102nd Congress 2nd Session

Amendment No. Offered by M.

1. SEC. 1. FINDINGS AND PURPOSES 2. (a) The Congress finds: 3. (1) that telecommunications systems and networks are often 4 used in the furtherance of criminal activities including 5 organized crime, racketeering, extortion, kidnapping, espionage, 6 terrorism, and trafficking in illegal drugs; and 7 (2 ) that recent and continuing advances in 8 telecommunications technology, and the introduction of new 9 technologies and transmission modes by the telecommunications 10 industry, have made it increasingly difficult for government 11 agencies to implement lawful orders or authorizations to 12 intercept communications and thus threaten the ability of such 13 agencies effectively to enfore the laws and protect the national 14 security; and 15 (3) without the assistance and cooperation of providers of 16 electronic communication services and private branch exchange 17 operators, the introduction of new technologies and transmission 18 modes into telecommunications systems witout consideration and 19 accomodation of the need of government agencies lawfully to 20 intercept communications, would impede the ability of such 21 agencies effectively to carry out their responsibilities. 22

1 The purpose of this Act are: 2 (1) to clarify the duty of providers of electronic 3 communication services and private branch exchange operators to 4 provide such assistance as necessary to ensure the ability of 5 government agencies to implement lawful orders or authorizations 6 to intercept communications; and 7 (2) to ensure that the Federal Communications Commission, 8 in the setting of standards affecting providers of electronic 9 communication services or private branch exchange operators, will 10 accomodate the need of government agencies lawfully to intercept 11 communications.

12 SEC. 2. Title II of the Communictions Act of 1934 is amended 13 by adding at the end thereof the following new sections: 14 "Sec__. GOVERNMENT REQUIREMENTS 15 "(a) The Federal Communications Commission shall, 16 within 120 days after enactment of this Act, issue such 17 regulations as are necessary to ensure that the government 18 can intercept communications when such interception is 19 otherwise lawfully authorized 20 "(b) The regulations issued by the commission shall: 21 "(1) establish standards and specifications for 22 telecommunications equipment and technology employed by 23 providers of electronic communication services or 24 private branch exchange operators as may be necessary 25 to maintain the ability of the government to lawfully 26 intercept communication

1 "(2) require that any telecommunications 2 equipment or technology which impedes the ability of 3 the government to lawfully intercept communications and 4 and which has been introduced into a telecommunications 5 system by providers of electronic communication 6 services or private branch exchange operators shall not 7 expanded so as to further impede such utility until 8 that telecommunications equpment or technology is 9 brought into compliance with the requirements set forth 10 in regulations issued by the Commission; 11 "(3) require that modifications which are 12 necessary to be made to existing telecommunications 13 equipment or technology to eliminate impediments to the 14 ability of the government to lawfully intercept 15 communications shall be implemented by such providers 16 of electronic communication services and private branch 17 exchange operators within 180 days of issuance of such 18 regulations; and 19 "(4) prohibit the use by electronic communication 20 service providers and private branch exchange operators 21 of any telecommunications equipment or technoloqy which 22 does not comply with the regulations issued under this 23 section after the 180th day following the issuance of 24 such regulations. 25 "(c) For the purposes of administering and enforcing 26 the provisions of this section and the regulations

1 prescribed hereunder, the Commission shall have the same 2 authority, power, and functions with respect to providers of 3 electronic communication services or private branch exchange 4 operators as the Commission has in administering and 5 enforcing the provisions of this title with respect to any 6 common carrier otherwise subject to Commission jurisdiction. 7 Any violation of this section by any provider of electronic 8 communication service or any private branch exchange 9 operator shall be subject to the same remedies, penalties, 10 and procedures as are applicable to a violation of this 11 chapter by a common carrier otherwise subject to Commission 12 jurisdiction, except as otherwise specified in subsection 13 (d). 14 "(d) In addition to any enforcement authorities vested 15 in the Commission under this title, the Attorney General may 16 apply to the appropriate United States District Court for a 17 restraining order or injunction against any provider of 18 electronic communication service or private branch exchange 19 operator based upon a failure to comply with the provisions 20 of this section or regulations prescribed hereunder. 21 "(e) Any person who willfully violates any provision 22 of the regulations issued by the Commission pursuant to 23 subjection (a) of this section shall be subject to a civil 24 penalty of $10000 per day for each day in violation. 25 "(f) To the extent consistent with the setting or 26 implementation of just and reasonable rates, charges and

