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of eiectronic communicii lelertronic cornmunications service providers must design tot sys!!75.680 wiew and ensure FB! accross, trien the resulting mar:10:07 “Xora'...?, boson.eknown loand be exploiteri by criminals. Burs..sa stabilly asimpting to achieve greater security in its communice16lucamata te !!'re<3 poxd by unautówrizei access, comproter viruses, srout picctronic Itali. Aprel the FBI seeks to justify in terms of iaw priceC:!

Nouri walivadhe efier:t of facilitating violations al lav and reducir:g or practin fiective serurity measures. Threat to Intcmational Trade and Security Interests. As drafted, the proposal uppears to threaten U.S. interests in international trade and competitivetiess. Potential purchasers abroad nay not buy products or systems that they know have a "trap door" the United States Governmen! can easily open. IfÚ.S.minufacturers of communications systems and equiptrent and computer software have to go through a bureaucratic certification or clearance process that is not applicable to their foreign competitors, their rice to the market with new technologies will be slowed and their products and designs will be disadvantaged. Legitimate Law Enforcement Concerns Should Be Served. There is no doubt that authorized wiretapping is an inportant weapon properly used by the FBI to fight serious crime. And there is generaicgreereni among communications service providers, and the makers of communications and computing equipmer.l, that the FB! is entitied is full cooperation ia its efforts to exercise the powers granted to it in the wireiap statute. If new ter:hnologies require changes in police tactics, then accox.modations may be needed on all sides to make sure that new tactice that do not threaten the effectiveness or safety of law enforcemert (or unreasonably threaten privacy interests) are available. The FBI proposal has served a valuable purpose in drawing attention to the need for adequate planning and retoubled cooperative efforts. It Is Too Soon to Know it Legislation Will He Necessary. Despite the good intentions underlying the FB proposal, there is certainly no demonstrated need to hair.per U.S.technological advances, harm the competitiveness of the U.S.communicatio:ts or computer industries, or hinder efiorts by business to increase complet security. nisi to make sure that law enfore ment officials can coc:tirue indefinitely to use the same equipment and procedures tut were appropriate for an earlie: technology. There has as yet been no clent showing that the design of new bydl:nologirs will not permit reasonable, affordable and effative techniques to be used for anthorized interception. There has been 110 showing chai che industry wili nct or carunt cooperate fully, share technical informatior under appropriate proiectio. Congress shouid reject and even design and supply now equipment at reasonable cosi, irsofos as the FBI proposal these steps prove necessary for the FBI to accompish its mission. There has beer. no ciear showing that any capacity limitations could not readiy be

and encourage remedied with the provision of adequate finansing for governinent low continuing discussions.... enforcement operations. The Proposal Is Premature in light of Industry Efforts. Anadhoc

coalition of interested panies has joined together to study the issues pored by the FBI's proposal and to begin diecussicas las olving various business interests, public interest groups, the law enforcemer: conanurity. kegislative stafi, and representatives of the Adoninistration. All involved recognize that the FBI is entitied to have adequate tools to fulfil its law enforcement objectives. For its part, the FBI duas recognized the vahie of industry cooperation and the need for a more robust exchange of technical information. Once the technical issues come into focus, particular pouicy issues

may be ripe for decision, in a context in which the costs and implications of
such decisions for trade, security and privacy concerns will be much more
clear. Technical Working Groups representing both the telephone companies
and the computer industry are hard at work -- but the issues are complex and
even the first stage of identifying serious potential problems for law enforce-
ment will take some time. Consideration of proposed solutions should await
the results of these detailed and technical discussions.
Conclusion.
As the broad collaboration that accompanied consideration of the 1986
amendments to the wiretap statute showed, the public interest in sound law
enforcement, and public expectations of privacy and security, are best served
by encouraging a constructive exchange of views among industry, concerned
citizens and government before any new legislation is enacted. Congress
should reject the FBI proposal and encourage continuing discussions that will
lead to more specific identification of any problems and to concrete, cost-
effective solutions.

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U.S. DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION

SUMMARY Advanced telecommunications technologies threaten to cripple the government's ability to protect the nation against the worst and most dreaded crimes.

The Problem: When in widespread use, the technologies will make it virtually impossible for federal law enforcement agencies to use court-approved electronic surveillance.

