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as probable cause, the need for impartial judicial review and a warrant, particularity as to the object of the search, prompt execution of the electronic search, etc.), Congress also specified that electronic surveillance could be used, generally speaking, only as a last resort (when other investigative techniques failed or were too dangerous); only for serious felony offenses; and only for specific criminal communications. The acquisition of noncriminal, nonrelevant communications is forbidden and such communications must be carefully minimized.
Congress has also enacted an electronic surveillance regimen for use in intelligence based investigations, the foreign intelligence surveillance act of 1978 (FISA), codified at 50 U.S.C. 1801-1811. Contrary to the assertions of some, electronic surveillance conducted pursuant to Title III or FISA may not be (and are not) employed against individuals exercising their first amendment rights, such as by engaging in unpopular, political, or antigovernmental discourse.
Ån objective review and assessment of the Title III and FISA statutes, and of the conduct of electronic surveillance by law enforcement pursuant to these statutes, indicate that electronic surveillance has been conducted sparingly, judiciously, and in compliance with the letter of the law and the spirit of Congress' intent. As demonstrated by the lives saved and important investigations and prosecutions successfully completed, the Title III statutory regimen has served both society and law enforcement extremely well. Moreover, after 25 years of usage, there is no evidence of significant abuse. Statistics compiled by the FBI, which is charged with investigating violations of the Federal "wiretap" statute based upon acts of illegal electronic surveillance and wiretapping, indicate that instances of illegal wiretapping are very, very rare.
ELECTRONIC SURVEILLANCE TECHNICAL ASSISTANCE When the Title III legislation was enacted by Congress in 1968, there was no specific provision for technical or other assistance to law enforcement. With regard to wire communications, law enforcement necessarily relies upon the telecommunication service provider's assistance in identifying the target's wire pairs and their line "appearances," and upon the service provider's furnishing of leased lines to enable the intercepted communications to be transmitted to a secure, law enforcement monitoring facility.
Although the service provider assistance requirement was thought to be self-evident and implicit in the Title III legislation, certain service providers initially resisted providing law enforcement with needed assistance, even when directed to do so by court order. See, e.g., Application of United States, 427 F.2d 639 (9th cir. 1970). as a result, Congress was compelled to amend the Title III statute in 1970 and expressly fix the assistance responsibility therein. The assistance provision, as amended, and codified at 18 U.S.C. 2518(4), states:
An order authorizing the interception of a wire, oral, or electronic communication under this chapter shall, upon request of the applicant, direct that a provider of wire or electronic communication service, landlord, custodian or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such service provider, landlord, custodian, or person is according the person whose communications are to be intercepted. any provider of wire or electronic communication service, landlord, custodian or other person furnishing such facilities or technical assistance shall be compensated therefore by the applicant for reasonable expenses incurred in providing such facilities
or assistance. (emphasis added) The FISA statute, enacted in 1978, contains a similar assistance provision, codified at 50 U.S.C. 1805(b)(2). So also do the pen register and trap and trace statutes. See 18 U.S.C. 3124(a)(b).
It is very important to understand that telephone companies historically have been extremely conservative, and often have declined to provide law enforcement with necessary technical assistance, even when served with court orders. For example, some telephone companies initially resisted providing law enforcement with even minor "leased line" assistance to allow law enforcement to carry out a pen register investigation, although served with a Federal search warrant.
This resistance to pen register assistance was removed by the Supreme Court in United States v. New York Telephone Co., 434 U.S. 159 (1977). Some telephone companies also resisted providing relatively minor assistance to effect a trap and trace of dialed number information when served with a Federal court order. Federal court of appeals action was required to obtain such trap and trace assistance to trace dialed number
information. United States v. Mountain States Telephone and Telegraph Company, 616 F.2d 1122 (9th cir. 1980); In re application of United States, 610 F.2d 1148 (3rd cir. 1979); Michigan Bell Telephone Company v. United States, 565 F.2d 385 (6th cir. 1977). The lesson from such incidents is clear: Some telecommunications companies, including common carriers, who are concerned with their legal liabilities will act only when the law is clear as to their responsibilities and when presented with a court order.
In the areas of pen registers and trap and trace devices, courts have required telecommunication service providers to extend technical and physical assistance to law enforcement, in order to effectuate court orders. There are, however, no Federal cases construing the Title III or FISA statutory "assistance” provisions. Attorneys who have analyzed these assistance provisions believe that their current language does not clearly mandate that service providers affirmative must take any steps or develop any technical solutions to accommodate or effectuate a court's electronic surveillance order. Thus, the issue as to the nature and extent of service provider assistance remains an open, and often hotly debated, question.
