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communications industry and others to provide "all information, facilities, and technical assistance necessary to accomplish that interception," 18'U.S.C. Sec. 2518(4) and 3124(a)(b); and

WHEREAS, the rapid and continual development of new telecommunications technologies and services present an ever increasing barrier to accomplishing the court-authorized electronic surveillance; and

WHEREAS, modifications to these new technologies and services are required to effectuate the intent of federal and state statutes to permit court-authorized electronic surveillance of the communications of persons engaged in serious and life threatening criminal conduct and protect the privacy of others; and

WHEREAS, the Digital Telephony and Communications Privacy Improvement Act (the “Act”) requires the telecommunications industry, when authorized by law, to provide law enforcement with the capability of intercepting the entire content of communications of persons engaged in criminal activities, regardless the technology involved; and

WHEREAS, the Act requires the Federal Bureau of Investigation to provide fiscal support for the telecommunications industry to achieve this capability; and

WHEREAS, the Act enhances privacy protection for individuals using emerging technologies,

THEREFORE BE IT RESOLVED, THAT, the National District Attorneys Associations supports the Digital Telephony and Communications Privacy Improvement Act; and

BE IT FURTHER RESOLVED, THAT, this Association urge the Congress to enact the Digital Telephony and Communications Privacy Improvement Act.

Adopted by the Board of Directors July 24, 1994 (Newport Beach, California)


ENFORCEMENT IN CONDUCTING ELECTRONIC SURVEILLANCE Last year, the Federal Bureau of Investigation, through an informal survey of Federal, state, and local law enforcement agencies, collected information regarding recent electronic surveillance court orders 1 that have been frustrated or delayed due to technology-based problems. Although this survey was conducted informally, the results provide valuable, and representative anecdotal information regarding the difficulties presently being encountered by law enforcement agencies. It would be a mistake to analyze this problem by simply counting the specific number of court orders frustrated or delayed in the past. However, by collecting and reviewing information regarding the recent problems, law enforcement agencies have come to understand the serious implications of the impacts of new and advanced technologies on their ability to conduct wiretaps, when law enforcement electronic surveillance requirements are omitted.

The survey revealed ninety-one (91) instances in which law enforcement agencies were prevented from fully implementing court orders for electronic surveillance due to various technological impediments. In reviewing the results of this survey, the following should be noted: • The survey was intended to collect information regarding recently encountered

problems only. • The results do not include technological problems that are outside of the cov

erage of the legislation, as drafted (e.g., intercepts of Private Branch Exchange

equipment). • The results do not include impediments created by cellular carriers offering

“roaming" service. • The results do not include situations where court orders were not sought due

to impediments known in the past to preclude effective execution of the court order. (for example, court orders not sought due to known cellular system port

capacity limitations) • The reference to encryption problems is a reference to carrier provided

encryption, and not user-employed encryption devices. Of the 91 instances of technological problems identified by law enforcement agencies, problems in cellular systems accounted for 40 with the inability to fully intercept cellular communications accounting for 24 instances. These problems ranged from a total inability on the part of the cellular provider to assist, to cellular sys

1 As used here, electronic surveillance court orders refer to all court orders for criminal and foreign surveillance interceptions which capture the communication content, as well as, to the acquisition of dialed number information through pen register or trap and trace devices.

tems that were not capable of isolating and collecting all of thee subject's telephone communications. For example, a Federal investigation of a major narcotics organization in the northeastern United States was hampered when the cellular carrier was unable to fulfill requests for court-ordered wiretaps due to the carrier's technical limitations. Also, an organized crime and drug trafficking task force investigation in the southeastern U.S. was unable to conduct a court-ordered wiretap because the carrier was unable to provide law enforcement with intercept access to the subject's long distance communications made through the cellular carrier's service. Difficulties caused by the "port capacities” of cellular systems accounted for another 10 problem instances. A cellular carrier in the south, for example, was unable to comply with a Federal court-order for dialed number information concerning a Federal public corruption investigation due to port capacity limitations. The remaining five problems with cellular systems involved the inability of cellular carriers to provide trap/trace information identifying the originator of a call transmitted through their systems. Calling features accounted for 29 problem instances, or approximately 32 percent. Of the features that created problems for law enforcement agencies, call forwarding and speed dialing were most prevalent. As an example, a regional telephone company in the mid-western U.S. was unable to provide a Federal law enforcement agency with either the content of the communications or the dialed number information concerning a subject drug trafficker's telephone as a result of the subjects use of custom calling features. Additionally, Custom Local Area Signaling Services (CLASS) such as "call back”, and “caller I.D.” also created problems.

