[Posted on Feb. 10, 2006]


STATEMENT
OF
LOUIS J. FREEH
DIRECTOR
FEDERAL BUREAU OF INVESTIGATION
WASHINGTON, D.C.
MARCH 18, 1994

BEFORE THE
SUBCOMMITTEE ON TECHNOLOGY AND THE LAW
OF THE COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
AND THE
SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS
OF THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

MR. CHAIRMEN, I APPRECIATE THE OPPORTUNITY TO APPEAR BEFORE
YOUR SUBCOMMITTEES. I AM HERE TODAY NOT JUST IN MY CAPACITY AS
DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION BUT ALSO AS A
SPOKESMAN FOR OUR NATION'S LAW ENFORCEMENT AND INTELLIGENCE
COMMUNITIES REGARDING A MATTER OF EXTREME URGENCY AND IMPORTANCE. I
AM HERE ON BEHALF OF THE ADMINISTRATION TO TELL YOU THAT WE ARE
CONFRONTED WITH A MAJOR THREAT TO OUR ABILITY TO PROTECT THE AMERICAN
PUBLIC, SAFEGUARD THE NATIONAL SECURITY, AND EFFECTIVELY ENFORCE THE
LAW. THIS THREAT RESULTS FROM VARIOUS TECHNOLOGICAL IMPEDIMENTS TO
OUR ABILITY TO EXECUTE COURT ORDERS AND LAWFULLY CONDUCT ELECTRONIC
SURVEILLANCE AND ACQUIRE THE ASSOCIATED DIALING INFORMATION. THESE
IMPEDIMENTS ARE THE UNINTENDED SIDE EFFECTS OF ADVANCED
TELECOMMUNICATIONS TECHNOLOGY WHICH HAS BEEN, AND CONTINUES TO BE,
DEPLOYED WITHOUT CONSIDERATION FOR THE CRITICAL NEEDS OF OUR NATION'S
LAW ENFORCEMENT AND INTELLIGENCE AGENCIES.

I AM HERE TODAY TO STRONGLY ASSERT WHAT I AND THE ADMINISTRATION
BELIEVE IS THE ONLY RATIONAL AND VIABLE MEANS OF REMOVING THIS THREAT
-- THE ENACTMENT OF THE PROPOSED COMPREHENSIVE LEGISLATION TO ADDRESS
THE DIGITAL TELEPHONY ISSUE.

WITHOUT ITS ENACTMENT, ONE OF OUR MOST EFFECTIVE WEAPONS AGAINST
NATIONAL AND INTERNATIONAL DRUG TRAFFICKING, TERRORISM, ESPIONAGE,
ORGANIZED CRIME, AND SERIOUS VIOLENT CRIMES WILL BE SEVERELY AND
ADVERSELY IMPACTED.

THE ADMINISTRATION WANTS TO WORK WITH THE CONGRESS TO DEVELOP
SUCH COMPREHENSIVE LEGISLATION. I WILL DESCRIBE IN THIS TESTIMONY A
DRAFT LEGISLATIVE PROPOSAL THAT HAS BEEN SHARED WITH YOU.

QUITE SIMPLY, THE PURPOSE OF THIS LEGISLATION (DRAFT) IS TO
MAINTAIN TECHNOLOGICAL CAPABILITIES COMMENSURATE WITH EXISTING
STATUTORY AUTHORITY -- THAT IS, TO PREVENT ADVANCED TELECOMMUNICATIONS
TECHNOLOGY FROM REPEALING DE FACTO THE STATUTORY AUTHORITY ALREADY
CONFERRED BY THE CONGRESS. THE PROPOSED LEGISLATION EXPLICITLY STATES
THAT THE LEGISLATION DOES NOT ENLARGE OR REDUCE THE GOVERNMENT'S
AUTHORITY TO LAWFULLY CONDUCT COURT-ORDERED ELECTRONIC SURVEILLANCE
AND INSTALL OR USE COURT-ORDERED PEN REGISTER OR TRAP AND TRACE
DEVICES. THE ESSENCE OF THE DRAFT LEGISLATION IS TO CLARIFY AND MORE
FULLY DEFINE THE NATURE AND EXTENT OF THE TELECOMMUNICATIONS SERVICE
PROVIDER'S "ASSISTANCE" REQUIREMENT THAT WAS ENACTED BY CONGRESS IN
1970. THAT REQUIREMENT EVIDENCED CONGRESS' CLEAR INTENT THAT LAWFUL
COURT ORDERS SHOULD NOT BE FRUSTRATED DUE TO A SERVICE PROVIDER'S
FAILURE TO PROVIDE NEEDED TECHNOLOGICAL ASSISTANCE AND FACILITIES. THE
PROPOSED LEGISLATION RELATES SOLELY TO ADVANCED TECHNOLOGY, NOT
LEGAL AUTHORITY OR PRIVACY.

WE DID NOT COME TO SEEK LEGISLATION BLITHELY. FOR NEARLY FOUR
YEARS, THE FBI HAS EXPENDED EVERY REASONABLE EFFORT TO ADDRESS THIS
THREAT THROUGH NUMEROUS AND ONGOING MEETINGS WITH THE
TELECOMMUNICATIONS INDUSTRY. HOWEVER, IT IS MY CONSIDERED JUDGEMENT,
AND THAT OF THE ADMINISTRATION, THAT DIALOGUE ALONE, NO MATTER HOW
WELL INTENDED, WILL NOT SOLVE THIS SERIOUS THREAT TO PUBLIC SAFETY.
NONETHELESS, WE HAVE LISTENED AND LEARNED, AND THE LEGISLATIVE
PROPOSAL BEFORE YOU REPRESENTS, IN OUR ESTIMATION, THE ONLY PROPER
APPROACH. ON THE ONE HAND, IT DEALS WITH THE ADVANCED TELEPHONY
PROBLEM IN AN APPROPRIATELY COMPREHENSIVE FASHION -- IT DOES NOT
SIMPLY "BAND-AID-OVER" PAST PROBLEMS, IT ALSO RESPONSIBLY DEALS WITH
NEW SERVICES AND TECHNOLOGIES (SUCH AS PERSONAL COMMUNICATIONS
SERVICES) THAT LIKELY WILL EMERGE IN THE NEXT FEW YEARS. ON THE OTHER
HAND, THE DRAFT LEGISLATION IS NARROWLY FOCUSED AND COVERS ON ONLY
THOSE SEGMENTS OF THE TELECOMMUNICATIONS INDUSTRY WHERE THE VAST
MAJORITY OF THE PROBLEMS EXIST -- THAT IS, ON COMMON CARRIERS, A
SEGMENT OF THE INDUSTRY WHICH HISTORICALLY HAS BEEN SUBJECT TO
REGULATION. WE BELIEVE THE PROVISIONS OF THE ADMINISTRATION'S
PROPOSAL ADDRESS THE PROBLEM IN A VERY RATIONAL FASHION. THEY INCLUDE
CLEARLY STATED LAW ENFORCEMENT ELECTRONIC SURVEILLANCE REQUIREMENTS,
SYSTEMS SECURITY PROVISIONS, A REASONABLE DEADLINE FOR COMPLIANCE,
REQUIREMENTS FOR EQUIPMENT MANUFACTURER AND SUPPORT SERVICE PROVIDER
COOPERATION, PROPER ENFORCEMENT AND PENALTY PROVISIONS, ONGOING
GOVERNMENT CONSULTATION WITH COMMON CARRIERS TO FACILITATE COMPLIANCE,
AND, IMPORTANTLY, A COMMITMENT ON THE PART OF THE FEDERAL GOVERNMENT
TO PAY COMMON CARRIERS FOR REASONABLE CHARGES ASSOCIATED WITH
ACHIEVING COMPLIANCE.

IMPORTANCE OF ELECTRONIC SURVEILLANCE

AS THE PROPOSED LEGISLATION IS CONSIDERED, IT IS ABSOLUTELY
ESSENTIAL THAT CONGRESS UNDERSTAND THE IMPORTANCE OF ELECTRONIC
SURVEILLANCE, AS WELL AS THE SEVERE HARM THAT WILL OCCUR IF THIS
CRITICAL LAW ENFORCEMENT TOOL IS LOST OR DIMINISHED.

THE NATION'S TELECOMMUNICATIONS NETWORKS ARE ROUTINELY USED IN
THE COMMISSION OF SERIOUS CRIMINAL ACTIVITIES, INCLUDING TERRORISM
AND ESPIONAGE. ORGANIZED CRIME GROUPS AND DRUG TRAFFICKING
ORGANIZATIONS, WHICH ARE OFTEN HIGHLY STRUCTURED, RELY HEAVILY UPON
TELECOMMUNICATIONS TO PLAN AND EXECUTE THEIR CRIMINAL ACTIVITIES AND
HIDE THEIR ILLEGAL PROCEEDS. SIMILARLY, FOREIGN INTELLIGENCE SERVICE
OFFICERS AND THEIR AGENTS CARRY OUT THEIR SPY AND OTHER CLANDESTINE
MISSIONS THROUGH THESE NETWORKS.

CONGRESS RECOGNIZED THIS FACT A LITTLE OVER 25 YEARS AGO, WHEN
IT PASSED THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968.
TITLE III OF THAT ACT CONTAINED THE FIRST COMPREHENSIVE FEDERAL
LEGISLATIVE REGIMEN REGARDING ELECTRONIC SURVEILLANCE FOR USE IN
CRIMINAL INVESTIGATIONS. THE TITLE III LEGISLATION ESTABLISHED STRICT
PROCEDURES FOR THE CONDUCT OF ELECTRONIC SURVEILLANCE BY FEDERAL,
STATE AND LOCAL LAW ENFORCEMENT AUTHORITIES. THESE PROCEDURES ARE
CAREFULLY ADHERED TO BY LAW ENFORCEMENT AND ARE RIGOROUSLY ENFORCED
BY THE COURTS.

TO DATE, THIRTY-SEVEN (37) STATES, PUERTO RICO, THE U.S. VIRGIN
ISLANDS, AND THE DISTRICT OF COLUMBIA ALSO HAVE ENACTED ELECTRONIC
SURVEILLANCE STATUTES. IN 1992, A TOTAL OF 919 TITLE III ORDERS, AS
WELL AS AN ESTIMATED 9,000 PEN REGISTER ORDERS, WERE AUTHORIZED FOR
ALL FEDERAL, STATE, AND LOCAL LAW ENFORCEMENT AGENCIES. ON AVERAGE,
APPROXIMATELY TWO-THIRDS OF THE CRIMINAL-RELATED ELECTRONIC
SURVEILLANCE CONDUCTED IN THE UNITED STATES IS CARRIED OUT BY STATE
AND LOCAL LAW ENFORCEMENT AGENCIES. AS MANDATED IN THE TITLE III
LEGISLATION, ELECTRONIC SURVEILLANCE MAY BE USED ONLY IN THE
INVESTIGATION OF SERIOUS FELONY OFFENSES AND ONLY WHEN OTHER
INVESTIGATIVE TECHNIQUES WILL NOT WORK OR ARE TOO DANGEROUS.

IN 1978, CONGRESS ESTABLISHED AN ANALOGOUS FEDERAL ELECTRONIC
SURVEILLANCE REGIMEN FOR USE IN COUNTER-INTELLIGENCE, COUNTER-
TERRORISM, AND COUNTER-ESPIONAGE INVESTIGATIONS, THE FOREIGN
INTELLIGENCE SURVEILLANCE ACT OF 1978 (FISA). PURSUANT TO FISA, THE
U. S. GOVERNMENT IS AUTHORIZED TO INTERCEPT COMMUNICATIONS OF
INDIVIDUALS WHO POSE A THREAT TO THE NATIONAL SECURITY, AND INCLUDE
THOSE IN FURTHERANCE OF ESPIONAGE AND TERRORISM.

SINCE THE PASSAGE OF TITLE III, LAW ENFORCEMENT HAS FOUND
ELECTRONIC SURVEILLANCE TO BE ONE OF ITS MOST IMPORTANT INVESTIGATIVE
TECHNIQUES -- IF NOT THE MOST IMPORTANT. USE OF THE TECHNIQUE HAS
BEEN CRITICAL IN FIGHTING ORGANIZED CRIME, DRUG TRAFFICKING, PUBLIC
CORRUPTION, FRAUD, TERRORISM, AND VIOLENT CRIME, AND IN SAVING
NUMEROUS INNOCENT LIVES. IN MANY OF THESE CASES, THE CRIMINAL
ACTIVITY UNDER INVESTIGATION COULD NEVER HAVE BEEN FULLY DETECTED,
PREVENTED, ADEQUATELY INVESTIGATED, OR SUCCESSFULLY PROSECUTED WITHOUT
THE USE OF EVIDENCE DERIVED FROM COURT-ORDERED ELECTRONIC
SURVEILLANCE. SIMILARLY, FISA-BASED INTELLIGENCE INFORMATION MAKES A
SIGNIFICANT AND IMPORTANT CONTRIBUTION TO U. S. COUNTER-INTELLIGENCE,
COUNTER-TERRORISM, AND COUNTER-ESPIONAGE EFFORTS.

AS YOU ARE AWARE, ELECTRONIC SURVEILLANCE IS A CRITICAL TOOL USED
TO DETECT AND OBTAIN EVIDENCE OF, AND OFTEN PREVENT, THE MOST SERIOUS,
AND OFTEN MOST VIOLENT, CRIMINAL ACTIVITY CONFRONTING OUR SOCIETY. AS
SHOWN IN THE ATTACHED EXHIBIT, ALTHOUGH USED SPARINGLY, ELECTRONIC
SURVEILLANCE HAS PROVED TO BE AN EXTREMELY EFFECTIVE INVESTIGATIVE
TECHNIQUE FOR LAW ENFORCEMENT AND HAS LED TO THE CONVICTIONS OF
THOUSANDS OF DANGEROUS PERSONS INVOLVED IN DRUG TRAFFICKING, ORGANIZED
CRIME, VIOLENT CRIME, KIDNAPING, CRIMES AGAINST CHILDREN, AND PUBLIC
CORRUPTION. BECAUSE A SUBSTANTIAL NUMBER OF PROSECUTIONS ARE ONGOING,
THE EXACT NUMBER OF CONVICTIONS RESULTING FROM THESE WIRETAPS
INCREASES ALMOST DAILY; HOWEVER, THIS KEY INVESTIGATIVE TECHNIQUE HAS
PROVEN TO BE INCOMPARABLY EFFECTIVE, WITH THE RESULTING EVIDENCE
SECURING THE CONVICTION OF OVER 22,000 DANGEROUS FELONS OVER THE PAST
DECADE.

PUBLIC SAFETY: PREVENTING CRIMES AND SAVING HUMAN LIVES

ALTHOUGH ELECTRONIC SURVEILLANCE IS EXTREMELY IMPORTANT AS AN
INVESTIGATIVE TOOL TO ACQUIRE EVIDENCE, FREQUENTLY IT HAS BEEN
ESSENTIAL IN PREVENTING CRIMES FROM OCCURRING AND IN SAVING HUMAN
LIFE. ELECTRONIC SURVEILLANCE HAS BEEN ESSENTIAL IN PREVENTING
MURDERS; IN SAVING HUMAN LIFE PUT AT RISK THROUGH PLANNED TERRORIST
ATTACKS; IN DISMANTLING ENTRENCHED ORGANIZED CRIME GROUPS WHICH
SEVERELY HARM THE ECONOMY THROUGH EXTORTION, FRAUD, AND CORRUPTION;
AND IN ATTACKING THE MAJOR NATIONAL AND INTERNATIONAL DRUG IMPORTATION
AND DISTRIBUTION CARTELS AND NETWORKS WHOSE ACTIVITIES RAVAGE SOCIETY
AND CAUSE INCALCULABLE PERSONAL AND ECONOMIC INJURY IN THE UNITED
STATES.

ORGANIZED CRIME INVESTIGATIONS

THE ACTIVITIES OF ORGANIZED CRIME ARE EXTREMELY HARMFUL TO
AMERICAN BUSINESS AND INDUSTRY, LABOR UNIONS, AND INDIVIDUALS IN OUR
SOCIETY. ELECTRONIC SURVEILLANCE IS INDISPENSABLE IN COMBATTING
ORGANIZED CRIME. INDEED, THE FBI'S ORGANIZED CRIME/DRUGS SECTION
REPORTS THAT EVERY MAJOR FBI ORGANIZED CRIME INVESTIGATION HAS RELIED
UPON ELECTRONIC SURVEILLANCE. IN APRIL, 1988, THE IMPORTANCE OF THE
ELECTRONIC SURVEILLANCE TECHNIQUE WAS FORMALLY RECOGNIZED IN HEARING
TESTIMONY BEFORE THE U.S. SENATE PERMANENT SUBCOMMITTEE ON
INVESTIGATIONS, GOVERNMENTAL AFFAIRS COMMITTEE, ON ORGANIZED CRIME:
"25 YEARS AFTER VALACHI." IN PARTICULAR, DAVID C. WILLIAMS, OFFICE OF
SPECIAL INVESTIGATIONS, GENERAL ACCOUNTING OFFICE, TESTIFIED THAT
"ELECTRONIC SURVEILLANCE IS ANOTHER TOOL THAT HAS BEEN OF GREAT VALUE
TO THE LAW ENFORCEMENT COMMUNITY TO COMBAT THE LA COSA NOSTRA (LCN)
(ORGANIZED CRIME FAMILIES). EVIDENCE GATHERED THROUGH ELECTRONIC
SURVEILLANCE ... HAS HAD A DEVASTATING IMPACT ON ORGANIZED CRIME."
(EMPHASIS ADDED)

LEFT UNCHECKED, ORGANIZED CRIME EXERTS A CHOKE HOLD ON SOCIETY,
AND THE SUBSEQUENT COST TO BUSINESS AND INDUSTRY IS DRAMATIC. GREATER
DETAIL CONCERNING AREAS OF ORGANIZED CRIME'S PENETRATION IN BUSINESS
AND LABOR UNIONS AND EXAMPLES OF THE SUCCESSFUL USE OF ELECTRONIC
SURVEILLANCE TO EFFECTIVELY COMBAT THE ADVERSE IMPACT OF ORGANIZED
CRIME UPON THE ECONOMY AND SOCIETY IS SET FORTH IN THE ATTACHED
APPENDIX.

IN THE 1986 REPORT, THE IMPACT: ORGANIZED CRIME TODAY, THE
PRESIDENT'S COMMISSION ON ORGANIZED CRIME UTILIZED THE WHARTON
BUSINESS SCHOOL'S LONG-TERM MODEL OF THE UNITED STATES ECONOMY TO
ESTIMATE THE COST OF ORGANIZED CRIME ON THE ECONOMY, IN TERMS OF
SUSTAINED HIGHER PRICES AND THE CONTINUED UNDERPAYMENT OF TAXES TO THE
FEDERAL GOVERNMENT. THE COMMISSION CONCLUDED THAT THE ESTIMATED
ECONOMY-WIDE IMPACT OF ORGANI2ED CRIME, EXCLUDING DRUG TRAFFICKING
ORGANIZATIONS, WAS AS FOLLOWS:

* U. S. OUTPUT WAS REDUCED BY $18.2 BILLION IN 1986 DOLLARS.

* U. S. EMPLOYMENT WAS REDUCED BY 414,000 JOBS.

* CONSUMER PRICES WERE HIGHER BY 0.3 PERCENT; AND,

* PER CAPITA PERSONAL INCOME WAS LOWER BY $77.22, MEASURED IN
1986 DOLLARS.

