+NOTE: MY COMMENTS ARE FRAMED BY PLUS SIGNS+

Diagram of The Digital Telephony Bill .......72

Introduction ................................7 3

Title 1, Interception of Digital And Other Communications..............................74

Statute and Regulation Diagram ..............77

Title 2, Amendments to Title 18, United States Code .......................................7 9

18 U.S.C. 1029 (As amended by the Digital Telephony Bill) ............................81

Title 3, Amendments to the Communications Act of 1934 ....................................82

TITLE I, INTERCEPTION OF DIGITAL AND OTHER COMMUNICATIONS

[Creates a new chapter (Chapter 9) within Title 47 of the United States Code. Title 47 deals with "Telegraphs, Telephones & Radio Telegraphs." The following section numbers belong to the Digital Telephony Bill. The section numbers in Chapter 9 actually start at 1001. ]

SECTION 101. SHORT TITLE

This title may be cited as the "Communications Assistance for Law Enforcement Act".

Section 102. DEFINITIONS

For purposes of this title -- (1) The terms defined in section 2510 of title 18, United States Code, have, respectively, the meanings stated in that section. (2) The term "call-identifying information" means dialing or signaling information that identifies the origin, direction, destination, or termination of each communication generated or received by a subscriber by any means of any equipment, facility, or service of a telecommunications carrier. (3) The term "Commission" means the Federal Communications Commission. (4) The term "electronic messaging services" means software- based services that enable the sharing of data, images, sound, writing, or other information among computing devices controlled by the senders or recipients of the messages. (5) 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. (6) The term "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 -- (i) a service that permits a customer to retrieve stored information for storage in, information storage facilities; (ii) electronic publishing; and (iii) electronic message services; but (C) does not include any capability for a telecommunications carrier's internal management, control or operation of its telecommunications network. (7) The term "telecommunications support services" means a product, software, or service used by a telecommunications carrier for the internal signaling or switching functions of its telecommunications network. (8) The term "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; 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) or (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 title; but (C) does not include-- (i) persons or entities insofar as they are engaged in providing information services; and (ii) any class of category of telecommunications carriers that the Commission exempts by rule after consultation with the Attorney General.

+A telecommunications carrier includes local and long distance phone companies, as well as cellular and PCS providers. An information service provider seems to include any online data base, internet provider or a BBS.+

SECTION 103. ASSISTANCE CAPABILITY REQUIREMENTS

(a) Capability Requirements -- Except as provided in subsections (b), (c), and (d) of this section and sections 108(a) and 109(b) and (d), a telecommunications carrier shall ensure that its equipment, facilities, or services 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 pursuant to a court order or other lawful authorization 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 equipment, facility, or service, or at such later time as may be acceptable to the government; (2) expeditiously isolating and enabling the government pursuant to a court order or other lawful authorization, to access call identifying information that is reasonably available to the carrier-- (A) before, during or immediately after the transmission of a wire or electronics communication (or at such later time as may be acceptable to the Government); and 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 of title 18, United States Code), 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, pursuant to a court order or other lawful authorization, in a format such that they may be transmitted by means of equipment, facilities or services procured by the government to a location other than the premises of the carrier; and (4) facilitating authorized communications 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 title not authorize any law enforcement agency or officer -- (A) to require any specific design of equipment, facilities, services, features, or system configurations to be adopted by any provider of a wire or electronic communication service, any manufacturer or telecommunications equipment, or any provider of telecommunications support services; or (B) to prohibit the adoption of any equipment, facility, service or feature by any provider of a wire or electronic communication service, any manufacturer or telecommunications equipment, (2) INFORMATION SERVICES; PRIVATE NETWORKS AND INTER- CONNECTION SERVICES AND FACILITIES. -- The requirements of subsection (a) do not apply to -- (A) information services; or (B) equipment, facilities, or services that support the transport or switching of communications for private networks or for the sole purpose of interconnecting telecommunications carriers. (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. -- (including those described in sections 2518 (7) or (11)(b) and 3125 of title 18, United States Code, and section 1805 (e) of title 50 of such Code), a carrier at its discretion may comply with subsection (a)(3) by allowing monitoring at its premises if that is the only means of accomplishing the interception or access. (d) MOBILE SERVICES ASSISTANCE REQUIREMENTS.-- A telecommunications carrier that is a provider of commercial mobile service (as defined in $332(d) of the Communications Act of 1934) 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 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 made available to the government (before, during, or immediately after the transfer of such communications) identifying the provider of a wire or electronic communication service that has acquired access to the communications.

+Section 103 is the backbone of the digital telephony bill. It spells out what the government requires of the carriers and what it does not. Information services seem exempt for now. That carves out an exception for devices like the internet phone. Expect this code section to be amended as voice over the net becomes more common. Note, too, that this code section does nothing to guarantee a person's right to use encryption. It just states that a carrier won't be held responsible for decrypting traffic that it passes. (As if Sprint could decrypt a PGP encoded message.)+

SECTION 104. NOTICES OF CAPACITY REQUIREMENTS.

(a) NOTICES OF MAXIMUM AND ACTUAL CAPACITY REQUIREMENTS.-- (1) IN GENERAL.-- Not later than 1 year after the date of enactment of this title, after consulting with State and local law enforcement agencies, telecommunications carriers, providers of telecommunications support services, and manufacturers of telecommunications equipment, and after notice and comment, the Attorney General shall publish in the Federal Register and provide to appropriate telecommunications industry associations and standards-setting organizations-- (A) notice of the actual number of communication interception, pen register, and trap and trace devices, representing a portion of the maximum capacity set forth under subparagraph (B), that the Attorney General estimates that government agencies authorized to conduct electronic surveillance may conduct and use simultaneously by the date that is 4 years after the date of enactment of this title; and (B) 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 after the date that is 4 years after the date of enactment of this title. (2) BASIS OF NOTICES.-- The notices issued under paragraph (1)-- (A) may be based upon the type of equipment , type of service, number of subscribers, type or service or carrier, nature of service area, or any other measure; and (B) shall identify, to the maximum extent practicable, the capacity required at specific geographic locations. (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 title, whichever is longer, a telecommunications carrier shall, subsection (e) ensure that its systems are capable of-- (A) accommodating simultaneously the number of interceptions, pen registers, and trap and trace devices set forth in the notice under subsection (a)(1)(A); and (B) expanding to the maximum capacity set forth in the notice under subsection (a)(1)(B). (c) NOTICES OF INCREASED MAXIMUM CAPACITY REQUIREMENTS.-- (1) NOTICE.-- The Attorney General shall periodically publish in the Federal Register, after notice and comment, notice of any necessary increases in the maximum capacity requirement set forth in the notice under subsection (a)(1)(b). (2) COMPLIANCE.-- Within 3 years after notice of increased maximum capacity requirements is published under paragraph (1), or within such longer time period as the Attorney General may specify, a telecommunications carrier shall, subject to subsection (e), ensure that its systems are capable of expanding to the increased maximum capacity set forth in this notice. (d) CARRIER STATEMENT.-- Within 180 days after the publication by the Attorney General of a notice of capacity requirements pursuant to subsection (a) or (c), a telecommunications carrier shall submit to the Attorney General a statement identifying any of its systems or services that do not have the capacity to simultaneously the number of interceptions, pen registers, and trap and trace devices set forth in the notice under such subsection. (e) REIMBURSEMENT REQUIRED FOR COMPLIANCE.-- The Attorney General shall review the statements submitted under subsection (d) and may, subject to the availability of appropriations, agree to reimburse a telecommunications carrier for costs directly associated with modifications to attain such capacity requirement that are determined to be reasonable in accordance with section 109(e), such modification, such carrier shall be considered to be in compliance with the capacity notices under subsection (a) or (c).

