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Answer. The problem, though hard to quantify, is significant and is clearly growing. The informal FBI survey documented 91 such problems, but there have been many more. Over the last decade, we estimate that several hundred court orders have been frustrated or were not sought because of these problems.
With the introduction and growth of cellular telephone systems, and the introduction and use of sophisticated features and services, the number of court orders for electronic surveillance and/or pen register/trap and traces that were frustrated, in whole or in part, or delayed, or were not sought, grew. With the on-going introduction of even newer, more sophisticated features and services, wireless systems, etc., the number of technological problems will grow at an accelerated rate and the abil. ity of law enforcement agencies to fully and properly execute these court orders will continue to erode.
There is no single repository for information regarding the number of court orders that could not be properly executed with regard to the hundreds of criminal Title III wiretap and thousands of pen register court orders executed each year by hundreds of law enforcement agencies throughout the U.S. it was precisely this circumstance that led the FBI to conduct an informal survey in 1992 to attempt to gather some data, however imprecise, regarding this serious problem. This informal survey disclosed 91 "recent" problems. Information regarding these problems was retrieved by FBI field office Technically Trained Agents (TTAS), and most of the information reported on pertained to FBI cases. It is unclear how effective these TTAS were in obtaining sensitive information from state and local law enforcement authorities about problems they were encountering in executing court orders, particularly regarding then pending electronic surveillance efforts.
The FBI relies upon Technically Trained Special Agents (TTA) throughout the United States to technically implement the execution of the court orders. This duty also involves technical liaison with the telecommunication companies. Problems encountered by these TTAs are sometimes brought to the attention of FBIHQ through requests from the field TTAs for assistance from the FBIHQ's Engineering Section. It is usually through these requests that such problems become known, though they are not tabulated. In addition to the court orders that cannot be executed (fully executed),
many requests for electronic surveillance or pen registers/trap and traces by field office Special Agents have been discouraged by the TTAs in a number of field offices due to known on-going impediments in a particular area that have frustrated court orders in the recent past. Thus, a significant number of requests were never pursued and never reached the stage of being submitted for court approval. Such discouraged” requests are not reported formally to FBIHQ and they were not counted in the survey. A third category of problems are those where court orders have been delayed due to capacity limitations within the telecommunications companies' switches. Although such court orders may ultimately be executed, they may be delayed to the point where critical and valuable information is lost or not collected. Finally, there have been a great number of court orders that are not successfully executed because of problems that do not permit the comprehensive interception and acquisition of the subject's communications and/or “call setup informations (dialing information), and therefore have been of limited investigative value. See pages 29 35 of Director Freeh's statement for the record regarding
this issue. Question. Is the problem that the technology is too sophisticated or is it that the companies do not provide adequate access points?
Answer. Generally, the latter. The level of sophistication of the new technology is not viewed as a problem. To the contrary, the sophisticated switches and equipment being developed and deployed today are more capable than the less sophisticated switches that have been in use for many years. As service providers deploy more sophisticated switches, they develop more sophisticated features and services in response to or in anticipation of the commercial demands of their customers. If service providers view the electronic surveillance requirements of law enforcement as sophisticated functional "features,” there is no reason to believe that the switches (which are essentially specialized computers) cannot accommodate this functionality. The real problem is that the companies that manufacture and operate this equipment currently have no economic incentive or clear, specific legal requirement to include these functions as features in their developmental effort. If the needs of law enforcement agencies are accommodated during the developmental phase of new systems, features, and equipment, as is the case with other commercial services and features that are marketed to the public, adequate capabilities and access for electronic surveillance can be provided to law enforcement agencies without any adverse impact on the networks and without delaying the introduction of new commercial services and features.
Question. Can you describe several examples?
Answer. During the early 1980's, there was an explosive growth in the use of cellular telephones. The need to conduct electronic surveillance and pen register investigations within cellular systems became evident at an early stage. Unfortunately, the systems had been developed several years earlier and were being deployed rapidly. After unsatisfactory attempts to intercept cellular telephones on the radio frequency portion of the cellular system, law enforcement agencies sought the assistance of cellular providers in order to execute the court orders. Many cellular service providers (and there are literally hundreds of new companies for law enforcement agencies to deal with) were not aware of, or always responsive to, their legal obligation to assist law enforcement agencies with the execution of court orders. After a number of years, a number of technical solutions were eventually developed and deployed on a case-by-case basis (often with the government funding the system upgrade). The delayed deployment of these solutions led to an unknown (but we estimate significant) number of court orders not being executed, not being fully executed, or being delayed in their execution. Additionally, since these solutions were not considered in the development cycle of the cellular equipment and were of a “band aid,” retrofit nature, in many instances the capacity range of some of these solutions was limited, which affected the number of simultaneous court orders that could be conducted, and in others their overall capability or functionality was limited.
