Telecommuter Tax Fairness Act of 2004

Mr. President, today Senator Lugar and I, along with several other colleagues, introduce a bill that is designed to increase pressure on the government of Sudan to stop its campaign of genocide in Darfur.

There is now--at least in the U.S. Government--no dispute that genocide has occurred in Darfur. The Congress so stated by resolution in July. Today, in testimony to the Committee on Foreign Relations, the Secretary of State affirmed that ``genocide has been committed in Darfur'' and that the Government of Sudan and the janjaweed militia bear responsibility for it.

The situation in Darfur is dire. As many as 50,000 black Africans have been killed. Sexual violence is routinely used as a weapon by the Sudanese-sponsored janjaweed militia. Over a million people are displaced from their homes. And, because the Sudanese government refused to allow unrestricted access to war-affected populations at the onset of this crisis--a crisis of the government's making--hundreds of thousands of people are likely to die by the end of the year.

Unless we act quickly and decisively to stop the violence in Darfur, history is going to judge us harshly for our lack of action. It may already be too late to avoid the condemnation of future generations.

On July 30, following UN Secretary General Kofi Annan's visit to Sudan, the United Nations Security Council passed resolution 1556. The resolution was, in my view, inadequate. It provided an arms embargo and travel ban against the janjaweed, but did little to pressure the very government sponsoring the militia. The resolution provided only a vague threat to apply the sanctions to the government of Sudan if it failed to take certain steps, including ending all restrictions on humanitarian workers, investigating and punishing human rights abuses, immediately beginning disarmament of the janjaweed, and resuming talks with the rebels. Sudan was given 30 days to comply.

Sudan has not satisfied the conditions for the resolution. On September 2, the Secretary General's Special Representative to Sudan reported to the Security Council that the government of Sudan has not taken any steps to disarm the janjaweed or improve security of internally displaced persons.

The administration's response was to propose a new draft UN resolution yesterday. Unfortunately, this resolution only delays a decision about whether or not to impose sanctions for another 30 days. It does not label what is happening in Khartoum as genocide, although it does call upon the Secretary General to establish a commission of inquiry into violations of international humanitarian law and human rights. It does not call for a chapter 7 peacekeeping mission in Darfur, and it does not call for an expansion of the mandate of the African Union Mission in Sudan.

I believe the Congress must do its part to pressure the government of Sudan, and to provide additional tools to the Administration.

On July 21, Senator DeWine and I introduced S. 2705, which was aimed at pressuring the government of Sudan to fulfill commitments it made to the UN. On July 22, the chairman of the Committee on Foreign Relations, Senator Lugar, also introduced a bill on Sudan, S. 2720. It had the same objective, though its provisions were different from the Biden- DeWine bill in several respects.

Over the recess, the chairman and I worked together to develop a joint bill. I believe it is important that the committee speak with one voice on the genocide in Darfur. I also recognize that this late in the congressional session, most legislation will require unanimous consent to pass. So I hope our joint effort will prove successful.

The bill we introduce today authorizes $200 million in humanitarian assistance for Darfur. It holds out the promise of $100 million in assistance for Sudan in connection with a peace agreement between the government and rebels in the south, but only if the President certifies that Khartoum takes demonstrable steps that it has stopped attacking civilians, disarmed the janjaweed and allowed unfettered access to Darfur for humanitarian workers. If the President cannot make this certification within 120 days, the bill requires that the President block the assets of senior members of the government of Khartoum.

The bill does not go as far as I would have liked. The Biden-DeWine bill provided additional resources to implement a north-south peace agreement as an incentive to the Khartoum government, and it provided for additional sanctions, including those sanctions already set forth in the Sudan Peace Act. But I have agreed to join with the chairman to take this intermediate action.

I want to make clear that this bill should only be considered a first step. If the tragedy in Darfur continues, and if Khartoum continues to ignore the demands of the international community that it cease the violence in Darfur, I intend to introduce stronger legislation next year.

Today the Secretary of State spoke clearly, for all the world to hear--genocide has occurred in western Sudan. Hundreds of thousands of lives are on the line. We cannot say we were not warned. We cannot say we did not know. We cannot say that we lacked the means to respond. We are obligated, by the Genocide Convention and our collective conscience, to act to assist the people suffering and to prevent further violence. Immediate support for the African Union is necessary, but

not sufficient to respond to the situation in Darfur. In addition, we need to press for a UN resolution that authorizes a multilateral force with a mandate to protect civilians. We also should look outside Africa for military and logistical assistance, rather than relying solely on the African Union.

What is occurring in Darfur is a travesty. Our response has not been commensurate with the suffering there. It is imperative that the United States and the international community increase assistance to the displaced, and increase pressure on the government of Sudan to take action.

Mr. President, I am pleased to introduce the Computer Trespass Clarification Act of 2004, which would amend and clarify section 217 of the USA-PATRIOT Act. Section 217 addresses the interception of computer trespass communications. This bill would modify existing law to more accurately reflect the intent of the provision, and also protect against invasions of privacy.