FBI ORGANIZED CRIME PROGRAM MANAGERS STATE: "THE LOSS OR
IMPAIRMENT OF THE CAPABILITY TO CONDUCT COURT-ORDERED ELECTRONIC
SURVEILLANCE WOULD CATASTROPHICALLY IMPAIR FEDERAL AND STATE LAW
ENFORCEMENT AGENCIES' ABILITY TO EFFECTIVELY INVESTIGATE ORGANIZED
CRIMINAL GROUPS." (EMPHASIS ADDED)

ALTHOUGH NO STUDIES HAVE BEEN CONDUCTED TO MEASURE THE PRECISE
ECONOMIC AND SOCIETAL BENEFITS DERIVED FROM THE SUCCESSES OF FEDERAL
AND STATE CRIMINAL LAW ENFORCEMENT AGENCIES AGAINST ORGANIZED CRIME,
IT IS EVIDENT THAT AN ABATEMENT IN SUCCESSFUL ORGANIZED CRIME
INVESTIGATIONS, DUE TO THE LOSS OR IMPAIRMENT OF ONE OF LAW
ENFORCEMENT'S MOST IMPORTANT TOOLS -- THE COURT-- ORDERED ELECTRONIC
SURVEILLANCE TECHNIQUE -- WOULD ALLOW ORGANIZED CRIME'S DAMAGE TO THE
U.S. ECONOMY TO BECOME SUBSTANTIALLY GREATER.

NARCOTICS AND DANGEROUS DRUGS

THE GREATEST USE OF ELECTRONIC SURVEILLANCE BY LAW ENFORCEMENT
RELATES TO THE FEDERAL AND STATE GOVERNMENTS' "WAR ON DRUGS."
INFORMATION REPORTED IN THE FEDERAL WIRETAP REPORT BY THE
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS INDICATES THAT
ALMOST TWO THIRDS (62%) OF ALL TITLE III GOVERNMENTAL ELECTRONIC
SURVEILLANCE IS DEVOTED TO THIS CRITICAL NATIONAL PROBLEM. THE MAJOR
DRUG TRAFFICKING ORGANIZATIONS WHICH IMPORT AND DISTRIBUTE DRUGS,
LIKE ANY BUSINESS OR ORGANIZATION, RELY HEAVILY ON TELECOMMUNICATIONS
TO COORDINATE AND CARRY OUT THESE CRIMINAL ACTIVITIES AND TO
"LAUNDER" THE BILLIONS OF DOLLARS IN ILLEGAL DRUG PROCEEDS.
ACCORDINGLY, FEDERAL AND STATE LAW ENFORCEMENT MAXIMIZE THEIR LIMITED
RESOURCES AND FOCUS ELECTRONIC SURVEILLANCE EFFORTS ON THE MAIN DRUG
IMPORTATION AND DISTRIBUTION NETWORKS.

ALTHOUGH FIGURES ABOUND WITH REGARD TO THE BILLIONS OF DOLLARS IN
FEDERAL, STATE, AND LOCAL SEIZURES OF DRUGS, ILLEGAL DRUG PROCEEDS
(CASH AND OTHER ASSETS), ETC., THE FUNDAMENTAL HARM TO SOCIETY IS
INCALCULABLE. IT IS IMPOSSIBLE TO FULLY IDENTIFY THE HUMAN,
ECONOMIC, AND OTHER SOCIETAL HARM BROUGHT ABOUT BY DRUG DEPENDENCY AND
ADDICTION. IN ONE ATTEMPT TO QUANTIFY CERTAIN FACETS OF THIS HARM,
THE U. S. PUBLIC HEALTH SERVICE HAS ESTIMATED THE HEALTH, LABOR, AND
CRIME COSTS OF DRUG ABUSE AT $58.3 BILLION IN 1988, EXCLUSIVE OF THE
VALUE OF THE DRUGS THEMSELVES. D. RICE, ET AL., U. S. DEPARTMENT OF
HEALTH AND HUMAN SERVICES, THE ECONOMIC COST OF ALCOHOL AND DRUG ABUSE
AND MENTAL ILLNESS: 1985, TABLE 1, PAGE 2 (1990). A 1992 U. S.
DEPARTMENT OF HEALTH AND HUMAN SERVICES' STUDY ESTIMATES THE 1992
COSTS OF DRUG ABUSE IN THE UNITED STATES TO BE $168 BILLION OR $675
PER PERSON. APPROXIMATELY $40 BILLION DOLLARS A YEAR ARE SPENT BY
USERS TO PROCURE THESE DRUGS.

ULTIMATELY, THE ECONOMIC, SOCIETAL, AND PERSONAL HARM OF DRUG
TRAFFICKING IS ALSO MEASURED IN DAILY "DRIVE-BY SHOOTINGS" IN
NEIGHBORHOOD STREETS (WHERE THE BLOOD OF INNOCENT CHILDREN IS SPILLED
NEXT TO THAT OF NEIGHBORHOOD DRUG LIEUTENANTS); SUBSTANTIALLY
INCREASED CRIME SUCH AS THEFTS, ROBBERIES, AND MURDERS BROUGHT ABOUT
BY DRUG USE; VIOLENT "TURF BATTLES" TO CONTROL DRUG DISTRIBUTION; LOST
PRODUCTIVITY; EMPLOYEE ABSENCE; EXTENSIVE AND EXPENSIVE HEALTH CARE
WITH DRUG CASUALTIES THAT CLOG OUR HOSPITAL EMERGENCY ROOMS; AS WELL
AS THE SAD OCCURRENCE OF A GENERATION OF DRUG-DEPENDANT BABIES.

THE DRUGS WHICH ARE MOST RESPONSIBLE FOR THIS PROBLEM ARE
ESSENTIALLY THOSE (SUCH AS COCAINE AND HEROIN) WHICH MUST BE IMPORTED
INTO THE UNITED STATES, GENERALLY BY HIGHLY ORGANIZED CRIMINAL GROUPS,
DRUG TRAFFICKING CARTELS AND OTHER SYNDICATES, AND THEREAFTER
TRANSPORTED OVER VAST DISTANCES AND DISTRIBUTED WIDELY WITHIN THE
UNITED STATES. THESE CARTELS AND ORGANIZATIONS RELY HEAVILY ON
TELECOMMUNICATIONS TO CARRY OUT THEIR ILLEGAL ACTIVITIES. THE UNITED
STATES GOVERNMENT ESTIMATES THAT EVERY YEAR OVER 400 METRIC TONS OF
COCAINE AND APPROXIMATELY 18 TO 22 METRIC TONS OF HEROIN ARE SMUGGLED
INTO THE UNITED STATES.

ELECTRONIC SURVEILLANCE IS CRITICAL IN THE MONITORING OF THE DRUG
TRAFFICKERS' "COMMUNICATIONS NETWORKS," PROVIDING LAW ENFORCEMENT WITH
THE ABILITY TO IDENTIFY ALL OF THE ORGANIZATION'S DRUG TRAFFICKERS AND
THEIR ILLEGAL PROCEEDS, AS WELL AS ULTIMATELY IN DISMANTLING THOSE
NATIONAL AND INTERNATIONAL DRUG TRAFFICKING ORGANIZATIONS. SINCE
NATIONAL AND INTERNATIONAL DRUG CHIEFTAINS AND LOCAL DRUG "KINGPINS"
DO NOT APPEAR AT DRUG BUYS OR SHIPMENTS, ELECTRONIC SURVEILLANCE
ORDINARILY PROVIDES THE ONLY RELIABLE METHOD OF LINKING THE DRUG
ORGANIZATIONS' LEADERS WITH THE ENTERPRISE, AND FREQUENTLY PROVIDES
THE ONLY DIRECT AND PERSUASIVE EVIDENCE THAT WILL SUPPORT A CRIMINAL
CONVICTION. CONSEQUENTLY, INFORMATION DERIVED FROM ELECTRONIC
SURVEILLANCE IS ESSENTIAL IN SUCCESSFULLY PROSECUTING THOSE AT THE
EXECUTIVE LEVEL OF THE DRUG TRADE.

RECENT EXAMPLES OF THE CRITICAL ROLE OF ELECTRONIC SURVEILLANCE
IN DRUG INVESTIGATIONS ARE:

* IN A NEW YORK CITY-BASED DRUG TRAFFICKING INVESTIGATION, AN
FBI-LED TASK FORCE CONDUCTED OVER 55 SEPARATE ELECTRONIC SURVEILLANCES
(WITH NUMEROUS EXTENSIONS). AS OF MARCH 1993, THIS INVESTIGATION HAS
RESULTED IN 222 ARRESTS; 167 CONVICTIONS; THE DISMANTLING OF 15 MAJOR
DRUG TRAFFICKING ORGANIZATIONS/GANGS, AND THE IDENTIFICATION OF 30
OTHERS; THE RESOLUTION OF SOME 40 NEW YORK AREA HOMICIDES, INCLUDING
THE ASSASSINATION OF A NYCPD POLICE OFFICER AND A NEW YORK STATE
PAROLE OFFICER. SUBSTANTIAL QUANTITIES OF DRUGS HAVE BEEN SEIZED AND
OVER $8 MILLION IN ASSETS HAVE BEEN SEIZED. THESE EFFORTS HAVE
RESULTED IN A SUBSTANTIAL REDUCTION IN DRUG-RELATED HOMICIDES.

* THE APRIL, 1992, DRUG RAID IN MIAMI THAT NETTED 15,000 POUNDS
OF COCAINE WHICH WAS BASED ON INFORMATION DEVELOPED THROUGH ELECTRONIC
SURVEILLANCE. EVIDENCE DERIVED FROM ELECTRONIC SURVEILLANCE WAS
INSTRUMENTAL IN IDENTIFYING THE NETWORK'S LEADER AMONG THE 22
DEFENDANTS ARRESTED;

* THE 1991 DEA HERRERA DRUG INVESTIGATION IN NEW YORK CITY
RESULTING IN THE SUCCESSFUL PROSECUTION OF 51 DEFENDANTS, INCLUDING
KEY INDIVIDUALS LINKED TO THE CALI DRUG CARTEL, RELIED UPON ELECTRONIC
SURVEILLANCE.

WITHOUT THE USE OF ONE OF FEDERAL AND STATE LAW ENFORCEMENT'S
MOST IMPORTANT ENFORCEMENT TOOLS -- ELECTRONIC SURVEILLANCE -- THE
VOLUME OF DRUGS WOULD DRAMATICALLY INCREASE AND THE EASE AND MEAN
IMPORTATION AND DISTRIBUTION WOULD BE DRAMATICALLY ENHANCED TROUGH THE
USE OF THEIR DRUG "COMMUNICATIONS NETWORKS."

PUBLIC CORRUPTION AND GOVERNMENTAL FRAUD

INTEGRITY IN GOVERNMENT IS A KEYSTONE IN ANY DEMOCRACY.
CORRUPTION AND FRAUD UNDERMINE THE PUBLIC'S RESPECT AND CONFIDENCE IN
GOVERNMENTAL INSTITUTIONS AND IN THE RULE OF LAW. BY THEIR NATURE,
CORRUPTION AND FRAUD CAN ONLY FLOURISH IN SECRECY, HIDDEN FROM PUBLIC
VIEW. AS A RESULT, NORMAL, OVERT INVESTIGATIVE TECHNIQUES ARE IN MOST
CASES TOTALLY UNAVAILING. HENCE, AS A GENERAL PROPOSITION, LAW
ENFORCEMENT HAS FOUND THAT ELECTRONIC SURVEILLANCE AND UNDERCOVER
OPERATIONS ARE CRITICAL MEANS TO EFFECTIVELY DETECT, INVESTIGATE, AND
PROSECUTE THESE INSIDIOUS CRIME PROBLEMS.

IN SEVERAL RECENT JUDICIAL CORRUPTION INVESTIGATIONS, ELECTRONIC
SURVEILLANCE EVIDENCE HAS DIRECTLY LED TO THE CONVICTION OF TWO
FEDERAL DISTRICT COURT JUDGES AND, IN ANOTHER CASE, TO THE INDICTMENT
OR PLEA OF SIX CURRENT OF FORMER DADE COUNTY, FLORIDA, STATE JUDGES
(FOUR CONVICTED, ONE ACQUITTED, AND ONE TO BE RETRIED) AND FIVE
ATTORNEYS (ALL CONVICTED) FOR EXTORTION AND CASE FIXING. WITHIN THE
RECENT PAST, ELECTRONIC SURVEILLANCE HELPED BUILD A CORRUPTION CASE
INVOLVING THE POLICE FORCE OF A LARGE MIDWESTERN CITY WHICH INCLUDED
EXTORTION AND PROTECTION FOR GAMBLING AND NARCOTICS DISTRIBUTION.
THIRTY POLICE OFFICERS AND 17 OTHERS WERE INDICTED, AND 46 OF THE 47
EITHER PLED OR HAVE BEEN FOUND GUILTY.

ELECTRONIC SURVEILLANCE HAS PLAYED AN INDISPENSABLE ROLE IN
COUNTERING GOVERNMENTAL FRAUD. FOR EXAMPLE, THE "ILL-WIND"
INVESTIGATION (WHICH WAS LARGELY BASED UPON 36 SEPARATE COURT-ORDERED
ELECTRONIC SURVEILLANCES CONDUCTED ACROSS THE UNITED STATES) HAS HAD A
TREMENDOUS IMPACT UPON FRAUD AND ABUSE BOTH WITHIN THE GOVERNMENT AND
WITHIN THE INDUSTRIES THAT CONTRACT WITH THE GOVERNMENT. TO DATE, THE
"ILL-WIND" INVESTIGATION HAS RESULTED IN 65 CONVICTIONS (INCLUDING
HIGHLEVEL DEPARTMENT OF DEFENSE OFFICIALS AND EIGHT CORPORATIONS),
SANCTIONS AGAINST CONTRACTORS, AND OVER A QUARTER OF A BILLION DOLLARS
($271,000,000) IN FINES, RESTITUTIONS, AND RECOVERIES ORDERED.
EVIDENCE NECESSARY TO OBTAIN THESE CONVICTIONS, FINES RECOVERIES,
ETC., WOULD HAVE BEEN IMPOSSIBLE TO OBTAIN WITHOUT ELECTRONIC
SURVEILLANCE.

THE HIGH COST OF HEALTH CARE IN THE UNITED STATES IS A PROBLEM OF
TREMENDOUS IMPORTANCE TO OUR SOCIETY. UNFORTUNATELY, BILLIONS OF
HEALTH CARE DOLLARS ARE WASTED THROUGH FRAUD. WITH REGARD TO HEALTH
CARE FRAUD, ELECTRONIC SURVEILLANCE HAS BEEN EXTREMELY IMPORTANT. IN
1993, IN NEW YORK, ELECTRONIC SURVEILLANCE OF HARDWIRED (FIXED) AND
CELLULAR (MOBILE) TELEPHONES PRODUCED CRITICAL EVIDENCE IN A CASE
INVOLVING WIDESPREAD MEDICARE/MEDICAID FRAUD CARRIED OUT BY NUMEROUS
PHARMACIES AND PHARMACISTS. SEVENTY-NINE (79) INDIVIDUALS, INCLUDING
38 PHARMACISTS, WERE INDICTED. TO DATE, 79 INDIVIDUALS HAVE BEEN
CONVICTED OR PLED GUILTY AND $6.6 MILLION IN ASSETS ARE SUBJECT TO
SEIZURE AND FORFEITURE. SIMILARLY, IN 1993, IN DETROIT, ELECTRONIC
SURVEILLANCE WAS INSTRUMENTAL IN INVESTIGATING AND PROSECUTING A WIDE-
SPREAD MEDICARE/MEDICAID FRAUD PERPETRATED BY NUMEROUS PHARMACIES AND
PHARMACISTS. THIRTY-TWO (32) PHARMACIES/PHARMACISTS WERE PROSECUTED,
AND $4 MILLION IN CRIMINAL FORFEITURES ARE EXPECTED TO FOLLOW. THE
FBI ESTIMATES THAT THE HEALTH CARE FRAUD IN EACH OF THE FOREGOING
CASES ALONE RANGED IN THE TENS OF MILLIONS OF DOLLARS.

RECENTLY, A MAJOR GOVERNMENTAL FRAUD CASE INVOLVING RUSSIAN
EMIGRE ORGANIZED CRIME AND THE GAMBINO LCN ORGANIZED CRIME FAMILY WAS
SUCCESSFULLY INVESTIGATED THROUGH THE USE OF AN UNDERCOVER OPERATION
AND THE SUBSTANTIAL USE OF ELECTRONIC SURVEILLANCE TO INTERCEPT A
NUMBER OF CELLULAR TELEPHONES. THE CRIMINAL SCHEME INVOLVED
DEFRAUDING THE FEDERAL GOVERNMENT AND STATE GOVERNMENTS OF MOTOR FUEL
TAXES. THE DEPARTMENT OF JUSTICE ESTIMATES THAN MORE THAN $1 BILLION
IN FEDERAL EXCISE TAX, FUNDS THAT ARE EARMARKED FOR THE HIGHWAY TRUST
FUND FOR USE IN MAINTAINING THE NATION'S HIGHWAY INFRASTRUCTURE, IS
ILLEGALLY "SKIMMED" EACH YEAR. AN INDICTMENT IN THE FOREGOING CASE
HAS BEEN RETURNED IN NEWARK, CHARGING 14 INDIVIDUALS WITH DEFRAUDING
THE FEDERAL GOVERNMENT AND THE STATE OF NEW JERSEY OUT OF MORE THAN
$60 MILLION IN TAX REVENUES AND WITH LAUNDERING $66.2 MILLION
RESULTING IN 4 CONVICTIONS TO DATE. A NUMBER OF THE SUBJECTS IN THIS
INVESTIGATION UTILIZED CELLULAR TELEPHONES AND FREQUENTLY CHANGED
CELLULAR TELEPHONES IN AN EFFORT TO THWART ELECTRONIC SURVEILLANCE.
THE INTERCEPTED TELEPHONE CONVERSATIONS WERE CRITICAL TO PROVING THE
INVOLVEMENT OF THE LCN IN THIS RUSSIAN ORGANIZED CRIME FRAUD AGAINST
FEDERAL AND STATE GOVERNMENTS.

TERRORISM

A SIGNIFICANT NUMBER OF TERRORIST ACTS, INCLUDING BOMBINGS AND
MURDERS, HAVE BEEN PREVENTED THROUGH THE EFFECTIVE USE OF ELECTRONIC
SURVEILLANCE. MANY OF THESE TERRORIST ACTS, IF NOT PREVENTED, LIKELY
WOULD HAVE HAD SUBSTANTIAL NATIONAL AND/OR INTERNATIONAL IMPLICATIONS.
IN ONE CASE, THE BOMBING OF A FOREIGN CONSULATE IN THE UNITED STATES
WAS PREVENTED, AND THE ELECTRONIC SURVEILLANCE EVIDENCE WAS USED IN
THE SUBSEQUENT CONVICTION OF THE PRINCIPALS. IN ANOTHER CASE, A
TERRORIST ROCKET ATTACK AGAINST A UNITED STATES ALLY BY A FOREIGN-
BASED TERRORIST GROUP WAS THWARTED, AND THE ELECTRONIC SURVEILLANCE-
BASED INVESTIGATION LED TO THE ARREST OF THE PRINCIPALS AND THE
PREVENTION OF THE LOSS OF LIFE OF SCORES OF PERSONS.

IN 1986, THE EFFORTS OF THE VIOLENT EL-RUKN CHICAGO STREET GANG
TO SHOOT DOWN A COMMERCIAL AIRLINER WITHIN THE UNITED STATES WITH A
STOLEN MILITARY WEAPON SYSTEM WAS THWARTED THROUGH ELECTRONIC
SURVEILLANCE. THE FBI'S PREVENTION OF THIS ACT OF STATE-SPONSORED
TERRORISM, FINANCED BY LIBYA, WHICH WOULD HAVE COST SEVERAL HUNDRED
U.S. LIVES, WAS SINGULARLY ATTRIBUTABLE TO THE USE OF ELECTRONIC
SURVEILLANCE -- BUT FOR THE AVAILABILITY OF THIS TECHNIQUE, ANOTHER
PAN AM 103 DISASTER COULD HAVE OCCURRED ON AMERICAN SOIL.

