Computer underground Digest    Wed  Aug 17, 1994   Volume 6 : Issue 73
                           ISSN  1004-042X

       Editors: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET)
       Archivist: Brendan Kehoe
       Retiring Shadow Archivist: Stanton McCandlish
       Shadow-Archivists: Dan Carosone / Paul Southworth
                          Ralph Sims / Jyrki Kuoppala
                          Ian Dickinson
       Campy Editor:      Shrdlu Etaionsky

CONTENTS, #6.73 (Wed, Aug 17, 1994)

File 1--Digital Telephony Text (HR 4922)
File 2--The Good, the Bad, the Ugly, and the Confused (Re: CuD 6.72)

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----------------------------------------------------------------------

Date: Wed, 17 Aug 1994 09:49:02 -0500
From: David Banisar <Banisar@EPIC.ORG>
Subject: File 1--Digital Telephony Text (HR 4922)

((MODERATORS' NOTE: The following text, sent over by CPSR's Dave
Banisar, is the latest version of the Digital Telephony Bill.  See CuD
6.72 and the next CuD (6.74) for additional discussion)).

103d Congress  H. R. 4922  As Introduced in the House

Note: This document is the unofficial version of a Bill or Resolution.
      The printed Bill and Resolution produced by the Government Printing
      Office is the only official version.

