Page / Now is the time to begin that process. Many questions, both technological and legal, have already been raised. (See the attached article by David Burnham.) Many more will certainly arise in the future. We believe that Congressman Kastenmeier's hearings in this area have begun to provide answers to some of these questions. As you know, Senator Mathias has agreed to Senator Leahy's request that hearings on this subject be held in the Senate, as well. The Office of Technology Assessment is also undertaking a study at the request of Congressman Kastenmeier and Senator Mathias to explore the topic of government information systems and privacy. We are hopeful that the future hearings and study will take a broad look at both federal wiretap and communication laws with a goal of more thoughtfully and fully protecting personal privacy from government and private intrusion. As congressional staff participants in the June 12 meeting, we think the group of experts you are assembling can be extremely helpful at enumerating the problems we are facing and pointing us in the direction of legislative solutions. To that end, we would suggest the list of questions which follows as a starting point 454 their legitimacy. Smith v. Maryland does not clearly cover the facts, and the "expectation of privacy" analysis is not identical. One reported case notes that Chapter 119 doesn't apply to traces, since there is no interception or "aural acquisition". (Michigan Bell v. U.S., 565 F.2d 385 (1977)). U.S. v. Seidlitz, discussed above, also validated a series of broad, sophisticated traces. In addition, most states have unique statutory provisions that involve trap- and trace-devices, rendering the law quite varied. Lastly, a number of states do not permit interceptions with the consent of only one party to a call. II. My Own Experience. My own experience with these types of situations breaks down into two discreet areas- one involving actual wiretap orders and one involving orders regarding trapand trace- devices. They must be evaluated independently. As a counsel for Centel's telephone companies, I had routinely reviewed both types of orders to ensure that they complied with applicable laws, and I did so to eliminate any civil exposure for Centel. The law provides an affirmative defense for common carriers acting in good faith reliance upon an order. 18 USC 2520. Centel policy is that its attorneys must review the facial validity of each order under applicable law to ensure that its good faith remains "reasonable." See Jacobson v. Rose, 592 F.2d 515 (1978), cert. den. 442 U.S. 930. In a few cases, this has gone so far as to justify a return telephone call to an issuing federal judge to confirm his actual execution of an order. We have been careful because we know of a number of civil suits against common carriers. Centel has generally been very protective of the privacy of its customers' communications. It has an internal directive that is arguably more restrictive than the case law requires in some areas, and it has been revised as situations demand or as the law changes. (A copy is attached of the current, slightly outdated directive, for which a review has been underway for some time. Also attached is an early draft of a replacement.) Centel's involvement in one matter in Nevada in the early 1970's led to an amendment in Chapter 119 involving common carriers. As I noted above, the procedures for wiretap orders generally have become very structured and the orders, when presented, have already been the object of much review and scrutiny. It also could be that, because of the care required by Centel's general counsel, many law enforcement officials we worked with became more careful themselves. At times, we reviewed orders beforehand and told the officials what had to be included for Centel to comply. To my everlasting surprise, it has been the other area, involving the tracing of more common events, that seems to present the most problems. These events are normally obscene or harassing telephone calls. While I believe there are actually fewer wiretap orders than most people might expect, telephone call tracing is fairly common. You should be aware of this as you attempt to decide the procedures that will be adopted. Also, tracing in many cases is identical to internal activities undertaken by telephone companies to pinpoint network transmission problems. I believe that the administrative problems arose because of the unclear statutory law, the often-emergent nature of the requests and the fact that a few local law enforcement agents were impatient to act, even without an order, because they had a suspect and generally knew the victim. These activities also tended to become repetitive in certain small communities, and we found that we often dealt with police or prosecutors only in certain of the areas we served. Here, too, we suggested to law enforcement officials certain safeguards which we expected, including a "John Doe" type proceeding where a caller was unknown. We believe, however, that other common carriers do not follow identical procedures, and we have had feedback that we are more demanding than some others. We have recently considered more lenient guidelines in light of the Smith v. Maryland case, but I note that your draft bill is not too much different than our existing policy in many respects. (I am providing a significantly different definition of "tracer" than your bill now includes in my comments.) To my knowledge, with any wiretap order, we have always declined to enter a premises with law enforcement officials when that entry had to be covert, although under the law, we have been required in certain orders to stand by and render instructive technical assistance by radio or telephone. (With tracing devices, no entry is required. An adjustment in the central office permits a circuit to stay open or be pinpointed so that the number of the caller and called party can be identified. The particular activity depends upon the technology used in the telephone company's central office switch. Interception of conversation does not occur in those cases. With traces, the cooperation of a victim is needed to match the time of the call that is traced by the telephone company with the time of the call identified as offensive or harassing by the victim.) It also has become our policy to recognize practical impacts. Thus, where there is an emergency, such as in a 911 call, hostage situation or house fire, we believe it is justified to presume consent. We find it impossible to conclude that a person whose line is involved in such a situation would not consent to tracing or other types of line identification. All in all, these experiences have led to some of the suggestions made below. III. Suggested Changes. Before leading into line-by-line comments or suggested changes, I would suggest a few conceptual Is the trend in the telecommunications system to transmit increasing amounts of information in a digital form? Will this be true of data, voice, and video? Does the technology exist to intercept digital communications transmitted by microwave and convert them into a readable form? If the technology exists, is it currently available only to the government, or can private concerns acquire such technology? Are there practical, non-governmental solutions, such as data encryption, available to the person who seeks to defeat the unauthorized acquisition of a digital communication? Was Title III intended to cover voice communications which had been converted to a "digitized" form for transmission? Did Congress intend that Title III be the sole remedy available to a party for the unauthorized acquisition of a communication in the telephone network? Should Congress establish different standards of privacy protection for different means of human communication? Should voice communication be granted greater privacy protection than written communication? Can Congress provide a definition of "reasonable expectation of privacy, or must that be left to a case-by-case court determination? What law enforcement problems are created by eliminating the reasonable expectation of privacy proviso from the FISA electronic Surveillance definition governing microwave transmissions of communications? If Congress undertakes a reform of the electronic surveillance laws, should it concentrate on amendments to Title III and FISA, What restrictions exist on the government's collection of information being transmitted by open access electronic mail systems? Should video surveillance be permitted under any circumstances, and if so, what kinds of restrictions should be placed on video surveillance to avoid running afoul of the Fourth Amendment prohibition against general searches? Should Congress consider creating a permanent administrative body or commission to study the privacy problems generated by the new technologies? Would the House and Senate be well-advised to create their own select committees to review privacy problems? |