Section 104 requires that the government tell the public and industry just how much hardware and software it wants. The Justice Department, therefore, will have to argue for their bugging equipment in public. Perhaps. We may find that a certain amount of equipment gets installed without much public discussion. I think the only debate will be between the carriers and the government over costs and technical matters. The carrier will probably install as many devices as the government wants, as long as they are compensated for it and so long as the equipment doesn't interfere with the telco's operation. The carrier may not want to put in the equipment but they really don't have a choice.

Section 105 Systems Security and Integrity

A telecommunications carrier shall ensure that any interception of communications or access to call-identifying information effected within its switching premises can be activated only in accordance with a court order or other lawful authorization and with the affirmative intervention of an individual officer or employee of the carrier acting in accordance with regulations prescribed by the Commission.

+I'm confused by this. I've hear some privacy wonks say that this is a great provision. They say it prevents the government from snooping at will. Yet the whole idea of this bill is to enable remote monitoring at will. Each intercept requires telco notification and approval. The telco, in fact, is charged with ensuring that all such intercepts meet regs and specs. So, MCI tells the FBI to get lost if the feds don't have the right paperwork? In reality, it is probably as simple as faxing a warrant to the carrier when needed. A more difficult situation arises if the telco notices their system being used without authorization. What then? In addition, many central offices aren't staffed around the clock. There's too many of them. Pacific Bell alone has over 800 dial tone producing CO's and remotes. The telco, therefore, will need to be able to remotely turn on the monitoring equipment. That will create another gateway into the system.+

Section 106 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 or its telecommunications transmission and switching equipment and its providers of telecommunications support services for the purposes of ensuring that current and planned equipment, facilities, and services comply with the capability requirements of section 103 and the capacity requirements identified by the Attorney General under section 104. (b) Cooperation.-- Subject to sections 104(e), 108(a), and 109(b) and (d), 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, facilities, or services such features or modifications are necessary to permit such carriers to comply with the capability requirements of section 103 and the capacity requirements identified by the Attorney General under section 104.

+Gets the manufacturers on board. Big Brother want this bill bad.+

Section 107. 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 103 , 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, with representatives of users of telecommunications equipment, facilities, and services, and with State utility commissions. (2) COMPLIANCE UNDER ACCEPTED STANDARDS. -- A telecommunications carrier shall be found to be in compliance with the assistance capability requirements under section 103, and a manufacturer of telecommunications transmission or switching equipment or a provider of telecommunications support services shall be found in compliance with section 106, if the carrier, manufacturer, or support service provider is in compliance with publicly available technical requirements or standards adopted by an industry association or standard-setting organization, or by the Commission under subsection (b), to meet the requirements of section 103. (3) ABSENCE OF STANDARDS.-- The absence of technical requirements or standards for implementing the assistance capability requirements or standards for implementing the assistance capability requirements of section 103 shall not-- (A) preclude a telecommunications carrier, manufacturer, or telecommunications support services provider from deploying a technology or service; or (B) relieve a carrier, manufacturer, or telecommunications support services provider of the obligations imposed by section 103 or 106, as applicable. (b) COMMISSION AUTHORITY. -- 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 rule, technical requirements or standards that-- (1) meet the assistance capability requirements of section 103 by cost-effective methods; (2) protect the privacy and security of communications not authorized to be intercepted; (3) minimize the cost of such compliance on residential ratepayers; (4) serve the policy of the United States to encourage the provision of new technologies and services to the public; and (5) provide a reasonable time and conditions for compliance with and the transition to any new standard, including defining the obligations of telecommunications carriers under section 103 during any transition period. (c) EXTENSION OF COMPLIANCE DATE FOR EQUIPMENT, FACILITIES, AND SERVICES.-- (1) PETITION.-- A telecommunications carrier proposing to install or deploy, or having installed or deployed, any equipment, facility or service prior to the effective date of section 103 may petition the Commission for 1 or more extensions of the deadline for complying with the assistance capability requirements under section 103. (2) GROUNDS FOR EXTENSION.-- The Commission may, after consultation with the Attorney General, grant an extension under subsection, if the Commission determines that compliance with the assistance capability requirements under section 103 is not reasonably achievable through application of technology available within the compliance period. (3) LENGTH OF EXTENSION.-- An extension under this subsection 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 103; 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 equipment, facility, or service is used.

+An industry wide effort is called for to make sure that the entire public switched telephone network gets wired according to government specifications. Calls for the telecom industry to set standards for developing the needed equipment. The FCC gets charged with setting standards if industry doesn't. The government needs the latest technology for all this to work. Most of us big city folks are living under System 7 and CLASS: Custom Local Area Signaling Service. Specific circuit boards enable caller ID as well as many advanced services when installed in digital switches like a 5ESS or DMS 100. It's my guess that the spooks want a board designed for existing switches that give them the capabilities they want. Along with the software to control it. The other possibility is a black box approach. You dedicate and design a PC to work along with the switch for a specific purpose. In any case, such equipment may not be too difficult to design since the telco can already do what the Feds want now. The telco, of course, wants to make sure that any such equipment works with the least interference to its switch or its network. Such a device will have a lot of people involved with its design and sales. No doubt there will be product literature to read and patents to look up. . .+

SECTION 108 ENFORCEMENT ORDERS

(a) GROUNDS FOR ISSUANCE.-- A court shall issue an order enforcing this title under section 2522 of title 18, United States Code, 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 title is reasonably available achievable through the application of available technology to the equipment, facility or service at issue or would have been reasonably achievable if timely action had been taken. (b) TIME FOR COMPLIANCE.-- Upon issuing an order enforcing this title, 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. (c) LIMITATIONS.--An order enforcing this title may not -- (1) 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 the Attorney General has agreed to reimburse such carrier. (2) require any telecommunications carrier to comply with the capability assistance requirement of section 103 if the Commission has determined (pursuant to section 109(b)(1) that compliance is not reasonably achievable, unless the Attorney General has agreed (pursuant to section 109(b)(2) to pay the costs described in section 109(b)(2)(A); or (3) require a telecommunications carrier to comply with assistance capability requirement of section 103, any equipment, facility, or service deployed on or before January 1, 1995, unless -- (A) the Attorney General has agreed to pay the telecommunications carrier for all reasonable costs directly associated with modifications necessary to bring the equipment, facility, or service into compliance with those requirements; or (B) the equipment, facility, or service has been replaced or significantly upgraded or otherwise undergoes major modification. No bill is much good unless there's a penalty. Well, here it is. Get your act together Mr. Telco or the Feds will drag you into court. There is some leeway for a telco with older switches that can't be economically retrofitted.