MORE RECENTLY, IN 1993, ELECTRONIC SURVEILLANCE CONTRIBUTED TO
THE INDICTMENT OF INDIVIDUALS IN THE ST. LOUIS-BASED CELL OF THE ABU
NIDAL ORGANIZATION ON RICO CHARGES OF MURDER, CONSPIRACY TO COMMIT
MURDER, AND CONSPIRACY TO BOMB THE ISRAELI EMBASSY IN WASHINGTON, D.C.
IN 1990, FOREIGN-BASED TERRORISTS WERE PREVENTED FROM ACQUIRING A
STINGER SURFACE-TO-AIR MISSILE WHICH WAS TO BE EMPLOYED IN A TERRORIST
ACT WHEREIN NUMEROUS PEOPLE WOULD UNDOUBTEDLY HAVE BEEN KILLED. ALSO,
IN 1989, AS A DIRECT RESULT OF COURT-ORDERED ELECTRONIC SURVEILLANCE
IN A TERRORIST-RELATED MATTER, INFORMATION WAS OBTAINED WHICH RESULTED
IN THE CONVICTION OF TWO INDIVIDUALS FOR THE BRUTAL HOMICIDE OF THEIR
16-YEAR OLD DAUGHTER.

BEYOND THE FOREGOING INSTANCES, OVER THE LAST DECADE NUMEROUS
OTHER TERRORIST-RELATED INVESTIGATIONS HAVE UTILIZED ELECTRONIC
SURVEILLANCE TO: PREVENT A ROCKET ATTACK AGAINST AN FBI FIELD OFFICE;
PREVENT AN ATTACK ON A NUCLEAR POWER FACILITY; SOLVE SEVERAL MURDERS;
IDENTIFY THE PERPETRATORS OF A $7,000,000 ARMED ROBBERY; AND SOLVE AND
PREVENT SEVERAL BOMBINGS BY ANTI-CASTRO GROUPS IN MIAMI, FLORIDA.

VIOLENT CRIME

MANY VIOLENT CRIMES, INCLUDING MURDER, HAVE BEEN SOLVED AND A
SIGNIFICANT NUMBER PREVENTED BY LAW ENFORCEMENT'S "REAL TIME" RESPONSE
TO, AND PREVENTIVE ACTIONS TAKEN AS A RESULT OF CONVERSATIONS
INTERCEPTED THROUGH ELECTRONIC SURVEILLANCE. ELECTRONIC SURVEILLANCE
HAS BEEN USED IN COMBATTING AND SOLVING VIOLENT CRIMES PERPETRATED BY
BOTH ORGANIZED CRIMINAL GROUPS AND BY INDIVIDUALS. THE FOLLOWING ARE
RECENT EXAMPLES OF CASES IN WHICH ELECTRONIC SURVEILLANCE HAS BEEN
CRUCIAL IN SAVING LIVES OR PREVENTING VIOLENT ACTS FROM OCCURRING:

* CONVERSATIONS OF MEMBERS OF THE NEW ENGLAND LCN FAMILY WERE
INTERCEPTED WHEREIN THE MURDERS OF THREE INDIVIDUALS WERE PLANNED, AND
DETAILS CONCERNING SIX PRIOR MURDERS WERE DISCUSSED. OF THE THREE
PLANNED MURDERS, TWO WERE PREVENTED BY THE FBI; THE THIRD COULD NOT BE
PREVENTED BECAUSE OF AN INABILITY TO LOCATE THE VICTIM PRIOR TO HI;
MURDER.

* ONE OF THE MOST VIOLENT ASIAN ORGANIZED CRIME GANGS ACTIVE IN
THE NEW YORK CITY AREA IS THE GREEN DRAGONS, WHICH, AS OF 1990, WAS
DIRECTED TELEPHONICALLY BY KIN FEI WONG FROM THE PEOPLE'S REPUBLIC OF
CHINA. THE GREEN DRAGONS GANG PERPETRATED MURDER, ARMED ROBBERIES,
HOME INVASIONS, EXTORTION, DRUG TRAFFICKING, AND WERE INVOLVED IN THE
OBSTRUCTION OF JUSTICE. COURT-ORDERED ELECTRONIC SURVEILLANCE
PROVIDED EVIDENCE OF THESE CRIMES AND ALSO DISCLOSED THAT THE GREEN
DRAGONS WERE ABOUT TO ENGAGE IN A "SHOOT OUT" WITH A RIVAL ASIAN
GANG. IMMEDIATELY ACTING UPON THIS INFORMATION, 16 MEMBERS OF THE
GROUP WERE ARRESTED BY FBI AGENTS AND POLICE OFFICERS AND AN IMMINENT
VIOLENT CONFRONTATION AND LOSS OF LIFE WERE PREVENTED. BASED PARTLY
UPON EVIDENCE DERIVED FROM ELECTRONIC SURVEILLANCE, ALL DEFENDANTS
WERE FOUND GUILTY OF RACKETEERING, RACKETEERING CONSPIRACY, AND
NUMEROUS SUBSTANTIVE COUNTS WHICH INCLUDED MURDER, KIDNAPPING, HOME
INVASIONS, ARMED ROBBERY, EXTORTION AND BRIBERY OF A PUBLIC OFFICIAL.

* IN 1991, THE MURDER OF A UNITED STATES COURT OF APPEALS JUDGE
WAS SOLVED AND A CONVICTION OBTAINED BASED IN PART UPON ELECTRONIC
SURVEILLANCE INFORMATION.

* IN A NOTABLE 1990 "SEXUAL EXPLOITATION" OF CHILDREN CASE WHICH
RELIED HEAVILY UPON ELECTRONIC SURVEILLANCE, THE FBI THWARTED TWO
INDIVIDUALS WHO WERE CONSPIRING TO ABDUCT, TORTURE, AND KILL A TEENAGE
BOY FOR THE PURPOSE OF MAKING A "SNUFF MURDER" FILM.

* IN 1993, IN GREENE COUNTY, OHIO, A 10-YEAR OLD TRIPLE HOMICIDE
WAS FINALLY SOLVED, AND EVIDENCE CRITICAL FOR SUCCESSFUL PROSECUTION
WAS OBTAINED THROUGH THE USE OF ELECTRONIC SURVEILLANCE. THE VICTIMS,
TWO MEN AND A PREGNANT WOMAN, HAD BEEN SHOT EXECUTION-STYLE, AND
SUBSEQUENTLY THEIR THROATS HAD BEEN SLIT AND THEIR SKULLS HAD BEEN
CRUSHED BY THE MURDERERS.

FOREIGN COUNTERINTELLIGENCE (FCI)

BECAUSE ANY DISCUSSION OF THE IMPORTANCE OF FISA-BASED ELECTRONIC
SURVEILLANCE WOULD INVOLVE HIGHLY SENSITIVE MATTERS AND HIGHLY
CLASSIFIED INFORMATION, SUFFICE IT TO SAY THAT INFORMATION DERIVED
FROM FISA ELECTRONIC SURVEILLANCE IS CRITICAL TO THE PRESIDENT OF THE
UNITED STATES, THE NATIONAL SECURITY COUNCIL, THE INTELLIGENCE
COMMUNITY, THE DEPARTMENT OF DEFENSE, AND THE STATE DEPARTMENT. SUCH
INFORMATION IS OF GREAT IMPORTANCE AS OUR NATION'S LEADERS ESTABLISH
POLICY AND SAFEGUARD THE NATION'S DEFENSE AND NATIONAL SECURITY.

CONSEQUENCES OF THE LOSS OF ELECTRONIC SURVEILLANCE

AS INDICATED ABOVE, SOCIETY'S MOST DANGEROUS CRIMINAL
ORGANIZATIONS AND GROUPS RELY HEAVILY UPON THE USE OF
TELECOMMUNICATIONS. ADDITIONALLY, SUCH ORGANIZATIONS TEND TO TAKE
ADVANTAGE OF ADVANCED TELECOMMUNICATIONS AND SERVICES TO CONDUCT AND
CARRY OUT THEIR ILLEGAL ACTIVITIES. EVIDENCE IS DEVELOPING THAT
INDICATES CRIMINAL ORGANIZATIONS ARE ALSO INCREASINGLY LOOKING FOR
WAYS TO AVOID LAW ENFORCEMENT'S ELECTRONIC SURVEILLANCE BY FREQUENTLY
CHANGING THEIR TELECOMMUNICATIONS DEVICES AND TELEPHONE NUMBERS,
MODIFYING AND REPROGRAMMING THEIR CELLULAR TELEPHONE IDENTIFICATION
NUMBERS AND CODES, AND UTILIZING CALL-FORWARDING FEATURES, ETC.
INCREASED USE OF CELLULAR TELEPHONES, CALL-FORWARDING FEATURES, AND
EVASIVE EFFORTS HAVE ALREADY HAD A NEGATIVE IMPACT UPON ELECTRONIC
SURVEILLANCE AND LAW ENFORCEMENT'S ABILITY TO PROTECT THE PUBLIC AND
EFFECTIVELY ENFORCE THE LAW. THE FOREGOING CASES DIRECTLY DEMONSTRATE
THE PUBLIC SAFETY AND LAW ENFORCEMENT BENEFITS DIRECTLY ATTRIBUTABLE
TO THE USE OF ELECTRONIC SURVEILLANCE. THEY ALSO INDICATE THE KIND OF
NEGATIVE IMPACTS AND SOCIETAL HARMS THAT WOULD RESULT IF THERE WERE A
LOSS OR DIMINISHMENT OF THE ELECTRONIC SURVEILLANCE TECHNIQUE.
INDEED, LOSS OF A VIABLE, EFFECTIVE ELECTRONIC SURVEILLANCE TECHNIQUE
WOULD RESULT IN:

* A SUBSTANTIAL LOSS OF LIFE, ATTRIBUTABLE TO THE INABILITY OF
LAW ENFORCEMENT TO PREVENT PLANNED TERRORIST ACTS AND MURDERS.

* A SUBSTANTIAL INCREASE IN ECONOMIC HARM (IN THE BILLIONS OF
DOLLARS) TO BUSINESS, INDUSTRY, LABOR UNIONS, AND SOCIETY GENERALLY
CAUSED BY THE GROWTH/EMERGENCE OF ORGANIZED CRIME GROUPS AND
ACTIVITIES;

* A SUBSTANTIAL INCREASE IN THE CORRUPTION OF LEGITIMATE
BUSINESS, INDUSTRY, AND LABOR UNIONS CAUSED BY THE GROWTH/EMERGENCE OF
ORGANIZED CRIME GROUPS;

* A SUBSTANTIAL INCREASE IN THE AVAILABILITY AND REDUCED COST OF
NARCOTICS AND ILLEGAL DRUGS, AS WELL AS THE ATTENDANT PERSONAL,
SOCIETAL, AND ECONOMIC HARM (NUMEROUS DEATHS, RAVAGED LIVES, AND
INCREASED ECONOMIC HARM IN THE BILLIONS OF DOLLARS);

* A SUBSTANTIAL INCREASE IN UNDETECTED AND UNPROSECUTED PUBLIC
CORRUPTION AND FRAUD AGAINST THE GOVERNMENT (IN THE BILLIONS OF
DOLLARS) AND A RESULTING LOST TRUST IN GOVERNMENT;

* A SUBSTANTIAL INCREASE IN UNDETECTED AND UNPROSECUTED TERRORIST
BOMBINGS, MURDERS, AND OTHER ACTS WITH THE ATTENDANT LOSS OF NUMEROUS
LIVES AND BILLIONS OF DOLLARS IN ECONOMIC HARM;

* A SUBSTANTIAL INCREASE IN UNPROSECUTED CRIMINAL CASES OF ALL
KINDS AND THE POTENTIAL FOR A SUBSTANTIAL INCREASE IN ACQUITTALS AND
HUNG JURIES OCCASIONED BY THE LACK OF DIRECT AND PERSUASIVE ELECTRONIC
SURVEILLANCE EVIDENCE.

ELECTRONIC SURVEILLANCE: SURGICAL USE WITHOUT ABUSE

IN PASSING THE TITLE III LEGISLATION, CODIFIED AT 18 U.S.C. 2510-
21, CONGRESS ENACTED A COMPREHENSIVE ELECTRONIC SURVEILLANCE REGIMEN
THAT CAREFULLY BALANCED THE COMMUNICATIONS SECURITY NEEDS AND PRIVACY
RIGHTS OF INDIVIDUALS WITH THE LEGITIMATE NEEDS OF LAW ENFORCEMENT TO
PROTECT THE PUBLIC AND EFFECTIVELY ENFORCE THE LAW. ABOVE AND BEYOND
THE TRADITIONAL REQUIREMENTS OF THE FOURTH AMENDMENT COMPLIANCE (SUCH
AS PROBABLE CAUSE, THE NEED FOR IMPARTIAL JUDICIAL REVIEW AND A
WARRANT, PARTICULARITY AS TO THE OBJECT OF THE SEARCH, PROMPT
EXECUTION OF THE ELECTRONIC SEARCH, ETC.), CONGRESS ALSO SPECIFIED
THAT ELECTRONIC SURVEILLANCE COULD BE USED, GENERALLY SPEAKING, ONLY
AS A LAST RESORT (WHEN OTHER INVESTIGATIVE TECHNIQUES FAILED OR WERE
TOO DANGEROUS); ONLY FOR SERIOUS FELONY OFFENSES; AND ONLY FOR
SPECIFIC CRIMINAL COMMUNICATIONS. THE ACQUISITION OF NON-CRIMINAL,
NON-RELEVANT COMMUNICATIONS IS FORBIDDEN AND SUCH COMMUNICATIONS MUST
BE CAREFULLY MINIMIZED.

CONGRESS HAS ALSO ENACTED AN ELECTRONIC SURVEILLANCE REGIMEN FOR
USE IN INTELLIGENCE BASED INVESTIGATIONS, THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT OF 1978 (FISA), CODIFIED AT 50 U.S.C. 1801-1811.
CONTRARY TO THE ASSERTIONS OF SOME, ELECTRONIC SURVEILLANCE CONDUCTED
PURSUANT TO TITLE III OR FISA MAY NOT BE (AND ARE NOT) EMPLOYED
AGAINST INDIVIDUALS EXERCISING THEIR FIRST AMENDMENT RIGHTS, SUCH AS
BY ENGAGING IN UNPOPULAR, POLITICAL, OR ANTI-GOVERNMENTAL DISCOURSE.

AN OBJECTIVE REVIEW AND ASSESSMENT OF THE TITLE III AND FISA
STATUTES, AND OF THE CONDUCT OF ELECTRONIC SURVEILLANCE BY LAW
ENFORCEMENT PURSUANT TO THESE STATUTES, INDICATE THAT ELECTRONIC
SURVEILLANCE HAS BEEN CONDUCTED SPARINGLY, JUDICIOUSLY, AND IN
COMPLIANCE WITH THE LETTER OF THE LAW AND THE SPIRIT OF CONGRESS'
INTENT. AS DEMONSTRATED BY THE LIVES SAVED AND IMPORTANT
INVESTIGATIONS AND PROSECUTIONS SUCCESSFULLY COMPLETED, THE TITLE III
STATUTORY REGIMEN HAS SERVED BOTH SOCIETY AND LAW ENFORCEMENT
EXTREMELY WELL. MOREOVER, AFTER 25 YEARS OF USAGE, THERE IS NO
EVIDENCE OF SIGNIFICANT ABUSE. STATISTICS COMPILED BY THE FBI, WHICH
IS CHARGED WITH INVESTIGATING VIOLATIONS OF THE FEDERAL "WIRETAP"
STATUTE BASED UPON ACTS OF ILLEGAL ELECTRONIC SURVEILLANCE AND
WIRETAPPING, INDICATE THAT INSTANCES OF ILLEGAL WIRETAPPING ARE VERY,
VERY RARE.

ELECTRONIC SURVEILLANCE TECHNICAL ASSISTANCE

WHEN THE TITLE III LEGISLATION WAS ENACTED BY CONGRESS IN 1968,
THERE WAS NO SPECIFIC PROVISION FOR TECHNICAL OR OTHER ASSISTANCE TO
LAW ENFORCEMENT. WITH REGARD TO WIRE COMMUNICATIONS, LAW ENFORCEMENT
NECESSARILY RELIES UPON THE TELECOMMUNICATION SERVICE PROVIDER'S
ASSISTANCE IN IDENTIFYING THE TARGET'S WIRE PAIRS AND THEIR LINE
"APPEARANCES," AND UPON THE SERVICE PROVIDER'S FURNISHING OF LEASED
LINES TO ENABLE THE INTERCEPTED COMMUNICATIONS TO BE TRANSMITTED TO A
SECURE, LAW ENFORCEMENT MONITORING FACILITY.

ALTHOUGH THE SERVICE PROVIDER ASSISTANCE REQUIREMENT WAS THOUGHT
TO BE SELF-EVIDENT AND IMPLICIT IN THE TITLE III LEGISLATION, CERTAIN
SERVICE PROVIDERS INITIALLY RESISTED PROVIDING LAW ENFORCEMENT WITH
NEEDED ASSISTANCE, EVEN WHEN DIRECTED TO DO SO BY COURT ORDER. SEE,
E.G., APPLICATION OF UNITED STATES, 427 F.2D 639 (9TH CIR. 1970). AS
A RESULT, CONGRESS WAS COMPELLED TO AMEND THE TITLE III STATUTE IN
1970 AND EXPRESSLY FIX THE ASSISTANCE RESPONSIBILITY THEREIN. THE
ASSISTANCE PROVISION, AS AMENDED, AND CODIFIED AT 18 U.S.C 2518(4),
STATES:

"AN ORDER AUTHORIZING THE INTERCEPTION OF A WIRE, ORAL, OR
ELECTRONIC COMMUNICATION UNDER THIS CHAPTER SHALL, UPON REQUEST OF THE
APPLICANT, DIRECT THAT A PROVIDER OF WIRE OR ELECTRONIC COMMUNICATION
SERVICE, LANDLORD, CUSTODIAN OR OTHER PERSON SHALL FURNISH THE
APPLICANT FORTHWITH ALL INFORMATION, FACILITIES, AND TECHNICAL
ASSISTANCE NECESSARY TO ACCOMPLISH THE INTERCEPTION UNOBTRUSIVELY AND
WITH A MINIMUM OF INTERFERENCE WITH THE SERVICES THAT SUCH SERVICE
PROVIDER, LANDLORD, CUSTODIAN, OR PERSON IS ACCORDING THE PERSON WHOSE
COMMUNICATIONS ARE TO BE INTERCEPTED. ANY PROVIDER OF WIRE OR
ELECTRONIC COMMUNICATION SERVICE, LANDLORD, CUSTODIAN OR OTHER PERSON
FURNISHING SUCH FACILITIES OR TECHNICAL ASSISTANCE SHALL BE
COMPENSATED THEREFORE BY THE APPLICANT FOR REASONABLE EXPENSES
INCURRED IN PROVIDING SUCH FACILITIES OR ASSISTANCE." (EMPHASIS ADDED)
THE FISA STATUTE, ENACTED IN 1978, CONTAINS A SIMILAR ASSISTANCE
PROVISION, CODIFIED AT 50 U.S.C 1805 (B)(2). SO ALSO DO THE PEN
REGISTER AND TRAP AND TRACE STATUTES. SEE 18 U.S.C. 3124(a)(b).

