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Washington, DC, April 5, 1994. Congressman Don EDWARDS, Chairman, Civil and Constitutional Rights Subcommittee, U.S. House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: I am writing to clarify the record regarding statements attributed to me by FBI Director Freeh during his testimony before the Joint Judiciary Subcommittee hearing March 18 on digital privacy.

Director Freeh referenced comments made by a GTE representative during a recent FBI briefing regarding the proposed wiretap legislation I did participate on behalf of GTE at the above-mentioned meeting and discussed the telephone industry's need to better understand the FBI's technical requirements for the inception of transmissions over advanced communications networks. However, I do not agree with Director Freeh's apparent interpretation of my comments to indicate that GTE was supporting a legislative solution. Rather, my intent was to move beyond the policy debate to a discussion of the technical issues and how best to solve them.

I hope this clarification proves helpful. GTE looks forward to working closely with both the Congress and the Administration in the examination of this important privacy issue. Please do not hesitate to contact me if I can be of further assistance. Sincerely,


Vice President, Government Affairs.


Washington, DC, April 7, 1994.
House of Representatives,
Washington, DC.

DEAR CONGRESSMAN EDWARDS: Director Freeh appreciates the time you took to discuss digital telephony. As you know, this is a vital issue to law enforcement agencies as well as the American public as we attempt to combat violent crime in this country.

On March 25, the Administration transmitted digital telephony legislation to Capitol Hill. I have enclosed a copy of this proposed legislation in addition to letters sent from the Department of Justice to Vice President Gore and Speaker Foley. I have also taken this opportunity to enclose materials in question/answer format which address issues that have been raised.

If you have any questions or concerns, please do not hesitate to contact me personally. I look forward to your support of this critical legislation. Sincerely,


Inspector, Office of Public and Congressional Affairs.


Question 1. The telecommunications industry has indicated a willingness to work with law enforcement on the digital issue. Additionally nothing has been presented to the Committee that development efforts by industry should be modified/altered at this time. If in fact, a problem exists, what does the FBI perceive the current problem to be and please comment on the urgency associated with the problem. Answer. Industry Representatives, in fact,

acknowledge that existing networks offering these services and features, as well as networks planned for the future, in their current and planned configurations, often prevent, and will continue to prevent, common carriers from satisfying court orders and providing the needed access to all communications and dialing information. Support continued dialog between industry and law enforcement. However, the working group process and the standards body forum now being used is voluntary and alone is not equipped or chartered to solve the problem or ensure implementation of solutions. Industry also recognizes this major shortcoming. There is no mechanism, no resolution, short of legislation that can compel a timely, comprehensive, and binding solution.

Question 2. The digital telephony issue is described as the most important and crucial issue facing law enforcement today. However, statistics provided to the Committee indicate that the FBI's share of court ordered criminal wiretaps amount to only .06 percent. Why then, is this issue so critical at this time?

Answer. Contrary to statistics provided by the Committee, the FBI's share of Title III criminal intercept orders in 1992 amounted to 74 percent of all Federal authorizations and 27 percent of the total law enforcement authorizations. Even though these percentages are significant, the proposed legislation is not designed solely to benefit the FBI, but will provide continued court ordered access to assist all of law enforcement in meeting their investigative responsibilities.

Question 3. Will the courts or law enforcement agencies be required to change their review and approval procedures and as a result allow law enforcement to do more than they do now?

Answer. No change in review procedures will occur. Applications to a District Court Judge or the Foreign Intelligence Surveillance Court will still undergo thorough internal review to ensure they comply with standards and requirements. Surveillance applications will be presented by affidavit for review and accompanied by a court order to be signed.

Question 4. Electronic surveillances last for limited periods and are then reviewed for renewal. At the conclusion of a surveillance, individuals are notified that they have been tapped. They then have the opportunity to attack the wiretap. Are these proceedings

being made inadequate by this proposal? Answer. Criminal electronic surveillances last for a set period. At the end of this period they are reviewed or discontinued. Individuals surveilled are then notified of the court order. In a pretrial hearing, surveillance orders cab be attacked based upon the probable cause stated in the affidavit. At trial the court order can also be attacked. These means of attacking an electronic surveillance will not be changed by the current proposal.

