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Senator LEAHY. I do not know about that, but I thank you very much.
Mr. O'MALLEY. I will say that we will miss your leadership, too, Mr. Chairman.
Representative EDWARDS. Thank you. STATEMENT OF WILLIAM C. OʻMALLEY, DISTRICT ATTORNEY
FOR PLYMOUTH COUNTY, MA, AND PRESIDENT, NATIONAL DISTRICT ATTORNEYS ASSOCIATION
Mr. O'MALLEY. My name is Bill O'Malley. I live in Brockton, MA. I am the district attorney of Plymouth County, 26 towns and 1 city just south of Boston. I have been a prosecutor for 22 years. I am the president of the National District Attorneys Association, an organization with 7,000 members who represent prosecutors of this country.
I will begin by pointing out that State and local prosecutors perform more than half of all the wiretaps. Approximately 60 percent of the some 850 wiretaps that are authorized in the course of the average year are conducted by district attorneys or State attorneys.
In the time I have been a prosecutor, I have personally applied for as district attorney or conducted as an assistant district attorney 25 wiretaps. They have been focused in the area of organized crime, illegal gaming, and loan sharking primarily, and for the past 10 years exclusively
in the area of drug investigations. The only tool that permits us to get above the retail level in the chain of distribution of illegal drugs and to get the people who bring drugs into this country, who finance at the wholesale level the purveying of illegal drugs, is the tool of wiretapping.
In July 1992, our board of directors unanimously passed a resolution supporting legislation that is designed to ensure that law enforcement agencies retain the capability of performing court-authorized electronic surveillance in light of changes in the technology. I think that it is critically important to understand what Congress did in 1968 when it addressed the issue of balancing privacy on the one hand and an effective tool for law enforcement on the other. And the safeguards that were put in place are such that the average person is shocked to learn that there are only some 800 to 900 wiretaps in the course of a year and that that includes every Federal agency, every State attorney general's office, and every local prosecutor, between 800 and 900 a year.
The amount of paperwork that is required to satisfy the formal requirements of title 18, title III, and the State laws runs between 25 and 200 pages. There are three kinds of probable cause that must be shown before a wiretap order can be issued. The States are permitted in our Federal system to grant greater protection of rights of our citizens. They are not allowed to grant greater authority to law enforcement. Congress preempted the field. We are now, because technology is changing, revisiting issues that have been very carefully balanced some 25 years ago. It is this simple. With 1,500-some companies providing services and equipment in the telecommunication area, voluntary agreement will never preserve our capabilities of carrying out the authority give to us 25 years ago.
We are in the process of losing that. We are in jeopardy of losing that authority. All we seek is retention of the authority that has already been granted and, frankly, has been proven very, very effective in the intervening 25 years.
We look to Congress for leadership. We need your leadership. The alternative is to go to court to seek to enforce the requirement under current law that certain facilities and services be granted. I have had occasion one time where I had information through a State trooper who worked for me from an engineer for the phone company that a certain kind of information could be given to me.
specified that I wanted that provided. The phone company denied that it was technically capable
of doing that. I petitioned the court to hold the phone company in contempt. It took me 3 months of litigation to ultimately get an order compelling the company to provide that service. It was a cross-frame unit trap. The phone company did give me the
Senator LEAHY. What kind of trap?
Mr. O'MALLEY. Cross-frame unit trap. I had two switching stations in one municipality. Tapping a line, I could identify all outgoing calls. I could not identify the source of incoming calls. The phone company had the ability to give me that. They denied it. compelled it. It ended up being worthless by the time I ultimately got that after 3 months of litigation.
I see the red light. I am happy to answer any questions that you have. I will tell you that all we want is the tools that we have had for 25 years that we have used very responsibly and very effectively for 25 years, and that is all we are looking for.
