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- Newsgroups: misc.activism.progressive
- Path: sparky!uunet!europa.asd.contel.com!darwin.sura.net!wupost!mont!pencil.cs.missouri.edu!rich
- From: rita@eff.org (Rita Marie Rouvalis)
- Subject: Latest FBI Wiretap Bill
- Message-ID: <1992Sep8.195343.27832@mont.cs.missouri.edu>
- Followup-To: alt.activism.d
- Originator: rich@pencil.cs.missouri.edu
- Sender: news@mont.cs.missouri.edu
- Nntp-Posting-Host: pencil.cs.missouri.edu
- Organization: Electronic Frontier Foundation
- Distribution: na
- Date: Tue, 8 Sep 1992 19:53:43 GMT
- Approved: map@pencil.cs.missouri.edu
- Lines: 437
-
- 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 |
-
- Commentary:
-
- This would apply to all Usenet sites and all BBSes in USA, right?
-
- Government itself is specifically excempted, the law does not apply to
- them. So much for equality in front of law.
-
- The penalty is a "civil penalty", which is a magic word to circumvent
- due process (as in "civil forfeiture", "civil rights violations"
- etc.), right?
-
- //Jyrki
-
-