103d Congress Rept. 103-827
HOUSE OF REPRESENTATIVES
2d Session Part 1
=============================================================================
TELECOMMUNICATIONS CARRIER ASSISTANCE TO THE GOVERNMENT
----------
October 4, 1994.--Ordered to be printed
----------
Mr. Brooks, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 4922]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill (H.R. 4922)
to amend title 18, United States Code, to make clear a telecommunications
carrier's duty to cooperate in the interception of communications for law
enforcement purposes, and for other purposes, having considered the same,
report favorably thereon with an amendment and recommend that the bill as
amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu thereof the
following:
SECTION 1. INTERCEPTION OF DIGITAL AND OTHER COMMUNICATIONS.
(a) In General.--Part I of title 18, United States Code, is amended by
inserting after chapter 119 the following new chapter:
"CHAPTER 120--TELECOMMUNICATIONS CARRIER ASSISTANCE TO THE GOVERNMENT
"Sec.
"2601. Definitions.
"2602. Assistance capability requirements.
"2603. Notices of capacity requirements.
"2604. Systems security and integrity.
"2605. Cooperation of equipment manufacturers and providers of
telecommunications support services.
"2606. Technical requirements and standards; extension of compliance date.
"2607. Enforcement orders.
"2608. Payment of costs of telecommunications carriers to comply with
capability requirements.
"Sec. 2601. Definitions
"(a) Definitions.--In this chapter--
"the terms defined in section 2510 have, respectively, the meanings
stated in that section.
" 'call-identifying information'--
"(A) means dialing or signaling information that identifies the
origin, direction, destination, or termination of each communication
generated or received by the subscriber equipment, facility, or
service of a telecommunications carrier that is the subject of a
court order or lawful authorization; but
"(B) does not include any information that may disclose the
physical location of the subscriber (except to the extent that the
location may be determined from the telephone number).
" 'Commission' means the Federal Communications Commission.
" '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.
" 'information services'--
"(A) means the offering of a capability for generating, acquiring,
storing, transforming, processing, retrieving, utilizing, or making
available information via telecommunications; and
"(B) includes electronic publishing and electronic messaging
services; but
"(C) does not include any capability for a telecommunications
carrier's internal management, control, or operation of its
telecommunications network.
" 'telecommunications support services' means a product, software, or
service used by a telecommunications carrier for the internal signaling
or switching functions of its telecommunications network.
" 'telecommunications carrier'--
"(A) means a person or entity engaged in the transmission or
switching of wire or electronic communications as a common carrier
for hire (within the meaning of section 3(h) of the Communications
Act of 1934 (47 U.S.C. 153(h)));
"(B) includes--
"(i) a person or entity engaged in providing commercial mobile
service (as defined in section 332(d) of the Communications Act
of 1934 (47 U.S.C. 332(d))); or
"(ii) a 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 a person or entity to be a telecommunications carrier for
purposes of this chapter; but
"(C) does not include persons or entities insofar as they are
engaged in providing information services.
"Sec. 2602. Assistance capability requirements
"(a) Capability Requirements.--Except as provided in subsections (b), (c),
and (d) of this section and sections 2607(c) and 2608(d), 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 are capable of--
"(1) expeditiously isolating and enabling 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
concurrently 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;
"(2) expeditiously isolating and enabling the government to access
call-identifying information that is reasonably available to the
carrier--
"(A) 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
"(B) 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
section 3127), such call-identifying information shall not include any
information that may disclose the physical location of the subscriber
(except to the extent that the location may be determined from the
telephone number);
"(3) delivering 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 other than the premises of the carrier; and
"(4) facilitating authorized communications interceptions and access to
call-identifying information unobtrusively and with a minimum of
interference with any subscriber's telecommunications service and in a
manner that protects--
"(A) the privacy and security of communications and call-
identifying information not authorized to be intercepted; and
"(B) information regarding the government's interception of
communications and access to call-identifying information.
"(b) Limitations.--
"(1) Design of features and systems configurations.--This chapter does
not authorize any law enforcement agency or officer--
"(A) to require any specific design of features or system
configurations to be adopted by providers of wire or electronic
communication service, manufacturers of telecommunications equipment,
or providers of telecommunications support services; or
"(B) to prohibit the adoption of any feature or service by
providers of wire or electronic communication service, manufacturers
of telecommunications equipment, or providers of telecommunications
support services.
"(2) Information services; private networks and interconnection
services and facilities.--The requirements of subsection (a) do not apply
to--
"(A) information services; or
"(B) services or facilities that support the transport or switching
of communications for private networks or for the sole purpose of
interconnecting telecommunications carriers.
"(3) Encryption.--A telecommunications carrier shall not be responsible
for decrypting, or ensuring the government's ability to decrypt, any
communication encrypted by a subscriber or customer, unless the
encryption was provided by the carrier and the carrier possesses the
information necessary to decrypt the communication.
"(c) Emergency or Exigent Circumstances.--In emergency or exigent
circumstances (including those described in sections 2518 (7) or (11)(b) and
3125 of this title and section 1805(e) of title 50), a carrier at its
discretion may comply with subsection (a)(3) 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 in
which interception has been occurring as a result of the subscriber's use of
such a feature or service, information is made available to the government
(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. 2603. Notices of capacity requirements
"(a) Notices of Maximum and Actual Capacity Requirements.--
"(1) In general.--Not later than 1 year after the date of enactment of
this chapter, after consulting with State and local law enforcement
agencies, telecommunications carriers, providers of telecommunications
support services, and manufacturers of telecommunications equipment, and
after notice and comment, the Attorney General shall publish in the
Federal Register and provide to appropriate telecommunications industry
associations and standard-setting organizations--
"(A) notice of the maximum capacity required to accommodate all of
the communication interceptions, pen registers, and trap and trace
devices that the Attorney General estimates that government agencies
authorized to conduct electronic surveillance may conduct and use
simultaneously after the date that is 4 years after the date of
enactment of this chapter; and
"(B) notice of the actual number of communication interceptions,
pen registers, and trap and trace devices, representing a portion of
the maximum capacity set forth under subparagraph (A), that the
Attorney General estimates that government agencies authorized to
conduct electronic surveillance may conduct and use simultaneously
after the date that is 4 years after the date of enactment of this
chapter.
"(2) Basis of notices.--The notices issued under paragraph (1)--
"(A) may be based upon the type of equipment, type of service,
number of subscribers, type or size or carrier, nature of service
area, or any other measure; and
"(B) shall identify, to the maximum extent possible, the capacity
required at specific geographic locations, including carrier office
locations.
"(b) Compliance With Capacity Notices.--
"(1) Initial capacity.--Within 3 years after the publication by the
Attorney General of a notice of capacity requirements or within 4 years
after the date of enactment of this chapter, whichever is longer, a
telecommunications carrier shall, subject to subsection (e), ensure that
its systems are capable of--
"(A) expanding to the maximum capacity set forth in the notice
under subsection (a)(1)(A); and
"(B) accommodating simultaneously the number of interceptions, pen
registers, and trap and trace devices set forth in the notice under
subsection (a)(1)(B).
"(2) Expansion to maximum capacity.--After the date described in
paragraph (1), a telecommunications carrier shall, subject to subsection
(e), ensure that it can accommodate expeditiously any increase in the
actual number of communication interceptions, pen registers, and trap and
trace devices that authorized agencies may seek to conduct and use, up to
the maximum capacity requirement set forth in the notice under subsection
(a)(1)(A).
"(c) Notices of Increased Maximum Capacity Requirements.--
"(1) The Attorney General shall periodically publish in the Federal
Register, after notice and comment, notice of any necessary increases in
the maximum capacity requirement set forth in the notice under subsection
(a)(1)(A).
"(2) Within 3 years after notice of increased maximum capacity
requirements is published under paragraph (1), or within such longer time
period as the Attorney General may specify, a telecommunications carrier
shall, subject to subsection (e), ensure that its systems are capable of
expanding to the increased maximum capacity set forth in the notice.
"(d) Carrier Statement.--Within 180 days after the publication by the
Attorney General of a notice of capacity requirements pursuant to subsection
(a), a telecommunications carrier shall submit to the Attorney General a
statement identifying any of its systems or services that do not have the
capacity to accommodate simultaneously the number of interceptions, pen
registers, and trap and trace devices set forth in the notice under
subparagraph (A) or (B) of subsection (a)(1).
"(e) Reimbursement Required for Compliance.--The Attorney General shall
review the statements submitted under subsection (d) and may, subject to the
availability of appropriations, agree to reimburse a telecommunications
carrier for the just and reasonable costs directly associated with
modifications to attain such capacity requirement. Until the Attorney General
agrees to reimburse such carrier for such modification, such carrier shall be
considered to be in compliance with the capacity notices under subparagraphs
(A) and (B) of subsection (a)(1).
"Sec. 2604. 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 the carrier.
"Sec. 2605. Cooperation of equipment manufacturers and providers of
telecommunications support services
"(a) Consultation.--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 ensuring that current and planned
services and equipment comply with the capability requirements of section
2602 and the capacity requirements identified by the Attorney General under
section 2603.
"(b) Cooperation.--Subject to sections 2607(c) and 2608(d), 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 features or modifications as are
necessary to permit such carriers to comply with the capability requirements
of section 2602 and the capacity requirements identified by the Attorney
General under section 2603.
"Sec. 2606. Technical requirements and standards; extension of compliance
date
"(a) Safe Harbor.--
"(1) Consultation.--To ensure the efficient and industry-wide
implementation of the assistance capability requirements under section
2602, the Attorney General, in coordination with other Federal, State,
and local law enforcement agencies, shall consult with appropriate
associations and standard-setting organizations of the telecommunications
industry and with representatives of users of telecommunications services
and facilities.
"(2) Compliance under accepted standards.--A telecommunications carrier
shall be found to be in compliance with the assistance capability
requirements under section 2602, and a manufacturer of telecommunications
transmission or switching equipment or a provider of telecommunications
support services shall be found to be in compliance with section 2605, if
the carrier, manufacturer, or support service provider is in compliance
with publicly available technical requirements or standards adopted by an
industry association or standard-setting organization or by the
Commission under subsection (b) to meet the requirements of section 2602.
"(3) Absence of standards.--The absence of technical requirements or
standards for implementing the assistance capability requirements of
section 2602 shall not--
"(A) preclude a carrier, manufacturer, or services provider from
deploying a technology or service; or
"(B) relieve a carrier, manufacturer, or service provider of the
obligations imposed by section 2602 or 2605, as applicable.
"(b) FCC Authority.--
"(1) In general.--If industry associations or standard-setting
organizations fail to issue technical requirements or standards or if a
government agency or any other person believes that such requirements or
standards are deficient, the agency or person may petition the Commission
to establish, by notice and comment rulemaking or such other proceedings
as the Commission may be authorized to conduct, technical requirements or
standards that--
"(A) meet the assistance capability requirements of section 2602;
"(B) protect the privacy and security of communications not
authorized to be intercepted; and
"(C) serve the policy of the United States to encourage the
provision of new technologies and services to the public.
"(2) Transition period.--If an industry technical requirement or
standard is set aside or supplanted as a result of Commission action
under this section, the Commission, after consultation with the Attorney
General, shall establish a reasonable time and conditions for compliance
with and the transition to any new standard, including defining the
obligations of telecommunications carriers under section 2602 during any
transition period.
"(c) Extension of Compliance Date for Features and Services.--
"(1) Petition.--A telecommunications carrier proposing to install or
deploy, or having installed or deployed, a feature or service within 4
years after the date of enactment of this chapter may petition the
Commission for 1 or more extensions of the deadline for complying with
the assistance capability requirements under section 2602.
"(2) Ground for extension.--The Commission may, after affording a full
opportunity for hearing and after consultation with the Attorney General,
grant an extension under this paragraph, if the Commission determines
that compliance with the assistance capability requirements under section
2602 is not reasonably achievable through application of technology
available within the compliance period.
"(3) Length of extension.--An extension under this paragraph shall
extend for no longer than the earlier of--
"(A) the date determined by the Commission as necessary for the
carrier to comply with the assistance capability requirements under
section 2602; or
"(B) the date that is 2 years after the date on which the extension
is granted.
"(4) Applicability of extension.--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. 2607. Enforcement orders
"(a) Enforcement by Court Issuing Surveillance Order.--If a court
authorizing an interception under chapter 119, a State statute, or the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) or
authorizing use of a pen register or a trap and trace device under chapter
206 or 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 the carrier or the manufacturer of the carrier's transmission or switching
equipment furnish forthwith modifications necessary for the carrier to
comply.
"(b) Enforcement Upon Application by Attorney General.--The Attorney
General may apply to the appropriate United States district court for, and
the United States district courts shall have jurisdiction to issue, an order
directing that a telecommunications carrier, a manufacturer of
telecommunications transmission or switching equipment, or a provider of
telecommunications support services comply with this chapter.
"(c) Grounds for Issuance.--A court shall issue an order under subsection
(a) or (b) only if the court finds that--
"(1) 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
"(2) 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.
"(d) Time for Compliance.--Upon issuance of an enforcement order under this
section, the court shall specify a reasonable time and conditions for
complying with its order, considering the good faith efforts to comply in a
timely manner, any effect on the carrier's, manufacturer's, or service
provider's 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.
"(e) Limitation.--An order under this section may not require a
telecommunications carrier to meet the government's demand for interception
of communications and acquisition of call-identifying information to any
extent in excess of the capacity for which the Attorney General has agreed to
reimburse such carrier.
