbol of accumulating time in school. Social promotion is a cruel joke. We are fooling students. We are fooling ourselves. Students think a high school diploma means something. But in reality, a diploma does not mean much when we are graduating students who cannot count change, who cannot read a newspaper, or who cannot fill out an employment application. I hope this bill can help. Mr. President, I ask unanimous consent that the text of the bill and a summary be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: S. 853 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Student Achievement Act of 1999''. SEC. 2. REMEDIAL EDUCATION. (a) Grants Authorized.--The Secretary is authorized to award grants to high need, low-performing local educational agencies to enable the local educational agencies to carry out remedial education programs that enable kindergarten through grade 12 students who are failing or are at risk of failing to meet State achievement standards in the core academic curriculum. (b) Use of Funds.--Grant funds awarded under this section may be used to provide prevention and intervention services and [[Page S4040]] academic instruction, that enable the students described in subsection (a) to meet State achievement standards in the core academic curriculum, such as-- (1) implementing early intervention strategies that identify and support those students who need additional help or alternative instructional strategies; (2) strengthening instruction and learning by hiring certified teachers to reduce class sizes, providing high quality professional development, and using proven instructional practices and curriculum aligned to State achievement standards; (3) providing extended learning time, such as before school, after school, and summer school; and (4) developing intensive instructional intervention strategies for students who fail to meet the State achievement standards. (c) Applications.--Each local educational agency desiring to receive a grant under this section shall submit an application to the Secretary. Each application shall contain-- (1) an assurance that the grant funds will be used in accordance with subsection (b); and (2) a detailed description of how the local educational agency will use the grant funds to help students meet State achievement standards in the core academic curriculum by providing prevention and intervention services and academic instruction to students who are most at risk of failing to meet the State achievement standards. (d) Conditions for Receiving Funds.--A local educational agency shall be eligible to receive a grant under this section if the local educational agency or the State educational agency-- (1) adopts a policy prohibiting the practice of social promotion; (2) adopts a policy requiring that all kindergarten through grade 12 students be subject to State achievement standards in the core academic curriculum at key transition points (to be determined by the State), such as 4th, 8th, and 12th grades, before promotion to the next grade level; (3) uses tests and other indicators, such as grades and teacher evaluations, to assess student performance in meeting the State achievement standards at key transition points (to be determined by the State), which tests shall be valid for the purpose of such assessment; (4) provides remedial education to all students not meeting the State achievement standards; and (5) has substantial numbers of students who are low- performing students. (e) Definitions.--In this section: (1) Core academic curriculum.--The term ``core academic curriculum'' means curriculum in subjects such as reading and writing, language arts, mathematics, social sciences (including history), and science. (2) Local educational agency.--The term ``local educational agency'' has the meaning given the term in section 14101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 8801). (3) Practice of social promotion.--The term `practice of social promotion' means a formal or informal practice of promoting a student from the grade for which the determination is made to the next grade when the student fails to meet the State achievement standards in the core academic curriculum, unless the practice is consistent with the student's individualized education program under section 614(d) of the Individuals with Disabilities Education Act (20 U.S.C. 1414(d). (4) Secretary.--The term ``Secretary'' means the Secretary of Education. (f) Authorization of Appropriations.--There are authorized to be appropriated to carry out this section $500,000,000 for each of the fiscal years 2000 through 2004. ____ Summary of the Student Achievement Act of 1999 PROVIDING REMEDIAL EDUCATION & ENDING SOCIAL PROMOTION Remedial Education: Authorizes $500 million for each year, FY 2000 to 2004, to local education agencies for remedial education programs to enable K-12 students to meet achievement standards in the core academic curriculum. Eligibility: Local education agencies (school districts) as defined in current law (public schools). Use of funds: Authorizes school districts to use funds to provide academic instruction to enable students to meet academic achievement standards. Funds can be used to-- implement early intervention strategies for students at risk of failing; develop intensive instructional intervention strategies for low-performing students; hire certified teachers and provide professional development; provide extended learning time, such as before school, after school and summer school. Conditions for Receiving Remedial Education Funds: Requires school districts to-- adopt a policy prohibiting the practice of social promotion; require that all K-12 students be subject to achievement standards, to be determined by the states, in the core curriculum, defined as subjects such as reading and writing, language arts, mathematics, social sciences, including history; and science; and test student achievement in meeting standards at certain benchmarks, to be determined by the states, for advancement to the next grade, distributed evenly over the course of a student's education; and provide remedial education for students who fail to meet achievement standards; have substantial numbers of low-performing students. Social Promotion Defined: The ``practice of social promotion is defined as ``a formal or informal practice of promoting a student from the grade for which the determination is made to the next grade when the student fails to meet the state achievement standards in the core academic curriculum, unless the practice is consistent with the student's individualized education program under section 614(d) of the Individuals with Disabilities Education Act.'' ______ By Mr. LEAHY: S. 854. A bill to protect the privacy and constitutional rights of Americans, to establish standards and procedures regarding law enforcement access to location information, decryption assistance for encrypted communications and stored electronic information, and other private information, to affirm the rights of Americans to use and sell encryption products as a tool for protecting their online privacy, and for other purposes; to the Committee on the Judiciary. ELECTRONIC RIGHTS OF THE 21ST CENTURY ACT Mr. LEAHY. Mr. President, concern over privacy is reaching an all time high. In 1978, 64 percent of Americans reported that they were ``very concerned'' or ``somewhat concerned'' about threats to their personal privacy. By 1998, this number had skyrocketed. According to the