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

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

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."