SECTION 109 PAYMENT OF COSTS OF TELECOMMUNICATIONS CARRIERS TO COMPLY WITH CAPABILITY REQUIREMENTS

(a) EQUIPMENT, FACILITIES, AND SERVICES DEPLOYED ON OR BEFORE JANUARY 1, 1995. -- The Attorney General may, subject to the availability of appropriations, agree to pay telecommunications carriers for all reasonable costs directly associated with the modifications performed by carriers in connection with equipment, facilities, and services installed or deployed on or before January 1, 1995, to establish the capabilities necessary to comply with section 103. (b) EQUIPMENT, FACILITIES, AND SERVICES DEPLOYED AFTER JANUARY 1, 1995. -- (1) DETERMINATIONS OF REASONABLE ACHIEVABLE. -- The Commission, on petition from a telecommunications carrier or any other interested person, and after notice to the Attorney General, shall determine whether compliance with the assistance capability requirements of section 103 is reasonably achievable with respect to any equipment, facility, or service installed or deployed after January 1, 1995. The Commission shall make such determination within one year after the date such petition is filed. In making such determination, the Commission shall determine whether compliance would impose significant difficulty or expense on the carrier or on the users of the carrier's systems and shall consider the following factor: (A) The effect on public safety and national security. (B) The effect on rates for basic residential telephone service. (C) The need to protect the privacy and security of communications not authorized to be intercepted. (D) The need to achieve the capability assistance requirements of section 103 by cost-effective methods. (E) The effect on the nature and cost of the equipment, facility, or service at issue. (F) The effect on the operation of the equipment, facility, or service at issue. (G) The policy of the United States to encourage the provision of new technologies and services to the public. (H) The financial resources of the telecommunications carrier. (I) The effect on competition in the provision of telecommunications services. (J) The extent to which the design and development of the equipment, facility, or service was initiated before January 1, 1995. (K) Such other factors as the Commission determines are appropriate. (2) COMPENSATION.-- If compliance with the assistance capability requirements of Section 103 is not reasonably achievable with respect to equipment, facilities, or services deployed after January 1, 1995 (A) the Attorney General, on application of a telecommunications carrier, may agree, subject to the availability of appropriations, to pay the telecommunications carrier for the additional reasonable costs of making compliance with such assistance capability requirements reasonably achievable; and (B) if the Attorney General does not agree to pay such costs, the telecommunications carrier shall be deemed to be in compliance with such capability requirements. (c) ALLOCATION OF FUNDS FOR PAYMENT.Q The Attorney General shall allocate funds appropriated to carry out this title in accordance with law enforcement priorities determined by the Attorney General. (d) FAILURE TO MAKE PAYMENT WITH RESPECT TO EQUIPMENT FACILITIES, AND SERVICES DEPLOYED ON OR BEFORE JANUARY 1, 1995.QIf a carrier has requested payment in accordance with procedures promulgated pursuant to subsection (e), and the Attorney General has not agreed to pay the telecommunications carrier for all reasonable costs directly associated with modifications necessary to bring any equipment, facility, or service deployed on or before January 1, 1995, into compliance with the assistance capability requirements of section 103, such equipment, facility, or service shall be considered to be in compliance with the assistance capability requirements of section 103 until the equipment, facility, or service or replaced or significantly upgraded or otherwise undergoes major modification. (e) COST CONTROL REGULATIONS.Q (1) IN GENERAL The Attorney General shall, after notice and comment, establish regulations necessary to effectuate timely and cost-efficient payment to telecommunications carriers under this title, under chapters 119 and 121 of title 18, United States Code, and under the Foreign Intelligence Surveillance Act of 1978 (60 U.S.C. 1801 et seq.). (2) CONTENTS OF REGULATIONSQThe Attorney General, after consultation with the Commission, shall prescribe regulations for purposes of determining reasonable costs under this title. Such regulations shall seek to minimize the cost to the Federal Government and shallQ (A) permit recovery from the Federal Government of-- (i) the direct costs of developing the modification described in subsection (a), of providing the capability requested under subsection (b)(2), or of providing the capacities requested under section 104(e) , but only to the extent that such costs have not been recovered from any other governmental or non governmental entity; (ii) the costs of training personnel in the use such capabilities or capacities, and (iii) the direct costs of deploying or installing such capabilities or capacities; (B) in the case of any modification that may be useful for any purpose other than lawfully authorized electronic surveillance by a law enforcement agency of a government permit recovery of only the incremental cost of making the modification suitable for such law enforcement purposes, and (C) maintain the confidentiality of trade secrets. (3) SUBMISSION OF CLAIMS.QSuch regulations shall require any telecommunications carrier that the Attorney General has agreed to pay for modifications pursuant to this section that has installed or deployed such modification to submit to the Attorney General a claim for payment that contains or is accompanied by such information as the Attorney General may require.

The government agrees to pay for most of what they want. The telcos are in a bad way. They may not like the law but they can't ignore it. Most of these companies, after all, are subject to federal regulation in some part of their operations. Speaking of regulations, this section creates plenty. The Digital Telephony Bill might become a bureaucratic nightmare. Didn't the Newtmeister want a one year freeze on all new regs? That would panic everybody. All the information used to develop the regs and reports should be publicly available but let's wait and see.

SECTION 110 AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated to carry out this title a total of $500,000,000 for fiscal years 1995, 1996, 1997, and 1998. Such sums are authorized to remain available until expended.

This bill creates a half billion dollar industry. Consultants, programmers, switch technicians, telco employees and the feds will all be involved. (As well as the hacker community) There will probably be newsletters, articles and conventions relating to compliance. Such fun. Count on the feds' equipment and procedures to be compromised. A system allowing one to intercept a specific call, reroute it, and then listen in on the conversation itself, may prove an irresistible target to many. It's my understanding that REMOBS is set up on a case by case basis. An individual wiretap gets set up and taken down as the need arises. But we are talking here about a permanently installed system with dedicated ports. The FBI may even get bugged themselves by hackers or, more probably, other governmental agencies. We'll know more when the regs come out and we can guess about the equipment. For all we know, the FBI and Bellcore may be conducting field trials right now.

SECTION 111. EFFECTIVE DATE

(a) IN GENERAL.QExcept as provided in subsection (b), this title shall take effect on the date of enactment of this Act. (b) ASSISTANCE CAPABILITY AND SYSTEM SECURITY AND INTEGRITY REQUIREMENTS.QSections 103 and 105 of this title shall effect on the date that is 4 years after the date of enactment of this Act.