Section 217 was designed to permit law enforcement to assist computer owners who are subject to denial of service attacks or other episodes of hacking. The original Department of Justice draft of the bill that later became the PATRIOT Act included this provision. A section-by- section analysis provided by the Department on September 19, 2001, stated the following:

Current law may not allow victims of computer trespassing

to request law enforcement assistance in monitoring

unauthorized attacks as they occur. Because service providers

often lack the expertise, equipment, or financial resources

required to monitor attacks themselves as permitted under

current law, they often have no way to exercise their rights

to protect themselves from unauthorized attackers. Moreover,

such attackers can target critical infrastructures and engage

in cyberterrorism. To correct this problem, and help to

protect national security, the proposed amendments to the

wiretap statute would allow victims of computer attacks to

authorize persons ``acting under color of law'' to monitor

trespassers on their computer systems in a narrow class of

cases.

I strongly supported the goal of giving computer system owners the ability to call in law enforcement to help defend themselves against hacking. Including such a provision in the PATRIOT Act made a lot of sense. Unfortunately, the drafters of the provision made it much broader than necessary, and refused to amend it at the time we debated the bill in 2001. As a result, the law now gives the government the authority to intercept communications by people using computers owned by others as long as they have allegedly engaged in some unauthorized activity on the computer, and the owner gives permission for the computer to be monitored.

Only people who have a ``contractual relationship'' with the owner allowing the use of a computer are exempt from the definition of a computer trespasser under section 217 of the PATRIOT Act. Many people-- for example, college students, patrons of libraries, Internet cafes or airport business lounges, and guests at hotels--use computers owned by others with permission, but without a contractual relationship. They could end up being the subject of government snooping if the owner of the computer gives permission to law enforcement.

My bill would clarify that someone who has been given permission to use a computer by the owner or operator of that computer is not a computer trespasser. It would bring the existing computer trespass provision in line with the purpose of section 217 as expressed in the Department of Justice's initial explanation of the provision. Section 217 was intended to target only a narrow class of people: unauthorized cyberhackers. It was not intended to give the government the opportunity to engage in widespread surveillance of computer users without a warrant.

We don't know, of course, whether such surveillance is taking place. Unless criminal charges are brought against someone as a result of such surveillance, there would never be any notice at all that the surveillance has taken place. The computer owner authorizes the surveillance, and the FBI carries it out. There is no warrant, no court proceeding, no opportunity even for the subject of the surveillance to challenge the assertion of the computer owner that some unauthorized use of the computer has occurred.

The Computer Trespass Clarification Act would modify the computer trespass provision to protect against abuse, while still maintaining its usefulness in cases of denial of service attacks and other forms of hacking.

First, it would require that the owner or operator of the protected computer authorizing the interception has been subject to ``communications activity that threatens the integrity or operation of such computer.'' In other words, the owner has to be the target of some kind of hacking.

Second, the bill would clarify that to be excluded from the definition of computer trespasser, a person who has permission to use a computer does not need to have a contractual relationship granting that permission.

Third, the bill limits the length of warrant-less surveillance to 96 hours. This is twice as long as is allowed for an emergency wiretap. With four days of surveillance, it should not be difficult for the government to gather sufficient evidence of wrongdoing to obtain a warrant if continued surveillance is necessary.

In addition, the bill would require the Attorney General to annually report on the use of Section 217 to the Senate and House Judiciary Committees. Section 217 is one of the provisions that is subject to the sunset provision in the PATRIOT Act and will expire at the end of 2005. We in the Congress need to do more oversight of the use of this and other provisions of the PATRIOT Act in order to evaluate their effectiveness.

The computer trespass provision now in the law as a result of section 217 of the PATRIOT Act leaves open the possibility for significant and unnecessary invasions of privacy. The reasonable and modest changes to the provision contained in this bill preserve the usefulness of the provision for investigations of cyberhacking, but reduce the possibility of abuse. We must continually seek to balance the need for effective tools to fight crime and terrorism and the civil liberties of our citizens. The Computer Trespass Clarification Act strikes the right balance and I urge my colleagues to support it.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I am pleased to rise today, together with my colleague Senator Lieberman, to introduce The Telecommuter Tax Fairness Act of 2004.

The Telecommuter Tax Fairness Act of 2004 will put an end to an outdated

legal doctrine that unfairly penalizes thousands of workers in Connecticut and in other States throughout the country whose only offense is that they sometimes work from home.

Technology has changed the way business is conducted in America. With the use of cell phones, lap-top computers, email, the Internet, mobile networking, and many other telecommunication advancements of the 21st century, Americans have a greater flexibility in where they can work without compromising productivity. Many citizens now choose to work from home or alternative offices when their physical presence is not necessary at their primary place of work.

Telecommuting provides enormous benefits for businesses, families, and communities. It helps businesses lower costs and raise worker productivity. It reduces congestion on our roads and rails, and in so doing it lowers pollution. It helps workers better manage the demands of work and family. And last but not least, it can mean lower income taxes.

Yet, the many benefits to workers of telecommuting are today placed in jeopardy because of current law in New York. Today, New York State requires that workers pay income tax on income even if it is not earned in the State through their ``convenience of the employer'' rule. While there are several States that have the ``convenience of the employer'' rule, no other State applies it with the same rigor as New York.