The Answer: Congress must enact legislation requiring that the new technologies contain capabilities allowing the government to continue using this invaluable tool to safeguard the United States.

More than 25 years ago, Congress passed a law allowing court-authorized surveillance, and it has become one of the most valuable law enforcement techniques against the very worst crimes.

For example: From 1982 to 1992, more than 22,000 convictions resulted from 8,300 court-approved surveillances.

Without that tool, law enforcement's ability to protect the public will be permanently eroded and the national security will be gravely endangered.

Court-approved surveillance is the most important and often the only way. to prevent or solve life-and-death crimes.

How grave are those crimes?

They appear often enough in newspapers and television broadcasts: Terrorism, espionage, other foreign threats, violent crime, organized crime, drug trafficking, kidnapping-and more.

In addition to the federal government, state and local law enforcement agencies also will be unable to carry out court-approved surveillance because of the new technologies.

That is why the nation's most important-law enforcement organizations at the state and local level also firmly support protective legislation by Congress. They include the International Association of Chiefs of Police, the National Sheriffs Association, the National Association of Attorneys General, and the National District Attorneys Association.

Law enforcement at the grass roots throughout the nation and federal law enforcement stand together on this issue. Their goal is to better protect the people of the United States from harm.

But even now, "digital telephony" is developing so rapidly that several hundred court-authorized surveillances already have been prevented by new technological impediments associated with advanced communications equipment.

New legislation would not endanger privacy rights. The government would be given the same surveillance authority it has had since Congress created the surveilIance law in 1968.

Telephone companies and others would only be required to assist law enforcement as they have for the past quarter-century-only now it would be assistance concerning new, different technology.

Without legislation, the government will eventually become virtually helpless to defend the nation from both foreign and domestic threats.

The threats include terrorists with bombs, spies who steal our most sensitive secrets, traffickers importing vast amounts of drugs, kidnappers who prey on children, murder plots, and other grave violent crimes.

Congress must pass legislation that would by reasonable steps allow law enforcement to carry out court-approved surveillance despite the intricate new communications technology and equipment.

Otherwise, the nation will find itself facing even worse crime and national security problems not only in the rest of this century but well into the next. Failure to act now will cause lasting problems for the safety and security of the American people.

INTRODUCTION This report by the Federal Bureau of Investigation discusses a major new problem facing the criminal justice system nation-wide: Advances in telecommunications technology that will make it virtually impossible for law enforcement agencies to conduct court-authorized electronic surveillance.

For the benefit of members of Congress and other public officials, the report contains a summary of the key matters involved in the digital telephony" issue and proposes legislation that would enable law enforcement to conduct court-approved surveillance of communications systems containing the complex new technology,

The draft legislation is titled: “Digital Telephony and Communications Privacy Improvement Act of 1994.” It is included in the report along with a section-by-section analysis and other material.

For additional information, please call the FBI's Office of Public and Congressional Affairs, 202–324–2727.

QUESTIONS AND ANSWERS
Question 1. Why do we need legislation now? Is there really a problem?

Answer. For nearly a decade, law enforcement has been encountering technological impediments to court-ordered electronic surveillance. As a result, à number of court orders have been frustrated in whole or in part. These impediments result from the deployment of advanced telecommunications systems which were designed without consideration for law enforcement's interception needs. These impediments prevent or hinder telephone companies from providing law enforcement with the access required to obtain the content of communications that are the subject of court orders. Over the last four years, the government has sought to obtain, without success, a firm commitment from the telecommunications industry to remove the impediments at a fixed, reasonable date in the future. Consequently, legislation is necessary to resolve this impasse. Further delays in correcting these technological impediments will unnecessarily jeopardize the personal safety and economic well-being of the American public. The longer the delay, the bore expensive it will be to correct this serious problem and the longer society will be put at risk and effective law enforcement hampered.

Question 2. Won't the removal of these impediments make the networks less secure and vulnerable to hackers, etc.?