"(f) Civil Penalty.--
"(1) In general.--A court issuing an order under this section against a
telecommunications carrier, a manufacturer of telecommunications
transmission or switching equipment, or a provider of telecommunications
support services 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.
"(2) Considerations.--In determining whether to impose a fine and in
determining its amount, the court shall take into account--
"(A) the nature, circumstances, and extent of the violation;
"(B) the violator's ability to pay, the violator's good faith
efforts to comply in a timely manner, any effect on the violator's
ability to continue to do business, the degree of culpability, and
the length of any delay in undertaking efforts to comply; and
"(C) such other matters as justice may require.
"(3) Civil action.--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. 2608. Payment of costs of telecommunications carriers to comply with
capability requirements
"(a) Equipment, Features, and Services Deployed Before Date of Enactment.--
The Attorney General may, subject to the availability of appropriations,
agree to pay telecommunications carriers for all just and reasonable costs
directly associated with the modifications performed by carriers in
connection with equipment, features, and services installed or deployed
before the date of enactment of this chapter to establish the capabilities
necessary to comply with section 2602.
"(b) Equipment, Features, and Services Deployed On or After Date of
Enactment.--
"(1) In general.--If compliance with the assistance capability
requirements of section 2602 is not reasonably achievable with respect to
equipment, features, or services deployed on or after the date of
enactment of this chapter, the Attorney General, on application of a
telecommunications carrier, may agree to pay the telecommunications
carrier for just and reasonable costs directly associated with achieving
compliance.
"(2) Consideration.--In determining whether compliance with the
assistance capability requirements of section 2602 is reasonably
achievable with respect to any equipment, feature, or service installed
or deployed after the date of enactment of this chapter, consideration
shall be given to the time when the equipment, feature, or service was
installed or deployed.
"(c) Allocation of Funds for Payment.--The Attorney General shall allocate
funds appropriated to carry out this chapter in accordance with law
enforcement priorities determined by the Attorney General.
"(d) Failure To Make Payment With Respect to Equipment, Features, and
Services Deployed Before Date of Enactment.--
"(1) Considered to be in compliance.--If a carrier has requested
payment in accordance with procedures promulgated pursuant to subsection
(e), and the Attorney General has not agreed to pay the
telecommunications carrier for all reasonable costs directly associated
with modifications necessary to bring the equipment, feature, or service
into actual compliance with the assistance capability requirements of
section 2602, any equipment, feature, or service of a telecommunications
carrier deployed before the date of enactment of this chapter shall be
considered to be in compliance with the assistance capability
requirements of section 2602 until the equipment, feature, or service is
replaced or significantly upgraded or otherwise undergoes major
modification.
"(2) Limitation on order.--An order under section 2607 shall not
require a telecommunications carrier to modify, for the purpose of
complying with the assistance capability requirements of section 2602,
any equipment, feature, or service deployed before the date of enactment
of this chapter unless the Attorney General has agreed to pay the
telecommunications carrier for all just and reasonable costs directly
associated with modifications necessary to bring the equipment, feature,
or service into actual compliance with those requirements.
"(e) Procedures and Regulations.--Notwithstanding any other law, the
Attorney General shall, after notice and comment, establish any procedures
and regulations deemed necessary to effectuate timely and cost-efficient
payment to telecommunications carriers for compensable costs incurred under
this chapter, under chapters 119 and 121, and under the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
"(f) Dispute Resolution.--If there is a dispute between the Attorney
General and a telecommunications carrier regarding the amount of just and
reasonable costs to be paid under subsection (a), the dispute shall be
resolved and the amount determined in a proceeding initiated at the
Commission or by the court from which an enforcement order is sought under
section 2607.".
(b) Technical Amendment.--The part analysis for part I of title 18, United
States Code, is amended by inserting after the item relating to chapter 119
the following new item:
"120. Telecommunications carrier assistance to the Government........ 2601".
SEC. 2. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out section 2608 of title
18, United States Code, as added by section 1--
(1) a total of $500,000,000 for fiscal years 1995, 1996, and 1997; and
(2) such sums as are necessary for each fiscal year thereafter,
such sums to remain available until expended.
SEC. 3. EFFECTIVE DATE.
(a) In General.--Except as provided in paragraph (2), chapter 120 of title
18, United States Code, as added by section 1, shall take effect on the date
of enactment of this Act.
(b) Assistance Capability and Systems Security and Integrity
Requirements.--Sections 2602 and 2604 of title 18, United States Code, as
added by section 1, shall take effect on the date that is 4 years after the
date of enactment of this Act.
SEC. 4. REPORTS.
(a) Reports by the Attorney General.--
(1) In general.--On or before November 30, 1995, and on or before
November 30 of each year for 5 years thereafter, the Attorney General
shall submit to Congress and make available to the public a report on the
amounts paid during the preceding fiscal year in payment to
telecommunications carriers under section 2608 of title 18, United States
Code, as added by section 1.
(2) Contents.--A report under paragraph (1) shall include--
(A) a detailed accounting of the amounts paid to each carrier and
the technology, equipment, feature or service for which the amounts
were paid; and
(B) projections of the amounts expected to be paid in the current
fiscal year, the carriers to which payment is expected to be made,
and the technologies, equipment, features or services for which
payment is expected to be made.
(b) Reports by the Comptroller General.--
(1) Payments for modifications.--On or before April 1, 1996, and April
1, 1998, the Comptroller General of the United States, after consultation
with the Attorney General and the telecommunications industry, shall
submit to the Congress a report reflecting its analysis of the
reasonableness and cost-effectiveness of the payments made by the
Attorney General to telecommunications carriers for modifications
necessary to ensure compliance with chapter 120 of title 18, United
States Code, as added by section 1.
(2) Compliance cost estimates.--A report under paragraph (1) 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, equipment,
features or services for which expenses are expected to be incurred by
telecommunications carriers to comply with the assistance capability
requirements in the first 5 years after the effective date of section
2602.
SEC. 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), (C), and (D) as subparagraphs (A), (B), and (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,".
SEC. 6. RADIO-BASED DATA COMMUNICATIONS.
Section 2510(16) of title 18, United States Code, is amended--
(1) by striking "or" at the end of subparagraph (D);
(2) by inserting "or" at the end of subparagraph (E); and
(3) by inserting after subparagraph (E) the following new subparagraph:
"(F) an electronic communication;"
SEC. 7. PENALTIES FOR MONITORING RADIO COMMUNICATIONS THAT ARE TRANSMITTED
USING MODULATION TECHNIQUES WITH NONPUBLIC PARAMETERS.
Section 2511(4)(b) of title 18, United States Code, is amended by striking
"or encrypted, then" and inserting ", encrypted, or transmitted using
modulation techniques the essential parameters of which have been withheld
from the public with the intention of preserving the privacy of such
communication".
SEC. 8. TECHNICAL CORRECTION.
Section 2511(2)(a)(i) of title 18, United States Code, is amended by
striking "used in the transmission of a wire communication" and inserting
"used in the transmission of a wire or electronic communication".
SEC. 9. FRAUDULENT ALTERATION OF COMMERCIAL MOBILE RADIO INSTRUMENTS.
(a) Offense.--Section 1029(a) of title 18, United States Code, is amended--
(1) by striking "or" at the end of paragraph (3); and
(2) by inserting after paragraph (4) the following new paragraphs:
"(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--
"(A) a scanning receiver; or
"(B) hardware or software used for altering or modifying
telecommunications instruments to obtain unauthorized access to
telecommunications services,".
(b) Penalty.--Section 1029(c)(2) of title 18, United States Code, is
amended by striking "(a)(1) or (a)(4)" and inserting "(a) (1), (4), (5), or
(6)".
(c) Definitions.--Section 1029(e) of title 18, United States Code, is
amended--
(1) in paragraph (1) by inserting "electronic serial number, mobile
identification number, personal identification number, or other
telecommunications service, equipment, or instrument identifier," after
"account number,";
(2) by striking "and" at the end of paragraph (5);
(3) by striking the period at the end of paragraph (6) and inserting ";
and"; and
(4) by adding at the end the following new paragraph:
"(7) the term 'scanning receiver' means a device or apparatus that can
be used to intercept a wire or electronic communication in violation of
chapter 119.".
SEC. 10. TRANSACTIONAL DATA.
(a) Disclosure of Records.--Section 2703 of title 18, United States Code,
is amended--
(1) in subsection (c)(1)--
(A) in subparagraph (B)--
(i) by striking clause (i); and
(ii) by redesignating clauses (ii), (iii), and (iv) as clauses
(i), (ii), and (iii), respectively; and
(B) by adding at the end the following new subparagraph:
"(C) A provider of electronic communication service or remote computing
service shall disclose to a governmental entity the name, address, telephone
toll billing records, and length of service of a subscriber to or customer of
such service and the types of services the subscriber or customer utilized,
when the governmental entity uses an administrative subpoena authorized by a
Federal or State statute or a Federal or State grand jury or trial subpoena
or any means available under subparagraph (B)."; and
(2) by amending the first sentence of subsection (d) to read as
follows: "A court order for disclosure under subsection (b) or (c) may be
issued by any court that is a court of competent jurisdiction described
in section 3126(2)(A) and shall issue only if the governmental entity
offers specific and articulable facts showing that there are reasonable
grounds to believe that the contents of a wire or electronic
communication, or the records or other information sought, are relevant
and material to an ongoing criminal investigation.".
(b) Pen Registers and Trap and Trace Devices.--Section 3121 of title 18,
United States Code, is amended--
(1) by redesignating subsection (c) as subsection (d); and
(2) by inserting after subsection (b) the following new subsection:
"(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 dialing and signaling information
utilized in call processing.".
Summary and Purpose
The purpose of H.R. 4922 is to preserve the government's ability, pursuant
to court order or other lawful authorization, to intercept communications
involving advanced technologies such as digital or wireless transmission
modes, or features and services such as call forwarding, speed dialing and
conference calling, while protecting the privacy of communications and
without impeding the introduction of new technologies, features, and
services.
To insure that law enforcement can continue to conduct authorized wiretaps
in the future, the bill requires telecommunications carriers to ensure their
systems have the capability to: (1) isolate expeditiously the content of
targeted communications transmitted by the carrier within the carrier's
service area; (2) isolate expeditiously information identifying the origin
and destination of targeted communications; (3) provide intercepted
communications and call identifying information to law enforcement so they
can be transmitted over lines or facilities leased by law enforcement to a
location away from the carrier's premises; and (4) carry out intercepts
unobtrusively, so targets are not made aware of the interception, and in a
manner that does not compromise the privacy and security of other
communications. The bill allows industry to develop standards to implement
these requirements. It establishes a process for the Attorney General to
identify capacity requirements.
In recognition of the fact that some existing equipment, services or
features will have to be retrofitted, the legislation provides that the
Federal government will pay carriers for just and reasonable costs incurred
in modifying existing equipment, services or features to comply with the
capability requirements. The legislation also provides that the government
will pay for expansions in capacity to accommodate law enforcement needs.
The legislation also expands privacy and security protection for telephone
and computer communications. The protections of the Electronic Communications
Privacy Act of 1986 are extended to cordless phones and certain data
communications transmitted by radio. In addition, the bill increases the
protection for transactional data on electronic communications services by
requiring law enforcement to obtain a court order for access to electronic
mail addressing information.
The bill further protects privacy by requiring the systems of
telecommunications carriers to protect communications not authorized to be
intercepted and by restricting the ability of law enforcement to use pen
register devices for tracking purposes or for obtaining transactional
information. Finally, the bill improves the privacy of mobile phones by
expanding criminal penalties for using certain devices to steal mobile phone
service.
Hearings
In the 103d Congress, the Subcommittee on Civil and Constitutional Rights
held two joint hearings with the Senate Judiciary Subcommittee on Technology
and the Law on the impact of advanced telecommunications services and
technologies on electronic surveillance, March 18 and August 11, 1994.
At the first hearing, held before legislation was introduced, the witnesses
were Louis J. Freeh, Director of the Federal Bureau of Investigation; William
C. O'Malley, district attorney for Plymouth County, Massachusetts, and
President of the National District Attorneys Association; Roy Neel, President
of the United States Telephone Association, which represents local telephone
companies ranging in size from the Regional Bell Operating Companies
("RBOCs") to small companies with fewer than 100 subscribers; and Jerry
Berman, Executive Director of the Electronic Frontier Foundation ("EFF"), on
behalf of EFF and the Digital Privacy and Security Working Group, a coalition
of computer, communications, and public interest organizations and
associations.
The second hearing was held after the introduction of H.R. 4922. Again,
Director Freeh, Mr. Neel, and Mr. Berman appeared and presented testimony.
Also appearing as witnesses were Hazel Edwards, Director, Information
Resources Management/General Government, Accounting and Information
Management Division, U.S. General Accounting Office; and Thomas E. Wheeler,
President and CEO of the Cellular Telecommunications Industry Association,
which represents providers of two-way wireless telecommunications services,
including licensed cellular, personal communications services, and enhanced
specialized mobile radio.
Written submissions for the record were received from AT&T Corporation, MCI
Communications Corporation, the Telecommunications Industry Association,
which represents U.S. manufacturers of telecommunications equipment, the
National Sheriffs' Association, the National Association of Attorneys
General, and the Major Cities Chiefs, an organization of police executives
representing the 49 largest metropolitan areas in the U.S. and Canada.
Subcommittee Action
On August 17, 1994, the Subcommittee on Civil and Constitutional Rights, by
voice vote, a reporting quorum being present, ordered favorably reported the
bill H.R. 4922 without amendment.
Committee Action
On September 29, 1994, the Committee, by voice vote, a reporting quorum
being present, adopted an amendment in the nature of a substitute to H.R.
