FYI. -- John Gilmore
DRAFT - August 1, 1994
SECTION 1. INTERCEPTING DIGITAL AND OTHER COMMUNICATIONS.
Title 18, United States Code, is amended by adding the following new chapter:
"CHAPTER 120 -- TELECOMMUNICATIONS CARRIER ASSISTANCE TO THE GOVERNMENT
"Sec. 2601. Assistance requirements.
"(a) CAPABILITY REQUIREMENTS. -- Except as provided in subsections (b),
(c) and (d) of this section and subsection (c) of section 2606, a
telecommunications carrier shall ensure that its services or facilities
that provide a customer or subscriber with the ability to originate,
terminate or direct communications have the capability to --
(i) expeditiously isolate and enable the government to intercept, to the
exclusion of any other communications, all wire and electronic
communications carried by the carrier within a service area to or from
equipment, facilities or services of a subscriber of such carrier
concurrent with their transmission to or from the subscriber's service,
facility or equipment or at such later time as may be acceptable to the
government;
(ii) expeditiously isolate and enable the government to access call
identifying information which is reasonably available to the carrier
--
(1) either before, during or immediately after the transmission of a wire
or electronic communication (or at such later time as may be acceptable to
the government); and
(2) in a manner that allows it to be associated with the communication to
which it pertains,
except that, with regard to information acquired solely pursuant to the
authority for pen registers and trap and trace devices as defined in
chapter 206 of this title, such call identifying information shall not
include any information that may disclose the physical location of the
subscriber, beyond what may be determined from the telephone number;
(iii) deliver intercepted communications and call identifying information
to the government in a format such that they may be transmitted by means of
facilities or services procured by the government to a location away from
the premises of the carrier; and
(iv) facilitate authorized communications interceptions and call
identifying information access unobtrusively and with a minimum of
interference with any subscriber's telecommunications service and in a
manner that protects the privacy and security of communications and call
identifying information not authorized to be intercepted and protects
information regarding the government's interception of communications and
access to call identifying information.
"(b) LIMITATIONS. This chapter does not authorize any
law enforcement agency or officer to require the specific design of
features or system configurations to be adopted by providers of wire or
electronic communication service, nor does it authorize any law enforcement
agency or officer to prohibit the adoption of any feature or service by
providers of wire or electronic communication service. The requirements of
subsection (a) do not apply to (i) information services or (ii) services or
facilities that support the transport or switching of communications for
the sole purpose of interconnecting telecommunications carriers or private
networks.
"(c) EMERGENCY OR EXIGENT CIRCUMSTANCES. In emergency or exigent
circumstances, including but not limited to those described in sections
2518(7), 2518(11)(b) and 3125 of this title or in section 1805(e) of title
50, a carrier may fulfill its responsibilities under subparagraph (a)(iii)
by allowing monitoring at its premises if that is the only means of
accomplishing the interception or access.
"(d) MOBILE SERVICE ASSISTANCE REQUIREMENTS. A telecommunications carrier
offering a feature or service that allows subscribers to redirect, hand
off, or assign their wire or electronic communications to another service
area or another service provider, or to utilize facilities in another
service area or of another service provider, shall ensure that, when the
carrier that had been providing assistance for the interception of wire or
electronic communications or access to call identifying information
pursuant to a court order or lawful authorization no longer has access to
the content of such communications or call identifying information within
the service area where interception has been occurring as a result of the
subscriber's use of such feature or service, information is available to
the government, either before, during or immediately after the transfer of
such communications, identifying the provider of wire or electronic
communication service that has acquired access to the communications.
"Sec. 2602. Notice of capacity requirements.
"(a) NOTICE OF MAXIMUM AND INITIAL CAPACITY REQUIREMENTS. Within
one year from the date of enactment of this Act, and after consulting with
state and local law enforcement agencies, telecommunications carriers,
providers of telecommunications support services, and manufacturers of
telecommunications equipment, the Attorney General shall publish in the
Federal Register and provide to appropriate telecommunications carrier
associations, standards bodies and fora --
(i) notice of the maximum capacity required to accommodate all the
communications interceptions, pen registers and trap and trace devices that
the Attorney General estimates government agencies authorized to conduct
electronic surveillance may conduct and use simultaneously; and
(ii) notice of the number of all communications interceptions, pen
registers, and trap and traces devices, representing a portion of the
maximum capacity set pursuant to (a)(i), that the Attorney General
estimates government agencies authorized to conduct electronic surveillance
may conduct and use simultaneously four years from the date of enactment of
this Act.
