POSSIBLE FEDERAL LEGISLATION -- ELECTRONIC COMMUNICATIONS LETTER RECEIVED F

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************************************************************* * POSSIBLE FEDERAL LEGISLATION -- ELECTRONIC COMMUNICATIONS * ************************************************************* LETTER RECEIVED FROM UNITED STATES SENATE -- FEEDBACK NEEDED System Operators (SYSOPS) of Bulletin Board Systems (BBS) and electronic mail systems everywhere are concerned about possible legislation, at both a Federal and State level, pertaining to the uses of the wonderful new technologys of telecommunications, BBS's and messaging. Some of the legislation is of grave concern, such as the bill introduced by Senator Paul Trible. We do not take issue with the concerns that motivated Senator Trible that suggest the need for such legislation, but we do take issue with some of the wording of that particular bill. Comments on Senator Trible's bill are found elsewhere in the LAW MUG Newsletter. UNITED STATES SENATE COMMITTEE ON THE JUDICIARY WASHINGTON, DC 20510 STROM THURMOND, SOUTH CAROLINA, CHAIRMAN CHARLES McC MATHIAS, Jr., MARYLAND JOSEPH R. BIDEN, Jr., DELAWARE PAUL LAXALT, NEVADA EDWARD M. KENNEDY, MASSACHUSETTS ORRIN G. HATCH, UTAH ROBERT C. BYRD, WEST VIRGINIA ALAN K. SIMPSON, WYOMING HOWARD M. METZENBAUM, OHIO JOHN EAST, NORTH CAROLINA DENNIS DeCONCINI, ARIZONA CHARLES E. GRASSLEY, IOWA PATRICK J. LEAHY, VERMONT JEREMIAH DENTON, ALABAMA HOWELL HEFLIN, ALABAMA ARLEN SPECTER, PENNSYLVANIA PAUL SIMON, ILLINOIS MITCH McCONNELL, KENTUCKY DENNIS W. SHEDD, CHIEF COUNSEL AND STAFF DIRECTOR DEBORAH K. OWEN, GENERAL COUNSEL DEBORAH G. BERNSTEIN, CHIEF CLERK MARK N. GITENSTEIN, MINORITY CHIEF COUNSEL August 16, 1985 THE TEXT OF THE DISCUSSION DRAFT [Discussion Draft] [10-16-85] 99th CONGRESS 1ST SESSION H.R.____ IN THE HOUSE OF REPRESENTATIVES Mr.___________________ introduced the following bill; which was referred to Committee on______________________ A BILL To amend title 18, United States Code, with respect to the interception of certain communications, other forms of surveillance, and for other purposes. 1 Be it enacted by the Senate and House of Representatives 2 of the United States of American in Congress assembled, ----------------------- (Beginning of Page 2) 1 SECTION 1. SHORT TITLE. 2 This Act may be cited as the "Communications Privacy 3 Act of 1985". 4 TITLE I--TITLE 18 AND RELATED MATTERS 5 SEC.101. FEDERAL PENALTIES FOR THE INTERCEPTION OF 6 ELECTRONIC COMMUNICATIONS 7 (a) DEFINITION OF "ELECTRONIC COMMUNICATION".--(1) 8 Section 2510 of title 18, United States Code, is amended by 9 striking out paragraph (1) and inserting in lieu thereof the 10 following: "(1) 'electronic communication' means any transmission-----------of signs, signals, writing, images, sounds, data or intelligence of any nature by wire, radio, optical or other electromagnetic systems affecting interstate commerce;". 19 (2) Section 2510(4) of title 18 of the United States Code 20 is amended by striking out "aural". 21 (b) EXCEPTIONS WITH RESPECT TO ELECTRONIC 22 COMMUNICATIONS.--Section 2511(2) of title 18, United States 23 Code, is amended by adding at the end thereof the following 24 new paragraph: 25 "(g) It shall not be unlawful under this chapter for any ----------------------- (Beginning of Page 3) 1 person.. 2 "(1) to intercept an electronic communication made 3 through an electronic communication system designed so 4 that such electronic communication is readily accessible 5 to the public. 6 "(ii) to intercept any electronic communication 7 which is transmitted.. 8 "(I) by any station for the use of the general 9 public, which relates to ships, aircraft, vehicles, 10 or persons in distress; 11 "(II) by a walkie talkie, or a police or fire 12 communication system readily accessible to the 13 public; or 14 "(III) by an amateur radio station operator or 15 by a citizens band radio operator; or 16 "(iii) to engage in any conduct which.. 17 "(I) is prohibited by section 633; or 18 "(II) is excepted from the application of 19 section 705(a) of the Communication Act of 1934 by 20 section 705(b) of that Act." 21 (c) TECHNICAL AND CONFORMING AMENDMENTS.--(1) Chapter 119 22 of title 18, United States Code, is amended by striking out 23 "wire" each place it appears (including in any section 24 heading) and inserting "electronic" in lieu thereof. 25 (2) The heading of chapter 119 of title 18, United States ----------------------- (Beginning of Page 4) 1 Code, is amended by inserting "AND OTHER ELECTRONIC" after 2 "WIRE". 3 (3) The item relating to chapter 119 in the table of 4 chapters at the beginning of Part I of title 18 of the United 5 States Code is amended by inserting "and other electronic" 6 after "wire". 7 SEC. 102. ADDITIONAL PROHIBITIONS RELATING TO ELECTRONIC 8 COMMUNICATIONS AND MODIFICATION OF CERTAIN 9 EXCEPTIONS. (a) ADDITIONAL PROHIBITIONS.