From: rita@eff.org (Rita Marie Rouvalis)
Subject: Latest FBI Wiretap Bill
Followup-To: comp.org.eff.talk 
Originator: rita@eff.org
Organization: Electronic Frontier Foundation
Date: Wed, 2 Sep 1992 18:11:58 GMT


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.


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  3440   1945   5385

   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. 
 




-- 
Rita Marie Rouvalis              rita@eff.org 
Electronic Frontier Foundation   | 
155 Second Street                | "Stop me before I post again."
Cambridge, MA 02141 617-864-0665 | 
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