IT IS VERY IMPORTANT TO UNDERSTAND THAT TELEPHONE COMPANIES
HISTORICALLY HAVE BEEN EXTREMELY CONSERVATIVE, AND OFTEN HAVE DECLINED
TO PROVIDE LAW ENFORCEMENT WITH NECESSARY TECHNICAL ASSISTANCE, EVEN
WHEN SERVED WITH COURT ORDERS. FOR EXAMPLE, SOME TELEPHONE COMPANIES
INITIALLY RESISTED PROVIDING LAW ENFORCEMENT WITH EVEN MINOR "LEASED
LINE" ASSISTANCE TO ALLOW LAW ENFORCEMENT TO CARRY OUT A PEN REGISTER
INVESTIGATION, ALTHOUGH SERVED WITH A FEDERAL SEARCH WARRANT. THIS
RESISTANCE TO PEN REGISTER ASSISTANCE WAS REMOVED BY THE SUPREME COURT
IN UNITED STATES V. NEW YORK TELEPHONE CO., 434 U.S. 159 (1977). SOME
TELEPHONE COMPANIES ALSO RESISTED PROVIDING RELATIVELY MINOR
ASSISTANCE TO EFFECT A TRAP AND TRACE OF DIALED NUMBER INFORMATION
WHEN SERVED WITH A FEDERAL COURT ORDER. FEDERAL COURT OF APPEALS
ACTION WAS REQUIRED TO OBTAIN SUCH TRAP AND TRACE ASSISTANCE TO TRACE
DIALED NUMBER INFORMATION. UNITED STATES V. MOUNTAIN STATES TELEPHONE
AND TELEGRAPH COMPANY, 616 F.2D 1122 (9TH CIR. 1980); IN RE
APPLICATION OF UNITED STATES, 610 F.2D 1148 (3RD CIR. 1979); MICHIGAN
BELL.TELEPHONE COMPANY V. UNITED STATES, 565 F.2D 385 (6TH CIR. 1977).
THE LESSON FROM SUCH INCIDENTS IS CLEAR: SOME TELECOMMUNICATIONS
COMPANIES, INCLUDING COMMON CARRIERS, WHO ARE CONCERNED WITH THEIR
LEGAL LIABILITIES WILL ACT ONLY WHEN THE LAW IS CLEAR AS TO THEIR
RESPONSIBILITIES AND WHEN PRESENTED WITH A COURT ORDER.

IN THE AREAS OF PEN REGISTERS AND TRAP AND TRACE DEVICES, COURTS
HAVE REQUIRED TELECOMMUNICATION SERVICE PROVIDERS TO EXTEND TECHNICAL
AND PHYSICAL ASSISTANCE TO LAW ENFORCEMENT, IN ORDER TO EFFECTUATE
COURT ORDERS. THERE ARE, HOWEVER, NO FEDERAL CASES CONSTRUING THE
TITLE III OR FISA STATUTORY "ASSISTANCE" PROVISIONS. ATTORNEYS WHO
HAVE ANALYZED THESE ASSISTANCE PROVISIONS BELIEVE THAT THEIR CURRENT
LANGUAGE DOES NOT CLEARLY MANDATE THAT SERVICE PROVIDERS AFFIRMATIVE
MUST TAKE ANY STEPS OR DEVELOP ANY TECHNICAL SOLUTIONS TO ACCOMMODATE
OR EFFECTUATE A COURT'S ELECTRONIC SURVEILLANCE ORDER. THUS, THE
ISSUE AS TO THE NATURE AND EXTENT OF SERVICE PROVIDER ASSISTANCE
REMAINS AN OPEN, AND OFTEN HOTLY DEBATED, QUESTION.

THE QUESTION HAS BEEN RAISED BY SOME IF REQUESTING OR REQUIRING
GREATER ELECTRONIC SURVEILLANCE TECHNICAL ASSISTANCE OF SERVICE
PROVIDERS TO CARRY OUT A COURT ORDER THROUGH EITHER HARDWARE- OR
SOFTWARE-BASED MODIFICATIONS OR DEVELOPMENTS EXTENDS LAW ENFORCEMENT'S
AUTHORITY. THERE APPEARS TO BE GENERAL AGREEMENT WITHIN THE
GOVERNMENT AND INDUSTRY THAT THIS WOULD NOT EXTEND LAW ENFORCEMENT'S
ELECTRONIC SURVEILLANCE AUTHORITY. THIS AGREEMENT EXTENDS TO LAW
ENFORCEMENT'S LEGAL AUTHORITY OR ENTITLEMENT TO OBTAIN THE CONTENT OF
A CRIMINAL TARGET'S COMMUNICATIONS OR DIALED NUMBER INFORMATION
TRANSMITTED VIA A TELECOMMUNICATIONS NETWORK.

SOME HAVE STATED THAT REQUIRING TELECOMMUNICATION SERVICE
PROVIDERS TO EXPEND ADDITIONAL TECHNICAL OR MONETARY RESOURCES, EVEN
PURSUANT TO COURT ORDER, TO HELP LAW ENFORCEMENT EFFECT ELECTRONIC
SURVEILLANCE IS UNWARRANTED OR UNPRECEDENTED. HOWEVER, HISTORICALLY
TELECOMMUNICATION SERVICE PROVIDERS HAVE BEEN REQUIRED TO ALTER THEIR
OPERATIONS AND ACTIVITIES TO MEET LAW ENFORCEMENT REQUIREMENTS. FOR
EXAMPLE, SERVICE PROVIDERS HAVE BEEN REQUIRED BY REGULATION TO
MAINTAIN TELEPHONE TOLL RECORDS LONGER THAN OPERATIONALLY NECESSARY,
AND GENERALLY THEY DEDICATE TIME, HUMAN RESOURCES, AND HENCE MONEY, TO
PROVIDE LAW ENFORCEMENT AGENCIES WITH SUCH SUBSCRIBER INFORMATION.
FURTHER, BY WAY OF PRECEDENT, CONGRESS HAS ENACTED PUBLIC
SAFETY/PUBLIC WELFARE LEGISLATION CONCERNING TELECOMMUNICATION SERVICE
PROVIDERS IN THE AREA OF INTEROPERABLE EQUIPMENT TO ASSIST THE
HEARING-IMPAIRED AND IN THE AREA OF TELEPHONICALLY TRANSMITTED
PORNOGRAPHIC COMMUNICATIONS (SO CALLED "DIAL-A-PORN"). ALSO, MANY
LOCALITIES REQUIRE BY LAW THAT THE TELECOMMUNICATION LOCAL EXCHANGE
CARRIERS PROVIDE 1191111 EMERGENCY SERVICE, THE COST OF WHICH IS
PASSED ON TO ALL SUBSCRIBERS.

WITHIN THE UNITED STATES, THERE ARE NUMEROUS OTHER PUBLIC
SAFETY/PUBLIC WELFARE LAWS AND REGULATIONS WHICH AFFECT A NUMBER OF
INDUSTRIES AND BUSINESSES AND MANDATE TECHNICAL EFFORTS AND MONETARY
EXPENSES (E.G., REQUIRED SPRINKLER SYSTEMS, SMOKE DETECTORS, FIRE
ALARMS, FIRE ESCAPES, ETC., IN OFFICES, FACTORIES, APARTMENT
COMPLEXES, ETC.; SAFETY BELTS, "AIR BAGS," CATALYTIC CONVERTERS, AND
EMISSION CONTROL DEVICES IN VEHICLES). ON BALANCE, WHEN LAW
ENFORCEMENT'S COURT-ORDERED USE OF ELECTRONIC SURVEILLANCE IS VIEWED
IN TERMS OF ITS IMPORTANT, AND EVEN CRITICAL, UTILITY IN PREVENTING
AND SOLVING CRIMES, AND AS A PUBLIC SAFETY REQUIREMENT, THERE CAN BE
NO SERIOUS DOUBT THAT A POLICY DECISION REQUIRING SUCH TECHNICAL
ASSISTANCE BY LAW IS CONSISTENT WITH PAST SOCIETAL AND GOVERNMENTAL
PRACTICES.

SUMMARY OF TECHNOLOGICAL IMPEDIMENTS

PRIOR TO 1984, THE MAJORITY OF LOCAL AND LONG DISTANCE
TELECOMMUNICATIONS WERE CARRIED BY AT&T, WHICH HELD A VIRTUAL
MONOPOLY ON THESE SERVICES. THIS RESULTED IN AN HOMOGENEOUS NETWORK
IN WHICH THE TECHNOLOGIES USED TO CONDUCT BUSINESS WERE THE SAME
THROUGHOUT THE NETWORK. ADDITIONALLY, BECAUSE OF AN ABSENCE OF
COMPETITION, NEW TECHNOLOGIES WERE INTRODUCED SLOWLY AND BY ONLY A
SMALL NUMBER OF MANUFACTURERS.

SINCE THE DIVESTITURE OF AT&T IN 1984, THE NUMBER OF SERVICE
PROVIDERS, AS WELL AS THE DIVERSITY OF TECHNOLOGIES, HAS GROWN
RAPIDLY AND DRAMATICALLY. FOR EXAMPLE, THE NUMBER OF CARRIERS
PROVIDING LOCAL TELEPHONE SERVICE IS NOW OVER 1,400. A SEPTEMBER
1992 DECISION BY THE FEDERAL COMMUNICATIONS COMMISSION IS
FACILITATING EVEN GREATER COMPETITION IN THIS AREA. AS A RESULT, THE
INDUSTRY WILL BEGIN TO SEE NEW PROVIDERS OF SERVICE AND ALREADY HAS
BEGUN TO SEE NEW BUSINESS PARTNERSHIPS AMONG EXISTING SERVICE
PROVIDERS. ALSO, THE NUMBER OF LONG DISTANCE CARRIERS HAS GROWN FROM
ESSENTIALLY ONE IN 1984 TO OVER 300 TODAY. WITH THE ADVENT OF
WIRELESS TECHNOLOGIES, SUCH AS CELLULAR, THE NUMBER OF SERVICE
PROVIDERS GREW AGAIN. TODAY, THERE ARE OVER 160 CELLULAR SERVICE
PROVIDERS. THE INTRODUCTION OF NEW TECHNOLOGIES, AS WELL AS ACTIONS
TAKEN BY THE FEDERAL COURTS AND THE FEDERAL COMMUNICATIONS COMMISSION,
HAVE RESULTED IN GREATER NUMBERS AND MORE DIVERSITY AMONG SERVICE
PROVIDERS. AS A RESULT, LAW ENFORCEMENT AGENCIES HAVE HAD TO WORK
WITH MANY DIFFERENT SERVICE PROVIDERS TO OBTAIN THE ASSISTANCE
NECESSARY TO CONDUCT WIRETAPS. NUMEROUS SITUATIONS HAVE ARISEN WHERE
SERVICE PROVIDERS WHO WERE INEXPERIENCED WITH COURT AUTHORIZED
WIRETAPS HAVE BEEN UNABLE TO PROVIDE ASSISTANCE TO LAW ENFORCEMENT
AGENCIES BECAUSE OF A LACK OF UNDERSTANDING OF THE LEGITIMATE
REQUIREMENTS OF LAW ENFORCEMENT.

TRADITIONALLY, COMMON CARRIERS HAVE OFFERED ESSENTIALLY "FIXED
POINT" TELECOMMUNICATIONS: THAT IS TO SAY, COMMUNICATIONS GENERATED
BY, OR INTENDED FOR, A CUSTOMER AND TRANSMITTED TO A FIXED LOCATION
CORRESPONDING TO A SPECIFIC TELEPHONE NUMBER. HISTORICALLY, THESE
COMMUNICATIONS HAVE BEEN TRANSMITTED OVER COMMON CARRIER FACILITIES,
SUCH AS TELEPHONE WIRES THAT WERE DEDICATED TO A CUSTOMER'S SPECIFIC
TELEPHONE NUMBER (OFTEN REFERRED TO AS A SUBSCRIBER'S "LOOP"). IN
THE PAST, WHEN LAW ENFORCEMENT AGENCIES CONDUCTED COURT-AUTHORIZED
ELECTRONIC SURVEILLANCE OR "WIRETAPS" ON A SUBJECT'S TRADITIONAL
"LOCAL LOOP," THEY WERE VIRTUALLY ASSURED OF INTERCEPTING THE CONTENT
OF ALL COMMUNICATIONS (AS WELL AS THE RELATED DIALING INFORMATION)
ASSOCIATED WITH THE SUBJECT'S TELEPHONE NUMBER SET FORTH IN THE COURT
ORDER.

OVER RECENT YEARS, ADVANCES IN TELECOMMUNICATIONS TECHNOLOGIES,
AS WELL AS THE INCREASING NUMBER OF COMMON CARRIERS (APPROXIMATELY
2,000) ENTERING THE TELECOMMUNICATIONS MARKETPLACE, HAVE INTRODUCED
NEW SOPHISTICATED SERVICES AND FEATURES THAT ALLOW FOR THE EFFICIENT
TRANSMISSION OF MULTIPLE, SIMULTANEOUS COMMUNICATIONS OF MULTIPLE
SUBSCRIBERS. SUCH COMMUNICATIONS ARE TRANSMITTED OVER FIBER OPTIC
LINES AND WIRE FACILITIES THAT PREVIOUSLY WERE DEDICATED TO A SINGLE
COMMUNICATION AND A SINGLE SUBSCRIBER. OTHER ADVANCED COMMUNICATIONS
SERVICES (SUCH AS CELLULAR TELEPHONES) AND FEATURES (SUCH AS CALL
FORWARDING WHICH PERMITS CUSTOMERS TO REDIRECT CALLS INTENDED FOR
THEM) UNDERMINE THE NECESSITY FOR COMMUNICATIONS TO BE TRANSMITTED
ALWAYS TO THE SAME SPECIFIC LOCATION OR THROUGH THE SAME WIRELINE
LOOP. LIKEWISE "FOLLOW-ME" FEATURES AND SERVICES EXPAND THE NOTION OF
CALL FORWARDING TO NATIONAL PROPORTIONS. FURTHER, COMMON CARRIERS'
DEPLOYMENT OF THE PERSONAL COMMUNICATIONS SERVICES (PCS) IN THE NEAR
FUTURE WILL ENABLE USERS TO DEFINE THEIR OWN SET OF SUBSCRIBED
SERVICES, USE ANY FIXED OR MOBILE TERMINAL OR TELEPHONE INSTRUMENT,
AND INITIATE AND RECEIVE CALLS ACROSS MULTIPLE NETWORKS WITHOUT
REGARD TO THEIR GEOGRAPHIC LOCATION. ALL OF THESE "FOLLOW-ME-TYPE"
SERVICES, IN EFFECT, DISASSOCIATE A SUBSCRIBER'S NUMBER FROM A FIXED
LOCAL LOOP. THUS, LAW ENFORCEMENT'S ABILITY TO CONDUCT SUCCESSFULLY
COURT-ORDERED ELECTRONIC SURVEILLANCE IS GREATLY HAMPERED.

AS A RESULT OF THESE AND OTHER NEW AND ADVANCED TECHNOLOGIES,
COMMON CARRIERS ARE NO LONGER ABLE TO ENSURE THEIR ABILITY TO ISOLATE
SPECIFIC COMMUNICATIONS (AND DIALING INFORMATION) ASSOCIATED WITH THE
SUBJECTS OF COURT-ORDERED SURVEILLANCE, TO THE EXCLUSION OF ALL OTHER
SUBSCRIBERS' COMMUNICATIONS AND DIALING INFORMATION. INDUSTRY
REPRESENTATIVES RAVE BLUNTLY TOLD LAW ENFORCEMENT THAT THE EXISTING
TELECOMMUNICATIONS SYSTEMS AND NETWORKS WILL THWART COURT AUTHORIZED
INTERCEPTS. THE ABOVE-DESCRIBED SERVICES AND FEATURES AND THE NEW
TELECOMMUNICATION SYSTEMS PLANNED FOR FUTURE IMPLEMENTATION, BOTH IN
THEIR CURRENT AND PLANNED CONFIGURATIONS, OFTEN PREVENT, AND WILL
CONTINUE TO PREVENT COMMON CARRIERS FROM PROVIDING LAW ENFORCEMENT
WITH ACCESS TO ALL OF THE COMMUNICATIONS AND DIALING INFORMATION THAT
ARE THE SUBJECT OF ELECTRONIC SURVEILLANCE AND PEN REGISTER COURT
ORDERS.

THE ATTACHED CHARTS (PAST OPERATING ENVIRONMENT, PRESENT
OPERATING ENVIRONMENT, AND FUTURE OPERATING ENVIRONMENT) DEPICT THE
INCREASINGLY COMPLEX TELECOMMUNICATIONS ENVIRONMENT IN WHICH LAW
ENFORCEMENT HAS OPERATED AND WILL CONTINUE TO OPERATE WHEN ATTEMPTING
TO EXECUTE COURT-AUTHORIZED ELECTRONIC SURVEILLANCES.

OVER THE LAST DECADE, IT IS CONSERVATIVELY ESTIMATED THAT SEVERAL
HUNDRED ELECTRONIC SURVEILLANCE AND PEN REGISTER AND TRAP AND TRACE
COURT ORDERS HAVE BEEN FRUSTRATED, IN WHOLE OR IN PART, BY VARIOUS
TECHNOLOGICAL IMPEDIMENTS. DURING 1993, THE FBI, THROUGH AN INFORMAL
SURVEY OF FEDERAL, STATE, AND LOCAL LAW ENFORCEMENT, COLLECTED
INFORMATION REGARDING THE EXECUTION OF RECENT ELECTRONIC SURVEILLANCE
COURT ORDERS (INCLUDING AUTHORIZATIONS FOR CALL CONTENT, PEN REGISTER,
AND TRAP AND TRACE) IN ORDER TO GAUGE HOW MANY COURT ORDERS HAVE BEEN
FRUSTRATED OR DELAYED DUE TO TECHNOLOGY-BASED PROBLEMS. THE SURVEY
REVEALED 91 INSTANCES IN WHICH LAW ENFORCEMENT AGENCIES PARTICIPATING
IN THE SURVEY WERE PRECLUDED FROM IMPLEMENTING OR FULLY IMPLEMENTING
COURT ORDERS FOR ELECTRONIC SURVEILLANCE DUE TO VARIOUS TECHNOLOGICAL
IMPEDIMENTS. THE MAJORITY OF THE PROBLEMS WERE ENCOUNTERED DURING
ATTEMPTS TO EXECUTE ORDERS REGARDING ELECTRONIC SURVEILLANCE
ACTIVITIES RELATING TO CELLULAR TELEPHONE SYSTEMS (33%) AND "FIXED"
OR WIRELINE COMMUNICATIONS THAT EMPLOYED CUSTOM CALLING FEATURES
(32%). WITH RESPECT TO CELLULAR SYSTEMS, PROBLEMS HAVE RANGED FROM A
TECHNICAL INABILITY ON THE PART OF THE CELLULAR COMMON CARRIER TO
ASSIST LAW ENFORCEMENT, TO CELLULAR SYSTEMS THAT WERE NOT CAPABLE OF
ISOLATING AND COLLECTING COMMUNICATIONS AND/OR PEN REGISTER
INFORMATION (DIALED NUMBERS) ASSOCIATED WITH SUBJECT'S TELEPHONE
COMMUNICATIONS. A SEPARATE CATEGORY OF TECHNICAL PROBLEMS ASSOCIATED
WITH CELLULAR SYSTEMS RELATES TO THE INABILITY OF SOME CELLULAR
CARRIERS TO COMPLY WITH COURT ORDERS DUE TO A LIMITED CAPACITY
ASSOCIATED WITH THE CARRIER'S PARTICULAR SYSTEM (11%). THE FOLLOWING
ARE EXAMPLES TO ILLUSTRATE SOME OF THE IMPEDIMENTS ENCOUNTERED:

1. A FEDERAL INVESTIGATION OF A MAJOR NARCOTICS ORGANIZATION
OPERATING IN THE NORTHEASTERN UNITED STATES WAS HAMPERED WHEN THE
CELLULAR TELEPHONE SERVICE PROVIDER WAS UNABLE TO FULFILL REQUESTS
FOR COURT-ORDERED WIRETAPS DUE TO THE PROVIDER'S TECHNICAL
LIMITATIONS.

2. AN ORGANIZED CRIME AND DRUG TRAFFICKING TASK FORCE
INVESTIGATION IN THE SOUTHEASTERN U. S. WAS UNABLE TO CONDUCT A COURT-
ORDERED WIRETAP AS THE CELLULAR TELEPHONE SERVICE PROVIDER WAS UNABLE
TO PROVIDE LAW ENFORCEMENT WITH ACCESS TO THE SUBJECT'S LONG DISTANCE
COMMUNICATIONS MADE THROUGH THE PROVIDERS CELLULAR SERVICE.

3. TWO DIFFERENT CELLULAR SERVICE PROVIDERS IN THE MIDWESTERN
U.S. WERE UNABLE TO COMPLY WITH SEPARATE FEDERAL COURT-ORDERS
REQUESTING PEN REGISTER OR DIALED NUMBER INFORMATION FROM A SUSPECTED
DRUG TRAFFICKER'S CELLULAR TELEPHONE.