SECTION 112 REPORTS

(a) REPORTS BY THE ATTORNEY GENERAL (1) IN GENERAL.QOn or before November 30, 1995 and on or before November 30 of each year thereafter, the Attorney General shall submit to Congress and make available to the public a report on the amounts paid during the pre-fiscal year to telecommunications carriers under sections 104(e) and 109. (2) CONTENTS.QA report under paragraph (1) shall includeQ (A) a detailed accounting of the amounts paid to each carrier and the equipment, facility, or service for which the amounts were paid; and (B) projections of the amounts expected to be paid in the current fiscal year, the carrier to which payment is expected to be made, and the equipment, facilities, or services for which payment is expected to be made. (b) REPORT BY THE COMPTROLLER GENERAL.-- (1) PAYMENT FOR MODIFICATIONS.QOn or before April 1, 1996, and every 2 years thereafter, the Comptroller General of the United States, after consultation with the Attorney General and the telecommunications industry, shall submit to the Congress a reportQ (A) describing the type of equipment, facilities, and services that have been brought into compliance under this title, and (B) reflecting its analysis of the reasonableness and cost- effectiveness of the payments made by the Attorney General to telecommunications carriers for modifications necessary to ensure compliance with this title. (2) COMPLIANCE COST ESTIMATES-- A report under paragraph (1) shall include the findings and conclusions of the Comptroller General on the costs to be incurred by telecommunications carriers to comply with the assistance capability requirements of section 103 after the effective date of such section 103, including projections of the amounts expected to be incurred and a description of the equipment, facilities, or services for which they are expected to be incurred.

TITLE IIQAMENDMENTS TO TITLE 18, UNITED STATES CODE

SECTION 201. COURT ENFORCEMENT OF COMMUNICATIONS ASSISTANCE FOR LAW ENFORCEMENT ACT.

(a) COURT ORDER UNDER CHAPTER 119.QChapter 119 of title 18, United States Code, is amended by inserting after section 2521 the following new section:

$2522. Enforcement of the Communications Assistance for Law Enforcement Act (a) ENFORCEMENT BY COURT ISSUING SURVEILLANCE ORDER.Q a court authorizing an interception under this chapter, a State statute, or the Foreign intelligence Surveillance Act of 1978 (60 USC 1801 et seq.) or authorizing use of a pen register or a tap and trace device under chapter 206 or a State statute finds that a telecommunications carrier has failed to comply with the requirements of the Communications Assistance for Law Enforcement Act, the court may, in accordance with section 108 of such act, direct that the carrier comply forthwith and may direct that the provider of support services to the carrier or the manufacturer of the carrier's transmission or switching equipment furnish forthwith the modifications necessary for the carrier to comply. (b) ENFORCEMENT BY APPLICATION BY ATTORNEY GENERAL.-- may, in a civil action in the appropriate United States district court, obtain an order, in accordance with section 108 of the Communications Assistance for Law Enforcement Act, directing that a telecommunications carrier, a manufacturer of telecommunications transmission or switching equipment, a provider of telecommunications support services comply with such Act. (c) CIVIL PENALTY In General.- A court issuing an order under the section against a telecommunications carrier, a manufacture of telecommunications transmission or switching equipment or a provider of telecommunications support services 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.QIn determining whether to impose a civil penalty and in determining its amount, the court take into accountQ "(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. "(d) DEFINITIONS.QAs used in this section, the terms defined in section 102 of the Communications Assistance for Law Enforcement Act have the meanings provided, respectively, in section." (b) CONFORMING AMENDMENT.Q (1) Section 2518(4) of title 18, United States Code amended by adding at the end the following new sentence "Pursuant to section 2522 of this chapter, an order may also be issued to enforce the assistance capability and capacity requirements under the Communications Assistance for Enforcement Act.". (2) Section 3124 of such title is amended by adding at the end the following new subsection: "(f) COMMUNICATIONS ASSISTANCE ENFORCEMENT ORDERS Pursuant to section 2622, an order may be issued to enforce the assistance capability and capacity requirements under the Communications Assistance for Law Enforcement Act.". (3) The table of sections at the beginning of chapter of title 18, United States Code, is amended by inserting the item pertaining to section 2521 the following new item: "2622. Enforcement of the Communications For Law Enforcement Assistance Act." Another enforcement order? Didn't we just see one in section 108? we did, but that was for Chapter 9 of Title 47. The section above applies to Title 18 in Chapter 119, popularly known as the Electronic Communications Privacy Act. The E.C.P.A. is contained in 18 U.S.C. 2510 et seq. It's all about wiretaps and electronic monitoring. Makes great reading if you have the time. Section 201 deals with courts that are actually ordering a wiretap. They can impose penalties on carriers who can't arrange an interception because they haven't yet complied with the Digital Telephony Bill. Section 108, on the other hand, does not depend on a wiretap. It is, instead, a general enforcement section. It lets the feds sue a carrier who hasn't complied with the "Communications Assistance for Law Enforcement Act" by a certain amount of time.  

SECTION 202 CORDLESS TELEPHONES

(a) DEFINITIONSQSection 2510 of title 18, United States Code, is amendedQ (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) PENALTYQSection 2511 of title 18, United States is amendedQ (1) in subsection (4)(b)(i) by inserting a "cordless communication that is transmitted between the cordless phone 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,".

SECTION 203 RADIO-BASED DATA COMMUNICATIONS

Section 2510(16) of title 18, United States Code, is amended Q (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;".

SECTION 204 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, then".

SECTION 205 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".

SECTION 206 FRAUDULENT AL-ALTERATION OF COMMERCIAL MOBILE RADIO INSTRUMENTS

Please see the text of this section on the opposite page

SECTION 207 TRANSACTIONAL DATA

(a) DISCLOSURE OF RECORDS. Section 2703 of title 18, United States Code, is amendedQ (1) in subsection (c)(1)-- (A) in subparagraph (B)-- (i) by striking clause (i) and (ii) by redesignating clauses (ii), (iii), and (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 address, telephone toll billing records, telephone number or other subscriber number or identity, 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 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 REGISTER AND TRAP AND TRACE DEVICES -- Section 3121 of title 18, United States Code, is amendedQ (1) by redesignating subsection (c) as subsection (d); (2) by inserting after subsection (b) the following new section: (C) LIMITATION.QA 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 recording or decoding of electronic or other impulses to the dialing and signaling information utilized in call processing.".

SECTION. 208. AUTHORIZATION FOR ACTING DEPUTY ATTORNEYS GENERAL IN THE CRIMINAL DIVISION TO AP-PROVE CERTAIN COURT APPLICATIONS

Section 2616(1) of title 18, United States Code, is amended by inserting "or acting Deputy Assistant Attorney General" after "Deputy Assistant Attorney General". TITLE III--AMENDMENTS TO THE COMMUNICATIONS ACT OF 1934

SECTION 301. COMPLIANCE COST RECOVERY.