4922 and ordered the bill favorably reported as amended.
Background and Discussion
For the past quarter century, the law of this nation regarding electronic
surveillance has sought to balance the interests of privacy and law
enforcement. In 1968, the enactment of Title III of the Omnibus Crime Control
and Safe Streets Act of 1968 simultaneously outlawed the use of electronic
surveillance by private parties and authorized its use pursuant to a court
order by law enforcement officials engaged in the investigation of specified
types of major crimes. The Senate Report on Title III stated explicitly that
the legislation "has as its dual purpose (1) protecting the privacy of wire
and oral communications and (2) delineating on a uniform basis the
circumstances and conditions under which the interception of wire and oral
communications may be authorized." Senate Committee on the Judiciary, Omnibus
Crime Control and Safe Streets Act of 1967, S. Rep. No. 1097, 90th Cong., 2d
Sess. (1968) at 66.
Congress was prompted to act in 1968 in part by advancements in technology,
which posed a threat to privacy. According to the 1968 Report, "[t]he
tremendous scientific and technological developments that have taken place in
the last century have made possible today the widespread use and abuse of
electronic surveillance techniques. As a result of these developments,
privacy of communication is seriously jeopardized by these techniques of
surveillance." Id. at 67.
After 1968, telecommunications technology continued to change, and again
Congress was required to respond legislatively to preserve the balance
between privacy and law enforcement. In the Electronic Communications Privacy
Act of 1986 ("ECPA"), Congress extended the privacy protections and the law
enforcement intercept authority of Title III to a new set of technologies and
services such as electronic mail, cellular telephones and paging devices.
Again, the goal of the legislation was to preserve "a fair balance between
the privacy expectations of citizens and the legitimate needs of law
enforcement." House Committee on the Judiciary, Electronic Communications
Privacy Act of 1986, H. Rep. 99-647, 99th Cong. 2d Sess. 2 (1986) at 19.
Law enforcement officials have consistently testified, as Director Freeh
did at the hearings of the bill, that court-authorized electronic
surveillance is a critical law enforcement and public safety tool.
CONGRESS MUST RESPOND TO THE "DIGITAL TELEPHONY" REVOLUTION
Telecommunications, of course, did not stand still after 1986. Indeed, the
pace of change in technology and in the structure of the telecommunications
industry accelerated and continues to accelerate. The resulting challenges
for law enforcement and privacy protection have sometimes been encapsulated
under the rubric "digital telephony," but the issues go far beyond the
distribution between analog and digital transmission modes. Some of the
problems encountered by law enforcement relate to the explosive growth of
cellular and other wireless services, which operate in both analog and
digital modes. Other impediments to authorized wiretaps, like call
forwarding, have long existed in the analog environment. Other
considerations, such as the increasing amount of transactional data generated
by the millions of users of on-line services, highlight the ever increasing
opportunities for loss of privacy.
In 1990, Senator Patrick Leahy, chairman of the Senate Judiciary
Subcommittee on Technology and the Law, assembled a Privacy and Technology
Task Force with experts from business, consumer advocacy, the law, and civil
liberties, to examine current developments in communications technology and
the extent to which the law in general, and ECPA, specifically, protected, or
failed adequately to protect, personal and corporate privacy.
After examining a wide array of communication media, including cellular
phones, personal communications networks, the newer generation of cordless
phones, wireless modems, wireless local area networks (LANs), and electronic
mail and messaging, the task force issued a final report on May 28, 1991
recommending, inter alia, that the legal protections of ECPA be extended to
cover new wireless data communications, such as those occurring over cellular
laptop computers and wireless local area networks (LANs), and cordless
phones. In addition, the Task Force found that ECPA was serving well its
purpose of protecting the privacy of the contents of electronic mail, but
questioned whether current restrictions on government access to transactional
records generated in the course of electronic communications were adequate.
Consistent with the task force's conclusions and in view of the increasing
impediments to authorized law enforcement electronic surveillance, the
Committee has concluded that continued change in the telecommunications
industry deserves legislative attention to preserve the balance sought in
1968 and 1986. However, it became clear to the Committee early in its study
of the "digital telephony" issue that a third concern now explicitly had to
be added to the balance, namely, the goal of ensuring that the
telecommunications industry was not hindered in the rapid development and
deployment of the new services and technologies that continue to benefit and
revolutionize society.
Therefore, the bill seeks to balance three key policies: (1) to preserve a
narrowly focused capability for law enforcement agencies to carry out
properly authorized intercepts; (2) to protect privacy in the face of
increasingly powerful and personally revealing technologies; and (3) to avoid
impeding the development of new communications services and technologies.
THE PROBLEM: LEGISLATION NEEDED TO CLARIFY CARRIERS' DUTY TO COOPERATE
When originally enacted, Title III contained no provision specifically
addressing what responsibility, if any, telecommunications carriers and
others had to assist law enforcement in making authorized interceptions.
Shortly after the statute became effective, the FBI asked a local telephone
company to assist in effectuating an authorized wiretap by providing leased
lines and connecting bridges. The telephone company refused and in 1970 the
U.S. Court of Appeals for the Ninth Circuit held that, absent carriers to
assist lawful wiretaps. Application of the United States, 427 F.2d 639 (9th
Cir. 1970). Two months after the Ninth Circuit decision and with little
debate, Congress added to 18 U.S.C. 2518(4) a provision that now reads:
An order authorizing the interception of a wire, oral, or
electronic communication under this chapter shall, upon request of
the applicant, direct that a provider of wire or electronic
communication service, landlord, custodian or other person shall
furnish the applicant forthwith all information, facilities, and
technical assistance necessary to accomplish the interception
unobtrusively and with a minimum of interference with the services
that such service provider, landlord custodian, or person is
according the person whose communications are to be intercepted. Any
provider of wire or electronic communication service, landlord,
custodian or other person furnishing such facilities or technical
assistance shall be compensated therefor by the applicant for
reasonable expenses incurred in providing such facilities or
assistance.
While the Supreme Court has read this provision as requiring the Federal
courts to compel, upon request of the government, "any assistance necessary
to accomplish an electronic interception," United States v. New York
Telephone, 434 U.S. 159, 177 (1977), the question of whether companies have
any obligation to design their systems such that they do not impede law
enforcement interception has never been adjudicated.
Indeed, until recently, the question of system design was never an issue
for authorized surveillance, since intrinsic elements of wire lined networks
presented access points where law enforcement, with minimum assistance from
telephone companies, could isolate the communications associated with a
particular surveillance target and effectuate an intercept. Where problems
did arise, they could be addressed on a case-by-case basis in negotiations
between the local monopoly service provider and law enforcement. (From a
public policy perspective, such arrangements would have had the disadvantage
of being concluded without public knowledge or legislative oversight.)
The break-up of the Bell system and the rapid proliferation of new
telecommunications technologies and services have vastly complicated law
enforcement's task in that regard. The goal of the legislation, however, is
not to reverse those industry trends. Indeed, it is national policy to
promote competition in the telecommunications industry and to support the
development and widespread availability of advanced technologies, features
and services. The purpose of the legislation is to further define the
industry duty to cooperate and to establish procedures based on public
accountability and industry standards-setting.
The Committee has concluded that there is sufficient evidence justifying
legislative action that new and emerging telecommunications technologies pose
problems for law enforcement. The evidence comes from three sources: the
General Accounting Office, the FBI, and the telecommunications industry
itself.
GAO findings
In 1992, analysts from the GAO's Information Management and Technology
Division interviewed technical representatives from local telephone
companies, switch manufacturers, and cellular providers, as well as the FBI.
The GAO found that the FBI had not adequately defined its electronic
surveillance requirements, but the GAO concluded that law enforcement
agencies did have technical problems tapping a variety of services or
technologies, including call forwarding, fiber, and ISDN. The GAO also
concluded that cellular systems could be tapped but that capacity was
limited.
The GAO recently conducted further work and testified at the hearing on
August 11, 1994. The GAO reconfirmed its earlier conclusion that there are
legitimate impediments posed by new and emerging technologies. The GAO also
concluded that the FBI had made progress in defining law enforcement's needs
in terms of capability and capacity.
FBI survey
FBI Director Freeh testified at the March 18, 1994, hearing that the FBI
had identified specific instances in which law enforcement agencies were
precluded due to technological impediments from fully implementing authorized
electronic surveillance (wiretaps, pen registers and trap and traces). The
Director testified in March that an informal FBI survey of federal, state,
and local law enforcement agencies had identified 91 such incidents, 33% of
which involved cellular systems (11% were related to the limited capacity of
cellular systems to accommodate a large number of intercepts simultaneously)
and 32% of which involved custom calling features such as call forwarding,
call waiting and speed dialing.
Because the existence of a problem continued to be questioned by some, the
FBI re-contacted law enforcement agencies after the March hearing and
identified further examples. In April, 1994, the FBI presented to the House
and Senate Judiciary Subcommittees details of 183 instances (including the
original 91) where the FBI, State or local agencies had encountered problems.
This evidence was presented to the Subcommittees on the understanding that
the details would not be publicly disseminated. However, the following chart
summarizes the FBI's findings:
Technology-based problems encountered by Federal, State, and local law
enforcement agencies
Page
Total problems................................................. 183
--------
Cellular port capacity............................................... 54
Inability to capture dialed digits contemporaneous with audio........ 33
Cellular provider could not intercept long-distance calls (or provide
call setup information) to or from a targeted phone................ 4
Speed dialing/voice dialing/call waiting............................. 20
Call forwarding...................................................... 10
Direct inward dial trunk group (provider unable to isolate target's
communications or provide call set-up information to the exclusion
of all other customers)............................................ 4
Voice mail (provider unable to provide access to the subject's audio
when forwarded to voice mail or retrieve messages)................. 12
Digital Centrex (provider unable to isolate all communications
associated with the target to the exclusion of all others)......... 4
Other (including other calling features such as Call Back; and
provider unable to: provide trap and trace information; isolate the
digital transmissions associated with a target to the exclusion of
all other communications; comprehensively intercept communications
and provide call set-up information)............................... 42
Industry acknowledges the problem
Representatives of the telecommunications industry now acknowledge that
there will be increasingly serious problems for law enforcement interception
posed by new technologies and the new competitive telecommunications market.
At the hearing on August 11, Roy Neel, president of the United States
Telephone Association and the chief spokesperson for the telephone industry
on this issue, was asked by Senator Leahy if the time was fast approaching
when a great deal of the ability of law enforcement to carry out wiretaps
will be lost. Mr. Neel answered, "In a number of cases with new enhanced
services, that is probably true."
The industry maintains that its companies have a long tradition of working
with law enforcement under current law to resolve technical issues. However,
with the proliferation of services and service providers, such a company-by-
company approach is becoming increasingly untenable.
In response, the phone companies and the FBI have created an Electronic
Communications Service Provider Committee, through which representatives of
all the RBOCs have been meeting with law enforcement on a regular basis to
develop solutions to a range of problems. The committee has created "Action
Teams" on personal communications services, wireless cellular, the "advanced
intelligence network," and switch-based solutions, among others. The chairman
of the committee, a vice president of one of the RBOCs, stated in a letter
dated March 1 and submitted by the FBI Director during his testimony in
March: "If meaningful solutions are to result, all participants must first
understand that there is in fact a problem, not that one participant, or one
group of participants, says so. Now that the Committee recognizes the
problems, it can proceed to identify and develop appropriate solutions."
However, participation in the Service Provider Committee is voluntary and
its recommendations are unenforceable. As a result, the Judiciary Committee
has concluded that legislation is necessary.
LAW ENFORCEMENT REQUIREMENTS
The legislation requires telecommunications common carriers to ensure that
new technologies and services do not hinder law enforcement access to the
communications of a subscriber who is the subject of a court order
authorizing electronic surveillance. The bill will preserve the government's
ability, pursuant to court order, to intercept communications that utilize
advanced technologies such as digital or wireless transmission.
To insure that law enforcement can continue to conduct wiretaps, the bill
requires telecommunications carriers to ensure their systems have the
capability to:
(1) Isolate expeditiously the content of targeted communications
transmitted within the carrier's service area;
(2) Isolate expeditiously information identifying the originating and
destination numbers of targeted communications, but not the physical
location of targets;
(3) Provide intercepted communications and call identifying information
to law enforcement in a format such that they may be transmitted over
lines or facilities leased by law enforcement to a location away from the
carrier's premises; and
(4) Carry out intercepts unobtrusively, so targets of electronic
surveillance are not made aware of the interception, and in a manner that
does not compromise the privacy and security of other communications.
Cost
The GAO testified at the August 11, 1994 hearing that the costs of
compliance with the foregoing will depend largely on the details of standards
and technical specifications, which, under the bill, will be developed over
the next four years by industry associations and standard-setting
organizations.
The bill requires the Federal government, with appropriated funds, to pay
all reasonable costs incurred by industry over the next four years to
retrofit existing facilities to bring them into compliance with the
interception requirements. The bill authorizes at least $500 million for this
purpose. In the event that the $500 million is not enough or is not
appropriated, the legislation provides that any equipment, features or
services deployed on the date of enactment, which government does not pay to
retrofit, shall be considered to be in compliance until the equipment,
feature, or service is replaced or significantly upgraded or otherwise
undergoes major modification.
After the four year transition period, which may be extended an additional
two years by order of the FCC, industry will bear the cost of ensuring that
new equipment and services meet the legislated requirements, as defined by
standards and specifications promulgated by the industry itself.
