H.R. 3378, THE ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1985

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87M01152R001101410015-3
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 4
• Document Creation Date: December 23, 2016
• Document Release Date: November 24, 2010
• Sequence Number: 15
• Publication Date: November 11, 1985
• Content Type: MEMO

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- US. Department of Justice
Office of Intelligence Policy and Review
Washington, D.C. 20530
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THIS IS A COVER SHEET
FOR
INFORMATION SUBJECT TO
Basic security requirements contained in Department of Justice Regulations
(28 CFR Part 17).
The unauthorized disclosure of the information contained in the attached docu-
ment(s) could reasonably be expected to cause damage to the national security.
Handling, storage, reproduction and disposition of the attached document(s) will
be in accordance with policies and procedures set forth in regulations cited above.
(This cover sheet is unclassified when separated from classified documents)
FORM D01-383
OCT. 83
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I.11 II
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C 0 N F
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NATIONAL SECURITY AGENCY
CENTRAL SECURITY SERVICE
FORT GEORGE G. MEADE, MARYLAND 20755-6000
Serial: GC/261/85
11 November 1985
MEMORANDUM FOR THE GENERAL COUNSEL, DEPARTMENT OF DEFENSE
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ATTN: Director, Legislative Reference Service
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SUBJECT: H.R. 3378, The Electronic Communications Privacycmc_
Act of 1985
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N.or?
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(U) This responds to your legislative routing slip of 24;2
October 1985, subject as above, which requested comments on H.RiS
3378. This bill would amend Title III of the Omnibus Crime
Control and Safe Streets Act to clarify its applicability to
modern communications technology and to protect computer data
bases. The National Security Agency finds that this bill ade-
quately addresses privacy interests and with one exception
(discussed in paragraph 2) does not infringe on legitimate foreign
intelligence and communications security interests of this Agency.
We would recommend, however, several changes to bring the language
of the bill into conformance with terminology generally accepted
by the telecommunications, law enforcement and intelligence com-
munities, as noted below. Additionally, we propose that an
explicit exemption for communications security activities directed
at certain radio communications be added.
1. (U) In Section 101 (a) (1) [definition of 'electronic
communication'], insert "by a provider of an electronic communica-
tion service engaged in the transmission of interstate or foreign
communications," in lieu of the clause "that affects interstate or
foreign commerce." In this context, the word "affect" is ambig-
uous. The proposed change would bring the revised definition into
closer agreement with the existing statute with respect to common
carriers/providers of electronic communication service. That part
of the statute has been subjected to extensive judicial review and
commentary and has merit.
2. (U) Propose that the phrase, "provider of electronic
communication service" be defined. It is unclear, for example,
whether that term includes a government agency or corporation
which provides a telephone system for the use of its employees.
3. (U) In Section 101 (a) (2), we agree that the word
"aural" should be deleted in the phrase "aural acquisition" but
suggest the word "acquisition" remain rather than replacing it
with the word "interception." This change, in lieu of the substi-
tution of "interception", would bring this statute in closer con-
formance with the Foreign Intelligence Surveillance Act. Such
conformance would promote consistent development and interpreta-
tion of electronic surveillance law.
r/(.:1 122-2
Chriari!iy C: thig;ralinz Detenetatlea Refieer
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CONFIDENTIAL
4. (U) In Section 101 (b), suggest that the word "designed"
in Section 2511 (2) (g) (i) be replaced with the word "intended"
for reasons of clarity.
5. (U) In Section 101 (b), we believe the words used to
describe different types of radio systems in Section 2511 (2) (g)
(ii), e.g. "walkie talkie", "citizens band", "amateur radio", and
"for the use of the general public which relates to ships,
aircraft, vehicles, or persons in distress," are too colloquial
for enduring legislation. For instance, the description might
include "radio systems, the communications of which do not enjoy a
reasonable expectation of privacy," or might specifically list
systems such as "hand-held radio transmitters", marine-band
radios", "aircraft-band radios", "transmitters operating in fre-
quencies reserved for the use of the government", and so on.
6. (U) We recommend that a new section be added in Section
101 (b) to become Section 2511 (2) (i), which would read as
follows: "(i) It shall not be unlawful under this chapter or the
Foreign Intelligence Surveillance Act of 1978, for duly authorized
components of the executive branch of the United States to inter-
cept the electronic communications of the executive branch which
are transmitted by radio when the interception is to assess the
security of those electronic communications from interception and
exploitation." This change would make clear that communications
security monitoring of radio communications systems which would
not require a warrant for interception under Section 2511 is
lawful. Communications security monitoring of communications
systems which are protected by Section 2511 would still be permis-
sible but only where consent for the monitoring had first been
obtained.
7. (C) We recommend adding a provision in Section 101(b) of
the bill that would amend 18 U.S.C., Section 2511 (2) (f), by
adding, after the words "international or foreign communications",
the words "or from a foreign electronic communications system."
This change makes explicit that certain United States Government
intelligence activities directed at foreign data bases are not
within the purview of Title III.
ELIZABETH R. RINDSKOPF
General Counsel
?BY: ALFRED C. FRANKLIN
Legislative and Regulatory Counsel
DOJ, Office of Intelligence Policy and Review
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CONFIDENTIAL
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