Title II of the Communications Act of 1934 is amended by inserting after section 228 (47 U.S.C. 228) the following new section: "SEC. 229. COMMUNICATIONS ASSISTANCE FOR LAW ENFORCEMENT ACT COMPLIANCE. "(a) In General: The Commission shall prescribe such rules as are necessary to implement the requirements of the Communications Assistance for Law Enforcement Act. "(b) Systems Security and Integrity: The rules prescribed pursuant to subsection (a) shall include rules to implement section 105 of the Communications Assistance for Law Enforcement Act that require common carriers-- "(1) to establish appropriate policies and procedures for the supervision and control of its officers and employees-- "(A) to require appropriate authorization to activate interception of communications or access to call- identifying information; and "(B) to prevent any such interception or access without such authorization; "(2) to maintain secure and accurate records of any interception or access with or without such authorization; and "(3) to submit to the Commission the policies and procedures adopted to comply with the requirements established under paragraphs (1) and (2). "(c) Commission Review of Compliance: The Commission shall review the policies and procedures submitted under subsection (b)(3) and shall order a common carrier to modify any such policy or procedure that the Commission determines does not comply with Commission regulations. The Commission shall conduct such investigations as may be necessary to insure compliance by common carriers with the requirements of the regulations prescribed under this section. "(d) Penalties: For purposes of this Act, a violation by an officer or employee of any policy or procedure adopted by a common carrier pursuant to subsection (b), or of a rule prescribed by the Commission pursuant to subsection (a), shall be considered to be a violation by the carrier of a rule prescribed by the Commission pursuant to this Act. "(e) Cost Recovery for Communications Assistance for Law Enforcement Act Compliance: "(1) Petitions authorized: A common carrier may petition the Commission to adjust charges, practices, classifications, and regulations to recover costs expended for making modifications to equipment, facilities, or services pursuant to the requirements of section 103 of the Communications Assistance for Law Enforcement Act. "(2) Commission authority: The Commission may grant, with or without modification, a petition under paragraph (1) if the Commission determines that such costs are reasonable and that permitting recovery is consistent with the public interest. The Commission may, consistent with maintaining just and reasonable charges, practices, classifications, and regulations in connection with the provision of interstate or foreign communication by wire or radio by a common carrier, allow carriers to adjust such charges, practices, classifications, and regulations in order to carry out the purposes of this Act. "(3) Joint board: The Commission shall convene a Federal-State joint board to recommend appropriate changes to part 36 of the Commission's rules with respect to recovery of costs pursuant to charges, practices, classifications, and regulations under the jurisdiction of the Commission.  

SECTION 302 RECOVERY OF COST OF COMMISSION PROCEEDINGS.

The schedule of application fees in section 8(g) of the Communications Act of 1934 (47 U.S.C. 158(g)) is amended by inserting under item 1 of the matter pertaining to common carrier services the following additional sub-item: "d. Proceeding under section 109(b) of the Communications Assistance for Law Enforcement Act."

SECTION 303. CLERICAL AND TECHNICAL AMENDMENTS.

(a) Amendments to the Communications Act of 1934: The Communications Act of 1934 is amended-- (1) in section 4(f)(3), by striking "overtime exceeds beyond" and inserting "overtime extends beyond"; (2) in section 5, by redesignating subsection (f) as subsection (e); (3) in section 8(d)(2), by striking "payment of a" and inserting "payment of an"; (4) in the schedule contained in section 8(g), in item 7.f. under the heading "equipment approval services/experimental radio" by striking "Additional Charge" and inserting "Additional Application Fee"; (5) in section 9(f)(1), by inserting before the second sentence the following: "(2) Installment payments:" ; (6) in the schedule contained in section 9(g), in the item pertaining to interactive video data services under the private radio bureau, insert "95" after "47 C.F.R. Part"; (7) in section 220(a)-- (A) by inserting "(1)" after "(a)"; and (B) by adding at the end the following new paragraph: "(2) The Commission shall, by rule, prescribe a uniform system of for use by telephone companies. Such uniform system shall require that each common carrier shall maintain a system of accounting methods, procedures, and techniques (including accounts and supporting records and memoranda) which shall ensure a proper allocation of all costs to and among telecommunications services, facilities, and products (and to and among classes of such services, facilities, and products) which are developed, manufactured, or offered by such common carrier."; (8) in section 220(b), by striking "classes" and inserting "classes"; (9) in section 223(b)(3), by striking "defendant restrict access" and inserting "defendant restricted access"; (10) in section 226(d), by striking paragraph (2) and redesignating paragraphs (3) and (4) as paragraphs (2) and (3), respectively; (11) in section 227(b)(2)(C), by striking "paragraphs" and inserting "paragraph"; (12) in section 227(e)(2), by striking "national database" and inserting "national database"; (13) in section 228(c), by redesignating the second paragraph (2) and paragraphs (3) through (6) as paragraphs (3) through (7), respectively; (14) in section 228(c)(6)(D), by striking "conservation" and inserting "conversation"; (15) in section 308(c), by striking "May 24, 1921" and inserting "May 27, 1921"; (16) in section 309(c)(2)(F), by striking "section 325(b)" and inserting "section 325(c)"; (17) in section 309(i)(4)(A), by striking "Communications Technical Amendments Act of 1982" and inserting "Communications Amendments Act of 1982"; (18) in section 331, by amending the heading of such section to read as follows: "VERY HIGH FREQUENCY STATIONS AND AM RADIO STATIONS"; (19) in section 358, by striking "(a)"; (20) in part III of title III-- (A) by inserting before section 381 the following heading: "VESSELS TRANSPORTING MORE THAN SIX PASSENGERS FOR HIRE REQUIRED TO BE EQUIPPED WITH RADIO TELEPHONE"; (B) by inserting before section 382 the following heading: "VESSELS EXCEPTED FROM RADIO TELEPHONE REQUIREMENT"; (C) by inserting before section 383 the following heading: "EXEMPTIONS BY COMMISSION"; (D) by inserting before section 384 the following heading: "AUTHORITY OF COMMISSION; OPERATIONS, INSTALLATIONS, AND ADDITIONAL EQUIPMENT"; (E) by inserting before section 385 the following heading: "INSPECTIONS"; AND (F) by inserting before section 386 the following heading: "FORFEITURES"; (21) in section 410(c), by striking ", as referred to in sections 202(b) and 205(f) of the Interstate Commerce Act,"; (22) in section 613(b)(2), by inserting a comma after "pole" and after "line"; (23) in section 624(d)(2)(A), by inserting "of" after "viewing"; (24) in section 634(h)(1), by striking "section 602(6)(A)" and inserting "section 602(7)(A)"; (25) in section 705(d)(6), by striking "subsection (d)" and inserting "subsection (e)"; (26) in section 705(e)(3)(A), by striking "paragraph (4) of subsection (d)" and inserting "paragraph (4) of this subsection"; (27) in section 705, by redesignating subsections (f) and (g) (as added by Public Law 100-667) as subsections (g) and (h); and (28) in section 705(h) (as so redesignated), by striking "subsection (f)" and inserting "subsection (g)". (b) Amendments to the Communications Satellite Act of 1962: The Communications Satellite Act of 1962 is amended-- (1) in section 303(a)-- (A) by striking "section 27(d)" and inserting "section 327(d)"; (B) by striking "sec. 29-911(d)" and inserting "sec. 29-327(d)"; (C) by striking "section 36" and inserting "section 336"; and (D) by striking "sec. 29-916d" and inserting "section 29-336(d)"; (2) in section 304(d), by striking "paragraphs (1), (2), (3), (4), and (5) of section 310(a)" and inserting "subsection (a) and paragraphs (1) through (4) of subsection (b) of section 310"; and (3) in section 304(e)-- (A) by striking "section 45(b)" and inserting "section 345(b)"; and (B) by striking "sec. 29-920(b)" and inserting "sec. 29-345(b)"; and (4) in sections 502(b) and 503(a)(1), by striking "the Communications Satellite Corporation" and inserting "the communications satellite corporation established pursuant to title III of this Act". (c) Amendment to the Children's Television Act of 1990: Section 103(a) of the Children's Television Act of 1990 (47 U.S.C. 303b(a)) is amended by striking "non-commercial" and inserting "noncommercial". (d) Amendments to the Telecommunications Authorization Act of 1992: Section 205(1) of the Telecommunications Authorization Act of 1992 is amended-- (1) by inserting an open parenthesis before "other than"; and (2) by inserting a comma after "stations)". (e) Conforming Amendment: Section 1253 of the Omnibus Budget Reconciliation Act of 1981 is repealed. (f) Stylistic Consistency: The Communications Act of 1934 and the Communications Satellite Act of 1962 are amended so that the section designation and section heading of each section of such Acts shall be in the form and typeface of the section designation and heading of this section.

