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Original Message Date: 25 Jun 92 02:13:12
From: Uucp on 1:125/555
To: Tomj on 1:125/111
Subj: FBI Digital Telephony (bill text)
^AINTL 1:125/111 1:125/555
From kumr!eff.org!knight
From: knight@eff.org (Craig Neidorf)
To: knight@eff.org
Date: Tue, 23 Jun 1992 14:54:35 -0500
The following is the latest version of the FBI Digital Telephony Proposal,
introduced in May 1992. This version removes the previous language that
authorized the FCC to set standards and now places it solely in the hands ?
of
the Attorney General. Fines are $10,000/day for non compliance with ?
services
within the public switched network having 18 months to comply and services
outisde having three years. The proposal now manadates that the ?
capability for
remote government wiretapping must be included into the system.
This proposal clearly enhances the ability of the FBI to monitor
communications. It takes the unprecendented step of placing control over
certification of telecommunications equipment in the hands of the Attorney
General and requires that the equipment be constucted to allow government ?
have
the ability to monitor communications from a "government monitoring ?
facility
remote from the target facility." All telecommunications users should be
concerned by the privacy and security implications of creating systems that
have holes for the government or any other knowledgable user to plug into.
David Banisar
CPSR Washington Office
banisar@washofc.cpsr.org
Craig Neidorf
Concerned Citizen
cneidorf@washofc.cpsr.org
__________________________________________________________
102nd Congress
2nd Session
S. _____
[H.R. _____]
IN THE SENATE
[IN THE HOUSE OF REPRESENTATIVES]
M. ________________ introduced the following bill; which was
referred to the Committee on__________________
A BILL
To ensure the continuing access of law enforcement to the content of wire
and electronic communications when authorized by law and for other
purposes.
Be it enacted by the Senate and the House of Representatives of the United
States of America in Congress assembled,
SEC. 1. FINDINGS AND PURPOSES.
(a) The Congress finds:
(1) that telecommunications systems and networks are often
used in the furtherance of criminal activities including organized crime,
racketeering, extortion, kidnapping, espionage, terrorism, and trafficking
in illegal drugs;
(2) that recent and continuing advances in telecommunications
technology, and the introduction of new technologies and transmission
modes by the telecommunications industry, have made it increasingly
difficult for government agencies to implement lawful orders or
authorizations to intercept wire and electronic communications and thus
threaten the ability of such agencies effectively to enforce the laws and
protect the national security; and
(3) that without the assistance and cooperation of providers
of electronic communication services and private branch exchange ?
operators,
the introduction of new technologies and transmission modes into
telecommunications systems without consideration and accommodation
of the need of government agencies lawfully to intercept wire and
electronic communications would impede the ability of such agencies
effectively to carry out their responsibilities.
(b) The purposes of this Act are to clarify the responsibilities ?
of
providers of electronic communication services and private branch
exchange operators to provide such assistance as necessary to ensure the
ability of government agencies to implement lawful court orders or
authorizations to intercept wire and electronic communications. SEC. 2.
(a) Providers of electronic communication services and private branch
exchange operators shall provide within the United States capability and
capacity for the government to intercept wire and electronic
communications when authorized by law:
(1) concurrent with the transmission of the communication to
the recipient of the communication;
(2) in the signal form representing the content of the
communication between the subject of the intercept and any individual
with whom the subject is communicating, exclusive of any other signal
representing the content of the communication between any other
subscribers or users of the electronic communication services provider or
private branch exchange operator, and including information on the
individual calls (including origin, destination and other call set-up
information), and services, systems, and features used by the subject of
the interception;
(3) notwithstanding the mobility of the subject of the intercept ?
or
the use by the subject of the intercept of any features of the
telecommunication system, including, but not limited to, speed- dialing or
call forwarding features;
(4) at a government monitoring facility remote from the target
facility and remote from the system of the electronic communication
services provider or private branch exchange operator;
(5) without detection by the subject of the intercept or any
subscriber; and
(6) without degradation of any subscriber's telecommunications
service.
(b) Providers of electronic communication services within the
public switched network, including local exchange carriers, cellular
service providers, and interexchange carriers, shall comply with
subsection (a) of this section within eighteen months from the date of
enactment of this subsection.
(c) Providers of electronic communication services outside of the
public switched network, including private branch exchange operators,
shall comply with subsection (a) of this section within three years from
the date of enactment of the subsection.