--Sections 2511 of title 18, United States Code, is amended by adding at the end of the following: "(3) Unless authorized by the service provider, the service user, or as otherwise specifically authorized by this chapter, whoever willfully accesses an electronic communication system or willfully exceeds an authorization to access an electronic communication system and obtains or alters an electronic communication while it is stored in such system shall "(A) if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain shall.. 20 "(i) be fined not more than $250,000 or 21 imprisoned not more than one year, or both, in the 22 case of a first offense under this [subparagraph]; 23 and 24 "(ii) be fined not more than $250,000 or 25 imprisoned not more than two years, or both, for any ----------------------- (Beginning of Page 5) 1 subsequent offense under this [subparagraph]; and 2 "(B) be fined not more than $5,000 or imprisoned 3 not more than six months, or both, in any other 4 case." (b) Chapter 119 of title 18, United States Code, is amended by adding a new section following section 2511; "Sec 2511a. Protection of privacy for users of an electronic communication service. "(a)(1) Except as authorized by this chapter, [or FISA] or by specific consent of the user originating an electronic communication, no person or entity providing an electronic communication service may knowingly divulge [or publish] the contents of such communication to any person other than the addressee, his agent, or attorney, except to.. "(A) any person to whom such disclosure is authorized by the addressee, his agent, or attorney; "(B) any person employed or authorized to forward such communication to its destination; or "(C) any person who needs such communication to render or conduct a business activity related to an electronic communication service or other service provided by the provider to the user. "(2) Nothing in the provisions of paragraph (1) shall be construed to prohibit an addressee, his agent, or attorney from divulging or publishing the contents of such a communication. THE DRAFT LEGISLATION, CONTINUED ----------------------- (Beginning of Page 6) SEC. 103. RECOVERY OF CIVIL DAMAGES. 1 Section 2520 of title 18, United States Code, is amended 2 to read as follows: 3 "Sec 2520. Recovery of civil damages authorized 4 "(a) Any person whose electronic communication or oral 5 communication is intercepted, accessed, disclosed, or used in 6 violation of this chapter may in a civil action recover from 7 the person or entity which engaged in that violation such 8 relief as may be appropriate. 9 "(b) In an action under this section, appropriate relief 10 includes.. 11 "(1) such preliminary and other equitable [or 12 declaratory] relief as may be appropriate; 13 "(2) damages under subsection (c); and 14 "(3) [a reasonable attorney's fee and other 15 litigation costs reasonably incurred]. 16 "(c) Damages in an action under this section shall be 17 [whichever is the greater of].. 18 "(1) the sum of the actual damages suffered by the 19 plaintiff and any profits made by the violator as a 20 result of the violation; or 21 "(2) statutory damages in an amount not less than 22 $500 or more than $10,000. 23 "(d) A good faith reliance on a court warrant or order 24 is a complete defense against a civil action under this 25 section. ----------------------- (Beginning of Page 7) 1 "?e) A civil action under this section may not be 2 commenced later than two years after the occurrence of the 3 violation [or after the claimant has had a reasonable 4 opportunity to discover the violation, whichever is 5 later].]". 3 SEC. 104. CERTAIN APPROVALS BY ACTING ASSISTANT ATTORNEY 4 GENERAL. 5 Section 2516(1) of title 18 of the United States Code is 6 amended by inserting "(or acting Assistant Attorney 7 General)" after "Assistant Attorney General". 8 SEC 105. ADDITION OF OFFENSES TO CRIMES FOR WHICH 9 INTERCEPTION IS AUTHORIZED 10 Section 2516(1)(c) of title 18 of the United States Code 11 is amended.. 12 (1) by striking out "2314" and inserting "2312, 13 2313, 2314," in lieu thereof; 14 (2) by inserting "the second section 2320 (relating 15 to trafficking in certain motor vehicles or motor vehicle 16 parts), section 1203 (relating to hostage taking), 17 section 1029 (relating to fraud and related activity in 18 connection with access devices), section 32 (relating to 19 destruction of aircraft or aircraft facilities)," after 20 "stolen property),"; and 21 (3) by inserting "section 1952A (relating to use of 22 interstate commerce facilities in the commission of 23 murder for hire), section 1952B (relating to violent 24 crimes in aid of racketeering activity)," after "1952 25 (interstate and foreign travel or transportation in aid ----------------------- (Beginning of Page 8) 1 of racketeering enterprises)," 2 SEC. 106. ADDITIONAL REQUIREMENTS FOR APPLICATIONS, ORDERS, 3 AND IMPLEMENTATION OF ORDERS. 4 (a) INVESTIGATION OBJECTIVES.--Section 2518(1)(b) of 5 title 18 of the United States Code is amended by inserting 6 immediately before the semicolon at the end the following: 7 ", and (v) the specific investigative objectives and the 8 specific targets, if known, of the interception to which the 9 application pertains". 10 (b) ALTERNATE INVESTIGATIVE TECHNIQUES.