SECTION 304. ELIMINATION OF EXPIRED AND OUTDATED PROVISIONS (a) Amendments to the Communications Act of 1934: The Communications Act of 1934 is amended-- (1) in section 7(b), by striking "or twelve months after the date of the enactment of this section, if later" both places it; (2) in section 212, by striking "After sixty days from the enactment of this Act it shall" and inserting "It shall"; (3) in section 213, by striking subsection (g) and redesignating subsection (h) as subsection (g); (4) in section 214, by striking "section 221 or 222" and inserting "section 221"; (5) in section 220(b), by striking ", as soon as practicable,"; (6) by striking section 222; (7) in section 224(b)(2), by striking "Within 180 days from the date of enactment of this section the Commission" and inserting "The Commission"; (8) in 226(e), by striking "within 9 months after the date of enactment of this section,";

(9) in section 309(i)(4)(A), by striking "The commission, not later than 180 days after the date of the enactment of the Communications Technical Amendments Act of 1982, shall," and inserting "The Commission shall,"; (10) by striking section 328; (11) in section 413, by striking ", within sixty days after the taking effect of this Act,"; (12) in section 624(d)(2)(B)-- (A) by striking out "(A)"; (B) by inserting "of" after "restrict the viewing"; and (C) by striking subparagraph (B); (13) by striking sections 702 and 703; (14) in section 704-- (A) by striking subsections (b) and (d); and (B) by redesignating subsection (c) as subsection (b); (15) in section 705(g) (as redesignated by section 304(25)), by striking "within 6 months after the date of enactment of the Satellite Home Viewer Act of 1988, the Federal Communications Commission" and inserting "The Commission"; (16) in section 710(f)-- (A) by striking the first and second sentences; and (B) in the third sentence, by striking "Thereafter, the Commission" and inserting "The Commission"; (17) in section 712(a), by striking ", within 120 days after the effective date of the Satellite Home Viewer Act of 1988,"; and (18) by striking section 713. (b) Amendments to the Communications Satellite Act of 1962: The Communications Satellite Act of 1962 is amended-- (1) in section 201(a)(1), by striking "as expeditiously as possible,"; (2) by striking sections 301 and 302 and inserting the following: "SEC. 301. CREATION OF CORPORATION. "There is authorized to be created a communications satellite corporation for profit which will not be an agency or establishment of the United States Government. "SEC. 302. APPLICABLE LAWS. "The corporation shall be subject to the provisions of this Act and, to the extent consistent with this Act, to the District of Columbia Business Corporation Act. The right to repeal, alter, or amend this Act at any time is expressly reserved."; (3) in section 304(a), by striking "at a price not in excess of $100 for each share and"; (4) in section 404-- (A) by striking subsections (a) and (c); and (B) by redesignating subsection (b) as section 404; (5) in section 503-- (A) by striking paragraph (2) of subsection (a); and (B) by redesignating paragraph (3) of subsection (a) as paragraph (2) of such subsection; (C) by striking subsection (b); (D) in subsection (g)-- (i) by striking "subsection (c)(3)" and inserting "subsection (b)(3)"; and (ii) by striking the last sentence; and (E) by redesignating subsections (c) through (h) as subsections (b) through (g), respectively; (5) by striking sections 505, 506, and 507; and (6) by redesignating section 508 as section 505.  

VIII THE COMPLETE TEXT OF 18 USC 1029

18 U.S.C. 1029 (As Amended By The Digital Telephony Bill)

$ 1029. Fraud and related activity in connection with access devices (a) Whoever -- (1) knowingly and with intent to defraud produces, uses, or traffics in one or more counterfeit access devices; (2) knowingly and with intent to defraud traffics in or uses one or more unauthorized access devices during any one-year period, and by such conduct obtains anything of value aggregating $1,000 or more during that period; (3) knowingly and with intent to defraud possesses fifteen or more devices which are counterfeit or unauthorized access devices; (4) knowingly, and with intent to defraud, produces, traffics in, has control or custody of, or possesses device making equipment; or (5) knowingly and with intent to defraud uses, produces, traffics in, has control or custody of, or possesses a telecommunications instruments 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 services. (b)(1) Whoever attempts to commit an offense under subsection (a) of this section shall be punished as provided in subsection (c) of this section. (2) Whoever is a party to a conspiracy of two or more persons to commit an offense under subsection (a) of this section, if any of the parties engage in any conduct in furtherance of such offense, shall be fined an amount not greater than the amount provided as the maximum fine for such offense under subsection (c) of this section or imprisoned not longer than one--half of the period provided as the maximum imprisonment for such offense under subsection (c) of this section, or both. (c) The punishment for an offense under subsection (a) or (b)(1) of this section is -- (1) a fine of not more than the greater of $10,000 or twice the value obtained by the offense or imprisonment for not more than ten years, or both, in the case of an offense under subsection (a)(2) or (a)3 of this section which does not occur after a conviction for another offense under either subsection, or an attempt to commit an offense punishable under this paragraph; (2) a fine of not more than the greater of $50,000 or twice the value obtained by the offense or imprisonment for not more than fifteen years, or both, in the case of a subsection (a)(1), (4),(5),(6) of this section which does not occur after a conviction for another offense under either such subsection, or an attempt to commit an offense punishable under this paragraph; and

(3) a fine of not more than the greater of $100,000 or twice the value obtained by the offense or imprisonment for not more than twenty years, or both, in the case of an offense under subsection (a) which occurs after a conviction for another offense under this subsection, or an attempt to commit an offense punishable under this paragraph. (d) The United States Secret Service shall, in addition to any other agency having such authority, have the authority to investigate offense under this section. Such authority of the United States Secret Service shall be exercised in accordance with an agreement which shall be entered into by the Secretary of the Treasury and the Attorney General. (e) As used in this section - - (1) the term "access device" means any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with another access device to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument); (2) the term "counterfeit access device" means any access device that is counterfeit, fictitious, altered, or forged, or an identifiable component of an access device or a counterfeit access device: (3) the term "unauthorized access device" means any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud; (4) the term "produce" includes design, alter, authenticate, duplicate or assemble; (5) the term "traffic" means transfer, or otherwise dispose of, to another, or impression designed or primarily used for making an access device or a counterfeit access device and (6) the term "device-making equipment" means any equipment, mechanism, or impression designed or primarily used for making an access device or a counterfeit access device. ; (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. (f) This section does not prohibit any lawfully authorized investigative, protective or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States, or any activity authorized under chapter 224 of this title. For purposes of this subsection, the term "State" includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

"We lobbied for passage of the Telephony bill, which the president just signed. The bill enhances the language in Title 18, Section 1029. That's the Secret Service statute that deals with fraudulent or counterfeit access devices. Prior to this bill being signed, there was no reference to wireless communications. Now the language in the statute clearly includes the cellular phones. This has added that tool to the arsenal of the Secret Service."