VERSION   As Introduced in the House
CONGRESS  103d CONGRESS
           2d Session
BILL                                   H. R. 4922
TITLE     To amend title 18, United States Code, to make clear a
              telecommunications carrier`s duty to cooperate in the
              interception of communications for law enforcement purposes,
              and for other purposes.
                                  --------------------
                            IN THE HOUSE OF REPRESENTATIVES
                                     AUGUST 9, 1994
          Mr. Edwards of California (for himself and Mr. Hyde) introduced the
              following bill; which was referred to the Committee on the
              Judiciary
                                  --------------------
TEXT                                     A BILL
          To amend title 18, United States Code, to make clear a
              telecommunications carrier`s duty to cooperate in the
              interception of communications for law enforcement purposes,
              and for other purposes.
            Be it enacted by the Senate and House of Representatives of the
          United States of America in Congress assembled,
          SECTION 1. INTERCEPTION OF DIGITAL AND OTHER COMMUNICATIONS.
            (a) In General  . - Part I of title 18, United States Code, is
          amended by inserting after chapter 119 the following new chapter:
              `CHAPTER 120 - TELECOMMUNICATIONS CARRIER ASSISTANCE TO THE
                                       GOVERNMENT
          `Sec.
          `2601. Definitions.
          `2602. Assistance capability requirements.
          `2603. Notices of capacity requirements.
          `2604. Systems security and integrity.
       .
   `2605. Cooperation of equipment manufacturers and providers of
                        telecommunications support services.
          `2606. Technical requirements and standards; extension of
                        compliance date.
          `2607. Enforcement orders.
          `2608. Reimbursement of telecommunications carriers.
          `Sec. 2601. Definitions
            `(a) Definitions  . - In this chapter -
                `the terms defined in section 2510 have, respectively, the
              meanings stated in that section.
                ` `call-identifying information` -
                    `(A) means all dialing or signalling information
                  associated with the origin, direction, destination, or
                  termination of each communication generated or received by
                  the subscriber equipment, facility, or service of a
                  telecommunications carrier that is the subject of a court
                  order or lawful authorization; but
                    `(B) does not include any information that may disclose
                  the physical location of the subscriber (except to the
                  extent that the location may be determined from the
                  telephone number).
                ` `Commission` means the Federal Communications Commission.
                ` `government` means the government of the United States and
              any agency or instrumentality thereof, the District of
              Columbia, any commonwealth, territory, or possession of the
              United States, and any State or political subdivision thereof
              authorized by law to conduct electronic surveillance.
                ` `information services` -
                    `(A) means the offering of a capability for generating,
                  acquiring, storing, transforming, processing, retrieving,
                  utilizing, or making available information via
                  telecommunications; and
                    `(B) includes electronic publishing and messaging
                  services; but
                    `(C) does not include any use of any such capability for
                  the management, control, or operation of a
                  telecommunications system or the management of a
                  telecommunications service.
                ` `provider of telecommunications support services` means a
              person or entity that provides a product, software, or service
              to a telecommunications carrier that is integral to such
              carrier`s switching or transmission of wire or electronic
              communications.
                ` `telecommunications carrier` -
                    `(A) means a person or entity engaged in the transmission
                  or switching of wire or electronic communications as a
                  common carrier for hire (within the meaning of section 3(h)
                  of the Communications Act of 1934 (47 U.S.C. 153(h))); and
                    `(B) includes -
                        `(i) a person or entity engaged in providing
                      commercial mobile service (as defined in section 332(d)
                      of the Communications Act of 1934 (47 U.S.C. 332(d)));
                      and
                        `(ii) a person or entity engaged in providing wire or
                      electronic communication switching or transmission
                      service to the extent that the Commission finds that
                      such service is a replacement for a substantial portion
                      of the local telephone exchange service and that it is
                      in the public interest to deem such a person or entity
                      to be a telecommunications carrier for purposes of this
                      chapter; but
                    `(C) does not include persons or entities insofar as they
                  are engaged in providing information services.
          `Sec. 2602. Assistance capability requirements
            `(a) Capability Requirements  . - Except as provided in
          subsections (b), (c), and (d) of this section, and subject to
          section 2607(c), a telecommunications carrier shall ensure that its
          services or facilities that provide a customer or subscriber with
          the ability to originate, terminate, or direct communications are
          capable of -
                `(1) expeditiously isolating and enabling the government to
              intercept, to the exclusion of any other communications, all
              wire and electronic communications carried by the carrier
              within a service area to or from equipment, facilities, or
              services of a subscriber of such carrier concurrently with
              their transmission to or from the subscriber`s service,
              facility, or equipment or at such later time as may be
              acceptable to the government;
                `(2) expeditiously isolating and enabling the government to
              access call-identifying information that is reasonably
              available to the carrier -
                    `(A) before, during, or immediately after the
                  transmission of a wire or electronic communication (or at
                  such later time as may be acceptable to the government);
                  and
                    `(B) in a manner that allows it to be associated with the
                  communication to which it pertains,
              except that, with regard to information acquired solely
              pursuant to the authority for pen registers and trap and trace
              devices (as defined in section 3127), such call-identifying
              information shall not include any information that may disclose
              the physical location of the subscriber (except to the extent
              that the location may be determined from the telephone number);
                `(3) delivering intercepted communications and
              call-identifying information to the government in a format such
              that they may be transmitted by means of facilities or services
              procured by the government to a location other than the
              premises of the carrier; and
                `(4) facilitating authorized communications interceptions and
              access to call-identifying information unobtrusively and with a
              minimum of interference with any subscriber`s
              telecommunications service and in a manner that protects -
                    `(A) the privacy and security of communications and
                  call-identifying information not authorized to be
                  intercepted; and
                    `(B) information regarding the government`s interception
                  of communications and access to call-identifying
                  information.
            `(b) Limitations  . -
                `(1) Design of features and systems configurations  . - This