Another example is call forwarding. When call forwarding was first introduced by telecommunications providers, the element that “forwarded" Or re-directed telephone calls was the central office switch. As such, even though a subject might forward his calls across the country, the content of the call itself still passed through the central office switch that served his telephone instrument. However, once forwarded, the subject's call did not appear in the local loop-law enforcement's traditional access point. Further, since no provision was made for lawful law enforcement electronic surveillance access during the development and deployment of call forwarding, service providers themselves were unable to afford law enforcement an effective means of acquiring such forwarded communications, even though they pass through their switches.
Question. I understand that the General Services Administration (GSA) was opposed several years ago to an earlier FBI proposal regarding this sage issue. Are they opposed to this latest version? Please explain what changes were made from the earlier version to the latest one?
Answer. As you are aware, the Administration's Digital Telephony legislative proposal, as well as an earlier legislative proposal formally transmitted to the 102nd Congress under the Bush Administration, deals with the issue of law enforcement's continued technical ability to conduct court-authorized electronic surveillances as advanced telecommunication technologies, services, and features are introduced into the nation's telecommunications networks. GSA is not a law enforcement agency and therefore has no expertise in the area of court-authorized electronic surveillances, nor does it have any particular expertise relative to any possible impact the incorporation of law enforcement's electronic surveillance requirements might have with regard to current or future networks, systems, features, or services. (By comparison, neither the FCC nor the National Institute of Standards and Technology (NIST), which also possesses telecommunications expertise, interposed any objection to the legislative proposal.) Unfortunately, in 1992, GSA comments were solicited by OMB in the context of an expedited legislative proposal clearance process, without GSA being privy to the numerous, lengthy, and in-depth legal and technical discussions and briefings which preceded the clearance process.
Consequently, although GSA's comments were considered along with those from other agencies within the Bush Administration, given the above, GSA's comments were evaluated accordingly. The important position was not GSA's but that of the Bush Administration. The Bush Administration determined that the only realistic way to effectively address the “digital telephony" problem was through a comprehensive legislative solution. Such a comprehensive legislative solution was formally transmitted to the 102nd Congress by the Bush Administration in September of 1992; however, time did not permit any action being taken on it.
In April, 1993, President Clinton directed that an interagency working group be established to examine, among other things, telecommunication technology trends and their impact on court ordered electronic surveillances. After an in-depth eight month study, the Clinton Administration likewise determined that the only effective way to address the so-called "digital telephony" problem is through a comprehensive legislative solution; and a formal administration legislative proposal, entitled the “Digital Telephony and Communication Privacy Improvement Act of 1994," was transmitted to Congress on March 25, 1994. Fundamental to this decision was the Clinton Administration's belief, like that of the Bush Administration, that it would
be unacceptable for the safety of the American public to be imperiled, the national security to be endangered, and effective law enforcement to be eroded through the diminishment or loss of this critical and essential tool of our nation's law enforcement and intelligence agencies.
The current legislative proposal is a significant improvement over the prior proposal, and includes a number of new and important provisions, many of which were developed after we received input from the telecommunications industry regarding the 1992 proposal. The current legislative proposal focuses on where the problems are within the networks of common carriers. Hence, all other types of service providers (computer networks, PBX operators, etc.) have been eliminated from coverage. The time period for common carrier compliance has been doubled from 18 months to three years. The wording of the electronic surveillance requirements has been refined based on industry suggestions. A "systems security provision” has been added to reflect that any Premises/switch-based intercepts will only be initiated by designated common carrier personnel. The assistance of the FCC is included. Importantly, a provision for on-going “consultation” using industry standards bodies and other fora is established to ensure cost-effective compliance, and the Attorney General is authorized to reimburse common carriers for all reasonable costs directly associated with the modifications required to be performed in order for common carriers to comply with the Act, up to $500 million under the current proposal. Finally, the proposed legislation includes provisions that improve communications privacy protection for cordless telephones, certain radio-based data communications, and communications transmitted using certain privacy-enhancing modulation techniques.
Question. The telecommunications industry claims this legislation would go well beyond the status quo by allowing the FBI to be part of the front-end design process, where it has not been previously. How do
you respond to their concerns? Answer. The industry's claim is erroneous. The purpose and effect of the Administration's proposed legislation is to clarify and define the existing responsibilities of common carriers to provide the "technical assistance necessary to accomplish the interception.” The proposed legislation does not require common carriers to design their systems in any one, particular way; and it certainly doesn't contemplate the FBI or any other law enforcement agency dictating network design. The legislative proposal simply requires that common carriers be able to respond to the long-standing generic electronic surveillance requirements of law enforcement and be able to meet their current legal responsibility to effectively “assist” law enforcement when served with a court order.