(d) The Attorney General, after consultation with the
Department of Commerce, the Small Business Administration and Federal
Communications Commission, as appropriate, may except from the
application of subsections (a), (b) and (c) of this section classes and
types of providers of electronic communication services and private branch
exchange operators. The Attorney General may waive the application of
subsections (a), (b) and (c) of this section at the request of any
provider of electronic communication services or private branch exchange
operator.
(e) The Attorney General shall have exclusive authority to
enforce the provisions of subsections (a), (b) and (c) of this section.
The Attorney General may apply to the appropriate United States District
Court for an order restraining or enjoining any violation of subsection
(a), (b) or (c) of this section. The District Court shall have
jurisdiction to restrain and enjoin violations of subsections (a) of this
section.
(f) Any person who willfully violates any provision of
subsection (a) of this section shall be subject to a civil penalty of
$10,000 per day for each day in violation. The Attorney General may file
a civil action in the appropriate United States District Court to
collect, and the United States District Courts shall have jurisdiction to
impose, such fines.
(g) Definitions--As used in subsections (a) through (f) of this
section--
(1) 'provider of electronic communication service' or 'private
branch exchange operator' means any service or operator which provides
to users thereof the ability to send or receive wire or electronic
communication, as those terms are defined in subsections 2510(1) and
2510(12) of Title 18, United States code, respectively, but does not
include the government of the United States or any agency thereof;
(2) 'communication' means any wire or electronic
communication, as defined in subsections 2510(1) and 2510(12), of Title
18, United States Code;
(3) 'intercept' shall have the same meaning as set forth in ?
section
2510(4) of Title 18, United States Code; and
(4) 'government' means the Government of the United States
and any agency or instrumentality thereof, any state or political
subdivision thereof, the District of Columbia, and any commonwealth,
territory or possession of the United States.
DIGITAL TELEPHONY AND INTERCEPTION BY CRIMINAL LAW
ENFORCEMENT AGENCIES
The telecommunications systems and networks are
often used to further criminal activities including white collar and
organized crime, racketeering, extortion, kidnapping, espionage,
terrorism, and trafficking in illegal drugs. Accordingly, for many
years, one of the most important tools in the investigation of crime for
Federal and State criminal law enforcement agencies has been the court
authorized interception of communications. As illustrated below, the
majority of original authorizations to intercept wire or electronic
communications are conducted by State criminal law enforcement agencies.
Interception Applications Authorized
State Federal Total
1984 512 289 801
1985 541 243 784
1986 504 250 754
1987 437 236 673
1988 445 293 738
1989 453 310 763
1990 548 324 872
Total 3,440 1,945 5,385
Approximately, 3/8 of authorized interceptions were conducted by Federal
agencies, while 5/8 of the authorized interceptions were conducted by
State criminal law enforcement agencies.1
The recent and continuing advances in telecommunications ?
technology,
and the introduction of new technologies by the telecommunications
industry, have made it increasingly difficult
for government agencies to implement lawful orders or authorizations to
intercept wire and electronic communications, as well as to implement
pen register and trap-and-trace court orders or authorizations. These new
technologies inadvertently undermine the ability of criminal law
enforcement agencies to enforce effectively the criminal laws and protect
the national security. Without the assistance and cooperation of the
telecommunications industry, these new technologies will impede the
ability of the telecommunications industry, these new technologies will
impede the ability of the government to enforce the criminal law.
Accordingly, the purpose of this bill is to clarify the existing
responsibilities of electronic communication services providers and
private branch exchange operators, as established, for example, in 18
U.S.C. ____ 2518(4), 3124(A), (B), to provide such assistance as
necessary to ensure the ability of government agencies to implement
lawful orders or authorizations to intercept communications.
Over the past twenty-five years, the working
relationship between the criminal law enforcement community,
particularly the Federal Bureau of Investigation as the federal
government's primary criminal law enforcement agency, and the
telecommunications industry, in response to the appropriate court orders
or authorizations, has provided government agencies with timely access to
the signals containing the content of communications covered by the court
orders or authorizations. As a general proposition, this has involved
providing the means to acquire the communication as it occurs between
two individual telephone users at a remote location, not dissimilar to a
call in which the two originating parties do not know that a third party
is listening, and in which the third party (the criminal law enforcement
agency) records the authorized and relevant calls.
Historically, and with relatively few exceptions, the
telecommunications industry has provided the criminal law enforcement
community with the ability to monitor and record calls:
1. at the same time asthe call is transmitted to the recipient;
2. in the same form as the content of the call was transmitted
through the network, notwithstanding the use by the target of custom
features of the network;
3. whether stationary or mobile;
4. at the government monitoring facility;
5. without detection by the target or other subscribers; and
without degrading any subscriber's service.