Question 5. There are currently a number of persons who are incarcerated based upon their convictions through evidence gathered by telephonic surveillance. Similarly, there are former hostages alive today because electronic surveillances produced information that led directly to their rescues. Do you believe that the loss of this kind of information is outweighed by a potential gain in privacy or financial savings? Can we jeopardize this valuable source of information?

Answer. The productiveness of telephonic surveillances in the drug war can not be overstated. Drug conspiracies are difficult or impossible to penetrate. The introduction of undercover Agents is often impossible because they do not share the same national origin and are not accepted as outsiders. Equity difficult is developing informants within the inner circle of such groups. Virtually all major drug cases, over the past years, have employed some form of telephonic surveillance. The information produced by these wiretaps often is enough in and of itself to produce convictions.

Question 6. Crime is at the forefront of the Administration's and the public's concerns. We are expending billions each year to address criminal problems. How will enactment of the Government's proposal further our efforts to address crime?

Answer. The legislation will preserve the viability of an effective electronic surveillance capability. This technique is critical to fighting our worst and most dangerous crime problems—drug trafficking, terrorism, and violent and organized crime.

Question 7. Could you refresh our memory on the standards of approval for: Criminal electronic surveillances; Foreign Intelligence Surveillance Act (FISA) surveillances; Court order; Grand jury subpoena.

Answer. FBI criminal intercepts must first be approved by FBI Headquarters and then by certain designated officials at the Department of Justice. Criminal telephone surveillances may only be used to surveil persons believed of committing a list of criminal violations. Certain state officials are authorized by Federal law to apply for court orders from state court judges if the particular state has enacted an electronic surveillance statute. Applications must include a writing under oath containing: The name of the law enforcement officer applying for the order; A full statement of facts to justify the order that a particular crime is being committed; A description of the location or facilities from where the communication is to be intercepted and the type of communication to be intercepted; Statement that other investigative procedures have been tried and failed or appear unlikely to succeed or would be too dangerous; Statement of the duration requested; Statement regarding previous applications, and if request is for an extension states the results to date. The Judge may require other information. Judge must find there is probable cause the individual is committing, has committed, or is about to commit a particular offense. The order may require periodic progress reports. There is an emergency procedure which requires the submission of an approval order within 48 hours. FISA

orders require a comparable submission as detailed above for criminal interceptions but the standard is not probable cause that a crime has occurred but is specific and articulable facts that give reason to believe that national security has been or will be jeopardized. Reason to believe the information sought is relevant to a criminal investigation determined by a neutral and detached magistrate. Relevancy to a criminal investigation.

Question 8. Director Freeh, how much does the Government intend to pay for telephone system retrofit? How will this be funded after the initial $500 million is exhausted? What will this cost if not implemented soon?

Answer. $500 million. First of all, it is not at all clear that the costs will exceed $500 million. If there are costs that exceed this amount, we would have to seek additional authorization and appropriation of funding. To delay the implementation will either mean it will be done at a much higher cost later and effective law enforcement will be much more harmed and the public safety put at greater risk.

Question 9. Will the courts or law enforcement agencies be required to change their review and approval procedures and as a result allow law enforcement to do more than they do now?

Answer. No change in review procedures will occur. Applications to a District Court Judge or the Foreign Intelligence Surveillance Court will still undergo thorough internal review to ensure they comply with standards and requirements. Surveillance applications will be presented by affidavit for review and accompanied by a court order to be signed.

Question 10. Do you contend that individuals should be given a higher level of privacy as a result of advances in telephone technology? Exactly what is the Government asking for from the communications industry?

Answer. We continue to support the need for individuals to be secure in their communications. However, we must also recognize law enforcement's responsibility to be able to intercept communications of criminals using the telecommunications systems to further their illicit activities. The Government requirements are: Expeditiously provide law enforcement access to the communications and call setup information of the subjects named in the intercept authorization. Execute all court orders and lawful authorizations for electronic surveillance, including authorizations for multiple, simultaneous intercepts. Provide the ability to intercept the content of communications and acquire call setup information concurrent with the communications of the subscriber who is named in the authorization, to the exclusion of any communications of call setup information of any other subscriber. Provide access to communications content and call setup information regardless of the mobility nature of the facility or service that is the subject of the court order or the use by the subject of any service features. Allow unobtrusive access to the communications content and call_setup information with a minimum of interference with any subscriber's service. Transmit the intercepted content of communications and call setup information in a generally available format to a location identified by the law enforcement agency for monitoring purposes.

