Section 3(a)(4) 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 telecommunications 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 carriers 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 provision 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

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