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carrier is best positioned and qualified to determine how it will meet the requirements in the most cost-effective way.
Although the requirements set forth in section 3(a) constitute the first legislative listing of the government's requirements, the FBI states that for many years most, if not all, of these requirements have been known to the security offices of the major local exchange carriers, interexchange carriers, and cellular carriers. (Security offices, usually are designated by common carriers to receive service of the court orders and authorizations and to provide law enforcement agencies with the information and assistance required to execute the court orders and authorizations.)
The legislation requires common carriers to provide “forthwith" the capability and capacity necessary to permit the government to conduct electronic surveillance, pen register, and trap and trace investigations effectively. The requirement of providing assistance “forth with” is not new. It is found in the current language of 18 U.S.C. 2518(4), 3124, and 50 U.S.C. 1805(b)(2XB). The language concerning capability and capacity is included to underscore the need for a common carrier to afford not only an ability to effect the interception of communications and the acquisition of call setup information (which includes dialed number information) but also the ability to accommodate without delay all court orders and authorizations for electronic surveillance, pen registers, and trap and traces that may be served on such common carrier by the various Federal, state, and local government agencies.
Within section 3(aX1), it is stated that the foregoing, capability and capacity must accommodate the "expeditious" and "simultaneous" execution of all court orders and authorizations. Frequently, it is essential to implement the interception of communications or acquire dialed number information expeditiously in order to obtain information critical to saving lives, making arrests, and seizing evidence and contraband, such as drugs, illegal weapons, bombs and other explosive devices.
The capability and capacity requirement is also very important inasmuch as a number of government agencies must be able to execute a number of court orders and authorizations simultaneously. The FBI states that over the past decade a number of court orders and authorizations were not fully executed, or were not even sought, because of certain technological impediments and capacity shortfalls, such as insufficient "port" capacity in the cellular mobile switching offices (MSO's). At any particular tíme a number of Federal, state, and local government agencies may be competing to execute electronic surveillance and pen register court orders regarding certain telecommunication facilities, the access point for which is of limited capacity. Inasmuch as communications interceptions and dialed number acquisitions increasingly will be activated from within common carrier premises, including switching offices, it is critical that there be sufficient capacity to accommodate completely the concomitant needs of all government agencies.
As discussed below with regard to section 3(g), since common carriers' technological responses to the requirements will vary by common carrier and by the technology being addressed, and because historically each carrier has been subject to varied numeric demands in terms of court orders or authorizations, the Government intends to consult with common carriers and telecommunications industry representatives in a number of areas, such as in the area of capacity, in order to assist in facilitating proper sizing approaches and cost-effective compliance. Further, it is expected that most common carriers can ensure compliance in the future and gauge the future demands of government agencies by reviewing their records as to the numbers of, and trends in, current and past court orders and authorizations and extrapolating therefrom the sizing required to meet future demands. Finally, the increasing availability of “modular" and incremental technical approaches will allow common carriers to respond flexibly throughout their networks to the demands of government agencies in a cost-effective manner.
Section 3(aX2) specifies that common carrier networks must afford government agencies an ability to intercept communications and acquire call setup information "concurrent" with the transmission of the communication to or from the subscriber's facility or service that is the subject of the court order or authorization, to the exclusion of communications or information concerning any other subscriber, and without regard to the mobile nature of the subject subscriber's facility or service or the use by that subscriber of any custom features or services offered by the common carrier.
It is important that government agencies can intercept communications concur. rent with the transmission of the original communication. Further, the associated requirement of being able to acquire call setup information concurrent with the subject transmission also is essential. For example, it is critical for government agencies to be able to intercept communications as they occur so they can respond immediately to life-threatening circumstances and react promptly and effectively to criminal activity in terms of making needed arrests, seizing evidence, and interdicting contraband, such as drugs, illegal weapons, bombs and other explosive devices.
The separation of signaling transmission paths from communications paths also can impede government agencies who must be able to associate the intercepted communication with the calling or called party. Aside from the negative evidentiary impact caused, this circumstance can hamper government agencies in their efforts to effectively “minimize" the monitoring and recording of non-criminal communications. Consequently, there is a requirement that common carriers can assure that call setup information will be available “concurrent with the transmission of the communication" that is the subject of the court order or authorization.
Owing to the varying availability of contemporaneous call setup information, the definition of "concurrent with the transmission of the communication" found in section 3(i)(6) specifies that the "concurrence” requirement is satisfied if such information can be acquired by government agencies either before, during, or immediately after the transmission of the communication. It is the clear preference of government agencies that common carriers will attempt to afford the ability to acquire this information before the transmission of the communication whenever reasonably feasible. Similarly, because of the difficulty of intercepting certain "electronic communications” concurrent with their transmission, the foregoing definition states that providing government agencies an ability to intercept such information at the conclusion of the transmission will satisfy the requirement.
