Emergency Judicial Relief Act of 2011

Mr. President, today I am pleased to introduce the Electronic Communications Privacy Act Amendments Act of 2011, a bill to bring our Federal electronic privacy laws into the digital age. Since the Electronic Communications Privacy Act, ECPA, was first enacted in 1986, the ECPA has been one of our Nation's premiere privacy laws. But, today, this law is significantly outdated and out-paced by rapid changes in technology and the changing mission of our law enforcement agencies after September 11.

In the digital age, American consumers and businesses face threats to privacy like no time in history. With the explosion of new technologies, including social networking sites, smartphones and other mobile applications, there are many new benefits to consumers. But, there are also many new risks to their privacy.

Just in the past few weeks, we have witnessed significant data breaches involving Sony and Epsilon that impact the privacy of millions of American consumers. We are also learning that smartphones and other new mobile technologies may be using and storing our location and other sensitive information posing other new risks to privacy.

When I led the effort to write the ECPA 25 years ago, no one could have contemplated these and other emerging threats to our digital privacy. Updating this law to reflect the realities of our time is essential to ensuring that our Federal privacy laws keep pace with new technologies and the new threats to our security.

This bill takes several steps to protect Americans' privacy in the digital age. First, the bill makes common sense changes to the law regarding the privacy protections afforded to consumers' electronic communications. Under the current law, a single e-mail could be subject to as many a four different levels of privacy protections, depending upon where it is stored and when it was sent. The bill gets rid of the so-called ``180-day rule'' and replaces this confusing mosaic with one clear legal standard for the protection of the content of e-mails and other electronic communications. Under my bill, service providers are expressly prohibited from disclosing customer content and the government must obtain a search warrant, based on probable cause, to compel a service provider to disclose the content of a customer's electronic communications to the government.

This bill also provides important new consumer privacy protections for location information that is collected, used, or stored by service providers, smartphones, or other mobile technologies. To protect consumer privacy, my bill requires that the government obtain either a search warrant, or a court order under the Foreign Intelligence Surveillance Act, in order to access or use an individual's smartphone or other electronic communications device to obtain geolocation information. There are well-balanced exceptions to the warrant requirement if the government needs to obtain location information to address an immediate threat to safety or national security, or when there is user consent or a call for emergency services. The bill also requires that the government obtain a search warrant in order to obtain contemporaneous, real-time, location information from a provider. There is an exception to the warrant requirement for emergency calls for service.

To address the role of new technologies in the changing mission of law enforcement, the bill also provides important new tools to law enforcement to fight crime and keep us safe. The bill clarifies the authority under the ECPA for the government to temporarily delay notifying an individual of that fact that the government has accessed the contents of their electronic communications, to protect the integrity of a government investigation. The bill also gives new authority to the government to delay notification in order to protect national security.

Lastly, the ECPA Amendments Act strengthens the tools available in ECPA to protect our national security and the security of our computer networks. The legislation creates a new limited exception to the nondisclosure requirements under the ECPA, so that a service provider can voluntarily disclose content to the government that is pertinent to addressing a cyberattack. To protect privacy and civil liberties, the bill also requires that, among other things, the Attorney General and the Secretary of Homeland Security submit an annual report to Congress detailing the number of accounts from which their departments received voluntary disclosures under this new cybersecurity exception.

In addition, the bill clarifies the kinds of subscriber records that the Federal Bureau of Investigations may obtain from a provider in connection with a counterintelligence investigation. This reform will help to make the process for obtaining this information more certain and efficient for both the government and providers.

I drafted this bill with one key principle in mind, that updates to the Electronic Communication Privacy Act must carefully balance the interests and needs of consumers, law enforcement, and our Nation's thriving technology sector. I also drafted this bill in careful consultation with many government and private sector stakeholders, including the Departments of Justice and Commerce, State and local law enforcement, and members of the technology and privacy communities.

I thank the Digital Due Process Coalition and the many other stakeholders who support this bill. I also thank the Departments of Commerce and Justice for their guidance on how the ECPA impacts the needs of our law enforcement community and our national economy. I look forward to continuing to work with all of these stakeholders as this bill moves forward.

Two decades before Congress first enacted the Electronic Communications Privacy Act, Chief Justice Earl Warren wisely opined that ``the fantastic advances in the field of electronic communications constitute a greater danger to the privacy of the individual.'' This aptly describes the state of our digital privacy rights today. The balanced reforms in this bill will help ensure that our Federal privacy laws address the many dangers to personal privacy posed by the rapid advances in electronic communications technologies. Accomplishing this challenging task will not be easy. But, with the introduction of the Electronic Communications Privacy Act Amendments Act of 2011, we take a significant step towards this very important goal.

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

Mr. President, I rise today to introduce the Municipal Bond Market Support Act of 2011. This bill is

similar to ones that Senator Crapo and I introduced in the 110th and 111th Congresses. I am grateful for Senator Crapo's continued leadership on this issue, as well as the cosponsorship of our Finance Committee colleagues, Senators Kerry, Snowe, Cardin, and Grassley.

Municipal bonds have long played an essential role in financing the construction, expansion, and repair of schools; highways, roads, and bridges; affordable housing; hospitals; public transit; water and sewage systems; and community-owned utilities. Since the enactment of the Federal income tax in 1913, Congress has supported the municipal bond market by exempting municipal bond interest from taxation. Tax exemption confers Federal assistance on State and local capital investments; it also recognizes that decisions about which projects to fund are most appropriately made at the State or local level.

Historically, banks were significant purchasers of tax-exempt debt. But the Tax Reform Act of 1986 severely curtailed banks' participation by automatically disallowing deductions for interest expense whenever municipal bonds are purchased. The 1986 Act left an exception only for bonds purchased from smaller municipalities, those selling no more than $10 million of bonds each year. But because the $10 million level was not indexed to inflation, its purchasing power has eroded significantly since 1986, leaving many smaller governments and non-profit educational and health care facilities either to defer projects to comply with this low limit or find non-bank purchasers.

I was very pleased that the American Recovery and Reinvestment Act incorporated a bill that Senator Crapo and I introduced, the Municipal Bond Market Support Act of 2009, raising the $10 million small issuer exception to $30 million. Additionally, the Recovery Act included a provision ensuring that the small issuer is made applicable at the ultimate borrower level, so that bonds benefiting non-profit universities and hospitals will not exceed the limitation merely because they issue bonds through statewide authorities.

Taken together, those steps significantly enhanced demand for debt issued by small municipal governments, enabling municipalities across the Nation, and particularly those in small and rural communities, to finance the critical infrastructure projects that play an important role in growing our national economy.

In 2009, the dollar amount of bank qualified issuances reached $32.7 billion, double the prior year's level, with more than 6,000 issuances. Beneficiaries included a broad range of counties, cities, and school districts in all corners of my home state of New Mexico. For instance, the proceeds of a $17 million bond issued by Santa Fe County financed roads, trails and parks for open space, a fire facility, a solid waste transfer station, water rights acquisition and water projects. The City of Artesia completed two bank-qualified transactions, to finance building a public safety complex and a new waste water treatment facility. The Bloomfield School District placed $19 million in bank- qualified debt to finance capital expenditures. Similarly, in 2010, issuances climbed even further, to $36.8 billion, with more than 6,700 issuances representing a similarly diverse array of counties, cities, school districts, infrastructure districts, and hospitals across my home state of New Mexico and the country.

The ARRA-enacted provisions helped small communities across New Mexico and the country finance critical infrastructure needs and create jobs. The higher bank-qualified limit is a great success and deserves to be made permanent. The bill that Senators Crapo, Kerry, Snowe, Cardin, Grassley, and I are introducing today would do just that, ensuring that smaller governments and non-profit educational and health care facilities can finance their capital needs, particularly in periods of tight credit, and save taxpayer dollars.

At least 14 national organizations representing issuers of tax-exempt bonds are supporting the Act. These include the American Hospital Association; American Public Power Association; Council of Development Finance Authorities; Council of Infrastructure Financing Authorities; Government Finance Officers Association; International City/County Management Association; International Municipal Lawyers Association; National Association of College and University Business Officers; National Association of Counties; National Association of Health and Educational Facilities Finance Authorities; National Association of State Auditors, Comptrollers, and Treasurers; National Association of State Treasurers; National League of Cities; and the U.S. Conference of Mayors. I urge my colleagues to join these organizations in supporting our bill, to ensure that small municipalities across the country are able to finance critical infrastructure projects at reduced costs to their residents.

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

Mr. President, I rise to introduce, together with my colleague and friend Senator Kyl, the Emergency Judicial Relief Act of 2011.

This bill would create a total of ten District judgeships in five courts across the country that are facing true emergency situations.

