other types of displayed information. It appears to meet that test to us; yes. Mr. KASTENMEIER. Mr. Quigley, we appreciate your testimony here this morning. It has been very helpful. Obviously, your industry is one that plays a central role in terms of the need and use of such legislation. We appreciate that. In any event, as with the prior witness, we also may need to be in touch with you and your industry before we conclude legislative processing of this bill, but we appreciate the contribution you have already made in this area. Thank you very much. Mr. QUIGLEY. Thank you, Mr. Chairman. Again, we commend you and members of the subcommittee for drafting this very important bill. I think it is an enlightened attempt and will result in exactly what we feel is necessary in the telecommunications marketplace. Mr. KASTENMEIER. This concludes the hearing today, the first hearing on the question of communications privacy legislation. A subsequent hearing date will be announced shortly. [Whereupon, at 11:32 a.m., the subcommittee was adjourned, to reconvene subject to the call of the Chair.] ELECTRONIC COMMUNICATIONS PRIVACY ACT THURSDAY, OCTOBER 24, 1985 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE, COMMITTEE ON THE JUDICIARY, Washington, DC. The subcommittee met, pursuant to adjournment, at 10:15 a.m., in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding. Present: Representatives Kastenmeier, Boucher, Kindness, Berman, Moorhead, Coble, and Swindall. Schroeder, Staff present: Deborah Leavy and David Beier, counsel; Joseph V. Wolfe, associate counsel; and Audrey Marcus, clerk. Mr. KASTENMEIER. The committee will come to order. Without objection, the committee will permit the meeting this morning to be covered in whole or in part by television broadcast, radio broadcast, and/or still photography, pursuant to rule V of the committee rules. This morning the subcommittee is holding its second day of hearings on H.R. 3378, the Electronic Communications Privacy Act of 1985. I'm also pleased to release a study by the Office of Technology Assessment [OTA], on electronic surveillance and civil liberties. This study, responding to a request I made 2 years ago, is an expert, nonpartisan examination of new communications technologies and the privacy protection that is afforded under current law. This study identifies problem areas and provides Congress with the intellectual groundwork for legislative solutions. During our hearing today, we will receive testimony from the OTA summarizing this important work. The subcommittee will also hear from representatives of two trade associations, ADAPSO and Telocator. The subcommittee appreciates the strong showing of interest in this legislation. We expect to conduct one, possibly two more hearings on the bill this year, and move to markup perhaps not this year but, certainly, early next year. Meanwhile, the subcommittee staff will be meeting with representatives of the Department of Justice, the FCC, and various trade and industry associations in an effort to clear the way and suggest how we might resolve minor drafting issues. It is my intention either to print a series of these amendments in the Congressional Record, or, with the cooperation of my colleagues, to reintroduce a clean bill prior to markup. Now I would like to greet as our first witness this morning Mr. Fred W. Weingarten, Program Manager for the Communications and Informations Technologies Program of the Office of Technology Assessment. Mr. Weingarten came to the OTA in 1980 from the National Science Foundation, where he developed the first program support for computer science research. Mr. Weingarten has been very helpful to this subcommittee on a number of occasions as a witness, as director of this study and on another study on copyright and technological change which, I understand, will be forthcoming shortly. Mr. Weingarten, I would like to welcome you here this morning. We have your statement and you may proceed as you wish. TESTIMONY OF FRED W. WEINGARTEN, PROGRAM MANAGER, COMMUNICATION AND TECHNOLOGIES PROGRAM, OFFICE OF TECHNOLOGY ASSESSMENT Mr. WEINGARTEN. Yes, sir. Thank you very much, Mr. Chairman. Mr. KASTENMEIER. We will receive, make part of the record, the report you tender, together with your statement and the appendixes to it. You may summarize your statement if you wish. Mr. WEINGARTEN. Thank you very much, sir. It certainly is a pleasure to be here on a dual occasion for us: One, to participate in the hearings on your bill, H.R. 3378; and second, to participate in your release of our report, "Electronic Surveillance and Civil Liberties." Before I comment on that report, I would like to acknowledge a couple of people who worked very hard on that. I sometimes feel guilty in being the representative of work that is done by other people in my program. Dr. Fred Wood, behind me, is the project director of the larger project on Government information technologies in which this particular piece of work was done. And Dr. Priscilla Regan, seated next to Dr. Wood, was the principal author of this specific study. If at a later time we get into discussions specifically addressing the content of the study, I might ask them to answer some of the questions of the committee. Mr. KASTENMEIER. That would be fine. I certainly want to ask members of this committee and others interested to avail themselves of this 72-page report. It took about 2 years to compile. But I am well aware of how difficult it is if you are monitoring a number of different Federal agencies to determine what their practices are, over a period of time. It takes a long time. Mr. WEINGARTEN. Yes, sir, and this is also part of a much broader comprehensive look that we're doing at that study; that is, addressing other issues of civil liberties and management and administration of Government information