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I am here to assert what the administration and I believe is the only rational and viable means of removing this threat: the enactment of comprehensive legislation to address the digital telephony issue. Without it, one of our most effective weapons against national and international drug trafficking, terrorism, espionage, organized crime, and serious violent crimes will be severely harmed.
The administration wants to work with the Congress to develop such comprehensive legislation, which is why the bill has not yet been introduced. I have shared with each of you a legislative draft for your consideration. The purpose of this legislation, quite simply, is to maintain technological capabilities commensurate with existing statutory authority—that is, to prevent advanced telecommunications technology from repealing, de facto, statutory authority now existing and conferred to us by the Congress.
The proposed legislation explicitly states that it does not alter the Government's authority to conduct court-authorized electronic surveillance and use pen registers or trap and trace devices. The essence of the legislation is to clarify and more fully define the nature and extent of the service provider's assistance requirement that was enacted by the Congress in 1970, which Congress imposed so that court orders would not be frustrated due to a provider's failure to furnish needed technological assistance and facilities. The proposed legislation relates solely to advanced technology, not legal authority or privacy.
We have not sought legislation lightly. For nearly 4 years, we have expended every reasonable effort to address this threat through numerous and ongoing meetings with the telecommunications industry. However, it is my judgment and that of the administration that dialog alone, no matter how well intended, will not solve this serious threat to public safety.
We have listened and learned, and the draft legislative proposal before you represents the only proper balanced approach. 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 systems. On the other hand, the legislation is narrowly focused on where the vast majority of our problems exist: the networks of common carriers, a segment of the industry which historically has been subject to regulation.
The administration's draft proposal approaches the problem in a very rational fashion. It included clearly stated 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 to facilitate compliance, and, importantly, a commitment by the Federal Government to pay common carriers for reasonable charges associated with achieving compliance.
To appreciate fully the need for legislation, it is essential, in my view, that Congress understand the critical importance of electronic surveillance and the severe harm that will result if this critical tool is lost or diminished.
The Nation's phone networks are routinely used in the commission of serious criminal activities, including terrorism and espio
nage. Organized crime groups and drug-trafficking organizations also rely heavily upon telecommunications to execute their crimes and hide their illegal profits.
In 1968, Congress passed the Omnibus Crime Control and Safe Streets Act of 1968, title III of which contained comprehensive Federal legislation regarding electronic surveillance. Title III established strict procedures for conducting electronic surveillance, procedures that are carefully adhered to by law enforcement and rigorously enforced by the courts. Thirty-seven States also have electronic surveillance laws.
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. Of that total, only 340 were procured by the Federal Government, of which only 252 were applied for by the FBI. 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 you are aware, title III permits electronic surveillance only for serious felony offenses and only when all other investigative techniques will not work or are too dangerous.
Electronic surveillance is one of the most important investigative techniques, if not the most important, for many cases. Frequently, criminality under investigation could never be detected, adequately investigated, or successfully prosecuted without this critical tool. Though used sparingly, electronic surveillance has been extremely effective, leading to the convictions of thousands of dangerous criminals involved in drug trafficking, organized crime, violent crime, kidnaping, crimes against children, and public corruption. Its evidence has secured the convictions of more than 22,000 dangerous felons over the past decade.
Aside from its great importance as an investigative tool, electronic surveillance frequently has been essential in preventing crimes and saving human life, such as preventing murders, saving numerous lives threatened by terrorist attacks, dismantling organized crime groups which prey on people through extortion and violence, and in attacking the national and international drug cartels whose illegal drugs so ravage society and cause incalculable personal injury.
Although I cannot discuss the details, I can assure you that court-authorized electronic surveillance has played a critical role in successfully resolving two recent highly publicized cases concerning terrorism and espionage. Electronic surveillance has been critical in numerous other cases.
A brief example, the violent El Rukn gang in Chicago, acting as a surrogate for the Libyan Government and, in support of terrorism, planning to shoot down a commercial airliner within the United States using a stolen military weapon. This act of terrorism was prevented directly through the use of electronic surveillance.
The Ill Wind public corruption and Defense Department fraud investigation relied heavily on court-ordered electronic surveillance. To date, this investigation has resulted in the conviction of 65 individuals and more than a quarter of a billion dollars in fines, restitutions, and recoveries. Numerous
Senator LEAHY. But, Director, if I might, I do not think any of us disagree on the need for electronic surveillance in some of the cases that have been made as a result of it, many of which are ongoing now. I would expect that in your Agency and in State and local agencies, there are a very large number of court-ordered electronic surveillances going on in this country today. But we have in the current statutes involving wiretaps, pen registers, trap and trace devices and so on, required the service providers to furnish forthwith all information facilities, technical assistance and so on necessary to accomplish execution of an order. We all know the technology is changing very rapidly.
What I am concerned about is, why is current law inadequate? If they are required to furnish forthwith everything you need, why isn't that enough?
Representative EDWARDS. Would you yield at that moment, Senator?
Senator LEAHY. Sure. Representative EDWARDS. They are going to testify that this added legislation is not needed, that they take care of you currently and can take care of you down the road.
Mr. FREEH. Well, I will answer both questions. With respect to the need, the need arises precisely because the companies in 4 years of negotiations have told us and have told me personally in the several meetings I have had with them that, come the changing to the digital switching system and come the changing technology within a very, very short period of time, they will not be able to provide the access that we now get. If there is no problem, then there is no reason for legislation. But they have been telling us that there is a serious problem, and they have been forecasting that within a very short period of time they will not be able to service our court orders.