          chapter does not authorize any law enforcement agency or officer -
                    `(A) to require any specific design of features or system
                  configurations to be adopted by providers of wire or
                  electronic communication service, manufacturers of
                  telecommunications equipment, or providers of
                  telecommunications support services; or
                    `(B) to prohibit the adoption of any feature or service
                  by providers of wire or electronic communication service,
                  manufacturers of telecommunications equipment, or providers
                  of telecommunications support services.
                `(2) Information services and interconnection services and
              facilities  . - The requirements of subsection (a) do not apply
   .       to -
                    `(A) information services; or
                    `(B) services or facilities that support the transport or
                  switching of communications for the sole purpose of
                  interconnecting telecommunications carriers or private
                  networks.
                `(3) Encryption  . - A telecommunications carrier shall not
          be responsible for decrypting, or ensuring the government`s ability
          to decrypt, any communication encrypted by a subscriber or
          customer, unless the encryption was provided by the carrier and the
          carrier possesses the information necessary to decrypt the
          communication.
            `(c) Emergency or Exigent Circumstances  . - In emergency or
          exigent circumstances (including those described in sections 2518
          (7) or (11)(b) and 3125 of this title and section 1805(e) of title
          50), a carrier may fulfill its responsibilities under subsection
          (a)(3) by allowing monitoring at its premises if that is the only
          means of accomplishing the interception or access.
            `(d) Mobile Service Assistance Requirements  . - A
          telecommunications carrier offering a feature or service that
          allows subscribers to redirect, hand off, or assign their wire or
          electronic communications to another service area or another
          service provider or to utilize facilities in another service area
          or of another service provider shall ensure that, when the carrier
          that had been providing assistance for the interception of wire or
          electronic communications or access to call-identifying information
          pursuant to a court order or lawful authorization no longer has
          access to the content of such communications or call-identifying
          information within the service area in which interception has been
          occurring as a result of the subscriber`s use of such a feature or
          service, information is available to the government (before,
          during, or immediately after the transfer of such communications)
          identifying the provider of wire or electronic communication
          service that has acquired access to the communications.
          `Sec. 2603. Notices of capacity requirements
            `(a) Notices of Maximum and Initial Capacity Requirements  . -
                `(1) In general  . - Not later than 1 year after the date of
          enactment of this chapter, and after consulting with State and
          local law enforcement agencies, telecommunications carriers,
          providers of telecommunications support services, and manufacturers
          of telecommunications equipment, the Attorney General shall publish
          in the Federal Register and provide to appropriate
          telecommunications carrier associations, standard-setting
          organizations, and fora -
                    `(A) notice of the maximum capacity required to
                  accommodate all of the communication interceptions, pen
                  registers, and trap and trace devices that the Attorney
                  General estimates that government agencies authorized to
                  conduct electronic surveillance may conduct and use
                  simultaneously; and
                    `(B) notice of the number of communication interceptions,
                  pen registers, and trap and trace devices, representing a
                  portion of the maximum capacity set forth under
                  subparagraph (A), that the Attorney General estimates that
                  government agencies authorized to conduct electronic
                  surveillance may conduct and use simultaneously after the
                  date that is 4 years after the date of enactment of this
                  chapter.
                `(2) Basis of notices  . - The notices issued under paragraph
          (1) may be based upon the type of equipment, type of service,
          number of subscribers, geographic location, or other measure.
            `(b) Compliance With Capacity Notices  . -
                `(1) Initial capacity  . - Within 3 years after the
          publication by the Attorney General of a notice of capacity
          requirements or within 4 years after the date of enactment of this
          chapter, whichever is longer, a telecommunications carrier shall
          ensure that its systems are capable of -
                    `(A) expanding to the maximum capacity set forth in the
                  notice under paragraph (1)(A); and
                    `(B) accommodating simultaneously the number of
                  interceptions, pen registers, and trap and trace devices
                  set forth in the notice under paragraph (1)(B).
                `(2) Permanent capacity  . - After the date described in
          paragraph (1), a telecommunications carrier shall ensure that it
          can accommodate expeditiously any increase in the number of
          communication interceptions, pen registers, and trap and trace
          devices that authorized agencies may seek to conduct and use, up to
          the maximum capacity requirement set forth in the notice under
          paragraph (1)(A).
            `(c) Notices of Increased Maximum Capacity Requirements  . -
                `(1) The Attorney General shall periodically provide to
              telecommunications carriers written notice of any necessary
              increases in the maximum capacity requirement set forth in the
              notice under subsection (b)(1).
                `(2) Within 3 years after receiving written notice of
              increased capacity requirements under paragraph (1), or within
              such longer time period as the Attorney General may specify, a
              telecommunications carrier shall ensure that its systems are
              capable of expanding to the increased maximum capacity set
              forth in the notice.
          `Sec. 2604. Systems security and integrity
            `A telecommunications carrier shall ensure that any court ordered
          or lawfully authorized interception of communications or access to
          call-identifying information effected within its switching premises
          can be activated only with the affirmative intervention of an
          individual officer or employee of the carrier.
          `Sec. 2605. Cooperation of equipment manufacturers and providers of
                      telecommunications support services
            `(a) Consultation  . - A telecommunications carrier shall
          consult, as necessary, in a timely fashion with manufacturers of
          its telecommunications transmission and switching equipment and its
          providers of telecommunications support services for the purpose of
          identifying any service or equipment, including hardware and
          software, that may require modification so as to permit compliance
          with this chapter.
            `(b) Modification of Equipment and Services  . - Subject to
          section 2607(c), a manufacturer of telecommunications transmission
          or switching equipment and a provider of telecommunications support
          services shall, on a reasonably timely basis and at a reasonable
          charge, make available to the telecommunications carriers using its
          equipment or services such modifications as are necessary to permit
          such carriers to comply with this chapter.
          `Sec. 2606. Technical requirements and standards; extension of
                      compliance date
            `(a) Safe Harbor  . -
                `(1) Consultation  . - To ensure the efficient and
          industry-wide implementation of the assistance capability
          requirements under section 2602, the Attorney General, in.