Tom McLure, director of fraud management for the CTIA

It's All About Context!

The full text of 18 U.S.C. as amended by the digital telephony bill is show on this page. Additions are in bold and deletions are in cross outs. This shows the value of putting all those scattered paragraphs into context. The teams of lawyers who drafted this bill had to have looked up every section and reg affected. . .

IX. SPECIAL E-ZINE BONUS: THE REGULATION PROHIBITING CLONING AS WELL AS SUPPORTING MATERIAL AS SUPPLIED BY ROBERT KELLER TO CompuServe

Set forth below are excerpts from FCC rules and policy statements regarding cloning and/or modification of the electronic serial number (ESN) in cellular phones.

================= TABLE OF CONTENTS =================

A. Federal Communications Commission Report and Order (CC Docket Nos. 92-115, 94-46, and 93-116) Adopted: August 2, 1994 Released: September 9, 1994 Rule Changes Effective: January 1, 1995

1. Excerpt, Paragraphs 54-63

2. Excerpt, Appendix A Detailed Discussion of Part 22 Rule Amendments Section 22.919 Electronic serial numbers.

3. Excerpt, Appendix B - Final Rules New FCC Rule Section 22.919 47 C.F.R. Section 22.919

B. FCC's Stated Position on Rules and Policy Prior to Rule Changes in CC Docket No. 92-115

If you have any questions, please feel free to contact me:  

Bob Keller (KY3R) ============================== Robert J. Keller, P.C. ------------------------------ Federal Telecommunications Law 4200 Wisconsin Ave NW #106-261 Washington, DC 20016-2143 USA ------------------------------ Internet: rjk@telcomlaw.com Telephone: +1 301.229.5208 Facsimile: +1 301.229.6875 CompuServe UID: 76100.3333 ==============================

=========================================================== A. Federal Communications Commission Report and Order (CC Docket Nos. 92-115, 94-46, and 93-116) Adopted: August 2, 1994 Released: September 9, 1994 Rule Changes Effective: January 1, 1995 ===========================================================

-------------------------- 1. Excerpt, Paragraphs 54-63: --------------------------

Cellular Electronic Serial Numbers

54. Proposal. We proposed in the Notice a new rule (Section 22.919) intended to help reduce the fraudulent use of cellular equipment caused by tampering with the unique Electronic Serial Numbers (ESN) that identify mobile equipment to cellular systems. The purposes of the ESN in a cellular telephone are similar to the Vehicle Identification Numbers in automobiles. That is, it uniquely identifies the equipment in order to assist in recovery if it is stolen. More importantly, in the case of cellular telephones, the ESN enables the carriers to bill properly for calls made from the telephone. Any alteration of the ESN renders it useless for this purpose. The proposed rule explicitly establishes anti-fraud design specifications that require, among other things, that the ESN must be programmed into the equipment at the factory and must not be alterable, removable, or in any way able to be manipulated in the field. In addition, the proposed rules require that the ESN component be permanently attached to a main circuit board of the mobile transmitter and that the integrity of the unit's operating software not be alterable.

55. Comments. The commenters generally support our proposal,[94] but they suggest some modifications. For example, BellSouth, Southwestern Bell, GTE, and CIA suggest that our proposal should be modified to provide that equipment already manufactured, is exempt from the rule.[95] They argue that subjecting existing phones to this rule would be very expensive and difficult, if not impossible, to implement. Therefore, they recommend that the rule apply only to phones manufactured after a particular date.[96] NYNEX recommends that we not require the ESN chip to be secured to the main circuit board of the mobile transmitter as proposed. Rather, NYNEX suggests that the ESN chip be attached to the frame of the radio and attached to the logic board by cable.[97] In addition, it recommends that operating software be encoded or scattered over different memory chips.[98] Motorola, Inc. (Motorola) and Ericsson Corp. (Ericsson), two manufacturers of cellular mobile equipment, suggest that the proposal be modified to allow authorized service centers or representatives to make necessary and required changes to ESNs in mobile and portable units in the field.[99]

56. Southwestern Bell recommends that the rule also apply to mobile equipment associated with a wireless private branch exchange (PBX).[100] CTIA suggests that the proposal be modified in several respects. First, it states that we should clarify that requiring a mobile transmitter to have a "unique" ESN, means that any particular ESN will not exist in more than one mobile unit. Second, CTIA suggests that ESN manipulation not be permitted "outside a manufacturer's authorized facility." Third, it requests that cellular mobile units be required to be designed to comply with the "applicable industry standard for authentication."[101] New Vector supports the proposed rule, but emphasizes that the ESN criteria should be incorporated into the type-acceptance rules to clarify that manufacturers will be subject to the Commission's enforcement procedures if they do not comply with the ESN requirements.[102]

57. C2+ Technology (C2+) requests that we allow companies to market ancillary cellular equipment that emulates ESNs for the purpose of allowing more than one cellular phone to have the same telephone number. It argues that emulating ESNs in the way it describes benefits the public, does not involve fraud, and retains the security and integrity of the cellular phones.[103] In opposition, Ericsson asserts that the rules should include procedures to ensure that ESNs are not easily transferable through the use of an encrypted data transfer device.[104] Similarly, New Par suggests that the proposed rule proscribe activity that does not physically alter the chip yet affects the radiated ESN by translating the ESN signal that the mobile unit transmits.[105]

58. Discussion. The record before us demonstrates the need for measures that will help reduce the fraudulent use of cellular equipment caused by tampering with the ESN. We therefore adopt the proposed rule for the reasons set forth below.

59. Contrary to the suggestion of one commenter, the ESN rule will not prevent a consumer from having two cellular telephones with the same telephone number. Changing the ESN emitted by a cellular telephone to be the same as that emitted by another cellular telephone does not create an "extension" cellular telephone. Rather, it merely makes it impossible for the cellular system to distinguish between the two telephones. We note that Commission rules do not prohibit assignment of the same telephone number to two or more cellular telephones.[106] It is technically possible to have the same telephone number for two or more cellular telephones, each having a unique ESN.[107] If a cellular carrier wishes to provide this service, it may. In this connection, we will not require that use of cellular telephones comply with an industry authentication procedure as requested by CTIA, as this could have the unintended effect of precluding multiple cellular telephones (each with a unique ESN) from having the same telephone number.

