U.S. SENATOR PATRICK LEAHY

VERMONT

STATEMENT OF PATRICK LEAHY

ON THE INTRODUCTION OF

"THE ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1985"
SEPTEMBER 19, 1985

MR. PRESIDENT, FOR YEARS THIS BODY HAS TALKED ABOUT THE
POTENTIAL LOSS OF PERSONAL PRIVACY WHICH COULD RESULT FROM THE
ELECTRONIC REVOLUTION. TODAY, I AM INTRODUCING THE "ELECTRONIC
COMMUNICATIONS PRIVACY ACT OF 1985" WHICH AIMS AT ENDING THE TALK

AND BEGINNING THE PROCESS OF ENSURING THE PRIVACY OF
COMMUNICATIONS OF INDIVIDUAL AMERICANS AND AMERICAN BUSINESSES.
I AM VERY PLEASED TO BE JOINED IN THIS EFFORT BY MY DISTINGUISHED
COLLEAGUE FROM MARYLAND, SENATOR MATHIAS.

LET ME DESCRIBE A PROBLEM THAT GROWS AS WE SIT HERE.

AT THIS MOMENT PHONES ARE RINGING, AND WHEN THEY ARE
ANSWERED, THE MESSAGE THAT COMES OUT IS A STREAM OF SOUNDS
DENOTING ONE'S AND ZERO'S. NOTHING MORE. I AM TALKING ABOUT THE
STREAM OF INFORMATION TRANSMITTED IN DIGITIZED FORM, AND MY
DESCRIPTION COVERS EVERYTHING FROM INTERBANK ORDERS TO PRIVATE
ELECTRONIC MAIL HOOKUPS.

WHAT IS

BY NOW THIS TECHNOLOGY IS NOTHING REMARKABLE.
REMARKABLE IS THE FACT THAT NONE OF THESE TRANSMISSIONS ARE
PROTECTED FROM ILLEGAL WIRETAPS, BECAUSE OUR PRIMARY LAW, PASSED
BACK IN 1968, FAILED TO COVER DATA COMMUNICATIONS, OF WHICH
COMPUTER-TO-COMPUTER TRANSMISSIONS ARE A GOOD EXAMPLE.

WHEN CONGRESS ENACTED THAT LAW, TITLE III OF THE OMNIBUS
CRIME CONTROL AND SAFE STREETS ACT OF 1968, IT HAD IN MIND A
PARTICULAR KIND OF COMMUNICATION--VOICE AND A PARTICULAR WAY OF
TRANSMITTING THAT COMMUNICATION VIA A COMMON CARRIER ANALOG
TELEPHONE NETWORK.
CONGRESS CHOSE TO COVER ONLY THE "AURAL
ACQUISITION OF THE CONTENTS OF A COMMON CARRIER WIRE
COMMUNICATION. THE SUPREME COURT HAS INTERPRETED THAT LANGUAGE
TO MEAN THAT TO BE COVERED BY TITLE III, A COMMUNICATION MUST BE
CAPABLE OF BEING OVERHEARD. THE STATUTE SIMPLY FAILS TO COVER
THE UNAUTHORIZED INTERCEPTION OF DATA TRANSMISSIONS.

SIMILARLY, THERE IS NO ADEQUATE FEDERAL LEGAL PROTECTION
AGAINST THE UNAUTHORIZED ACCESS OF ELECTRONIC COMMUNICATIONS
SYSTEM COMPUTERS TO OBTAIN OR ALTER THE COMMUNICATIONS CONTAINED
IN THOSE COMPUTERS.

PROBLEMS ALSO EXIST WITH REGARD TO THE LEGAL PROTECTION
AFFORDED TO CELLULAR RADIO TELEPHONES, ELECTRONIC PAGERS AND THE
PRIVATE TRANSMISSIONS OF VIDEO SIGNALS SUCH AS THAT USED IN

TELECONFERENCING.

THERE MAY HAVE BEEN A DAY WHEN GOOD LOCKS ON THE DOOR AND
PHYSICAL CONTROL OF YOUR OWN PAPERS GUARANTEED A CERTAIN DEGREE
OF PRIVACY.

BUT THE NEW INFORMATION TECHNOLOGIES HAVE CHANGED ALL THAT.
HEARINGS IN THE LAST CONGRESS HELD BY SENATOR MATHIAS AND
MYSELF IN THE SENATE JUDICARY COMMITTEE AND BY CONGRESSMAN ROBERT
KASTENMEIER IN THE HOUSE JUDICIARY COMMITTEE CLEARLY DEMONSTRATE
THE SCOPE OF THESE PROBLEMS AND THE NEED TO ACT.