          coordination with other Federal, State, and local law enforcement
          agencies, shall consult with appropriate associations and
          standard-setting organizations of the telecommunications industry.
                `(2) Compliance under accepted standards  . - A
          telecommunications carrier shall be found to be in compliance with
          the assistance capability requirements under section 2602, and a
          manufacturer of telecommunications transmission or switching
          equipment or a provider of telecommunications support services
          shall be found to be in compliance with section 2605, if the
          carrier, manufacturer, or support service provider is in compliance
          with publicly available technical requirements or standards are
          adopted by an industry association or standard-setting organization
          or by the Commission under subsection (b) to meet the requirements
          of section 2602.
                `(3) Absence of standards  . - The absence of technical
          requirements or standards for implementing the assistance
          capability requirements of section 2602 shall not -
                    `(A) preclude a carrier, manufacturer, or services
                  provider from deploying a technology or service; or
                    `(B) relieve a carrier, manufacturer, or service provider
                  of the obligations imposed by section 2602 or 2605, as
                  applicable.
            `(b) FCC Authority  . -
                `(1) In general  . - If industry associations or
          standard-setting organizations fail to issue technical requirements
          or standards or if a government agency or any other person believes
          that such requirements or standards are deficient, the agency or
          person may petition the Commission to establish, by notice and
          comment rulemaking or such other proceedings as the Commission may
          be authorized to conduct, technical requirements or standards that
          -
                    `(A) meet the assistance capability requirements of
                  section 2602;
                    `(B) protect the privacy and security of communications
                  not authorized to be intercepted; and
                    `(C) serve the policy of the United States to encourage
                  the provision of new technologies and services to the
                  public.
                `(2) Transition period  . - If an industry technical
          requirement or standard is set aside or supplanted as a result of
          Commission action under this section, the Commission, after
          consultation with the Attorney General, shall establish a
          reasonable time and conditions for compliance with and the
          transition to any new standard, including defining the obligations
          of telecommunications carriers under section 2602 during any
          transition period.
            `(c) Extension of Compliance Date for Features and Services  . -
                `(1) Petition  . - A telecommunications carrier proposing to
          deploy, or having deployed, a feature or service within 4 years
          after the date of enactment of this chapter may petition the
          Commission for 1 or more extensions of the deadline for complying
          with the assistance capability requirements under section 2602.
                `(2) Ground for extension  . - The Commission may, after
          affording a full opportunity for hearing and after consultation
          with the Attorney General, grant an extension under this paragraph,
          if the Commission determines that compliance with the assistance
          capability requirements under section 2602 is not reasonably
          achievable through application of technology available within the
          compliance period.
                `(3) Length of extension  . - An extension under this
          paragraph shall extend for no longer than the earlier of -
                    `(A) the date determined by the Commission as necessary
                  for the carrier to comply with the assistance capability
                  requirements under section 2602; or
                    `(B) the date that is 2 years after the date on which the
                  extension is granted.
                `(4) Applicability of extension  . - An extension under this
          subsection shall apply to only that part of the carrier`s business
          on which the new feature or service is used.
          `Sec. 2607. Enforcement orders
            `(a) Enforcement by Court Issuing Surveillance Order  . - If a
          court authorizing an interception under chapter 119, a State
          statute, or the Foreign Intelligence Surveillance Act of 1978 (50
          U.S.C. 1801 et seq.) or authorizing use of a pen register or a trap
          and trace device under chapter 206 or a State statute finds that a
          telecommunications carrier has failed to comply with the
          requirements in this chapter, the court may direct that the carrier
          comply forthwith and may direct that a provider of support services
          to the carrier or the manufacturer of the carrier`s transmission or
          switching equipment furnish forthwith modifications necessary for
          the carrier to comply.
            `(b) Enforcement Upon Application by Attorney General  . - The
          Attorney General may apply to the appropriate United States
          district court for, and the United States district courts shall
          have jurisdiction to issue, an order directing that a
          telecommunications carrier, a manufacturer of telecommunications
          transmission or switching equipment, or a provider of
          telecommunications support services comply with this chapter.
            `(c) Grounds for Issuance  . - A court shall issue an order under
          subsection (a) or (b) only if the court finds that -
                `(1) alternative technologies or capabilities or the
              facilities of another carrier are not reasonably available to
              law enforcement for implementing the interception of
              communications or access to call-identifying information; and
                `(2) compliance with the requirements of this chapter is
              reasonably achievable through the application of available
              technology to the feature or service at issue or would have
              been reasonably achievable if timely action had been taken.
            `(d) Time for Compliance  . - Upon issuance of an enforcement
          order under this section, the court shall specify a reasonable time
          and conditions for complying with its order, considering the good
          faith efforts to comply in a timely manner, any effect on the
          carrier`s, manufacturer`s, or service provider`s ability to
          continue to do business, the degree of culpability or delay in
          undertaking efforts to comply, and such other matters as justice
