[Senate Report 111-110]
[From the U.S. Government Publishing Office]


        NOTICE: In lieu of a star print, errata are printed to indicate 
            corrections to the original report.

                                                       Calendar No. 208
111th Congress                                                   Report
 1st Session                                                    111-110




               December 17, 2009.--Ordered to be printed


Mr. Leahy, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with


                         [To accompany S. 1490]


    The report (111-110) failed to include the following 
Supplemental Views. They should follow the Minority Views in 
the report.


ERRATA          Personal Data Privacy and Security Act of 2009

    In addition to the concerns expressed by Senators Sessions 
and Kyl in the minority views of the report on the Personal 
Data Privacy and Security Act of 2009, we are concerned about 
Section 104, which amends the Bankruptcy Abuse Prevention and 
Consumer Protection Act (Bankruptcy Act). Section 104 was added 
by Senator Whitehouse during consideration of a substantially 
similar bill during the 110th Congress, and the provision 
remains in this version of the bill. This section adjusts the 
``means test'' in the Bankruptcy Act to exempt debtors who are 
the victims of identity theft if they meet at least one of the 
following minimal requirements: the identity theft either 
results in at least $20,000 in debt in one year, 50 percent of 
the debtor's bankruptcy claims, or 25 percent of the debtor's 
gross income for a 12-month period. Contrary to the majority's 
assertions, the provision does not specify that a debtor will 
be exempted from the means test only if they are in bankruptcy 
due to identity theft. In fact, a debtor with significant 
resources could satisfy one of these three requirements, 
exempting them from the means test unnecessarily. In addition, 
the language of the section states that a debtor may be exempt 
from the means test if they merely assert that a fraud was 
``attempted'' against them; the provision requires no proof of 
this attempt beyond mere testimony. Consequently, any debtor 
could claim identity theft has occurred and escape the means 
test. This provision is also unnecessary because debtors 
already have a defense against claims arising from identity 
theft, namely that they did not incur the debt. Finally, this 
provision is nongermane to data security and notification and 
is structurally unnecessary. Senator Grassley, the lead sponsor 
of the Bankruptcy Act, noted during the markup of this bill in 
the 110th Congress that the ``special circumstances'' language 
already contained in the Bankruptcy Act contemplates just this 
kind of situation, obviating the need for this language.
    For these reasons, during the markup, Senator Coburn 
offered an amendment to S. 1490 that would have stripped this 
provision from the bill. In response, Senator Whitehouse 
offered to work with Senator Coburn on the language of this 
provision, and based on those assurances, Senator Coburn 
withdrew his amendment. We intend to continue working with 
Senator Whitehouse to alleviate our concerns with this 
provision prior to consideration by the full Senate.
                                   Chuck Grassley.
                                   Tom Coburn.
                                   Jeff Sessions.