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."