the impediments that most concern the Government; for the cost of modifying existing networks, services, facilities, and features; and for research and development and testing efforts associated with making future networks, services, and features compliant with the government's requirements. Once solutions have been identified, it is expected that they would be incorporated into successive generations of service and, where feasible, into new services without additional charge to the Government. Section 3(i) sets forth definitions for sections 1-3 of the Act. The term "common carrier" means any person or entity engaged as a common carrier for hire, as defined by section 3(h) of the communications Act of 1934, and includes a commercial mobile service or interconnected service, as defined in section 6002(b) of Public Law 103-66. This definition encompasses such service providers as local exchange carriers, interexchange carriers, service "resellers," competitive access providers (CAPS), cellular carriers, personal communications services (PCS), satellite-based service providers, and any other common carrier who offers wireline or wireless service to the general public.

The term "provider of common carrier support services" meansany person or entity who provides services to a common carrier that are integral to processing, directing, forwarding or completing telephone calls or electronic communication transmissions. There are currently over one hundred such support service providers that provide common carriers with specialized support services.

The terms "wire communication" an "electronic communication" have the same meanings as set forth at 18 U.S.C. 2510(12) and 2510(12), respectively, under Title III, as amended by the ECPA.

The term "intercept" has the same meaning as set forth at 18 U.S.C. 2510(4), except that with regard to a common carrier's transmission of a communication encrypted by a subscriber, the common carrier shall not be responsible for ensuring the government agency's ability to acquire the plaintext of the communications content, unless the encryption was provided by the common carrier and the common carrier possesses the information necessary to decrypt the communication. The term "intercepts" means "the aural or other acquisition of the contents of any wire, electronic, or oral communication***." The term "contents" includes "any information concerning the substance, purport, or meaning of [a] *** communication." 18 U.S.C. 2510(8). The language in the definition of "intercept," as used in this legislation, is intended to clarify that a common carrier has no obligation to decrypt communications that have been encrypted by the subscriber, such that the conversation or data transmission can immediately be understood by the government, unless the encryption was provided by the common carrier and the carrier possesses the information necessary to decrypt the communication.

The term "concurrent with the transmission of the communication" means contemporaneous with the transmission of the communication, but it also includes, with regard to electronic communications, the ability of the government to acquire such communications at the conclusion of the transmission, and, with regard to call setup information, the ability to acquire such information either before, during, or immediately after the transmission of the communication.

The definition of "concurrent with the transmission of the communication" found in section 3(i)(6), is somewhat broader than term might imply on its face. The definition was broadened due to the varying feasibility of effectively intercepting electronic communications contemporaneously and the varying availability of call setup information contemporaneous with the transmission of the communication with which it is associated. Because of the difficulty of intercepting certain electronic communications concurrent with their transmission, the foregoing definition states that providing an ability for government agencies to intercept such information at the conclusion of the transmission will satisfy the requirement. The definition also specifies, with regard to call setup information 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 assure an ability to acquire this information before the transmission of the communication whenever reasonably feasible.

The term "call setup information" means the information generated which identifies the origin and destination of a wire or electronic communication placed to, or received by, the facility or service that is the subject of the court order or lawful authorization, including information associated with any telecommunications system dialing or calling features or services. For voice communications, this information is typically the electronic pulses, audio tones, or signaling messages that identify the numbers dialed or otherwise transmitted, or caused to be transmitted. In pen register investigations, these are the pulses, tones, or messages which identify the numbers dialed from the facility that is the subject of the court order or authoriza

tion. In trap and trace investigations, these are the incoming pulses, tones, or messages which identify the originating number of the facility from which the call was placed and which are captured when directed to the facility that is the subject of the court order or authorization.

With regard to electronic communications, the information is that generated during the establishment of communications or the transmission of a protocol data unit, such as a datagram, that identifies the origin and destination of the communication. For data services, this information is typically the source (calling) address and destination (called) address contained in fields of the data unit, such as the header of a frame or packet.