Center for Social and Legal Research, 88 percent of Americans reported being ``very'' or ``somewhat concerned'' about threats to their personal privacy. We in Congress must take this concern seriously, and in this regard I look forward to examining the privacy issues confronting us in hearings before the Senate Judiciary Committee. Good privacy policies make good business policies. New technologies bring with them new opportunities, both for the businesses that develop and market them, and for consumers. It does not do anyone any good for consumers to hesitate to use any particular technology because they have concerns over privacy. That is why I believe that good privacy policies make good business policies. Protecting privacy plays an important role in the exercise of First Amendment rights. Ensuring that we have adequate privacy laws has a more significant and important role in our democracy than just fostering hi-tech businesses, however. We also must defend our on-line free speech rights from heavy-handed content regulation. That was my purpose in voting against the unconstitutional Communications Decency Act that became law in 1996. Stopping efforts to create government censors is critical to allow our First Amendment rights to flourish, but it is not enough. For people to feel comfortable in exercising their First Amendment rights-- by speaking, traveling and associating freely online or in physical space--they must be able to keep their activities confidential and private. When Big Brother is watching, the exercise of First Amendment rights is chilled no less than the threat of a government censor. It is therefore not surprising that our country has a long and honorable tradition of keeping our identities private when we exercise our First Amendment rights. The Federalist Papers, which is probably the most important political document ever written about our Constitution, was authored anonymously by James Madison, John Jay and Alexander Hamilton and published under a pseudonym. Healthy advocacy and debate often rests on the ability of participants to keep their identities private and to act anonymously. Indeed, the Supreme Court has said, ``Anonymity is a shield from the tyranny of the majority.'' Healthy commerce also depends on satisfying consumers' desire to keep their business affairs private and secure. A report I released last month on Vermont Internet commerce is very telling on this point. The strongest obstacle among consumers from shopping and doing business online was their fear of the online security risks. This is why promoting the use of encryption is so important, so that businesses and consumers can use this technology to provide the privacy and security they want and best suits their needs. The legislation I introduce today would help ensure that Americans' Fourth Amendment rights to be secure [[Page S4041]] in their persons, houses, papers and effects against unreasonable government searches and seizures are given ample protection in a networked computer environment. In addition, several provisions address the concern Americans have about the use and handling of their personally identifiable records and information by businesses, satellite carriers, libraries and book sellers. Industry self-regulation efforts should be encouraged. In contrast to a citizen's relationship with his or her government, consumers have a choice of whether they want to deal or interact with those in the private sector. In my view, this choice should be generally recognized in the law by allowing consumers and businesses in the marketplace to set the terms of their interaction. This is an area where the Congress should tread cautiously before regulating. Online businesses are engaging in serious efforts to make available to consumers information on privacy policies so that consumers are able to make more educated choices on whether they want to deal. I commend and applaud those efforts. That being said, however, current laws do not apply privacy principles in an even-handed manner. Video rental stores and cable operators are subject to privacy laws to protect our right to keep our viewing habits private, but no protections exist for the books we borrow from the library or buy from a bookstore, or the shows we watch via satellite. This bill would provide more uniform privacy protection for both books and videos, no matter the medium of delivery. Similarly, telephone companies and cable operators are subject to legal restrictions on how they may use personally identifiable information about their Internet subscribers, while other Internet and online service providers are not. The E-RIGHTS bill promotes a more level playing field in terms of the privacy protections available to Internet users, no matter whether they obtain their Internet access from AOL, their cable company or their local phone company. This legislation addresses a broad range of emerging hi-tech privacy issues. For example: When should the FBI be allowed to use cell phones to track a user's movements? Should Kosovo human rights organizations that use a Web site to correct government misinformation be able to get a domain name without having their names publicly available on a database? Should we have the same ability to get an ``unlisted'' domain name (or Internet address) as we are able to get an ``unlisted'' phone number? Should we allow other federal prosecutors to act like Special Prosecutor Kenneth Starr and go on fishing expeditions with subpoenas issued to bookstores to find out what we are reading? Should we protect our choices of reading and viewing materials the same way we protect our choice of videotapes that we rent from our local Blockbuster? Should an Internet user who maintains a calendar on Yahoo! get the same privacy protection as people who keep their calendars on their desk or on their PCs' hard-drive? Will people avoid certain network services offered by Netscape or new Internet start-ups because they get less privacy protection for the information stored on the network than on their own PCs? These are all important issues, and I have worked to propose solutions to each of these and to other questions, as well, in the E- RIGHTS bill. This bill has the following four titles: Title I: Privacy Protection for Communications and Electronic Information. This title has ten sections that propose certain Fourth Amendment protections to guide the government's access to, or exercise of, law enforcement's enhanced surveillance capabilities due to new technologies. In addition, this title also contains sections that limit how domain name registrars and Internet/Online service providers may use information collected on Internet users. Network Stored Information.--The bill would require that law enforcement give a subscriber notice of a subpoena or warrant before seizing electronic information stored on a network service. This is the same notice that the subscriber would get if the information were stored on his or her own computer. Cell Phone Location Information.--Before law enforcement may use a person's cell phone as a tracking device, the bill would require a court order based on probable cause that the person is committing a crime. A related provision that has already passed the House in February as part of the ``Wireless Communications and Public Safety Act of 1999,'' H.R. 438, would require wireless phone providers to inform a cell phone user's family and emergency services of their location in emergency situations, while requiring the prior customer consent before that location information may be used for any other purpose. Pen Registers.--The bill would authorize a judge to review information presented by a federal prosecutor to determine whether the pen register is likely to produce information relevant to an ongoing criminal investigation, since under current law the judge plays only a ministerial role and must approve any order upon presentation by a prosecutor. Current law compels judges to be only a rubber stamp. Conference Calls.--The FBI has claimed that the Communications Assistance for Law Enforcement Act (CALEA) requires that they be given the capability to monitor conference calls which continue even after the target of a wiretap order has dropped out of the call. This provision would require that a court authorize such continued monitoring of conference calls in the absence of the target. Roving Wiretaps.--A substantial change that provides easier access to roving wiretaps was inserted without debate or hearings into last year's Intelligence Authorization Act. With this change, the FBI is able to get a roving wiretap whenever a person's action could have the effect of thwarting interception. The bill would rectify this change to permit roving wiretaps only when the person actually changes phones in a way which has the effect of thwarting surveillance. Domain Name Registrars.--Internet users or businesses who get an Internet address with a second level domain name must also provide information about contact names, physical and E-mail addresses, network location, and other information that is posted in a publicly available database called WHOIS. The bill would give users registering for a domain name/Internet address authority to prohibit disclosure of the information, and keep the information confidential. Of course, the registrar would be able to override the user's choice of confidentiality and to disclose the information as necessary to provide service or in response to a subpoena or court order. Internet users who want an ``unlisted'' Internet address just as they have the choice of getting an ``unlisted'' telephone number will be able to do so. Internet and Online Service Providers.--The 1986 Electronic Communications Privacy Act (ECPA) set up procedures for law enforcement to obtain records about subscribers from ``electronic communication service providers'', but contained a blanket exemption allowing such providers to disclose a record or other information pertaining to a subscriber or customer to any non-governmental entity. Due to this exemption, ISPs and OSPs may sell their subscriber lists or track the online movements of their subscribers and sell that information--all without the subscribers' knowledge or consent. The bill would cut back on this blanket exemption. The bill would require electronic communication service providers to give their subscribers an opportunity to prohibit disclosure of their personal information, and enumerates the situations in which the information may be used or disclosed without the subscriber's approval. These proposed rules are generally analogous to restrictions already in place for other providers of Internet services, including cable operators and phone companies, which are restricted in how they may use personally identifiable information about customers without the customers' approval. No criminal penalties attach for violation. ECPA currently authorizes an aggrieved person to bring a civil action. Title II: Promoting the Use of Encryption. This title contains three sections: (1) prohibiting domestic controls on encryption and government- [[Page S4042]] compelled key escrow encryption; (2) requiring encryption products used by federal agencies to interoperate with commercial encryption products; and (3) adding a chapter to the federal criminal code detailing procedures to law enforcement and foreign government access to decryption assistance. Specifically, the bill would require the release of decryption keys or assistance to law enforcement in response to a court order based upon a finding that the key or assistance is necessary to decrypt lawfully intercepted encrypted messages or data. Title III: Privacy Protection for Library Loan and Book Sales Records. This title would extend the privacy protection in current law for video rental and sale records to library loan and book sale records. Library.--The library provisions are a reprise of sections that were dropped from the Video Privacy Protection Act enacted in 1988. This provision would prohibit libraries from disclosing personally identifiable information about patrons without the written consent of the patron or in response to a court order to release the information to a law enforcement agency, with prior notice to the patron, if there is probable cause to believe a crime is being committed and the information sought is material to the investigation. Booksellers.--The public outcry over Independent Counsel Kenneth Starr's subpoena in March 1988 to Kramerbooks & Afterwords for any books purchased by Monica Lewinsky, and the potential threat such government fishing expeditions pose to First Amendment rights, prompted examination of the privacy rules protecting the records maintained by bookstores. There are no rules barring book sellers from disclosing records about their customers. This section would impose the same nondisclosure rules on booksellers--whether online or in physical spaces--that apply to video rental stores. Generally, book sellers would be barred from disclosing personally identifiable information concerning a book purchaser without that purchasers' written consent given at the time the disclosure is sought. Title IV: Privacy Protection for Satellite Home Viewers. In the 1984 Cable Act, Congress established a nationwide standard for the privacy protection of cable subscribers. Since the Cable Act was adopted, an entirely new form of access to television has emerged--home satellite viewing--which is especially popular in rural areas not served by cable. Yet there is no statutory privacy protection for information collected by home satellite viewing services about their customers or subscribers. This title fills this gap by amending the privacy provisions of the Cable Act to cover home satellite viewing. The amendments do not change the rules governing access to cable subscriber information. Instead, they merely add the words ``satellite home viewing service'' and ``satellite carrier or distributor'' where appropriate. The amendment does not address another inconsistency in the law, which bears mentioning: should a cable company that provides Internet services to its customers be subject to the privacy safeguards in the Cable Act or in the Electronic Communications Privacy Act (ECPA), which normally applies to Internet service providers and contains obligations regarding the disclosure of personally identifiable information to both governmental and nongovernmental entities different from those in the Cable Act? One court has described this as a ``statutory riddle raised by the entrance of cable operators into the Internet services market.'' New technologies and new uses for old technologies pose challenging ``riddles'' for privacy, but they are solvable in ways that balance competing commerce, civil rights, and law enforcement interests. The E- RIGHTS bill proposes balanced solutions that protect our privacy rights. I invite others to share their ideas on these matters. There are few matters more important than privacy in maintaining our core democratic values, so I look forward to hearing their comments on ways to improve this legislation. I ask unanimous consent that the E-RIGHTS bill and the sectional analysis be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: S. 854 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) Short Title.--This Act may be cited as the ``Electronic Rights for the 21st Century Act''. (b) Table of Contents.--The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Purposes. Sec. 3. Findings. Sec. 4. Definitions. TITLE I--PRIVACY PROTECTION FOR COMMUNICATIONS AND ELECTRONIC INFORMATION Sec. 101. Enhanced privacy protection for information on computer networks. Sec. 102. Government access to location information. Sec. 103. Enhanced privacy protection for transactional information obtained from pen registers and trap and trace devices. Sec. 104. Privacy protection for conference calls. Sec. 105. Enhanced privacy protection for packet networks, including the Internet. Sec. 106. Privacy safeguards for information collected by Internet registrars. Sec. 107. Reports concerning governmental access to electronic communications. Sec. 108. Roving wiretaps. Sec. 109. Authority to provide customer location information for emergency purposes. Sec. 110. Confidentiality of subscriber information. TITLE II--PROMOTING USE OF ENCRYPTION Sec. 201. Freedom to use encryption. Sec. 202. Purchase and use of encryption products by the Federal Government. Sec. 203. Law enforcement decryption assistance. TITLE III--PRIVACY PROTECTION FOR LIBRARY LOAN AND BOOK SALE RECORDS Sec. 301. Wrongful disclosure of library loan and book sale records. TITLE IV--PRIVACY PROTECTION FOR SATELLITE HOME VIEWERS Sec. 401. Privacy protection for subscribers of satellite television services for private home viewing. SEC. 2. PURPOSES. The purposes of this Act are-- (1) to promote the privacy and constitutional rights of individuals and organizations in networked computer systems and other digital environments, protect the confidentiality of information and security of critical infrastructure systems relied on by individuals, businesses and government agencies, and properly balance the needs of law enforcement to have the access to electronic communications and information in appropriate circumstances; (2) to encourage Americans to develop and deploy encryption technology and to promote the use of encryption by Americans to protect the security, confidentiality, and privacy of their lawful wire and electronic communications and stored electronic information; and (3) to establish privacy standards and procedures by which investigative or law enforcement officers and foreign governments may obtain decryption assistance for encrypted communications and stored electronic information. SEC. 3. FINDINGS. Congress finds that-- (1) the digitization of information and the explosion in the growth of computing and electronic networking offers tremendous potential benefits to the way Americans live, work, and are entertained, but also raises new threats to the privacy of the American people and the competitiveness of American businesses; (2) a secure, private, and trusted national and global information infrastructure is essential to promote economic growth, protect privacy, and meet the needs of the American people and businesses; (3) the rights of Americans to the privacy and security of their communications and in the conducting of personal and business affairs should be promoted and protected; (4) the authority and ability of investigative and law enforcement officers to access and decipher, in a timely manner and as provided by law, wire and electronic communications, and stored electronic information necessary to provide for public safety and national security should also be preserved; (5) individuals will not entrust their sensitive personal, medical, financial, and other information to computers and computer networks unless the security and privacy of that information is assured; (6) businesses will not entrust their proprietary and sensitive corporate information, including information about products, processes, customers, finances, and employees, to computers and computer networks unless the security and privacy of that information is assured; (7) America's critical infrastructures, including its telecommunications system, banking and financial infrastructure, and power and transportation infrastructure, increasingly rely on vulnerable information [[Page S4043]] systems, and will represent a growing risk to national security and public safety unless the security and privacy of those information systems is assured; (8) encryption technology is an essential tool to promote and protect the privacy, security, confidentiality, integrity, and authenticity of wire and electronic communications and stored electronic information; (9) encryption techniques, technology, programs, and products are widely available worldwide; (10) Americans should be free to use lawfully whatever particular encryption techniques, technologies, programs, or products developed in the marketplace that best suits their needs in order to interact electronically with the government and others worldwide in a secure, private, and confidential manner; (11) government mandates for, or otherwise compelled use of, third-party key recovery systems or other systems that provide surreptitious access to encrypted data threatens the security and privacy of information systems; (12) a national encryption policy is needed to advance the development of the national and global information infrastructure, and preserve the right to privacy of Americans and the public safety and national security of the United States; (13) Congress and the American people have recognized the need to balance the right to privacy and the protection of the public safety with national security; (14) the Constitution of the United States permits lawful electronic surveillance and the use of other investigative tools by law enforcement officers and the seizure of stored electronic information only upon compliance with stringent standards and procedures designed to protect the right to privacy and other rights protected under the fourth amendment of the Constitution of the United States; (15) there is a need to clarify the standards and procedures by which investigative or law enforcement officers obtain decryption assistance from persons-- (A) who are voluntarily entrusted with the means to decrypt wire and electronic communications and stored electronic information; or (B) have information that enables the decryption of such communications and information; (16) Americans are increasingly shopping online and purchasing books from online vendors, and expect that their choices of reading or viewing materials will be kept confidential; (17) protecting the confidentiality and privacy of the books, other written materials, and movies that a person chooses to read or view should be protected to ensure the free exercise of first amendment rights regardless of medium; (18) generally, under current law, telecommunications carriers may not disclose individually identifiable customer proprietary network information without their customers' approval, while providers of electronic communications services and remote computing services may make such disclosure to anyone other than a governmental entity and have no legal obligation to notify their subscribers when they do so; (19) subscribers of Internet services through facilities of cable operators must be given notice and an opportunity to prohibit disclosure before the cable operator may disclose any personally identifiable information, including name or address, about a subscriber to any other person, while providers of electronic communications services and remote computing services have no similar legal obligation to protect the privacy of their subscribers; and (20) given the convergence among wireless, wire line, cable, broadcast, and satellite services, privacy safeguards should be applied more uniformly across different media in order to provide a level competitive playing field and consistent privacy protections. SEC. 4. DEFINITIONS. In this Act: (1) Agency.--The term ``agency'', in the case of the United States Government, has the meaning given the term in section 6 of title 18, United States Code, and includes the United States Postal Service. (2) Encrypt; encryption.--The terms ``encrypt'' and ``encryption'' refer to the scrambling (and descrambling) of wire communications, electronic communications, or electronically stored information using mathematical formulas or algorithms in order to preserve the confidentiality, integrity, or authenticity of, and prevent unauthorized recipients from accessing or altering, such communications or information. (3) Encryption product.--The term ``encryption product'' means a computing device, computer hardware, computer software, or technology with encryption capabilities. (4) Key.--The term ``key'' means the variable information used in or produced by a mathematical formula, code, or algorithm, or any component thereof, used to encrypt or decrypt wire communications, electronic communications, or electronically stored information. (5) Person.--The term ``person'' has the meaning given the term in section 2510(6) of title 18, United States Code. (6) State.--The term ``State'' includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States. (7) United states person.--The term ``United States person'' means any-- (A) national of the United States; or (B) legal entity that-- (i) is organized under the laws of the United States or any State; and (ii) has its principal place of business in the United States. TITLE I--PRIVACY PROTECTION FOR COMMUNICATIONS AND ELECTRONIC INFORMATION SEC. 101. ENHANCED PRIVACY PROTECTION FOR INFORMATION ON COMPUTER NETWORKS. Section 2703(b) of title 18, United States Code, is amended by striking paragraph (1) and inserting the following new paragraph (1): ``(1) In general.--A governmental entity may require a provider of remote computing service to disclose the contents of any electronic communication to which this paragraph is made applicable by paragraph (2)-- ``(A) pursuant to a warrant issued under the Federal Rules of Criminal Procedure or equivalent State warrant, a copy of which warrant shall be served on the subscriber or customer of such remote computing service before or at the same time the warrant is served on the provider of the remote computing service; or ``(B) pursuant to a Federal or State grand jury or trial subpoena, a copy of which subpoena shall be served on the subscriber or customer of such remote computing service under circumstances allowing the subscriber or customer a meaningful opportunity to challenge the subpoena.''. (b) Conforming Amendments.--Paragraph (2) of that section is amended-- (1) by indenting the paragraph 2 ems; (2) by inserting ``Applicability.--'' after ``(2)''; and (3) by indenting subparagraphs (A) and (B) 4 ems. SEC. 102. GOVERNMENT ACCESS TO LOCATION INFORMATION. (a) Court Order Required.--Section 2703 of title 18, United States Code, is amended by adding at the end the following: ``(g) Disclosure of Location Information to Governmental Entities.-- ``(1) Disclosure upon court order.--A provider of mobile electronic communication service shall provide to a governmental entity information generated by and disclosing the current physical location of a subscriber's equipment only if the governmental entity obtains a court order issued upon a finding that there is probable cause to believe that the equipment has been used, is being used, or is about to be used to commit a felony offense. ``(2) Disclosure upon subscriber or user consent.--A provider of mobile electronic communication service may provide to a governmental entity information described in paragraph (1) with the consent of the subscriber or the user of the equipment concerned.''. (b) Conforming Amendment.--Subsection (c)(1)(B) of that section is amended by striking ``(b) of this section'' and inserting ``(b), or wireless location information covered by subsection (g)''. SEC. 103. ENHANCED PRIVACY PROTECTION FOR TRANSACTIONAL INFORMATION OBTAINED FROM PEN REGISTERS AND TRAP AND TRACE DEVICES. Section 3123(a) of title 18, United States Code, is amended to read as follows: ``(a) In General.--Upon an application made under section 3122, the court may enter an ex parte order-- ``(1) authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court if the court finds, based on the certification by the attorney for the government or the State law enforcement or investigative officer, that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation; and ``(2) directing that the use of the pen register or trap and trace device be conducted in such a way as to minimize the recording or decoding of any electronic or other impulses that are not related to the dialing and signaling information utilized in call processing by the service provider upon whom the order is served.''. SEC. 104. PRIVACY PROTECTION FOR CONFERENCE CALLS. Section 2518 of title 18, United States Code, is amended by adding at the end the following: ``(13) The interception of wire or electronic communications pursuant to an order under this section must be terminated when the facility identified in the order authorizing such interception is no longer being used, unless the judge determines on the basis of facts submitted by the applicant that there is probable cause to believe that an individual continuing as a party to the communication is committing, has committed, or is about to commit a particular offense enumerated in the order and there is probable cause to believe that particular communications concerning that offense will be obtained through such continuing interception.''. SEC. 105. ENHANCED PRIVACY PROTECTION FOR PACKET NETWORKS, INCLUDING THE INTERNET. Section 3121(c) of title 18, United States Code, is amended by striking ``other impulses'' and all that follows and inserting ``other impulses-- ``(1) to the dialing and signaling information utilized in call processing; or ``(2) in the case of a packet-switched network, to the addressing information.''. [[Page S4044]] SEC. 106. PRIVACY SAFEGUARDS FOR INFORMATION COLLECTED BY INTERNET REGISTRARS. (a) In General.--Section 2703 of title 18, United States Code, as amended by section 102(a) of this Act, is further amended by adding at the end the following: ``(h) Records Concerning Domain Name Registration Service.