Section-by-section Analysis of the 1994 draft of the Digital Telephony legislation by EFF Staff [

[David Farber <farber () central cis upenn edu>]

Section-by-section Analysis of the 1994 draft of the Digital Telephony
legislation


Mike Godwin
EFF






TITLE


> 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.


The "other purposes" are, apparently, the correction of a drafting error
in ECPA that led to an anomaly in 18 USC 2511. See Section 4 below.




SECTION 2


> 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.


Chapter 119 is the communications-interception chapter, commonly called
"Title III."
Chapter 206 is the pen-register/trap-and-trace chapter. Title 50 includes
interception provisions of the Foreign Intelligence Surveillance Act.


Note that Chapter 121 of Title 18, the stored-communications chapter of
the U.S. criminal code, is not mentioned. It may, however, be affected by
some of the amendments suggested in the Digital Telephony bill.


> 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.


This is essentially a deceptive statement about the effect of the Act.
Although 18 USC 2518(4) allows applicants for authorization orders to
request that the order "direct that a provider of wire or electronic
communication service ... furnish the applicant forthwith with all
information, facilities, and technical assistance necessary to accomplish
the interception...", this provision has not widely been interpreted to
hold that service providers must actively create solutions to interception
problems if those solutions do not already exist. The FBI analysis says
government agencies "have been reluctant to pursue contempt or other legal
remedies to resolve this issue." The reason for this reluctance, in my
opinion, is that the language of 2518(4) does not unequivocally impose
such a burden on providers, and the government stands a good chance of
losing any fight in which it claims that such a burden does exist.


Thus, the FBI's solution is to create a *new* and *routine* obligation on
common carriers (but not small-scale providers) to generate technical
solutions to interception and "call setup" problems created by current
common-carrier networks. Moreover, this Act would require that common
carriers make manpower available on a 24-hour basis to handle
interceptions and the capture of call-setup information in the event of a
wiretap or pen-register/trap-and-trace order.


The FBI analysis asserts without quantification that "since the mid-1980s,
technological impediments have frustrated, in whole or in part, the
execution of a number of court orders." But among the "technological
impediments," apparently, has been the reluctance or inability of common
carriers to provide the kind of assistance that law
enforcement--specifically, guaranteed ability to capture communications
contents and "call setup" information.


The Act and the FBI analysis consistently use the language of
"clarification" in reference to the amendments contained in the Act, but
of course the vastly expanded authority of the Attorney General and the
FCC to supervise and punish common carriers is nothing if not "expanded
authority." This Act also creates many new legal obligations for common
carriers, "support services," and telecom equipment manufacturers.


> 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.


These are all addressed in Section 4 of the Act. This section corrects
four anomalies under the current statutes: 1) It brings cordless
telephones under the protection of Title III. 2) With respect to radio
communications it creates Title III protection for "an electronic
communication" that is transmitted via radio. 3) It corrects an apparent
omission by adding radio communications that use "modulation techniques"
for privacy to the interception penalty provisions of 18 USC 2511(4).
4) It corrects a drafting error in ECPA by adding "electronic
communication" to a clause in 18 USC 2511 (2)(a)(i).


> 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:


Note that Chapter 109 is not part of Title III; instead, it's a chapter
including various penalty provisions for interference in the execution of
lawful searches and seizures and for violating the Constitutionally
mandated requirements for such procedures. The chapter is does not amount
to a statutory scheme--it's basically a collection of somewhat related
individual search-and-seizure statutes.


Why isn't this Act part of Title III? Perhaps because it uses a different
definition of "intercept" than is used in the wiretap statute. See
discussion below.


This Section of the Act outlines and specifies just what the government
wants the phrase "information, facilities, technical assistance" in 18 USC
2518 to mean. Note that a major component of these obligations is the
requirement that common carriers *create* new information and facilities
and devise new means of technical assistance.


The FBI analysis makes clear that the drafters of this Act developed a
wish list in consultation with other federal, state, and local
law-enforcement agencies. Although the FBI analysis states that "The
Government intentionally eschewed setting any technical standards because
it does not desire to 'dictate' particular technological solutions, it is
apparent that the government hopes to gain the authority to dictate
*functional* solutions. Given the penalties for noncompliance and other
enforcement powers this Act creates, "dictate" is not too strong a verb
for the kind of prerogative the government is seeking.


> "(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;


Note that in this iteration of the Act, there is a new emphasis on "call
setup information," which is, basically, origination and destination
information for wire or electronic communications. It has been claimed by
law enforcement that such current features as call forwarding often thwart
their ability to implement wiretaps, pen registers, or traps and traces.
This Act, if passed, would require common carriers to redesign calling
features if necessary to be ble to provide "call setup" information, or,
in the alternative, to cease providing calling features that thwarted the
capture of such transactional information.


It is unclear how such a requirement would play out in cases where
communications are transmitted using both common carriage networks and
enhanced service providers. On its face, the statute may require that a
common carrier be able, for example, to tell not only which subscriber is
sending e-mail over the phone lines to the CompuServe Packet Network, but
also where that e-mail's ultimate destination is.


The FBI analysis stresses that common carriers can perform a capacity
analysis, based on their prior records of assisted intercepts, etc., to
determine how much wiretap capacity to provide in order to minimize the
costs of compliance. The FBI claims that "a number of court orders and
authorizations were not fully executed, or were not even sought" because
of "capacity shortfalls, such as insufficient 'port' capacity in the
cellular mobile switching offices." The FBI analysis states that "at any
particular time, a number of Federal, state, and local government agencies
may be competing" for capacity, and that "it is critical that there be
sufficient capacity to accommodate completely the concomitant needs of all
government agencies."


> "(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;


This section requires that common carriers, including cellular and any
other mobile-phone service, be able to single out individual
communications and capture both contents and call-setup information, that
they be able to do this "live," or else immediately after the
transmission, with a preference for the former. This is the meaning of
"concurrent."


The FBI analysis justifies this requirement in terms of "minimization" of
intrusion on the communications of innocent parties; of course, the
requirement would enhance the efficiency and speed with which the
government could effect a wiretap.


> "(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


No strange clicking on the line, in other words.


> "(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).


Not only must communications and call-setup info be captured "live" or
immediately post-transmission, but it also must be routable to a remote,
designated government-operated location. Whether the routing is done by
the carrier or the government is unclear.


The exceptions to this "routability requirement" occur when a criminal or
intelligence emergency pre-empts the normal process of seeking an order,
or when there is an attempt by the person committing an offense to thwart
interception by changing facilities. These types of situations are
provided for under current law.


> "(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.


The FBI analysis justifies this "drafting" of personnel as a way of