From: Mike Godwin <mnemonic@eff.org>
Date: Wed, 23 Feb 94 16:57:52 PST
To: cyberia-l@birds.wm.edu )
Subject: Digital Telephony Bill 1994 (Draft)
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From: Mike Godwin <mnemonic>
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Subject: Digital Telephony Bill 1994 (Draft)
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Date: Wed, 23 Feb 1994 19:50:59 -0500 (EST)
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103rd Congress          Draft          2/9/94
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 continued law enforcement electronic surveillance access to
the content of wire and electronic communications and call setup
information when authorized by law, to improve communications privacy
protection, and for other purposes.

   By it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,


SEC. 1. SHORT TITLE.

      This Act may be cited as the "Digital Telephony and Communications
Privacy Improvement Act of 1994."


SEC. 2. PURPOSE.  The purpose of this Act is to clarify and define the
responsibilities of common carriers, providers of common carrier support
services, and telecommunications equipment manufacturers to provide the
assistance required to ensure that government agencies can implement court
orders and lawful authorizations to intercept the content of wire and
electronic communications and acquire call setup information under
chapters 119 and 206 of title 18 and chapter 36 of title 50. Otherwise,
except for the provisions in section 4, nothing in this Act is intended to
alter any provision contained in the Federal electronic surveillance, pen
register, or trap and trace statutes, or those of any state or other
jurisdiction. In particular, nothing herein is intended to enlarge or
reduce the government's authority to lawfully intercept the content of
communications or install or use pen register or trap and trace devices,
or to increase or decrease any criminal penalties for unlawfully
intercepting the content of communications or installing or using pen
register or trap and trace devices, or to alter the provisions regarding
service provider assistance, payment for assistance, causes of action,
civil liability, or good faith defenses.
      The Act is further intended to improve communications privacy
protection for cordless telephones, certain radio-based data
communications and networks, communications transmitted using certain
privacy-enhancing modulation techniques, and to clarify the lawfulness of
quality control and service provision monitoring of electronic
communications.


SEC. 3.  COMMON CARRIER ASSISTANCE

      (a) _New section_.  Chapter 109 of title 18, United States Code, is
amended by adding the following new section:

"Sec. 2237. Common carrier assistance to government agencies.
      "(a) Assistance requirements. Common carriers shall be required to
provide forthwith, pursuant to court order or lawful authorization, the
following capabilities and capacities in order to permit the government to
conduct electronic surveillance and pen register and trap and trace
investigations effectively:
      "(1) The ability to execute expeditiously and simultaneously within
a common carrier's system all court orders and lawful authorizations for
the interception of wire and electronic communications and the acquisition
of call setup information related to the facilities or services of
subscribers of such common carrier;
      "(2) the ability to intercept the content of communications and
acquire call setup information concurrent with the transmission of the
communication to or from the subscriber's facility or service that is the
subject of the court order or lawful authorization, to the exclusion of
any wire or electronic communication or call setup information of any
other subscriber, notwithstanding the mobile nature of the facility or
service that is the subject of the court order or lawful authorization or
the use by the subscriber who is the subject of the court order or lawful
authorization of any features offered by the common carrier;
      "(3) the ability to intercept the content of communications and
acquire call setup information unobtrusively and with a minimum of
interference with any subscriber's telecommunications service; and
      "(4) the ability to receive, in a generally available format, the
intercepted content of communications and acquired call setup information
at a location identified by the government distant from the facility that
is the subject of the interception, from the interception access point,
and from the premises of the common carrier (except where emergency or
exigent circumstances such as those described in 18 U.S.C. 2518(7),
2518(11)(b), or 3125, or in 50 U.S.C. 1805(e), necessitate monitoring at
the common carrier's premises).
      "(b) Systems security. The government shall notify a common carrier
of any interception of wire or electronic communications or any
acquisition of call setup information that is to be effected within the
premises of such common carrier pursuant to court order or lawful
authorization. After notification, such common carrier shall designate an
individual or individuals to activate such interception or acquisition
forthwith. Such individual(s) shall be available at all times to activate
such interceptions or acquisitions. Such interceptions or acquisitions
effected within the premises of a common carrier may be activated only by
the affirmative intervention of such individual(s) designated by such
common carrier.
      "(c) Compliance date. To the extent that common carriers providing
service within the United States currently cannot fulfil the requirements
set forth in subsection (a) of this section, they shall fulfil such
requirements within three years from the date of enactment of this Act.
      "(d) Cooperation of support service providers and equipment
manufacturers. Common carriers shall consult, as necessary, in a timely
fashion with appropriate providers of common carrier support services and
telecommunications equipment manufacturers for the purpose of identifying
any services or equipment, including hardware and software, that may
require modification so as to permit compliance with the provisions of
this Act. A provider of common carrier support services or a
telecommunications equipment manufacturer shall make available to a common
carrier on a timely and priority basis, and at a reasonable cost, any
support service or equipment, including hardware or software, which may be
required so as to permit compliance with the provisions of this Act.
      "(e) Enforcement. The Attorney General shall have authority to
enforce the provisions of subsections (a), (b), (c), and (d) of this
section. The Attorney General may apply to the appropriate United States
District Court for an order restraining or enjoining the provision of
service of any common carrier who violates subsection (a), (b), (c), or
(d) of this section. The District Courts shall have jurisdiction to issue
such restraining order or injunction. The Attorney General may also
request the Federal Communications Commission to assist in enforcing the
provisions of this Act.
      "(f) Penalties. Any common carrier that 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 jurisdiction to impose, such
penalties. After consultation with the Attorney General, the Federal
Communications Commission may also impose regulatory sanctions or fines
otherwise authorized by law.
      "(g) Consultation. The Attorney General is encouraged to consult
with the Federal Communications Commission and common carrier
representatives and to utilize common carrier standards bodies,
associations, or other such organizations to discuss details of the
requirements, such as those related to capacity, in order to facilitate
compliance with the provisions of this Act.
      "(h) Funding. Notwithstanding any other provision of law, the
Federal Communications Commission shall implement promptly methods and
procedures that allow each common carrier to be remunerated by the Federal
Government for all reasonable costs incurred in the course of complying
with the requirements of this Act.
      "(i) Definitions. -- As used in this Section --
          (1) 'common carrier' means any person or entity engaged as a
common carrier for hire, as defined by section 3(h) of the Communications
Act of 1934, and includes a commercial mobile service or interconnected
service, as defined in section 6002(b) of Public Law 103-66;
          (2) 'provider of common carrier support services' means any
person or entity who provides services to a common carrier that are
integral to processing, directing, forwarding, or completing telephone
calls or electronic communication transmissions;
          (3) 'wire communication' shall have the same meaning as set
forth in subsection 2510(1) of title 18, United States Code;
          (4) 'electronic communication' shall have the same meaning as
set forth in subsection 2510(12) of title 18, United States Code;
          (5) 'intercept' shall have the same meaning as set forth in
subsection 2510(4) of title 18, United States Code, except that with
regard to a common carrier's transmission of a communication encrypted by
a subscriber, the common carrier shall not be responsible for ensuring the
government agency's ability to acquire the plaintext of the communications
content, unless the encryption was provided by the common carrier and the
common carrier possesses the information necessary to decrypt the
communication;
          (6) 'concurrent with the transmission of the communication,' as
used in section 3(a)(2) of this Act, means contemporaneous with the
transmission; but it shall include, with regard to electronic
communications, the ability of a government agency to acquire such
communications at the conclusion of the transmission, and, with regard to
call set up information, the ability to acquire such information either
before, during, or immediately after the transmission of the
communication;
          (7) 'call set up information' shall mean the information
generated which identifies the origin and destination of a wire or
electronic communication placed to, or received by, the facility or
service that is the subject of a court order or lawful authorization,
including information associated with any telecommunication system dialing
or calling features or services; and
          (8) 'government' means the Government of the United States and
any agency or instrumentality thereof, the District of Columbia, any
commonwealth, territory or possession of the United States, and any state
or political subdivision thereof authorized by law to conduct electronic
surveillance."


SEC. 4. COMMUNICATIONS PRIVACY IMPROVEMENT AND MONITORING CLARIFICATION.

      Chapter 119 of title 18 is amended by making the following changes:
      (1) Cordless telephones.
      (a) _Definitions_. - Section 2510 of title 18, United States Code,
is amended - 
          (1) in paragraph (1), by striking ", but such term does not
include" and all that follows through "base unit"; and 
          (2) in paragraph (12), by striking subparagraph (A) and
redesignating subparagraphs (B) through (D) as subparagraphs (A) through
(C), respectively.
      (b) _Penalty_. - Section 2511 of title 18, United States Code, is
amended - 
          (1) in subsection (4)(b)(i), by inserting "a cordless telephone
communication that is transmitted between a cordless telephone handset and
the base unit," after "cellular telephone communication,"; and
          (2) in subsection (4)(b)(ii), by inserting "a cordless telephone
communication that is transmitted between a cordless telephone handset and
the base unit," after "cellular telephone communication,".
      (2) Radio based data communications.
      Section 2510(16) of title 18, United States Code, is amended by
striking the word "or" at the end of subparagraph (D) and inserting an
"or" at the end of subparagraph (E) and adding the following new
subparagraph:
          "(F) an electronic communication;".
      (3) Penalties for monitoring radio communications that are not
scrambled, encrypted, or non-public.
      Section 2511(4)(b) of title 18, United States Code, is amended by
deleting the phrase "or encrypted, then--" and inserting the following:
          ", encrypted, or transmitted using modulation techniques whose
essential parameters have been withheld from the public with the intention
of preserving the privacy or such communication, then--".
      (4)Technical correction.
      Section 2511(2)(a)(i) of title 18, United States Code, is amended by
striking out "used in the transmission of wire communication" and
inserting in lieu thereof "used in the transmission of a wire or
electronic communication.".