The question has been raised by some if requesting or requiring greater electronic surveillance technical assistance of service providers to carry out a court order through either hardware- or software-based modifications or developments extends law enforcement's authority. There appears to be general agreement within the government and industry that this would not extend law enforcement's electronic surveillance authority. This agreement extends to law enforcement's legal authority or entitlement to obtain the content of a criminal target's communications or dialed number information transmitted via a telecommunications network.
Some have stated that requiring telecommunication service providers to expend additional technical or monetary resources, even pursuant to court order, to help law enforcement effect electronic surveillance is unwarranted or unprecedented.
However, historically telecommunication service providers have been required to alter their operations and activities to meet law enforcement requirements. For example, service providers have been required by regulation to maintain telephone toll records longer than operationally necessary, and generally they dedicate time, human resources, and hence money, to provide law enforcement agencies with such subscriber information. Further, by way of precedent, Congress has enacted public safety/public welfare legislation concerning telecommunication service providers in the area of interoperable equipment to assist the hearing-impaired and in the area of telephonically transmitted pornographic communications (so called “dial-a-porn"). Also, many localities require by law that the telecommunication local exchange carriers provide “911" emergency service, the cost of which is passed on to all subscribers.
Within the United States, there are numerous other public safety/public welfare laws and regulations which affect a number of industries and businesses and mandate technical efforts and monetary expenses (e.g., required sprinkler systems, smoke detectors, fire alarms, fire escapes, etc., in offices, factories, apartment complexes, etc.; safety belts, “air bags,” catalytic converters, and emission control devices in vehicles). On balance, when law enforcement's court-ordered use of electronic surveillance is viewed in terms of its important, and even critical, utility in preventing and solving crimes, and as a public safety requirement, there can be no serious doubt that a policy decision requiring such technical assistance by law is consistent with past societal and governmental practices.
SUMMARY OF TECHNOLOGICAL IMPEDIMENTS Prior to 1984, the majority of local and long distance telecommunications were carried by AT&T, which held a virtual monopoly on these services. This resulted in an homogeneous network in which the technologies used to conduct business were the same throughout the network. Additionally,
because of an absence of competition, new technologies were introduced slowly and by only a small number of manufacturers.
Since the divestiture of AT&T in 1984, the number of service providers, as well as the diversity of technologies, has grown rapidly and dramatically. For example, the number of carriers providing local telephone service is now over 1,400. A September 1992 decision by the Federal Communications Commission is facilitating even greater competition in this area. As a result, the industry will begin to see new providers of service and already has begun to see new business partnerships among existing service providers. Also, the number of long distance carriers has grown from essentially one in 1984 to over 300 today. With the advent of wireless technologies, such as cellular, the number of service providers grew again. Today, there are over 160 cellular service providers. The introduction of new technologies, as well
as actions taken by the Federal courts and the Federal Communications Commission, have resulted in greater numbers and more diversity among service providers. As a result, law enforcement agencies have had to work with many different service providers to obtain the assistance necessary to conduct wiretaps. Numerous situations have arisen where service providers who were inexperienced with court authorized wiretaps have been unable to provide assistance to law enforcement agencies because of a lack of understanding of the legitimate requirements of law enforcement.
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. Historically, these communications have been transmitted over common carrier facilities, such as telephone wires that were dedicated to a customer's specific telephone number (often referred to as a subscriber's "loop"). In the past, when law enforcement agencies conducted court-authorized electronic surveillance or "wiretaps” on a subject's traditional “local loop,” they were virtually assured of intercepting the content of all communications (as well as the related dialing information) associated with the subject's telephone number set forth in the court order.
Over recent years, advances in telecommunications technologies, as well as the increasing number of common carriers (approximately 2,000) entering the telecommunications marketplace, have introduced new sophisticated services and features that allow for the efficient transmission of multiple, simultaneous communications of multiple subscribers. Such communications are transmitted over fiber optic lines and wire facilities that previously were dedicated to a single communication and a single subscriber. Other advanced communications services (such as cellular telephones) and features (such as call forwarding which permits customers to redirect calls intended for them) undermine the necessity for communications to be transmitted always to the same specific location or through the same wireline loop. Likewise, "follow-me” features and services expand the notion of call forwarding to national proportions. Further, common carriers' deployment of the Personal Commu. nications Services (PCS) in the near future will enable users to define their own set of subscribed services, use any fixed or mobile terminal or telephone instrument, and initiate and receive calls across multiple networks without regard to their geographic location. All of these “follow-me-type" services, in effect, disassociate a subscriber's number from a fixed local loop. Thus, law enforcement's ability to conduct successfully court-ordered electronic surveillance is greatly hampered.