However, the introduction of new technology has begun to erode the
ability of the government to fully effectuate interceptions, pen
registers and trap-and-race court orders or authorizations that are
critical to detecting and prosecuting criminals. As technology has
developed, the telecommunications industry has not always ensured the
continued
ability to provide the same services to the criminal law enforcement
community. The telecommunications industry's introduction of certain
types of new technology poses real problems for effective criminal law
enforcement. Legislation is necessary to ensure that the government will
be provided with this capability and capacity in the future by all
providers and operators and to maintain a level playing field among
competitive
providers and operators in the telecommunications industry.
There have been instances in which court orders authorizing the
interception of communications have not been fulfilled because of
technical limitations within particular telecommunications networks. For
example, as early as 1986, limited capabilities became apparent in at
least one network which will only be corrected later in 1992. This
technical deficiency in a new technology forced criminal law enforcement
agencies to prioritize certain interceptions to the exclusion of other
court orders. Accordingly, for approximately six years, there have been
court orders that have not been sought by the criminal law enforcement
community or executed by the telecommunications industry and, as a
consequence, important criminal investigations have not been brought to
fruition or have been less than efficiently concluded. This is one
classic example of new technology affecting adversely the criminal law
enforcement community: a microcosm of what may be expected on a
nationwide basis without enactment of this legislation.
Section 1 of the bill states Congressional findings and purpose.
Section 2 is divided into seven subsections. Subsection (a)
establishes as a matter of law the responsibility of electronic
communication services providers and private branch exchange operators
to continue to provide, within the United States, the capability and
capacity for criminal law enforcement agencies to intercept wire and
electronic communications when authorized by law. These subsections
delineate the existing attributes of wire or electronic communication
interception.
1. Concurrent with Transmission. The application for a
court order to intercept telecommunications conversations or data
transmissions is rarely a leisurely process. For example, on the Federal
side, the development of the required affidavits, submission to the
Criminal Division of the Department of Justice for approval, transmission
of approval to the Assistant United States Attorney, the appearance of the
Assistant before a judge to request the order and the delivery of the
judge's order to the appropriate telecommunications company is frequently
completed in a very short time. However, crime waits for no one and the
system for approval of interceptions must and does conform with the
realities of the activity that is sought to be investigated and, if
appropriate, prosecuted as criminal offenses. Since time is of the
essence, current law requires that service providers and operators
provide the government forthwith all information, facilities and
technical assistance necessary to accomplish its mission. It is critical
that the telecommunications industry respond quickly to execute the court
order or authorization. The ultimate problem of timeliness, however, is
the real-time monitoring of the intercepted communications. As serious
and potentially life- threatening criminal conduct is detected, it may be
necessary to move quickly to protect innocent victims from that conduct.
Accordingly, "real-time" monitoring is critical.
2. Isolated Signal and Services Used. Nearly all of the
communications network is partially "analog" at this time. In
conducting an interception, for example, of a telephone conversation, the
government is allowed to monitor and record criminal conversation such
as a conspiracy, minimizing the acquisition of non-criminal or innocent
conversation. When an electronic communication services provider or
private branch exchange operator introduces a new technology--such as a
digital signal--the communications are converted into a different and
more efficient form for transmission, but a more difficult form to
monitor during interception. The bill requires only that the provider or
operator isolate and provide access to the electronic signal that
represents the content of the communications of the target of the
intercept2 from the stream of electronic signals representing other
communications. This provision seeks to ensure that, in the new
electronic environment in which signals are mixed for transmission and
separated at another switch for distribution, the government does not
receive the communications of any individual other than the individuals
using the target's communications point of origin and receipt; the
government must remain subject to the minimization standards of 18 U.S.C.
__ 2518(5).
This provision also makes it clear that an electronic
communication services provider or private branch exchange operator is
not required to provide for reconversion of the isolated communication to
analog or other form. The government expects that this process will be
accomplished by the government.
3. Mobility and Features. Increasingly, criminal acts are being
conducted or discussed over cellular telephones or by using special
telecommunications features. As this mobility is introduced, the
electronic communication services providers and private branch exchange
operators would be required to assure the capability and capacity for
criminal law enforcement agencies to continue lawful interception.
