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Legal Report December 2006


By the time this issue is printed, the 109th Congress will have ended. The following overview highlights the major legislation that passed and looks at security bills that did not make the cut. It should be noted, however, that at press time the House and Senate were still at work on several issues, so the status of some bills that have not passed may have changed.

Among the new laws passed were ones to renew the Patriot Act, prohibit counterfeiting, improve port security, establish safety procedures in mines, and extend the life of the terrorism insurance program. Other bills on issues ranging from first responders to whistleblowers failed to gain approval. The bills that have not been signed into law by the end of 2006 will die and must be reintroduced in the next legislative session and begin the process anew if they are ever to become law. The next Congress convenes in January.

PATRIOT ACT. Lawmakers waged a contentious battle in December 2005 on whether and how to renew the expiring provisions of the Patriot Act, which were set to expire at the end of the year. The act was renewed and became P.L. 109-177.

The bill made permanent 14 of the 16 provisions of the original Patriot Act, which was passed by Congress several months after the 9-11 terrorist attacks. The act makes permanent the power of the FBI to issue National Security Letters (NSLs) to financial institutions, car dealerships, jewelers, hotels, casinos, and real estate agencies.

These letters require businesses to turn over information about their customers. Businesses must agree to nondisclosure orders that forbid them from telling customers that their information has been given to the FBI. The FBI does not need court approval to issue an NSL nor does it need to prove that there are any specific facts that connect the records being sought with a suspected foreign terrorist.

The bill also makes the “sneak and peek” provision permanent. This provision allows federal law enforcement officials to search homes or businesses without revealing this fact to the property owner or inhabitants.

Under the measure, law enforcement must either reveal the search warrant or apply for an extension within 30 days. However, law enforcement need only request such an extension—there are no requirements regarding how to obtain an extension nor is there any limit to how many extensions may be given in relation to a secret warrant. Also, the warrants can be issued for any type of crime and are not limited to terrorism cases.

Another measure made permanent is the forfeiture of an organization’s assets if it is found to be involved in domestic terrorism. The definition of domestic terrorism in the bill is any activity that would violate state or federal criminal law—even if that activity has not yet been proven in court—or any acts dangerous to human life or intended to subvert government policy or negatively affect civilians by intimidation or coercion. Assets may be seized without notifying the organization in question, without a criminal conviction, and without a hearing.

Two of the most controversial provisions were not made permanent; instead, they have been extended for four more years, after which they must be renewed by Congress or they will expire.

The first of these is roving wiretaps. Unlike conventional wiretaps, which give law enforcement the authority to wiretap a certain phone, roving wiretaps are authorized with respect to a person, giving the government the authority to listen in on any phone that person might use.

Such wiretaps are currently available in criminal investigations, but law enforcement must be able to ensure that the person under surveillance is using the phone at the time it is tapped. The Patriot Act extends the roving wiretap authority to allow law enforcement to obtain permission for a roving wiretap without identifying the target or ascertaining that the target is using the telephones in question.

The second measure that was extended for four years is known as the library records provision. However, it applies to any “tangible thing” including medical, tax, gun, and education records. The government may seize such information without first proving that the documents have any connection to terrorism.

The person whose information has been gathered may file a challenge to the order in the FISA Court—so called because it was established under the Foreign Intelligence Surveillance Act, amended after 9-11. FISA Court records are sealed to the public.

A series of new provisions have also been added to the renewed Patriot Act. Provisions increase criminal penalties for fraudulent access to seaports and waterfronts as well as for destruction of vessels or maritime facilities. Penalties are also increased for stowaways, smugglers, and those who attempt to bribe public officials to influence the conduct of port security.

In addition, the bill contains a new section devoted to fighting methamphetamine production. The bill restricts the sale of chemicals that are used to make the drug, such as over-the-counter cold medicines. The measure also regulates the import and export of such drugs.

COUNTERFEITING. A bill that prohibits trafficking in labels or similar packaging with the knowledge that a counterfeit mark has been applied to them, has passed (P.L. 109-181). Under the new law, the definition of “counterfeit mark” includes any mark on a label or packaging that is substantially indistinguishable from a trademarked design and that is likely to mislead consumers. Any article that bears a counterfeit mark will be subject to forfeiture.

PORT SECURITY. A port security bill (H.R. 4954) was signed into law by President Bush becoming P.L. 109-347.

The law requires that the Department of Homeland Security (DHS) develop and implement a strategic plan to enhance maritime security. The measure also requires that DHS develop and implement a plan to improve existing programs that identify high-risk containers moving through the international supply chain.

The law further requires that states submit to the federal government biographic information on current and future employees who have access to secured areas of seaports. DHS will compare this information to data on terrorist watch lists.

In addition, under the new law, DHS must establish minimum standards and verification procedures for securing containers in transit, including international standards for containers moving through the global supply chain. DHS must submit a plan to Congress for deployment of radiation detection equipment at all U.S. ports.

MINE SAFETY. Reacting to the disaster at the Sago Mines in West Virginia, lawmakers passed a bill (S. 2803) designed to improve mine safety and protect the health of mine workers. It became P.L. 109-236.

The law requires that mine operators adopt and maintain an accident response plan for when miners are trapped. Under the law, the plan must include redundant local communications systems, emergency air supplies, escapeways, emergency training, and wireless communications systems to allow contact between trapped miners and officials on the surface.

To encourage new technology, the bill provides grants for those developing new mine safety equipment. The law also establishes an interagency working group to share technology, research, and developments in mine safety and emergency response.