4. A REGIONAL TELEPHONE COMPANY IN THE MID-WESTERN U.S. WAS
UNABLE TO PROVIDE A FEDERAL LAW ENFORCEMENT AGENCY WITH THE CONTENT
AND DIALED NUMBER INFORMATION FROM A SUSPECTED DRUG TRAFFICKERS
TELEPHONE AS A RESULT OF THE SUBJECTS USE OF CUSTOM CALLING FEATURES.

5. A CELLULAR SERVICE PROVIDER IN THE SOUTH WAS UNABLE TO
COMPLY WITH A FEDERAL COURT-ORDER FOR DIALED NUMBER INFORMATION
CONCERNING A FEDERAL PUBLIC CORRUPTION INVESTIGATION DUE TO TECHNICAL
LIMITATIONS.

IT IS IMPORTANT TO NOTE THAT THERE HAVE BEEN MANY INSTANCES WHERE
COURT ORDERS RAVE NOT BEEN BOUGHT OR SERVED ON CARRIERS DUE TO LAW
ENFORCEMENT'S AWARENESS OF THESE PRE-EXISTING IMPEDIMENTS, AND
THEREFORE THEY WERE NOT TABULATED IN CONNECTION WITH THIS SURVEY.
INCLUDED IN A RECENT LETTER FROM THE DIRECTOR OF A HIGH INTENSITY DRUG
TRAFFICKING AREA (HIDTA) IT WAS NOTED THAT A FEDERAL LAW ENFORCEMENT
AGENCY DID NOT PURSUE TWENTY-FIVE COURT ORDERS BECAUSE OF THE KNOWN
INABILITIES OF THE CELLULAR SERVICE PROVIDER TO EFFECTUATE SUCH
ORDERS.

HOWEVER, IT WOULD BE A MISTAKE TO ANALYZE AND RESPOND TO THIS
PROBLEM SIMPLY BY ATTEMPTING TO COUNT THE SPECIFIC NUMBER OF COURT
ORDERS FRUSTRATED OR DELAYED IN THE PAST. ALTHOUGH THEY CONVEY A
SENSE OF THE PROBLEM, AND IDENTIFY SOME OF THE TECHNICAL PROBLEMS THAT
ARE BEING ENCOUNTERED AS A RESULT OF RECENT TELECOMMUNICATIONS
TECHNOLOGY ADVANCES, FOCUSING ON THESE NUMBERS AND TECHNOLOGIES ALONE
IS TERRIBLY MISLEADING. FORTUNATELY, THE NUMBER OF COURT-ORDERED
INTERCEPTIONS THAT HAVE BEEN IMPEDED BY TECHNOLOGY IS STILL SOMEWHAT
LIMITED. HOWEVER, THE TELECOMMUNICATIONS TECHNOLOGIES THAT ARE
EMERGING WILL LIKELY RAVE A MUCH GREATER AND MORE DEVASTATING IMPACT
ON LAW ENFORCEMENT'S ABILITY TO CONDUCT COURT-ORDERED ELECTRONIC
SURVEILLANCE IN THE FUTURE.

FBI/GOVERNMENT EFFORTS TO OBTAIN TELECOMMUNICATIONS INDUSTRY'S
COOPERATION/SOLUTIONS

FOR ALMOST FOUR YEARS, THE GOVERNMENT HAS ATTEMPTED TO RESOLVE
THE TECHNICAL ISSUES ASSOCIATED WITH COURT-ORDERED ELECTRONIC
SURVEILLANCE BY MEETING WITH VARIOUS REPRESENTATIVES OF THE
TELECOMMUNICATIONS INDUSTRY AT VIRTUALLY ALL CORPORATE LEVELS.
HISTORICALLY, LAW ENFORCEMENT'S INTERFACE WITH THIS INDUSTRY HAS BEEN
THROUGH THE SECURITY ORGANIZATION OF THE COMMON CARRIER. IT IS THIS
INTERFACE THAT PREVIOUSLY HAS BEEN MOST KNOWLEDGEABLE OF LAW
ENFORCEMENT'S ELECTRONIC SURVEILLANCE REQUIREMENTS, AS THEY RECEIVE
COURT ORDERS REQUIRING THEM TO ASSIST LAW ENFORCEMENT WITH THEIR
ELECTRONIC SURVEILLANCE RESPONSIBILITIES. HOWEVER, IT WAS LEARNED IN
1990, DURING DISCUSSIONS WITH THE INDUSTRY, THAT THE SECURITY ENTITIES
WITHIN THE COMMON CARRIER COMPANIES WERE NOT ROUTINELY INVOLVED IN
THE INDUSTRY'S TECHNOLOGY PLANNING, DESIGN, AND DEVELOPMENT PROCESSES.
AS A RESULT, LAW ENFORCEMENT'S NEEDS WERE NOT BEING INCORPORATED
INTO THE CARRIERS' SYSTEM REQUIREMENTS.

IN AN ATTEMPT TO HAVE LAW ENFORCEMENT'S REQUIREMENTS CONSIDERED
DURING THE INDUSTRY'S PLANNING PROCESSES, THE GOVERNMENT
SYSTEMATICALLY MET WITH THE MOST SENIOR LEVELS OF THE TRADITIONAL
COMMON CARRIERS AND BRIEFED THEM ABOUT THE DIFFICULTIES BEING
ENCOUNTERED BY LAW ENFORCEMENT AND ABOUT OUR CONCERNS THAT FUTURE
TECHNOLOGIES WOULD SEVERELY DIMINISH, IF NOT PRECLUDE, THIS CRITICAL
INVESTIGATIVE TECHNIQUE. ALTHOUGH THESE EXECUTIVES APPEARED
SUPPORTIVE OF LAW ENFORCEMENT'S GOALS, SEVERAL OF THEM INDICATED THAT
WITHOUT SOME SORT OF MANDATE, SUCH AS LEGISLATION, THEIR COMPANIES
COULD NOT UNILATERALLY INVEST TIME, MONEY, AND TECHNICAL RESOURCES IN
DEVELOPING AND IMPLEMENTING SOLUTIONS, ESPECIALLY IF THERE WERE NO
ASSURANCE THAT THEIR COMPETITORS WOULD DO SO.

ON JANUARY 15, 1992, THEN PRESIDENT BUSH AUTHORIZED THE JUSTICE
DEPARTMENT TO PROCEED WITH A LEGISLATIVE INITIATIVE. ON MARCH 6,
1992, THE DIGITAL TELEPHONY LEGISLATION WAS ANNOUNCED, AND THE
INDUSTRY RESPONSE WAS GENERALLY NEGATIVE, A POSITION THAT WAS AT
VARIANCE WITH THAT EXPRESSED PREVIOUSLY BY A NUMBER OF THE
REPRESENTATIVES OF THE TELECOMMUNICATIONS COMPANIES. ON MARCH 18,
1992, THEN ATTORNEY GENERAL WILLIAM BARR AND THEN FBI DIRECTOR WILLIAM
S. SESSIONS SPONSORED AND CHAIRED A MEETING FOR ALL MAJOR INDUSTRY
EXECUTIVES. IT WAS ATTENDED BY FOUR TELECOMMUNICATIONS EXECUTIVES,
REPRESENTING THE INDUSTRY. DURING THIS MEETING, TELECOMMUNICATIONS
EXECUTIVES ASSERTED THAT THE FBI HAD BEEN TALKING TO THE WRONG PEOPLE
IN INDUSTRY (THE SECURITY OFFICERS, SENIOR EXECUTIVES, ETC.) AND THAT
THE SOLUTION TO THESE PROBLEMS RESTED WITH THOSE UPPER/MID-LEVEL
MANAGERS AND ENGINEERS WHO OVERSAW DEVELOPMENT/IMPLEMENTATION OF THE
TECHNOLOGIES IN QUESTION. THE ATTORNEY GENERAL AGREED TO AN INDUSTRY
REQUEST THAT A TELECOMMUNICATIONS TECHNICAL COMMITTEE CONSISTING OF
THE "RIGHT INDUSTRY PEOPLE" (PICKED BY THE CEOS) BE CREATED TO
IDENTIFY TECHNICAL SOLUTIONS AND TO GET THE JOB DONE. IT WAS ALSO
CLEARLY UNDERSTOOD THAT THE ADMINISTRATION AND LAW ENFORCEMENT WOULD
CONTINUE TO PURSUE LEGISLATION.

AS A RESULT OF THE MARCH 18, 1992, MEETING, INDUSTRY
REPRESENTATIVES MET WITH THE GOVERNMENT ON MARCH 26, 1992, TO BEGIN A
PROCESS OF ESTABLISHING A TECHNICAL WORKING COMMITTEE TO ADDRESS
TECHNICAL IMPEDIMENTS TO ELECTRONIC SURVEILLANCE. IN MAY OF 1992, AN
AD HOC TECHNICAL WORKING GROUP BEGAN. THIS GROUP WAS LATER ORGANIZED
AS THE ELECTRONIC COMMUNICATION SERVICE PROVIDERS COMMITTEE UNDER AN
INDUSTRY ASSOCIATION NOW KNOWN AS THE ALLIANCE FOR TELECOMMUNICATIONS
INDUSTRY SOLUTIONS (ATIS). THIS COMMITTEE CONSISTS OF
REPRESENTATIVES OF ELECTRONIC COMMUNICATION SERVICE PROVIDERS (E.G.
COMMON CARRIERS), TELECOMMUNICATIONS EQUIPMENT MANUFACTURERS, AND LAW
ENFORCEMENT OFFICIALS, WHO ATTEND VOLUNTARILY AND WITH VARYING DEGREES
OF REGULARITY AND INTEREST. AS A RESULT OF THIS PROCESS, OVER THE PAST
TWO YEARS THERE HAS BEEN A BETTER UNDERSTANDING BY BOTH LAW
ENFORCEMENT AND INDUSTRY REPRESENTATIVES OF THE ISSUES THAT EACH FACE
WITH RESPECT TO ELECTRONIC SURVEILLANCE. HOWEVER CONTRARY TO
ASSERTIONS, NEW TELECOMMUNICATIONS TECHNOLOGIES WILL JEOPARDIZE LAW
ENFORCEMENT'S SURVEILLANCE ABILITIES. THE ATIS CHAIRMAN HAS STATED IN
A RECENT LETTER THAT THE ENTIRE COMMITTEE, NOT JUST ONE PARTICIPANT OR
ONE GROUP OF PARTICIPANTS, NOW RECOGNIZES THE PROBLEMS AND IMPEDIMENTS
THAT THESE TELECOMMUNICATIONS TECHNOLOGIES ARE CREATING FOR LAW
ENFORCEMENT. A COPY OF OUR CORRESPONDENCE WITH THE ATIS CHAIRMAN IS
ATTACHED AS AN EXHIBIT.

I SUPPORT CONTINUED DIALOGUE BETWEEN INDUSTRY AND LAW
ENFORCEMENT. HOWEVER, IT MUST BE RECOGNIZED THAT THIS COMMITTEE
PROCESS IS VOLUNTARY AND, AS SUCH, ONLY THOSE COMPANIES WHO ARE
COMMITTED TO ASSISTING LAW ENFORCEMENT PARTICIPATE AND SUPPORT THIS
EFFORT. SECOND, ONLY A HANDFUL OF THE OVER 2,000 COMPANIES ATTEND.
THIRD, NO IMPLEMENTABLE SOLUTIONS HAVE BEEN DEVELOPED SINCE
DISCUSSIONS BEGAN ALMOST TWO YEARS AGO. FOURTH, COMMITTEE RESOLUTIONS
ARE NON-BINDING AND IT IS NOT POSSIBLE TO SECURE A COMMITMENT FROM
PARTICIPANTS TO IMPLEMENT ANY SOLUTIONS THAT MAY BE DEVELOPED IN THIS
VOLUNTARY FORUM. FINALLY, AS IN ANY BUSINESS DECISION, IT IS
RECOGNIZED THAT THERE WILL BE COSTS INCURRED BY INDUSTRY TO
ACCOMMODATE LAW ENFORCEMENT'S REQUIREMENTS. THE ATIS CHAIRMAN HAS
ALSO INDICATED THAT ANTITRUST AND OTHER LEGAL CONSIDERATIONS PRECLUDE
DISCUSSIONS AND RESOLUTIONS TO THESE COST ISSUES. IN LIGHT OF THESE
LIMITATIONS, THE ADMINISTRATION AND ALL OF LAW ENFORCEMENT HAVE
CONCLUDED THAT THE COMMITTEE PROCESS IS NOT, AND CANNOT BE, A
SUBSTITUTE FOR A LEGISLATIVE MANDATE TO ENSURE LAW ENFORCEMENT'S
CONTINUED ABILITY TO CONDUCT COURT-AUTHORIZED ELECTRONIC SURVEILLANCE.

PRESIDENTIAL REVIEW DIRECTIVE (PRD)

IN APRIL 1993, PRESIDENT CLINTON DIRECTED THAT AN INTERAGENCY
WORKING GROUP BE ESTABLISHED UNDER THE AUSPICES OF THE NATIONAL
SECURITY COUNCIL (NSC) TO EXAMINE ADVANCED TELEPHONY AND TO CONSIDER
ITS EFFECT AND IMPACT ON THE CONDUCT OF ELECTRONIC SURVEILLANCE BY OUR
NATION'S LAW ENFORCEMENT AND INTELLIGENCE AGENCIES. AFTER AN IN-DEPTH
EIGHT MONTH STUDY, THE NSC PROVIDED A NUMBER OF POLICY OPTIONS FOR THE
VICE PRESIDENT AND APPROPRIATE CABINET OFFICIALS. AS A RESULT OF
THEIR REVIEW OF THE OPTIONS, IT WAS UNANIMOUSLY DECIDED THAT
COMPREHENSIVE LEGISLATION WAS THE ONLY EFFECTIVE WAY TO DEAL WITH THE
"DIGITAL TELEPHONY" PROBLEM. FUNDAMENTAL TO THIS DECISION WAS THE
BELIEF THAT IT WOULD BE UNACCEPTABLE FOR THE SAFETY OF THE AMERICAN
PUBLIC TO BE IMPERILED, THE NATIONAL SECURITY ENDANGERED, AND
EFFECTIVE LAW ENFORCEMENT ERODED THROUGH THE LOSS OR DIMINISHMENT OF
THIS CRITICAL AND ESSENTIAL TOOL OF OUR NATION'S LAW ENFORCEMENT AND
INTELLIGENCE AGENCIES.

PROPOSED LEGISLATION

THE PROPOSED LEGISLATION REPRESENTS, IN OUR ESTIMATION, THE ONLY
RATIONAL AND VIABLE APPROACH TO SOLVING THE DIGITAL TELEPHONY PROBLEM
IN A COMPREHENSIVE FASHION. ONLY THROUGH LEGISLATION CAN THE
GOVERNMENT BE ASSURED THAT WITHIN A REASONABLE PERIOD OF TIME THE
IMPEDIMENTS TO ELECTRONIC SURVEILLANCE WILL BE REMOVED AND OUR
SOCIETY'S WINDOW OF VULNERABILITY CLOSED. WITHOUT ENACTMENT OF THE
ADMINISTRATION'S PROPOSAL, ONE OF OUR MOST EFFECTIVE WEAPONS AGAINST
NATIONAL AND INTERNATIONAL DRUG TRAFFICKING, TERRORISM, ESPIONAGE,
ORGANIZED CRIME, AND SERIOUS VIOLENT CRIMES WILL BE SEVERELY AND
ADVERSELY IMPACTED. WITHOUT ITS ENACTMENT, THE PUBLIC SAFETY, THE
NATIONAL SECURITY, AND EFFECTIVE LAW ENFORCEMENT WILL BE IMPERILED.

THE PURPOSE OF THIS LEGISLATION IS TO MAINTAIN TECHNOLOGICAL
CAPABILITIES COMMENSURATE WITH EXISTING STATUTORY AUTHORITY -- THAT
IS, TO PREVENT ADVANCED TELECOMMUNICATIONS TECHNOLOGY FROM REPEALING
DE FACTO THE STATUTORY AUTHORITY ALREADY CONFERRED BY THE CONGRESS.
THE PROPOSED LEGISLATION EXPLICITLY STATES THAT THE LEGISLATION DOES
NOT ENLARGE OR REDUCE THE GOVERNMENT'S AUTHORITY TO LAWFULLY INTERCEPT
THE CONTENT OF COMMUNICATIONS OR INSTALL OR USE PEN REGISTER OR TRAP
AND TRACE DEVICES PURSUANT TO COURT AUTHORIZATION. NEITHER DOES IT
ALTER THE CURRENT DUTY OF THE SERVICE PROVIDER TO ASSIST LAW
ENFORCEMENT AND RECEIVE PAYMENT FOR SUCH ASSISTANCE. NOR DOES IT
ALTER EXISTING CAUSES OF ACTION, CIVIL LIABILITY, OR GOOD FAITH
DEFENSES.

THE "PURPOSE" SECTION OF THE ACT INDICATES THAT THE ACT IS
DESIGNED TO CLARIFY AND DEFINE THE RESPONSIBILITIES OF COMMON
CARRIERS, PROVIDERS OF COMMON CARRIER SUPPORT SERVICES, AND
TELECOMMUNICATIONS EQUIPMENT MANUFACTURERS. THEY WOULD BE REQUESTED
TO PROVIDE THE ASSISTANCE REQUIRED TO ENSURE THAT GOVERNMENT AGENCIES
CAN IMPLEMENT COURT ORDERS AND LAWFUL AUTHORIZATIONS TO INTERCEPT THE
CONTENT OF WIRE AND ELECTRONIC COMMUNICATIONS AND ACQUIRE CALL SETUP
INFORMATION (E.G., DIALED NUMBER INFORMATION), PURSUANT TO THE
FEDERAL AND STATE ELECTRONIC SURVEILLANCE AND PEN REGISTER AND TRAP
AND TRACE STATUTES. THE "ASSISTANCE" REQUIREMENT THAT IS CLARIFIED
AND MORE FULLY DEFINED IS NOT A NEW ONE, BUT RATHER A LONG-STANDING
ONE, DATING BACK TO 1970. IN THE ORIGINAL ASSISTANCE PROVISION,
CONGRESS EVIDENCED A CLEAR INTENT THAT LAWFUL COURT ORDERS SHOULD
NOT BE FRUSTRATED DUE TO A SERVICE PROVIDER'S FAILURE TO PROVIDE
NEEDED TECHNOLOGICAL ASSISTANCE AND FACILITIES. THE PROPOSED
LEGISLATION CLARIFIES AND DEFINES THE NATURE AND EXTENT OF THE
RESPONSIBILITY WHICH ARISES FROM THE UNEQUIVOCAL MANDATE OF THE 1970
LAW.

AN ADDITIONAL PURPOSE OF THE ACT IS TO IMPROVE COMMUNICATIONS
PRIVACY PROTECTION FOR USERS OF CORDLESS TELEPHONES, CERTAIN RADIO-
BASED DATA COMMUNICATIONS AND NETWORKS, COMMUNICATIONS TRANSMITTED
USING CERTAIN PRIVACY-ENHANCING MODULATION TECHNIQUES, AND TO CLARIFY
THE LAWFULNESS OF QUALITY CONTROL AND SERVICE PROVISION MONITORING
OF ELECTRONIC COMMUNICATIONS ON A PAR WITH WIRE COMMUNICATIONS.

THE LEGISLATION SETS FORTH LAW ENFORCEMENT'S ELECTRONIC
SURVEILLANCE REQUIREMENTS. THE REQUIREMENTS ARE, BY DESIGN, GENERIC
IN NATURE AND ARE INTENDED TO PUT COMMON CARRIERS ON NOTICE AS TO
NEEDS OF LAW ENFORCEMENT. THE GOVERNMENT PURPOSELY ESCHEWED SETTING
ANY TECHNICAL STANDARDS BECAUSE IT DOES NOT DESIRE TO "DICTATE"
PARTICULAR TECHNOLOGICAL SOLUTIONS. IT IS THE GOVERNMENT'S POSITION
THAT EACH COMMON CARRIER IS BEST POSITIONED AND QUALIFIED TO DETERMINE
HOW IT WILL MEET THE REQUIREMENTS IN THE MOST COST-EFFECTIVE WAY.