--A provider of domain name registration service may disclose a record or other information pertaining to a subscriber or customer of such service-- ``(1) to any person-- ``(A) if the provider has provided the subscriber or customer, in a clear and conspicuous manner, the opportunity to prohibit such disclosure; ``(B) in the case of information that identifies the service provider hosting the website of the subscriber or customer; or ``(C) to the extent such disclosure is necessary incident to the provision of such service or for the protection of the rights or property of the provider of such service; or ``(2) without notice or consent of the subscriber or customer in response to a subpoena or warrant authorized by a Federal or State statute.''. (b) Domain Name Registration Service Defined.--Section 2711 of such title is amended-- (1) in paragraph (1), by striking ``and'' at the end; (2) in paragraph (2), by striking the period at the end and inserting ``; and''; and (3) by adding at the end the following: ``(3) the term `domain name registration service' means a service to the public for the assignment and management of domain names and Internet Protocol addresses.''. SEC. 107. REPORTS CONCERNING GOVERNMENTAL ACCESS TO ELECTRONIC COMMUNICATIONS. Section 2703 of title 18, United States Code, as amended by section 106(a) of this Act, is further amended by adding at the end the following: ``(i) Reports.--In April each year, the Attorney General shall transmit to Congress a full and complete report on-- ``(1) the number and kind of warrants, orders, and subpoenas applied for by law enforcement agencies of the Department of Justice under this section; ``(2) the number of such applications granted or denied; and ``(3) with respect to each warrant, order, or subpoena issued under this section-- ``(A) the number and type of communications disclosed; ``(B) the approximate number and frequency of incriminating communications disclosed; ``(C) the offense specified in the application; and ``(D) the approximate number of persons whose communications were intercepted.''. SEC. 108. ROVING WIRETAPS. (a) Scope of Wiretaps.--Subsection (11)(b) of section 2518 of title 18, United States Code, is amended by striking clauses (ii) through (iv) and inserting the following new clauses: ``(ii) the application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing that-- ``(I) the person changes facilities in a way that has the effect of thwarting interception from a specified facility; or ``(II) the person intends to thwart interception by changing facilities; and ``(iii) the judge finds that such showing has been adequately made.''. (b) Limitation.--Subsection (12) of that section is amended-- (1) by inserting ``(a)'' after ``(12)''; and (2) by adding at the end the following: ``(b) Each order and extension thereof to which the requirements of subsections (1)(b)(ii) and (3)(D) of this section do not apply by reason of subsection (11) of this section shall provide that the authorization to intercept only applies to communications to which the person believed to be committing the offense and named in the order is a party.''. SEC. 109. AUTHORITY TO PROVIDE CUSTOMER LOCATION INFORMATION FOR EMERGENCY PURPOSES. (a) Use of Call Location and Crash Notification Information.--Subsection (d) of section 222 of the Communications Act of 1934 (47 U.S.C. 222) is amended-- (1) by striking ``or'' at the end of paragraph (2); (2) by striking the period at the end of paragraph (3) and inserting a semicolon; and (3) by adding at the end the following new paragraphs: ``(4) to provide call location information concerning the user of a commercial mobile service (as such term is defined in section 332(d))-- ``(A) to a public safety answering point, emergency medical service provider or emergency dispatch provider, public safety official, fire service official, law enforcement official, hospital emergency facility, or trauma care facility in order to respond to the user's call for emergency services; ``(B) to inform the user's legal guardian or members of the user's immediate family of the user's location in an emergency situation that involves the risk of death or serious physical harm; or ``(C) to providers of information or database management services solely for purposes of assisting in the delivery of emergency services in response to an emergency; or ``(5) to transmit automatic crash notification information as part of the operation of an automatic crash notification system.''. (b) Customer Approval of Use of Call Location and Crash Notification Information.--That section is further amended-- (1) by redesignating subsection (f) as subsection (h); and (2) by inserting after subsection (e) the following new subsection (f): ``(f) Customer Approval of Use of Call Location Information and Crash Notification Information.--For purposes of subsection (c)(1), without the express prior authorization of the customer, a customer shall not be considered to have approved the use or disclosure of or access to-- ``(1) call location information concerning the user of a commercial mobile service (as such term is defined in section 332(d)), other than in accordance with subsection (d)(4); or ``(2) automatic crash notification information to any person other than for use in the operation of an automatic crash notification system.''. (c) Use of Listed and Unlisted Subscriber Information for Emergency Services.--That section is further amended by inserting after subsection (f), as amended by subsection (b) of this section, the following new subsection (g): ``(g) Subscriber Listed and Unlisted Information for Emergency Services.--Notwithstanding subsections (b), (c), and (d), a telecommunications carrier that provides telephone exchange service shall provide information described in subsection (h)(3)(A) (including information pertaining to subscribers whose information is unlisted or unpublished) that is in its possession or control (including information pertaining to subscribers of other carriers) on a timely and unbundled basis, under nondiscriminatory and reasonable rates, terms, and conditions to providers of emergency services, and providers of emergency support services, solely for purposes of delivering or assisting in the delivery of emergency services.''. (d) Definitions.--Subsection (h) of that section, as redesignated by subsection (b)(1) of this section, is amended-- (1) in paragraph (1)(A), by inserting ``location,'' after ``destination,''; and (2) by adding at the end the following: ``(4) Public safety answering point.--The term `public safety answering point' means a facility that has been designated to receive emergency calls and route them to emergency service personnel. ``(5) Emergency services.--The term `emergency services' means 911 emergency services and emergency notification services. ``(6) Emergency notification services.--The term `emergency notification services' means services that notify the public of an emergency. ``(7) Emergency support services.--The term `emergency support services' means information or data base management services used in support of emergency services.''. SEC. 110. CONFIDENTIALITY OF SUBSCRIBER INFORMATION. Section 2703(c) of title 18, United States Code, is amended-- (1) in paragraph (1)(A), by inserting before the period at the end the following: ``only if such disclosure is-- ``(i) necessary to initiate, render, bill, and collect for such service; ``(ii) necessary to protect the rights or property of the provider of such service; ``(iii) required by law; ``(iv) made at the request of the subscriber or customer; or ``(v) if the provider has provided the subscriber or customer, in a clear and conspicuous manner, with the opportunity to prohibit such disclosure.''; and (2) by adding at the end the following: ``(3) Nothing in this subsection may be construed to prohibit a provider of electronic communication service or remote computing service from using, disclosing, or permitting access to aggregate subscriber information from which individual subscriber identities and characteristics have been removed.''