475 lines
25 KiB
Plaintext
475 lines
25 KiB
Plaintext
Original Message Date: 25 Jun 92 02:13:12
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From: Uucp on 1:125/555
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To: Tomj on 1:125/111
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Subj: FBI Digital Telephony (bill text)
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^AINTL 1:125/111 1:125/555
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From kumr!eff.org!knight
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From: knight@eff.org (Craig Neidorf)
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To: knight@eff.org
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Date: Tue, 23 Jun 1992 14:54:35 -0500
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The following is the latest version of the FBI Digital Telephony Proposal,
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introduced in May 1992. This version removes the previous language that
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authorized the FCC to set standards and now places it solely in the hands <20>
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of
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the Attorney General. Fines are $10,000/day for non compliance with <20>
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services
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within the public switched network having 18 months to comply and services
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outisde having three years. The proposal now manadates that the <20>
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capability for
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remote government wiretapping must be included into the system.
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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 over
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certification of telecommunications equipment in the hands of the Attorney
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General and requires that the equipment be constucted to allow government <20>
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have
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the ability to monitor communications from a "government monitoring <20>
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facility
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remote from the target facility." All telecommunications users should be
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concerned by the privacy and security implications of creating systems that
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have holes for the 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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Craig Neidorf
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Concerned Citizen
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cneidorf@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
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referred 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 wire
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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 United
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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 crime,
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racketeering, extortion, kidnapping, espionage, terrorism, and trafficking
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in illegal drugs;
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(2) that recent and continuing advances in telecommunications
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technology, and the introduction of new technologies and transmission
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modes by the telecommunications industry, have made it increasingly
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difficult for government agencies to implement lawful orders or
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authorizations to intercept wire and electronic communications and thus
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threaten the ability of such agencies effectively to enforce the laws and
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protect the national security; and
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(3) that without the assistance and cooperation of providers
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of electronic communication services and private branch exchange <20>
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operators,
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the introduction of new technologies and transmission modes into
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telecommunications systems without consideration and accommodation
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of the need of government agencies lawfully to intercept wire and
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electronic communications would impede the ability of such agencies
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effectively to carry out their responsibilities.
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(b) The purposes of this Act are to clarify the responsibilities <20>
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of
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providers of electronic communication services and private branch
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exchange operators to provide such assistance as necessary to ensure the
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ability of government agencies to implement lawful court orders or
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authorizations to intercept wire and electronic communications. SEC. 2.
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(a) Providers of electronic communication services and private branch
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exchange operators shall provide within the United States capability and
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capacity for the government to intercept wire and electronic
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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 or
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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 of
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the interception;
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(3) notwithstanding the mobility of the subject of the intercept <20>
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or
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the use by the subject of the intercept of any features of the
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telecommunication system, including, but not limited to, speed- dialing or
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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 the
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public switched network, including private branch exchange operators,
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shall comply with subsection (a) of this section within three years from
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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 branch
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exchange operators. The Attorney General may waive the application of
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subsections (a), (b) and (c) of this section at the request of any
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provider of electronic communication services or private branch exchange
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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 District
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Court for an order restraining or enjoining any violation of subsection
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(a), (b) or (c) of this section. The District Court shall have
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jurisdiction to restrain and enjoin violations of subsections (a) of this
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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 file
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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 to
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impose, such fines.
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(g) Definitions--As used in subsections (a) through (f) of this
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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 <20>
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section
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2510(4) of Title 18, United States Code; and
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(4) 'government' means the Government of the United States
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and 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
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ENFORCEMENT AGENCIES
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The telecommunications systems and networks are
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often used to further criminal activities including white collar and
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organized crime, racketeering, extortion, kidnapping, espionage,
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terrorism, and trafficking in illegal drugs. Accordingly, for many
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years, one of the most important tools in the investigation of crime for
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Federal and State criminal law enforcement agencies has been the court
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authorized interception of communications. As illustrated below, the
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majority of original authorizations to intercept wire or electronic
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communications 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 Federal
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agencies, while 5/8 of the authorized interceptions were conducted by
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State criminal law enforcement agencies.1
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The recent and continuing advances in telecommunications <20>
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technology,
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and the introduction of new technologies by the telecommunications
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industry, have made it increasingly difficult
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for 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 new
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technologies inadvertently undermine the ability of criminal law
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enforcement agencies to enforce effectively the criminal laws and protect
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the national security. Without the assistance and cooperation of the
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telecommunications industry, these new technologies will impede the
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ability of the telecommunications industry, these new technologies will
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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
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relationship between the criminal law enforcement community,
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particularly the Federal Bureau of Investigation as the federal
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government's primary criminal law enforcement agency, and the
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telecommunications industry, in response to the appropriate court orders
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or authorizations, has provided government agencies with timely access to
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the signals containing the content of communications covered by the court
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orders or authorizations. As a general proposition, this has involved
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providing the means to acquire the communication as it occurs between
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two 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 party
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is listening, and in which the third party (the criminal law enforcement
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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 the
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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
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ability to provide the same services to the criminal law enforcement
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community. The telecommunications industry's introduction of certain
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types of new technology poses real problems for effective criminal law
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enforcement. Legislation is necessary to ensure that the government will
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be provided with this capability and capacity in the future by all
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providers and operators and to maintain a level playing field among
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competitive
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providers and operators in the 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. For
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example, as early as 1986, limited capabilities became apparent in at
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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 enforcement
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agencies to prioritize certain interceptions to the exclusion of other
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court orders. Accordingly, for approximately six years, there have been
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court orders that have not been sought by the criminal law enforcement
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community or executed by the telecommunications industry and, as a
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consequence, important criminal investigations have not been brought to
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fruition or have been less than efficiently concluded. This is one
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classic example of new technology affecting adversely the criminal law
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enforcement community: a microcosm of what may be expected on a
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nationwide basis without enactment of this legislation.
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Section 1 of the bill states Congressional findings and 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 Federal
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side, the development of the required affidavits, submission to the
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Criminal Division of the Department of Justice for approval, transmission
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of approval to the Assistant United States Attorney, the appearance of the
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Assistant before a judge to request the order and the delivery of the
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judge's order to the appropriate telecommunications company is frequently
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completed in a very short time. However, crime waits for no one and the
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system for approval of interceptions must and does conform with the
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realities of the activity that is sought to be investigated and, if
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appropriate, prosecuted as criminal offenses. Since time is of the
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essence, current law requires that service providers and operators
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provide the government forthwith all information, facilities and
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technical assistance necessary to accomplish its mission. It is critical
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that the telecommunications industry respond quickly to execute the court
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order or authorization. The ultimate problem of timeliness, however, is
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the real-time monitoring of the intercepted communications. As serious
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and potentially life- threatening criminal conduct is detected, it may be
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necessary to move quickly to protect innocent victims from that conduct.
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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, the
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government is allowed to monitor and record criminal conversation such
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as a conspiracy, minimizing the acquisition of non-criminal or innocent
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conversation. When an electronic communication services provider or
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private branch exchange operator introduces a new technology--such as a
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digital signal--the communications are converted into a different and
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more efficient form for transmission, but a more difficult form to
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monitor during interception. The bill requires only that the provider or
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operator isolate and provide access to the electronic signal that
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represents the content of the communications of the target of the
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intercept2 from the stream of electronic signals representing other
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communications. This provision seeks to ensure that, in the new
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electronic environment in which signals are mixed for transmission and
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separated at another switch for distribution, the government does not
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receive the communications of any individual other than the individuals
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using the target's communications point of origin and receipt; the
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government must remain subject to the minimization standards of 18 U.S.C.
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__ 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 to
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analog or other form. The government expects that this process will be
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accomplished by the government.
