476 lines
26 KiB
Plaintext
476 lines
26 KiB
Plaintext
ÉÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍ»
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º ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ ßÜ Û ÛßßßÛ Ûßßßß ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ º
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º ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ ßÜ Û Û Û ÛÜÜÜÜ ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ º
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º ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ ßÜ Û ÛßßßÛ Û ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ º
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º ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ ßÛ Û Û ÜÜÜÜÛ ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ º
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ÌÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍ͹
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º Vaginal and Anal Secretions Newsletter #0044 º
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ÇÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄĶ
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º Date Released : [07/01/92] Author: The Smurfs (PROBE-X) º
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ÇÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄĶ
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º FBI Digital Telephony Proposal º
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ÓÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄĽ
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The following is the latest version of the FBI Digital Telephony
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Proposal, introduced in May 1992. This version removes the previous
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language that authorized the FCC to set standards and now places it
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solely in the hands of the Attorney General. Fines are $10,000/day for
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non compliance with services within the public switched network having
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18 months to comply and services outisde having three years. The
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proposal now manadates that the capability for remote government
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wiretapping must be included into the system. The proposal has not yet
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been introduced.
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This proposal clearly enhances the ability of the FBI to monitor
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communications. It takes the unprecendented step of placing control
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over certification of telecommunications equipment in the hands of the
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Attorney General and requires that the equipment be constucted to allow
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government have the ability to monitor communications from a
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"government monitoring facility remote from the target facility." All
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telecommunications users should be concerned by the privacy and
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security implications of creating systems that have holes for the
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government or any other knowledgable user to plug into.
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David Banisar
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CPSR Washington Office
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Banisar@washofc.cpsr.org
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_________________________________________________________________________
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102nd Congress
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2nd Session
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S. _____
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[H.R. _____]
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IN THE SENATE
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[IN THE HOUSE OF REPRESENTATIVES]
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M. ________________ introduced the following bill; which was referred
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to the Committee on__________________
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A BILL
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To ensure the continuing access of law enforcement to the content of
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wire and electronic communications when authorized by law and for other
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purposes.
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Be it enacted by the Senate and the House of Representatives of the
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United States of America in Congress assembled,
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SEC. 1. FINDINGS AND PURPOSES.
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(a) The Congress finds:
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(1) that telecommunications systems and networks are often
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used in the furtherance of criminal activities including organized
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crime, racketeering, extortion, kidnapping, espionage, terrorism, and
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trafficking in illegal drugs;
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(2) that recent and continuing advances in
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telecommunications technology, and the introduction of new technologies
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and transmission modes by the telecommunications industry, have made it
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increasingly difficult for government agencies to implement lawful
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orders or authorizations to intercept wire and electronic
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communications and thus threaten the ability of such agencies
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effectively to enforce the laws and protect the national security; and
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(3) that without the assistance and cooperation of
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providers of electronic communication services and private branch
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exchange operators, the introduction of new technologies and
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transmission modes into telecommunications systems without
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consideration and accommodation of the need of government agencies
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lawfully to intercept wire and electronic communications would impede
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the ability of such agencies effectively to carry out their
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responsibilities.
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(b) The purposes of this Act are to clarify the
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responsibilities of providers of electronic communication services and
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private branch exchange operators to provide such assistance as
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necessary to ensure the ability of government agencies to implement
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lawful court orders or authorizations to intercept wire and electronic
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communications. SEC. 2. (a) Providers of electronic communication
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services and private branch exchange operators shall provide within the
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United States capability and capacity for the government to intercept
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wire and electronic communications when authorized by law:
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(1) concurrent with the transmission of the communication to
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the recipient of the communication;
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(2) in the signal form representing the content of the
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communication between the subject of the intercept and any individual
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with whom the subject is communicating, exclusive of any other signal
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representing the content of the communication between any other
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subscribers or users of the electronic communication services provider
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or private branch exchange operator, and including information on the
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individual calls (including origin, destination and other call set-up
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information), and services, systems, and features used by the subject
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of the interception
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(3) notwithstanding the mobility of the subject of the
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intercept or the use by the subject of the intercept of any features of
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the telecommunication system, including, but not limited to, speed-
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dialing or call forwarding features;
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(4) at a government monitoring facility remote from the target
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facility and remote from the system of the electronic communication
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services provider or private branch exchange operator;
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(5) without detection by the subject of the intercept or any
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subscriber; and
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(6) without degradation of any subscriber's telecommunications
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service.
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(b) Providers of electronic communication services within the
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public switched network, including local exchange carriers, cellular
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service providers, and interexchange carriers, shall comply with
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subsection (a) of this section within eighteen months from the date of
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enactment of this subsection.
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(c) Providers of electronic communication services outside of
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the public switched network, including private branch exchange
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operators, shall comply with subsection (a) of this section within
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three years from the date of enactment of the subsection.
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(d) The Attorney General, after consultation with the
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Department of Commerce, the Small Business Administration and Federal
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Communications Commission, as appropriate, may except from the
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application of subsections (a), (b) and (c) of this section classes and
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types of providers of electronic communication services and private
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branch exchange operators. The Attorney General may waive the
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application of subsections (a), (b) and (c) of this section at the
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request of any provider of electronic communication services or private
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branch exchange operator.
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(e) The Attorney General shall have exclusive authority to
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enforce the provisions of subsections (a), (b) and (c) of this section.
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The Attorney General may apply to the appropriate United States
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District Court for an order restraining or enjoining any violation of
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subsection (a), (b) or (c) of this section. The District Court shall
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have jurisdiction to restrain and enjoin violations of subsections (a)
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of this section.
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(f) Any person who willfully violates any provision of
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subsection (a) of this section shall be subject to a civil penalty of
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$10,000 per day for each day in violation. The Attorney General may
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file a civil action in the appropriate United States District Court to
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collect, and the United States District Courts shall have jurisdiction
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to impose, such fines.
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(g) Definitions--As used in subsections (a) through (f) of
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this section--
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(1) 'provider of electronic communication service' or 'private
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branch exchange operator' means any service or operator which provides
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to users thereof the ability to send or receive wire or electronic
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communication, as those terms are defined in subsections 2510(1) and
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2510(12) of Title 18, United States code, respectively, but does not
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include the government of the United States or any agency thereof;
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(2) 'communication' means any wire or electronic
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communication, as defined in subsections 2510(1) and 2510(12), of Title
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18, United States Code;
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(3) 'intercept' shall have the same meaning as set forth in
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section 2510(4) of Title 18, United States Code; and
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(4) 'government' means the Government of the United States and
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any agency or instrumentality thereof, any state or political
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subdivision thereof, the District of Columbia, and any commonwealth,
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territory or possession of the United States.
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DIGITAL TELEPHONY AND INTERCEPTION BY CRIMINAL LAW ENFORCEMENT AGENCIES
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The telecommunications systems and networks are often used to
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further criminal activities including white collar and organized crime,
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racketeering, extortion, kidnapping, espionage, terrorism, and
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trafficking in illegal drugs. Accordingly, for many years, one of the
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most important tools in the investigation of crime for Federal and
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State criminal law enforcement agencies has been the court authorized
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interception of communications. As illustrated below, the majority of
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original authorizations to intercept wire or electronic communications
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are conducted by State criminal law enforcement agencies.
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Interception Applications Authorized
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State Federal Total
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1984 512 289 801
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1985 541 243 784
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1986 504 250 754
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1987 437 236 673
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1988 445 293 738
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1989 453 310 763
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1990 548 324 872
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Total 3,440 1,945 5,385
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Approximately, 3/8 of authorized interceptions were conducted by
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Federal agencies, while 5/8 of the authorized interceptions were
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conducted by State criminal law enforcement agencies.1
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The recent and continuing advances in telecommunications
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technology,and the introduction of new technologies by the
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telecommunications industry, have made it increasingly difficult for
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government agencies to implement lawful orders or authorizations to
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intercept wire and electronic communications, as well as to implement
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pen register and trap-and-trace court orders or authorizations. These
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new technologies inadvertently undermine the ability of criminal law
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enforcement agencies to enforce effectively the criminal laws and
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protect the national security. Without the assistance and cooperation
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of the telecommunications industry, these new technologies will impede
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the ability of the telecommunications industry, these new technologies
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will impede the ability of the government to enforce the criminal law.
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Accordingly, the purpose of this bill is to clarify the existing
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responsibilities of electronic communication services providers and
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private branch exchange operators, as established, for example, in 18
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U.S.C. ____ 2518(4), 3124(A), (B), to provide such assistance as
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necessary to ensure the ability of government agencies to implement
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lawful orders or authorizations to intercept communications.
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Over the past twenty-five years, the working relationship
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between the criminal law enforcement community, particularly the
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Federal Bureau of Investigation as the federal government's primary
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criminal law enforcement agency, and the telecommunications industry,
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in response to the appropriate court orders or authorizations, has
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provided government agencies with timely access to the signals
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containing the content of communications covered by the court orders or
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authorizations. As a general proposition, this has involved providing
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the means to acquire the communication as it occurs between two
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individual telephone users at a remote location, not dissimilar to a
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call in which the two originating parties do not know that a third
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party is listening, and in which the third party (the criminal law
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enforcement agency) records the authorized and relevant calls.
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Historically, and with relatively few exceptions, the
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telecommunications industry has provided the criminal law enforcement
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community with the ability to monitor and record calls:
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1. at the same time asthe call is transmitted to the recipient;
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2. in the same form as the content of the call was transmitted
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through the network, notwithstanding the use by the target of custom
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features of the network;
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3. whether stationary or mobile;
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4. at the government monitoring facility;
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5. without detection by the target or other subscribers; and
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without degrading any subscriber's service.
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However, the introduction of new technology has begun to erode
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the ability of the government to fully effectuate interceptions, pen
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registers and trap-and-race court orders or authorizations that are
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critical to detecting and prosecuting criminals. As technology has
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developed, the telecommunications industry has not always ensured the
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continued ability to provide the same services to the criminal law
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enforcement community. The telecommunications industry's introduction
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of certain types of new technology poses real problems for effective
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criminal law enforcement. Legislation is necessary to ensure that the
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government will be provided with this capability and capacity in the
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future by all providers and operators and to maintain a level playing
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field among competitive providers and operators in the
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telecommunications industry.
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There have been instances in which court orders authorizing the
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interception of communications have not been fulfilled because of
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technical limitations within particular telecommunications networks.
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For example, as early as 1986, limited capabilities became apparent in
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at least one network which will only be corrected later in 1992. This
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technical deficiency in a new technology forced criminal law
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enforcement agencies to prioritize certain interceptions to the
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exclusion of other court orders. Accordingly, for approximately six
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years, there have been court orders that have not been sought by the
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criminal law enforcement community or executed by the
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telecommunications industry and, as a consequence, important criminal
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investigations have not been brought to fruition or have been less than
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efficiently concluded. This is one classic example of new technology
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affecting adversely the criminal law enforcement community: a
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microcosm of what may be expected on a nationwide basis without
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enactment of this legislation.
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Section 1 of the bill states Congressional findings and
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purpose.
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Section 2 is divided into seven subsections. Subsection (a)
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establishes as a matter of law the responsibility of electronic
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communication services providers and private branch exchange operators
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to continue to provide, within the United States, the capability and
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capacity for criminal law enforcement agencies to intercept wire and
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electronic communications when authorized by law. These subsections
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delineate the existing attributes of wire or electronic communication
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interception.
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1. Concurrent with Transmission. The application for a
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court order to intercept telecommunications conversations or data
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transmissions is rarely a leisurely process. For example, on the
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Federal side, the development of the required affidavits, submission to
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the Criminal Division of the Department of Justice for approval,
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transmission of approval to the Assistant United States Attorney, the
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appearance of the Assistant before a judge to request the order and the
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delivery of the judge's order to the appropriate telecommunications
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company is frequently completed in a very short time. However, crime
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waits for no one and the system for approval of interceptions must and
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does conform with the realities of the activity that is sought to be
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investigated and, if appropriate, prosecuted as criminal offenses.
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Since time is of the essence, current law requires that service
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providers and operators provide the government forthwith all
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information, facilities and technical assistance necessary to
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accomplish its mission. It is critical that the telecommunications
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industry respond quickly to execute the court order or authorization.
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The ultimate problem of timeliness, however, is the real-time
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monitoring of the intercepted communications. As serious and
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potentially life- threatening criminal conduct is detected, it may be
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necessary to move quickly to protect innocent victims from that
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conduct. Accordingly, "real-time" monitoring is critical.
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2. Isolated Signal and Services Used. Nearly all of the
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communications network is partially "analog" at this time. In
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conducting an interception, for example, of a telephone conversation,
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the government is allowed to monitor and record criminal conversation
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such as a conspiracy, minimizing the acquisition of non-criminal or
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innocent conversation. When an electronic communication services
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provider or private branch exchange operator introduces a new
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technology--such as a digital signal--the communications are converted
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into a different and more efficient form for transmission, but a more
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difficult form to monitor during interception. The bill requires only
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that the provider or operator isolate and provide access to the
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electronic signal that represents the content of the communications of
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the target of the intercept2 from the stream of electronic signals
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representing other communications. This provision seeks to ensure
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that, in the new electronic environment in which signals are mixed for
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transmission and separated at another switch for distribution, the
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government does not receive the communications of any individual other
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than the individuals using the target's communications point of origin
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and receipt; the government must remain subject to the minimization
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standards of 18 U.S.C. __ 2518(5).
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This provision also makes it clear that an electronic
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communication services provider or private branch exchange operator is
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not required to provide for reconversion of the isolated communication
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to analog or other form. The government expects that this process will
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be accomplished by the government.
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3. Mobility and Features. Increasingly, criminal acts are
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being conducted or discussed over cellular telephones or by using
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special telecommunications features. As this mobility is introduced,
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the electronic communication services providers and private branch
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exchange operators would be required to assure the capability and
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capacity for criminal law enforcement agencies to continue lawful
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interception.
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Further, this subsection makes it clear that features used by
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the target do not defeat the court order or authorization. For
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example, communications which have been addressed to the telephone
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number of the target, but which may have been programmed through a
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call-forwarding feature to another, otherwise innocent, telephone
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number, must be captured and made available to criminal law enforcement
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authorities pursuant to court order or authorization. This requirement
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will obviate the need for applications for authority to monitor
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otherwise innocent telephone numbers that receive, only intermittently,
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calls forwarded by the target. The effect of this provision is to
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further minimize monitoring of calls of innocent parties. Similarly,
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certain speed dialing features that mask the telephone number called by
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the target must be identified for criminal law enforcement
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investigation. The ability to consistently determine the destination of
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calls is critical to minimizing the monitoring of innocent calls.
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4. Government Monitoring Facility. Government agencies do not
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normally request the use of telecommunications industry physical
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facilities to conduct authorized interceptions nor is it encourage by
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the industry. Normally, the government leases a line from the
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electronic communication services provider's or private branch exchange
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operator's switch to another location owned or operated by the
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government. This minimizes the cost and intrusiveness of
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interceptions, which benefits the service provider or operator, as well
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as the government. Accordingly, the ability to monitor intercepted
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communications remotely is critical.