Other problems reported by Federal, state, and local law enforcement agencies included difficulties with intercepting subjects' communications due to the use of digital voice lines (13), high speed data lines (1), fiber optic cables (1) and carrier provided encryption (1).

The attached chart provides a breakdown of the reported problems encountered by the various agencies.

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THE CLIPPER CHIP AND BEDROCK TELECOMMUNICATIONS PRIVACY As part of the Clipper Chip debate, Vice President Al Gore has wisely opened the door to studying alternatives. He would balance the avowed needs of law enforcement agencies with the needs of hi-tech industry to protect this Age's "gold”—the fruits of R&D, proprietary information that CEO's pray will keep their companies six months ahead of their competition—and secure from the probing surveillance of industrial spies. And beyond this, our Vice President would see realized a national information superhighway, an "advanced nationwide network that can link classrooms, electronic libraries, rural doctors and ordinary people in their own homes. A tall order.

Mitchell Kapor, the respected founder of Lotus Development concurs, pressing for broad public access to an information highway. But several months ago Mr. Kapor, in a NY Times article (Nov. 24, 1993, p: A15) cautioned, "People won't use the new technology unless they feel that their privacy is protected.”

Strictly speaking, he is quite right. The one billion phone calls made each day is no doubt based on such a feeling. Indeed the original Bell System monopoly was founded on “the expectation of privacy.”

And we have only to think of the furor raised by some civil libertarians in having caller I.D. reveal the phone number of the calling party just before the two parties speak. Surely their objection to the electronic equivalent of a peephole in a subscriber's door would not have been made unless it was "felt that the privacy of their phone conversation was assured. After all, with a wiretap a third party intercepts the conversation and eavesdrops upon every word.

Such an unwarranted feeling of security reminds one of the Tooth Fairy and Santa. For, as we know, a teenager with an off-the-shelf-computer linked to the phone network with a modem needs only the current password to tap in a presently technically undetectable manner-remote to any telephone exchange. A well-known, conscientious West Coast hacker put it this way:

Any phone line can be listened into from anywhere in the country: The equipment is inexpensive and the technique is known. There is no way for the people on the line to realize they are being monitored. Everybody from

your neighbor to Pacific Bell to the Secret Service is vulnerable. Sanford Sherizen, a Boston-based computer security consultant has a rule of thumb: “If you can communicate out, someone else can communicate in." Telecommunications privacy, a solution

The American Privacy Foundation (APF), founded in 1975 to achieve "Telecommunication Privacy in the Information Age" hereby proposes just that. Back in February of 1980 (Feb. 28] the long-time Director of MIT's Laboratory for Computer Science, Dr. Michael Dertouzos recommended to the Senate Judiciary "audit trails” as a means of incorporating privacy within the wire and fiberoptic network of pointto-point telecommunications. In fact, the Bell System and AT&T “since its inception” [Cíte: AT&T Security Chief William F. Caming, in a letter to Morton Bromfield at Bromfield Corporation dated May 11, 1972] has had an Open Door policy based on subscribers' expectation of privacy. It allows a complaint of phone tapping to be taken up through the ranks to the senior-most telephone official.1

The cruel reality of telecommunications privacy today is that it doesn't exist, for a subscriber worth listening to or for anyone else in or out of government. As a litmus test, complain to your phone company about a suspected wiretap, and you will be referred to the Federal Communications Commission. The F.C.C., disclaiming “jurisdiction over wiretapping matters" (Cite: FCC letter to American Privacy Foundation,

July 30, 1985), will refer you to the Federal Bureau of Investigation. The F.B.I.'s Office of Enforcement-having admitted in writing that since at least 1953, no professional tapper has ever been prosecuted (Cite: Letter to American Privacy Foundation from FBI Office of Enforcement, November 17, 1986)—will refer you to the phone company.