However, to the extent that industry must install additional capacity to
meet law enforcement needs, the bill requires the government to pay all
capacity costs from date of enactment, including all capacity costs incurred
after the four year transition period. The Federal government, in its role of
providing technical support to state and local law enforcement, will pay
costs incurred in meeting the initial capacity needs and the future maximum
capacity needs for electronic surveillance at all levels of government.
THE LEGISLATION ADDRESSES PRIVACY CONCERNS
Since 1968, the law of this nation has authorized law enforcement agencies
to conduct wiretaps pursuant to court order. That authority extends to voice,
data, fax, E-mail and any other form of electronic communication. The bill
will not expand that authority. However, as the potential intrusiveness of
technology increases, it is necessary to ensure that government surveillance
authority is clearly defined and appropriately limited.
In the eight years since the enactment of ECPA, society's patterns of using
electronic communications technology have changed dramatically. Millions of
people now have electronic mail addresses. Business, nonprofit organizations
and political groups conduct their work over the Internet. Individuals
maintain a wide range of relationships on-line. Transactional records
documenting these activities and associations are generated by service
providers. For those who increasingly use these services, this transactional
data reveals a great deal about their private lives, all of it compiled in
one place.
In addition, while the portion of cordless telephone communications
occurring between the handset and base unit was excluded from ECPA's privacy
protections, the 1991 Privacy and Technology Task Force found that "[t]he
cordless phone, far from being a novelty item used only at 'poolside,' has
become ubiquitous . . . More and more communications are being carried out by
people [using cordless phones] in private, in their homes and offices, with
an expectation that such calls are just like any other phone call."
Therefore, H.R. 4922 includes provisions, which FBI Director Freeh
supported in his testimony, that add protections to the exercise of the
government's current surveillance authority. Specifically, the bill:
1. Eliminates the use of subpoenas to obtain E-mail addresses and other
similar transactional data from electronic communications service
providers. Currently, the government can obtain transactional logs
containing a person's entire on-line profile merely upon presentation of
an administrative subpoena issued by an investigator without any judicial
intervention. Under H.R. 4922, a court order would be required.
2. Expressly provides that the authority for pen registers and trap and
trace devices cannot be used to obtain tracking or location information,
other than that which can be determined from the phone number. Currently,
in some cellular systems, transactional data that could be obtained by a
pen register may include location information. Further, the bill requires
law enforcement to use reasonably available technology to minimize
information obtained through pen registers.
3. Explicitly states that it does not limit the rights of subscribers
to use encryption.
4. Allows any person, including public interest groups, to petition the
FCC for review of standards implementing wiretap capability requirements,
and provides that one factor for judging those standards is whether they
protect the privacy of communications not authorized to be intercepted.
5. Does not require mobile service providers to reconfigure their
networks to deliver the content of communications occurring outside a
carrier's service area.
6. Extends privacy protections of the Electronic Communications Privacy
Act to cordless phones and certain data communications transmitted by
radio.
7. Requires affirmative intervention of common carriers' personnel for
switch-based interceptions--this means law enforcement will not be able
to activate interceptions remotely or independently within the switching
premises of a telecommunications carrier.
Narrow scope
It is also important from a privacy standpoint to recognize that the scope
of the legislation has been greatly narrowed. The only entities required to
comply with the functional requirements are telecommunications common
carriers, the components of the public switched network where law enforcement
agencies have always served most of their surveillance orders. Further, such
carriers are required to comply only with respect to services or facilities
that provide a customer or subscriber with the ability to originate,
terminate or direct communications.
The bill is clear that telecommunications services that support the
transport or switching of communications for private networks or for the sole
purpose of interconnecting telecommunications carriers (these would include
long distance carriage) need not meet any any wiretap standards. PBXs are
excluded. So are automated teller machine (ATM) networks and other closed
networks. Also excluded from coverage are all information services, such as
Internet service providers or services such as Prodigy and America-On-Line.
All of these private network systems or information services can be
wiretapped pursuant to court order, and their owners must cooperate when
presented with a wiretap order, but these services and systems do not have to
be designed so as to comply with the capability requirements. Only
telecommunications carriers, as defined in the bill, are required to design
and build their switching and transmission systems to comply with the
legislated requirements. Earlier digital telephony proposals covered all
providers of electronic communications services, which meant every business
and institution in the country. That broad approach was not practical. Nor
was it justified to meet any law enforcement need.
H.R. 4922 RESPONDS TO INDUSTRY CONCERNS
H.R. 4922 includes several provisions intended to ease the burden on
industry. The bill grants telephone companies and other covered entities a
four year transition period in which to make any necessary changes in their
facilities. In addition, it allows any company to seek from the FCC up to a
two year extension of the compliance date if retrofitting a particular system
will take longer than the four years allowed for compliance.
The Federal government will pay will reasonable costs incurred by industry
in retrofitting facilities to correct existing problems.
The bill requires the Attorney General to estimate the capacity needs of
law enforcement for electronic surveillance, so that carriers will have
notice of what the government is likely to request. The bill requires
government to reimburse carriers for reasonable costs of expanding capacity
to meet law enforcement needs.
No impediment to technological innovation
The Committee's intent is that compliance with the requirements in the bill
will not impede the development and deployment of new technologies. The bill
expressly provides that law enforcement may not dictate system design
features and may not bar introduction of new features and technologies. The
bill establishes a reasonableness standard for compliance of carriers and
manufacturers. Courts may order compliance and may bar the introduction of
technology, but only if law enforcement has no other means reasonably
available to conduct interception and if compliance with the standards is
reasonably achievable through application of available technology. This means
that if a service of technology cannot reasonably be brought into compliance
with the interception requirements, then the service or technology can be
deployed. This is the exact opposite of the original versions of the
legislation, which would have barred introduction of services or features
that could not be tapped. One factor to be considered when determining
whether compliance is reasonable is the cost to the carrier of compliance
compared to the carrier's overall cost of developing or acquiring and
deploying the feature or service in question.
The legislation provides that the telecommunications industry itself shall
decide how to implement law enforcement's requirements. The bill allows
industry associations and standard-setting bodies, in consultation with law
enforcement, to establish publicly available specifications creating "safe
harbors" for carriers. This means that those whose competitive future depends
on innovation will have a key role in interpreting the legislated
requirements and finding ways to meet them without impeding the deployment of
new services. If industry associations or standard-setting organizations fail
to issue standards to implement the capability requirements, or if a
government agency or any person, including a carrier, believes that such
requirements or standards are deficient, the agency or person may petition
the FCC to establish technical requirements or standards.
Accountability
Finally the bill has a number of mechanisms that will allow for
Congressional and public oversight. The bill requires the government to
estimate its capacity needs and publish them in the Federal Register. the
bill requires the government, with funds appropriated by Congress through the
normal appropriations process, to pay all reasonable costs incurred by
industry in retrofitting facilities to correct existing problems. It requires
the Attorney General to file yearly reports on these expenditures for the
first six years after date of enactment, and requires reports from the
General Accounting Office in 1996 and 1998 estimating future costs of
compliance. It requires that the government to reimburse carriers, with
publicly appropriated funds, in perpetuity for the costs of expanding
capacity to meet law enforcement needs. Furthermore, all proceedings before
the FCC will be subject to public scrutiny, as well as congressional
oversight ad judicial review.
RELATIONSHIP WITH EXISTING ASSISTANCE REQUIREMENTS
The assistance capability and capacity requirements of the bill are in
addition to the existing necessary assistance requirements in sections
2518(4) and 3124 of title 18, and 1805(b) of title 50. The Committee intends
that 2518(4), 3124, and 1805(b) will continue to be applied, as they have in
the past, to government assistance requests related to specific orders,
including, for example, the expenses of leased lines.
Section-by-Section Analysis
SECTION 1.--INTERCEPTION OF DIGITAL AND OTHER COMMUNICATIONS
This section adds a new chapter 120 to title 18, United States code, to
define more precisely the assistance that telecommunications carriers are
required to provide in connection with court orders for wire and electronic
interceptions, pen registers and trap and trace devices. This new chapter
contains eight sections numbered 2601 through 2608.
Section 2601 provides definitions for "call-identifying information,"
"information services," "government," "telecommunication support services,"
"telecommunications carrier."
A "telecommunications carrier" is defined as 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 a commercial mobile service, as defined in section
332(d) of the Communications Act, as amended. This definition encompasses
such service providers as local exchange carriers, interexchange carriers,
competitive access providers (CAPs), cellular carriers, providers of personal
communications services (PCS), satellite-based service providers, cable
operators and electric or other utilities that provide telecommunications
services for hire to the public, and any other common carrier that offers
wireline or wireless service for hire to the public. The definition of
telecommunications carrier does not include persons or entities to the extent
they are engaged in providing information services, such as electronic mail
providers, on-line services providers, such as Compuserve, Prodigy, America-
On-line or Mead Data, or Internet service providers. Call forwarding, speed
dialing, and the call redirection portion of a voice mail service are covered
by the bill.
In addition, for purposes of this bill, the FCC is authorized to deem other
persons and entities to be telecommunications carriers subject to the
assistance capability and capacity requirements to the extent that such
person or entity serves as a replacement for the local telephone service to a
substantial portion of the public within a state. As part of its
determination whether the public interest is served by deeming a person or
entity a telecommunications carrier for the purposes of this bill, the
Commission shall consider whether such determination would promote
competition, encourage the development of new technologies, and protect
public safety and national security.
The term "call-identifying information" means the dialing or signaling
information generated that identifies the origin and destination or a wire or
electronic communication placed to, or received by, the facility or service
that is the subject of the court order or lawful authorization. For voice
communications, this information is typically the electronic pulses, audio
tones, or signalling messages that identify the numbers dialed or otherwise
transmitted for the purpose of routing calls through the telecommunications
carrier's network. In pen register investigations, these pulses, tones, or
messages identify the numbers dialed from the facility that is the subject of
the court order or other lawful authorization. In trap and trace
investigations, these are the incoming pulses, tones, or messages which
identify the originating number of the facility from which the call was
placed and which are captured when directed to the facility that is the
subject of the court order or authorization. Other dialing tones that may be
generated by the sender that are used to signal customer premises equipment
of the recipient are not to be treated as call-identifying information.
The term "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.
The term "telecommunications support services" means a product, software or
service used by a telecommunications carrier for the internal signaling or
switching functions of its telecommunications network. The Committee
understands there are currently over one hundred entities that provide common
carriers with specialized support services. The definition of
"telecommunications support services" excludes "information services," as
defined in the bill.
The term "information services" includes messaging services offered through
software such as groupware and enterprise or personal messaging software,
that is, services based on products (including but not limited to multimedia
software) of which Lotus Notes (and Lotus Network Notes), Microsoft Exchange
Server, Novell Netware, CC: Mail, MCI Mail, Microsoft Mail, Microsoft
Exchange Server, and AT&T Easylink (and their associated services) are both
examples and precursors. It is the Committee's intention not to limit the
definition of "information services" to such current services, but rather to
anticipate the rapid development of advanced software and to include such
software services in the definition of "information services." By including
such software-based electronic messaging services within the definition of
information services, they are excluded from compliance with the requirements
of the bill.
Section 2602, entitled "Assistance capability requirements," consists of
four subsections. Subsection (a) sets forth four "Capability Requirements,"
which every telecommunications carrier is required to meet in connection with
those services or facilities that allow customers to originate, terminate or
direct communications.
The first requirement is expeditiously to isolate and enable the government
to intercept all communications in the carrier's control to or from the
equipment, facilities or services of a subscribe, concurrently with the
communications' transmission, or at any later time acceptable to the
government. The bill is not intended to guarantee "one-stop shopping" for law
enforcement. The question of which communications are in a carrier's control
will depend on the design of the service or feature at issue, which this
legislation does not purport to dictate. If, for example, a forwarded call
reaches the system of the subscriber's carrier, that carrier is responsible
for isolating the communication for interception purposes. However, if an
advanced intelligent network directs the communication to a different
carrier, the subscriber's carrier only has the responsibility, under
subsection (d), to ensure that law enforcement can identify the new service
provider handling the communication.
The second requirement is expeditiously to isolate and enable the
government to access reasonably available call identifying information about
the origin and destination of communications. Access must be provided in such
a manner that the information may be associated with the communication to
which it pertains and is provided to the government before, during or
immediately after the message's transmission to or from the subscriber, or at
any later time acceptable to the government. Call identifying information
obtained pursuant to pen register and trap and trace orders may not include
information disclosing the physical location of the subscriber sending or
receiving the message, except to the extent that location is indicated by the
phone number. However, if such information is not reasonably available, the
carrier does not have to modify its system to make it available.
The third requirement is to make intercepted communications and call
identifying information available to government in a format available to the
carrier so they may be transmitted over lines or facilities leased or
procured by law enforcement to a location away from the carrier's premises.
If the communication at the point it is intercepted is digital, the carrier
may provide the signal to law enforcement in digital form. Law enforcement is
responsible for determining if a communication is voice, fax or data and for
translating it into useable form.
The final requirement is to meet these requirements with a minimum of
interference with the subscriber's service and in such a way that protects
the privacy of communications and call identifying information that are not
targeted buy electronic surveillance orders, and that maintains the
confidentiality of the government's wiretaps.
The Committee intends the assistance requirements in section 2602 to be
both a floor and a ceiling. The FBI Director testified that the legislation
was intended to preserve the status quo, that it was intended to provide law
enforcement no more and no less access to information than it had in the
past. The Committee urges against overbroad interpretation of the
requirements. The legislation gives industry, in consultation with law
enforcement and subject to review by the FCC, a key role in developing the
technical requirements and standards that will allow implementation of the
requirements. The Committee expects industry, law enforcement and the FCC to
narrowly interpret the requirements.
