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protections that far exceed the fourth amendment requirements relating to court orders based upon probable cause.

In fact, the proposed legislation contains a number of privacy-enhancing provi, sions, such as extending full privacy protection to cordless telephones, radio-based electronic communications, and communications transmitted using privacy-enhancing modulation techniques.

THE FALSE “TRANSACTIONAL DATA SCARE” The Digital Privacy and Security Working Group (DPSWG) has attempted to interject a false "transactional data scare” into the current discussion of the need for legislation that will allow law enforcement to maintain its electronic surveillance and pen register/trap and trace technical capabilities commensurate with existing law.

In a letter to me, dated March 11, 1994, a copy of which was sent directly to the chairmen, the DPSWG falsely alleges that we are seeking to "dictate to industry" a new capability to acquire minute-by-minute surveillance of individuals” through transactional data. This is a false issue for a number of reasons.

First, as is clearly set forth in the "purpose” section of the proposed legislation, the intent of the legislation is to maintain existing technical capabilities and to "clarify and define the responsibilities of common carriers * * * 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.” (emphasis added.) These chapters have nothing to do with "transactional information" under our federal electronic surveillance and privacy laws. All telecommunications "transactional" information is already protected by Federal law and is exclusively dealt with in Chapter 121 of Title 18 of the United States Code ("stored wire and electronic communications and transactional records access”). The proposed legislation does not relate to Chapter 121 of Title 18.

Second, under federal law, Congress treats law enforcement's use of pen registers and dialing information differently than “transactional information"-such as detailed telephone billing information. The dialing information derived from a pen register is obtained by law enforcement and is limited to a specific telephone line and number. On the other hand, transactional billing information is compiled by telephone companies and captures billing information from every telephone a subscriber may use during the billing period, such as credit card calls, collect calls, operator assisted calls, and third number billing information which are associated with all the different telephones a subscriber may use.

Third, Congress has enacted legislation that requires law enforcement to obtain a court order in order to obtain "call setup information” through the use of a pen register or trap and trace device, based upon a certification of an attorney for the government that the information likely to be obtained is relevant to an ongoing criminal investigation. Such court orders last for up to sixty days. Any renewal requires the approval of an appropriate judge. On the other hand, Congress has legislated that “transactional informations can be obtained through a number of legal processes, including subpoenas, without resort to court orders. Subpoenas for transactional information typically cover periods of six months or longer. In any event, law enforcement is not authorized to obtain noncriminal, irrelevant information about any individual, and any acquisition of transactional information or dialingtype information must be grounded in relevancy to a criminal investigation or inquiry.

Fourth, the letter indicates that enactment of this legislation, with regard to maintaining our ability to lawfully acquire call setup (dialing) information pursuant to court order, will somehow permit law enforcement to acquire some new information that is not now available. That is simply untrue. This legislation ensures a maintenance of the status quo as it relates to legal authorities under Chapters 119 and 206 of Title 18 and Chapter 36 of title so, and as it relates to the types of information obtainable through pen register and trap and trace devices used pursuant to the court order.

Fifth, unlike the governments proposed legislation, which specifically asserts no intention to alter the existing laws regarding the conduct of electronic surveillance and the installation and use of pen register and trap and trace devices, the DPSWG, by interjecting a false transactional data scare, is apparently seeking to repeal Chapter 206 of Title 18 and the pen register and trap and trace authorizations found in Chapter 36 of Title 50. As explained above, call setup information (that is dialing information) is obtained through the use of pen register and trap and trace devices. In the DPSWG letter referred to above, it states: "legislation should

apply to 'call setup information only when that information is incident to a warrant issued for wire, oral, or electronic communications as set forth in 18 U.S.C. 2518 (Title III).” To accept this radical position on privacy would mean, for example, that anytime an FBI agent simply sought to acquire a telephone number dialed by a criminal subject through the use of

a pen register, he/she should be required by law to draft a 30-40 page title iii affidavit, and send it to Washington, DC, for the Deputy Assistant Attorney General of the criminal division to review and authorize, before taking it to a Federal District Court Judge for review and approval. Frankly, such a notion is absurd and is wildly inconsistent with current law.

ALLEGATIONS OF "TRACKING" PERSONS Law enforcement's requirements set forth in the proposed legislation include an ability to acquire "call setup information.” This information relates to dialing type information-information generated by a caller which identifies the origin, duration, and destination of a wire or electronic communication, the telephone number or similar communication address. Such information is critical to law enforcement and, historically, has been acquired through use of pen register or trap and trace devices pursuant to court order.

Several privacy-based spokespersons have criticized the wording of the definition regarding this long-standing requirement, alleging that the government is seeking a new, pervasive, automated "tracking" capability. Such allegations are completely wrong.