Neither the United States nor France nor Britain enjoys telecommunications privacy. Our global village instead shares easy wire tapping. France has its no-admission phone

tapping center at the Invalides, Britain at "Tinkerbell Two.” During Wa

1"As a matter of policy within the American Telephone and Telegraph System Companies, any Complaint with respect to a violation of secrecy of communications may be carried by a subscriber to the highest levels of the respective Corporation."

tergate we all knew that Washington's old Post Office was the tapping center. Today nobody knows. Well

, if nobody knows, does anyone care? In a way, yes. Libertarians unwittingly cry out demanding cellular phone protection—though broadcast radio waves are almost impossible to protect.

Is there hope? Well, yes. Protection is indeed possible by using the same basic technology employed by Caller I.D. and adapting it to telephone exchange safeguards. Here is the root for hope as published recently. “U.S. Backs Ending Fiber Optic Export Ban” (The NY Times, Dec. 11, 1993) explains the National Security Agency's interest in the matter:

The security agency's concern has been that fiber optics, which carry voice conversations and data as pulses of light over hair thin strands of glass are much more difficult to intercept than those carried by radio or

satellites. Washington's best kept secret

Of course the FCC's denial of wire tapping responsibility (which by the way blocked an "en banc" appearance before the FCC's Commissioners) is much like the FAA denying responsibility for air safety. The FBI's non-prosecution of professional wiretappers for forty years or more-while pursuing hackers avidly-is odder still. A non-sinister explanation comes from the pen of John Kenneth Galbraith: “Very often,” he wrote, a government agency becomes “the captive” of the very industry it is intended to regulate. In this instance, we are concerned with the business indeed the industry—of industrial spying. A somewhat sinister explanation comes from an article by David Kahn, the author of the brilliantly written Codebreakers: He quotes a Senator's aide, “Let me tap a Senator's phone for three weeks and I will own him.

In my view, whatever federal procedures evolve from these Clipper Chip hearings, trust in Government should be minimized—and for good reason. The relentless history of wire tapping began just 60 years ago with The Communications Act of 1934. It was needlessly crippled by borrowing a non-applicable clause from the Radio Act of 1927, requiring not only proof of interception but also “divulgence.” (None of the states has such a requirement.) For 34 years enforcement was made virtually impossible.

Although the 1968 Omnibus Crime Bill removed proof of divulgence, enforcement against the professional tapper continued to languish. Fifteen years earlier, without notifying Congress and without mandatory Notification in The Federal Register, the FBI literally usurped the considerable power to investigate subscriber complaints of wire tapping (Cite: Dial 1.984). Vance Packard, author of The Naked Society, in finding incredible evasiveness” at the FCC was moved to comment that the FBI, with phone tapping operations of its own, was hardly the agency to police wire tapping.

The 1968 Crime Bill was meant to control government tapping. It wisely had provisions to determine its effectiveness. Four years later the National Wiretap Commission came into being. APF co-founder Harvard Law Professor Vern Countryman, reinforced by the Committee's Chief Counsel Mike Hershman requested permission for expert testimony on the ease of wiretapping through telephone exchanges in slated hearings. The Slated hearings were summarily cancelled. As Professor Sam Dash explained: “It was a phony committee."

Putting relentless tapping in perspective, although an anti-wire tapping device was patented within ten years of Alexander Bell's invention, there has never been a successful government investigation. The closest our government came was in 1985, with Congress' Office of Technology Assessment 142 year study “Electronic Surveillance and Civil Liberties.” Assistant Director Dr. John Andelin, so as to underscore an unprecedented warning to Congress, as its foremost conclusion admitted failure: "The extent of use of electronic surveillance in the private sector is unknown." Fair warning

On January first 1984, despite the submission of similar Invited Comment briefs (under Tunney Act procedures) to Judge Harold Greene by this Foundation and the ACLU in connection with the divestiture of AT&T, a privacy lobotomy occurred. AT&T's Open Door policy—a mere 38 words [See Footnote of Open Door Policy on page two. was deliberately excluded from the charters of the regional Bells. On that day, a world recognized futurist's political warning was fulfilled: "The could plug in your wire whenever the wanted.” (Cite: 1984.)

Clearly existing tapping control procedures are a charade. (How, for example, did Hoover accumulate 280 file drawers of dossiers (cite: DIAL 1-9-8-4].) Those that distrust contemplated government procedures have ample reasons. One could depict

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