practices. More parts of that will be released over the next few months. The most fundamental summary I could make of my testimony and of this report is that the telecommunications infrastructure in this country is undergoing a revolution. That word is used very often these days, with a number of technologies. In this case, it is used quite accurately. The revolution has been taking place over the past decade or two, and probably will continue to take place To illustrate, I would like to refer to two figures that appear in the back of my written testimony. Figure 1 represents the metaphor, or model, of the telecommunications network that was used for the original consideration of wiretapping legislation about 17 years ago. Figure 2 is my attempt to sketch what the communications network of today and tomorrow is turning into. Because of time demands and the schedule date of this hearing, at some point I had to stop developing that figure. Day by day I added new services, new connections, and new technologies to it. It is still a very incomplete figure. The point of it is, however, that the information infrastructure in this country is exceptionally complex and growing more complex, and any legislation that attempts to address that infrastructure, provide a road map, rules of the road, so to speak Mr. KASTENMEIER. Mr. Weingarten, if I could just interrupt. For visual purposes, I'm going to hold up the report, since the impact is lost without seeing it. It's too bad we don't have a large chart. Here you have a phone, copper wire, and then you're suggesting, that either by wire or by radio there's a further transmission to the copper wire and the phone at the other end. That was simply how telephone communications were regarded a decade or two ago. But now, you've suggested that technology has this very complex system of multiple ways of transmission through the new technology, and of the complex involvement of a number of systems. I don't think it would pay for us to ask you to explain that, but let's just say the quantum of complexity and difficulty has grown enormously. Will the laws and statutes written in former days become inapplicable as they are increasingly out of touch with contemporary technology? Mr. WEINGARTEN. Yes, sir. In fact, what happened was that an attempt to provide a simple illustration to my testimony ended up with the basic metaphor of our report and of this testimony-that the system itself was undergoing such an enormous, fundamental change that the Congress is confronted, with a variety of legislative problems. A variety of new technologies is involved, from cellular telephones, to cordless telephones, to satellite transmission and fiber optic transmissions. There is a variety of system operators. We are no longer dealing with a single monopoly provider of public communications, but a variety of operators competing in the marketplace. In many cases banks and other large organizations design, own, and operate their telecommunications systems. As individuals, we own far more of that network than we did in the past. Finally, there's a variety and increasing value of information that is flowing through the network, from what used to be simple telephone conversations to stock market transactions, electronic mall, paging messages, and computer data of all kinds flowing through that network. The complexity of it is illustrated by the overall shape of the drawing, rather than the details of it. One of the most important points that comes from figure 2 is that any attempt to try to define legislatively specific paths through this network, to call one path a "phone call," another path on flowing water. The nature of the servthe network is changing so rapidly, is in such attempts are bound to fail to end up before the legislation has been printed. a very futuristic view, I'd like to bring in an ng names, that I came across just yesterday. I was handed a brochure describing a new person could have their home computer connone network to a bank computer that kept sment portfolio and transactions of that person. nnected to a stock market quotation data base cons on the price and volume, transactions ser is also connected to a transaction system order the sale or a purchase of securities. the variety of new services that are being network that seem to warrant protection. nologically and legally, in that kind of an e of the information is much greater to the ons about wiretapping, people would often anybody overhears my phone conversations. ere's nothing of value in them. It's usually her friends." Now, it's investment decisions, lowing from the home over that network rmation is greater not only to the owner or Pa to somebody else from the outside who er for legitimate or illegitimate purposes. If I who could penetrate that system could pur my name, or could get access to my fi.: a variety of purposes, including law en in leaving this type of new application unI course, is a gradual erosion of privacy, a sper and to keep our dealings confidential. we may be denied useful applications and because they're unprotected. Consumers not use these services if they are not properwill not be developed and offered in the mar Mr. KASTENMEIER. members of this comes selves of this 72-page r am well aware of how u of different Federal a over a period of time. It ng what some people call an information age, Mr. WEINGARTEN. Yedence er comprehensive look is.. dressing other issues of istration of Government ?? will be released over the The most fundamentai and of this report is that tr this country is undergoin often these days, with a ne used quite accurately. The the past decade or two, and se new high technologies is increasrant motivation for making sure are this technology are up to Sogy. Jae to the technological adcertain forms of commuons and forms of comt law. in providing such rections and |