1 classifications, the Commission shall authorize the 2 compensation of any electronic communication service 3 providers or other entities whose rates or charges are 4 subject to its jurisdiction for the reasonable costs 5 associated with such modifications of existing 6 telecommunications equipment or technology, or with the 7 development or procurement, and the installation of such 8 telecommunications equipment or technology as is necessary 9 to carry out the purposes of this Act, through appropriate 10 adjustments to such rates and charges. 11 "(g) The Attorney General shall advise the Commission 12 within 30 days after the date of enactment of this Act, and 13 periodically thereafter, as necessary, of the specific needs 14 and performance requirements to ensure the continued ability 15 of the government to lawfully intercept communications 16 transmitted by or through the electronic communication 17 services and private branch exchanges introduced, operated, 18 sold or leased in the United States. l9 "(h) Notwithstanding section 552b of Title 5, United 20 States Code or any other provision of law, the Attorney 21 General or his designee may direct that any Commission 22 proceeding concerning regulations, standards or 23 registrations issued or to be issued under the authority of 24 this section shall be closed to the public. 25 "(i) Definitions -- As used in this section --

1 "(l) 'provider of electronic communication 2 service' or 'private branch exchange operator' means 3 any service which profices to users thereof the ability 4 to send or receive wire, oral or electronic 5 communications, as those terms are defined in 6 subsections 2510(1) and 2510(12) of Title 18, United 7 States Code; 8 "(2) 'communication' means any wire or electronic 9 communication, as defined in subsection 2510(1) and 10 2510 (12), of Title 18, United States Code; 11 "(3) 'impede' means to prevent, hinder or impair 12 the government's ability to intercept a communication 13 in the same form as transmitted; 14 "(4) 'intercept' shall have the same meaning l5 set forth in section 2510 (4) of Title 18, United States 16 Code; 17 "(5) 'government' means the Government of the 18 United States and any agency or instrumentality 19 thereof, any state or political subdivision thereof, 20 and the District of Columbia, and Commonwealth of Puerto 21 Rico; and 22 "(6) 'telecommunications equipment or technology' 23 means any equipment or technology, used or to be used 24 by any providers of electronic communication services 25 or private branch exchange operators, which is for the

1 transmission or recept of wire, oral or electronic 2 communications."

3 SEC 3. Section 510, Title V, P.L. 97-259 is amended deleting the 4 phrase "section 301 or 302a" and substituting the phrase "section 5 301, 302a, or ____.

DIGITAL TELEPHONY AMENDMENT (report language)

Significant changes are being made in the systems by which communications services are provided. Digital technologies, fiber optics, and other telecommunications transmission technologies are coming into widespread use. These changes in communications systems and technologies make it increasingly difficult for government agencies to implement lawful orders or authorizations to intercept communications in order to enfore the laws and protect the national security.

With the assistance of providers of electronic communication services, these technological advances need not impede the ability of government agencies to carry out their responsibilities. This bill would direct the Federal Communications Commission (FCC) to issue standards ensuring that communications systems and service providers continue to accomodate lawful government communications intercepts. The regulations are not intended to cover federal government communications systems. Procedure already exist by which the Federal Bureau of Investigation amy obtain federal agency cooperation in implementing lawful orders or authorizations applicable to such systems. Further, there would be no obligation on the part of the service providers or any other party to ensure access to the plain text of encrypted or other encoded material, but rather only to the communication in whatever form it is transmitted. It is thus the intent and purpose of the bill only to maintain the government's current communications interception capability where properly ordered or authorized. No expansion of that authority is sought.

ANALYSIS

Subsection 2(a) and (b) would require the Federal Communications Commission (FCC) to issue any regulations deemed necessary to ensure that telecommunications equipment and technology used by providers of electronic communications services or private branch exchange operators will permit the government to intercept communications when such interception is lawfully authorized. The regulations would also require that equipment or technologies currently used by such providers or operators that impede this ability until brought into compliance with the regulations. Compliance with FCC regulations issued under this section would be required within 180 days of their issuance.

Subsection 2(c) provides that the Commission's authority to implement and enforce the provisions of this section are the same as those it has with respect to common carriers subject to its jurisdiction.

Subsection 2(d) would give the Attorney General the authority to request injunctive relief against non-complying service providers or private branch exchange operators.

Subsection 2(e) provides civil penalty authority for willful violations of the regulations of up to $10000 per day for each violation.

Subsection 2(f) would permit the FCC to provide rate relief to service providers subject to its rate-setting jurisdiciton for the costs associated with modifying equipment or technologies to carry out the purposes of the bill.

Subsections 2(g), (h), and (i) require the Attorney General to advise the Commission regarding the specific needs and performance criteria required to maintain government intercept capabilities, require the FCC to ensure that the standards and specifications it promulgates may be implemented on a royalty- free basis, and authorize the Attorney General to require that particular Commission rulemaking proceedings to implement the Act be closed to the public.

Subsection 2(j) provides definitions for key terms used in this section.