The requirement that government agencies will have the ability to isolate the communications and call set up information of the subjects of electronic surveillance to the exclusion of the communications and call setup information of other subscribers is a basic and a long-standing one. Government agencies do not want to be faced with the prospect of having to “sort through” a tangle of communications which include those of innocent individuals who have the misfortune of having their communications "bundled" or otherwise commingled with those of the interception subject in the telecommunication transmission process. This requirement is being challenged by the increased use of digital transport, multiplexing, and fiber optics closer to the premises of the interception subject. Hence, common carriers must assure that there are means to access and isolate communications and call setup information, yet in a fashion that does not compromise the interception or acquisition effort.
The increasingly mobile nature of telecommunications facilities and service also has created impediments to the effective execution of electronic surveillance. With today's cellular telephony, communications can be "handed off" within and between networks and can be routed about such that they bypass interception access points, even when they are established within the premises of a cellular common carrier. It is believed that the communication interception and call setup information acquisition requirements of government agencies can be met by common carriers affording mobile service by drawing upon existing technologies and programming and routing capabilities and by coordinating efforts with other mobile carriers. This same requirement also has application to other mobile features and services which permit subscribers to program or otherwise direct communications to any facility designated by the subscriber (e.g., "follow me service"), as well as to the emerging mobile services encompassed in personal communications services (PCS) and other radio frequency-based mobile communications services.
Section 3(a)2) specifies that the communication interception and call setup information acquisition requirement includes an ability to obtain such communications and information notwithstanding the use by the subject subscriber of any telecommunications custom "features" offered by the common carrier. The most notable feature impediment to effective electronic surveillance is "call forwarding.” This feature permits a subscriber, whose telecommunications facility (and telephone number) is the subject of a court order or authorization, to redirect in-coming calls from that facility to other facilities. Such call redirection can be accomplished according to established programs or even randomly and dynamically. In the past, government agencies frequently have proceeded by securing additional court orders for those new facilities to which the calls have been “forwarded” or redirected by the subject subscriber of the court order or authorization. This circumstance has resulted in government agencies having to obtain more court orders or authorizations than typically would have been required; in criminal communications escaping timely interception; and, in some instances, in additional households unnecessarily becoming targets of electronic surveillance.
Section 3(a)(3) includes the requirement that there be an ability to intercept the content of communications and acquire call setup information unobtrusively and with a minimum of interference with any subscriber's telecommunications service. This language mirrors language currently found in 18 U.S.C. 2518(4), 3124, and 50 U.S.C. 1805(b)(2)(B), and it is intended to prevent subjects of electronic surveillance and pen register and trap and, trace investigations and others from detecting the surveillance effort.
Section 3(aX4) contains the requirement that, once intercepted or acquired, the government agency would be able to receive the communication or call setup information in a generally available format at a location identified by the government agency distant from the subject's facility, from the interception or acquisition access point, and from the premises of the common carrier. This requirement is not new and is intended to maintain the current ability of government agencies to monitor, record, minimize, and otherwise properly administrate electronic surveillance and pen register and trap and trace investigations. This requirement is fundamentally important, since without it the safety of law enforcement officers and government employees would be put at risk, the interception or acquisition effort easily could be compromised through detection, and the effective execution of the surveillance search would be significantly disrupted.
Currently, once access has been obtained within the local loop or the common carrier's central office facilities, the communications and call setup information are transmitted back to the law enforcement agency's facility or monitoring plant, usually within the agency's office. The transmission most frequently occurs via line facilities provided by the common carrier.
The language which states that the communications and call setup information are to be received in a generally available format is intended to bake clear that government agencies do not expect common carriers to translate digital transmissions to analog, etc. before affording transmission to them. Rather, it is expected that a common carrier would utilize a transmission format that was consistent with that of the communication being intercepted or acquired at the time of access, such as analog voice channel on a local loop, D4 formatted T-1 circuit, ISDN Primary Rate Interface circuit, etc. On the other hand, government agencies understand that they, not the common carriers, are responsible for processing the communications intercepted and the call setup information acquired.
Section 3(a)(4) also indicates that in some emergency or exigent circumstances that a government agency by necessity may have to access and monitor communications or dialed number information on the common carrier's premises. Government agencies understand that common carriers are not desirous of having government personnel carry out all aspects of a surveillance on common carrier premises, and it is understood that the government's presence in common carrier premises should only occur in emergency or exigent circumstances. Also, government agencies are not expecting common carrier personnel to assist in the monitoring aspects of executing a court order or authorization.