          may require.
            `(e) Limitation  . - An order under this section may not require
          a telecommunications carrier to meet the government`s demand for
          interception of communications and acquisition of call-identifying
          information to any extent in excess of the capacity for which
          notice has been provided under section 2603.
            `(f) Civil Penalty  . -
                `(1) In general  . - A court issuing an order under this
          section against a telecommunications carrier, a manufacturer of
          telecommunications transmission or switching equipment, or a
          provider of telecommunications support services may impose a civil
          penalty of up to $10,000 per day for each day in violation after
          the issuance of the order or after such future date as the court
          may specify.
                `(2) Considerations  . - In determining whether to impose a
          fine and in determining its amount, the court shall take into
          account -
                    `(A) the nature, circumstances, and extent of the
                  violation;
                    `(B) the violator`s ability to pay, the violator`s good
                  faith efforts to comply in a timely manner, any effect on
                  the violator`s ability to continue to do business, the
                  degree of culpability, and the length of any delay in
                  undertaking efforts to comply; and
                    `(C) such other matters as justice may require.
                `(3) Civil action  . - The Attorney General may file a civil
          action in the appropriate United States district court to collect,
          and the United States district courts shall have jurisdiction to
          impose, such fines.
          `Sec. 2608. Reimbursement of telecommunications carriers
            `(a) In General  . - The Attorney General shall, subject to the
          availability of appropriations, reimburse telecommunications
          carriers for all reasonable costs directly associated with -
                `(1) the modifications performed by carriers prior to the
              effective date of section 2602 or prior to the expiration of
              any extension granted under section 2606(c) to establish the
              capabilities necessary to comply with section 2602;
                `(2) meeting the maximum capacity requirements set forth in
              the notice under section 2603(a)(1)(A); and
                `(3) expanding existing facilities to accommodate
              simultaneously the number of interceptions, pen registers and
              trap and trace devices for which notice has been provided under
              section 2603(a)(1)(B).
            `(b) Procedures and Regulations  . - Notwithstanding any other
          law, the Attorney General may establish any procedures and
          regulations deemed necessary to effectuate timely and
          cost-efficient reimbursement to telecommunications carriers for
          reimbursable costs incurred under this chapter, under chapters 119
          and 121, and under the Foreign Intelligence Surveillance Act of
          1978 (50 U.S.C. 1801 et seq.).
            `(c) Dispute Resolution  . - If there is a dispute between the
          Attorney General and a telecommunications carrier regarding the
          amount of reasonable costs to be reimbursed under subsection (b),
          the dispute shall be resolved and the amount determined in a
          proceeding initiated at the Commission under section 2606(b) or by
          the court from which an enforcement order is sought under section
          2607.
            `(d) Lack of Appropriated Funds  . - The lack of appropriated
          funds sufficient to reimburse telecommunications carriers for
          modifications under subsection (a) shall be considered by the
          Commission or a court in determining whether compliance is
          reasonable under section 2607(c).`.
            (b) Technical Amendment  . - The part analysis for part I of
          title 18, United States Code, is amended by inserting after the
          item relating to chapter 119 the following new item:
          `120. Telecommunications carrier assistance to the Government
                                                                        2601`.
          SEC. 2. AUTHORIZATION OF APPROPRIATIONS.
            There are authorized to be appropriated to carry out section 2608
          of title 18, United States Code, as added by section 1 -
                (1) a total of $500,000,000 for fiscal years 1995, 1996,
              1997, and 1998; and
                (2) such sums as are necessary for each fiscal year
              thereafter.
          SEC. 3. EFFECTIVE DATE.
            (a) In General  . - Except as provided in paragraph (2), chapter
          120 of title 18, United States Code, as added by section 1, shall
          take effect on the date of enactment of this Act.
            (b) Assistance Capability and Systems Security and Integrity
          Requirements  . - Sections 2602 and 2604 of title 18, United States
          Code, as added by section 1, shall take effect on the date that is
          4 years after the date of enactment of this Act.
          SEC. 4. REPORTS.
            (a) Reports by the Attorney General  . -
                (1) In general  . - On or before November 30, 1995, and on or
          before November 30 of each year for 5 years thereafter, the
          Attorney General shall submit to the Congress a report on the
          amounts paid during the preceding fiscal year in reimbursement to
          telecommunications carriers under section 2608 of title 18, United
          States Code, as added by section 1.
                (2) Contents  . - A report under paragraph (1) shall include
          -
                    (A) a detailed accounting of the amounts paid to each
                  carrier and the technology, feature or service for which
                  the amounts were paid; and
                    (B) projections of the amounts expected to be paid in the
                  current fiscal year, the carriers to which reimbursement is
                  expected to be paid, and the technologies, services, or
                  features for which reimbursement is expected to be paid.
            (b) Reports by the Comptroller General  . -
                (1) In general  . - On or before April 1, 1996, and April 1,
          1998, the Comptroller General of the United States, after
          consultation with the Attorney General and the telecommunications
          industry, shall submit to the Congress a report reflecting its
          audit of the sums paid by the Attorney General to carriers in
          reimbursement.
                (2) Contents  . - A report under paragraph (1) shall include
          the findings and conclusions of the Comptroller General on the
          costs to be incurred after the compliance date, including