Further, this subsection makes it clear that features used by the
target do not defeat the court order or authorization. For example,
communications which have been addressed to the telephone number of
the target, but which may have been programmed through a
call-forwarding feature to another, otherwise innocent, telephone number,
must be captured and made available to criminal law enforcement
authorities pursuant to court order or authorization. This requirement
will obviate the need for applications for authority to monitor otherwise
innocent telephone numbers that receive, only intermittently, calls
forwarded by the target. The effect of this provision is to further
minimize monitoring of calls of innocent parties. Similarly, certain
speed dialing features that mask the telephone number called by the
target must be identified for criminal law enforcement investigation.
The ability to consistently determine the destination of calls is critical
to minimizing
the monitoring of innocent calls.
4. Government Monitoring Facility. Government agencies do not
normally request the use of telecommunications industry physical
facilities to conduct authorized interceptions nor is it encourage by the
industry. Normally, the government leases a line from the electronic
communication services provider's or private branch exchange operator's
switch to another location owned or operated by the government. This
minimizes the cost and intrusiveness of interceptions, which benefits the
service provider or operator, as well as the government. Accordingly, the
ability to monitor intercepted communications remotely is critical.
5. Without Detection. One of the reasons that governments
operate their own facilities is to reduce the risk of detection of the
interception, which would render the interception worthless. At the
present time, the existence of an interception is unknown to any
subscriber and is not detectable by the target, notwithstanding folklore
and spy novels. This provision merely ensures that the secrecy of
effective interceptions will be maintained.
6. Without Degradation. Maintaining the quality of the
telephone network is in the interest of the government, the industry and
the public. Presently, the existence of an interception has no effect on
the quality of the service provided by any network to the target or any
subscriber. This provision ensures that the quality of the network will
continue to be uncompromised. Absent the assistance delineated by this
legislation, the execution of court orders and authorizations by the
government could well disrupt service of the newer technological systems,
a result that this legislation seeks to avoid.
Subsection (b) provides that electronic communication services
providers and private branch exchange operators with the "public
switched network" must be in compliance with the minimum intercept
attributes within eighteen months after enactment. Thereafter, new
technologies must continue to meet these minimum attributes.
Subsection (c) provides that electronic communication service
providers and private branch exchange operators that are not within the
"public switched network" must be in compliance with the minimum
intercept attributes within eighteen months after enactment. Thereafter,
new technologies must continue to meet these minimum attributes.
Subsection (d) provides that the Attorney General may grant
exceptions to the affirmative requirements of subsection (a), as well as
the implementation deadlines of subsections (b) and (c). In considering
any request for exception, the Attorney General will consult with Federal
Communications Commission, the Small Business Administration and
the Department of Commerce, as appropriate. Accordingly, the Attorney
General has the authority to except, for example, whole classes,
categories or types of private branch exchange operators where no serious
criminal law enforcement problems are likely to arise, such as hospital
telephone systems.
This subsection also permits the Attorney General to waive the
requirements of subsections (a), (b) and (c) on application by an
electronic communication services provider or private branch exchange
operator.
Accordingly, if a particular company can not comply with one or more of
the requirements of subsection (a), or needs time additional to that
permitted under subsections (b) or (c), the Attorney General may grant an
appropriate waiver.
Subsection (e) provides that the Attorney General has exclusive
authority to enforce the provisions of the bill. While a number of States
have authority to seek and execute interception orders, they will be
required to seek the assistance of the Attorney General if enforcement of
this legislation is required. This section also provides for injunctive
relief from violations of the provisions of the bill.
Subsection (f) provides for enforcement of the provisions of the
bill through imposition of civil fines against any company that is not
excepted from the provisions of the bill, does not acquire a waiver of the
provisions of the bill, and fails to meet the requirements of subsection
(a) after the effective dates set out in subsection (b) or (c), as
appropriate. A fine of up to $10,000 per day for each day in violation
may be levied; for most companies in the telecommunications industry
this amount is sufficient to ensure that compliance will be forthcoming.
Although this provision is not expected to be used, it is critical to
ensure that compliance with the provisions of the bill will occur after
the effective dates of the requirements of subsection (a).
Subsection (g) carries forward a number of definitions from the
current provisions for the interception of wire or electronic
communications under "Title III." The definition of "government" that is
currently in use includes all States, territories and possessions of the
United States, as well as the United States, is made applicable to the
bill.
[Footnotes]
1Interceptions for foreign intelligence and counterintelligence
purposes are not counted within the figures used here, but would likewise
benefit from enactment of the legislation.
2 Whether the content is voice, facsimile, imagery (e.g. video), computer
data, signalling information, or other forms of communication, does not ?
matter;
all forms of communication are intercepted.