Question 11. What is the penalty for conducting an unauthorized electronic surveillance? Will the enactment of the proposal impact current prohibitions?

Answer. There are a number of penalties. Generally, the penalty is: (1) Imprisonment up to five (5) years and/or (2) Civil damages, the greater of actual damages; $100/day for each day of violation, or; $10,000.

Punitive damages also may be available. There are lesser penalties for certain first time offenders regarding cellular telephone interceptions.

No, the proposed legislation explicitly states there is no alteration in the current penalty provisions.

Question 12. Could you explain the problem with “Digital Telephony?”.

Answer. Traditionally, common carriers have offered essentially "fixed point” telecommunications: that is to say, communications generated by, or intended for, a customer and transmitted to a fixed location corresponding to a specific telephone number. In the past, when law enforcement agencies conducted court-authorized electronic surveillance or “wiretaps” on a subject the telephone companies were able to provide law enforcement with a location or access point that would virtually assure the interception of all communications associated with the subject's telephone number set forth in the court order.

Recent and continuing advances in the telecommunications industry has resulted in technologies and services (such as cellular communications, call forwarding, etc.) that negate the necessity for communications to be transmitted to a fixed point. In fact, emerging technologies will enable users to initiate and receive calls without regard to their geographical location. Additionally, technologies that allow for the efficient transmission of multiple simultaneous communications of many subscribers over fiber optics and other wire facilities are baking it increasingly difficult to iso

late the communications specific to the telephone number in the court order to the exclusion of all the other subscribers' communications.

Question 13. How many court orders for telephonic surveillances were obtained in Fiscal year 1992? Total law enforcement-non FISA; Federal law enforcementnon FISA; State and local law enforcement; FBI-non FISA; FISA; Pen register orders.

Answer. For fiscal year 92-91–9 criminal telephonic surveillance orders for all law enforcement; 340 Federal law enforcement criminal orders; 579 state and local criminal orders; 252 FBI criminal orders; 484 total FISA orders; Estimated at approximately 9,000 pen register orders.

Question 14. In your statement you made reference to a survey that was done by the FBI in 1993 to collect information on technology based problems encountered during electronic surveillance. Could you please elaborate?

Answer. During contacts with other Federal, state and local law enforcement in 1993, the FBI informally asked for instances in which electronic surveillance was frustrated in whole or in part by technology. As a result of this query we received 91 responses from agencies that were willing to share this information. The results are as follows: 30 Cellular-inability to intercept in whole or in part, call content and/or dialed number information; 10 Cellular-inability to initiate intercept due to insufficient switch or port capacity. 29 Custom calling features call forwarding, abbreviated dialing features; 15 Digital voice lines, fiber optic lines; 4 other custom calling features; 3 Other technology issues.

NOTE: These results do not include situations where court orders were not sought due to technical impediments known in the past to preclude effective execution of the court order. (i.e. cellular capacity.) Examples:

1. A Federal investigation of a major narcotics organization operation in the northeastern U.S. was hampered when the cellular telephone service provider was unable to fulfill requests for court-ordered wiretaps due to the provider's technical limitations.

2. An organized crime and drug trafficking task force investigation in the southeastern U.S. was unable to conduct a court-ordered wiretap as the cellular service provider as unable to provide lab enforcement with access to the subject's long distance communications made through the provider's cellular service.

3. Two different cellular service providers in the mid-western U.S. were unable to comply with separate Federal court-orders requesting pen register or dialed number information from suspected drug traffickers' cellular telephones.

4. A regional telephone company in the mid-western U.S. was unable to provide a Federal law enforcement agency with the content of dialed number information from a suspected drug trafficker's telephone as a result of the subject's use of custom calling features offered by the telephone company.

5. A cellular service provider in the south was unable to comply with a Federal court-order for dialed number information concerning a Federal public corruption investigation due to the provider's technical limitation.

Question 15. We understand that advanced telephony will create much more information regarding a customer's calling practices, etc. This information is used for billing purposes and is called transactional data. Will the proposed bill permit access to this transactional information? Will you get it by Grand Jury Subpoena? Do you plan to access this information?

