349 lines
16 KiB
Prolog
349 lines
16 KiB
Prolog
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*************************************************************
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* POSSIBLE FEDERAL LEGISLATION -- ELECTRONIC COMMUNICATIONS *
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*************************************************************
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LETTER RECEIVED FROM UNITED STATES SENATE -- FEEDBACK NEEDED
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System Operators (SYSOPS) of Bulletin Board Systems (BBS) and electronic mail
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systems everywhere are concerned about possible legislation, at both a Federal
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and State level, pertaining to the uses of the wonderful new technologys of
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telecommunications, BBS's and messaging. Some of the legislation is of grave
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concern, such as the bill introduced by Senator Paul Trible. We do not take
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issue with the concerns that motivated Senator Trible that suggest the need for
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such legislation, but we do take issue with some of the wording of that
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particular bill. Comments on Senator Trible's bill are found elsewhere in the
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LAW MUG Newsletter.
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UNITED STATES SENATE
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COMMITTEE ON THE JUDICIARY
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WASHINGTON, DC 20510
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STROM THURMOND, SOUTH CAROLINA, CHAIRMAN
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CHARLES McC MATHIAS, Jr., MARYLAND JOSEPH R. BIDEN, Jr., DELAWARE
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PAUL LAXALT, NEVADA EDWARD M. KENNEDY,
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MASSACHUSETTS
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ORRIN G. HATCH, UTAH ROBERT C. BYRD, WEST VIRGINIA
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ALAN K. SIMPSON, WYOMING HOWARD M. METZENBAUM, OHIO
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JOHN EAST, NORTH CAROLINA DENNIS DeCONCINI, ARIZONA
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CHARLES E. GRASSLEY, IOWA PATRICK J. LEAHY, VERMONT
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JEREMIAH DENTON, ALABAMA HOWELL HEFLIN, ALABAMA
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ARLEN SPECTER, PENNSYLVANIA PAUL SIMON, ILLINOIS
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MITCH McCONNELL, KENTUCKY
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DENNIS W. SHEDD, CHIEF COUNSEL AND STAFF DIRECTOR
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DEBORAH K. OWEN, GENERAL COUNSEL
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DEBORAH G. BERNSTEIN, CHIEF CLERK
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MARK N. GITENSTEIN, MINORITY CHIEF COUNSEL
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August 16, 1985
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THE TEXT OF THE DISCUSSION DRAFT
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[Discussion Draft]
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[10-16-85]
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99th CONGRESS
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1ST SESSION
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H.R.____
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IN THE HOUSE OF REPRESENTATIVES
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Mr.___________________ introduced the following bill; which was referred to
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Committee on______________________
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A BILL
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To amend title 18, United States Code, with respect to the interception
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of
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certain communications, other forms of surveillance, and for other
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purposes.
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1 Be it enacted by the Senate and House of Representatives
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2 of the United States of American in Congress assembled,
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----------------------- (Beginning of Page 2)
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1 SECTION 1. SHORT TITLE.
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2 This Act may be cited as the "Communications Privacy
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3 Act of 1985".
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4 TITLE I--TITLE 18 AND RELATED MATTERS
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5 SEC.101. FEDERAL PENALTIES FOR THE INTERCEPTION OF
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6 ELECTRONIC COMMUNICATIONS
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7 (a) DEFINITION OF "ELECTRONIC COMMUNICATION".--(1)
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8 Section 2510 of title 18, United States Code, is amended by
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9 striking out paragraph (1) and inserting in lieu thereof the
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10 following:
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"(1) 'electronic communication' means any
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transmission-----------of signs, signals,
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writing, images, sounds, data or intelligence of any
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nature by wire, radio, optical or other electromagnetic
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systems affecting interstate commerce;".
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19 (2) Section 2510(4) of title 18 of the United States Code
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20 is amended by striking out "aural".
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21 (b) EXCEPTIONS WITH RESPECT TO ELECTRONIC
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22 COMMUNICATIONS.--Section 2511(2) of title 18, United States
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23 Code, is amended by adding at the end thereof the following
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24 new paragraph:
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25 "(g) It shall not be unlawful under this chapter for any
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----------------------- (Beginning of Page 3)
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1 person..