This legislation also does not propose that industry design systems with the ability to wiretap as the "design goal.” Law enforcement is simply requiring common carriers to craft appropriate electronic surveillance solutions that interface with their networks' designs. Industry is in the best position to develop reasonable and cost-effective design solutions which accommodate, rather than frustrate, court orders for electronic surveillance and pen registers/trap and traces, and, at the same time, maintain the security and reliability of telecommunications networks.
Further, this legislation does not prohibit or impede the development or deployment of new telecommunications technologies. We are unaware of any authoritative industry statement that these requirements would significantly delay development or deployment of new technologies. Advanced technologies support a number of features that make systems more intelligent. The basic technology underpinning the introduction of advanced features and services, which often impedes electronic surveillance, likely will also offer solutions to these very problems.
Finally, law enforcement's.requirements will not dictate the course or pace of technology. However, with this legislation, our requirements will intentionally be included, rather than excluded, in the development of new technologies in much the same fashion that other legislation requires new technologies and products to take public safety into account and in much the same way that new commercial features and services are developed and deployed by telephone companies for purely economic gain. (For further information, see pgs. 54–55 of Director Freeh's statement for the record.)
Question. As telecommunications technology progresses will the FBI accidently acquire "content-based” information after only receiving authority to obtain "transactional” information (e.g., banking information) such as with a pen register, which only requires a grand jury subpoena-a lower standard to meet than a warrant issued frog a judge? How should the FBI address this problem? Is "content" information, obtained according to a subpoena, not a warrant, admissible in court? Should there be a heightened standard for content information, somewhere between “probable cause" and "reasonable suspicion”?
Answer. At the outset, the foregoing questions include a number of mistaken assumptions of fact, law, and investigative procedures. By clarifying these, a meaningful response best can be made. First, contrary to the false assertions of some in the privacy community, it should be made absolutely clear that the FBI and other law enforcement agencies do not focus investigative efforts on individuals who are not centrally involved in serious (felony) criminality. Further, United States Attorneys/ District
Attorneys do not authorize grand jury subpoenas or court orders, and courts do not issue court orders, where relevancy to a criminal investigation is not demonstrated. There are no "routine surveillances” of innocent people. Nor are court orders or subpoenas issued for irrelevant, noncriminal, or privileged information.
Second, under Federal law (18 U.S.C. 3121-27), a pen register lawfully acquires "numbers dialed or otherwise transmitted on the telephone line to which such device is attached.” 18 U.S.C. 3127(3). Such dialing information or “call setup information” is distinguished under law from call content which is dealt with under the Title III provisions (18 U.S.C. 2510-21) and from telephone transactional records which are dealt with under 18 U.S.C. 2701-11.
Third, use of pen registers by the FBI requires a Federal court order issued from a court of competent jurisdiction. Pen registers My not be used based upon a grand jury subpoena.
Fourth, if Title III content information is introduced in court, the provisions of Title III, including obtaining a Title 111 court order, must be followed in order to introduce such evidence. The use of pen registers to acquire the numbers dialed is expressly excluded from the treatment of interception of communications content under Title III. 18 U.S.C. 2511(h)i).
Fifth, when the FBI acquires dialed numbers through the use of a pen register, these numbers mean nothing per se to the FBI. To determine the subscriber information pertaining to the party called (through the numbers dialed), the FBI bust then obtain a second form of legal process under 18 U.S.C. 2703 (a subpoena or court order) and serve it on the telephone company. The telephone company in such situations, of course, only possesses and hence only provides the telephone subscriber or listing information that identifies the called party (e.g., (202) 324–3000 is listed to FBIHQ, 10th and Penn. Ave., NW., Washington, DC.).
Sixth, assuming that the telephone number dialed by the criminal subject is determined to be (after subpoenaing the telephone company subscriber records) a banking or credit card institution, and assuming the FBI desires to examine the subject's financial records, then the FBI is legally obligated to obtain a third form of legal process and serve it on the institution, pursuant to the provisions of the Right to Financial Privacy Act, codified at 12 U.S.C. 3401-3422, especially 3413.
To the extent that dialing information (call setup information) tells something about criminal subjects and their activities, this has been the case since the first primitive “pen registers” were employed decades ago. Under the proposed legislation, law enforcement would acquire this dialing information as it does today—no more no less.