As a result of these and other new and advanced technologies, common carriers are no longer able to ensure their ability
to isolate specific communications (and dialing information) associated with the subjects of court-ordered surveillance, to the exclusion of all other subscribers' communications and dialing information. Industry representatives rave bluntly told law enforcement that the existing telecommunications systems and networks will thwart court authorized intercepts. The abovedescribed services and features and the new telecommunication systems planned for future implementation, both in their current and planned configurations, often prevent, and will continue to prevent common carriers from providing law enforcement with access to all of the communications and dialing information that are the subject of electronic surveillance and pen register court orders.
The attached charts (past operating environment, present operating environment, and future operating environment) depict the increasingly complex telecommunications environment in which law enforcement has operated and will continue to operate when attempting to execute court-authorized electronic surveillances.
Over the last decade, it is conservatively estimated that several hundred electronic surveillance and pen register and trap and trace court orders have been frustrated, in whole or in part, by various technological impediments. During 1993, the FBI, through an informal survey of Federal, State, and local law enforcement, collected information regarding the execution of recent electronic surveillance court orders (including authorizations for call content, pen register, and trap and trace) in order to gauge how many court orders have been frustrated or delayed due to technology-based problems. The survey revealed 91 instances in which law enforcement agencies participating in the survey were precluded from implementing or fully implementing court orders for electronic surveillance due to various technological impediments. The majority of the problems were encountered during attempts to execute orders regarding electronic
surveillance activities relating to cellular telephone systems (33 percent) and "fixed” or wireline communications that employed custom calling features (32 percent). With respect to cellular systems, problems have ranged from a technical inability on the part of the cellular common carrier to assist law enforcement, to cellular systems that were not capable of isolating and collecting communications and/or pen register information (dialed numbers) associated with
subject's telephone communications. A separate category of technical problems associated with cellular systems relates to the inability of some cellular carriers to comply with court orders due to a limited capacity associated with the carrier's particular system (11 percent). The following are examples to illustrate some of the impediments encountered: 1) A federal investigation of a major narcotics organization operating in the
northeastern United States 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 south
eastern U.S. was unable to conduct a court-ordered wiretap as the cellular telephone service provider was unable to provide law enforcement with access to the subject's long distance communications made through the providers cel
lular 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 a suspected drug trafficker's cellular telephone. 4) A regional telephone company in the mid-western U.S. was unable to provide
a federal law enforcement agency with the content and dialed number information from a suspected drug traffickers telephone as a result of the subjects
use of custom calling features. 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 corrup
tion investigation due to technical limitations. It is important to note that there have been many instances where court orders have not been sought or served on carriers due to law enforcement's awareness of these preexisting impediments, and therefore they were not tabulated in connection with this survey. Included in a recent letter from the director of a high intensity drug trafficking area (HIDTA) it was noted that a Federal law enforcement agency did not pursue twenty-five court orders because of the known inabilities of the cellular service provider to effectuate such orders.
However, it would be a mistake to analyze and respond to this problem simply by attempting to count the specific number of court orders frustrated or delayed in the past. Although they convey a sense of the problem, and identify some of the technical problems that are being encountered as a result of recent telecommunications technology advances, focusing on these numbers and technologies alone is terribly misleading. Fortunately, the number of court-ordered interceptions that have been impeded by technology is still somewhat limited. However, the telecommunications technologies that are emerging will likely have a much greater and more devastating impact on law enforcement's ability to conduct court-ordered electronic surveillance in the future.
FBI/GOVERNMENT EFFORTS TO OBTAIN TELECOMMUNICATIONS INDUSTRY'S
COOPERATION/SOLUTIONS For almost four years, the government has attempted to resolve the technical issues associated with court-ordered electronic surveillance by meeting with various representatives of the telecommunications industry at virtually all corporate levels. Historically, law enforcement's interface with this industry has been through the security organization of the common carrier. It is this interface that previously has been most knowledgeable of law enforcement's electronic surveillance requirements, as they receive court orders requiring them to assist law enforcement with their electronic surveillance responsibilities. However, it was learned in 1990, during discussions with the industry, that the security entities within the common carrier companies were not routinely involved in the industry's technology planning, design, and development processes. As a result, law enforcement's needs were not being incorporated into the carriers' system requirements.