Answer No. As with other specialized services and features included within the telecommunications networks, proper planning and design will ensure the integrity and security of the net works. Telephone companies already employ techniques which maintain system security and guard against network vulnerability. Removal of the impediments to court-authorized electronic surveillance can be accomplished in a manner consistent with strong systems security. In fact, the legislation contains a network security provision. We are confident that the telephone companies will continue their substantial efforts to prevent "hackers" and others from penetrating the telecommunications networks. Further, since such penetration efforts are considered serious crimes by the Federal government, they will continue to be prosecuted to the fullest extent of the law.

Question 3. Won't this legislation increase wiretapping?

Answer. No. Existing Federal law prescribes a rigorous procedure which law enforcement must follow in order to obtain judicial authorization to conduct electronic surveillance. The proposed legislation does not change the legal requirements or the administrative procedures for obtaining a court order for electronic surveillance, nor does it alter the criminal penalties for unlawfully intercepting communications. The essential purpose of the legislation is to clarify the nature and extent of the existing statutory obligation of telephone companies to provide law enforcement with "the technical assistance necessary to accomplish the interception.”

Question 4. Who will pay for removing the impediments?

Answer. The Federal government. The government recognizes that there will be costs involved with preserving the public safety, society's economic well-being, effective law enforcement, and the national security through law enforcement's ability to conduct court-ordered electronic surveillance. The proposed legislation makes it clear that the Federal government will compensate telephone companies for fair and reasonable costs incurred by them during the compliance period established in the legislation.

Question 5. Does law enforcement really need to do wiretaps? Can't it get the same information from other sources?

Answer. Court-ordered electronic surveillance is a critically important and unique law enforcement investigative technique. In fact, the law only permits the use of court-ordered electronic surveillance when other investigative techniques will not suffice or are too dangerous. Although other investigative techniques are important, the use of electronic surveillance provides law enforcement with information and evidence that, as a rule, are unobtainable through other investigative techniques.

Question 6. How many wiretaps does law enforcement conduct in a year?

Answer. Under the statutes that permit electronic surveillance in criminal matters, the combined number of electronic surveillance court orders executed in recent years by all Federal, state, and local law enforcement agencies has averaged around 800-900

per Year. The effectiveness of this technique is noteworthy. Between 1982– 1992, over 22,000 dangerous felons have been convicted as a direct result of execut

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ing some 8,300 court orders for electronic surveillance. Importantly, hundreds of lives have been saved, and thousands of criminal acts prevented, through the use of this critically important technique. Additionally, the economic benefit derived by law enforcement and society as a whole from the use of electronic surveillance (i.e., fines, recoveries, restitution, and economic loss prevented) is in the billions of dollars.

Question 7. Won't this legislation affect our telecommunication industry's competitiveness?

Answer. No. By its very nature the legislation will ensure fairness, equal treatment, and a "level playing field” within the telecommunications industry by requiring all telephone companies operating in the U.S. to remove the impediments to electronic surveillance within three years. Further, similar governmental initiatives are now under way in a number of foreign countries that are designed to maintain the electronic surveillance capabilities of law enforcement in those countries in use against drug cartels, organized crime, and terrorist groups. Thus, as the U.S. telecommunications industry, including equipment manufacturers and support service providers, meet their domestic responsibilities under this legislation, they will be in an excellent position to respond to new market opportunities abroad in meeting foreign law enforcement's electronic surveillance needs.

DRAFT

2/17/94

103rd Congress
2nd Session

S.

(H.R.

IN THE SENATE

IN THE HOUSE OF REPRESENTATIVES
M.

introduced the following bill; which was
referred to the Committee on

A BILL

To ensure continued law enforcement electronic surveillance
*ccess to the content of wire and electronic communications and
call setup information when authorized by law, to improve
communications privacy protection, and for other purposes.

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

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This Act may be cited as the "Digital Telephony and
Communications Privacy Improvement Act of 1994."

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SEC. 2. PURPOSE. The purpose of this act is to clarify and
define the responsibilities of common carriers, providers of .
common carrier support services, and telecommunications equipment
manufacturers to provide the assistance required to ensure that
government agencies can implement court orders and lawful
authorizations to intercept the content of wire and electronic
communications and acquire call setup information under chapters
119 and 206 of title 18 and chapter 36 of title 50. otherwise,
except for the provisions in section 4, nothing in this Act is
intended to alter any provision contained in the Federal elec-
tronic surveillanan son register, or trap and trace statutos, no

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