Such notices may be based upon the type of equipment, type of service,
number of subscribers, geographic location, or other measure.
"(b) COMPLIANCE WITH CAPACITY NOTICES. Within three years of the
publication by the Attorney General of a notice of capacity needs, or
within four years from the date of enactment of this Act, whichever is
longer, a telecommunications carrier shall ensure that its systems are
capable of --
(i) expanding to the maximum capacity set forth in the notice provided
pursuant to section (a)(i); and
(ii) accommodating simultaneously the number of interceptions, pen
registers and trap and trace devices for which notice has been provided
pursuant to section (a)(ii).
Thereafter, a telecommunications carrier shall ensure that it can
accommodate expeditiously any increase in the number of interceptions, pen
registers and trap and trace devices that authorized agencies may seek to
conduct and use, up to the maximum capacity specified pursuant to section
(a)(i).
"(c) PERIODIC INCREASES IN NOTICE OF MAXIMUM CAPACITY REQUIREMENTS.
The Attorney General shall periodically provide to telecommunications
carriers written notice of any necessary increases in the maximum capacity
specified pursuant to section (a)(i). Within three years after receiving
written notice of such increased capacity requirements, or within such
longer time period as may be specified by the Attorney General, a
telecommunications carrier shall ensure that its systems are capable of
expanding to the increased maximum capacity set forth in such notice.
"Sec. 2603. Systems security and integrity.
"A telecommunications carrier shall ensure that any court ordered
or lawfully authorized interception of communications or access to call
identifying information effected within its switching premises can be
activated only with the affirmative intervention of an individual officer
or employee of such carrier.
"Sec. 2604. Cooperation of equipment manufacturers and providers of
telecommunications support services.
"A telecommunications carrier shall consult, as necessary, in a
timely fashion with manufacturers of its telecommunications transmission
and switching equipment and its providers of telecommunications support
services for the purpose of identifying any service or equipment, including
hardware and software, that may require modification so as to permit
compliance with the provisions of this chapter. A manufacturer of
telecommunications transmission or switching equipment and a provider of
telecommunications support services shall, on a reasonably timely basis and
at a reasonable charge, make available to the telecommunications carriers
using its equipment or services such modifications as are necessary to
permit such carriers to comply with the provisions of this section.
"Section 2605. Technical requirements and standards for
implementation of section 2601 requirements.
"(a) SAFE HARBOR. To ensure the efficient and industry-wide implementation
of the requirements established in section 2601 of title 18, United States
Code, the Attorney General, in coordination with other Federal, State, and
local law enforcement agencies, shall consult with appropriate associations
and standards setting bodies of the telecommunications industry. A
telecommunications carrier shall be in compliance with the capability
requirements of section 2601 if it is in compliance with publicly available
technical requirements or standards which meet the requirements of section
2601 adopted by an industry association or standards setting body. The
absence of technical requirements or standards for implementing the
requirements of section 2601 shall not preclude any carrier from deploying
a technology or service nor shall the absence of standards relieve any
carrier of the obligations imposed by section 2601.
"(b) FCC AUTHORITY. In the event of a dispute about technical requirements
or standards or if industry associations or bodies fail to issue technical
requirements or standards, any person may petition the Federal
Communications Commission to establish, by notice and comment rulemaking or
other such proceedings as it may be authorized to conduct, specifications
or standards that meet the requirements established in section 2601 of
title 18, United States Code, protect the privacy and security of
communications not authorized to be intercepted, and serve the policy of
the United States to encourage the provision of new technologies and
services to the public. In a proceeding under this section initiated by a
telecommunications carrier, manufacturer of telecommunications transmission
and switching equipment, or provider of telecommunications support
services, the Commission, to recover the costs of its actions under this
section, may assess and collect a fee against the carriers, manufacturers
or providers that are parties to the proceeding. Such fee shall be
deposited as an offsetting collection in, and credited to, the account
providing appropriations to carry out the functions of the Commission and
shall be available without fiscal year limitation.