The call setup information also encompasses numbers identified incidental to calls where calling features or services are used.

The term "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.

SECTION 4. COMMUNICATIONS PRIVACY IMPROVEMENT AND MONITORING CLARIFICATION Section 4 includes several amendments to Chapter 119, United States Code, which includes Title III, with regard to communications privacy improvements and clarifications concerning monitoring of electronic communications.

In section 4, amendments are made to the definitions found in 18 U.S.C. 2510(1) and (12). The purpose of the amending language is to provide communications privacy protection to cordless telephone communication transmissions occurring in the radio link between the telephone handset and base station.

Because of the ease with which communications occurring in the radio portion of cordless telephone transmissions could be overheard through the use of commercial radio receivers, scanners, and similar cordless telephones operating in the same area, Congress chose not to confer statutory privacy protection upon the radio portion of cordless telephone communications or to criminalize the interception of same in the 1986 ECPA amendments to Title III. However, since then, advances in cordless telephony have resulted in the mass-marketing of various types of cordless telephones, many of which are considerably more difficult to intercept than the earlier models. Because newer versions and types of cordless telephones incorporate features and technology that typically afford greater security to the user, there now exists a basis for providing full statutory privacy protection to cordless telephones. Even absent the prior statutory privacy protection, the view that certain cordless telephone users nonetheless retain Fourth Amendment privacy protection under the "reasonable expectation of privacy" criteria has been asserted. See United States v. Smith, 978 F.2d 171, 176 (5th Cir. 1992). This amendment now confers the same communications privacy protection for the millions of cordless telephone users as is currently afforded to cellular telephone users.

The penalty provisions for intercepting cordless telephones are also made consistent with those for intercepting cellular telephones, by the amendments to 18 U.S.C. 2511(4)(b)(i) and (ii) set forth in this section.

Section 4 also includes language which amends 18 U.S.C. 2510(16), communications deemed to be "readily accessible to the general public" with regard to radio communications, and the exceptions thereto. The excepted categories currently covered under section 2510(16)(A) (E) enjoy privacy protection because they usually are not susceptible to interception by the general public. Added to these categories is the new category of "electronic communication." The intention is to provide clarification that there is protection for all forms of electronic communication, including data, even when they may be transmitted by radio.

Section 4 also amends the penalty provisions set forth in 18 U.S.C. 2511(4)(b) by adding language that specifies a similar penalty for intercepting communications "transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of such communication." The purpose of the amendment is to treat communications using such modulation techniques in the same fashion as those where encryption has been employed to secure communications privacy.

Finally, section 4 amends 18 U.S.C. 2511(2)(a)(i) by clarifying that it is not unlawful for a switchboard operator, officer, employee, or agent of a wire or electronic communication service to intercept, disclose, or use an "electronic communication," in the same fashion as a wire communication, in the normal course of his employment while engaged in any activity which is necessary incident to the rendition of his service or to the protection of the rights or property of the provider of the serv

ice. This technical correction is designed to put the handling of electronic and wire communications on the same footing.

LAW ENFORCEMENT REQUIREMENTS FOR THE SURVEILLANCE OF ELECTRONIC

COMMUNICATIONS

INTRODUCTION

In July 1992, the Federal Bureau of Investigation, in cooperation with federal, state, and local law enforcement agencies, published a document entitled Law Enforcement Requirements for the Surveillance of Electronic Communications. The document outlined law enforcement's nine requirements for the surveillance of electronic communications. As a result of discussions between law enforcement and industry, law enforcement has prepared clarifications and examples to support the requirements contained in the July 1992 document. These clarifications and examples respond to specific questions raised by the electronic communications industry. This document states law enforcement's nine requirements and provides supporting clarifications and examples, thereby superseding the July 1992 document.

BACKGROUND

The primary mission of federal, state, and local law enforcement agencies is to enforce the laws of their respective jurisdictions. Various federal and state laws authorize the interception of electronic communications for the investigation of serious crimes. This extraordinary technique is critical to law enforcement's mission. Law enforcement agencies can conduct lawfully authorized electronic surveillance when traditional investigative techniques are determined to be ineffective or too dangerous.