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2 "(1) to intercept an electronic communication made
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3 through an electronic communication system designed so
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4 that such electronic communication is readily accessible
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5 to the public.
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6 "(ii) to intercept any electronic communication
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7 which is transmitted..
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8 "(I) by any station for the use of the general
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9 public, which relates to ships, aircraft, vehicles,
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10 or persons in distress;
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11 "(II) by a walkie talkie, or a police or fire
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12 communication system readily accessible to the
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13 public; or
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14 "(III) by an amateur radio station operator or
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15 by a citizens band radio operator; or
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16 "(iii) to engage in any conduct which..
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17 "(I) is prohibited by section 633; or
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18 "(II) is excepted from the application of
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19 section 705(a) of the Communication Act of 1934 by
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20 section 705(b) of that Act."
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21 (c) TECHNICAL AND CONFORMING AMENDMENTS.--(1) Chapter 119
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22 of title 18, United States Code, is amended by striking out
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23 "wire" each place it appears (including in any section
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24 heading) and inserting "electronic" in lieu thereof.
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25 (2) The heading of chapter 119 of title 18, United States
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----------------------- (Beginning of Page 4)
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1 Code, is amended by inserting "AND OTHER ELECTRONIC" after
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2 "WIRE".
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3 (3) The item relating to chapter 119 in the table of
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4 chapters at the beginning of Part I of title 18 of the United
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5 States Code is amended by inserting "and other electronic"
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6 after "wire".
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7 SEC. 102. ADDITIONAL PROHIBITIONS RELATING TO ELECTRONIC
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8 COMMUNICATIONS AND MODIFICATION OF CERTAIN
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9 EXCEPTIONS.
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(a) ADDITIONAL PROHIBITIONS.--Sections 2511 of title 18,
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United States Code, is amended by adding at the end of
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the following:
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"(3) Unless authorized by the service provider, the
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service user, or as otherwise specifically authorized by
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this chapter, whoever willfully accesses an electronic
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communication system or willfully exceeds an authorization
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to access an electronic communication system and obtains or
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alters an electronic communication while it is stored in
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such system shall
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"(A) if the offense is committed for purposes of commercial
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advantage, malicious destruction or damage, or private
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commercial gain shall..
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20 "(i) be fined not more than $250,000 or
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21 imprisoned not more than one year, or both, in the
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22 case of a first offense under this [subparagraph];
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23 and
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24 "(ii) be fined not more than $250,000 or
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25 imprisoned not more than two years, or both, for any
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----------------------- (Beginning of Page 5)
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1 subsequent offense under this [subparagraph]; and
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2 "(B) be fined not more than $5,000 or imprisoned
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3 not more than six months, or both, in any other
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4 case."
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(b) Chapter 119 of title 18, United States Code, is
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amended by adding a new section following section 2511;
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"Sec 2511a. Protection of privacy for users of an electronic
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communication service.
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"(a)(1) Except as authorized by this chapter, [or FISA]
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or by specific consent of the user originating an electronic
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communication, no person or entity providing an electronic
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communication
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service may knowingly divulge [or publish] the contents of such
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communication to any person other than the addressee, his
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agent, or attorney, except to..
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"(A) any person to whom such disclosure is authorized
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by the addressee, his agent, or attorney;
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"(B) any person employed or authorized to forward such
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communication to its destination; or
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"(C) any person who needs such communication to render
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or conduct a business activity related to an electronic
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communication service or other service provided by the
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provider to the user.
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"(2) Nothing in the provisions of paragraph (1) shall
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be construed to prohibit an addressee, his agent, or attorney
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from divulging or publishing the contents of such a communication.
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THE DRAFT LEGISLATION, CONTINUED
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----------------------- (Beginning of Page 6)
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SEC. 103. RECOVERY OF CIVIL DAMAGES.
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1 Section 2520 of title 18, United States Code, is amended
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2 to read as follows:
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3 "Sec 2520. Recovery of civil damages authorized
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4 "(a) Any person whose electronic communication or oral
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5 communication is intercepted, accessed, disclosed, or used in
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6 violation of this chapter may in a civil action recover from
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7 the person or entity which engaged in that violation such
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8 relief as may be appropriate.
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9 "(b) In an action under this section, appropriate relief
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10 includes..
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11 "(1) such preliminary and other equitable [or
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12 declaratory] relief as may be appropriate;
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13 "(2) damages under subsection (c); and
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14 "(3) [a reasonable attorney's fee and other
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15 litigation costs reasonably incurred].
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16 "(c) Damages in an action under this section shall be
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17 [whichever is the greater of]..
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18 "(1) the sum of the actual damages suffered by the
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19 plaintiff and any profits made by the violator as a
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20 result of the violation; or
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21 "(2) statutory damages in an amount not less than
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22 $500 or more than $10,000.
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23 "(d) A good faith reliance on a court warrant or order
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24 is a complete defense against a civil action under this
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25 section.
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----------------------- (Beginning of Page 7)
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1 "?e) A civil action under this section may not be
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2 commenced later than two years after the occurrence of the
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3 violation [or after the claimant has had a reasonable
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4 opportunity to discover the violation, whichever is
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5 later].]".
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3 SEC. 104. CERTAIN APPROVALS BY ACTING ASSISTANT ATTORNEY
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4 GENERAL.
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5 Section 2516(1) of title 18 of the United States Code is
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6 amended by inserting "(or acting Assistant Attorney
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7 General)" after "Assistant Attorney General".
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8 SEC 105. ADDITION OF OFFENSES TO CRIMES FOR WHICH
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9 INTERCEPTION IS AUTHORIZED
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10 Section 2516(1)(c) of title 18 of the United States Code
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11 is amended..
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12 (1) by striking out "2314" and inserting "2312,
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13 2313, 2314," in lieu thereof;
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14 (2) by inserting "the second section 2320 (relating
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15 to trafficking in certain motor vehicles or motor vehicle
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16 parts), section 1203 (relating to hostage taking),
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17 section 1029 (relating to fraud and related activity in
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18 connection with access devices), section 32 (relating to
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19 destruction of aircraft or aircraft facilities)," after
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20 "stolen property),"; and
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21 (3) by inserting "section 1952A (relating to use of
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22 interstate commerce facilities in the commission of
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23 murder for hire), section 1952B (relating to violent
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24 crimes in aid of racketeering activity)," after "1952
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25 (interstate and foreign travel or transportation in aid
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----------------------- (Beginning of Page 8)
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1 of racketeering enterprises),"
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2 SEC. 106. ADDITIONAL REQUIREMENTS FOR APPLICATIONS, ORDERS,
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3 AND IMPLEMENTATION OF ORDERS.
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4 (a) INVESTIGATION OBJECTIVES.--Section 2518(1)(b) of
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5 title 18 of the United States Code is amended by inserting
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6 immediately before the semicolon at the end the following:
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7 ", and (v) the specific investigative objectives and the
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8 specific targets, if known, of the interception to which the
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9 application pertains".
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10 (b) ALTERNATE INVESTIGATIVE TECHNIQUES.--Section
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11 2518(1)(c) of title 18 of the United State Code is amended
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12 by inserting "(including the use of consensual monitoring,
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13 pen registers, tracers, contempt proceedings, perjury
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14 prosecutions, use of accomplice testimony, grand jury
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15 subpoena of documents, search warrants, interviewing
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16 witnesses, and obtaining documents through other legal
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17 means)" after "procedures".
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18 (c) PLACE OF AUTHORIZED INTERCEPTION.--Section 2518(3) of
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19 title 18 of the United States Code is amended by inserting
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20 "(and outside that jurisdiction but within the United States
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21 in the case of a mobile interception device installed within
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22 such jurisdiction)" after "within the territorial
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23 jurisdiction of the court in which the judge is sitting".
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24 (d) PHYSICAL ENTRY.--Section 2518(4) of title 18 of the
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25 United States Code is amended by adding at the end "An order
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----------------------- (Beginning of Page 9)
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1 authorizing the interception of an electronic communication
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2 under this chapter may, upon a showing by the applicant that
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3 there are no other less intrusive means reasonably available
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4 of effecting the interception, authorize physical entry to
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5 install an electronic, mechanical, or other device.".
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6 (e) PERIODIC REPORTS.--Subsection (6) of section 2518 of
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7 title 18 of the United States Code is amended to read as
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8 follows:
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9 "(6) An order authorizing interception pursuant to this
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10 chapter shall require that reports be made not less often
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11 than every ten days to the judge who issued such order,
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12 showing what progress has been made toward achievement of the
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13 authorized objective, the need, if any for continued
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14 interception, and whether any evidence has been discovered
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15 through such interception of offenses other than those with
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16 respect to which such order was issued. The judge may suspend
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17 or terminate interception if any such report is deficient,
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18 evinces serious procedural irregularities, or indicates the
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19 legal basis of continued interception no longer exists."
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20 (f) TIME LIMIT FOR THE MAKING AVAILABLE TO JUDGE OF
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21 RECORDINGS.--Section 2518(8)(a) of title 18 of the United
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22 States Code is amended by striking out "Immediately upon"
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23 and inserting "Not later than 48 hours after" in lieu
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24 thereof.
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----------------------- (Beginning of Page 10)
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6 SEC. 107. REPORTING REQUIREMENT.
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7 Section 108(b) of the Foreign Intelligence Surveillance
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8 Act of 1978 (50 U.S.C. 1808(b)) is amended by striking out
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9 "On" and all that follows through "four years thereafter"
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10 and inserting in lieu thereof "On or before October 25 of
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11 each year".
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12 SEC. 108. EFFECTIVE DATE.
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13 This title and the amendments made by this title shall
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14 take effect 90 days after the date of the enactment of this
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15 Act and shall, in the case of conduct pursuant to a court
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16 order or extension, apply only with respect to court orders
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17 or extensions made after this title takes effect."
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PARTIAL EXPLANATION OF THIS POSSIBLE LEGISLATION, AS DRAFTED TO DATE
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The draft attempts to insert reforms into the existing structure of
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Title III in the following ways:
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* Provides a new definition of "electronic communication."
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* Provides criminal penalties for unauthorized access to obtain
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or transform an electronic communication stored in an electronic
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communications system.
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* Provides for restrictions on the disclosure of the contents
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of an electronic communication by the service providers
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under specified circumstances.
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* Provides civil penalties for violations of the provisions of
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the Act.
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In a MEMORANDUM from Mr. Podesta dated August 16, 1985 he stated, in
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part:
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"What is missing from this draft is a section regulating
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the circumstances and standards under which the government
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may obtain the contents of an electronic communication,
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records generated about a service user by a service provider,
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and records generated through the use of a pen register or
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tracer. We still are working on weaving those provisions
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into the current structure of Title III, specifically in 18
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U.S.C. Sec. 2518. From a policy point of view, we continue to
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believe that the best approach is to require a probable cause
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warrant to acquire the contents of a communication, similar to
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that required in Sub Sec. 2518. We believe that a court order
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based on reasonable suspicion is a more appropriate mechanism for
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giving government access to records generated by a service
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provider about a user as well as for the installation of a
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pen register or tracer."
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EDITOR'S COMMENT
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As one can see, this legislation is designed to protect legitimate users of
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telecommunications and BBS technology. As we have requested in prior reports on
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troubling legislation that all interested parties write to the Congressmen and
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Senators and those involved with sponsoring legislation, we again ask that you
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write, but this time in support of the legislation herein reported on.
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Electronic (digital) systems need the same protection afforded to voice (analog)
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telephone communication and the protection afforded to letters sent via the
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United States Post Office.
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We'll have more to report in future newsletters.
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---------------------------------------
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[][][][][][][][][][][][][][][][][][][]
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The Fifth Precinct..[502] 245-8270
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