Section 3(b) specifies that government agencies shall notify common carriers of any wire or electronic interceptions or any call setup acquisitions that are to be effected within the premises of such common carrier pursuant to court order or authorization. Common carriers are required to designate individuals to activate such interceptions or acquisitions. These individuals are required to be available at all times to activate the interceptions or acquisitions. The requirement can be met by such individuals being "on call,” in order to promptly respond to governmental needs as necessary. The requirement does not mean that the designated individuals actually must be on the premises at all times or that 24 hour-a-day work shifts must be established. Such interceptions or acquisitions may be activated only by the affirmative intervention of such individuals.
This provision recognizes that the access point for intercepting communications and acquiring call setup information increasingly will originate within common carrier premises. Such premises include buildings, switching offices and facilities, and network elements (e.g., signaling transfer points) maintained by the common carriers. Since it is important that these facilities, as well as the entire telecommuni. cations network, remain secure, it is a requirement that all such access be initiated directly only by individuals designated by the common carrier.
Government agencies are not seeking the authority or ability to remotely, activate interceptions within the premises of a common carrier in a fashion that bypasses personnel designated by common carrier. All executions of court orders or authorizations which require access to the switching facilities or other premises will be made through the individuals authorized and designated by the common carrier. Activation of interceptions or acquisitions originating in local loop wiring or cabling can be effected by government personnel or by individuals designated by the common carrier, depending upon the amount of assistance the government requires.
Section 3(c) states that to the extent common carriers providing service within the United States currently cannot fulfill the requirements set forth in subsection (a), they shall fulfill such requirements within three years from the date of enactment of the Act. This section makes clear that the focus of compliance is on common carriers within whose networks most of the electronic surveillance occurs.
Nearly all wireline and wireless voice communications are provided by local exchange carriers, interexchange carriers (and increasingly by service "resellers" and competitive access providers (CAPS)), and by cellular carriers (and soon by providers of Personal Communications Services (PCS) and satellite based mobile communications providers). These entities are common carriers, and historically they have been subject to regulation. Since most electronic surveillance is effected within the networks of common carriers, the coverage has been scaled to focus only on those service providers within whose networks the core technological problems exist.
Although certain categories of electronic communication service providers (e.g., PBX and computer network operators) who currently have assistance responsibilities under Federal and state laws are excluded from the provisions of this legislation, nevertheless it is expected that such providers will continue to fulfill their statutory responsibilities and undertake voluntarily to accommodate the electronic surveillance needs of government. If significant technological impediments arise within their networks in the future due to inattention to government requirements or due to inaction in addressing them, consideration would have to be given to seeking expansion in the coverage of the instant legislation to include such entities.
The language of the section is also intended to indicate that common carriers still must fulfill their assistance responsibilities under 18 U.S.C. 2518(4), 3124, and 50 U.S.C. 1805(b)(2)(B) by furnishing requested information, facilities, and technical assistance, to the extent possible, during the three year grace period set for compliance. There should be no relaxation in common carrier efforts to assist government agencies in effectively executing court orders and authorizations.
Some common carriers, such as "resellers” and competitive access providers (CAPS), either may not own any equipment or facilities or the equipment or facilities they own may be such that they are not capable of effecting interceptions or acquisitions under this Act. In such cases, it is expected that such service entities would rely on the compliance of the common carrier whose facilities they lease, etc., and that they likely would seek from such common carrier legal assurances that compliance will be achieved within the statutory compliance period or that such common carrier would indemnify them for any liability or penalty they bay incur if compliance is not met. If a common carrier leases a portion of its switching or other network facilities to an end user and such facilities are not under the carrier's control, then the carrier shall not be obligated to make that portion compliant as long as it remains beyond the common carrier's control.
The date for common carrier compliance is set at within three years from the date of enactment of the Act. The Government believes that this is a reasonable period within which the needed technological solutions can be identified, tested, and deployed within the networks of common carriers. As discussed below, common carriers receive important assistance and cooperation of equipment manufacturers and common carrier support service providers so that timely compliance can be achieved.
The coverage of compliance includes needed modifications to existing systems and networks. (embedded base) as well as to future systems and networks (those-fielded, after the three year compliance period).
Section 3(d) provides that common carriers shall consult in a timely fashion with providers of common carrier support services and telecommunications equipment manufacturers so that any needed modifications to services and equipment, including hardware and software, can be made, and thus help to ensure common carrier compliance within three years. This section further specifies that a provider of common carrier support services and a telecommunications equipment manufacturer shall make available to a common carrier on a timely and priority basis, at a reasonable and cost-effective charge, any support services or equipment required so as to permit compliance with the provisions of the Act. The responsibilities of common carrier support service providers and equipment manufacturers are added to the legislation to indicate that they have an important role in ensuring that court orders and authorizations are not frustrated.