To conduct lawful electronic surveillance, law enforcement agencies require access to the communications associated with the subject of investigation (that is, intercept subject). In this process, law enforcement agencies rely on the cooperation and assistance of the providers of electronic communications services. A number of legal instruments permit law enforcement to collect information on or about a subject's electronic communications. These instruments include court orders (such as pen register, Title III, traps, and traces), search warrants, subpoenas, and other lawful authorizations.

Recent and continuing advances in electronic communications technology and services challenge, and at times erode, the ability of law enforcement agencies to fully implement lawful orders to intercept communications. These advances also challenge the ability of electronic communications service providers to meet their assistance responsibilities. The law enforcement community needs the continued cooperation of electronic communications service providers to meet the challenges of conducting electronic surveillance on emerging and future technologies. Law enforcement is not seeking to slow the pace of the evolution of electronic communications. In fact, advanced communications features and services benefit law enforcement and the American public. As new technologies and services emerge, law enforcement is attempting only to ensure that capabilities exist for protecting public safety through the use of lawful interception.

SCOPE

This document presents the requirements of federal, state, and local law enforcement agencies to conduct lawful electronic surveillance with regard to users of electronic communications services. Its purpose is (1) to serve as a framework for continued cooperation with the electronic communications industry in the development of approaches for meeting law enforcement's electronic surveillance requirements, and (2) to preserve electronic surveillance capabilities associated with intercept authority as established by applicable federal and state laws.

The requirements are intended to set out key elements needed for the technical and operational implementation of lawful interceptions of electronic communications. Although the requirements are intended to be broad enough to address existing or future communications technologies, the clarifications and examples supporting the requirements may be specific to a current technology or service. As additional technologies emerge, new communications services and features will be introduced after the publication of this document. Consequently, the information presented in this document may not be all-inclusive. Law enforcement recognizes the need to ensure an understanding of the requirements as the electronic communications industry accommodates the requirements in the development of technologies and services. Law enforcement also understands the need to periodically clarify the

information presented in this document to account for new services and features identified by service providers.

Access to the communications of an intercept subject is made available by the service provider in accordance with a lawful authorization from law enforcement. As is the case under current statute, "No cause of action shall lie in any court against any provider of wire or electronic communications service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order or certification under this chapter."1 Law enforcement's requirements in no way alter the provisions of existing statutes.

DOCUMENT ORGANIZATION AND MAINTENANCE

The remainder of this document is organized into two sections followed by a glossary. Section 2 presents law enforcement's nine requirements for the surveillance of electronic communications. These_nine_requirements are listed in bold type and are the same as those presented in Law Enforcement Requirements for the Surveillance of Electronic Communications, July 1992. The words used to express Requirements 1, 3, and 5 have been modified to better convey their intent based on comments received from industry. The textual modifications are as follows:

• In Requirement 1, the original text was modified to clarify that the requirement is for access to communications transmitted to and from any identifier associated with the intercept subject (not just the identifier of the intercept subject's terminal equipment). Text was also added to clearly convey that a service provider served with a lawful authorization is responsible for providing law enforcement with access to an intercept subject's communications while the subject is within service areas operated by that service provider. Access is required as long as the service provider maintains access to the intercept subject's communications. Law enforcement is not asking for an automatic, seamless, nationwide intercept capability for subjects traveling across multiple service provider boundaries. In all circumstances, access to network features used to intercept a subject's communications is controlled by service providers and not by law enforcement agencies.

• In Requirement 3, the term "remote" and the words "away from the intercept access point and/or the intercept subject's terminal equipment" have been deleted to remove confusion regarding the intent of this requirement. The changes reinforce the intent of the requirement. Once a service provider has access to the intercepted communications, law enforcement requires delivery of the communications to a designated monitoring facility. Again, access to any intercept feature is controlled by the service provider and not by law enforcement agencies. • In Requirement 5, the words "prior to intercept implementation and during the intercept" were moved to the end of the sentence to clarify the requirement. Requirement 5 states that information is required to verify the association of the intercepted communications with the intercept subject. This requirement also states that information on a subject's services and features is required and may be requested before intercept implementation or during the intercept.