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3. Mobility and Features. Increasingly, criminal acts are being
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conducted or discussed over cellular telephones or by using special
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telecommunications features. As this mobility is introduced, the
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electronic communication services providers and private branch exchange
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operators would be required to assure the capability and capacity for
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criminal law enforcement agencies to continue lawful interception.
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Further, this subsection makes it clear that features used by the
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target do not defeat the court order or authorization. For example,
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communications which have been addressed to the telephone number of
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the target, but which may have been programmed through a
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call-forwarding feature to another, otherwise innocent, telephone number,
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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 otherwise
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innocent telephone numbers that receive, only intermittently, calls
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forwarded by the target. The effect of this provision is to further
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minimize monitoring of calls of innocent parties. Similarly, certain
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speed dialing features that mask the telephone number called by the
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target must be identified for criminal law enforcement investigation.
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The ability to consistently determine the destination of calls is critical
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to minimizing
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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 the
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industry. Normally, the government leases a line from the electronic
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communication services provider's or private branch exchange operator's
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switch to another location owned or operated by the government. This
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minimizes the cost and intrusiveness of interceptions, which benefits the
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service provider or operator, as well as the government. Accordingly, the
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ability to monitor intercepted 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 folklore
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and spy novels. This provision merely ensures that the secrecy of
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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 and
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the public. Presently, the existence of an interception has no effect on
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the quality of the service provided by any network to the target or any
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subscriber. This provision ensures that the quality of the network will
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continue to be uncompromised. Absent the assistance delineated by this
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legislation, the execution of court orders and authorizations by the
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government could well disrupt service of the newer technological systems,
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a result that this legislation seeks to 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. Thereafter,
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new technologies must continue to meet these minimum 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 as
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the implementation deadlines of subsections (b) and (c). In considering
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any request for exception, the Attorney General will consult with Federal
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Communications Commission, the Small Business Administration and
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the Department of Commerce, as appropriate. Accordingly, the Attorney
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General has the authority to except, for example, whole classes,
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categories or types of private branch exchange operators where no serious
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criminal law enforcement problems are likely to arise, such as hospital
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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.
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Accordingly, if a particular company can not comply with one or more of
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the requirements of subsection (a), or needs time additional to that
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permitted under subsections (b) or (c), the Attorney General may grant an
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appropriate waiver.
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Subsection (e) provides that the Attorney General has exclusive
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authority to enforce the provisions of the bill. While a number of States
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have authority to seek and execute interception orders, they will be
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required to seek the assistance of the Attorney General if enforcement of
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this legislation is required. This section also provides for injunctive
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relief from violations of the provisions of the bill.
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Subsection (f) provides for enforcement of the provisions of the
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bill through imposition of civil fines against any company that is not
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excepted from the provisions of the bill, does not acquire a waiver of the
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provisions of the bill, and fails to meet the requirements of subsection
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(a) after the effective dates set out in subsection (b) or (c), as
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appropriate. A fine of up to $10,000 per day for each day in violation
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may be levied; for most companies in the telecommunications industry
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this amount is sufficient to ensure that compliance will be forthcoming.
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Although this provision is not expected to be used, it is critical to
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ensure that compliance with the provisions of the bill will occur after
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the effective dates of the requirements of subsection (a).
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Subsection (g) carries forward a number of definitions from the
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current provisions for the interception of wire or electronic
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communications under "Title III." The definition of "government" that is
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currently in use includes all States, territories and possessions of the
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United States, as well as the United States, is made applicable to the
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bill.
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[Footnotes]
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1Interceptions for foreign intelligence and counterintelligence
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purposes are not counted within the figures used here, but would likewise
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benefit from enactment of the legislation.
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2 Whether the content is voice, facsimile, imagery (e.g. video), computer
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data, signalling information, or other forms of communication, does not <20>
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matter;
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all forms of communication are intercepted.
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