Subsection (b) limits the scope of the assistance requirements in several
important ways. First, law enforcement agencies are not permitted to require
the specific design of systems or features, nor prohibit adoption of any such
design, by wire or electronic communication service provides or equipment
manufacturers. The legislation leaves it to each carrier to decide how to
comply. A carrier need not insure that each individual component of its
network or system complies with the requirements so long as each
communication can be intercepted at some point that meets the legislated
requirements.
Second, the capability requirements only apply to those services or
facilities that enable the subscriber to make, receive or direct calls. They
do not apply to information services, such as electronic mail services, or
on-line services, such as Compuserve, Prodigy, America-On-line or Mead Data,
or Internet service providers. (The storage of a message in a voice mail or
E-mail "box" is not covered by the bill. The redirection of the voice mail
message to the "box" and the transmission of an E-mail message to an enhanced
service provider that maintains the E-mail service are covered.) Nor does the
bill apply to services or facilities that support the transport or switching
of communications for private networks or for the sole purpose of
interconnecting telecommunications carriers.
Because financial institutions have major concerns about security and
reliability, they have established private communications networks for data
transmission traffic such as automated teller machines (ATM), point of sale
(credit card) verification systems, and bank wires. Some of these networks
are point to point, although many utilize the public network at various
points. ATM networks, bankcard processing networks, automated check
clearinghouse networks, stock exchange trading networks, point of sale
systems, and bank wire transfer, stock transfer and funds transfer systems
are all excluded from the coverage of the legislation whether or not they
involve services obtained from telecommunications carriers. Private networks
such as those used for banking and financial transactions have not posed a
problem to law enforcement. There are good reasons for keeping them as closed
as possible. These networks are not the usual focus of court authorized
electronic surveillance, and the financial information travelling on these
networks is already available to law enforcement agencies under the banking
laws.
Thus, a carrier providing a customer with a service or facility that allows
the customer to obtain access to a publicly switched network is responsible
for complying with the capability requirements. On the other hand, for
communications handled by multiple carriers, a carrier that does not
originate or terminate the message, but merely interconnects two other
carriers, is not subject to the requirements for the interconnection part of
its facilities.
While the bill does not require reengineering of the Internet, nor does it
impose prospectively functional requirements on the Internet, this does not
mean that communications carried over the Internet are immune from
interception or that the Internet offers a safe haven for illegal activity.
Communications carried over the Internet are subject to interception under
Title III just like other electronic communications. That issue was settled
in 1986 with the Electronic Communications Privacy Act. The bill recognizes,
however, that law enforcement will most likely intercept communications over
the Internet at the same place it intercepts other electronic communications:
at the carrier that provides access to the public switched network.
The bill does not cover private branch exchanges (PBX's). This means that
there will be times when the telecommunications carrier will be unable to
isolate the communications of a specific individual whose communications are
coming through a PBX. This poses a minimization problem to which law
enforcement agencies, courts, and carriers should be sensitive. The Committee
does not intend the exclusion of PBX's to be read as approval for trunk line
intercepts. Given the minimization requirement of current law, courts should
scrutinize very carefully requests to intercept truck lines and insist that
agencies specify how they will comply with the minimization requirement. This
is especially true of intercepts of E-Mail and fax transmissions. In
addition, carriers presented with an order for interception of a trunk line
have the option to seek modification of such an order.
Finally, telecommunications carriers have no responsibility to decrypt
encrypted communications that are the subject of court-ordered wiretaps,
unless the carrier provided the encryption and can decrypt it. This
obligation is consistent with the obligation to furnish all necessary
assistance under 18 U.S.C. Section 2518(4). Nothing in this paragraph would
prohibit a carrier from deploying an encryption service for which it does not
retain the ability to decrypt communications for law enforcement access. The
bill does not address the "Clipper Chip"or Key Escrow Encryption issue.
Nothing in the bill is intended to limit or otherwise prevent the use of any
type of encryption within the United States. Nor does the Committee intend
this bill to be in any way a precursor to any kind of ban or limitation on
encryption technology. To the contrary, section 2602 protects the right to
use encryption.
Subsection (c), allows a carrier, in emergency or exigent circumstances, at
the sole discretion of the carrier, to fulfill its obligation to deliver
communications to law enforcement under the third capability requirement by
allowing monitoring on the carrier's premises.
Subsection (d), entitled "Mobile Service Assistance Requirement," addresses
the responsibility of the carrier who can no longer deliver a message or call
identifying information to law enforcement because the subscriber, the
communication and the call identifying information have left the carrier's
service area. In such a case, the carrier that had the assistance
responsibility is not required to continue providing the government with the
communication content or call identifying information, but must ensure that
the government can determine which carrier or service provider has
subsequently picked up the communications or call identifying information and
begun serving the subscriber, subject to limitations on disclosing location
information as described in section 2602(a).
Section 2603, entitled "Notices of capacity requirements," places the
burden on the government to estimate its capacity needs and to do so in a
cost-conscious manner, while also providing carriers with a "safe harbor" for
capacity.
Subsection (a) requires the Attorney General, within one year of enactment,
to publish in the Federal Register and provide to appropriate industry
associations and standards bodies notices of both the maximum capacity and
the initial capacity required to accommodate all intercepts, pen registers,
and trap and trace devices the government (including Federal, State and local
law enforcement) expects to operate simultaneously.
The maximum capacity relates to the greatest number of intercepts a
particular switch or system must be capable of implementing simultaneously.
The initial capacity relates to the number of intercepts the government will
need to operate upon the date that is four years after enactment.
The Attorney General is directed to develop the notices after consultation
with local and State law enforcement authorities and the carriers, equipment
manufacturers and providers of telecommunications support services. The
Attorney General is given flexibility in determining the form of the notice.
For example, the notices may be in the form of a specific number for a
particular geographic area, or a generally applicable formula based on the
number of subscribers served by a carrier. However, the notices must
identify, to the maximum extent possible, the capacity required at specific
geographic locations, including carrier office locations.
Subsection (b) provides that telecommunications carriers must ensure that,
within three years after publication of the notices, or within four years
after enactment, whichever is later, they have the maximum capacity and the
initial capacity to execute all electronic surveillance orders. If the
Attorney General publishes the first capacity notices before the statutory
time of one year has elapsed, compliance by carriers must be achieved at the
same time as the effective date in Section 2 of this Act. In the event the
Attorney General publishes the notices after the statutory time limit,
carriers will have three years thereafter to comply, which time period will
fall after the effective date of section 2602.
Subsection (c) requires the Attorney General periodically to give
telecommunications carriers notice of any necessary increases in maximum
capacity. Carriers will have at least three years, and up to any amount of
time beyond three years agreed to by the Attorney General, to comply with the
increased maximum capacity requirements.
Subsection (d) requires carriers to submit statements to the Attorney
General identifying systems or service that do not have the capacity to
accommodate simultaneously the number of interceptions, pen registers and
trap and trace devices set forth in the capacity notices issue by the
Attorney General under subsection (a).
Subsection (e) provides that the Attorney General may reimburse carriers
for modifications necessary to comply with capacity notices. Until the
Attorney General agrees to reimburse a carrier for such modifications, the
carrier shall be considered to be in compliance with the capacity notices.
Section 2604 protects systems security and integrity by requiring that any
electronic surveillance effected within a carrier's switching premises be
activated only with intervention by an employee of the carrier. The switching
premises include central offices and mobile telephone switching offices
(MTSOs).
This makes clear that government agencies do not have the authority to
activate remotely interceptions within the switching premises of a
telecommunications carrier. Nor may law enforcement enter onto a
telecommunications carrier's switching office premises to effect an
interception without the carrier's prior knowledge and consent when executing
a wiretap under exigent or emergency circumstances under section 2602(c). All
executions of court orders or authorizations requiring access to the
switching facilities will be made through individuals authorized and
designated by the telecommunications carrier. Activation of interception
orders or authorizations originating in local loop wiring or cabling can be
effected by government personnel or by individuals designated by the
telecommunications carrier, depending upon the amount of assistance the
government requires.
Section 2605 requires a telecommunications carrier to consult with its own
equipment manufacturers and support service providers to ensure that
equipment or services comply with the capability requirements. Manufacturers
and support services providers are required to make available to their
telecommunications carrier customers the necessary features or modifications
on a reasonably timely basis and at a reasonable charge. Subsection 2605(b)
clearly means that when a manufacturer makes available features or
modifications to permit its customer to comply with the requirements of the
bill, the manufacturer is to be paid by the carrier in accordance with normal
and accepted business practices.
These responsibilities of the manufacturers and support services providers
make clear that they have a critical role in ensuring that lawful
interceptions are not thwarted. Without their assistance, telecommunications
carriers likely could not comply with the capability requirements.
Section 2606 establishes a mechanism for implementation of the capability
requirements that defers, in the first instance, to industry standards
organizations. Subsection (a) directs the Attorney General and other law
enforcement agencies to consult with associations and standard-setting bodies
of the telecommunications industry. Carriers, manufacturers and support
service providers will have a "safe harbor" and be considered in compliance
with the capability requirements if they comply with publicly available
technical requirements or standards designed in good faith to implement the
assistance requirements.
This section provides carriers the certainty of "safe harbors," found in
standards to be issued under a process set up in the bill. The use of
standards to implement legislative requirements is, of course, appropriate so
long as Congress delineates the policy that the guidelines must meet. Skinner
v. Mid-America Pipeline Co., 490 U.S. 212, 220 (1989). ("It is
constitutionally sufficient if Congress clearly delineates the general
policy.").
This bill, in fact, provides through the four factors in section 2602 much
greater specificity than found in many delegations upheld by the courts. See,
e.g., Yakus v. U.S., 321 U.S. 414, 420 (1944) (upholding delegation of
authority to fix prices that "will be generally fair and equitable and will
effectuate the purposes" of the statute); FPC v. Hope Natural Gas Co., 320
U.S. 591, 600 (1944) (delegation to determine "just and reasonable" rates
upheld).
The authority to issue standards to implement legislation delegated here to
private parties is well within what has been upheld in numerous precedents.
In St. Louis, Iron Mtn. & Southern Ry. Co. v. Taylor, 210 U.S. 281 (1908),
the Supreme Court upheld the delegation of authority to the American Railway
Association to establish the standard height of draw bars for freight cars.
In Noblecraft Industries v. Secretary of Labor, 614 F.2d 199 (9th Cir. 1980),
the Ninth Circuit sustained Congress's delegation to private organizations of
the authority to develop health and safety standards. See also U.S. v. Frame,
885 F.2d 1119, 1122 (3d Cir. 1989) (upholding delegation to the beef industry
to devise its own strategies to implement the government's policy).
The appropriateness of the delegation here is furthered by two factors: (1)
Compliance with the industry standards is voluntary, not compulsory. Carriers
can adopt other solutions for complying with the capability requirements; and
(2) The FCC retains control over the standards. Under section 2602(b), any
carrier, any law enforcement agency or any other interested party can
petition the FCC, which has the authority to reject the standards developed
by industry and substitute its own. See Sunshine Anthracite Coal Co. v.
Adkins, 310 U.S. 381 (1940); St. Louis, Iron Mtn, supra; Frame, supra, 885
F.2d at 1128 (delegation valid where discretion of private bodies is subject
to the government's authority to disapprove or modify the standards).
This section states affirmatively that the absence of standards will not
preclude carriers, manufacturers or support service providers from deploying
a technology or service, but they must still comply with the assistance
capability requirements.
Subsection (b) provides a forum at the Federal Communications Commission in
the event a dispute arises over the technical requirements or standards.
Anyone can petition the FCC to establish technical requirements or standards,
if none exist, or challenge any such requirements or standards issued by
industry associations or bodies under this section. In taking any action
under this section, the FCC is directed to protect privacy and security of
communications that are not the targets of court-ordered electronic
surveillance and to serve the policy of the United States to encourage the
provision of new technologies and services to the public.
If an industry technical requirement or standard is set aside or supplanted
by the FCC, the FCC is required to consult with the Attorney General and
establish a reasonable time and conditions for compliance with and the
transition to any new standard. The FCC may also define the assistance
obligations of the telecommunications carriers during this transition period.
This section is also intended to add openness and accountability to the
process of finding solutions to intercept problems. Any FCC decision on a
standard for compliance with this bill must be made publicly.
Subsection (c) gives telecommunications carriers an additional two years to
achieve compliance with the assistance capability requirements beyond the
four years provided in Section 2 of the bill, if they petition for, and the
FCC grants, an extension. The FCC may grant a petition for relief from
compliance with the assistance capability requirements for up to two years in
circumstances where the carrier can show that compliance with those
requirements is not reasonably achievable through application of technology
available within the four year compliance record. The Attorney General will
reimburse the carrier for any necessary modifications made during the
extension period.
Any extension granted under this subsection applies only to that part of
the carrier's business on which the feature or service at issue is used.
Section 2607 provides for enforcement by the courts. Subsection (a)
provides that a court may order telecommunications carriers, equipment
manufacturers and support service providers to comply forthwith with the
requirements of the Act in circumstances where an electronic surveillance
order or authorization has been issued but cannot be effected because a
carrier has failed to comply with the requirements of the bill. This
provision complements the existing requirement in 18 U.S.C. Sec. 2518(4) that
an order authorizing electronic surveillance may direct that providers of
wire or electronic communications services or any "other person * * * furnish
* * * forthwith all information, facilities, and technical assistance
necessary to accomplish the interception."