"(c) EXTENSION OF COMPLIANCE DATE FOR FEATURES AND SERVICES. A
telecommunications carrier proposing to deploy, or having deployed, a
feature or service within four years after the date of enactment of this
Act may petition the Commission for one or more extensions of the deadline
for complying with the requirements established in section 2601 of title
18, United States Code. The Commission may, after affording a full
opportunity for hearing and after consultation with the Attorney General,
grant an extension under this paragraph, if it determines that compliance
with the requirements of section 2601 of title 18, United States Code, is
not reasonably achievable through application of technology available
within the compliance period. An extension under this paragraph shall
extend for no longer than the earlier of (i) the date determined by the
Commission as necessary for the carrier to comply with the requirements of
section 2601 of title 18, United States Code; or (ii) in no event beyond
two years after the date on which the initial extension is granted. An
extension under this subsection shall apply to only that part of the
carrier's business on which the new feature or service is used.
"Sec. 2606. Enforcement orders.
"(a) If a court authorizing an interception under chapter 119,
under a State statute, or under the Foreign Intelligence Surveillance Act,
or authorizing use of a pen register or a trap and trace device under
chapter 206 or under a state statute finds that a telecommunications
carrier has failed to comply with the requirements in this chapter, the
court may direct that the carrier comply forthwith and may direct that a
provider of support services to such carrier or the manufacturer of the
carrier's transmission or switching equipment furnish forthwith
modifications necessary for the carrier to comply.
"(b) The Attorney General may apply to the appropriate United
States District Court for, and the District Courts shall have jurisdiction
to issue, an order directing that a telecommunications carrier, a provider
of telecommunications carrier support services or a manufacturer of
telecommunications transmission or switching equipment comply with this
chapter.
"(c) A court shall issue an order under subsections (a) or (b)
only if it finds that --
(i) alternative technologies or capabilities or the facilities of another
carrier are not reasonably available to law enforcement for implementing
the interception of communications or access to call identifying
information; and
(ii) compliance with the requirements of this chapter is reasonably
achievable through the application of available technology to the feature
or service at issue or would have been reasonably achievable if timely
action had been taken.
A court may not issue an order where the government's demands for
interception of communications and acquisition of call identifying
information exceed the capacity for which notice has been provided under
section 2602.
"(d) A court issuing an order under this section may impose a
civil penalty of up to $10,000 per day for each day in violation after the
issuance of the order or after such future date as the court may specify.
In determining whether to impose a fine and in determining its amount, the
court shall take into account the nature, circumstances, and extent of the
violation, and, with respect to the violator, ability to pay, good faith
efforts to comply in a timely manner, effect on ability to continue to do
business, the degree of culpability or delay in undertaking efforts to
comply, and such other matters as justice may require. The Attorney
General may file a civil action in the appropriate United States District
Court to collect, and the United States District Courts shall have
jurisdiction to impose, such fines.
"Sec. 2607. Definitions.
"As used in this chapter --
"(1) the terms defined in section 2510 of this title have,
respectively, the definitions given such terms in that section; "(2)
'telecommunications carrier' means any person or entity engaged in the
transmission or switching of wire or electronic communications as a common
carrier for hire, as defined by section 3(h) of the Communications Act of
1934, and includes (i) any person or entity engaged in providing commercial
mobile service, as defined in section 6002(b) of Public Law 103-66, and
(ii) any person or entity engaged in providing wire or electronic
communication switching or transmission service to the extent that the
Commission finds that such service is a replacement for a substantial
portion of the local telephone exchange service and that it is in the
public interest to deem such person or entity to be a common carrier for
purposes of this Act.
