103rd Congress Draft 2/9/94 2nd Session S. _____ [H.R. _____] IN THE SENATE IN THE HOUSE OF REPRESENTATIVES M. __________ introduced the following bill; which was referred to the Committee on __________ A BILL To ensure continued law enforcement electronic surveillance access to the content of wire and electronic communications and call setup information when authorized by law, to improve communications privacy protection, and for other purposes. By it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SEC. 1. SHORT TITLE. This Act may be cited as the "Digital Telephony and Communications Privacy Improvement Act of 1994." SEC. 2. PURPOSE. The purpose of this Act is to clarify and define the responsibilities of common carriers, providers of common carrier support services, and telecommunications equipment manufacturers to provide the assistance required to ensure that government agencies can implement court orders and lawful authorizations to intercept the content of wire and electronic communications and acquire call setup information under chapters 119 and 206 of title 18 and chapter 36 of title 50. Otherwise, except for the provisions in section 4, nothing in this Act is intended to alter any provision contained in the Federal electronic surveillance, pen register, or trap and trace statutes, or those of any state or other jurisdiction. In particular, nothing herein is intended to enlarge or reduce the government's authority to lawfully intercept the content of communications or install or use pen register or trap and trace devices, or to increase or decrease any criminal penalties for unlawfully intercepting the content of communications or installing or using pen register or trap and trace devices, or to alter the provisions regarding service provider assistance, payment for assistance, causes of action, civil liability, or good faith defenses. The Act is further intended to improve communications privacy protection for cordless telephones, certain radio-based data communications and networks, communications transmitted using certain privacy-enhancing modulation techniques, and to clarify the lawfulness of quality control and service provision monitoring of electronic communications. SEC. 3. COMMON CARRIER ASSISTANCE (a) _New section_. Chapter 109 of title 18, United States Code, is amended by adding the following new section: "Sec. 2237. Common carrier assistance to government agencies. "(a) Assistance requirements. Common carriers shall be required to provide forthwith, pursuant to court order or lawful authorization, the following capabilities and capacities in order to permit the government to conduct electronic surveillance and pen register and trap and trace investigations effectively: "(1) The ability to execute expeditiously and simultaneously within a common carrier's system all court orders and lawful authorizations for the interception of wire and electronic communications and the acquisition of call setup information related to the facilities or services of subscribers of such common carrier; "(2) the ability to intercept the content of communications and acquire call setup information concurrent with the transmission of the communication to or from the subscriber's facility or service that is the subject of the court order or lawful authorization, to the exclusion of any wire or electronic communication or call setup information of any other subscriber, notwithstanding the mobile nature of the facility or service that is the subject of the court order or lawful authorization or the use by the subscriber who is the subject of the court order or lawful authorization of any features offered by the common carrier; "(3) the ability to intercept the content of communications and acquire call setup information unobtrusively and with a minimum of interference with any subscriber's telecommunications service; and "(4) the ability to receive, in a generally available format, the intercepted content of communications and acquired call setup information at a location identified by the government distant from the facility that is the subject of the interception, from the interception access point, and from the premises of the common carrier (except where emergency or exigent circumstances such as those described in 18 U.S.C. 2518(7), 2518(11)(b), or 3125, or in 50 U.S.C. 1805(e), necessitate monitoring at the common carrier's premises). "(b) Systems security. The government shall notify a common carrier of any interception of wire or electronic communications or any acquisition of call setup information that is to be effected within the premises of such common carrier pursuant to court order or lawful authorization. After notification, such common carrier shall designate an individual or individuals to activate such interception or acquisition forthwith. Such individual(s) shall be available at all times to activate such interceptions or acquisitions. Such interceptions or acquisitions effected within the premises of a common carrier may be activated only by the affirmative intervention of such individual(s) designated by such common carrier. "(c) Compliance date. To the extent that common carriers providing service within the United States currently cannot fulfil the requirements set forth in subsection (a) of this section, they shall fulfil such requirements within three years from the date of enactment of this Act. "(d) Cooperation of support service providers and equipment