CONGRESSMAN KASTENMEIER, SENATOR MATHIAS AND I HAVE BEEN
WORKING FOR OVER A YEAR WITH THE JUSTICE DEPARTMENT AND MANY
INDIVIDUALS, BUSINESSES AND INDUSTRY GROUPS WHO ARE CONCERNED

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THE PRODUCT OF THAT EFFORT IS THE BILL WHICH SENATOR MATHIAS
AND I ARE INTRODUCING TODAY. CONGRESSMAN KASTENMEIER IS
INTRODUCING IDENTICAL LEGISLATION IN THE HOUSE.

THE ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1985 CONTAINS A
NUMBER OF IMPORTANT CHANGES:

THE ACT AMENDS TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE
STREETS ACT OF 1968--THE FEDERAL WIRETAP LAW.

DEFINITIONS CONTAINED IN TITLE III ARE AMENDED TO BROADEN
PROTECTION FROM ONLY VOICE TRANSMISSIONS TO ALL ELECTRONIC
COMMUNICATIONS INCLUDING DATA AND VIDEO CARRIED ON NON-PUBLIC
SYSTEMS. THE REQUIREMENT THAT TO FALL WITHIN THE COVERAGE OF
TITLE III AN INTERCEPTION HAS TO BE BY AURAL ACQUISITION", IS
DROPPED.

PROTECTION OF ONLY COMMON CARRIER TELEPHONE SYSTEMS IS
BROADENED TO INCLUDE ALL ELECTRONIC COMMUNICATIONS SYSTEMS UNLESS
DESIGNED TO BE ACCESSIBLE BY THE PUBLIC.

--THE BILL CONTAINS CRIMINAL PENALTIES FOR UNATHORIZED ACCESS TO
THE COMPUTERS OF AN ELECTRONIC COMMUNICATION SYSTEM, IF MESSAGES
CONTAINED THEREIN ARE OBTAINED OR ALTERED. IF DONE FOR

COMMERCIAL GAIN OR FOR MALICIOUS REASONS, THE CRIME COULD BE
PROSECUTED AS A FELONY OFFENSE.

-- TO OBTAIN COMMUNICATIONS CONTAINED IN THE COMPUTERS OF AN
ELECTRONIC COMMUNICATION SYSTEM, SUCH AS AN ELECTRONIC MAIL
SERVICE, THE GOVERNMENT WOULD BE REQUIRED TO OBTAIN A WARRANT
BASED ON A PROBABLE CAUSE STANDARD.

AN OPERATOR OF AN ELECTRONIC COMMUNICATIONS SYSTEM IS
RESTRICTED FROM DISCLOSING THE CONTENTS OF AN ELECTRONIC MESSAGE
EXCEPT IN SPECIFIED CIRCUMSTANCES OR UNLESS AUTHORIZED BY THE
PERSON SENDING THE MESSAGE.

--

AN ELECTRONIC COMMUNICATIONS SYSTEM AND THE USERS OF THE
SYSTEM ARE GRANTED A FEDERAL CAUSE OF ACTION TO SEEK CIVIL
DAMAGES FOR VIOLATION OF ANY OF THE RIGHTS CONTAINED IN THE ACT.
--FINALLY, THE BILL PROVIDES THAT LAW ENFORCEMENT AGENCIES MUST
OBTAIN A COURT ORDER BASED ON A REASONABLE SUSPICION STANDARD
BEFORE INSTALLING A PEN REGISTER OR BEING PERMITTED ACCESS TO
RECORDS OF AN ELECTRONIC COMMUNICATIONS SYSTEM WHICH CONCERN
SPECIFIC COMMUNICATIONS.

THE BILL DOES NOT AFFECT THE CAREFULLY BALANCED PROVISIONS
GOVERNING FOREIGN INTELLIGENCE SURVEILLANCE CONTAINED IN THE
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

THESE CHANGES WILL GO A LONG WAY TOWARDS PROVIDING THE LEGAL
PROTECTIONS OF PRIVACY AND SECURITY WHICH THE NEW COMMUNICATIONS
TECHNOLOGIES NEED TO FLOURISH.

As I SAID EARLIER, WE HAVE WORKED HARD OVER THE PAST YEAR TO
LISTEN TO ALL AFFECTED INTERESTS AND TO ACCOMMODATE THE
LEGITIMATE NEEDS OF LAW ENFORCEMENT WHILE SECURING THE PRIVACY
RIGHTS OF USERS AND OPERATORS OF ELECTRONIC COMMUNICATIONS
SYSTEMS.

A NUMBER OF TOUGH QUESTIONS REMAIN TO BE ANSWERED. CHIEF
AMONGST THESE IS WHETHER ELECTRONIC COMMUNICATIONS SYSTEMS WHICH
ARE NOT DESIGNED TO PROTECT THE PRIVACY OF THE COMMUNICATIONS
BEING CARRIED SHOULD BE AFFORDED LEGAL PROTECTION.

BUT RAISING THIS QUESTION SHOULD IN NO WAY SUGGEST THAT
COMMUNICATIONS PRIVACY IS JUST AN INDUSTRY PROBLEM.