Section 3 provides a set of supporting clarifications and examples for each requirement. A glossary containing a list of key words and phrases used in the requirements follows Section 3.

Due to the continuing evolution of electronic communications technology, this document will be reviewed periodically and updated as needed. Any comments or recommendations should be forwarded to:

Assistant Director,

Information Resources Division,

Federal Bureau of Investigation,
JEH FBI Building,

Washington, DC

Requirement 6. Law enforcement agencies require service providers to make provisions for implementing a number of simultaneous intercepts. (Intercept demand will be estimated through a cooperative industry and law enforcement effort.)

118, U.S.C. 2511(2)(c)(ii)

Requirement 7. Law enforcement agencies require service providers to expeditiously provide access to the communications of the intercept subject.

Requirement 8. Over the intercept period, law enforcement agencies require that the reliability of the services supporting the intercept at least equals the reliability of the communication services provided to the intercept subject.

Requirement 9. Law enforcement agencies require the quality of service of the intercepted transmissions forwarded to the monitoring facility to comply with the performance standards of the service providers.

CLARIFICATIONS AND EXAMPLES

The nine requirements presented in Section 2 are restated in this section in bold type. Paragraphs containing clarifications and examples follow each requirement as a means for conveying overall intent. Law enforcement's surveillance authorities include all forms of electronic communications. However, as a result of intensive discussions with the telecommunications industry, most of the clarifications and examples in this section are in terms of telephony, but apply equally to all electronic communications service providers. The clarifications are only illustrative and are an aid for interpreting the intention of requirement. The nine requirements in bold type fully encompass and reflect law enforcement's requirements for lawful intercepts and are not intended to be replaced or limited by the clarifications and examples provided in this section.

REQUIREMENT 1 (COMMUNICATIONS ACCESS)

Law enforcement agencies require access to the electronic communications transmitted, or caused to be transmitted, to and from the number, terminal equipment, or other identifier associated with the intercept subject throughout the service areas operated by the service provider served with a lawful authorization. Law enforcement agencies also require access to generated call setup information necessary to identify the calling and called parties. Law enforcement agencies will coordinate delivery of these communications with the service provider in accordance with Requirement 3 for each service area.

The primary requirement of law enforcement agencies is for access to the electronic communications transmitted, or caused to be transmitted, to and from the intercept subject. In all circumstances, access to network features used to intercept a subject's communications is controlled by service providers and not by law enforcement agencies. The requirement for access to an intercept subject's communications by law enforcement does not imply automatic activation or deactivation of intercepts. Law enforcement agencies will continue to interface with service provider security personnel to request intercept activation and deactivation.

Under Requirement 1, access to an intercept subject's communications includes call setup information and call content. Law enforcement agencies need access to call setup information (for example, originating line/number identification, terminating line/number identification) for all completed and attempted calls. An attempted call is a call that was initiated, but failed to establish a connection between the calling and called parties (for example, when a busy signal was received). Access to call content is required for calls placed by and to the intercept subject, including calls that have been redirected or have multiple call recipients. The obligation of service providers to provide access when custom calling features are invoked depends on whether the service provider that received the authorized intercept request maintains access to the call.

The requirement for lawful access to call content and call setup information also applies to mobile telecommunications services. Law enforcement requires access to an intercept subject's communications throughout the service areas operated by the service provider served with a lawful authorization. With the use of emerging technologies, the location of an intercept subject's access to the network may vary during a call or call attempt (for example, while roaming or when redirecting calls). Law enforcement recognizes the need to coordinate the delivery of communications with service providers before interception occurs.

CALL SETUP INFORMATION

Law enforcement agencies require access to all available call setup information for all attempted and completed calls originated by or terminating to the intercept subject. Call setup information includes, but is not limited to the following: