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Syracuse University College of Law,
Twin-cities Free Net,
University of California, Irvine,
University of Colorado,
Sensor Systems Inc.,
Computers & Security,
University of Georgia,
CyberLaw & Cyber Lex,
Public Access Networks Corp.,
Pace University Law School.
MATT L. RODRIGUEZ,
Major Cities Chiefs, March 16, 1994.
For years, court-authorized electronic surveillance has been one of law enforcement's most potent weapons against drug traffickers, organized crime figures, terrorists other offenders. Now, with the emergence of digital telephony, this tool is being seriously threatened.
As you may know, digitally coded communications are extremely difficult to intercept with existing technology. Despite this limitation, the telecommunications industry remains unwilling to invest in the necessary software that would allow police agencies to conduct wiretaps of digital communications. As this new technology becomes more commonplace, law effectiveness—and, ultimately, the safety of the public—will be jeopardized something is not done and done quickly.
The Major Cities Chiefs Association, a professional organization of police executives representing the 49 largest metropolitan areas in the United States and Canada, is extremely concerned with this situation. Onbehalf of our membership, I am writing to urge Congress to pass appropriate legislation that would ensure law enforcement agencies the ability to conduct court-authorized electronic surveillance in conjunction with digital telephony.
The FBI and other federal agencies have taken the lead in advocating such legislation in recent years, because electronic surveillance is so important to their investigatory and enforcement activities. Wiretaps were instrumental in the identification, apprehension and prosecution of the terrorists recently convicted in the World Trade Center bombings.
But electronic surveillance is a critical tool for local law enforcement agencies as well. Most wiretaps are conducted at the local level, targeting serious problems of crime, violence and drug abuse in our neighborhoods. In cities across the country, thousands of dangerous offenders have been apprehended and enormous quantities of illegal drugs and firearms have been seized as a direct result of court-authorized wiretaps.
Two years ago, for example, Chicago police relied heavily on electronic surveillance to break up a major drug trafficking ring on the City's South Side. Operation Englewood resulted in the indictment of eight high-level dealers (including a major supplier who lived outside the neighborhood), the seizure of significant quantities of cocaine, and the forfeiture of 12 pieces of real estate, five businesses, 25 vehicles and an airplane. More importantly, the mission dealt such a severe blow to drugdealing operations in this traditionally high-crime neighborhood that activity has never returned to its former pace.
Our success in this and countless other operations would have been impossible without the availability of court-authorized wiretaps. In complex cases where infiltration of criminal enterprises is so crucial, information simply cannot be obtained by any other method than electronic surveillance. And without information, law enforcement will never be able to build the cases that have a lasting impact on drug trafficking, domestic terrorism, extortion and other forms of serious, violent crime.
What law enforcement is seeking is nothing more than a continuation of the closely monitored and well regulated electronic surveillance capability we have used in the past. We are not looking to expand our authority in this area. The Major Cities Chiefs and other law enforcement professionals recognize the personal privacy rights of our citizens, and we understand and support the need for strong judicial oversight of the use of wiretaps. We are merely trying to ensure a level playing field for the future.
The situation is urgent. The federal government has been trying for four years to obtain the cooperation of the telecommunications industry, without positive results. We cannot wait any longer. Digital telephony is expanding so rapidly that without immediate research and development of compatible electronic surveillance software, effective law enforcement at the local level, not to mention national security, will be threatened.
The Major Cities Chiefs Association urges you and your colleagues to support legislation that ensures law enforcement agencies will continue to have the electronic surveillance tools that we have used so judiciously and successfully in the past. Sincerely,
MATT L. RODRIGUEZ,
Chicago Police Department.
INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE,
Alexandria, VA, March 17, 1994. Hon. DON EDWARDS, Subcommittee on Civil and Constitutional Rights, Washington, DC.
DEAR CHAIRMAN EDWARDS: While the International Association of Chiefs of Police was not asked to testify at the March 18 Senate Subcommittee on Technology and the Law/House Subcommittee on Civil and Constitutional Rights joint hearing on Digital Telephony, we stand in strong support of the FBI position on this issue which will be offered in Director Freeh's testimony.
Recently, I was disturbed to find an article on this issue_law enforcement's ability to conduct wiretaps on the Business page of the Washington Post March 12, 1994 edition. The article should have appeared on the front page as a national security and public safety issue.
Apparently a telephone and computer business coalition objects to the idea of assisting law enforcement in its efforts to protect the public from terrorists, drug dealers and organized crime activities.
The big companies are resisting cooperation on this issue ostensibly in order to promote public confidence in the privacy of new communication technologies. The facts are that these companies would have to go to additional expense in designing their new technologies, which they are unwilling to do.
The new digital technology greatly enhances telecommunications, but it renders obsolete the ability of law enforcement to implement court ordered wiretaps. Law enforcement rarely conducts wiretaps in this country, and when they are done, it is with the approval of a judge who has reviewed a detailed request. To wiretap without such prior approval is illegal, and any information obtained from an illegal tap is inadmissible.
No one is asking for more authority to conduct wiretaps—just the ability to perform the ones that are authorized. These telecommunications company executives should be working with FBI Director Louis Freeh to solve a very serious problem rather than writing him memos about how their businesses could be impacted.
These executives should be willing to make the same investment in public safety and crime prevention as they do in their telecommunications equipment.
Let's not afford criminals additional opportunities to conduct illegal activity unfettered by law enforcement. The next time we experience terrorist activity like the death and destruction at the World Trade Center or the attempted bombing of the tunnels in New York, who should we call when an authorized wiretap cannot be executed—the phone company?
The IACP and its many thousands of members nationwide urge you to examine this issue from the perspective of its critical relevance to public safety and adopt law enforcement's position regarding digital telephony. Sincerely,
CHIEF, SYLVESTER DAUGHTRY, JR.,
Washington, DC, September 22, 1994. Hon. DON EDWARDS, U.S. House of Representatives, Washington, DC.
DEAR CONGRESSMAN: The Organization for the Protection and Advancement of Small Telephone Companies (OPASTCO) is writing to express some of the concerns that it has with H.R. 4922. This legislation, which clarifies a telecommunications carrier's duty to cooperate in the interception of communications for law enforcement purposes, presents some serious issues for local exchange carriers, especially those that serve rural areas.
OPASTCO is a national trade association of more than 445 independently owned and operated telephone companies serving rural areas of the United States and Canada. Its members, which include both commercial companies and cooperatives, together serve over two million customers. OPASTCO is concerned about the effects that some of the requirements of this legislation will have on its members and their customers.
First and foremost, OPASTCO questions the necessity of this legislation. According to the testimony of Roy Neel, president of the United States Telephone Association, a survey of FBI offices indicates that FBI agents have not encountered any technology-based problems in conducting wiretaps in recent years. Furthermore, it appears that the biggest problem may be the capacity limitations in the wireless and cellular environment. Thus, it does not necessarily follow that the solution to that problem must include provisions that may require a (local exchange carrier) LEC to upgrade its network before it is appropriate.
In addition to the fact that this legislation is probably unnecessary, it imposes unwarranted burdens on LECs. One such burden is increased costs. These extra costs will be particularly burdensome for small and rural LECs. This legislation also does not have sufficient protection against government requirements that may be unreasonable. The scope of the coverage also raises some problems. These are a few of the provisions that create the greatest concern for the small LEC industry.
Satisfying the requirements of this legislation will be costly to small and rural LECs. The FBI indicates that the cost to accommodate these provisions is approximately $500 million. Other sources indicate that this estimate is woefully short of the true cost to the industry. Thus, who will cover these costs if the FBI's estimates are inadequate? The logical assumption is that it will be the carriers' responsibility, and ultimately that of the ratepayer.
Many small and rural LECs would face severe hardship in order to comply with the requirements of this legislative proposal. Their ability to raise the necessary capital to satisfy the requirements of this legislation is circumscribed by the fact that they serve low density, high cost areas. It is imperative that this legislation ensures that LECs are compensated for complying with this legislation.
OPASTCO believes that there should be some reasonable restrictions placed on the government's access to information. OPASTCO is concerned that, without limitations, the government's requests of the LECs may increase dramatically. For example, the Drug Enforcement Agency recently requested that a LEC supply the "identity of published and unlisted residential and business telephone * * by area code, and telephone number, together with first name, last name (company name), address, city and state for all published and unlisted residential and business telephones in the service area ***" Such a request is excessive. And without limitations, there is no reason to believe that these excessive, and expensive requests will not continue unabated. One way to solve this problem is to require the government
to establish priorities and budget for its requests. This would limit requests to those that are reasonable. Moreover, it would enable the government to compensate carriers for satisfying those requests.
This legislation covers only a portion of the telecommunications traffic. Only those communications that are carried on the public switched network will be accessible to law enforcement officials under this legislation. Private networks are not subject to the requirements of this legislation. Thus, if users find a way to divert their traffic to the "secure” private network, then the effort and cost of making the public network accessible to law enforcement officials will have been all for naught. Additionally, this potential loss of users from the public switched network to the more secure private network may impede the development of the national information infrastructure.
OPASTCO believes that this far-reaching legislation is not necessary. Notwithstanding that position, OPASTCO believes that Congress is intent upon its passage. The ramifications of this legislation are great and OPASTCO has many concerns that transcend the scope of this letter. However, these are the most pressing issues for small LECs. OPASTCO urges Congress to address at least these issues as it contemplates this legislation. Sincerely,
JOHN N. ROSE,
NATIONAL ASSOCIATION OF ATTORNEYS GENERAL,
Washington, DC, March 17, 1994. Hon. PATRICK J. LEAHY, Subcommittee on Technology and the Law, U.S. Senate, Washington, DC. Hon. DON EDWARDS, Subcommittee on Civil and Constitutional Rights, U.S. House of Representatives, Washington, DC.
DEAR CHAIRMAN LEAHY AND CHAIRMAN EDWARDS: The purpose of this letter is to express the support of the National Association of Attorneys General (NAAG) for legislation that would clarify the responsibility of the telecommunications industry to continue to assist law enforcement with court-authorized electronic surveillance despite advancing technologies. In 1992, the Association adopted a resolution supporting such legislation. The resolution is attached hereto. We understand that you will hold a joint hearing on March 18, 1994 with respect to this matter, and we respectfully request that this letter and the attached resolution be made a part of the hearing record.
The court-authorized interception of certain targeted communications is crucial to law enforcement's ability to investigate and prosecute individuals involved in criminal conduct. The lawful efforts of state and local law enforcement agencies in conducting court-authorized wiretaps has been threatened by the introduction of advanced technologies, including digital telephony, which facilitate transmission of multiple commingled communications and thus render law enforcement incapable of intercepting specific communications to the exclusion of all others. These new technologies must therefore be modified if law enforcement is to remain capable of using the highly effective tool of electronic surveillance.
Significantly, NAAG does not seek an expansion of the authority of law enforcement to conduct court-authorized electronic surveillance, nor does NAAG seek streamlining of the procedures that must be undertaken to conduct such surveillance. Rather, state and local law enforcement seeks only to preserve the ability to do that which they already have the authority to do pursuant to federal and state statutes.
Federal law requires the telecommunications industry to provide law enforcement with "all information, facilities, and technical assistance necessary to accomplish the interception.” 18 U.S.C. $2518(4) and 3124(a)(b). The National Association of Attorneys General urges the clarification of this responsibility, as it relates to new and advanced technologies, through the passage of federal legislation requiring telecommunications providers, when authorized by law, to provide law enforcement with the capability of intercepting targeted communications of persons engaged in criminal conduct, to the exclusion of all other communications.
The Association appreciates your consideration of this issue which is so important for law enforcement. Sincerely,
HUBERT H. HUMPHREY III,
President, Attorney General of Minnesota, National Association of Attorneys General.
COMPUTER PROFESSIONALS FOR SOCIAL RESPONSIBILITY,
Washington, DC, March 18, 1994. Hon. PATRICK J. LEAHY, Subcommittee on Technology and Law, U.S. Senate, Washington, DC. Congressman DON EDWARDS, Subcommittee on Civil and Constitutional Rights, U.S. House Office Building, Washington, DC.
DEAR SENATOR LEAHY AND CONGRESSMAN EDWARDS: I am writing to you on behalf of CPSR to express our support for your public hearings on the FBI Digital Telephony plan and the Clipper Chip. Both proposals raise long-term concerns about the future of communications privacy in the United States.
CPSR has a particular interest in these matters. As an organization of professionals in the computing field, we have a long-standing concern that new technologies be designed to provide strong privacy protection for networkusers. Privacy protection is a necessary condition for the successful deployment of advanced network technologies. Proposals that limit privacy protection will ultimately slow the development of advanced networks.
In late January we sent a letter to the White House, signed by many of the most distinguished cryptographers in the United States, asking
that the Clipper proposal be withdrawn. (See attached). In the past month nearly 50,000 network users have added their names to that letter. If more people understood the implications of the Clipper plan, the number could easily be 500,000.
During the last-several years, we have also conducted extensive Freedom of Information Act litigation regarding the Clipper proposal and the Digital Telephony proposal. Documents disclosed as a result of our FOIA litigation have raised Directors substantial doubts about some of the claims made by the government in support of these initiatives.
This letter highlights our findings. The Clipper proposal • The National Security Agency usurped the authority of the Department of Com
merce and violated the Computer Security Act of 1987 in the development of the Clipper plan. The original Commerce Department plan to develop open, unclassified standards for public key cryptography was revised by the National Security Agency. The NSA substituted a hardware-based, classified standard o that certain surveillance features could be incorporated (CPSR v. National In
stitute of Standards and Technology, No. 92–0972, D.D.C.) • The National Security Agency, not the National Institute of Standards and
Technology, has dominated the process of developing security standards for ci
vilian communications. • A related technical standard for "digital signatures” was purposefully designed
by the NSA to minimize its privacy capabilities. • The FBI and the NSA worked jointly on the development of the Clipper pro
posal and the Digital Telephony plan (CPSR v. FBI, 92-2117, D.D.C.) • Many of these problems with the development of technical standards arose be
cause a national security directive issued by President Bush bolstered the authority of the NSA at the expense of the Department of Commerce (CPSR v.
Department of Defense and National Security Council, No. 91–13.) A good deal of relevant information continues to be withheld by the government. The Digital Telephony proposal • The General Services Administration and the National Telecommunications and
Information Administration both opposed an earlier version of the Digital Telephony plan and cited potential threats to national security if the proposal went forward.