In an attempt to have law enforcement's requirements considered during the industry's planning processes, the government systematically met with the most senior levels of the traditional common carriers and briefed them about the difficulties being encountered by law enforcement and about our concerns that future technologies would severely diminish, if not preclude, this critical investigative technique. Although these executives appeared supportive of law enforcement's goals, several of them indicated that without some sort of mandate, such as legislation, their companies could not unilaterally invest time, money, and technical resources
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in developing and implementing solutions, especially if there were no assurance that their competitors would do so.
On January 15, 1992, then President Bush authorized the Justice Department to proceed with a legislative initiative. On March 6, 1992, the digital telephony legislation was announced, and the industry response was generally negative, a position that was at variance with that expressed previously by a number of the representatives of the telecommunications companies. On March 18, 1992, then Attorney General William Barr and then FBI Director William S. Sessions sponsored and chaired a meeting for all major industry executives. It was attended by four telecommunications executives, representing the industry. During this meeting, telecommunications executives asserted that the FBI had been talking to the wrong people in industry (the security officers, senior executives, etc.) and that the solution to these problems rested with those upper/mid-level managers and engineers who oversaw development/implementation of the technologies in question. The Attorney General agreed to an industry request that a telecommunications technical committee consisting of the “right industry people" (picked by the CEOS) be created to identify technical solutions and to get the job done. It was also clearly understood that the administration and law enforcement would continue to pursue legislation.
As a result of the March 18, 1992, meeting, industry representatives met with the government on March 26, 1992, to begin a process of establishing a technical working committee to address technical impediments to electronic surveillance. In May of 1992, an ad hoc technical working group began. This group was later organized as the electronic communication service providers committee under an industry association now known as the Alliance for Telecommunications Industry Solutions (ATIS). This committee consists of representatives of electronic communication service providers (e.g. common carriers), telecommunications equipment manufacturers, and law enforcement officials, who attend voluntarily and with varying degrees of regularity and interest. As a result of this process, over the past two years there has been a better understanding by both law enforcement and industry representatives of the issues that each face with respect to electronic surveillance. However, contrary to assertions, new telecommunications technologies will jeopardize law enforcement's surveillance abilities. The ATIS chairman has stated in a recent letter that the entire committee, not just one participant or one group of participants, now recognizes the problems and impediments that these telecommunications technologies are creating for law enforcement. A copy of our correspondence with the ATIS chairman is attacked as an exhibit.
I support continued dialog between industry and law enforcement. However, it must be recognized that this committee process is voluntary and, as such, only those companies who are committed to assisting law enforcement participate and support this effort. Second, only a handful of the over 2,000 companies attend. Third, no implementable solutions have been developed since discussions began almost two years ago. Fourth, committee resolutions are nonbinding and it is not possible to secure a commitment from participants to implement any solutions that may be developed in this voluntary forum. Finally, as in any business decision, it is recognized that there will be costs incurred by industry to accommodate law enforcement's requirements. The ATIS chairman has also indicated that antitrust and other legal considerations preclude discussions and resolutions to these cost issues. In light of these limitations, the administration and all of law enforcement have concluded that the committee process is not, and cannot be, a substitute for a legislative mandate to ensure law enforcement's continued ability to conduct court-authorized electronic surveillance.
PRESIDENTIAL REVIEW DIRECTIVE (PRD) In April 1993, President Clinton directed that an interagency working group be established under the auspices of the National Security Council (NSC) to examine advanced telephony and to consider its effect and impact on the conduct of electronic surveillance by our nation's law enforcement and intelligence agencies. After an indepth eight month study, the NSC provided a number of policy options for the Vice President and appropriate cabinet officials. As a result of their review of the options, it was unanimously decided that comprehensive legislation was the only effective way to deal with the "digital telephony problem. Fundamental to this decision was the belief that it would be unacceptable for the safety of the American public to be imperiled, the national security endangered, and effective law enforcement eroded through the loss or diminishment of this critical and essential tool of our nation's law enforcement and intelligence agencies.