THE ARTICULATION OF THESE REQUIREMENTS CONSTITUTES THE FIRST
LEGISLATIVE LISTING OF LAW ENFORCEMENT'S ELECTRONIC SURVEILLANCE
REQUIREMENTS. HOWEVER, MOST OF THESE REQUIREMENTS HAVE BEEN KNOWN
TO THE MAJOR LOCAL EXCHANGE CARRIERS, INTER-EXCHANGE CARRIERS, AND
CELLULAR CARRIERS FOR QUITE SOME TIME.

IN BRIEF, THE REQUIREMENTS SPECIFY THAT COMMON CARRIERS MUST BE
ABLE TO PROVIDE FORTHWITH, PURSUANT TO COURT ORDER OR LAWFUL
AUTHORIZATION, THE CAPABILITY AND CAPACITY TO PERMIT THE GOVERNMENT
TO CONDUCT ELECTRONIC SURVEILLANCE, PEN REGISTER, AND TRAP AND TRACE
INVESTIGATIONS EFFECTIVELY. COMMON CARRIERS ARE REQUIRED TO ENSURE
THAT THERE IS AN ABILITY TO EXECUTE EXPEDITIOUSLY AND SIMULTANEOUSLY
ALL COURT ORDERS AND LAWFUL AUTHORIZATIONS DIRECTED TO THEM.
SECOND, THEY ARE REQUIRED TO ENSURE THAT THE CONTENT OF COMMUNICATIONS
AND CALL SETUP INFORMATION (DIALING INFORMATION) CAN BE INTERCEPTED,
ACQUIRED, AND PROVIDED TO THE LAW ENFORCEMENT AGENCY. IT MUST BE
PROVIDED CONCURRENT WITH THE TRANSMISSION OF THE SUBJECT'S
COMMUNICATION, TO THE EXCLUSION OF ANYONE ELSE'S COMMUNICATIONS OR
DIALING INFORMATION, AND WITHOUT REGARD TO THE MOBILE NATURE OF THE
FACILITY OR SERVICE THAT IS THE SUBJECT OF THE COURT ORDER OR LAWFUL
AUTHORIZATION, REGARDLESS OF ANY FEATURES OFFERED BY THE COMMON
CARRIER USED BY THE SUBSCRIBER WHO IS THE SUBJECT OF THE COURT
ORDERED INTERCEPT. THIRD, THEY ARE REQUIRED TO ENSURE THAT
COMMUNICATIONS CAN BE INTERCEPTED AND DIALING INFORMATION ACQUIRED
UNOBTRUSIVELY AND WITH A MINIMUM OF INTERFERENCE WITH ANY SUBSCRIBER'S
TELECOMMUNICATIONS SERVICE. FINALLY, THEY ARE REQUIRED TO ENSURE
THAT THE CONTENT OF COMMUNICATIONS AND THE DIALING INFORMATION CAN BE
TRANSMITTED TO A LOCATION IDENTIFIED BY THE GOVERNMENT DISTANT FROM
THE FACILITY THAT IS THE SUBJECT OF THE INTERCEPTION, FROM THE
INTERCEPTION ACCESS POINT, AND FROM THE PREMISES OF THE COMMON
CARRIER.

THE BASIS FOR THESE REQUIREMENTS IS EASY TO UNDERSTAND. INASMUCH
AS COMMUNICATION INTERCEPTIONS AND DIALED NUMBER ACQUISITIONS
INCREASINGLY WILL BE ACTIVATED FROM WITHIN COMMON CARRIER PREMISES,
INCLUDING SWITCHING OFFICES, IT IS CRITICAL THAT THERE BE SUFFICIENT
CAPACITY TO ACCOMMODATE COMPLETELY THE CONCOMITANT NEEDS OF ALL LAW
ENFORCEMENT AND GOVERNMENT AGENCIES.

IT IS CRITICAL FOR LAW ENFORCEMENT AGENCIES TO BE ABLE TO
INTERCEPT COMMUNICATIONS AND ACQUIRE DIALING INFORMATION CONCURRENTLY,
SO THEY CAN RESPOND IMMEDIATELY TO LIFE-THREATENING CIRCUMSTANCES AND
REACT PROMPTLY AND EFFECTIVELY TO CRIMINAL ACTIVITY IN TERMS OF MAKING
NEEDED ARRESTS, SEIZING EVIDENCE, AND INTERDICTING CONTRABAND, SUCH
AS DRUGS, ILLEGAL WEAPONS, AND BOMBS. THIS REQUIREMENT ALSO IS
IMPORTANT AND CRITICAL IN HELPING LAW ENFORCEMENT AGENCIES "MINIMIZE"
THE MONITORING AND RECORDING OF NONCRIMINAL COMMUNICATIONS.

THE REQUIREMENT THAT COMMON CARRIERS HAVE THE ABILITY TO ISOLATE
FOR LAW ENFORCEMENT THE COMMUNICATIONS AND DIALING INFORMATION OF THE
SUBJECTS OF ELECTRONIC SURVEILLANCE TO THE EXCLUSION OF THE
COMMUNICATIONS AND DIALING INFORMATION OF OTHER SUBSCRIBERS IS A BASIC
AND A LONG-STANDING ONE. LAW ENFORCEMENT AGENCIES DO NOT WANT TO BE
FACED WITH THE PROSPECT OF HAVING TO "SORT THROUGH" A TANGLE OF
COMMUNICATIONS WHICH INCLUDE THE COMMUNICATIONS OF INNOCENT
INDIVIDUALS WHO HAVE THE MISFORTUNE OF HAVING THEIR COMMUNICATIONS
"BUNDLED" OR OTHERWISE COMMINGLED WITH THOSE CRIMINAL CONVERSATIONS OF
THE SUBJECT OF COURT-ORDERED INTERCEPTION IN THE TELECOMMUNICATIONS
TRANSMISSION PROCESS. (HOWEVER, IF THE "BUNDLING" OF COMMUNICATIONS IS
BEING DONE BY THE SUBSCRIBER LAW ENFORCEMENT DOES NOT EXPECT THE
COMMON CARRIER TO "UNBUNDLE" THESE COMMUNICATIONS. THIS ABILITY IS
BEING CHALLENGED BY THE INCREASED USE OF DIGITAL TRANSPORT,
MULTIPLEXING, AND FIBER OPTICS CLOSER TO THE PREMISES OF THE
INTERCEPTION SUBJECT.

THE REQUIREMENT PERTAINING TO THE MOBILE NATURE OF SERVICES AND
FEATURES DIRECTLY ADDRESSES THE SIGNIFICANT IMPEDIMENTS TO ELECTRONIC
SURVEILLANCE BROUGHT ABOUT BY CELLULAR, PERSONAL COMMUNICATIONS
SERVICES (PCS), AND OTHER EMERGING MOBILE SERVICES, AS WELL AS
FEATURES AND SERVICES WHICH PERMIT SUBSCRIBERS TO PROGRAM OR OTHERWISE
DIRECT COMMUNICATIONS TO ANY FACILITY THEY CHOOSE (E.G., "CALL
FORWARDING" AND "FOLLOW ME SERVICE").

THE BASIS FOR THE REQUIREMENT THAT COMMUNICATIONS AND DIALING
INFORMATION BE ACQUIRED UNOBTRUSIVELY AND WITH A MINIMUM OF
INTERFERENCE WITH ANY SUBSCRIBER'S SERVICE IS SELF EVIDENT. WITHOUT
IT, ELECTRONIC SURVEILLANCE WOULD BE DETECTED BY THE SUBJECT OF THE
INTERCEPT AND COMPROMISED.

THE REQUIREMENT THAT INTERCEPTED COMMUNICATIONS OR ACQUIRED
DIALING INFORMATION BE RECEIVED AT A LOCATION IDENTIFIED BY LAW
ENFORCEMENT AGENCIES DISTANT FROM THE SUBJECT'S FACILITY, FROM THE
INTERCEPTION POINT, AND FROM THE PREMISES OF THE COMMON CARRIER IS
LIKEWISE NOT NEW AND MAINTAINS CURRENT OPERATING PROCEDURES. THIS
REQUIREMENT IS FUNDAMENTALLY IMPORTANT, SINCE WITHOUT IT THE SAFETY OF
LAW ENFORCEMENT OFFICERS AND GOVERNMENT EMPLOYEES WOULD BE PUT AT
RISK, THE INTERCEPTION EASILY COULD BE COMPROMISED THROUGH
DETECTION, AND THE EFFECTIVE EXECUTION OF THE SURVEILLANCE WOULD BE
SIGNIFICANTLY DISRUPTED.

THE LEGISLATION CONTAINS A PROVISION ENTITLED "SYSTEMS
SECURITY" WHICH IS INTENDED TO MAINTAIN THE HIGHEST LEVELS OF
TELECOMMUNICATIONS PRIVACY AND SYSTEMS SECURITY. SINCE COMMUNICATION
INTERCEPTIONS AND DIALING INFORMATION ACQUISITIONS INCREASINGLY WILL
BE FACILITATED FROM WITHIN COMMON CARRIER PREMISES, INCLUDING
SWITCHING FACILITIES AND NETWORK ELEMENTS, IT IS CRITICAL THAT THESE
FACILITIES REMAIN HIGHLY SECURE. CONSEQUENTLY, LAW ENFORCEMENT WILL
BE REQUIRED TO NOTIFY COMMON CARRIERS OF ANY INTERCEPTIONS THAT ARE
TO BE EFFECTED WITHIN SUCH FACILITIES. FURTHER, COMMON CARRIERS WILL
DESIGNATE INDIVIDUALS WHO EXCLUSIVELY WILL HAVE THE ABILITY TO
ACTIVATE ALL SUCH INTERCEPTIONS FOR LAW ENFORCEMENT. LAW ENFORCEMENT
AND OTHER GOVERNMENT AGENCIES ARE NOT SEEKING THE AUTHORITY OR ABILITY
TO REMOTELY ACTIVATE INTERCEPTIONS WITHIN THE PREMISES OF A COMMON
CARRIER IN A FASHION THAT BYPASSES PERSONNEL DESIGNATED BY COMMON
CARRIER. ALL EXECUTIONS OF COURT ORDERS OR AUTHORIZATIONS WHICH
REQUIRE ACCESS TO THE SWITCHING FACILITIES OR OTHER CARRIER PREMISES
WILL BE MADE THROUGH THE INDIVIDUALS AUTHORIZED AND DESIGNATED BY THE
COMMON CARRIER.

THE FOCUS OF COMPLIANCE IS UPON COMMON CARRIERS WITHIN WHOSE
NETWORKS MOST OF THE ELECTRONIC SURVEILLANCE OCCURS AND WHERE MOST OF
THE IMPEDIMENTS ARE ENCOUNTERED. COMPLIANCE IS SET FOR WITHIN THREE
YEARS, A PERIOD OF TIME CONSIDERED TO BE REASONABLE FOR REMOVING THE
IMPEDIMENTS. THE COVERAGE OF COMPLIANCE INCLUDES ONLY NEEDED
MODIFICATIONS TO EXISTING SYSTEMS AND NETWORKS, AS WELL AS TO FUTURE
SYSTEMS AND NETWORKS (THOSE FIELDED AFTER THE THREE-YEAR COMPLIANCE
PERIOD).

BECAUSE COMMON CARRIERS MUST RELY ON EQUIPMENT MANUFACTURERS AND
SUPPORT SERVICE PROVIDERS, THE LEGISLATION PROVIDES THAT COMMON
CARRIERS ARE TO CONSULT WITH THESE ENTITIES IN A TIMELY FASHION AND
THAT THESE ENTITIES, IN TURN, SHALL MAKE AVAILABLE NEEDED EQUIPMENT
AND SERVICES ON A TIMELY AND PRIORITY BASIS, AND AT A REASONABLE AND
COST-EFFECTIVE CHARGE.

ENFORCEMENT OF THE LEGISLATION IS VESTED IN THE ATTORNEY GENERAL.
THIS IS TO AVOID DISPARATE ENFORCEMENT ACTIONS THROUGHOUT THE COUNTRY
IN WAYS THAT COULD BE BURDENSOME FOR COMMON CARRIERS. THE ATTORNEY
GENERAL IS AUTHORIZED TO SEEK INJUNCTIVE RELIEF AGAINST COMMON
CARRIERS, EQUIPMENT MANUFACTURERS, AND SUPPORT SERVICE PROVIDERS, AS
WELL AS TO FILE CIVIL ACTIONS FOR FINES AGAINST COMMON CARRIERS. THE
ATTORNEY GENERAL IS ALSO AUTHORIZED TO REQUEST ENFORCEMENT ASSISTANCE
FROM THE FEDERAL COMMUNICATIONS COMMISSION. VIOLATORS ARE SUBJECT TO
A CIVIL PENALTY OF $10,000 PER DAY FOR EACH DAY IN VIOLATION. AS A
PRACTICAL MATTER, IT IS NOT EXPECTED THAT THESE ENFORCEMENT REMEDIES
AND ACTIONS WILL BE REQUIRED, PARTICULARLY WITH REGARD TO RESPONSIBLE
COMMON CARRIERS. HOWEVER, WITH APPROXIMATELY 2,000 COMMON CARRIERS
NOW IN THE TELECOMMUNICATIONS MARKETPLACE, THE PROSPECT THAT SOME WILL
DISREGARD THESE REQUIREMENTS OR RESPOND TO THEM IN A DILATORY FASHION
CANNOT BE DISREGARDED.

IN ORDER TO FACILITATE COMPLIANCE WITH THE PROVISIONS OF THIS
LEGISLATION, THE ATTORNEY GENERAL IS ENCOURAGED TO CONSULT WITH THE
FEDERAL COMMUNICATIONS COMMISSION AND COMMON CARRIER REPRESENTATIVES
AND TO UTILIZE COMMON CARRIER STANDARDS BODIES, ASSOCIATIONS, OR
OTHER SUCH ORGANIZATIONS TO DISCUSS DETAILS OF THE REQUIREMENTS AND
COST-EFFECTIVE APPROACHES.

IN THE DEFINITION OF THE TERM "INTERCEPT," IT IS MADE CLEAR THAT
THE LEGISLATION, AS A GENERAL RULE, DOES NOT MAKE COMMON CARRIERS
RESPONSIBLE FOR DECIPHERING OR DECRYPTING ENCRYPTED COMMUNICATIONS.
AS A GENERAL RULE, LAW ENFORCEMENT AGENCIES ASSUME THIS
RESPONSIBILITY. COMMON CARRIERS ARE REQUIRED TO PROVIDE ONLY THE
PLAINTEXT OF ENCRYPTED COMMUNICATIONS WHEN THE ENCRYPTION WAS PROVIDED
BY THE COMMON CARRIER AND THE COMMON CARRIER POSSESSES THE INFORMATION
NECESSARY TO DECRYPT THE COMMUNICATION.

THE TERM "CALL SETUP INFORMATION" IS ESSENTIALLY THE DIALING
INFORMATION ASSOCIATED WITH ANY COMMUNICATION WHICH IDENTIFIES THE
ORIGIN AND DESTINATION OF A WIRE OR ELECTRONIC COMMUNICATION OBTAINED
THROUGH THE USE OF A PEN REGISTER OR TRAP AND TRACE DEVICE PURSUANT
TO COURT ORDER. IT DOES NOT INCLUDE ANY INFORMATION WHICH MIGHT
DISCLOSE THE GENERAL LOCATION OF A MOBILE FACILITY OR SERVICE, BEYOND
THAT ASSOCIATED WITH THE AREA CODE OR EXCHANGE OF THE FACILITY OR
SERVICE. THERE IS NO INTENT WHATSOEVER, WITH REFERENCE TO THIS TERM,
TO ACQUIRE ANYTHING THAT COULD PROPERLY BE CALLED "TRACKING"
INFORMATION.

THE LEGISLATION INCLUDES SEVERAL PROVISIONS THAT ARE INTENDED TO
IMPROVE COMMUNICATIONS PRIVACY. THESE INCLUDE THE CONFERRAL OF FULL
PRIVACY PROTECTION FOR CORDLESS TELEPHONES, INCLUDING THOSE
TRANSMISSIONS OCCURRING IN THE RADIO LINK BETWEEN THE TELEPHONE
HANDSET AND BASE STATION. THIS PROVISION RECOGNIZES THAT NEWER
GENERATIONS OF CORDLESS TELEPHONES TEND TO AFFORD GREATER PRIVACY
PROTECTION TO USERS THAN THOSE PREVIOUSLY MARKETED, BECAUSE LAWFUL
NETWORK MONITORING IS ALLOWED FOR ELECTRONIC AS WELL AS WIRE
COMMUNICATIONS.

IT IS IMPORTANT TO UNDERSTAND THAT THIS LEGISLATION IS INTENDED
TO STAND THE TEST OF TIME AND OVERCOME THE SHORTCOMINGS OF THE 1970
AMENDMENT. IT IS SPECIFICALLY DESIGNED TO DEAL INTELLIGENTLY AND
COMPREHENSIVELY WITH CURRENT AND EMERGING TELECOMMUNICATIONS
TECHNOLOGIES AND TO PRECLUDE THE NEED FOR MUCH MORE RESTRICTIVE AND
MORE COSTLY LEGISLATION IN FIVE OR TEN YEARS WHEN COURT-AUTHORIZED
INTERCEPTIONS WOULD NO LONGER BE POSSIBLE DUE TO FURTHER TECHNOLOGY
ADVANCES. ANY LEGISLATION THAT WOULD LIMIT ITS APPLICATION TO
TECHNOLOGICAL IMPEDIMENTS ON A "PIECEMEAL" BASIS WOULD BE DISASTROUS.
PIECEMEAL LEGISLATION WHICH DEALS ONLY WITH CURRENT PROBLEMS OR SOME
OF THE PROBLEMS WOULD RESULT IN COMMON CARRIERS FULLY DEPLOYING NEW
TECHNOLOGIES WHICH WOULD IMPEDE ELECTRONIC SURVEILLANCE AND WHICH
WOULD CAUSE THE GOVERNMENT TO RETURN TO THE CONGRESS REPEATEDLY. IN
THE MEANTIME, THE PUBLIC SAFETY, THE NATIONAL SECURITY, AND EFFECTIVE
LAW ENFORCEMENT WOULD BE HARMED AND THE COST OF REMOVING THOSE FUTURE
IMPEDIMENTS WOULD BE PROHIBITIVE. INDEED, IN THIS REGARD, BAD
LEGISLATION WOULD BE WORSE THAN NO LEGISLATION AT ALL.

WHAT THE LEGISLATION DOES NOT PROPOSE

MUCH OF THE CRITICISM DIRECTED TOWARD THE ADMINISTRATION'S
PROPOSAL HAS BEEN MISLEADING OR INCORRECT. I WOULD LIKE TO CLARIFY
FOR THE RECORD WHAT THE LEGISLATION DOES NOT PROPOSE.