Senator LEAHY. You understand, Mr. O'Malley, that we want to continue those tools. There is nobody on these committees who is opposed to wiretaps continuing as we have used them. I think those of us who have had experience with them from a law enforcement point of view understand the two things that you stressed: one, their usefulness, but, second, that you go through an awful lot of hoops before you are even allowed to get the court order. It is not a case that we sometimes see on the TV program where somebody says, oh, yes, tap that phone, you know, and somebody runs out and taps it. There is a lot more that goes into it, everything from the probable cause showings on through.
Mr. O'MALLEY. That is right, Chairman Leahy. But I would point out that because of change in technology, actually several different changes in technology but primarily the change from an analog system to a digital system, we are losing the ability to effectuate that authority.
Senator LEAHY. Have you had experience of not being able to get a tap because of digital?
Mr. O'MALLEY. I have not. Plymouth County has not yet gone to optical fiber, ISDN, or some of the new technologies. But I have heard from district attorneys around this country that they have had that problem.
Senator LEAHY. The cross trap that you used, was that digital?
Mr. O'MALLEY. No, it was not. It was hard wire, copper wire, twisted cable, coaxial.
Senator LEAHY. So the concern there was the noncooperation by the telephone company?
Mr. O'MALLEY. The phone company is concerned with public relations, frankly. Four years ago discussions began. We have just been told it is going to cost a billion dollars to deal with the needs of call forwarding. Four years have gone by. Where is the help? We cannot get all the players at a table. There is no table big enough to bring all the people who must be involved.
If I could just make one last comment?
Mr. O'MALLEY. We do not want the Attorney General or the Department of Justice to be a policy regulator for industry in any way. I value and somewhat understand the emerging technologies, and I know how vitally important they are to the economy and in so many other ways in this country. It is like the law of the independent contractor. We rely on their demonstrated expertise. We tell them that we want a certain result, and the result we want is continued access to court-authorized interception. But we leave the means to them. They can comply with that result in any way that they choose, and, frankly, with all the different technologies that are involved, different solutions must be had. And it is impossible to prescribe with any particularity the means of achieving that access or maintaining that access.
Senator LEAHY. What you want is if you have a case where you can get a court order for a wiretap, you just want to execute it.
Mr. O'MALLEY. That is all we are looking for.
Senator LEAHY. You do not care whether you put it on the fifth floor or the first floor, the green box, the red box, or the blue box. You just want the traffic off that tap.
Mr. O'MALLEY. We have always climbed the poles ourselves and made a physical connection, and with the bit streams and the binary flow of communication, rather than two pairs of copper wires that you can physically connect to, you must connect at the same point. Every telecommunication provider gathers information on who initiated a communication, to whom they communicated, how long it lasted, the date and the time, because they need that information for billing. They have the capability, and they do, in fact, get all of that information. It is at that point that we, because of changes in technology, now must look to make the interception.
In other words, instead of climbing a telephone pole, it has to be in the switching station because that is the only point at which a particular conversation is accessible.
Senator LEAHY. Do you know nationwide how many wiretaps have been conducted say in the last year or so on digital switches?
Mr. O'MALLEY. I do not. I understand that there have been particular problems in the Miami-Dade County area, and basically in the areas where the transfer away from the analog system to the digital system is most advanced, that is where the problems have been.
Senator LEAHY. Mr. Edwards?
Representative EDWARDS. Mr. O'Malley, thank you for your testimony. Your fears are prospective, though. You do not have the list except for that one rather stubborn company that just did not do what you wanted them to do, and you mentioned other district attorneys throughout the country who you believe are having current
problems because of the advancement of technology in the telephone business.
Your fears are prospective as to what is going to happen next month or the month after or the month after, but your testimony is not that right now you are having problems.
Mr. O'MALLEY. I have not personally had problems. I listened to the Bureau. Of course, I am dealing with a very small geographical area, as each DA does. The Bureau deals with the whole country and with the state of advanced technology in every part of the country, and they tell us of problems right now.