I want to thank our cosponsors, Senators Cornyn, Klobuchar, Boxer, McCain, Hutchison, and Franken, for working with Senator Kyl and me on this bill.

As a member of the Senate, I take very seriously our duty to ensure that the Nation's Federal courts have the resources they need to administer justice for the American people. Our Federal courts bear responsibility for adjudicating criminal cases, deciding civil rights and employment cases, and resolving commercial disputes between companies. When our courts become overburdened, we leave crime victims and criminal defendants in limbo and civil litigants without resolution to their problems.

In the Eastern District of California, the need for additional judges is acute. This District, which extends over 87,000 miles and encompasses California's Central Valley, faces far and away the worst caseload crisis in the Nation.

The District is home to more than eight million Californians, but it has only 6 active District Judges. For three decades, the District's population has been steadily growing, but the size of the Court has been unchanged. Congress has not created a permanent judgeship in the Eastern District since 1978 and the only temporary judgeship created was allowed to expire and never renewed despite repeated attempts by myself and Senator Leahy.

The result is unacceptable. As of December 31, 2010, the District was managing 1,133 weighted filings per authorized judgeship, a caseload that is not only the highest in the Nation, but also 300 weighted filings per judge higher than any other District Court in the country and almost three times the threshold at which the Judicial Conference recommends additional judgeships.

For everyday life, what this means is that individuals and businesses must wait months, or even years to have their disputes resolved. According to the most recent statistics, criminal felony cases remained pending in this court for a median of 12.7 months; and more than 10 percent of all civil cases were taking more than 3 years from the date of filing to be decided.

The delay is not for lack of effort. As Judge Lawrence O'Neill testified before the Senate Judiciary Committee in 2009, the Eastern District's judges are among the most productive in the Nation, and the court is utilizing every resource currently at its disposal. The caseloads are simply unmanageable.

U.S. Supreme Court Chief Justice John Roberts has publicly remarked on the problems in the District; so has Associate Justice Anthony Kennedy; and the Judicial Conference of the United States has formally called on Congress to create more judgeships here.

The Emergency Judicial Relief Act of 2011 would provide a narrow, targeted solution.

The bill would create new judgeships in five Districts across the country where the need is most staggering, four in the Eastern District of California, two in the District of Arizona; two in the Western District of Texas; one in the Southern District of Texas; and one in the District of Minnesota. Additionally, the bill would convert a temporary judgeship in the District of Arizona and one in the Central District of California to permanent status. The bill would be offset by raising civil filing fees $10, from $350 to $360.

Let me be clear. California needs far more judgeships than this bill would create, and I will work with my colleagues to create those badly needed judgeships.

In the meantime, this bill is a narrow, emergency measure to provide relief in the handful of Districts that need it the very most.

I urge my colleagues to work with me to pass this commonsense, good government bill.

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

Mr. President, I rise to introduce, together with my colleague and friend Senator Kyl, the Emergency Judicial Relief Act of 2011.

This bill would create a total of ten District judgeships in five courts across the country that are facing true emergency situations.

I want to thank our cosponsors, Senators Cornyn, Klobuchar, Boxer, McCain, Hutchison, and Franken, for working with Senator Kyl and me on this bill.

As a member of the Senate, I take very seriously our duty to ensure that the Nation's Federal courts have the resources they need to administer justice for the American people. Our Federal courts bear responsibility for adjudicating criminal cases, deciding civil rights and employment cases, and resolving commercial disputes between companies. When our courts become overburdened, we leave crime victims and criminal defendants in limbo and civil litigants without resolution to their problems.

In the Eastern District of California, the need for additional judges is acute. This District, which extends over 87,000 miles and encompasses California's Central Valley, faces far and away the worst caseload crisis in the Nation.

The District is home to more than eight million Californians, but it has only 6 active District Judges. For three decades, the District's population has been steadily growing, but the size of the Court has been unchanged. Congress has not created a permanent judgeship in the Eastern District since 1978 and the only temporary judgeship created was allowed to expire and never renewed despite repeated attempts by myself and Senator Leahy.

The result is unacceptable. As of December 31, 2010, the District was managing 1,133 weighted filings per authorized judgeship, a caseload that is not only the highest in the Nation, but also 300 weighted filings per judge higher than any other District Court in the country and almost three times the threshold at which the Judicial Conference recommends additional judgeships.