          projections of the amounts expected to be incurred and the
          technologies, services, or features for which expenses are expected
          to be incurred.
          SEC. 5. CORDLESS TELEPHONES.
            (a) Definitions  . - Section 2510 of title 18, United States
          Code, is amended -
                (1) in paragraph (1) by striking `but such term does not
              include` and all that follows through `base unit`; and
                (2) in paragraph (12) by striking subparagraph (A) and
              redesignating subparagraphs (B), (C), and (D) as subparagraphs
              (A), (B), and (C), respectively.
            (b) Penalty  . - Section 2511 of title 18, United States Code, is
          amended -
                (1) in subsection (4)(b)(i) by inserting `a cordless
              telephone communication that is transmitted between the
              cordless telephone handset and the base unit,` after `cellular
              telephone communication,`; and
                (2) in subsection (4)(b)(ii) by inserting `a cordless
              telephone communication that is transmitted between the
              cordless telephone handset and the base unit,` after `cellular
              telephone communication,`.
          SEC. 6. RADIO-BASED DATA COMMUNICATIONS.
            Section 2510(16) of title 18, United States Code, is amended -
                (1) by striking `or` at the end of subparagraph (D);
                (2) by inserting `or` at the end of subparagraph (E); and
                (3) by inserting after subparagraph (E) the following new
              subparagraph:
                    `(F) an electronic communication;`
          SEC. 7. PENALTIES FOR MONITORING RADIO COMMUNICATIONS THAT ARE
                        TRANSMITTED USING MODULATION TECHNIQUES WITH
                        NONPUBLIC PARAMETERS.
            Section 2511(4)(b) of title 18, United States Code, is amended by
          striking `or encrypted, then` and inserting `, encrypted, or
          transmitted using modulation techniques the essential parameters of
          which have been withheld from the public with the intention of
          preserving the privacy of such communication`.
          SEC. 8. TECHNICAL CORRECTION.
            Section 2511(2)(a)(i) of title 18, United States Code, is amended
          by striking `used in the transmission of a wire communication` and
          inserting `used in the transmission of a wire or electronic
          communication`.
          SEC. 9. FRAUDULENT ALTERATION OF COMMERCIAL MOBILE RADIO
                        INSTRUMENTS.
            (a) Offense  . - Section 1029(a) of title 18, United States Code,
          is amended -
                (1) by striking `or` at the end of paragraph (3); and
                (2) by inserting after paragraph (4) the following new
              paragraphs:
                `(5) knowingly and with intent to defraud uses, produces,
              traffics in, has control or custody of, or possesses a
              telecommunications instrument that has been modified or altered
              to obtain unauthorized use of telecommunications services; or
                `(6) knowingly and with intent to defraud uses, produces,
              traffics in, has control or custody of, or possesses -
                    `(A) a scanning receiver; or
                    `(B) hardware or software used for altering or modifying
                  telecommunications instruments to obtain unauthorized
                  access to telecommunications services,`.
            (b) Penalty  . - Section 1029(c)(2) of title 18, United States
          Code, is amended by striking `(a)(1) or (a)(4)` and inserting `(a)
          (1), (4), (5), or (6)`.
            (c) Definitions  . - Section 1029(e) of title 18, United States
          Code, is amended -
                (1) in paragraph (1) by inserting `electronic serial number,
              mobile identification number, personal identification number,
              or other telecommunications service, equipment, or instrument
              identifier,` after `account number,`;
                (2) by striking `and` at the end of paragraph (5);
                (3) by striking the period at the end of paragraph (6) and
              inserting `; and`; and
                (4) by adding at the end the following new paragraph:
                `(7) the term `scanning receiver` means a device or apparatus
              that can be used to intercept a wire or electronic
              communication in violation of chapter 119.`.
          SEC. 10. TRANSACTIONAL DATA.
            (a) Disclosure of Records  . - Section 2703 of title 18, United
          States Code, is amended -
                (1) in subsection (c) -
                    (A) in subparagraph (B) -
                        (i) by striking clause (i); and
                        (ii) by redesignating clauses (ii), (iii), (iv) as
                      clauses (i), (ii), and (iii), respectively; and
                    (B) by adding at the end the following new subparagraph:
                    `(C) A provider of electronic communication service or
                  remote computing service shall disclose to a governmental
                  entity the name, billing address, and length of service of
                  a subscriber to or customer of such service and the types
                  of services the subscriber or customer utilized, when the
                  governmental entity uses an administrative subpoena
                  authorized by a Federal or State statute or a Federal or
                  State grand jury or trial subpoena or any means available
                  under subparagraph (B).`; and
                (2) by amending the first sentence of subsection (d) to read
              as follows: `A court order for disclosure under subsection (b)
              or (c) may be issued by any court that is a court of competent
              jurisdiction described in section 3126(2)(A) and shall issue
              only if the governmental entity offers specific and articulable
              facts showing that there are reasonable grounds to believe that
              the contents of a wire or electronic communication, or the
              records or other information sought, are relevant and material
              to an ongoing criminal investigation.`.
            (b) Pen Registers and Trap and Trace Devices  . - Section 3121 of
          title 18, United States Code, is amended -
                (1) by redesignating subsection (c) as subsection (d); and
                (2) by inserting after subsection (b) the following new
              subsection:
            `(c) Limitation  . - A government agency authorized to install
          and use a pen register under this chapter or under State law, shall
          use technology reasonably available to it that restricts the
          recording or decoding of electronic or other impulses to the
          dialing and signalling information utilized in call processing.`.
          HR 4922 IH - - 2