Subsection (b) authorizes the Attorney General, in the absence of a
particular electronic surveillance order or authorization, to apply to an
appropriate United States Court for an enforcement order directing a
telecommunications carrier, equipment manufacturer or support services
provider to comply with the bill. In order to avoid disparate enforcement
actions throughout the country which could be burdensome for
telecommunications carriers, this authority is vested in the Attorney General
of the United States through the Department of Justice and the Offices of the
various United States Attorneys.
Subsection (c) places limitations on the court's authority to issue
enforcement orders. First, the court must find that law enforcement has no
alternatives reasonably available for implementing the order through use of
other technologies or by serving the order on another carrier or service
provider. Essentially, the court must find that law enforcement is seeking to
conduct its interception at the best, or most reasonable, place for such
interception.
Second, the court must find that compliance with the requirements of the
bill are reasonably achievable through application of available technology,
or would have been reasonably achievable if timely action had been taken. Of
necessity, a determination of "reasonably achievable" will involve a
consideration of economic factors. This limitation is intended to excuse a
failure to comply with the assistance capability requirements or capacity
notices where the total cost of compliance is wholly out of proportion to the
usefulness of achieving compliance for a particular type or category of
services or features. This subsection recognizes that, in certain
circumstances, telecommunications carriers may deploy features or services
even though they are not in compliance with the requirements of this bill.
In the event that either of these standards is not met, the court may not
issue an enforcement order and the carrier may proceed with deployment, or
with continued offering to the public, of the feature or service at issue.
Subsection (d) requires a court upon issuance of an enforcement order to
set a reasonable time and conditions for complying with the order. In
determining what is reasonable, the court may consider as to each party
before it a number of enumerated factors.
Subsection (e) provides that an order may not be issued requiring a carrier
to provide capacity in excess of the capacity for which the Attorney General
has agreed to reimburse the carrier under section 2603(e).
Subsection (f) provides for a civil penalty up to $10,000 per day, from the
date of the order, or such later date as a court may decree, for any carrier,
equipment manufacturer or support service provider that violates the section.
In setting the appropriate amount of the fine, a court may consider a number
of enumerated factors, including 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.
While Subsection 2607(f) would subject to civil penalties a manufacturer
that fails to provide its customers with the features or modifications
necessary for them to comply, the Committee fully expects that manufacturers
and carriers will ensure the compliance with the requirements through the
normal marketplace mechanisms, as carriers, in their orders, specify
equipment that meets the requirements of the bill. The imposition of civil
penalties on manufacturers would normally be appropriate only when the
existing marketplace (i.e., contractual) mechanisms fail to ensure
manufacturer compliance, just as the imposition of civil penalties would
normally be appropriate on carriers when, for example, they fail to seek
through contractual mechanisms such features or modifications.
Section 2608, entitled "Payment of costs of telecommunications carriers to
comply with capability requirements," provides, in subsection (a), that the
Attorney General may, subject to the availability of appropriations, pay all
just and reasonable costs directly associated with modifications performed by
carriers in connection with equipment, features, or services installed or
deployed before the date of enactment to establish the capabilities necessary
to comply with section 2602.
Subsection (b) provides that the Attorney General is authorized to pay
reasonable costs directly associated with achieving compliance with the
assistance capability requirements for equipment, features or services
deployed on or after the date of enactment, if such compliance would
otherwise not be reasonably achievable. In determining whether compliance is
reasonably achievable, consideration must be given in proceedings before a
court or the FCC to when the deployment occurred.
Subsection (c) directs the Attorney General to allocate appropriated funds
to carry out the purposes of the act in accordance with law enforcement's
priorities.
Subsection (d) provides that if a telecommunications carrier requests
payment for modifications to existing equipment, features, or services to
achieve compliance with the assistance capability requirements under section
2602, and the Attorney General does not pay as required under subsection (a),
the equipment, feature or service in question will be considered to be in
compliance until the equipment, feature, or service is replaced or
significantly upgraded or otherwise undergoes major modifications.
Subsection (e) authorizes the Attorney General to establish necessary
regulations and procedures to reimburse carriers.
Subsection (f) provides that any dispute over costs is to be resolved by
the FCC or the court from which an enforcement order is sought. In the
absence of a dispute brought by one of the parties to the FCC, it is not the
Committee's intent for the FCC or any other agency of the Federal Government
to regulate the price of telecommunications transmission and switching
equipment or support services. The Committee regards such regulation as
unnecessary in a competitive marketplace. Determinations regarding what
constitutes a "reasonable charge" for modifications and features should be
made in the first instance by manufacturers and their customers in
contractual negotiations in accordance with normal and accepted business
practices.
SECTION 2.--AUTHORIZATION OF APPROPRIATIONS
This section authorizes $500,000,000 to be appropriated for 1995 through
1997, and thereafter any additional amounts that may be necessary to carry
out the purposes of the bill, which sums shall be available until expended.
SECTION 3.--EFFECTIVE DATE
This section sets the effective date for compliance with the assistance
capability requirements in section 2602 and the systems security and
integrity requirement in section 2604 as four years after enactment. All
other provisions take effect upon date of enactment.
SECTION 4.--REPORTS
The Attorney General is required to report annually to Congress
periodically for the six years after enactment on the monies expended under
the bill. In addition, the General Accounting Office is required to report in
1996 and 1998 on the estimated costs of compliance with the bill.
SECTION 5.--CORDLESS TELEPHONES
The Electronic Communications Privacy Act (ECPA), which amended the wiretap
statute in 1986, exempted from the protection of the Act "the radio portion
of a cordless telephone that is transmitted between the cordless telephone
handset and the base unit." 18 U.S.C. Sec. 2510 (1) & (12). The bill deletes
the exceptions for cordless phones and imposes a penalty of up to $500 for
intentionally intercepting such communications.
SECTIONS 6 AND 7.--RADIO-BASED COMMUNICATIONS
ECPA does not protect communications that are "readily accessible to the
general public," which includes radio communications, unless they fit into
one of five specified categories. These excepted categories enjoy protection
because they usually are not susceptible to interception by the general
public.
The bill would add "electronic communication" as a category of radio
communication covered by the wiretap statute. This would provide protection
for all forms of electronic communications, including data, even when they
may be transmitted by radio.
The bill also amends the penalty provision to treat communications using
modulation techniques in the same fashion as those where encryption has been
employed to secure communications privacy. This paragraph refers to spread
spectrum radio communications, which usually involve the transmission of a
signal on different frequencies where the receiving station must possess the
necessary algorithm in order to reassemble the signal.
SECTION 8.--TECHNICAL CORRECTION
The wiretap law permits interception of wire communications by a wire or
electronic service provider in the normal course of business to render
services or protect rights or property. The bill would make a technical
correction and expand the exception to include electronic communications.
SECTION 9.--CLONE PHONES
This section amends the counterfeit access device law to criminalize the
use of cellular phones that are altered, or "cloned," to allow free riding on
the cellular phone system. Specifically, this section prohibits the use of an
altered telecommunications instrument, or a scanning receiver, hardware or
software, to obtain unauthorized access to telecommunications services for
the purpose of defrauding the carrier. A scanning receiver is defined as a
device used to intercept illegally wire, oral or electronic communications.
The penalty for violating this new section is imprisonment for up to fifteen
years and a fine of the greater of $50,000 or twice the value obtained by the
offense.
SECTION 10.--TRANSACTIONAL DATA
Recognizing that transactional records from on-line communication systems
reveal more than telephone toll records or mail covers, subsection (a)
eliminates the use of a subpoena by law enforcement to obtain from a provider
of electronic communication services the addresses on electronic messages. In
order for law enforcement to obtain such information, a court order is
required.
This section imposes an intermediate standard to protect on-line
transactional records. It is a standard higher than a subpoena, but not a
probable cause warrant. The intent of raising the standard for access to
transactional data is to guard against "fishing expeditions" by law
enforcement. Under the intermediate standard, the court must find, based on
law enforcement's showing of facts, that there are specific and articulable
grounds to believe that the records are relevant and material to an ongoing
criminal investigation.
Law enforcement could still use a subpoena to obtain the name, address,
telephone toll billing records, and length of service of a subscriber to or
customer of such service and the types of services the subscriber or customer
utilized.
Subsection (b) requires government agencies installing and using pen
register devices to use, when reasonably available, technology that restricts
the information captured by such device to the dialing or signaling
information necessary to direct or process a call, excluding any further
communication conducted through the use of dialed digits that would otherwise
be captured.
Committee Oversight Findings
In compliance with clause 2(l)(3)(A) of rule XI of the Rules of the House
of Representatives, the Committee reports that the findings and
recommendations of the Committee, based on oversight activities under clause
2(b)(1) of rule X of the Rules of the House of Representatives, are
incorporated in the descriptive portions of this report.
Committee on Government Operations Oversight Findings
No findings or recommendations of the Committee on Government Operations
were received as referred to in clause 2(l)(3)(D) of rule XI of the Rules of
the House of Representatives.
New Budget Authority and Tax Expenditures
Clause 2(l)(3)(B) of rule XI of the Rules of the House of Representatives
is inapplicable because this legislation does not provide new budgetary
authority or increased tax expenditures.
Congressional Budget Office Cost Estimates
In compliance with clause 2(l)(3)(C) of rule XI of the Rules of the House
of Representatives, the Committee sets forth, with respect to the bill, H.R.
4922, the following estimate and comparison prepared by the Director of the
Congressional Budget Office under section 403 of the Congressional Budget Act
of 1974.
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 30, 1994.
Hon. Jack Brooks,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has prepared the
enclosed cost estimate for H.R. 4922, a bill to amend title 18, United States
Code, to make clear a telecommunications carrier's duty to cooperate in the
interception of communications for law enforcement purposes, and for other
purposes.
Enactment of H.R. 4922 would affect direct spending and receipts.
Therefore, pay-as-you-go procedures would apply to the bill.
If you wish further details on this estimate, we will be pleased to provide
them.
Sincerely,
James L. Blum
(For Robert D. Reischauer).
Enclosure
CONGRESSIONAL BUDGET OFFICE--COST ESTIMATE
1. Bill number: H.R. 4922.
2. Bill title: A bill to amend title 18, United States Code, to make clear
a telecommunications carrier's duty to cooperate in the interception of
communications for law enforcement purposes, and for other purposes.
3. Bill status: As ordered reported by the House Committee on the Judiciary
on September 29, 1994.
4. Bill purpose: H.R. 4922 would direct telecommunications carriers to
attain certain technical capabilities to assist law enforcement agencies with
wire and electronic interceptions, pen registers, and trap and trace devices.
These companies generally would have four years to comply with the bill's
requirements. However, telecommunications carriers would not have to meet the
requirements with respect to existing equipment and services unless they are
reimbursed by the federal government. Additionally, the Attorney General may
agree to reimburse carriers for other reasonable costs in complying with this
bill. This legislation would authorize appropriations totaling $500 million
for the fiscal years 1995 through 1997, plus such sums as are necessary for
fiscal years thereafter.
This legislation would make several minor changes to the current laws
relating to the telecommunications industry. H.R. 4922 also would establish
both civil and criminal penalties for violation of certain provisions of the
bill.
5. Estimated cost to the Federal Government:
[By fiscal year, in millions of dollars]
1995 1996 1997 1998 1999
Revenues:
Estimated Receipts from Fines (/1/) (/1/) (/1/) (/1/) (/1/)
Direct spending: Crime victims fund
Estimated Budget authority 0 (/1/) (/1/) (/1/) (/1/)
Estimated outlays 0 (/1/) (/1/) (/1/) (/1/)
Authorizations:
Specified authorizations 500
Estimated authorizations 100 100
Total authorizations 500 100 100
Estimated outlays 25 100 375 100 100
/1/Less than $500,000.
The costs of this bill fall within budget function 750.
Basis of estimate: The estimate assumes that the congress will appropriate
the full amounts authorized. The costs of the bill in fiscal years 1998 and
1999 are very uncertain because the precise technical solutions to the bill's
requirements are unknown at this time. Based on information from the Federal
Bureau of Investigation (FBI) and the telecommunications industry, CBO
estimates that these costs would be roughly $100 million annually. costs of
this order of magnitude could continue in later years. The outlay estimates
are based on information from the FBI regarding implementation of the new
capabilities by the telecommunications carriers.
H.R. 4922 would impose civil and/or criminal fines for violations of the
bill's provisions. Both criminal and civil fines increase receipts to the
federal government. Criminal fines would be deposited in the Crime Victims
Fund and would be spent in the following year. CBO does not expect this
additional revenue or direct spending to be significant.
6. Pay-as-you-go considerations: Section 252 of the Balanced Budget and
Emergency Deficit Control Act of 1985 sets up pay-as-you-go procedures for
legislation affecting direct spending or receipts through 1998. Enactment of
H.R. 4922 would affect both receipts and direct spending; however, CBO
estimates that any changes in spending and receipts would be insignificant.
The following table summarizes the estimated pay-as-you-go impact of this
bill.
[By fiscal year, in millions of dollars]
1995 1996 1997 1998
Change in outlays 0 0 0 0
Change in Receipts 0 0 0 0
7. Estimated cost to State and local governments: None.
8. Estimate comparison: None.
9. Previous CBO estimate: None.
10. Estimate prepared by: Mark Grabowicz and John Webb and Melissa Sampson.
11. Estimate approved by: Paul Van deWater, for C.G. Nuckols, Assistant
Director for Budget Analysis
Inflationary Impact Statement
Pursuant to clause 2(l)(4) of rule XI of the Rules of the House of
Representatives, the Committee estimates that H.R. 4922 will have no
significant inflationary impact on prices and costs in the national economy.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the House of
Representatives, changes in existing law made by the bill, as reported, are
shown as follows (existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * *
PART I--CRIMES
Chap. Sec.