For everyday life, what this means is that individuals and businesses must wait months, or even years to have their disputes resolved. According to the most recent statistics, criminal felony cases remained pending in this court for a median of 12.7 months; and more than 10 percent of all civil cases were taking more than 3 years from the date of filing to be decided.

The delay is not for lack of effort. As Judge Lawrence O'Neill testified before the Senate Judiciary Committee in 2009, the Eastern District's judges are among the most productive in the Nation, and the court is utilizing every resource currently at its disposal. The caseloads are simply unmanageable.

U.S. Supreme Court Chief Justice John Roberts has publicly remarked on the problems in the District; so has Associate Justice Anthony Kennedy; and the Judicial Conference of the United States has formally called on Congress to create more judgeships here.

The Emergency Judicial Relief Act of 2011 would provide a narrow, targeted solution.

The bill would create new judgeships in five Districts across the country where the need is most staggering, four in the Eastern District of California, two in the District of Arizona; two in the Western District of Texas; one in the Southern District of Texas; and one in the District of Minnesota. Additionally, the bill would convert a temporary judgeship in the District of Arizona and one in the Central District of California to permanent status. The bill would be offset by raising civil filing fees $10, from $350 to $360.

Let me be clear. California needs far more judgeships than this bill would create, and I will work with my colleagues to create those badly needed judgeships.

In the meantime, this bill is a narrow, emergency measure to provide relief in the handful of Districts that need it the very most.

I urge my colleagues to work with me to pass this commonsense, good government bill.

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

Mr. President, I would like to alert my colleagues that I intend to object to any unanimous consent agreement for the consideration of S. 1014, the Emergency Judicial Relief Act of 2011. While the sponsors of the legislation adopted one amendment I offered during debate in the Judiciary Committee, and that amendment improves the legislation, the bill remains deeply flawed and I cannot support it.

I oppose S. 1014 in its current form for a number of reasons, and I will just briefly describe them here. First, I believe strongly that we should analyze critically any expansion of the Federal Government, and first and foremost, determine whether there is a more efficient and cost effective way to allocate taxpayer resources. This is especially true during a time when our Federal debt is at historic levels.

In its current form, this legislation creates 10 new judgeships and converts two judgeships from temporary to permanent. The legislation does not pay

for the increased spending by cutting a corresponding amount of Federal spending. Rather, it raises the filing fees imposed on litigants.

The sponsors of the legislation have argued, based on caseload statistics, that these districts have some of the highest caseloads in the country. That may be true if you believe that the caseload statistics accurately describe how busy a particular district is. I am not arguing, today, that these statistics are necessarily inaccurate, but I would simply note that there have been some questions raised over the years regarding how well those statistics describe the caseloads. Regardless, based on those same statistics, there are other districts that are slow and getting slower.

If we conclude that some districts are disproportionately busy, and therefore conclude that we should increase the number of judgeships in those districts, then it only makes sense to offset the increase in judgeships by reallocating judicial resources away from districts that are slow. For this reason, I offered an amendment in the Judiciary Committee that would have reduced the number of judgeships in other districts by a total of 10. I will not take the time here to go through the statistics in each of the districts where I proposed eliminating judgeships. Suffice it to say, in each district slated for a reduction, the caseloads have decreased over the last 5 years, with the exception of 1 district, where the caseload has remained flat. And, even after you reduce the number of judgeships in these districts, they would still have caseloads that are well below the national average, across all 94 districts. If we are going to add judgeships, I believe this is the most appropriate way to do it.

The amendment I proposed in committee would also have delayed the effective date for the creation of the new judgeships until after the next Presidential election. Because none of us knows for certain who will be sworn in as President in January 2013, delaying the effective date would remove politics from the debate. Not only would it remove politics from the discussion, but it is consistent with how this issue was handled in the past. For instance, when the chairman of the committee introduced legislation to create additional judgeships during the 110th Congress, this is the approach he embraced.

Finally, I would note that the sponsors of the bill agreed to adopt a separate amendment I offered in the Judiciary Committee that would extend Whistleblower protection to Judicial Branch employees. This is an improvement. My amendment ensures that Judicial Branch employees are not simply left without redress when they face retaliation for blowing the whistle on fraud, waste, abuse, and mismanagement. While I appreciate the bill's sponsors' willingness to adopt my amendment, and I believe it is an improvement, the underlying legislation remains deeply flawed for the reasons I have discussed. Therefore, I must oppose it. I urge my colleagues to do the same.