------------------------------

Date: Mon, 15 Aug 94 10:46:11 EDT
From: Jerry Leichter <leichter@LRW.COM>
Subject: File 2--The Good, the Bad, the Ugly, and the Confused (Re: CuD 6.72)
X-Vms-Mail-To: CUD

A couple of CuD issues back I took Wade Riddick to task for calling on the
government to get involved in computer technology by drafting
standards for computers.  In the interest of sniping at both extremes,
I feel compelled to reply to Brock Meeks.  Unlike Mr. Riddick, who
proposed things that probably offended much of the on-line community,
Mr. Meeks, in his outraged condemnation of the current version of the
FBI "wiretap access" bill (and really the principles that would apply
to any version thereof) probably speaks words near and dear to the
hearts of most of his readers.  I believe he, and those readers, are
being every bit as naive as I accused Mr. Riddick of being.

Mr. Riddick believes the direction of technology is influenced by the
market, and that society, through the government, has a right to exert
its own influence.  Mr. Meeks seems to believe that technology will go
where it wishes - perhaps modulated by the market, perhaps not - and
society/government should have no say in the matter.  He seems to
believe that the telephone industry is being uniquely cursed with
government regulation of the direction it can let technology take it.
"Never again, under the provisions of this bill, will a
telecommunications provider be able to develop a service or technology
without first and foremost asking the question:  How can I design this
so that it pops off the assembly line wiretap ready?"  There will be
actual government penalties for non-compliance.

The automobile manufacturers, of course, have never been subject to
such regulation.  No, they can make brakelights any color they like.
They need not worry about what goes out the tailpipes of their
automobiles - they can simply use the cheapest, best technologies for
engines.  They needn't waste money and weight on silly things like
seat belts and air bags and energy-absorbing bumpers and collapsing
steering wheels that don't crush the driver.  If the market wants
those things, let the market worry about it.  If the market likes
high-powered engines, let the manufacturers go ahead and build them -
who cares how much gas they use?

Of course, while the auto makers are building those high-technology
cars, they need not be constrained by any worries about the chemicals
that happen to go up their smokestacks or out their sewers or get
buried in their waste dumps.  Any such worries would constrain their
techological choices.

Oh, and when the designers work on aerodynamics, they needn't feel
constrained to leave space for a flat 6 by 12 inch (or a different
size, elsewhere than the US) plate on the front, right in the air
stream.  No, and purchasers needn't pay their governments significant
amounts of money on a regular basis so that they can display that
piece of ugly steel - which, by the way, seriously invades their
privacy; anyone remember the scandals of the 60's when police
photographed the license plates of cars parked near anti-war
demonstrations?

Oh, yes, TV makers were never forced to include the ridiculous UHF
tuners for stations no one wanted to watch anyway, or radio makers
that silly FM band - they could just use the best, cheapest
technology, good old VHF and AM.  For that matter, TV broadcasters
could choose any color encoding system they liked - "the best
technology" was more important than all those silly old black and
white TV's.  Likewise, the FM broadcasters could choose any stereo
encoding system.

