Date: Mon, 22 Jun 1992 21:10:20 EDT
From: Dave Banisar <
[email protected]>
Subject: File 1--May '92 Version of FBI Digital Telephony Proposal
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 outside having three years. The
proposal now mandates 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 unprecedented step of placing control over
certification of telecommunications equipment in the hands of the
Attorney General and requires that the equipment be constructed 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 knowledgeable user to plug into.
%%
David Banisar
CPSR Washington Office
[email protected]
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
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 subscribers 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 governments 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 as the 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 subscribers 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 industrys 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 judges 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 Ranalogs 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 targets 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 providers or private branch
exchange operators 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 networkS 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 networkS 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 Ritle III.S 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]
1 Interceptions 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.
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