Assistance and cooperation from support service providers and equipment manufacturers are increasingly important, as services and equipment become more sophisticated and as common carriers rely on "outside” companies to provide them with these components. Although the direct burden of compliance falls on common carriers, nevertheless statutory responsibilities are conferred upon these support service providers and equipment manufacturers without whose help the common carriers likely could not comply. One of the major objections to the compliance date and attendant penalty provisions raised in the past by representatives of the Regional Bell operating Companies (RBOC's) was the concern that local exchange car. riers must rely on equipment manufacturers and others in order to meet many of the requirements.
Under provisions of the Modified Final Judgment (MFJ) of the consent decree regarding the Government's antitrust case against AT&T, local exchange carriers are precluded from engaging in telecommunications equipment manufacturing. However, a Department of Justice memorandum concludes that Judge Greene's order would not be an impediment to a common carrier's effecting limited, noncommercial modifications to network facilities, services, or equipment, the sole purpose of which would be to prevent the frustration of statutorily-based court orders and authorizations designed to ensure effective law enforcement, the public safety, and the national security.
Section 3(e) states that the Attorney General of the United States shall have the authority to enforce the provisions of subsections (a), (b), (c), and (d) of section 3. In order to, avoid disparate enforcement actions throughout the country in ways that could be burdensome for common carriers, the responsibility for enforcing these provisions is vested in the Attorney General of the United States through the Department of Justice and the Offices of the various United States Attorneys.
In particular, the Attorney General is specifically given the authority to apply to an appropriate United States District Court for an order restraining or enjoining the provision of service by any common carrier who violates the foregoing subsections of section 3. Similarly, to ensure common carrier compliance, the Attorney General may apply for an order, such as a writ of mandamus, which mandates the cooperation of a provider of common carrier support services or a telecommunications equipment manufacturer pursuant to the provisions in subsection (d). The intent is that there be no excuse offered by common carriers that they cannot comply because of unresponsiveness on the part of such support service providers and equipment manufacturers. The Federal district courts are specifically given jurisdiction to issue such orders. Additionally, the Attorney General may request the Federal Communications Commission. (FCC) to assist in enforcing provisions of the Act. This provi. sion recognizes the wide-ranging authority of the FCC over common carriers and others in the telecommunications industry.
Section 3(f) specifies that any common carrier that violates section 3(a) shall be subject to a civil penalty of $10,000 per day for each day in violation. The Attorney General is authorized to file a civil action to collect, and the Federal district courts have jurisdiction to impose, such fines. The FCC may also impose regulatory sanctions or fines authorized by law.
Section 3(g) provides that the Attorney General is encouraged to consult with the FCC and common carrier representatives and to utilize common carrier standards bodies, associations, and other such organizations to discuss details of the requirements, such as those related to capacity, in order to facilitate compliance with the provisions of the Act. This subsection evidences an intention on the part of Government to help common carriers achieve compliance with as little difficulty as possible, and it the most cost-effective way possible. Through detailed discussions, narrow and technical questions from common carriers can be answered and other concerns addressed.
Such fora also may act as potential clearinghouses for promising, cost-effective technological approaches and solutions, which would likely reduce costly and duplicative independent efforts on the part of each common carrier. The FBI and other law enforcement agencies have been meeting with industry (largely common carrier) technical committees for nearly two year's in this regard, currently under the auspices of the Alliance for Telecommunications Industry Solutions' Electronic Communications Service Provider Committee (ECSPC). However, because of the voluntary basis and elective nature of participation in and commitment to this body, its lack of authority to require the implementation of solutions or to assign funding responsibility, and given that there is no clear legal mandate to fulfill government's requirements on a timely basis, these committees have not been effective to date in engendering the development, let alone the implementation, of the required solutions. With legislation mandating future compliance and addressing funding concerns, it is reasonable to assume that common carriers and others will utilize such committees in a more meaningful and beneficial fashion.
Section 3(h) states that the Federal Government shall pay common carriers for reasonable and cost-effective charges directly associated with the modifications required to assure common carrier compliance with the requirements of this. Act which are incurred within the three year period set for compliance.
The Federal Government has concluded that it should compensate common carriers for reasonable and cost-effective charges associated with devising and implementing the modifications required which remove the technological impediments and assure common carrier compliance with the government's requirements established in section 3(a). The remuneration covers charges incurred within the three year period set for compliance with regard to certain interim solutions to remove