INSURANCE. The Terrorism Risk Insurance Act of 2002 (TRIA), which authorized a government program that kept business insurance for terrorist attacks affordable, would have expired in 2005. It was extended for three more years by this Congress, becoming the Terrorism Risk Insurance Act of 2005 (P.L. 190-144). This version of TRIA keeps the program in place through 2008 while a commission develops a transitional system to take its place. Without the TRIA, proponents of the bill argued, terrorism insurance would have become unaffordable for most businesses.

GENETIC DISCRIMINATION. A bill (S. 306) introduced by Senator Olympia Snowe (R-ME) that would prohibit genetic discrimination by employers and insurance providers was approved by the Senate but was not taken up by the House of Representatives.

The bill would have made it illegal for health insurance providers or group health plans to use genetic information as a factor in providing service or establishing premiums. The measure would also have prohibited a health insurance provider from requesting or requiring that an individual—or his or her family member—undergo a genetic test.

Similarly, S. 306 would have make it illegal for an employer to segregate or classify employees on the basis of genetic information, deprive them of employment opportunities, or otherwise adversely affect them. Under the bill, employees would be prohibited from requesting, requiring, or purchasing an employee’s genetic information. The measure did make exceptions in certain instances, such as when information is required to comply with the Family and Medical Leave Act or when it is necessary for genetic monitoring of the biological effects of toxic substances in the workplace.

SEAPORT SECURITY. A bill (S. 378) introduced by Sen. Joseph Biden (D-DE) that would have created several new seaport security crimes was approved by the Senate Judiciary Committee but was never brought before the full Senate.

The bill would have made it a crime to enter a secure area of a seaport under false pretenses, forcibly interfere with an authorized law enforcement action, provide false information during a boarding, or willfully disable a passenger vehicle.

The measure would also have created the crime of knowingly and intentionally placing a device aboard a vessel that is likely to damage or destroy the vessel; discharge or release any substance that would endanger human welfare or the marine environment; or transport any explosive, biological, chemical, or nuclear material to be used to commit terrorism.

Under S. 378, it would have been illegal to knowingly transport a terrorist or terror suspect aboard a vessel or willfully cause destruction of a vessel or maritime facility. The bill would also have increased penalties for stowaways on vessels or aircraft.

SPYWARE. A bill (H.R. 744) that would have prohibited the use of spyware passed the House of Representatives but stalled after being referred to the Senate Judiciary Committee. The bill would have prohibited intentionally copying a program onto a computer to commit a crime or to obtain or transmit personal information with the intent to defraud or injure another person or to cause damage to another’s computer.

The bill would have provided exemptions for investigations by a law enforcement agency or a U.S. intelligence agency. The bill did not include an exemption for private security investigations.

WHISTLEBLOWERS. Though it received much attention from lawmakers, a bill (S. 494) that would have protected federal employees who disclosed information about government wrongdoing stalled. It was approved by the Senate Homeland Security and Government Affairs Committee but was never considered by the full Senate.

The bill would have prevented reprisals against government workers who publicly released information regarding waste, abuse, or gross mismanagement in the federal government. Such abuses in relation to secret national defense information could have been disclosed to a member of Congress.

FIRST RESPONDERS. The issue of first-responder preparedness received a great deal of attention from lawmakers after Hurricane Katrina, and a bill (H.R. 1544) that would have changed the way that first-responder funds were allocated to state and local governments was approved by the House of Representatives, but was not taken up by the Senate.

The bill would have required that the government dole out first-responder funds based on risk. This differed from the current funding scheme which follows an equal-distribution approach, with all jurisdictions receiving funding even if those funds are not needed. The bill was designed to provide more funding for metropolitan areas that face greater risks of terrorist attack and less for rural areas.

OSHA. A bill (H.R. 739) that would have allowed employers more latitude in disputes with the Occupational Safety and Health Administration (OSHA) was approved by the House of Representatives but was never taken up by the Senate Health, Education, Labor, and Pensions Committee.

The legislation would have allowed employees more time to contest safety violations. Currently, employers have 15 days to contest safety violations. The bill would allow employees to exceed that 15- day time limit if the failure to contest results from “mistake, inadvertence, surprise, or excusable neglect.”

H.R. 739 would also have allowed employers with 100 or fewer employees and a net worth of $7 million or less to collect attorney’s fees if they prevailed in a dispute with OSHA.

DATA SECURITY. A bill (H.R. 4127) that would have required that companies protect the personal information of customers was approved by the House Energy and Commerce Committee, the House Judiciary Committee, and the House Financial Services Committee. However, the bill was not brought before the House of Representatives.

H.R. 4127 would have required that any company that holds or transmits individuals’ personal information establish security to protect that information. The bill would also have required that information brokers set up reasonable procedures to verify the accuracy of information they collect, assemble, or maintain.

H.R. 4127 would have prohibited information brokers from obtaining or attempting to obtain personal information through false pretenses. The bill defined false pretenses as making false statements or representations or providing counterfeit, lost, stolen, or fraudulently obtained documents.

DATA PROTECTION. A bill (H.R. 4157) to improve the coordination and protection of health information was approved by the House of Representatives but failed to come before the Senate for a vote.

Under the measure, the Secretary of Health and Human Services would have developed a strategic plan to coordinate information regarding the implementation of standards for transmitting, coding, and protecting consumer health information.

This column should not be construed as legal or legislative advice.