"(3) 'provider of telecommunications support services' means any
person or entity that provides products, software, or services to a
telecommunications carrier that are integral to the switching or
transmission of wire or electronic communications;
"(4) 'government' means the Government of the United States and
any agency or instrumentality thereof, the District of Columbia, any
commonwealth, territory or possession of the United States, and any state
or political subdivision thereof authorized by law to conduct electronic
surveillance;
"(5) 'information services' means the offering of a capability for
generating, acquiring, storing, transforming, processing, retrieving,
utilizing, or making available information via telecommunications, and
includes electronic publishing, but does not include any use of any such
capability for the management, control or operation of a telecommunications
system or the management of a telecommunications service;
"(6) 'call identifying information' means all dialing or
signalling information associated with the origin, direction, destination,
or termination of each communication generated or received by the
subscriber equipment, facility or service of such carrier that is the
subject of a court order or lawful authorization, but does not include any
information that may disclose the physical location of the subscriber
beyond what may be inferred from the telephone number."
SECTION 2. EFFECTIVE DATE. Sections 2601 and 2603 of title 18 as
added by section 1 of this Act shall take effect four years after the date
of enactment of this Act. Unless otherwise specified, all other provisions
of this Act shall become effective on the date of enactment.
SECTION 3. REIMBURSEMENT AND FUNDING.
(a) The Attorney General shall reimburse telecommunications
carriers for all reasonable costs directly associated with (1) the
modifications performed by carriers prior to the effective date of section
2601 or prior to the expiration of any extension granted under section
2605(c) of title 18, United States Code, as added by this Act, to establish
the capabilities necessary to comply with section 2601; (2) establishing
the maximum capacity requirements set pursuant to section 2602 of title 18;
and (3) expanding existing facilities to accommodate simultaneously the
number of interceptions, pen registers and trap and trace devices for which
notice has been provided pursuant to section 2602. Notwithstanding any
other provision of law, the Attorney General is authorized to establish any
procedures and regulations deemed necessary to effectuate timely and
cost-efficient reimbursement to telecommunications carriers for
reimbursable costs incurred under this Act, under chapters 119 and 121 of
Title 18, United States Code, and under the Foreign Intelligence
Surveillance Act. If there is a dispute between the Attorney General and a
telecommunications carrier regarding the amount of reasonable costs to be
reimbursed, the dispute shall be resolved and the amount determined, in a
proceeding initiated at the Federal Communications Commission under section
2605 of title 18 or by the court from which an enforcement order is sought
under section 2606.
(b) For fiscal years 1995 through 1998, there are authorized to be
appropriated a total of $500,000,000. For fiscal years 1999 and
thereafter, there are authorized to be appropriated such sums as may be
necessary to carry out the purposes of this Act.
(c)(i) On or before November 30, 1995, and on or before the same
day each year for five years thereafter, the Attorney General shall submit
to the Congress a report on the amounts paid during the preceding fiscal
year in reimbursement to carriers for costs incurred in making
modifications to comply with the provisions of this Act. Said reports
shall include but not be limited to (1) a detailed accounting of the
amounts paid to each carrier and the technology, feature or service for
which the amounts were paid and (2) projections of the amounts expected to
be paid in the then ongoing fiscal year, the carriers to which
reimbursement is expected to be paid, and the technologies, services, or
features for which reimbursement is expected to be paid.
(ii) On or before April 1, 1996 and April 1, 1998, the General
Accounting Office shall, after consultation with the Attorney General and
the telecommunications industry, submit to the Congress a report reflecting
its audit of the sums paid by the Attorney General to carriers in
reimbursement. Such report shall include the findings and conclusions of
the Comptroller General on the costs to be incurred after the compliance
date, including projections of the amounts expected to be incurred and the
technologies, services, or features for which expenses are expected to be
incurred.
SECTION 4. DEFINITION.
Section 2510(4) of title 18 is amended by adding at the end
thereof, before the semicolon, ", except that with regard to the
transmission of a communication encrypted by a subscriber, a
telecommunications carrier shall not be responsible for decrypting, or
ensuring the government's ability to decrypt, the communication, unless the
encryption was provided by the service provider and the service provider
possesses the information necessary to decrypt the communication".
SECTION 5. CORDLESS TELEPHONES.
(a) Definitions. - Section 2510 of title 18, United States Code,
is amended -
(1) in paragraph (1), by striking "but such term does not include"
and all that follows through "base unit"; and
(2) in paragraph (12), by striking subparagraph (A) and
redesignating subparagraphs (B) through (D) as subparagraphs (A) through
(C) respectively.