1. General provisions............................................ 1
* * * * *
120. Telecommunications carrier assistance to the Government......... 2601
* * * * *
CHAPTER 47--FRAUD AND FALSE STATEMENTS
* * * * *
Sec. 1029. Fraud and related activity in connection with access devices
(a) Whoever--
(1) * * *
* * * * *
(3) knowingly and with intent to defraud possesses fifteen or more
devices which are counterfeit or unauthorized access devices; [[or]]
(4) knowingly, and with intent to defraud, produces, traffics in, has
control or custody of, or possesses device-making equipment;
(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--
(A) a scanning receiver; or
(B) hardware or software used for altering or modifying
telecommunications instruments to obtain unauthorized access to
telecommunications services,
shall, if the offense affects interstate or foreign commerce, be punished as
provided in subsection (c) of this section.
* * * * *
(c) The punishment for an offense under subsection (a) or (b)(1) of this
section is--
(1) * * *
(2) a fine of not more than the greater of $50,000 or twice the value
obtained by the offense or imprisonment for not more than fifteen years,
or both, in the case of an offense under subsection [[(a)(1) or (a)(4)]]
(a) (1), (4), (5), or (6) of this section which does not occur after a
conviction for another offense under either such subsection, or an
attempt to commit an offense punishable under this paragraph; and
* * * * *
(e) As used in this section--
(1) the term "access device" means any card, plate, code, account
number, electronic serial number, mobile identification number, personal
identification number, or other telecommunications service, equipment, or
instrument identifier, or other means of account access that can be used,
alone or in conjunction with another access device, to obtain money,
goods, services, or any other thing of value, or that can be used to
initiate a transfer of funds (other than a transfer originated solely by
paper instrument);
* * * * *
(5) the term "traffic" means transfer, or otherwise dispose of, to
another, or obtain control of with intent to transfer or dispose of;
[[and]]
(6) the term "device-making equipment" means any equipment, mechanism,
or impression designed or primarily used for making an access device or a
counterfeit access device[[.]]; and
(7) the term "scanning receiver" means a device or apparatus that can
be used to intercept a wire or electronic communication in violation of
chapter 119.
* * * * *
CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION
OF ORAL COMMUNICATIONS
* * * * *
Sec. 2510. Definitions
As used in this chapter--
(1) "wire communication" means any aural transfer made in whole or in
part through the use of facilities for the transmission of communications
by the aid of wire, cable, or other like connection between the point of
origin and the point of reception (including the use of such connection
in a switching station) furnished or operated by any person engaged in
providing or operating such facilities for the transmission of interstate
or foreign communications or communications affecting interstate or
foreign commerce and such term includes any electronic storage of such
communication[[, but such term does not include the radio portion of a
cordless telephone communication that is transmitted between the cordless
telephone handset and the base unit]];
* * * * *
(12) "electronic communication" means any transfer of signs, signals,
writing, images, sounds, data, or intelligence of any nature transmitted
in whole or in part by a wire, radio, electromagnetic, photoelectronic or
photooptical system that affects interstate or foreign commerce, but does
not include--
[[(A) the radio portion of a cordless telephone communication that
is transmitted between the cordless telephone handset and the base
unit;
[[(B)]] (A) any wire or oral communication;
[[(C)]] (B) any communication made through a tone-only paging
device; or
[[(D)]] (C) any communication from a tracking device (as defined in
section 3117 of this title);
* * * * *
(16) "readily accessible to the general public" means, with respect to
a radio communication, that such communication is not--
(A) * * *
* * * * *
(D) transmitted over a communication system provided by a common
carrier, unless the communication is a tone only paging system
communication; [[or]]
(E) transmitted on frequencies allocated under part 25, subpart D,
E, or F of part 74, or part 94 of the Rules of the Federal
Communications Commission, unless, in the case of a communication
transmitted on a frequency allocated under part 74 that is not
exclusively allocated to broadcast auxiliary services, the
communication is a two-way voice communication by radio; or
(F) an electronic communication;
* * * * *
Sec. 2511. Interception and disclosure of wire, oral, or electronic
communications prohibited
(1) * * *
(2)(a)(i) It shall not be unlawful under this chapter for an operator of a
switchboard, or an officer, employee, or agent of a provider of wire or
electronic communication service, whose facilities are [[used in the
transmission of a wire communication]] used in the transmission of a wire or
electronic communication, to intercept, disclose, or use that communication
in the normal course of his employment while engaged in any activity which is
a necessary incident to the rendition of his service or to the protection of
the rights or property of the provider of that service, except that a
provider of wire communication service to the public shall not utilize
service observing or random monitoring except for mechanical or service
quality control checks.
* * * * *
(4)(a) * * *
(b) If the offense is a first offense under paragraph (a) of this
subsection and is not for a tortious or illegal purpose or for purposes of
direct or indirect commercial advantage or private commercial gain, and the
wire or electronic communication with respect to which the offense under
paragraph (a) is a radio communication that is not scrambled [[or encrypted,
then]], encrypted, or transmitted using modulation techniques the essential
parameters of which have been withheld from the public with the intention of
preserving the privacy of such communication--
(i) if the communication is not the radio portion of a cellular
telephone communication, a cordless telephone communication that is
transmitted between the cordless telephone handset and the base unit, a
public land mobile radio service communication or a paging service
communication, and the conduct is not that described in subsection (5),
the offender shall be fined under this title or imprisoned not more than
one year, or both; and
(ii) if the communication is the radio portion of a cellular telephone
communication, a cordless telephone communication that is transmitted
between the cordless telephone handset and the base unit, a public land
mobile radio service communication or a paging service communication, the
offender shall be fined not more than $500.
* * * * *
CHAPTER 120--TELECOMMUNICATIONS CARRIER ASSISTANCE TO THE GOVERNMENT
Sec.
2601. Definitions.
2602. Assistance capability requirements.
2603. Notices of capacity requirements.
2604. Systems security and integrity.
2605. Cooperation of equipment manufacturers and providers of
telecommunications support services.
2606. Technical requirements and standards; extension of compliance date.
2607. Enforcement orders.
2608. Payment of costs of telecommunications carriers to comply with
capability requirements.
Sec. 2601. Definitions
(a) Definitions.--In this chapter--
the terms defined in section 2510 have, respectively, the meanings
stated in that section.
"call-identifying information"--
(A) means dialing or signaling information that identifies the
origin, direction, destination, or termination of each communication
generated or received by the subscriber equipment, facility, or
service of a telecommunications carrier that is the subject of a
court order or lawful authorization; but
(B) does not include any information that may disclose the physical
location of the subscriber (except to the extent that the location
may be determined from the telephone number).
"Commission" means the Federal Communications Commission.
"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.
"information services"--
(A) means the offering of a capability for generating, acquiring,
storing, transforming, processing, retrieving, utilizing, or making
available information via telecommunications; and
(B) includes electronic publishing and electronic messaging
services; but
(C) does not include any capability for a telecommunications
carrier's internal management, control, or operation of its
telecommunications network.
"telecommunications support services" means a product, software, or
service used by a telecommunications carrier for the internal signaling
or switching functions of its telecommunications network.
"telecommunications carrier"--
(A) means a person or entity engaged in the transmission or
switching of wire or electronic communications as a common carrier
for hire (within the meaning of section 3(h) of the Communications
Act of 1934 (47 U.S.C. 153(h)));
(B) includes--
(i) a person or entity engaged in providing commercial mobile
service (as defined in section 332(d) of the Communications Act
of 1934 (47 U.S.C. 332(d))); or
(ii) a 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 a person or entity
to be a telecommunications carrier for purposes of this chapter;
but
(C) does not include persons or entities insofar as they are
engaged in providing information services.
Sec. 2602. Assistance capability requirements
(a) Capability Requirements.--Except as provided in subsections (b), (c),
and (d) of this section and sections 2607(c) and 2608(d), 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 are capable of--
(1) expeditiously isolating and enabling 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
concurrently 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;
(2) expeditiously isolating and enabling the government to access call-
identifying information that is reasonably available to the carrier--
(A) 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
(B) 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
section 3127), such call-identifying information shall not include any
information that may disclose the physical location of the subscriber
(except to the extent that the location may be determined from the
telephone number);
(3) delivering 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 other than the premises of the carrier; and
(4) facilitating authorized communications interceptions and access to
call-identifying information unobtrusively and with a minimum of
interference with any subscriber's telecommunications service and in a
manner that protects--
(A) the privacy and security of communications and call-identifying
information not authorized to be intercepted; and
(B) information regarding the government's interception of
communications and access to call-identifying information.
(b) Limitations.--
(1) Design of features and systems configurations.--This chapter does
not authorize any law enforcement agency or officer--
(A) to require any specific design of features or system
configurations to be adopted by providers of wire or electronic
communication service, manufacturers of telecommunications equipment,
or providers of telecommunications support services; or
(B) to prohibit the adoption of any feature or service by providers
of wire or electronic communication service, manufacturers of
telecommunications equipment, or providers of telecommunications
support services.
(2) Information services; private networks and interconnection services
and facilities.--The requirements of subsection (a) do not apply to--
(A) information services; or
(B) services or facilities that support the transport or switching
of communications for private networks or for the sole purpose of
interconnecting telecommunications carriers.
(3) Encryption.--A telecommunications carrier shall not be responsible
for decrypting, or ensuring the government's ability to decrypt, any
communication encrypted by a subscriber or customer, unless the
encryption was provided by the carrier and the carrier possesses the
information necessary to decrypt the communication.
(c) Emergency or Exigent Circumstances.--In emergency or exigent
circumstances (including those described in sections 2518 (7) or (11)(b) and
3125 of this title and section 1805(e) of title 50), a carrier at its
discretion may comply with subsection (a)(3) 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 in
which interception has been occurring as a result of the subscriber's use of
such a feature or service, information is made available to the government
(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. 2603. Notices of capacity requirements
(a) Notices of Maximum and Actual Capacity Requirements.--
(1) In general.--Not later than 1 year after the date of enactment of
this chapter, after consulting with State and local law enforcement
agencies, telecommunications carriers, providers of telecommunications
support services, and manufacturers of telecommunications equipment, and
after notice and comment, the Attorney General shall publish in the
Federal Register and provide to appropriate telecommunications industry
associations and standard-setting organizations--
(A) notice of the maximum capacity required to accommodate all of
the communication interceptions, pen registers, and trap and trace
devices that the Attorney General estimates that government agencies
authorized to conduct electronic surveillance may conduct and use
simultaneously after the date that is 4 years after the date of
enactment of this chapter; and
(B) notice of the actual number of communication interceptions, pen
registers, and trap and trace devices, representing a portion of the
maximum capacity set forth under subparagraph (A), that the Attorney
General estimates that government agencies authorized to conduct
electronic surveillance may conduct and use simultaneously after the
date that is 4 years after the date of enactment of this chapter.
(2) Basis of notices.--The notices issued under paragraph (1)--
(A) may be based upon the type of equipment, type of service,
number of subscribers, type or size or carrier, nature of service
area, or any other measure; and
(B) shall identify, to the maximum extent possible, the capacity
required at specific geographic locations, including carrier office
locations.
(b) Compliance With Capacity Notices.--
(1) Initial capacity.--Within 3 years after the publication by the
Attorney General of a notice of capacity requirements or within 4 years
after the date of enactment of this chapter, whichever is longer, a
telecommunications carrier shall, subject to subsection (e), ensure that
its systems are capable of--
(A) expanding to the maximum capacity set forth in the notice under
subsection (a)(1)(A); and
(B) accommodating simultaneously the number of interceptions, pen
registers, and trap and trace devices set forth in the notice under
subsection (a)(1)(B).
(2) Expansion to maximum capacity.--After the date described in
paragraph (1), a telecommunications carrier shall, subject to subsection
(e), ensure that it can accommodate expeditiously any increase in the
actual number of communication interceptions, pen registers, and trap and
trace devices that authorized agencies may seek to conduct and use, up to
the maximum capacity requirement set forth in the notice under subsection
(a)(1)(A).
(c) Notices of Increased Maximum Capacity Requirements.--
(1) The Attorney General shall periodically publish in the Federal
Register, after notice and comment, notice of any necessary increases in
the maximum capacity requirement set forth in the notice under subsection
(a)(1)(A).
(2) Within 3 years after notice of increased maximum capacity
requirements is published under paragraph (1), or within such longer time
period as the Attorney General may specify, a telecommunications carrier
shall, subject to subsection (e), ensure that its systems are capable of
expanding to the increased maximum capacity set forth in the notice.
(d) Carrier Statement.--Within 180 days after the publication by the
Attorney General of a notice of capacity requirements pursuant to subsection
(a), a telecommunications carrier shall submit to the Attorney General a
statement identifying any of its systems or services that do not have the
capacity to accommodate simultaneously the number of interceptions, pen
registers, and trap and trace devices set forth in the notice under
subparagraph (A) or (B) of subsection (a)(1).
(e) Reimbursement Required for Compliance.--The Attorney General shall
review the statements submitted under subsection (d) and may, subject to the
availability of appropriations, agree to reimburse a telecommunications
carrier for the just and reasonable costs directly associated with
modifications to attain such capacity requirement. Until the Attorney General
agrees to reimburse such carrier for such modification, such carrier shall be
considered to be in compliance with the capacity notices under subparagraphs
(A) and (B) of subsection (a)(1).
Sec. 2604. 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 the carrier.