--Section 11 2518(1)(c) of title 18 of the United State Code is amended 12 by inserting "(including the use of consensual monitoring, 13 pen registers, tracers, contempt proceedings, perjury 14 prosecutions, use of accomplice testimony, grand jury 15 subpoena of documents, search warrants, interviewing 16 witnesses, and obtaining documents through other legal 17 means)" after "procedures". 18 (c) PLACE OF AUTHORIZED INTERCEPTION.--Section 2518(3) of 19 title 18 of the United States Code is amended by inserting 20 "(and outside that jurisdiction but within the United States 21 in the case of a mobile interception device installed within 22 such jurisdiction)" after "within the territorial 23 jurisdiction of the court in which the judge is sitting". 24 (d) PHYSICAL ENTRY.--Section 2518(4) of title 18 of the 25 United States Code is amended by adding at the end "An order ----------------------- (Beginning of Page 9) 1 authorizing the interception of an electronic communication 2 under this chapter may, upon a showing by the applicant that 3 there are no other less intrusive means reasonably available 4 of effecting the interception, authorize physical entry to 5 install an electronic, mechanical, or other device.". 6 (e) PERIODIC REPORTS.--Subsection (6) of section 2518 of 7 title 18 of the United States Code is amended to read as 8 follows: 9 "(6) An order authorizing interception pursuant to this 10 chapter shall require that reports be made not less often 11 than every ten days to the judge who issued such order, 12 showing what progress has been made toward achievement of the 13 authorized objective, the need, if any for continued 14 interception, and whether any evidence has been discovered 15 through such interception of offenses other than those with 16 respect to which such order was issued. The judge may suspend 17 or terminate interception if any such report is deficient, 18 evinces serious procedural irregularities, or indicates the 19 legal basis of continued interception no longer exists." 20 (f) TIME LIMIT FOR THE MAKING AVAILABLE TO JUDGE OF 21 RECORDINGS.--Section 2518(8)(a) of title 18 of the United 22 States Code is amended by striking out "Immediately upon" 23 and inserting "Not later than 48 hours after" in lieu 24 thereof. ----------------------- (Beginning of Page 10) 6 SEC. 107. REPORTING REQUIREMENT. 7 Section 108(b) of the Foreign Intelligence Surveillance 8 Act of 1978 (50 U.S.C. 1808(b)) is amended by striking out 9 "On" and all that follows through "four years thereafter" 10 and inserting in lieu thereof "On or before October 25 of 11 each year". 12 SEC. 108. EFFECTIVE DATE. 13 This title and the amendments made by this title shall 14 take effect 90 days after the date of the enactment of this 15 Act and shall, in the case of conduct pursuant to a court 16 order or extension, apply only with respect to court orders 17 or extensions made after this title takes effect." PARTIAL EXPLANATION OF THIS POSSIBLE LEGISLATION, AS DRAFTED TO DATE The draft attempts to insert reforms into the existing structure of Title III in the following ways: * Provides a new definition of "electronic communication." * Provides criminal penalties for unauthorized access to obtain or transform an electronic communication stored in an electronic communications system. * Provides for restrictions on the disclosure of the contents of an electronic communication by the service providers under specified circumstances. * Provides civil penalties for violations of the provisions of the Act. In a MEMORANDUM from Mr. Podesta dated August 16, 1985 he stated, in part: "What is missing from this draft is a section regulating the circumstances and standards under which the government may obtain the contents of an electronic communication, records generated about a service user by a service provider, and records generated through the use of a pen register or tracer. We still are working on weaving those provisions into the current structure of Title III, specifically in 18 U.S.C. Sec. 2518. From a policy point of view, we continue to believe that the best approach is to require a probable cause warrant to acquire the contents of a communication, similar to that required in Sub Sec. 2518. We believe that a court order based on reasonable suspicion is a more appropriate mechanism for giving government access to records generated by a service provider about a user as well as for the installation of a pen register or tracer." EDITOR'S COMMENT As one can see, this legislation is designed to protect legitimate users of telecommunications and BBS technology. As we have requested in prior reports on troubling legislation that all interested parties write to the Congressmen and Senators and those involved with sponsoring legislation, we again ask that you write, but this time in support of the legislation herein reported on. Electronic (digital) systems need the same protection afforded to voice (analog) telephone communication and the protection afforded to letters sent via the United States Post Office. We'll have more to report in future newsletters. --------------------------------------- [][][][][][][][][][][][][][][][][][][] The Fifth Precinct..[502] 245-8270 [][][][][][][][][][][][][][][][][][][]

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