IT IS NO SOLUTION TO SAY THAT ANYBODY CONCERNED ABOUT THE
PRIVACY OF THESE COMMUNICATIONS CAN PAY FOR SECURITY BY PAYING
FOR ENCRYPTION.

ENCRYPTION CAN BE BROKEN.

BUT MORE IMPORTANTLY, THE LAW
MUST PROTECT PRIVATE COMMUNICATIONS FROM INTERCEPTION BY AN

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POLICE OFFICER WITHOUT PROBABLE CAUSE OR JUST A PLAIN SNOOP.

UNAUTHORIZED ACQUISITION OF INFORMATION IS NOT JUST A THEORETICAL PROBLEM, OR ONE CONFINED TO HARMLESS TEENAGE HACKERS. COMMUNICATIONS COMPANIES HAVE BEEN FACED WITH GOVERNMENT DEMANDS, UNACCOMPANIED BY A WARRANT FOR ACCESS TO THE MESSAGE CONTAINED IN ELECTRONIC MAIL SYSTEMS. AND THE UNWANTED PRIVATE INTRUDER, WHETHER A COMPETITOR OR A MALICIOUS TEENAGER, CAN DO A GREAT DEAL OF DAMAGE BEFORE BEING, OR WITHOUT BEING, DISCOVERED.

FROM THE BEGINNING OF OUR HISTORY, FIRST-CLASS MAIL HAS HAD THE REPUTATION FOR PRESERVING PRIVACY, WHILE AT THE SAME TIME PROMOTING COMMERCE.

BOTH OF THESE IMPORTANT INTERESTS MUST CONTINUE INTO OUR NEW INFORMATION AGE. WE CANNOT LET ANY AMERICAN FEEL LESS CONFIDENT IN PUTTING INFORMATION INTO AN ELECTRONIC MAIL NETWORK THAN HE OR SHE WOULD IN PUTTING IT INTO AN ENVELOPE AND DROPPING IT OFF AT THE POST OFFICE.

THOMAS JEFFERSON ONCE OBSERVED THAT, "LAWS AND INSTITUTIONS MUST GO HAND-IN-HAND WITH THE PROGRESS OF THE HUMAN MIND....As NEW DISCOVERIES ARE MADE... INSTITUTIONS MUST ADVANCE ALSO, AND KEEP PACE WITH THE TIMES.

"

AMERICAN BUSINESSES HAVE PRODUCED A MARVELOUS ARRAY OF POSSIBILITIES FOR BETTER AND FASTER COMMUNICATION WORLDWIDE. Now IS THE TIME FOR OUR LEGAL INSTITUTIONS TO ALSO ADVANCE AND KEEP PACE WITH THE TIMES.

THE PROTECTION OF COMMUNICATIONS PRIVACY CAN GO HAND-IN-HAND WITH PROGRESS. OUR JOB IS TO MAKE BOTH A REALITY. NOW IS THE

TIME TO ACT.

I ASK UNANIMOUS CONSENT THAT A SUMMARY OF THE BILL AND ITS

NEW YORK POST, TUESDAY, SEPTEMBER 10, 1985

Business Tuesday

E-mail bill focuses on security

comprehensive communication pri-that will directly deal with the prob-which to store their records. vacy law. lems of both the unauthorized access to Mr. Kastenmeler said the current "Today we have large-scale elec-data bases and the illegal interception legal deficiencies were exacerbated by tronic mail operations, cellular and of computerized information," he said. the rapid change in the amount and cordless telephones, paging devices, Among the major provisions of the types of governmental surveillance. In miniaturized transmitters for radio proposal is one that would extend the 1984, for example, the Federal Govern surveillance, lightweight, compact current restrictions of law protecting ment undertook more wiretaps television cameras for video survell- telephone conversations to all forms of bugs than in any year since 1978. lance and a dazzling array of digitized electronic communication. At present, Mr. Kastenmeler said a recent study information networks which were little it is a crime for anyone to eavesdrop on by Congress's Office of Technology As more than concepts two decades ago," a telephone conversation except a law. sessment had found that 29 differe enforcement official who has obtained Federal agencies were using Michael F. Cavanagh, executive di- an order from a special court. planned to use television survelliant rector of the Electronic Mail Associa A second provision would require a 20 were using or planned to use radia tion, whose members include industry law-enforcement agency to obtain a scanners, 6 were conducting cellular giants such as the ITT Corporation, the court order before it could gain access telephone interceptions and 15 International Business Machines Cor. to the records held in an electronic employing various kinds of personal poration and the GTE Corporation, communication system operated by an tracking devices.. said his group was pleased by the work organization such as a credit card com

Mr. Kastenineler said.

done so far on the proposal. "We hope pany or electronic mail service that of EVERY DROP COUNTS: SAVE WATER that we can work out a final vérision fers businesses computer space in