Some cellular carriers do acquire information relating to the general location of a cellular telephone for call distribution analysis purposes. However, this information is not the specific type of information obtained from "true” tracking devices, which can require a warrant or court order

when used to track within a private location not open to public view. See United States v. Karo, 468 U.S. 705, 714 (1984). Even when such generalized location information, or any other type of "transactional” information, is obtained from communications service providers, court orders or subpoenas are required and are obtained.

In order to make clear that the acquisition of such information is not being sought through the use of a pen register or trap and trace device, and is not included within the term "call setup information, we are prepared to add a concluding phrase to this definition to explicitly clarify the point: "*** *, except that such information [call setup information) shall not include any information that may disclose the physical location of a mobile facility or service beyond that associated with the number's area code or exchange.”

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1982

448 130 578 2,870 1,886 1983

440 208

648 2,890 2,007 1984

512 289 801 3,719 2,429 1985

541 243 784

4,178 2,616 1986

504 250 754 3,830 2,447 1987

437 236

673 3,225 1,956 1988

445 293 738 3,830 2,404 1989

453 310 763

4,199 2,205 1990

548

872 3,167 1,327 1991

500 356 856 2,189 2,185 1992

579 340 919 2,685 607 Total

5,407 2.979 8.386 36,782 22,069 * Administrative Office of the United States Courts, Report on Applications for Orders Authorizing or Approving the Interception of Wire, Oral, or Electronic Communications (Wiretap Report) (1983–1992).

?A substantial number of prosecutions are ongoing and total convictions will not be reported for several years. Convictions continue to be reported as a result of interceptions going as far back as 1982. Unfortunately, the reporting of convictions appears to lag substantially behind the actual convictions and there are indications that convictions that should be reported by State prosecutors and judges are not actually reported.

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

Washington, DC, May 10, 1994.
Hon. PATRICK J. LEAHY,
Chairman, Subcommittee on Technology and the Law,
U.S. Senate, Washington, DC.

DEAR PAT: Enclosed please find our responses to the questions both you and Senator Pressler had regarding the Administration's proposed “Digital Telephony and Communications Privacy Act of 1994" which were forwarded to me in your two letters dated March 24, 1994. Pursuant to discussions with Subcommittee staff, specific information concerning the Bureau's informal survey which identified ninetyone instances where law enforcement's electronic surveillance were frustrated due to advanced telecommunications technologies will be forthcoming under separate cover.

Should you have any questions concerning this or any other issue of mutual concern, please do not hesitate to contact me. Sincerely yours,

LOUIS J. FREEH,

Director,

LOUIS J. FREEH'S RESPONSES TO QUESTIONS SUBMITTED BY SENATOR PRESSLER Question. Why is further legislation necessary? What is lost now that will be gained by this legislation?

Answer. There is no disagreement that under current law telecommunications companies and others are mandated to assist law enforcement agencies execute court orders for electronic surveillance and pen registers/trap and traces, pursuant to court orders directing them to do so. The issue is the nature and extent of that mandate. The current language of the "assistance provision" in the various federal electronic surveillance and pen register/trap and trace statutes, though unambiguous in its mandate, is silent on (and therefore gives no guidance concerning) what level of effort or level of cost, if any, must be expended by a provider when its system, as deployed or planned, does not readily accommodate execution of electronic surveillance or pen register/trap and trace court orders, or, when impediments are encountered, how quickly an effort must be undertaken and completed.

Attorneys for the FBI, Bellcore, and the telecommunications industry believe the current language does not clearly define the responsibilities of service providers, particularly when some level of effort is required beyond the rudimentary furnishing of line information and leased line facilities. The current language was adequate when enacted in 1970, since telephony technology then was relatively simple and there were relatively few service providers. Today's telecommunications marketplace is vastly different, more complex, and abounding with service providers (e.g., over 2,000 common carriers alone).

Hence, it is imperative that the generic electronic surveillance requirements of law enforcement be articulated formally, that common carrier responsibilities be spelled out, and that a reasonable compliance period be set. Legislation is the only way to put all common carriers on notice regarding these requirements and to legally obligate the over 2,000 carriers to act in a timely and comprehensive fashion. Further, legislation is needed in order to formally enlist the cooperation of support service providers and equipment manufacturers upon whom common carriers rely for provisioning service. So also it is necessary to define the government's legal and equitable remedies regarding common carriers who fail or refuse to comply or who are dilatory, and to provide a mechanism for reimbursement to common carriers for costs expended in making the modifications associated with achieving compliance.

If there were any doubt about whether new legislative language is needed to clarify and memorialize the above-mentioned requirements and responsibilities, one need only consider the complaints and false accusations made by some opposition spokespersons concerning the proposed legislation's memorialization of law enforcement's long-standing requirements.

A detailed statement of the inadequacy of the current "assistance provision" language is set forth at pages 24-27 of Director Freeh's statement submitted for the record.

Question. How much of a problem is this today? In how many actual cases, roughly, has the FBI been unable to accomplish a court-approved wiretap due to a telecommunications company's inability to make the tap?

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