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5. Without Detection. One of the reasons that governments
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operate their own facilities is to reduce the risk of detection of the
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interception, which would render the interception worthless. At the
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present time, the existence of an interception is unknown to any
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subscriber and is not detectable by the target, notwithstanding
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folklore and spy novels. This provision merely ensures that the
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secrecy of effective interceptions will be maintained.
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6. Without Degradation. Maintaining the quality of the
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telephone network is in the interest of the government, the industry
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and the public. Presently, the existence of an interception has no
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effect on the quality of the service provided by any network to the
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target or any subscriber. This provision ensures that the quality of
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the network will continue to be uncompromised. Absent the assistance
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delineated by this legislation, the execution of court orders and
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authorizations by the government could well disrupt service of the
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newer technological systems, a result that this legislation seeks to
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avoid.
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Subsection (b) provides that electronic communication services
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providers and private branch exchange operators with the "public
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switched network" must be in compliance with the minimum intercept
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attributes within eighteen months after enactment. Thereafter, new
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technologies must continue to meet these minimum attributes.
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Subsection (c) provides that electronic communication service
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providers and private branch exchange operators that are not within the
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"public switched network" must be in compliance with the minimum
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intercept attributes within eighteen months after enactment.
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Thereafter, new technologies must continue to meet these minimum
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attributes.
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Subsection (d) provides that the Attorney General may grant
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exceptions to the affirmative requirements of subsection (a), as well
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as the implementation deadlines of subsections (b) and (c). In
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considering any request for exception, the Attorney General will
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consult with Federal Communications Commission, the Small Business
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Administration and the Department of Commerce, as appropriate.
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Accordingly, the Attorney General has the authority to except, for
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example, whole classes, categories or types of private branch exchange
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operators where no serious criminal law enforcement problems are likely
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to arise, such as hospital telephone systems.
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This subsection also permits the Attorney General to waive the
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requirements of subsections (a), (b) and (c) on application by an
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electronic communication services provider or private branch exchange
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operator. Accordingly, if a particular company can not comply with one
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or more of the requirements of subsection (a), or needs time additional
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to that permitted under subsections (b) or (c), the Attorney General
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may grant an appropriate waiver.
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Subsection (e) provides that the Attorney General has exclusive
|
|
authority to enforce the provisions of the bill. While a number of
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|
States have authority to seek and execute interception orders, they
|
|
will be required to seek the assistance of the Attorney General if
|
|
enforcement of this legislation is required. This section also
|
|
provides for injunctive relief from violations of the provisions of the
|
|
bill.
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|
|
|
Subsection (f) provides for enforcement of the provisions of
|
|
the bill through imposition of civil fines against any company that is
|
|
not excepted from the provisions of the bill, does not acquire a waiver
|
|
of the provisions of the bill, and fails to meet the requirements of
|
|
subsection (a) after the effective dates set out in subsection (b) or
|
|
(c), as appropriate. A fine of up to $10,000 per day for each day in
|
|
violation may be levied; for most companies in the telecommunications
|
|
industry this amount is sufficient to ensure that compliance will be
|
|
forthcoming. Although this provision is not expected to be used, it is
|
|
critical to ensure that compliance with the provisions of the bill will
|
|
occur after the effective dates of the requirements of subsection (a).
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|
|
|
Subsection (g) carries forward a number of definitions from the
|
|
current provisions for the interception of wire or electronic
|
|
communications under "Title III." The definition of "government" that
|
|
is currently in use includes all States, territories and possessions of
|
|
the United States, as well as the United States, is made applicable to
|
|
the bill.
|
|
|
|
[Footnotes]
|
|
1 Interceptions for foreign intelligence and
|
|
counterintelligence purposes are not counted within the figures used
|
|
here, but would likewise benefit from enactment of the legislation.
|
|
|
|
2 Whether the content is voice, facsimile, imagery (e.g. video),
|
|
computer data, signalling information, or other forms of communication,
|
|
does not matter; all forms of communication are intercepted.
|
|
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|
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