. TITLE II--PROMOTING USE OF ENCRYPTION SEC. 201. FREEDOM TO USE ENCRYPTION. (a) No Domestic Encryption Controls.--It shall be lawful for any person within the United States, and for any United States person in a foreign country, to use, develop, manufacture, sell, distribute, or import any encryption product, regardless of the encryption algorithm selected, encryption key length chosen, existence of key recovery or other plaintext access capability, or implementation or medium used. (b) Prohibition on Government-Compelled Key Escrow or Key Recovery.-- (1) In general.--Except as provided in paragraph (3), no agency of the United States may require, compel, set standards for, condition any approval on, or condition the receipt of any benefit on, a requirement that a decryption key, access to a decryption key, key recovery information, or other plaintext access capability be-- (A) required to be built into computer hardware or software for any purpose; (B) given to any other person, including any agency of the United States or a State, or any entity in the private sector; or (C) retained by the owner or user of an encryption key or any other person, other than for encryption products for the use of the Federal Government or a State government. (2) Use of particular products.--No agency of the United States may require any person who is not an employee or agent of the United States or a State to use any key recovery or other plaintext access features for communicating or transacting business with any agency of the United States. [[Page S4045]] (3) Exceptions.--The prohibition in paragraph (1) does not apply to-- (A) encryption used by an agency of the United States, or the employees or agents of such agency, solely for the internal operations and telecommunications systems of the United States Government; or (B) the authority of any investigative or law enforcement officer, or any member of the intelligence community (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)), acting under any law in effect on the date of enactment of this Act, to gain access to encrypted communications or information. (c) Use of Encryption for Authentication or Integrity Purposes.--No agency of the United States shall establish any condition, tie, or link between encryption products, standards, and services used for confidentiality purposes and those used for authentication, integrity, or access control purposes. SEC. 202. PURCHASE AND USE OF ENCRYPTION PRODUCTS BY THE FEDERAL GOVERNMENT. To ensure that secure electronic access to the Federal Government is available to persons outside of and not operating under contract with agencies of the United States, the Federal Government may not purchase any encryption product with a key recovery or other plaintext access feature if such key recovery or plaintext access feature would interfere with use of the full encryption capabilities of the product when interoperating with other commercial encryption products. SEC. 203. LAW ENFORCEMENT DECRYPTION ASSISTANCE. (a) In General.--Part I of title 18, United States Code, is amended by adding at the end the following: ``CHAPTER 124--ENCRYPTED WIRE OR ELECTRONIC COMMUNICATIONS AND STORED ELECTRONIC INFORMATION ``Sec. ``2801. Definitions. ``2802. Access to decryption assistance for communications. ``2803. Access to decryption assistance for stored electronic communications or records. ``2804. Foreign government access to decryption assistance. ``Sec. 2801. Definitions ``In this chapter: ``(1) Decryption assistance.--The term `decryption assistance' means assistance that provides or facilitates access to the plaintext of an encrypted wire or electronic communication or stored electronic information, including the disclosure of a decryption key or the use of a decryption key to produce plaintext. ``(2) Decryption key.--The term `decryption key' means the variable information used in or produced by a mathematical formula, code, or algorithm, or any component thereof, used to decrypt a wire communication or electronic communication or stored electronic information that has been encrypted. ``(3) Encrypt; encryption.--The terms `encrypt' and `encryption' refer to the scrambling (and descrambling) of wire communications, electronic communications, or electronically stored information using mathematical formulas or algorithms in order to preserve the confidentiality, integrity, or authenticity of, and prevent unauthorized recipients from accessing or altering, such communications or information. ``(4) Foreign government.--The term `foreign government' has the meaning given the term in section 1116. ``(5) Official request.--The term `official request' has the meaning given the term in section 3506(c). ``(6) Incorporated definitions.--Any term used in this chapter that is not defined in this chapter and that is defined in section 2510, has the meaning given the term in section 2510. ``Sec. 2802. Access to decryption assistance for communications ``(a) Criminal Investigations.-- ``(1) In general.--An order authorizing the interception of a wire or electronic communication under section 2518 shall, upon request of the applicant, direct that a provider of wire or electronic communication service, or any other person possessing information capable of decrypting that communication, other than a person whose communications are the subject of the interception, shall promptly furnish the applicant with the necessary decryption assistance, if the court finds that the decryption assistance sought is necessary for the decryption of a communication intercepted pursuant to the order. ``(2) Limitations.--Each order described in paragraph (1), and any extension of such an order, shall-- ``(A) contain a provision that the decryption assistance provided shall involve disclosure of a private decryption key only if no other form of decryption assistance is available and otherwise shall be limited to the minimum necessary to decrypt the communications intercepted pursuant to such order; and ``(B) terminate on the earlier of-- ``(i) the date on which the authorized objective is attained; or ``(ii) 30 days after the date on which the order or extension, as applicable, is issued. ``(3) Notice.--If decryption assistance is provided pursuant to an order under this subsection, the court issuing the order shall cause to be served on the person whose communications are the subject of such decryption assistance, as part of the inventory required to be served pursuant to section 2518(8), notice of the receipt of the decryption assistance and a specific description of the decryption keys or other decryption assistance disclosed. ``(b) Foreign Intelligence Investigations.-- ``(1) In general.--An order authorizing the interception of a wire or electronic communication under section 105(b)(2) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(b)(2)) shall, upon request of the applicant, direct that a provider of wire or electronic communication service, or any other person possessing information capable of decrypting such communications, other than a person whose communications are the subject of the interception, shall promptly furnish the applicant with the necessary decryption assistance, if the court finds that the decryption assistance sought is necessary for the decryption of a communication intercepted pursuant to the order. ``(2) Limitations.