Their lawyers have advised them that the statute, as currently written, will not obligate them to provide the current access. We are talking also not about one single provider where we could bring a declaratory judgment action in some court and get a ruling. We are talking about 2,000 companies, which, even if we reached a memorandum of understanding with each one, we would never cover the field.
They have told us in discussions over 4 years that we ought to level the playing field, and some have suggested that we do it by statute.
Senator LEAHY. But I am not sure how their lawyers reached this interpretation. How do you interpret it? The statute says that they are required to give all necessary assistance. In fact, there have been some instances where law enforcement agencies have actually gone to court to force telephone companies to provide certain assistance, such as a leased line, remote location monitoring and so on. The courts have always sided with law enforcement. I do not know of a single case where they have not.
How do you read that law? We will ask the telephone companies what their lawyers think, but how do you read current law? Isn't it broad enough to say all necessary assistance means just that?
Mr. FREEH. I do not believe it is, Senator, and if I were an article III judge still sitting in New York—where my Dad said I should
have stayed, by the way—I would have great problems compelling the phone company, because it would be by compulsion, to provide something which they do not have and are not currently planning to have on the basis of that language.
There is a great and honored principle in the common law that you cannot compel someone to perform an act that they are incapable of. What they are telling us is they will not have in the switches the software necessary to make the connections to give us the access. I do not think any article III judge facing an appeal to another court would be valid in compelling them to do something which they tell us technologically they cannot do.
Senator LEAHY. So what you are trying to get is to expand current law to make sure they are required to have certain types of equipment that the Department of Justice will tell them to have?
Mr. FREEH. We are not asking them to expand the authority that we have to do wiretapping. I think that has to be clear because there is a lot of misinformation about that.
What we are saying is that we have certain requirements with respect to access which they tell us are not going in the software, and we want to present those requirements to them, and the statute will compel all of the competitors in this field—and there are over 1,500 of them—to put those requirements into their systems as they build the software.
We are just talking about a feature package here. We are not talking about some
Senator LEAHY. For example, have you had any instances where you have had a court order for a wiretap that could not be executed because of digital telephony?
Mr. FREEH. We have had problems just short of that, and I was going to continue with my statement, but I will not now because would actually rather answer questions than read.
We have instances of 91 cases, this was based on a 1993 informal survey which the FBI did with respect to State and local law enforcement authorities. I can break that down for you.
Senator LEAHY. In fact, you did provide a breakdown. In your statement, you said, of those 91 wiretap orders, in 10 instances the cellular provider did not have enough capacity, in 19 instances special calling features were the problem, in 30 instances the cellular provider could not give you dialed-number information.
Let's look at the special calling features. Apparently, call forwarding is a problem. With the law that you and the administration are suggesting, would call forwarding be kept off the market unless the companies were able to provide a way for law enforcement to tap into it?
This is a service that tens of millions of consumers who are lawabiding people, have and use. Would that service have had to be kept off the market if they could not find a way to tap it?
Mr. FREEH. Absolutely not, and that is not the intent of the legislation, and I do not believe that that is the effect.
What this heralds, the 29 problems with respect to the calling feature impediments—and it is not all call forwarding—means that as the switches go digital, particularly the central office switches, there will be an increasing number of lapses in the system where we cannot get the access in the normal fashion.
We are not looking to introduce any feature package that impedes technology. And, interestingly enough, last Friday I sat in my building with 38 representatives of the industry, telecommunications companies, and we asked them. We said give us one example of a technological advancement or improvement which you believe this feature package would inhibit. And there was complete silence in the room.
Senator LEAHY. I might suggest one: A private company that wants to build a computer, fax machine, telephone or whatever that is encrypted.
Mr. FF Well, but that is a different problem. We are never asking the phone companies and this legislation does not ask them to decrypt. It just tells them to give us the bits as they have them. If they are decrypted, that is my problem. But that is not going to be addressed in the legislation.
Senator LEAHY. That is going to be another hearing.
Senator LEAHY. I feel very fortunate to have had all these things land in my subcommittee. Otherwise, I probably would have had nothing to do on weekends and evenings. (Laughter.]
You either. But you talked about 10 instances in your statement where interception orders for cellular phones could not be executed because the provider has insufficient capacity.
Mr. FREEH. That is not a digital problem. That is a capacity problem.
Senator LEAHY. That was primarily in New York City, wasn't it?
Mr. FREEH. It was primarily in New York City, although in the Southern District of Florida, speaking to my counterparts in the DEA, they have documented instances, numerous instances, where they cannot execute title III court orders because of the lack of the access requirements in the company.
Senator LEAHY. We have the problem with cellular phones and other technologies that came on the market so fast and so much quicker than anybody thought. That is part of it, is it not?
Mr. FREEH. That is exactly part of it, and that is why we are here today, because the technology is running at such a pace that we could be out of the wiretap, business in a very short period of time. We are already suffering instances of impediments which are preventing
the enforcement of court orders. Senator LEAHY. But we may end up also holding back technology to preserve wiretaps. We are talking about the Federal Government paying for some of the various costs. You have one provision in your proposal to require telephone companies to designate personnel to be on call 24 hours a day to activate the Government's intercept orders. Are we going to pay for that on-call person? If you are dealing with the local telephone companies, say here in Washington or in New York City, that does not seem like a big problem. Are we going to pay for them?
Mr. FREEH. I think we do pay for that, but I do not think those costs are excessive at all. If you are talking about 919 wiretaps in the whole United States by every Federal, State, and local authority, that is a very small number of wiretaps, which is precisely why the access is so critical, because we select out only the most important dangerous cases to use the technique for.