Sec. 2605. Cooperation of equipment manufacturers and providers of
telecommunications support services
(a) Consultation.--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 ensuring that current and planned
services and equipment comply with the capability requirements of section
2602 and the capacity requirements identified by the Attorney General under
section 2603.
(b) Cooperation.--Subject to sections 2607(c) and 2608(d), 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 features or modifications as are
necessary to permit such carriers to comply with the capability requirements
of section 2602 and the capacity requirements identified by the Attorney
General under section 2603.
Sec. 2606. Technical requirements and standards; extension of compliance date
(a) Safe Harbor.--
(1) Consultation.--To ensure the efficient and industry-wide
implementation of the assistance capability requirements under section
2602, the Attorney General, in coordination with other Federal, State,
and local law enforcement agencies, shall consult with appropriate
associations and standard-setting organizations of the telecommunications
industry and with representatives of users of telecommunications services
and facilities.
(2) Compliance under accepted standards.--A telecommunications carrier
shall be found to be in compliance with the assistance capability
requirements under section 2602, and a manufacturer of telecommunications
transmission or switching equipment or a provider of telecommunications
support services shall be found to be in compliance with section 2605, if
the carrier, manufacturer, or support service provider is in compliance
with publicly available technical requirements or standards adopted by an
industry association or standard-setting organization or by the
Commission under subsection (b) to meet the requirements of section 2602.
(3) Absence of standards.--The absence of technical requirements or
standards for implementing the assistance capability requirements of
section 2602 shall not--
(A) preclude a carrier, manufacturer, or services provider from
deploying a technology or service; or
(B) relieve a carrier, manufacturer, or service provider of the
obligations imposed by section 2602 or 2605, as applicable.
(b) FCC Authority.--
(1) In general.--If industry associations or standard-setting
organizations fail to issue technical requirements or standards or if a
government agency or any other person believes that such requirements or
standards are deficient, the agency or person may petition the Commission
to establish, by notice and comment rulemaking or such other proceedings
as the Commission may be authorized to conduct, technical requirements or
standards that--
(A) meet the assistance capability requirements of section 2602;
(B) protect the privacy and security of communications not
authorized to be intercepted; and
(C) serve the policy of the United States to encourage the
provision of new technologies and services to the public.
(2) Transition period.--If an industry technical requirement or
standard is set aside or supplanted as a result of Commission action
under this section, the Commission, after consultation with the Attorney
General, shall establish a reasonable time and conditions for compliance
with and the transition to any new standard, including defining the
obligations of telecommunications carriers under section 2602 during any
transition period.
(c) Extension of Compliance Date for Features and Services.--
(1) Petition.--A telecommunications carrier proposing to install or
deploy, or having installed or deployed, a feature or service within 4
years after the date of enactment of this chapter may petition the
Commission for 1 or more extensions of the deadline for complying with
the assistance capability requirements under section 2602.
(2) Ground for extension.--The Commission may, after affording a full
opportunity for hearing and after consultation with the Attorney General,
grant an extension under this paragraph, if the Commission determines
that compliance with the assistance capability requirements under section
2602 is not reasonably achievable through application of technology
available within the compliance period.
(3) Length of extension.--An extension under this paragraph shall
extend for no longer than the earlier of--
(A) the date determined by the Commission as necessary for the
carrier to comply with the assistance capability requirements under
section 2602; or
(B) the date that is 2 years after the date on which the extension
is granted.
(4) Applicability of extension.--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. 2607. Enforcement orders
(a) Enforcement by Court Issuing Surveillance Order.--If a court
authorizing an interception under chapter 119, a State statute, or the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) or
authorizing use of a pen register or a trap and trace device under chapter
206 or 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 the carrier or the manufacturer of the carrier's transmission or switching
equipment furnish forthwith modifications necessary for the carrier to
comply.
(b) Enforcement Upon Application by Attorney General.--The Attorney General
may apply to the appropriate United States district court for, and the United
States district courts shall have jurisdiction to issue, an order directing
that a telecommunications carrier, a manufacturer of telecommunications
transmission or switching equipment, or a provider of telecommunications
support services comply with this chapter.
(c) Grounds for Issuance.--A court shall issue an order under subsection
(a) or (b) only if the court finds that--
(1) 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
(2) 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.
(d) Time for Compliance.--Upon issuance of an enforcement order under this
section, the court shall specify a reasonable time and conditions for
complying with its order, considering the good faith efforts to comply in a
timely manner, any effect on the carrier's, manufacturer's, or service
provider's 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.
(e) Limitation.--An order under this section may not require a
telecommunications carrier to meet the government's demand for interception
of communications and acquisition of call-identifying information to any
extent in excess of the capacity for which the Attorney General has agreed to
reimburse such carrier.
(f) Civil Penalty.--
(1) In general.--A court issuing an order under this section against a
telecommunications carrier, a manufacturer of telecommunications
transmission or switching equipment, or a provider of telecommunications
support services 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.
(2) Considerations.--In determining whether to impose a fine and in
determining its amount, the court shall take into account--
(A) the nature, circumstances, and extent of the violation;
(B) the violator's ability to pay, the violator's good faith
efforts to comply in a timely manner, any effect on the violator's
ability to continue to do business, the degree of culpability, and
the length of any delay in undertaking efforts to comply; and
(C) such other matters as justice may require.
(3) Civil action.--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. 2608. Payment of costs of telecommunications carriers to comply with
capability requirements
(a) Equipment, Features, and Services Deployed Before Date of Enactment.--
The Attorney General may, subject to the availability of appropriations,
agree to pay telecommunications carriers for all just and reasonable costs
directly associated with the modifications performed by carriers in
connection with equipment, features, and services installed or deployed
before the date of enactment of this chapter to establish the capabilities
necessary to comply with section 2602.
(b) Equipment, Features, and Services Deployed On or After Date of
Enactment.--
(1) In general.--If compliance with the assistance capability
requirements of section 2602 is not reasonably achievable with respect to
equipment, features, or services deployed on or after the date of
enactment of this chapter, the Attorney General, on application of a
telecommunications carrier, may agree to pay the telecommunications
carrier for just and reasonable costs directly associated with achieving
compliance.
(2) Consideration.--In determining whether compliance with the
assistance capability requirements of section 2602 is reasonably
achievable with respect to any equipment, feature, or service installed
or deployed after the date of enactment of this chapter, consideration
shall be given to the time when the equipment, feature, or service was
installed or deployed.
(c) Allocation of Funds for Payment.--The Attorney General shall allocate
funds appropriated to carry out this chapter in accordance with law
enforcement priorities determined by the Attorney General.
(d) Failure To Make Payment With Respect to Equipment, Features, and
Services Deployed Before Date of Enactment.--
(1) Considered to be in compliance.--If a carrier has requested payment
in accordance with procedures promulgated pursuant to subsection (e), and
the Attorney General has not agreed to pay the telecommunications carrier
for all reasonable costs directly associated with modifications necessary
to bring the equipment, feature, or service into actual compliance with
the assistance capability requirements of section 2602, any equipment,
feature, or service of a telecommunications carrier deployed before the
date of enactment of this chapter shall be considered to be in compliance
with the assistance capability requirements of section 2602 until the
equipment, feature, or service is replaced or significantly upgraded or
otherwise undergoes major modification.
(2) Limitation on order.--An order under section 2607 shall not require
a telecommunications carrier to modify, for the purpose of complying with
the assistance capability requirements of section 2602, any equipment,
feature, or service deployed before the date of enactment of this chapter
unless the Attorney General has agreed to pay the telecommunications
carrier for all just and reasonable costs directly associated with
modifications necessary to bring the equipment, feature, or service into
actual compliance with those requirements.
(e) Procedures and Regulations.--Notwithstanding any other law, the
Attorney General shall, after notice and comment, establish any procedures
and regulations deemed necessary to effectuate timely and cost-efficient
payment to telecommunications carriers for compensable costs incurred under
this chapter, under chapters 119 and 121, and under the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
(f) Dispute Resolution.--If there is a dispute between the Attorney General
and a telecommunications carrier regarding the amount of just and reasonable
costs to be paid under subsection (a), the dispute shall be resolved and the
amount determined in a proceeding initiated at the Commission or by the court
from which an enforcement order is sought under section 2607.
* * * * *
CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL
RECORDS ACCESS
* * * * *
Sec. 2703. Requirements for governmental access
(a) * * *
* * * * *
(c) Records Concerning Electronic Communication Service or Remote Computing
Service.--(1)(A) * * *
(B) A provider of electronic communication service or remote computing
service shall disclose a record or other information pertaining to a
subscriber to or customer of such service (not including the contents of
communications covered by subsection (a) or (b) of this section) to a
governmental entity only when the governmental entity--
[[(i) uses an administrative subpoena authorized by a Federal or State
statute, or a Federal or State grand jury or trial subpoena;
[[(ii)]] (i) obtains a warrant issued under the Federal Rules of
Criminal Procedure or equivalent State warrant;
[[(iii)]] (ii) obtains a court order for such disclosure under
subsection (d) of this section; or
[[(iv)]] (iii) has the consent of the subscriber or customer to such
disclosure.
(C) A provider of electronic communication service or remote computing
service shall disclose to a governmental entity the name, address, telephone
toll billing records, and length of service of a subscriber to or customer of
such service and the types of services the subscriber or customer utilized,
when the governmental entity uses an administrative subpoena authorized by a
Federal or State statute or a Federal or State grand jury or trial subpoena
or any means available under subparagraph (B).
* * * * *
(d) Requirements for Court Order.--[[A court order for disclosure under
subsection (b) or (c) of this section may be issued by any court that is a
court of competent jurisdiction set forth in section 3126(2)(A) of this title
and shall issue only if the governmental entity shows that there is reason to
believe the contents of a wire or electronic communication, or the records or
other information sought, are relevant to a legitimate law enforcement
inquiry.]] A court order for disclosure under subsection (b) or (c) may be
issued by any court that is a court of competent jurisdiction described in
section 3126(2)(A) and shall issue only if the governmental entity offers
specific and articulable facts showing that there are reasonable grounds to
believe that the contents of a wire or electronic communication, or the
records or other information sought, are relevant and material to an ongoing
criminal investigation. In the case of a State governmental authority, such a
court order shall not issue if prohibited by the law of such State. A court
issuing an order pursuant to this section, on a motion made promptly by the
service provider, may quash or modify such order, if the information or
records requested are unusually voluminous in nature or compliance with such
order otherwise would cause an undue burden on such provider.
* * * * *
CHAPTER 206--PEN REGISTERS AND TRAP AND TRACE DEVICES
* * * * *
Sec. 3121. General prohibition on pen register and trap and trace device use;
exception
(a) * * *
* * * * *
(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 dialing and signaling information
utilized in call processing.
[[(c)]] (d) Penalty.--Whoever knowingly violates subsection (a) shall be
fined under this title or imprisoned not more than one year, or both.
* * * * *
ADDITIONAL VIEWS
It is essential that we provide a means of assuring that law enforcement
agencies are not impaired by new telephone switching technology as they carry
out lawful wiretaps.
We all agree with this goal, but there are considerable differences of
opinion with respect to how the cost of developing and installing the
required software in existing switches and in assuring that new equipment is
designed with wiretap capability should be borne. The bill as reported could
under certain circumstances place a significant share of those costs on the
telephone industry.
Through the diligent efforts of representatives of the telecommunications
industry, the Electronic Frontier Foundation, and the Energy & Commerce
Committee staff, we have constructed an approach to resolving the cost issue
which we believe to be fair and equitable.
Under that compromise, the near term costs for the next four years would
unequivocally be borne by the government. Existing switches would be
retrofitted with the software necessary to assure wiretap capability. Under
this provision, absent a commitment by law enforcement to pay fully for the
modifications, a carrier would be deemed to be in compliance with the law and
no further action on its part would be required.
A second important provision will require that as new switching equipment
and services are designed and manufactured, wiretapping capabilities be
assured. It is obviously much more economical to design the wiretapping
access into the new equipment and services rather than to engage after-the-
fact and expensive retrofits. That requirement will, therefore, be a part of
the law.
The costs of assuring that new switches and services be accessible for
wiretapping are unknown at this time. They may be de minimis or they may be
substantial. Our compromise provides that the Federal Communications
Commission will resolve questions associated with who between the industry
and the government shall bear these costs. The Commission would apply all
sunshine requirements to all parties to its proceeding, including government
entities, and would determine these questions:
1. Whether the costs of meeting the wiretap capability requirements of
law enforcement shall be borne by the government or should be assumed by
the telecommunications carriers, equipment manufacturers and providers of
telecommunications support services, or some combination thereof.
2. What cost allocation methods best ensure accountability and
protection to personal privacy.
3. What methods best ensure that there will be no "goldplating" either
by the government asking for upgrades that are unnecessary or by industry
seeking to have law enforcement pay for updating their networks.
4. How to ensure that whatever method is selected is competitively
neutral, has a minimum effect on the deployment of an advanced
telecommunications network and minimum adverse effect on telephone rates.
We are pleased to report that this proposed compromise has been accepted in
principle by the FBI, the United States Telephone Association, The Electronic
Frontier Foundation, and the Digital Telephony Working Group, which
represents a broad spectrum of privacy protection and industry interests.
Following the reporting of this bill by the House Judiciary Committee, the
Energy & Commerce Committee will review its provisions, and we anticipate
that the compromise to which we have agreed in principle will be favorably
received by that committee. The compromise would then be embodied in a floor
amendment to be offered at the time this legislation is considered by the
full House.
Don Edwards.
Rick Boucher.