(b) Penalty. - Section 2511 of title 18, United States Code, is
amended -
(1) in subsection (4)(b)(i), by inserting "a cordless telephone
communication that is transmitted between the cordless telephone handset
and the base unit," after "cellular telephone communication,"; and
(2) in subsection (4)(b)(ii), by inserting "a cordless telephone
communication that is transmitted between the cordless telephone handset
and the base unit," after "cellular telephone communication,".
SECTION 6. RADIO-BASED DATA COMMUNICATIONS.
Section 2510(16) of title 18, United States Code, is amended by
striking the word "or" at the end of subparagraph (D) and inserting an "or"
at the end of subparagraph (E) and adding the following new subparagraph:
"(F) an electronic communication;"
SECTION 7. PENALTIES FOR MONITORING RADIO COMMUNICATIONS THAT ARE
NOT SCRAMBLED, ENCRYPTED, OR NON-PUBLIC.
Section 2511(4)(b) of title 18, United States Code is amended by
deleting the phrase "or encrypted, then -" and inserting the following:
", encrypted, or transmitted using modulation techniques
whose essential parameters have been withheld from the public with the
intention of preserving the privacy of such communication, then -"
SECTION 8. TECHNICAL CORRECTION.
Section 2511(2)(a)(i) of title 18 is amended by striking out "used
in the transmission of a wire communication" and inserting in lieu thereof
"used in the transmission of a wire or electronic communication".
SECTION 9. FRAUDULENT ALTERATION OF COMMERCIAL MOBILE RADIO
INSTRUMENTS.
(a) Section 1029(a) of title 18 is amended by striking the word
"or" at the end of subparagraph (3) and adding the following new
subparagraphs:
"(5) knowingly and with intent to defraud uses, produces, traffics in, has
control or custody of, or possesses a telecommunications instrument that
has been modified or altered to obtain unauthorized use of
telecommunications services; or
"(6) knowingly and with intent to defraud uses, produces, traffics in, has
control or custody of, or possesses (i) a scanning receiver or (ii)
hardware or software used for altering or modifying telecommunications
instruments to obtain unauthorized access to telecommunications services."
(b) Section 1029(c)(2) of title 18 is amended by striking "(a)(1)
or (a)(4)" and inserting in lieu thereof "(a)(1), (a)(4), (a)(5) or
(a)(6)".
(c) Section 1029(e)(1) of title 18 is amended by inserting
"electronic serial number, mobile identification number, personal
identification number, or other telecommunications service, equipment, or
instrument identifier," after "account number,".
(d) Section 1029(e) of title 18 is amended by striking the word
"and" at the end of subparagraph (5), by striking the period at the end of
subparagraph (6) and adding "; and", and by adding the following new
subparagraph:
"(7) the term 'scanning receiver' means any device or apparatus that can be
used to intercept a wire or electronic communication in violation of
chapter 119 of this title."
SECTION 10. TRANSACTIONAL DATA.
(a) Section 2703(c)(1)(B) of title 18, United States Code, is
amended by adding at the end thereof the following:
"Records or other information disclosed under this subparagraph shall not
include any interactive information generated by the subscriber or customer
or any information identifying services used by the subscriber or customer,
except the dialling or signalling information utilized in call or message
processing.";
(b) Section 3121 of title 18, United States Code, is amended by
redesignating subsection (c) as (d), and adding a new subsection (c) as
follows:
"(c) Limitation. -- A government agency authorized to install and use a pen
register under this chapter, or under state law, shall use technology
reasonably available to it that restricts the recording or decoding of
electronic or other impulses to the dialling and signalling information
utilized in call processing."
SECTION 11. REPORTING OF INTERCEPTIONS ENCOUNTERING
ELECTRONICALLY ENCRYPTED COMMUNICATIONS.
Section 2519(2) of title 18, United States Code, is amended by
deleting everything after the semicolon in subparagraph (f) and inserting
the following:
"(g)the number of interceptions encountering electronically encrypted
communications, specifying the number of such interceptions that could not
be decrypted; and
"(h)The information required by paragraphs (b) through (g) of this
subsection with respect to orders or extensions obtained in a preceding
calendar year."