New York's ``convenience of the employer'' rule requires that by working for a New York employer, all income earned from that employer must be declared in New York so long as the worker ``could'' perform his or her duties in New York. A worker for a New York employer who works part-time from home in Connecticut or another State is still subject to taxation by New York on 100 percent of his or her income. At the same time, the work done by that worker in a State outside New York is subject to taxation by that State.

This unfairly subjects many workers who telecommute from their homes or from satellite offices outside of New York to a double tax on that part of the income earned from home. According to Connecticut's Attorney General, thousands of Connecticut residents alone are affected by this unfair double taxation.

This potential for double taxation is not only unfair, but it is an incentive for workers not to telecommute, when what we should be doing is providing an incentive to encourage telecommuting.

Legislation is needed to protect these honest workers who deserve fair and equitable treatment under the law. The Telecommuter Tax Fairness Act of 2004 does this specifically by preventing a state from engaging in the current fiction of deeming a nonresident to be in the taxing State when the nonresident is actually working in another State. In doing so, it will eliminate the possibility that citizens will be double-taxed when telecommuting.

Establishing a ``physical presence'' test--as this legislation would do--is the most logical basis for determining tax status. If a worker is in a State, and taking advantage of that State's infrastructure, the worker should pay taxes in that State.

Some suggest that the double-taxation quandary can easily be fixed by having other States provide a tax credit to those telecommuters. However, why should Connecticut, or any other State, be required to allow a credit on income actually earned in the State? If a worker is working in Connecticut, he or she is benefiting from a range of services paid for and maintained by Connecticut including roads, water, police, fire protection, and communications services. It's only fair that Connecticut ask that worker to help support the services that he or she uses.

This is not just an issue which deals with a small group of citizens from one small State. Rather, this is an issue which affects workers all over the country. It will only grow more pressing as people and businesses continue to seek to take advantage of new technologies that affect the way we live and work.

I hope our colleagues will favorably consider this legislation.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I am pleased to rise today, together with my colleague Senator Lieberman, to introduce The Telecommuter Tax Fairness Act of 2004.

The Telecommuter Tax Fairness Act of 2004 will put an end to an outdated

legal doctrine that unfairly penalizes thousands of workers in Connecticut and in other States throughout the country whose only offense is that they sometimes work from home.

Technology has changed the way business is conducted in America. With the use of cell phones, lap-top computers, email, the Internet, mobile networking, and many other telecommunication advancements of the 21st century, Americans have a greater flexibility in where they can work without compromising productivity. Many citizens now choose to work from home or alternative offices when their physical presence is not necessary at their primary place of work.

Telecommuting provides enormous benefits for businesses, families, and communities. It helps businesses lower costs and raise worker productivity. It reduces congestion on our roads and rails, and in so doing it lowers pollution. It helps workers better manage the demands of work and family. And last but not least, it can mean lower income taxes.

Yet, the many benefits to workers of telecommuting are today placed in jeopardy because of current law in New York. Today, New York State requires that workers pay income tax on income even if it is not earned in the State through their ``convenience of the employer'' rule. While there are several States that have the ``convenience of the employer'' rule, no other State applies it with the same rigor as New York.

New York's ``convenience of the employer'' rule requires that by working for a New York employer, all income earned from that employer must be declared in New York so long as the worker ``could'' perform his or her duties in New York. A worker for a New York employer who works part-time from home in Connecticut or another State is still subject to taxation by New York on 100 percent of his or her income. At the same time, the work done by that worker in a State outside New York is subject to taxation by that State.

This unfairly subjects many workers who telecommute from their homes or from satellite offices outside of New York to a double tax on that part of the income earned from home. According to Connecticut's Attorney General, thousands of Connecticut residents alone are affected by this unfair double taxation.

This potential for double taxation is not only unfair, but it is an incentive for workers not to telecommute, when what we should be doing is providing an incentive to encourage telecommuting.

Legislation is needed to protect these honest workers who deserve fair and equitable treatment under the law. The Telecommuter Tax Fairness Act of 2004 does this specifically by preventing a state from engaging in the current fiction of deeming a nonresident to be in the taxing State when the nonresident is actually working in another State. In doing so, it will eliminate the possibility that citizens will be double-taxed when telecommuting.

Establishing a ``physical presence'' test--as this legislation would do--is the most logical basis for determining tax status. If a worker is in a State, and taking advantage of that State's infrastructure, the worker should pay taxes in that State.

Some suggest that the double-taxation quandary can easily be fixed by having other States provide a tax credit to those telecommuters. However, why should Connecticut, or any other State, be required to allow a credit on income actually earned in the State? If a worker is working in Connecticut, he or she is benefiting from a range of services paid for and maintained by Connecticut including roads, water, police, fire protection, and communications services. It's only fair that Connecticut ask that worker to help support the services that he or she uses.

This is not just an issue which deals with a small group of citizens from one small State. Rather, this is an issue which affects workers all over the country. It will only grow more pressing as people and businesses continue to seek to take advantage of new technologies that affect the way we live and work.

I hope our colleagues will favorably consider this legislation.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.