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Section-by-section Analysis of the 1994 draft of the Digital Telephony legislation by EFF Staff [
From: David Farber <farber () central cis upenn edu>
Date: Fri, 25 Feb 1994 22:00:30 -0500
mollifying common carriers who don't want non-personnel handling their equipment or operating their facilities. Of course, this section also means that a common carrier must budget for such personnel to be at the service of law enforcement for on-premises intercepts and call-setup captures.
"(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. The time limit for compliance has not changed since the last iteration of the Act. Note that only large-scale communications providers are included in the scope of this version of the Act. The FBI analysis states that PBXs, computer-network providers, and other entities that do not qualify as common carriers are not to be obligated by the passage of this act to add these new capabilities, but will be obligated to cooperate under the general provisions of 18 USC 2518(4) to the extent possible. *Note especially that this distinction undercuts the claim that the government is merely "clarifying" a pre-existing obligation under 18 USC 2518(4)--if that were true, these clarifications would apply to *all* "providers of wire or electronic communications services" and not just "common carriers."*
"(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.
This section imposes an obligation on common carriers to instruct support services and equipment providers that they need "wiretap-friendly" services and equipment, and it imposes an obligation on the service and equipment providers to comply. Note that the statute does not itself outline remedies for noncompliance by support services and equipment providers. The FBI analysis, however, states that the Attorney General "may apply for an order, such as a writ of mandamus" mandating the compliance of such entities.
"(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. The "may apply" language implies that this is not an exhaustive list of the remedies available to the Attorney General, who is granted general "authority to enforce." In the first version of this Act, enforcement authority was to be given to the FCC; in the second version, enforcement was the responsibility of the Attorney General and the DOJ. This section apparently combines the best of both worlds, empowering either the FCC or the AG to enforce the Act's provisions.
"(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. Essentially, this section allows non-compliant common carriers to be challenged on two fronts.
"(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. This language apparently is merely precatory; apparently, the Attorney General need not consult with the FCC or the other entities mentioned here.
"(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. We may reasonably anticipate that there would be significant litigation on the issue of remuneration for "reasonable costs."
"(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; Normally, "intercept" means capture the contents of a communication. 18 USC 2510(4). But the government here is exempting common carriers from providing the plaintext versions of encrypted communications that were encrypted be the subscriber through some method other than an encryption service offered by the common carrier and to which the carrier retains the encryption keys or some equivalent capability to decrypt the communications. Interestingly, this definition seems to gut the meaning of the definition in 18 USC 2510(4), which focuses only on the content of the communication. "Interception" legally means "capturing the content" in Title III. If you're not capturing the content, it's not, strictly speaking, an interception according the statutory definition.
(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; The FBI analysis states that law enforcement's preference is for such information to be captured *before* transmission.
(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
This provision would create an immensely powerful tool for message traffic analysis, which has significance wholly independent of the ability to capture the content of communications. The government's prerogative to capture such transactional information is conditioned on a much lower standard of proof than that for wiretaps--rather than making a showing of probable cause, the government need only "certify" to the issuing magistrate that "the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation." 18 USC 3123.
(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." This simply makes clear that the prerogative to require these new services from common carriers extends to all levels of law enforcement, and not just to the federal law-enforcement and intelligence agencies.
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,".
In the early days of cordless telephones, it was easy for the radio transmissions between handsets and base units to be intercepted by scanners and, occasionally, by ordinary transistor radios. Congress did not want to felonize such trivially easy interceptions. Current cordless phone technology, however, makes such interceptions more difficult, according to the FBI analysis, and therefore it makes sense to extend wiretap protections to cordless phones. Note that this would resolve a long-standing anomaly in the protections offered by Title III.
(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;".
This adds "electronic communications" (such as e-mail or data communications) to the class of radio communications whose privacy is protected by Title III. The FBI analysis states that this amendment is designed to make clear that data communications over radio are also protected under Title III.
(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--".
This amendment adds a penalty for modulation-protected communications, which are already defined as not "readily accessible to the general public" under the current language of 18 USC 2510(16)(B).
(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.". This simply corrects a drafting error left over from the Electronic Communications Privacy Act, by adding the term "electronic communications" to those communications that a provider can intercept or disclose in the course of protecting its service. The amended section already included the language "provider of wire or electronic communications service," but seemed to allow only the interception and disclosure of "wire communications."
Current thread:
- Section-by-section Analysis of the 1994 draft of the Digital Telephony legislation by EFF Staff [ David Farber (Feb 25)
- <Possible follow-ups>
- Section-by-section Analysis of the 1994 draft of the Digital Telephony legislation by EFF Staff [ David Farber (Feb 25)