by Unknown
duct electronic surveillance.
(6) The term “information services”—
(A) means the offering of a capability for generating, acquiring, stor-
ing, transforming, processing, retrieving, utilizing, or making
available information via telecommunications; and
(B) includes—
(i) a service that permits a customer to retrieve stored infor-
mation from, or file information for storage in, informa-
tion storage facilities;
(ii) electronic publishing; and
(iii) electronic messaging services; but
(C) does not include any capability for a telecommunications car-
rier’s internal management, control, or operation of its telecom-
munications 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 switch-
ing of wire or electronic communications as a common carrier
for hire; and
Appendix A: Electronic Surveillance Law
305
(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 or category of telecommunications carriers that
the Commission exempts by rule after consultation with
the Attorney General.
§ 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 tele-
communications 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 sub-
scriber’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 cal -identifying
information that is reasonably available to the carrier—
(A) before, during, or immediately after the transmission of a
wire or electronic communication (or at such later time as
may be acceptable to the government); and
(B) in a manner that al ows it to be associated with the com-
munication to which it pertains, except that, with regard
to information acquired solely pursuant to the author-
ity for pen registers and trap and trace devices (as defined
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in section 3127 of title 18, United States Code), such cal -
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 cal -identifying infor-
mation to the government, pursuant to a court order or other law-
ful authorization, in a format such that they may be transmitted by
means of equipment, facilities, or services procured by the govern-
ment to a location other than the premises of the carrier; and
(4) facilitating authorized communications interceptions and
access to call-identifying information unobtrusively and with a
minimum of interference with any subscriber’s telecommunica-
tions service and in a manner that protects—
(A) the privacy and security of communications and cal -
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 does
not authorize any law enforcement agency or officer—
(A) to require any specific design of equipment, facilities, ser-
vices, features, or system configurations to be adopted by
any provider of a wire or electronic communication ser-
vice, any manufacturer of 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 commu-
nication service, any manufacturer of telecommunications
equipment, or any provider of telecommunications sup-
port services.
(2) Information Services; Private Networks and Interconnection
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 responsi-
ble 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 pos-
sesses the information necessary to decrypt the communication.
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307
(c) Emergency or Exigent Circumstances—In emergency or exigent cir-
cumstances (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 al owing monitoring at its premises if that is the only means of
accomplishing the interception or access.
(d) Mobile Service Assistance Requirements—A telecommunications car-
rier that is a provider of commercial mobile service (as defined in sec-
tion 332(d) of the Communications Act of 1934) offering a feature or
service that al ows subscribers to redirect, hand off, or assign their wire or electronic communications to another service area or a
nother 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 communica-
tions or access to cal -identifying information pursuant to a court order or lawful authorization no longer has access to the content of such communications or cal -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 com-
munication service that has acquired access to the communications.
§ 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 telecom-
munications support services, and manufacturers of telecom-
munications equipment, and after notice and comment, the
Attorney General shall publish in the Federal Register and pro-
vide to appropriate telecommunications industry associations
and standard-setting organizations—
(A) notice of the actual number of communication intercep-
tions, pen registers, and trap and trace devices, represent-
ing a portion of the maximum capacity set forth under
subparagraph (B), that the Attorney General estimates that
government agencies authorized to conduct electronic sur-
veillance 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 accommo-
date all of the communication interceptions, pen regis-
ters, and trap and trace devices that the Attorney General
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Appendix A: Electronic Surveillance Law
estimates that government agencies authorized to conduct
electronic surveillance may conduct and use simultane-
ously after the date that is 4 years after the date of enact-
ment 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 size 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 lon-
ger, a telecommunications carrier shall, subject to subsection (e),
ensure that its systems are capable of—
(A) accommodating simultaneously the number of intercep-
tions, 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).
(2) Expansion to Maximum Capacity—After the date described in
paragraph (1), a telecommunications carrier shall, subject to
subsection (e), ensure that it can accommodate expeditiously
any increase in the actual number of communication intercep-
tions, pen registers, and trap and trace devices that authorized
agencies may seek to conduct and use, up to the maximum
capacity requirement set forth in the notice under 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 neces-
sary 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 shal , subject to subsection (e), ensure
that its systems are capable of expanding to the increased maxi-
mum capacity set forth in the notice.
(d) Carrier Statement—Within 180 days after the publication by the
Attorney General of a notice of capacity requirements pursuant to
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309
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 accommodate simultane-
ously 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 modi-
fications to attain such capacity requirement that are determined to
be reasonable in accordance with section 109(e). Until the Attorney
General agrees to reimburse such carrier for such modification, such
carrier shall be considered to be in compliance with the capacity
notices under subsection (a) or (c).
§ 105. Systems Security and Integrity
A telecommunications carrier shall ensure that any interception of commu-
nications 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.
§ 106. Cooperation of Equipment Manufacturers and
Providers of Telecommunications Support Services
(a) Consultation—A telecommunications carrier shall consult, as nec-
essary, in a timely fashion with manufacturers of its telecommu-
nications transmission and switching equipment and its providers
of telecommunications support services for the purpose of ensur-
ing 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 as 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.
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ic Surveillance Law
§ 107. Technical Requirements and Standards;
Extension of Compliance Date
(a) Safe Harbor—
(1) Consultation—To ensure the efficient and industry-wide imple-
mentation of the assistance capability requirements under sec-
tion 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 to be in compliance with section 106, if the carrier, manu-
facturer, or support service provider is in compliance with pub-
licly 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 require-
ments of section 103 shall not—
(A) preclude a telecommunications carrier, manufacturer, or
telecommunications support services provider from deploy-
ing a technology or service; or
(B) relieve a carrier, manufacturer, or telecommunications sup-
port services provider of the obligations imposed by section
103 or 106, as applicable.