Representative EDWARDS. Well, the Bureau said they had 91 problems, particular incidents, and the industry said they did not think they did have. So we do have a conflict, and that is one of the problems these two subcommittees are going to have, being prospective about something that is going to happen. The telephone companies say we will take care of it by negotiation, by the fact that we already are taking care of these problems, and competition and the free market system and our good will and our understanding of the seriousness of the matter will ensure that, without law, we are going to take care of the problem. And the FBI says, no, we fear that the sky is going to fall in, and the telephone companies say you are being Chicken Little.
Mr. O'MALLEY. Respectfully, it is not an issue of the sky falling. It is something because of the diversity and multiplicity of organizations involved, both in the industry, hardware and service providers, and in the law enforcement community. It is not something amenable to resolution through discussion. We are asking for your leadership.
Representative EDWARDS. Well, it would be very helpful if you could ask some of your members who are having current difficulties with the telephone companies because of this particular problem, not just because you are having an argument with them on something else. We would certainly like to hear about it.
Thank you very much.
Representative CANADY. Mr. O'Malley, we appreciate your being here, and we appreciate your perspective as a local prosecutor on this. One thing that is going to be very helpful to us is getting at this issue that you touched on when you talked about the ability of the companies to get information about where calls originate and where they are going for their billing purposes.
I am not sure I understand, if the companies are going to continue to have that ability, why we cannot also tap into that stream at the same point.
Mr. O'MALLEY. We can, Congressman Canady, if appropriate technical provisions for that are made. And they have not been made, and they are not being made. And every day that goes by, the cost of going back and retrofitting it increases, and that is the problem.
The point at which that access can be had, it cannot be had now without changes in the software. That is what this legislation would require.
Representative CANADY. That is really the crux of this issue, and I appreciate your comments on that. One thing I would say to fol
lowup on that, is that, I think that although we need to adequately consider all aspects of this very complicated proposal, this is a situation in which time is of the essence.
Mr. O'MALLEY. Yes, it is.
Representative CANADY. Because if we delay unnecessarily, I think we will find ourselves facing costs down the road that we could have avoided. So that is why I am very pleased that the two chairmen have decided to conduct this hearing, and I understand there will be a further hearing or further hearings. I believe it is important that we move forward with addressing this issue and bringing all the parties together to try to come up with something that will protect all the interests that we are dedicated to protecting, the interest in effective law enforcement, the interest in protecting privacy, which I think is a concern that has to be taken into account, and all of this.
Mr. Ó'MALLEY. We share that concern. We are concerned with that, too.
Representative CANADY. All of these things, as well as the concern about protecting the ability of industry to move forward with technological innovation that will provide benefits to the consumers in this country. We need to make sure that anything that we structure does not unnecessarily impede technological innovation, which does provide us with so many benefits, and that is a very difficult balance that we are going to have to strike. But I think it is a task that we must undertake.
Mr. O'Malley, when you are meeting either with the board of the NDAA or talking with your fellow prosecutors, tell them to please feel free to send on to me and I am sure to chairman Edwards their own thoughts on this, areas where either they have had a real problem or an area where they found an innovative way of working around problems. We really would like to know. They should feel free to contact us and send the information on to us because I think, again, everybody here, from both bodies of Congress and both parties, wants to be able to meet the law enforcement needs that we have as a Nation, especially at a time when crime is becoming far more mobile, and far more complicated. Obviously we want to be able to have all the law enforcement tools necessary.
Mr. O'MALLEY. I will do that. I appreciate that. If I could end with one last short observation?
Senator LEAHY. Yes.
Mr. O'MALLEY. There has been a great deal of talk about privacy and a concern about access to increasing data that flows over the information highway. I would point out that right now, when I am with court authority intercepting a telephone communication, you may be talking to your doctor about your cholesterol, you may be talking to your minister or your priest or your rabbi, you may be talking to your banker or your attorney or anyone else, I am required by law right now to minimize the intrusion when a communication is nonincriminating. That is a requirement that I am held to, a very high standard, right now, and, of course, that would continue. And so the fact that a new technology will bring information