Let's look further.  Supermarkets can save money by scanning UPC
labels - they needn't label each individual item with its price.  Gun
makers are under no obligation to include serial numbers on their
weapons.  (For that matter, neither are auto manufacturers.)  Makers
of children's clothing needn't worry about how flammable it is - just
use the latest man-made fibers!  Builders can use any materials they
wish, and make buildings as tall as they like, anywhere they like.
You want a nuclear reactor in your basement so you can be free of the
power grid?  Go ahead!  Plutonium is available at your local hardware
store.

Hey, any other approach *interferes with the technology*!  It makes
the world *less efficient*!

Let's get real.  There are social goods beyond the "latest and
greatest" technology.  There are social goods beyond "the most
efficient" solution.  If you don't believe that, perhaps you're in
favor of getting rid of all those labor laws - it would be so much
more *efficient* to go back to 6-day weeks of 10-hour days.  And, of
course, we should get rid of those silly child-labor laws - kids
aren't learning anything in school anyway, why not let them earn a few
cents an hour, all the while making US manufacturing more competitive
with the third world?  While we're at it, look at the money we waste
on all those people sitting in prison - prison labor is cheap and
plentiful.  An untapped resource if ever there was one!

You want to drive on the public highways?  You *will* register your
car, pay the appropriate fees, and mount a license plate.  You want to
open a shop and sell to the public?  You *will* collect sales taxes,
and by the way keep records of sales - whether that slows down your
business or not - and make them available to the tax authorities on
appropriate demand, whether you think that invades your privacy or
not.  Oh, yes, and you will make those records available in a form
convenient to the tax authorities - probably paper, perhaps 1/2 inch
magnetic tape in some long-obsolete format - whether you find that
consistent with your vision of the correct technology for running a
business or not.

We are all members of a society, and we all make use of the social
goods it provides to us.  How long would the telephone companies last
with no legal system to enforce its contracts?  (I suppose some of the
radical libertarians out there will say "Who needs police?  Let the
telephone company hire people to enforce its own contracts."  A
gambling debt cannot be enforced in court in Nevada, but somehow few
people find it a good idea to stiff the casinos.  Do you really want
the whole world to run like that?)  You use those goods, you incur
obligations.  With rights come responsibilities.

There is certainly room for a legitimate debate about *what*
regulations it is desireable and proper for society to impose - the
government *is* the (admittedly imperfect) arm of society whose task
is to impose regulations - on telephone companies, or any other
enterprise.  What I find distressing is the blind kow-towing to the
technological imperative - if it *can* be done, we *must* do it, and
society be damned.  Does anyone really believe that?  Let's go back to
Mr. Meeks's statement and change it a bit:  "Never again, under the
provisions of this bill, will a medical database provider be able to
develop a service or technology without first and foremost asking the
question:  How can I design this so that it pops off the assembly line
ready to protect the privacy of the patients whose records it
contains?"  Does it still sound like such a bad thing?

No, what we really have here, hidden under a supposed appeal to
technological requirements, is the same belief that law enforcement
agencies just should not be able to tap telephone calls, no matter
what.  It makes no difference what limits are placed on the tapping,
what kinds of oversight there is; because tapping can be abused - and
because it's pretty clear that a populace worried about crime is
perfectly willing to allow for tapping under controlled circumstances
- what's needed is a technological fix that will simply render the
whole question moot.  That this fix will come at zero apparent cost -
the paranoid won't even have to get hold of encryption boxes - only
makes it look better.  If you really and truly believe this, ask
yourself why you are not arguing against license plates, or for that
matter driver's licenses, which have probably been abused to invade
privacy much more often than telephone taps.

On another note, I also find it distressing that many have bought into
the sob story from the telcos about costs.  The government - that's
*us*, in case you haven't noticed - tosses in $500 million, and the
response from the telcos is to be upset that, if their costs are
greater, they might actually have to pay up - or be subject to
penalties.  How much money did the government put up when it forced
auto manufacturers to make cleaner engines?  Engines with higher
mileage ratings?  Seat belts?  Air bags?  Third brake lights?  How
much is California offering to pay them to come up with
"zero-polution" vehicles?  How much does it pay your local grocer
toward the purchase of a cash register with dual recording rolls of
paper tape?  (Do you think a grocer *needs* such a cash register to
run his business?)  Do you think the penalties if these businesses
don't comply will be a government letter saying, "Well, you tried,
sorry you couldn't do better - see you next year?"

------------------------------

End of Computer Underground Digest #6.73
************************************