60. Further, we conclude that the practice of altering cellular phones to "emulate" ESNs without receiving the permission of the relevant cellular licensee should not be allowed because (1) simultaneous use of cellular telephones fraudulently emitting the same ESN without the licensee's permission could cause problems in some cellular systems such as erroneous tracking or billing; (2) fraudulent use of such phones without the licensee's permission could deprive cellular carriers of monthly per telephone revenues to which they are entitled; and (3) such altered phones not authorized by the carrier, would therefore not fall within the licensee's blanket license, and thus would be unlicensed transmitters in violation of Section 301 of the Act. Therefore, we agree with New Par and Ericsson that the ESN rule should proscribe activity that does not physically alter the ESN, but affects the radiated ESN, including activities that transfer ESNs through the use of an encrypted data transfer device.

61. With respect to the proposal to allow alteration of ESNs by manufacturers' authorized service centers or representatives, we note that computer software to change ESNs, which is intended to be used only by authorized service personnel, might become available to unauthorized persons through privately operated computer "bulletin boards". We have no knowledge that it is now possible to prevent unauthorized use of such software for fraudulent purposes. Accordingly, we decline to make the exception requested by Motorola and Ericsson.

62. We further agree with the commenters that it would be impractical to apply the new rule to existing equipment. Accordingly, we are not requiring that cellular equipment that is currently in use or has received a grant of type-acceptance be modified or retrofitted to comply with the requirements of this rule. Thus, the ESN rule will apply only to cellular equipment for which initial type-acceptance is sought after the date that our rules become effective. Nevertheless, with regard to existing equipment, we conclude that cellular telephones with altered ESNs do not comply with the cellular system compatibility specification[108] and thus may not be considered authorized equipment under the original type acceptance. Accordingly, a consumer's knowing use of such altered equipment would violate our rules. We further believe that any individual or company that knowingly alters cellular telephones to cause them to transmit an ESN other than the one originally installed by the manufacturer is aiding in the violation of our rules. Thus, we advise all cellular licensees and subscribers that the use of the C2+ altered cellular telephones constitutes a violation of the Act and our rules.

63. With respect to NYNEX's proposed modifications for securing the ESN chip to the mobile transmitter, the record does not convince us that these modifications will make the ESN rule more effective. Therefore, we do not adopt NYNEX's proposal. We agree with Southwestern Bell that the ESN rule should apply to mobile equipment associated with wireless PBX if the equipment can also be used on cellular systems. We also clarify that the new ESN rule prohibits the installation of an ESN in more than one mobile transmitter. Finally, as suggested by New Vector, we amend the type-acceptance rule to refer to the newly adopted ESN rule.[109]

[Footnotes]

[94] See PacTel Comments at 2; CTIA Comments at 7-8.

[95] BellSouth Comments at Appendix 2, p.36; Southwestern Bell Comments at 28-29; GTE Comments at 30; CTIA Comments at 8.

[96] For example, BellSouth suggests that the anti-fraud measures should not apply to equipment type-accepted before January 1, 1993.

[97] NYNEX Comments at 8.

[98] Id. at 8-9.

[99] Ericsson Reply Comments at 2-5; Motorola Reply Comments at 3.

[100] Southwestern Bell Comments at 29.

[101] CTIA Comments at 8.

[102] New Vector Comments at Appendix I, p.44.

[103] C2+ Comments at 1-2.

[104] Ericsson Reply Comments at 3-4.

[105] New Par Comments at 21-22.

[106] The telephone number is referred to in the cellular compatibility specification as the Mobile Identification Number or "MIN"

[107] It is not technically necessary to have the same ESN in order to have the same telephone number. Nevertheless, the authentication software used by some cellular systems does not permit two cellular telephones with the same telephone number. In such cases, cellular carriers should explain to consumers who request this service that their system is not yet capable of providing it.

[108] See old Section 22.915, which becomes new Section 22.933 in Appendices A and B.

[109] See discussion of new Section 22.377 in Appendix A.

---------------------------------------------- 2. Excerpt, Appendix A Detailed Discussion of Part 22 Rule Amendments Section 22.919 Electronic serial numbers. ----------------------------------------------

Section 22.919 Electronic serial numbers.

The purpose of this new section is to deter cellular fraud by requiring that the Electronic Serial Number (ESN) unique to each cellular phone be factory set, inalterable, non-transferable, and otherwise tamper-proof and free of fraudulent manipulation in the field. This subject received substantial attention from commenters and is discussed in the Report and Order.

--------------------------------- 3. Excerpt, Appendix B - Final Rules New FCC Rule Section 22.919 47 C.F.R. Section 22.919 ---------------------------------

22.919 Electronic serial numbers.

The Electronic Serial Number (ESN) is a 32 bit binary number that uniquely identifies a cellular mobile transmitter to any cellular system.

(a) Each mobile transmitter in service must have a unique ESN.

(b) The ESN host component must be permanently attached to a main circuit board of the mobile transmitter and the integrity of the unit's operating software must not be alterable. The ESN must be isolated from fraudulent contact and tampering. If the ESN host component does not contain other information, that component must not be removable, and its electrical connections must not be accessible. If the ESN host component contains other information, the ESN must be encoded using one or more of the following techniques:

(1) Multiplication or division by a polynomial;

(2) Cyclic coding;

(3) The spreading of ESN bits over various non- sequential memory locations.

(c) Cellular mobile equipment must be designed such that any attempt to remove, tamper with, or change the ESN chip, its logic system, or firmware originally programmed by the manufacturer will render the mobile transmitter inoperative.

(d) The ESN must be factory set and must not be alterable, transferable, removable or otherwise able to be manipulated in the field. Cellular equipment must be designed such that any attempt to remove, tamper with, or change the ESN chip, its logic system, or firmware originally programmed by the manufacturer will render the mobile transmitter inoperative.

============================================= B. FCC's Stated Position on Rules and Policy Prior to Rule Changes in CC Docket No. 92-115 =============================================

PUBLIC NOTICE

FEDERAL COMMUNICATIONS COMMISSION

COMMON CARRIER PUBLIC MOBILE SERVICES INFORMATION

October 2, 1991 Report No. CL-92-3

CHANGING ELECTRONIC SERIAL NUMBERS ON CELLULAR PHONES IS A VIOLATION OF THE COMMISSION'S RULES

It has come to the attention of the Mobile Services Division that individuals and companies may be altering the Electronic Serial Number ( ESN) on cellular phones. Paragraph 2.3.2 in OST Bulletin No. 53 (Cellular System Mobile Station - Land Station Compatibility Specification, July, 1983) states that "[a]ttempts to change the serial number circuitry should render the mobile station inoperative." The 1981 edition of these compatibility specifications (which contains the same wording) was included as Appendix D in CC Docket 79-318 and is incorporated into Section 22.915 of the Commission's rules.

Phones with altered ESNs do not comply with the Commission's rules and any individual or company operating such phones or performing such alterations is in violation of Section 22.915 of the Commission's rules and could be subject to appropriate enforcement action.

Questions concerning this Public Notice should be addressed to Steve Markendorff at 202-653-5560 or Andrew Nachby at 202-632-6450.

| Robert J. Keller, P.C. Internet: rjk@telcomlaw.com | | Federal Telecommunications Law Telephone: +1 301.229.5208 | | 4200 Wisconsin Ave NW #106-261 Facsimile: +1 301.229.6875 | | Washington, DC 20016-2143 USA CompuServe UID: 76100.3333 |          

NEXT PAGE -->