NO CHANGE IN LEGAL AUTHORITY

FIRST, AS I PREVIOUSLY STATED, THE PROPOSED LEGISLATION DOES NOT
SEEK TO EXPAND THE CURRENT LAWS AUTHORIZING THE INTERCEPTION OF WIRE
OR ELECTRONIC COMMUNICATIONS. TO THE CONTRARY, THIS PROPOSAL SIMPLY
SEEKS TO MAINTAIN LAW ENFORCEMENT'S ABILITY TO CONDUCT THE TYPES OF
SURVEILLANCES CURRENTLY AUTHORIZED IN CHAPTERS 119 AND 206, TITLE 18,
U.S.C.; THE FOREIGN INTELLIGENCE SURVEILLANCE ACT; AND THE LAWS IN 37
STATES, THE DISTRICT OF COLUMBIA, PUERTO RICO, AND THE U.S. VIRGIN
ISLANDS. IN 1968, CONGRESS CAREFULLY CONSIDERED AND PASSED
LEGISLATION SETTING FORTH THE EXACT PROCEDURE BY WHICH LAW
ENFORCEMENT CAN OBTAIN COURT AUTHORIZATION TO CONDUCT ELECTRONIC
SURVEILLANCE. THE STATUTE DEMANDS THAT LAW ENFORCEMENT USE
ELECTRONIC SURVEILLANCE ONLY AS A TECHNIQUE OF LAST RESORT. REQUESTS
FOR ELECTRONIC SURVEILLANCE RECEIVE RIGOROUS ADMINISTRATIVE AND
JUDICIAL SCRUTINY AND ARE GRANTED ONLY AFTER A FEDERAL DISTRICT COURT
JUDGE, OR HIS/HER STATE/LOCAL COUNTERPART, IS SATISFIED THAT ALL THE
STATUTORY SAFEGUARDS HAVE BEEN MET AND ALL OTHER REASONABLE
INVESTIGATIVE STEPS HAVE FAILED, OR ARE LIKELY TO FAIL. THE PROPOSED
LEGISLATION WILL NOT CHANGE THIS.

FURTHERMORE, SERVICE PROVIDERS WILL NOT EXECUTE AN INTERCEPT
WITHOUT THE REQUIRED COURT ORDER OR STATUTORY AUTHORIZATION. ANY
ATTEMPT TO DO SO BY ANYONE, EITHER INSIDE THE GOVERNMENT OR THE
PRIVATE SECTOR, WILL CONTINUE TO BE A VIOLATION OF FEDERAL LAW AND
THOSE INDIVIDUALS WILL BE PROSECUTED TO THE FULLEST EXTENT OF THE LAW.

IN ADDITION, THE PROPOSAL WILL NOT CHANGE WHO CONTROLS ACCESS TO
THE COMMUNICATIONS TO BE INTERCEPTED. IN FACT, INTERCEPTION ACCESS
POINTS INCREASINGLY ARE LIKELY TO BE ACTIVATED WITHIN THE COMMON
CARRIER'S PREMISES, THEREBY SEVERELY LIMITING THE POTENTIAL FOR
ILLEGAL WIRETAPPING. THE PROPOSAL WILL NOT OPEN THE DOOR TO EASY OR
WHOLESALE WIRETAPPING, NOR DOES LAW ENFORCEMENT ENVISION A MARKED
INCREASE IN THE NUMBER OF ELECTRONIC SURVEILLANCE COURT ORDERS THAT
WILL BE SOUGHT OR AN INCREASE IN THE TYPES OF INVESTIGATIONS IN WHICH
A COURT-AUTHORIZED INTERCEPTION CAN BE GRANTED. THE LEGISLATION DOES
NOT, IN ANY WAY, RELAX THE ESTABLISHED STATUTORY AND COURT-IMPOSED
REQUIREMENT FOR OBTAINING A COURT ORDER.

THIS PROPOSAL DOES NOT RESTRICT TECHNOLOGY. IT DEALS SOLELY WITH
PRESERVING TECHNICAL CAPABILITIES. THE PROPOSED LEGISLATION SEEKS
ONLY TO CLARIFY AND MORE CLEARLY DEFINE EXISTING LAW REGARDING THE
"TECHNICAL ASSISTANCE" PROVISION BY MAKING IT APPLICABLE AND
MEANINGFUL, REGARDLESS OF THE TECHNOLOGY EMPLOYED.

ENCRYPTION

THE PROPOSAL, IN ESSENCE, ONLY ADDRESSES THE TECHNOLOGICAL ISSUE
CONCERNING ACCESS TO COMMUNICATIONS AND DOES NOT ALTER THE LEGAL
REQUIREMENTS CURRENTLY ASSOCIATED WITH COURT-ORDERED INTERCEPTS. WITH
MINOR EXCEPTION WHERE ENCRYPTION WAS PROVIDED BY THE COMMON CARRIER
AND THE COMMON CARRIER POSSESS IN THE INFORMATION NECESSARY TO DECRYPT
THE INFORMATION, THE LEGISLATION DOES NOT ADDRESS THE ISSUE OF
ENCRYPTION. WHILE ENCRYPTION CERTAINLY POSES A PROBLEM FOR LAW
ENFORCEMENT, THIS LEGISLATIVE PROPOSAL FOCUSES ONLY ON THE ISSUE OF
INTERCEPTION ACCESS WITHIN ADVANCED COMMUNICATIONS NETWORKS. THE
TOPIC OF ACCESS WITHIN ADVANCED TELECOMMUNICATIONS NETWORKS IS
DISTINCT FROM ENCRYPTION AND POSES AN IMMEDIATE AND CRITICAL PROBLEM
FOR LAW ENFORCEMENT FOR WHICH WE ARE NOW SEEKING A LEGISLATIVE
SOLUTION.

NETWORK SECURITY AND RELIABILITY

SOME HAVE RAISED CONCERNS REGARDING THE IMPACT THIS LEGISLATION
MIGHT HAVE ON NETWORK SECURITY AND RELIABILITY. CERTAIN SPECIAL
INTEREST SPOKESPERSONS HAVE ASSERTED THAT THE LEGISLATION WILL MAKE IT
EASIER FOR ANYONE, FROM COMPUTER HACKERS TO FOREIGN SPIES, TO ACCESS
AN INDIVIDUAL'S COMMUNICATIONS. THESE FEARS ARE UNFOUNDED AND
MISPLACED. FIRST OF ALL, JUST AS NETWORK MAINTENANCE AND AUDIT ACCESS
CAN BE ACCOMPLISHED WITH FULL REGARD FOR NETWORK AND SYSTEM SECURITY,
SO ALSO CAN LAW ENFORCEMENT'S ELECTRONIC SURVEILLANCE ACCESS BE
ACCOMPLISHED WITH THE SAME HIGH REGARD FOR SECURITY AND PRIVACY.
SECOND, THE PROPOSED LEGISLATION INCLUDES A "SYSTEMS SECURITY"
PROVISION WHICH MEANS THAT ONLY DESIGNATED TELEPHONE COMPANY EMPLOYEES
WILL ACTIVATE INTERCEPTIONS WHICH ORIGINATE WITHIN TELEPHONE COMPANY
PREMISES. THIRD, UNAUTHORIZED ACCESS TO COMMUNICATIONS REMAINS A
SERIOUS CRIME WHICH IS ADDRESSED IN THE CURRENT ELECTRONIC
SURVEILLANCE STATUTES. ANY UNAUTHORIZED INDIVIDUAL OR GROUP BREACHING
COMMUNICATIONS SECURITY AND PRIVACY IS SUBJECT TO PROSECUTION TO THE
FULLEST EXTENT OF THE LAW. FOURTH, THIS PROPOSAL WILL NOT INTRODUCE
ANY VULNERABILITIES INTO SYSTEMS THAT ARE NOT ALREADY PRESENT. AS
TECHNOLOGY EVOLVES AND AS ANY NEW FEATURES AND SERVICES ARE
INTRODUCED, INDUSTRY WILL NECESSARILY PLAN NETWORK SECURITY MEASURES
AND COUNTERMEASURES EARLY IN THE DESIGN PHASE AND ADDRESS INTENSIVELY
THE ARCHITECTURAL DESIGN FOR NETWORK SECURITY.

THE PROPOSED LEGISLATION FITS WELL WITHIN THE CONTEXT OF THESE
ACTIVITIES. BY REQUIRING COMMON CARRIERS TO DEVELOP LAW ENFORCEMENT
ACCESS SOLUTIONS WITHIN THEIR OWN NETWORKS, WE ARE BEST ASSURING
APPROPRIATE SECURITY. THEREFORE, CONTRARY TO MANY PUBLIC STATEMENTS
MADE ON THE SUBJECT, LAW ENFORCEMENT IS NOT SEEKING TO BUILD "BACK
DOORS" TO SNEAK INTO COMMON CARRIERS' SYSTEMS. THE PROPOSED
LEGISLATION IS NOT SOME DREADED ORWELLIAN PROPHECY COME TRUE. RATHER,
THIS LEGISLATIVE PROPOSAL REPRESENTS A RECOGNITION OF LEGITIMATE LAW
ENFORCEMENT NEEDS AND A DESIRE TO PROTECT THE AMERICAN PEOPLE.

TO SUPPORT NORMAL OPERATIONS, SERVICE PROVIDERS MUST MANAGE AND
MAINTAIN THEIR NETWORKS. THIS IS TERRIBLY IMPORTANT TO THE FBI JUST
AS IT IS FOR EVERYONE. LAW ENFORCEMENT ELECTRONIC SURVEILLANCE
INTERCEPTION ACCESS TO COMMUNICATIONS WILL BE A STRINGENTLY CONTROLLED
EXTENSION OF THE SYSTEM'S FEATURES. WITH ADEQUATE PLANNING, THE
INTEGRATION OF LAW ENFORCEMENT'S NEEDS SHOULD BE EASILY ACCOMMODATED
WITHIN THE REQUIREMENTS FOR NETWORK SECURITY. TO FURTHER ENHANCE THE
PUBLIC'S CONFIDENCE IN THE SECURITY OF OUR COMMUNICATIONS NETWORKS,
SUBCOMMITTEE STAFF HAVE RAISED WITH US THE ISSUE OF IMPOSING REPORTING
AND AUDITING REQUIREMENTS ON COMMON CARRIES CONCERNING.THEIR
IMPLEMENTATION OF AUTHORIZED INTERCEPTS. WE ARE SUPPORTIVE OF SUCH
REQUIREMENTS.

EFFECTS ON NETWORK DESIGN AND TECHNOLOGY

ANOTHER CONCERN THAT HAS BEEN RAISED IS THE POSSIBLE NEGATIVE
IMPACT THIS LEGISLATION MIGHT HAVE ON NETWORK DESIGN AND TECHNOLOGY,
REQUIRING A BROAD RE-ENGINEERING OF THE NETWORK COMPONENTS. THE
PROPOSED LEGISLATION DOES NOT REQUIRE COMMON CARRIERS TO DESIGN THEIR
SYSTEMS IN ANY ONE, PARTICULAR WAY. THE PROPOSAL SIMPLY REQUIRES THAT
COMMON CARRIERS RESPOND TO THE GENERIC REQUIREMENTS OF LAW ENFORCEMENT
AND PROVIDE LAW ENFORCEMENT WITH INTERCEPTION ACCESS AND THE
CAPABILITY AND CAPACITY TO INTERCEPT WIRE AND ELECTRONIC
COMMUNICATIONS, IN REAL TIME, WHEN AUTHORIZED BY LAW.

THIS LEGISLATION ALSO DOES NOT PROPOSE THAT INDUSTRY DESIGN
SYSTEMS WITH THE ABILITY TO WIRETAP AS THE "DESIGN GOAL." LAW
ENFORCEMENT IS SIMPLY REQUIRING COMMON CARRIERS TO CRAFT APPROPRIATE
SOLUTIONS THAT INTERFACE WITH THEIR NETWORKS' DESIGNS. INDUSTRY IS IN
THE BEST POSITION TO DEVELOP REASONABLE AND COST-EFFECTIVE SOLUTIONS
AND, AT THE SAME TIME, MAINTAIN THE SECURITY AND RELIABILITY OF THE
NETWORKS.

FURTHERMORE, WE ARE UNAWARE OF ANY AUTHORITATIVE INDUSTRY
STATEMENT THAT THESE REQUIREMENTS WOULD SIGNIFICANTLY DELAY
DEVELOPMENT OF NEW TECHNOLOGIES.

ADDITIONALLY, THIS LEGISLATION DOES NOT PROHIBIT OR IMPEDE THE
DEPLOYMENT OF NEW TELECOMMUNICATIONS TECHNOLOGIES. ADVANCED
TECHNOLOGIES SUPPORT A NUMBER OF FEATURES THAT MAKE SYSTEMS MORE
INTELLIGENT. THE BASIC TECHNOLOGY UNDERPINNING THE INTRODUCTION OF
ADVANCED FEATURES AND SERVICES, WHICH OFTEN IMPEDE ELECTRONIC
SURVEILLANCE, LIKELY WILL OFFER SOLUTIONS TO THESE VERY PROBLEMS.

LAW ENFORCEMENT'S REQUIREMENTS WILL NOT DICTATE THE COURSE OR
PACE OF TECHNOLOGY. HOWEVER, WITH THIS LEGISLATION, OUR REQUIREMENTS
INTENTIONALLY WILL BE INCLUDED, RATHER THAN EXCLUDED, IN THE
DEVELOPMENT OF NEW TECHNOLOGY IN MUCH THE SAME FASHION THAT OTHER
LEGISLATION REQUIRES NEW TECHNOLOGIES AND PRODUCTS TO TAKE PUBLIC
SAFETY INTO ACCOUNT.

COMPETITIVENESS

ANOTHER ISSUE RAISED PERTAINS TO THE EFFECT OF THE LEGISLATION ON
AMERICAN COMPETITIVENESS. THE PROPOSED LEGISLATION WILL NOT IN ANY
FASHION ADVERSELY AFFECT COMPETITIVENESS. DOMESTICALLY, THE PROPOSED
LEGISLATION WOULD MEAN THAT ALL 2,000 COMMON CARRIERS WOULD COMPETE ON
A "LEVEL PLAYING FIELD" BECAUSE ALL PROVIDERS WOULD BE REQUIRED TO
MEET THE SAME ELECTRONIC SURVEILLANCE SPECIFICATIONS. THE PROPOSED
LEGISLATION DOES NOT PROHIBIT U.S. MANUFACTURERS OR INTERNATIONAL
SERVICE PROVIDERS FROM DEVELOPING OR DEPLOYING EQUIPMENT OR SERVICE
FEATURES FOR SALE OUTSIDE THE UNITED STATES THAT ARE DIFFERENT FROM
THAT REQUIRED PURSUANT TO THE PROPOSED LEGISLATION. THIS PROPOSAL
ONLY APPLIES TO COMMON CARRIER COMMUNICATIONS SERVICES DEPLOYED WITHIN
THE UNITED STATES. IF ANYTHING, THIS LEGISLATION COULD PROVIDE U.S.
INDUSTRY WITH A COMPETITIVE EDGE. OTHER DEMOCRATIC NATIONS WILL VERY
LIKELY WANT TELECOMMUNICATIONS SYSTEMS AND EQUIPMENT THAT PRECLUDE
SERVICE PROVIDERS FROM DEVELOPING OR DEPLOYING EQUIPMENT OR SERVICE
FEATURES NOT CAPABLE OF INTERCEPT.

PRIVACY-BASED OBJECTIONS

A SPOKESPERSON FOR THE AMERICAN CIVIL LIBERTIES UNION (ACLU) HAS
STATED ON NUMEROUS OCCASIONS THAT THE ACLU OPPOSES THE PROPOSED
LEGISLATION BECAUSE IT WOULD ALLOW LAW ENFORCEMENT TO MAINTAIN
TECHNICAL CAPABILITIES COMMENSURATE WITH EXISTING FEDERAL AND STATE
LEGAL AUTHORITIES. THIS IS BECAUSE THE ACLU OPPOSES THE EXISTING
LEGAL AUTHORITIES -- THOSE FOUND IN THE TITLE III AND FISA STATUTES,
AS IT PERSISTS IN THE ERRONEOUS POSITION THAT WIRETAPPING IS
UNCONSTITUTIONAL PER SE. THIS RADICAL POSITION IS IN FLAT OPPOSITION
TO THE POLICY POSITIONS AND THE CONSTITUTIONAL ANALYSES OF THE
EXECUTIVE, LEGISLATIVE, AND JUDICIAL BRANCHES OF BOTH THE FEDERAL AND
STATE GOVERNMENTS. THE UNITED STATES SUPREME COURT HELD LONG AGO THAT
THE TITLE III WIRETAP STATUTE IS CONSTITUTIONAL. SEE UNITED STATES
V. DONOVAN, 429 U.S. 413 (1977).

PRIVACY IS PROTECTED IN THE FEDERAL AND STATE ELECTRONIC
SURVEILLANCE STATUTES BY REQUIRING LAW ENFORCEMENT AGENCIES'
ADHERENCE TO A NUMBER OF LEGISLATIVELY-CREATED PROTECTIONS THAT FAR
EXCEED THE FOURTH AMENDMENT REQUIREMENTS RELATING TO COURT ORDERS
BASED UPON PROBABLE CAUSE.

IN FACT, THE PROPOSED LEGISLATION CONTAINS A NUMBER OF PRIVACY-
ENHANCING PROVISIONS, SUCH AS EXTENDING FULL PRIVACY PROTECTION TO
CORDLESS TELEPHONES, RADIO-BASED ELECTRONIC COMMUNICATIONS, AND
COMMUNICATIONS TRANSMITTED USING PRIVACY-ENHANCING MODULATION
TECHNIQUES.

THE FALSE "TRANSACTIONAL DATA SCARE"

THE DIGITAL PRIVACY AND SECURITY WORKING GROUP (DPSWG) HAS
ATTEMPTED TO INTERJECT A FALSE "TRANSACTIONAL DATA SCARE" INTO THE
CURRENT DISCUSSION OF THE NEED FOR LEGISLATION THAT WILL ALLOW LAW
ENFORCEMENT TO MAINTAIN ITS ELECTRONIC SURVEILLANCE AND PEN
REGISTER/TRAP AND TRACE TECHNICAL CAPABILITIES COMMENSURATE WITH
EXISTING LAW.

IN A LETTER TO ME, DATED MARCH 11, 1994, A COPY OF WHICH WAS SENT
DIRECTLY TO THE CHAIRMEN, THE DPSWG FALSELY ALLEGES THAT WE ARE
SEEKING TO "DICTATE TO INDUSTRY" A NEW CAPABILITY TO ACQUIRE "MINUTE-
BY-MINUTE SURVEILLANCE OF INDIVIDUALS" THROUGH TRANSACTIONAL DATA.
THIS IS A FALSE ISSUE FOR A NUMBER OF REASONS.

FIRST, AS IS CLEARLY SET FORTH IN THE "PURPOSE" SECTION OF THE
PROPOSED LEGISLATION, THE INTENT OF THE LEGISLATION IS TO MAINTAIN
EXISTING TECHNICAL CAPABILITIES AND TO "CLARIFY AND DEFINE THE
RESPONSIBILITIES OF COMMON CARRIERS ... TO PROVIDE THE ASSISTANCE
REQUIRED TO ENSURE THAT GOVERNMENT AGENCIES CAN IMPLEMENT COURT ORDERS
AND LAWFUL AUTHORIZATIONS TO INTERCEPT THE CONTENT OF WIRE AND
ELECTRONIC COMMUNICATIONS AND ACQUIRE CALL SETUP INFORMATION UNDER
CHAPTERS 119 AND 206 OF TITLE 18 AND CHAPTER 36 OF TITLE 50.11
(EMPHASIS ADDED.) THESE CHAPTERS HAVE NOTHING TO DO WITH
"TRANSACTIONAL INFORMATION" UNDER OUR FEDERAL ELECTRONIC SURVEILLANCE
AND PRIVACY LAWS. ALL TELECOMMUNICATIONS "TRANSACTIONAL" INFORMATION
IS ALREADY PROTECTED BY FEDERAL LAW AND IS EXCLUSIVELY DEALT WITH IN
CHAPTER 121 OF TITLE 18 OF THE UNITED STATES CODE ("STORED WIRE AND
ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS"). THE
PROPOSED LEGISLATION DOES NOT RELATE TO CHAPTER 121 OF TITLE 18.