--Each order described in paragraph (1), and any extension of such an order, shall-- ``(A) contain a provision that the decryption assistance provided shall be limited to the minimum necessary to decrypt the communications intercepted pursuant to such order; and ``(B) terminate on the earlier of-- ``(i) the date on which the authorized objective is attained; or ``(ii) 30 days after the date on which the order or extension, as applicable, is issued. ``(c) General Prohibition on Disclosure.--Other than pursuant to an order under subsection (a) or (b), no person possessing information capable of decrypting a wire or electronic communication of another person shall disclose that information or provide decryption assistance to an investigative or law enforcement officer. ``Sec. 2803. Access to decryption assistance for stored electronic communications or records ``(a) Decryption Assistance.--No person may disclose a decryption key or provide decryption assistance pertaining to the contents of stored electronic communications or records, including those disclosed pursuant to section 2703, to a governmental entity, except-- ``(1) pursuant to a warrant issued under the Federal Rules of Criminal Procedure or an equivalent State warrant, a copy of which warrant shall be served on the person who created the electronic communication or record before or at the same time service is made on the keyholder; ``(2) pursuant to a subpoena, a copy of which subpoena shall be served on the person who created the electronic communication or record, under circumstances allowing the person meaningful opportunity to challenge the subpoena; or ``(3) upon the consent of the person who created the electronic communication or record. ``(b) Delay of Notification.--In the case of communications disclosed pursuant to section 2703(a), service of the copy of the warrant or subpoena on the person who created the electronic communication or record may be delayed for a period of not to exceed 90 days upon request to the court by the governmental entity requiring the decryption assistance, if the court determines that there is reason to believe that notification of the existence of the court order or subpoena may have an adverse result described in section 2705(a)(2). ``Sec. 2804. Foreign government access to decryption assistance ``(a) In General.--No investigative or law enforcement officer may-- ``(1) release a decryption key to a foreign government or to a law enforcement agency of a foreign government; or ``(2) except as provided in subsection (b), provide decryption assistance to a foreign government or to a law enforcement agency of a foreign government. ``(b) Conditions for Cooperation With Foreign Government.-- ``(1) Application for order.--In any case in which the United States has entered into a treaty or convention with a foreign government to provide mutual assistance with respect to providing decryption assistance, the Attorney General (or the designee of the Attorney General) may, upon an official request to the United States from the foreign government, apply for an order described in paragraph (2) from the district court in which the person possessing information capable of decrypting the encrypted communication or stored electronic information at issue resides-- ``(A) directing that person to release a decryption key or provide decryption assistance to the Attorney General (or the designee of the Attorney General); and ``(B) authorizing the Attorney General (or the designee of the Attorney General) to furnish the foreign government with the plaintext of the communication or information at issue. ``(2) Contents of order.--An order described in this paragraph is an order directing the person possessing information capable of decrypting the communication or information at issue to-- ``(A) release a decryption key to the Attorney General (or the designee of the Attorney General) so that the plaintext of the communication or information may be furnished to the foreign government; or ``(B) provide decryption assistance to the Attorney General (or the designee of the Attorney General) so that the plaintext of the [[Page S4046]] communication or information may be furnished to the foreign government. ``(3) Requirements for order.--The court described in paragraph (1) may issue an order described in paragraph (2) if the court finds, on the basis of an application made by the Attorney General under this subsection, that-- ``(A) the decryption key or decryption assistance sought is necessary for the decryption of a communication or information that the foreign government is authorized to intercept or seize pursuant to the law of the foreign country; ``(B) the law of the foreign country provides for adequate protection against arbitrary interference with respect to privacy rights; and ``(C) the decryption key or decryption assistance is being sought in connection with a criminal investigation for conduct that would constitute a violation of a criminal law of the United States if committed within the jurisdiction of the United States.''. (b) Clerical Amendment.--The analysis for part I of title 18, United States Code, is amended by adding at the end the following: ``124. Encrypted wire or electronic communications and stored electronic information..................................2801''..... TITLE III--PRIVACY PROTECTION FOR LIBRARY LOAN AND BOOK SALE RECORDS SEC. 301. WRONGFUL DISCLOSURE OF LIBRARY LOAN AND BOOK SALE RECORDS. (a) In General.--Section 2710 of title 18, United States Code, is amended-- (1) by redesignating subsections (c) through (f) as subsections (d) through (g), respectively; and (2) by striking the section designation and all that follows through the end of subsection (b) and inserting the following: ``Sec. 2710. Wrongful disclosure of video tape rental or sale records and library loan and book sale records ``(a) Definitions.--In this section: ``(1) The term `book seller' means any person, engaged in the business, in or affecting interstate or foreign commerce, of selling books, magazines, or other printed material, or any person or other entity to whom a disclosure is made under subparagraph (D) or (E) of subsection (b)(2), but only with respect to the information contained in the disclosure. ``(2) The term `consumer' means any renter, purchaser, or subscriber of goods or services from a video tape service provider or book seller. ``(3) The term `library' means an institution that operates as a public library or serves as a library for any university, school, or college. ``(4) The term `ordinary course of business' means only debt collection activities, order fulfillment, request processing, and the transfer of ownership. ``(5) The term `patron' means any individual who requests or receives-- ``(A) services within a library; or ``(B) books or other materials on loan from a library. ``(6) The term `personally identifiable information' includes the following: ``(A) Information that identifies a person as having requested or obtained specific video materials or services from a video tape service provider. ``(B) Information that identifies a person as having requested or obtained specific books, magazines, or other printed material from a book seller. ``(C) Information that identifies a person as having requested or obtained any materials or services from a library.