Although we are sensitive to legitimate privacy concerns, we have not received any information on this topic to suggest that any new laws are required or that current laws require amendment. For example, the notions propounded by Mr. Berman that either telephone transactional information under 18 U.S.C. 2703, or the call setup information (dialing information) obtained through pen registers under 18 U.S.C. 3121 et seq., or both, should only be available based upon a probable cause warrant is a radical departure from past law and jurisprudence and would cause the acquisition of electronic transactional information or records to be treated vastly differently than documentary transactional information and records. There simply is no legal or rational basis for according any type of telephone transactional information or records higher privacy protection than other documentary transactional information or records. As stated above, the dialing information obtained by a pen register always requires a court order, whereas telephone and documentary transactional information and records can be (and historically always have been) obtained through use of a subpoena.
Whereas the Government's legislative proposal simply seeks to maintain the legal/ technical status quo, Mr. Berman and the DPSWG appear to be seeking a repeal of the pen register/trap and trace provisions enacted in the Electronic Communications Privacy Act of 1986.
It is particularly puzzling why some privacy rights spokespersons, under the guise of a “false transactional information scare," loudly advocate raising the legal bar to extreme heights for law enforcement's limited access to information concerning criminal subscribers, when telephone companies can afford broad access (and routinely sell, disclose, or exchange) much of the same type of information at issue here with the private sector regarding all subscribers with little or no legal constraint.
For a more complete statement regarding this issue,refer to pages 57–62 of the Director Freeh's statement submitted for the record.
Question. The telecommunications industry also is concerned that this legislation will harm their ability to compete with foreign competitors.
First, this legislation applies to all system and equipment used in the United States, not just American-made equipment and systems, is that correct?
Second, how do you respond to the industry's concern that their ability to compete for contracts in foreign countries will be harmed by this legislation?
Answer. First, the Administration's legislative proposal applies to "common carriers” who offer communications services which are deployed within the United States. The legislative proposal requires such common carriers to ensure that their systems have the capabilities and capacities to permit law enforcement to conduct court-authorized electronic surveillance. The proposed does not specifically address or apply to a single piece of telecommunications equipment but applies to a common carriers services overall.
Second, the proposed legislation does not prohibit U.S. manufacturers or service providers from developing or deploying telecommunications equipment or service for sale outside the United States which is different from that required pursuant to the proposed legislation. Domestically, the proposal would mean that als 2,000 common carriers would be competing on a “level playing field” because all common carriers would be required to meet the same requirements within the same compliance period.
Very importantly, other democratic governments also have basic law enforcement and security needs that are nearly identical to those in the United States. Consequently, because of undoubted demands for interception capabilities from law enforcement agencies in other democratic nations, United States manufacturers and providers are very likely to see increased demands from such foreign governments for this type of equipment and service, which will likely offer significant international sales opportunities. (See pages 55-56 of Director Freeh's statement submitted for the record for further information regarding this issue.)
LOUIS J. FREEH'S RESPONSES TO QUESTIONS SUBMITTED BY SENATOR LEAHY Question 1. In your written statement, you refer to “numerous situations * * * where service providers * * * have been unable to provide assistance to law enforcement agencies,” and cite the service provider's inexperience and lack of under, standing of law enforcement requirements as the source of the problem. Was digital telephony or any new technology involved? In each situation, please identify the date, the service provider involved, and the specific nature of the problem. In addition, please describe for each situation whether law enforcement took any steps to compel cooperation by the service provider, and, if so, what those steps were and, if no steps were taken, the reason(s) why not. Finally, with respect to each situation, please indicate whether law enforcement and the service providers involved have been able to resolve the problem.
Answer. Generally speaking, most of the impediments encountered by law enforcement within the telecommunications networks are the result of advanced telecommunications technologies. These advanced technologies which support the deployment of new and emerging telecommunications systems, services, and features (e.g. cellular telephony, custom calling features, digital subscriber services) are largely based on digital telephony.
With regard to when, where, and the nature of the problems encountered, and whether any of the problems have been resolved, refer to the answers provided regarding questions 6, 7, and 9, below. Further information, as available, will be provided at a later date.
As stated below, the FBI has made numerous attempts to obtain the assistance of the telecommunications industry to resolve this problem voluntarily--but to no avail. Substantial efforts were made through the industry's Telephone Security Association (TSA), through meetings with Regional Bell Operating Company (RBOC) top executives, meetings with major manufacturer executives, Bellcore, and, for the last two years, through an industry-created ad hoc technical committee, which now meets under the auspices of the Alliance for Telecommunications Industry Solutions (ATIS).
To date, industry has failed to devise solutions to most of the problems, and the technical committee cannot guarantee the implementation of any solutions that may be developed. This critical circumstance was confirmed by ATIS Chairman P. Casimir Skrzyczak in his letter to the FBI dated March 1, 1994, which was furnished to the Subcommittees with Director Freeh's statement for the record.