SECOND, UNDER FEDERAL LAW, CONGRESS TREATS LAW ENFORCEMENT'S USE
OF PEN REGISTERS AND DIALING INFORMATION DIFFERENTLY THAN
"TRANSACTIONAL INFORMATION" -- SUCH AS DETAILED TELEPHONE BILLING
INFORMATION. THE DIALING INFORMATION DERIVED FROM A PEN REGISTER IS
OBTAINED BY LAW ENFORCEMENT AND IS LIMITED TO A SPECIFIC TELEPHONE
LINE AND NUMBER. ON THE OTHER HAND, TRANSACTIONAL BILLING INFORMATION
IS COMPILED BY TELEPHONE COMPANIES AND CAPTURES BILLING INFORMATION
FROM EVERY TELEPHONE A SUBSCRIBER MAY USE DURING THE BILLING PERIOD,
SUCH AS CREDIT CARD CALLS, COLLECT CALLS, OPERATOR ASSISTED CALLS,
AND THIRD NUMBER BILLING INFORMATION WHICH ARE ASSOCIATED WITH ALL
THE DIFFERENT TELEPHONES A SUBSCRIBER MAY USE.

THIRD, CONGRESS HAS ENACTED LEGISLATION THAT REQUIRES LAW
ENFORCEMENT TO OBTAIN A COURT ORDER IN ORDER TO OBTAIN "CALL SETUP
INFORMATION" THROUGH THE USE OF A PEN REGISTER OR TRAP AND TRACE
DEVICE, BASED UPON A CERTIFICATION OF AN ATTORNEY FOR THE GOVERNMENT
THAT THE INFORMATION LIKELY TO BE OBTAINED IS RELEVANT TO AN ONGOING
CRIMINAL INVESTIGATION. SUCH COURT ORDERS LAST FOR UP TO SIXTY DAYS.
ANY RENEWAL REQUIRES THE APPROVAL OF AN APPROPRIATE JUDGE. ON THE
OTHER HAND, CONGRESS HAS LEGISLATED THAT "TRANSACTIONAL INFORMATION"
CAN BE OBTAINED THROUGH A NUMBER OF LEGAL PROCESSES, INCLUDING
SUBPOENAS, WITHOUT RESORT TO COURT ORDERS. SUBPOENAS FOR
TRANSACTIONAL INFORMATION TYPICALLY COVER PERIODS OF SIX MONTHS OR
LONGER. IN ANY EVENT, LAW ENFORCEMENT IS NOT AUTHORIZED TO OBTAIN
NONCRIMINAL, IRRELEVANT INFORMATION ABOUT ANY INDIVIDUAL, AND ANY
ACQUISITION OF TRANSACTIONAL INFORMATION OR DIALING-TYPE INFORMATION
MUST BE GROUNDED IN RELEVANCY TO A CRIMINAL INVESTIGATION OR INQUIRY.

FOURTH, THE LETTER INDICATES THAT ENACTMENT OF THIS LEGISLATION,
WITH REGARD TO MAINTAINING OUR ABILITY TO LAWFULLY ACQUIRE CALL SETUP
(DIALING) INFORMATION PURSUANT TO COURT ORDER, WILL SOMEHOW PERMIT LAW
ENFORCEMENT TO ACQUIRE SOME NEW INFORMATION THAT IS NOT NOW AVAILABLE.
THAT IS SIMPLY UNTRUE. THIS LEGISLATION ENSURES A MAINTENANCE OF THE
STATUS QUO AS IT RELATES TO LEGAL AUTHORITIES UNDER CHAPTERS 119 AND
206 OF TITLE 18 AND CHAPTER 36 OF TITLE 50, AND AS IT RELATES TO THE
TYPES OF INFORMATION OBTAINABLE THROUGH PEN REGISTER AND TRAP AND
TRACE DEVICES USED PURSUANT TO THE COURT ORDER.

FIFTH, UNLIKE THE GOVERNMENT'S PROPOSED LEGISLATION, WHICH
SPECIFICALLY ASSERTS NO INTENTION TO ALTER THE EXISTING LAWS REGARDING
THE CONDUCT OF ELECTRONIC SURVEILLANCE AND THE INSTALLATION AND USE OF
PEN REGISTER AND TRAP AND TRACE DEVICES, THE DPSWG, BY INTERJECTING A
FALSE TRANSACTIONAL DATA SCARE, IS APPARENTLY SEEKING TO REPEAL
CHAPTER 206 OF TITLE 18 AND THE PEN REGISTER AND TRAP AND TRACE
AUTHORIZATIONS FOUND IN CHAPTER 36 OF TITLE 50. AS EXPLAINED ABOVE,
CALL SETUP INFORMATION (THAT IS DIALING INFORMATION) IS OBTAINED
THROUGH THE USE OF PEN REGISTER AND TRAP AND TRACE DEVICES. IN THE
DPSWG LETTER REFERRED TO ABOVE, IT STATES: "LEGISLATION SHOULD APPLY
TO "CALL SETUP INFORMATION" ONLY WHEN THAT INFORMATION IS INCIDENT TO
A WARRANT ISSUED FOR WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS AS SET
FORTH IN 18 U.S.C. 2518 ( TITLE III )." TO ACCEPT THIS RADICAL
POSITION ON PRIVACY WOULD MEAN, FOR EXAMPLE, THAT ANYTIME AN FBI AGENT
SIMPLY SOUGHT TO ACQUIRE A TELEPHONE NUMBER DIALED BY A CRIMINAL
SUBJECT THROUGH THE USE OF A PEN REGISTER, HE/SHE SHOULD BE REQUIRED
BY LAW TO DRAFT A 30-40 PAGE TITLE III AFFIDAVIT, AND SEND IT TO
WASHINGTON, D.C., FOR THE DEPUTY ASSISTANT ATTORNEY GENERAL OF THE
CRIMINAL DIVISION TO REVIEW AND AUTHORIZE, BEFORE TAKING IT TO A
FEDERAL DISTRICT COURT JUDGE FOR REVIEW AND APPROVAL. FRANKLY, SUCH A
NOTION IS ABSURD AND IS WILDLY INCONSISTENT WITH CURRENT LAW.

ALLEGATIONS OF "TRACKING" PERSONS

LAW ENFORCEMENT'S REQUIREMENTS SET FORTH IN THE PROPOSED
LEGISLATION INCLUDE AN ABILITY TO ACQUIRE "CALL SETUP INFORMATION."
THIS INFORMATION RELATES TO DIALING TYPE INFORMATION -- INFORMATION
GENERATED BY A CALLER WHICH IDENTIFIES THE ORIGIN, DURATION, AND
DESTINATION OF A WIRE OR ELECTRONIC COMMUNICATION, THE TELEPHONE
NUMBER OR SIMILAR COMMUNICATION ADDRESS. SUCH INFORMATION IS CRITICAL
TO LAW ENFORCEMENT AND, HISTORICALLY, HAS BEEN ACQUIRED THROUGH USE OF
PEN REGISTER OR TRAP AND TRACE DEVICES PURSUANT TO COURT ORDER.

SEVERAL PRIVACY-BASED SPOKESPERSONS HAVE CRITICIZED THE WORDING
OF THE DEFINITION REGARDING THIS LONG-STANDING REQUIREMENT, ALLEGING
THAT THE GOVERNMENT IS SEEKING A NEW, PERVASIVE, AUTOMATED "TRACKING"
CAPABILITY. SUCH ALLEGATIONS ARE COMPLETELY WRONG.

SOME CELLULAR CARRIERS DO ACQUIRE INFORMATION RELATING TO THE
GENERAL LOCATION OF A CELLULAR TELEPHONE FOR CALL DISTRIBUTION
ANALYSIS PURPOSES. HOWEVER, THIS INFORMATION IS NOT THE SPECIFIC TYPE
OF INFORMATION OBTAINED FROM "TRUE" TRACKING DEVICES, WHICH CAN
REQUIRE A WARRANT OR COURT ORDER WHEN USED TO TRACK WITHIN A PRIVATE
LOCATION NOT OPEN TO PUBLIC VIEW. SEE UNITED STATES V. KARO, 468 U.S.
705, 714 (1984). EVEN WHEN SUCH GENERALIZED LOCATION INFORMATION, OR
ANY OTHER TYPE OF "TRANSACTIONAL" INFORMATION, IS OBTAINED FROM
COMMUNICATIONS SERVICE PROVIDERS, COURT ORDERS OR SUBPOENAS ARE
REQUIRED AND ARE OBTAINED.

IN ORDER TO MAKE CLEAR THAT THE ACQUISITION OF SUCH INFORMATION
IS NOT BEING SOUGHT THROUGH THE USE OF A PEN REGISTER OR TRAP AND
TRACE DEVICE, AND IS NOT INCLUDED WITHIN THE TERM "CALL SETUP
INFORMATION," WE ARE PREPARED TO ADD A CONCLUDING PHRASE TO THIS
DEFINITION TO EXPLICITLY CLARIFY THE POINT: EXCEPT THAT SUCH
INFORMATION (CALL SETUP INFORMATION) SHALL NOT INCLUDE ANY INFORMATION
THAT MAY DISCLOSE THE PHYSICAL LOCATION OF A MOBILE FACILITY OR
SERVICE BEYOND THAT ASSOCIATED WITH THE NUMBER'S AREA CODE OR
EXCHANGE."

SUMMARY

IN SUMMARY, IT IS MY VIEW THAT THE DIGITAL TELEPHONY ISSUE IS THE
NUMBER ONE LAW ENFORCEMENT, PUBLIC SAFETY, AND NATIONAL SECURITY ISSUE
FACING US TODAY. THE MAINTENANCE OF AN EFFECTIVE ELECTRONIC
SURVEILLANCE CAPABILITY IS ESSENTIAL TO OUR NATION'S LAW ENFORCEMENT
AND INTELLIGENCE AGENCIES. THIS INVESTIGATIVE TECHNIQUE IS A UNIQUE
AND INDISPENSABLE WEAPON AGAINST NATIONAL AND INTERNATIONAL DRUG-
TRAFFICKING ORGANIZATIONS, ORGANIZED CRIME SYNDICATES, TERRORIST
GROUPS, AND VIOLENT CRIMINAL CONSPIRACIES. WITHOUT AN EFFECTIVE
ELECTRONIC SURVEILLANCE CAPABILITY, OUR LAW ENFORCEMENT AND
INTELLIGENCE AGENCIES WILL NOT BE ABLE TO PROTECT THE PUBLIC
ADEQUATELY OR ACQUIRE THE EVIDENCE NEEDED TO PUT SOME OF SOCIETY'S
MOST DANGEROUS FELONS IN JAIL. RECENT EFFORTS TO ENSURE SUBSTANTIAL
JAIL TIME FOR VIOLENT, HARDENED CRIMINALS WILL BE UNDERCUT, IF WE IN
LAW ENFORCEMENT FIRST CANNOT IDENTIFY THEM, ARREST THEM, AND OBTAIN
THE COMPELLING EVIDENCE REQUIRED TO SECURE THEIR CONVICTIONS.

AS YOU ARE AWARE, AFTER AN EXTENSIVE REVIEW OF THIS SERIOUS
PROBLEM THE ADMINISTRATION HAS CONCLUDED THAT FEDERAL LEGISLATION IS
THE ONLY VIABLE MEANS OF SOLVING THE SO-CALLED "DIGITAL TELEPHONY"
PROBLEM. THE TECHNOLOGICAL IMPEDIMENTS TO COURT-ORDERED ELECTRONIC
SURVEILLANCE, WHICH ARE THE UNINTENDED BY-PRODUCTS OF ADVANCED DIGITAL
TELEPHONY, CONSTITUTE A MAJOR NATIONWIDE OBSTACLE TO EFFECTIVE LAW
ENFORCEMENT. TO DATE, NUMEROUS COURT ORDERS HAVE BEEN FRUSTRATED, IN
WHOLE OR IN PART, BY THESE IMPEDIMENTS. LEFT UNADDRESSED, THIS
PROBLEM WILL SOON GROW TO DANGEROUS PROPORTIONS. THE FEDERAL BUREAU
OF INVESTIGATION AND THE ENTIRE FEDERAL, STATE, AND LOCAL LAW
ENFORCEMENT COMMUNITY ARE COMPLETELY UNIFIED IN OUR ASSESSMENT THAT
IMPEDIMENTS WHICH HINDER OR PRECLUDE COURT-ORDERED ELECTRONIC
SURVEILLANCE MUST NOT BE ALLOWED TO STAND.

THE DECISION TO PRESS FOR LEGISLATION WAS NOT REACHED LIGHTLY.
OVER THE LAST FOUR YEARS, WE HAVE MADE SUBSTANTIAL EFFORTS TO RESOLVE
THIS MATTER THROUGH NUMEROUS MEETINGS WITH LEADERS IN THE
TELECOMMUNICATIONS INDUSTRY. INCLUDED IN THESE EFFORTS HAS BEEN A LAW
ENFORCEMENT/INDUSTRY TECHNICAL WORKING GROUP WHICH WAS SPECIFICALLY
INSTITUTED BY INDUSTRY TO "SOLVE THE PROBLEM" EVEN THOUGH WE HAVE MET
FOR NEARLY TWO YEARS (AND HAVE MUTUALLY BENEFITTED FROM THE
DISCUSSIONS), THERE IS NO MECHANISM FOR ASSURING THE TIMELY,
COMPREHENSIVE DEVELOPMENT AND IMPLEMENTATION OF THE REQUIRED
TECHNOLOGICAL SOLUTIONS. IN FACT, THE CHAIRMAN OF THE INDUSTRY
TECHNICAL WORKING GROUP ACKNOWLEDGES THIS FUNDAMENTAL SHORTCOMING AND
PROBLEM. OBTAINING THESE SOLUTIONS CAN NO LONGER BE LEFT TO CHANCE.
FEDERAL LEGISLATION REPRESENTS THE ONLY REALISTIC PROSPECT FOR
OBTAINING, WITH CERTAINTY, THE TIMELY AND COMPREHENSIVE DEVELOPMENT
AND IMPLEMENTATION OF THE REQUIRED TECHNOLOGICAL SOLUTIONS BY THE
TELECOMMUNICATIONS INDUSTRY.

AS I INDICATED, THE PROPOSED LEGISLATION IS FOCUSED ON
"MAINSTREAM" TELECOMMUNICATIONS SERVICE PROVIDERS, ON "COMMON
CARRIERS," WHO HISTORICALLY HAVE BEEN SUBJECT TO REGULATION. THIS
LEGISLATIVE PROPOSAL SHOULD BE MORE ACCEPTABLE TO THE COMMON CARRIERS.
FOR INSTANCE, THE ELECTRONIC SURVEILLANCE REQUIREMENTS HAVE BEEN
CLARIFIED; A NETWORK "SYSTEMS SECURITY" PROVISION ADDED, WHICH
SPECIFIES THAT ALL PREMISES-BASED INTERCEPTS (SWITCHES, NETWORK
ELEMENTS) MUST BE ACTIVATED EXCLUSIVELY BY COMMON CARRIER PERSONNEL; A
MANDATE THAT SUPPORT SERVICE PROVIDERS AND EQUIPMENT MANUFACTURERS,
UPON WHOM THE CARRIERS RELY, WILL FURNISH THE TIMELY COOPERATION
REQUIRED TO PERMIT COMPLIANCE; AN ATTORNEY GENERAL "CONSULTATION"
PROVISION DESIGNED TO FACILITATE DISCUSSION AND COST-EFFECTIVE
APPROACHES TO COMPLIANCE; AND, IMPORTANTLY, FEDERAL GOVERNMENT PAYMENT
TO COMMON CARRIERS FOR REASONABLE AND COST-EFFECTIVE CHARGES DIRECTLY
ASSOCIATED WITH ATTAINING COMPLIANCE WHICH ARE INCURRED WITHIN THE
THREE YEAR PERIOD SET FOR COMPLIANCE.

ALSO INCLUDED IN THE LEGISLATION ARE AMENDMENTS TO THE FEDERAL
CRIMINAL ELECTRONIC SURVEILLANCE LAWS ("TITLE III") WHICH IMPROVE
COMMUNICATIONS PRIVACY PROTECTION: PRIVACY PROTECTION FOR HANDHELD
"CORDLESS" TELEPHONES ON A PAR WITH WIRELINE AND CELLULAR TELEPHONES,
CLARIFICATION OF PRIVACY PROTECTION FOR ELECTRONIC COMMUNICATIONS
TRANSMITTED BY RADIO, AND PRIVACY PROTECTION FOR COMMUNICATIONS
TRANSMITTED USING SECURITY-ENHANCING MODULATION TECHNIQUES.

LAW ENFORCEMENT FULLY SUPPORTS THE INTRODUCTION AND DEPLOYMENT OF
ADVANCED TELECOMMUNICATIONS TECHNOLOGIES AS A MEANS OF SHARING
INFORMATION, EDUCATING AMERICANS, AND INCREASING OUR PRODUCTIVITY. IN
PARTICULAR, WE ARE EXTREMELY SUPPORTIVE OF THE VICE PRESIDENT'S
INITIATIVE TO CREATE A NATIONAL INFORMATION INFRASTRUCTURE FOR THE
BENEFIT OF ALL AMERICANS. AS WE ALL EMBRACE THE VAST POTENTIAL
OFFERED BY ADVANCED TECHNOLOGY, AND ADVANCED TELECOMMUNICATIONS
TECHNOLOGY IN PARTICULAR, IT IS CRITICAL THAT THE EQUITIES OF OUR LAW
ENFORCEMENT AND INTELLIGENCE AGENCIES NOT BE FORGOTTEN OR IGNORED.
HOWEVER, IT WOULD BE WRONG FOR ALL OF US AS PUBLIC SERVANTS, BOTH
WITHIN THE EXECUTIVE AND LEGISLATIVE BRANCHES OF GOVERNMENT, TO
KNOWINGLY ALLOW THIS INFORMATION SUPERHIGHWAY TO JEOPARDIZE THE SAFETY
AND ECONOMIC WELL-BEING OF LAW-ABIDING AMERICANS BY.BECOMING AN
EXPRESSWAY AND SAFE HAVEN FOR TERRORISTS, SPIES, DRUG DEALERS,
MURDERERS, AND THUGS.

I DO NOT RELISH THE THOUGHT OF BEING THE FIRST FBI DIRECTOR TO
TELL A FATHER AND MOTHER THAT WE WERE UNABLE TO SAVE THEIR SON OR
DAUGHTER BECAUSE ADVANCED TELECOMMUNICATIONS TECHNOLOGY PRECLUDED THE
TELEPHONE COMPANY FROM PROVIDING US WITH LAWFUL ACCESS TO THE CRIMINAL
CONVERSATIONS THAT WOULD HAVE PREVENTED THE UNTIMELY DEATH OF AN
INNOCENT CHILD. NOR DO I WANT THE PRESIDENT PLACED IN THE POSITION OF
HAVING TO TELL THE AMERICAN PUBLIC THAT WE IN LAW ENFORCEMENT COULD
NOT PREVENT A VIOLENT TERRORIST ACT DIRECTED AGAINST INNOCENT
AMERICANS IN A MAJOR METROPOLITAN AREA SOLELY BECAUSE OF ADVANCED
TELECOMMUNICATIONS TECHNOLOGY.

IT IS IMPERATIVE THAT CONGRESS PROMPTLY ENACT THE
ADMINISTRATION'S PROPOSED LEGISLATION THAT WILL SOLVE THIS SERIOUS
PROBLEM ON A TIMELY AND COMPREHENSIVE BASIS. EVERY DAY THAT PASSES IN
WHICH THIS PROBLEM REMAINS UNRESOLVED, THE LONGER THE SAFETY AND
ECONOMIC WELL-BEING OF THE AMERICAN PUBLIC ARE UNNECESSARILY PLACED AT
RISK. I LOOK FORWARD TO WORKING WITH EACH ONE OF YOU AND THIS
CONGRESS REGARDING THE ENACTMENT OF THIS IMPORTANT LEGISLATIVE
INITIATIVE.

THANK YOU MR. CHAIRMEN AND THE MEMBERS OF THESE SUBCOMMITTEES FOR
PROVIDING ME THIS OPPORTUNITY TO TESTIFY AND PROVIDE YOU WITH
INFORMATION CONCERNING THE MOST IMPORTANT PUBLIC SAFETY AND NATIONAL
SECURITY ISSUES FACING US TODAY.

LOUIS J. FREEH
Director
Federal Bureau of Investigation