Answer. It is not the FBI's intention to get any information regarding content of the message of the telephone call beyond that information that describes the call itself without a court-authorized surveillance order. Data not related to substantive call content may be valuable in certain situations and will be sought when advantageous. Call billing or stored information will be obtained by Grand Jury Subpoena any information regarding the content of the call-or that was not stored by the telephone company will be obtained by Title III order. Non substantive content will be obtained by Grand Jury subpoena. We will seek any information that may further a criminal investigation.

Question 16. Is there any way to assess the endangerment to public safety and national security if this proposal is not enacted?

Answer. I can assure you that a loss or diminishment of such surveillance will produce the following disastrous results: An increased loss of life, attributable to law enforcement's inability to prevent terrorist acts and murders. An increase in corruption and economic harm to business, industry, labor unions, and society generally, amounting to billions of dollars, caused by the growth of undetected and unprosecuted organized crime, public corruption, and governmental fraud. An increased availability of much cheaper narcotics and illegal drugs—along with the per

sonal, societal, and economic harm brought about by increased drug use: that is, the numerous deaths, ravaged lives, increased health care costs, and the tremendous economic harm calculated in the billions of dollars. A substantial increase in undetected and unprosecuted violent crime (bombings, murders, and other violent acts) along with the loss of hundreds of lives and millions of dollars in economic harm.

Question 17. It has been represented to the Committee that FBI field Agents have experienced difficulty when working with telecommunications service providers in implementing court ordered wiretaps. However, following a FOIA request filed by the Computer Professionals for Social Responsibility (CPSR), no such difficulty was indicated. Realistically, is there in fact a problem in this regard so as to warrant the proposal of this legislation by the Administration?

Answer. Pursuant to a recent FOIA request by the Computer Professionals for Social Responsibility (CPSR), the FBI released information indicating that, during a specific time frame, a few FBI offices were not experiencing wiretap intercept problems caused by advanced technologies. CPRS has publicly stated that this information indicates there is NO present technological impediments to wiretaps. This assertion is false and misleading. The FBI did not release “positive information” which indicated specific problems. This positive information" was not released because it either identified ongoing investigations or specifically identified vulnerabilities in electronic surveillance associated with Criminal or National Security Investigations.

During a 1993 informal survey targeting technical problems encountered by law enforcement in conducting court ordered wiretaps, 91 instances were identified as incidents in which law enforcement was precluded, either partially or fully, from implementing the court order. In fact, in 1992, one state law enforcement agency advised the FBI that approximately 25 percent of its electronic surveillances were impeded by advanced telecommunications technology.

Question 18. The Committee believes that the legislation proposed by the administration will restrict the future development of digital telecommunications and possibly diminish economic competitiveness in terms of the world market. Please comment.

Answer. The legislation proposed will not restrict the future development of digital telephony. As a practical matter, it will have no impact on technological development at all. The purpose of the Administration's legislation is to preserve law enforcement access to court-authorized electronic surveillance and in no way affects future advances in technology.

Regarding economic competitiveness, other Governments throughout the world look to the United States as the world leader in telecommunications technology and development. Equally important, foreign governments also are interested in the ability of both government and law enforcement to gain lawful access to developing telecommunication systems for law enforcement purposes. In conferences held with other countries on this issue, these nations indicate they are following this issue in the United States with great interest as they seek to remedy this problem in their country.

Question 19. Can you describe how the current proposal will reduce the privacy of individuals?

Answer. The privacy of individuals will not be reduced. Digital telephony will enhance privacy by making it more difficult for any possible unauthorized wiretaps to occur. The standard for judicial authorization will not be changed. Law enforcement expects that there will be virtually no change in the numbers of intercepts performed annually.

Senator LEAHY. Chairman Edwards has just stepped out for a vote, as have our other colleagues from the House, but we will continue on with the hearing. I suspect the two of us will also have to vote from time to time.

Ms. Hazel Edwards is the Director of Information Resources Management and General Government from the General Accounting Office. Ms. Edwards, your testimony is very interesting in the questions it raises. Please go ahead, ma'am. STATEMENT OF HAZEL EDWARDS, DIRECTOR, INFORMATION RESOURCES MANAGEMENT/


Ms. EDWARDS. Thank you. Chairman Leahy, members of the committees, it is my pleasure to be here to discuss the proposed

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