manufacturers. Common carriers shall consult, as necessary, in a timely fashion with appropriate providers of common carrier support services and telecommunications equipment manufacturers for the purpose of identifying any services or equipment, including hardware and software, that may require modification so as to permit compliance with the provisions of this Act. A provider of common carrier support services or a telecommunications equipment manufacturer shall make available to a common carrier on a timely and priority basis, and at a reasonable cost, any support service or equipment, including hardware or software, which may be required so as to permit compliance with the provisions of this Act. "(e) Enforcement. The Attorney General shall have authority to enforce the provisions of subsections (a), (b), (c), and (d) of this section. The Attorney General may apply to the appropriate United States District Court for an order restraining or enjoining the provision of service of any common carrier who violates subsection (a), (b), (c), or (d) of this section. The District Courts shall have jurisdiction to issue such restraining order or injunction. The Attorney General may also request the Federal Communications Commission to assist in enforcing the provisions of this Act. "(f) Penalties. Any common carrier that violates any provision of subsection (a) of this section shall be subject to a civil penalty of $10,000 per day for each day in violation. The Attorney General may file a civil action in the appropriate United States District Court to collect, and the United States District Courts shall jurisdiction to impose, such penalties. After consultation with the Attorney General, the Federal Communications Commission may also impose regulatory sanctions or fines otherwise authorized by law. "(g) Consultation. The Attorney General is encouraged to consult with the Federal Communications Commission and common carrier representatives and to utilize common carrier standards bodies, associations, or other such organizations to discuss details of the requirements, such as those related to capacity, in order to facilitate compliance with the provisions of this Act. "(h) Funding. Notwithstanding any other provision of law, the Federal Communications Commission shall implement promptly methods and procedures that allow each common carrier to be remunerated by the Federal Government for all reasonable costs incurred in the course of complying with the requirements of this Act. "(i) Definitions. -- As used in this Section -- (1) 'common carrier' means any person or entity engaged as a common carrier for hire, as defined by section 3(h) of the Communications Act of 1934, and includes a commercial mobile service or interconnected service, as defined in section 6002(b) of Public Law 103-66; (2) 'provider of common carrier support services' means any person or entity who provides services to a common carrier that are integral to processing, directing, forwarding, or completing telephone calls or electronic communication transmissions; (3) 'wire communication' shall have the same meaning as set forth in subsection 2510(1) of title 18, United States Code; (4) 'electronic communication' shall have the same meaning as set forth in subsection 2510(12) of title 18, United States Code; (5) 'intercept' shall have the same meaning as set forth in subsection 2510(4) of title 18, United States Code, except that with regard to a common carrier's transmission of a communication encrypted by a subscriber, the common carrier shall not be responsible for ensuring the government agency's ability to acquire the plaintext of the communications content, unless the encryption was provided by the common carrier and the common carrier possesses the information necessary to decrypt the communication; (6) 'concurrent with the transmission of the communication,' as used in section 3(a)(2) of this Act, means contemporaneous with the transmission; but it shall include, with regard to electronic communications, the ability of a government agency to acquire such communications at the conclusion of the transmission, and, with regard to call set up information, the ability to acquire such information either before, during, or immediately after the transmission of the communication; (7) 'call set up information' shall mean the information generated which identifies the origin and destination of a wire or electronic communication placed to, or received by, the facility or service that is the subject of a court order or lawful authorization, including information associated with any telecommunication system dialing or calling features or services; and (8) '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." SEC. 4. COMMUNICATIONS PRIVACY IMPROVEMENT AND MONITORING CLARIFICATION. Chapter 119 of title 18 is amended by making the following changes: (1) 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 a 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 a cordless telephone handset and the base unit," after "cellular telephone communication,". (2) 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;". (3) 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 or such communication, then--". (4)Technical correction. Section 2511(2)(a)(i) of title 18, United States Code, is amended by striking out "used in the transmission of wire communication" and inserting in lieu thereof "used in the transmission of a wire or electronic communication.".