Advanced Criminal Investigations and Intelligence Operations

by Unknown

  future date as the court may specify.

  Appendix A: Electronic Surveillance Law

  317

  “(2) Considerations—In determining whether to impose a civil pen-

  alty and in determining its amount, the court shall take into

  account—

  “(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 culpabil-

  ity, and the length of any delay in undertaking efforts to

  comply; and

  “(C) such other matters as justice may require.

  “(d) Definitions—As used in this section, the terms defined in section

  102 of the Communications Assistance for Law Enforcement Act

  have the meanings provided, respectively, in such section.”

  (e) Conforming Amendments—

  (1) Section 2518(4) of title 18, United States Code, is 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 require-

  ments under the Communications Assistance for Law

  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 sec-

  tion 2522, an order may be issued to enforce the assistance capability

  and capacity requirements under the Communications Assistance

  for Law Enforcement Act.”

  (1) The table of sections at the beginning of chapter 119 of title 18,

  United States Code, is amended by inserting after the item per-

  taining to section 2521 the following new item:

  “2522. Enforcement of the Communications Assistance for Law Enforcement

  Act.”

  § 202. Cordless Telephones

  (a) Definitions—Section 2510 of title 18, United States Code, is

  amended—

  (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 redesignat-

  ing subparagraphs (B), (C), and (D) as subparagraphs (A), (B),

  and (C), respectively.

  318

  Appendix A: Electronic Surveillance Law

  (b) Penalty—Section 2511 of title 18, United States Code, is amended—

  (1) in subsection (4)(b)(i) by inserting “a cordless telephone com-

  munication that is transmitted between the cordless telephone

  handset and the base unit,” after “cellular telephone communica-

  tion,”; and

  (2) in subsection (4)(b)(ii) by inserting “a cordless telephone com-

  munication that is transmitted between the cordless tele-

  phone handset and the base unit,” after “cellular telephone

  communication,”.

  § 203. Radio-Based Data Communications

  Section 2510(16) of title 18, United States Code, is amended—

  (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;”

  § 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”.

  § 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”.

  § 206. Fraudulent Alteration of Commercial

  Mobile Radio Instruments

  (a)

  Offense—Section 1029(a) of title 18, United States Code, is

  amended—

  (1) by striking “or” at the end of paragraph (3); and

  (2) by inserting after paragraph (4) the following new paragraphs:

  “(5) knowingly and with intent to defraud uses, produces, traffics

  in, has control or custody of, or possesses a telecommunications

  instrument that has been modified or altered to obtain unau-

  thorized use of telecommunications services; or

  Appendix A: Electronic Surveillance Law

  319

  “(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 tele-

  communications instruments to obtain unauthorized access

  to telecommunications services,”

  (b) Penalty—Section 1029(c)(2) of title 18, United States Code, is

  amended by striking “(a)(1) or (a)(4)” and inserting “(a) (1), (4), (5),

  or (6)”.

  (c) Definitions–Section 1029(e) of title 18, United States Code, is

  amended—

  (1) in paragraph (1) by inserting “electronic serial number, mobile

  identification number, personal identification number, or other

  telecommunications service, equipment, or instrument identi-

  fier,” after “account number,”;

  (2) by striking “and” at the end of paragraph (5);

  (3) by striking the period at the end of paragraph (6) and inserting

  “; and”; and

  (4) by adding at the end the following new paragraph:

  “(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.”

  § 207. Transactional Data

  (a) Disclosure of Records—Section 2703 of title 18, United States Code, is amended—

  (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 name, 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 sub-

  poena 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

  320

  Appendix A: Electronic Surveillance Law

  (2) by amending the first sentence of subsection (d) to read as fol-

  lows: “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 only
if the govern-

  mental entity offers specific and articulable facts showing that there

  are reasonable grounds to believe that the contents of a wire or elec-

  tronic communication, or the records or other information sought,

  are relevant and material to an ongoing criminal investigation.”

  (b) Pen Registers and Trap and Trace Devices—Section 3121 of title 18, United States Code, is amended—

  (1) by redesignating subsection (c) as subsection (d); and

  (2) by inserting after subsection (b) the following new subsection:

  “(c) Limitation—A 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 the recording or decoding of

  electronic or other impulses to the dialing and signaling information

  utilized in call processing.”

  § 208. Authorization for Acting Deputy Attorneys General in

  the Criminal Division to Approve Certain Court Applications

  Section 2516(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

  § 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:

  “§ 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 supervi-

  sion and control of its officers and employees—

  “(A) to require appropriate authorization to activate inter-

  ception of communications or access to call-identifying

  information; and

  Appendix A: Electronic Surveillance Law

  321

  “(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 car-

  rier 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 modifi-

  cations 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 rea-

  sonable charges, practices, classifications, and regulations in

  connection with the provision of interstate or foreign commu-

  nication 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.”

  322

  Appendix A: Electronic Surveillance Law

  § 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 subitem:

  “(d) Proceeding under section 109(b) of the Communications Assistance

  for Law Enforcement Act—5,000.”

  § 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 “pay-

  ment 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:

  “(A) 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:

  “(i) The Commission shal , by rule, prescribe a uniform sys-

  tem of accounts for use by telephone companies. Such uni-

  form system shall require that each common carrier shal

  maintain a system of accounting methods, procedures, and

  techniques (including accounts and supporting records and

  memoranda) which shall ensure a proper al ocation of al

  costs to and among telecommunications services, facilities,

  and products (and to and among classes of such services,

  facilities, and products) which are developed, manufac-

  tured, 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”;

  Appendix A: Electronic Surveillance Law

  323

  (10) in section 226(d), by striking paragraph (2) and redesig-

  nating 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 insert-

  ing “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”;