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To date, companies have been reluctant to undertake greater efforts to provide assistance absent a clear legal mandate, because they perceive that such assistance places them at a disadvantage when compared to other companies that simply refuse to expend developmental resources for law enforcement needs. The FBI has attempted to encourage service providers to voluntarily comply in different ways; for example, purchasing a known solution for the service provider.

Historically, law enforcement agencies have not taken any steps to compel cooperation by the service providers through legal action for several reasons. First, due to the time-critical nature of most investigations, the length of time needed to resolve a problem through litigation would not result in a satisfactory resolution. Second, litigation concerning such a problem would very likely compromise not just an investigation of a particular subject and his use of a subject telephone but potentially an entire investigation of a criminal group or organization. Three, there is no clear consensus that such legal action would result in the service providers being compelled to provide the needed assistance or held in contempt under the

current law, where the provider is not technically capable of doing so at the time. The prevailing attitude expressed by industry representatives has been that the current statutory "assistance” requirement does not clearly extend to modifications of existing systems or to the development of new equipment or systems to support law enforcement electronic surveillance needs. Fourth, since the working relationships between law enforcement agencies and service providers have been generally good in the past, there has been a fear of damaging these relationships and ultimately impacting many other critical investigations negatively. In particular, within the last few years (and during rich time the survey was conducted), law enforcement has been attempting to have a dialog with telephone companies to obtain a firm and comprehensive commitment to meeting law enforcement's electronic surveillance requirements within a fixed and reasonable period of time. Seeking contempt of court or other such remedies during this time would fly in the face of this effort and undoubtedly would have been viewed as confrontational and counterproductive. For more detailed information, see pages 35–39 of Director Freeh's statement for the record.

Question 2. What steps have been taken by law enforcement to educate and inform inexperienced service providers?

Answer. When law enforcement agencies first become aware of a problem with the inexperience of some service providers, the problem was usually addressed by putting the service provider in contact with other service providers that had previous experience with the specific technological problem being addressed. Secondly, FBI TTAs frequently met with industry technical counterparts, advised them of the law, suggested technical solutions, and often identified or even funded modifications that would allow for at least some level of improvement. Such efforts, however, did not prevent the routine frustration of court orders, in whole or in part, and/or delays in executing court orders which often impaired investigations.

In 1991, the FBI next brought this problem to the attention of the Telephone Security Association (TSA), the industry association comprised of security office managers upon whom court orders are normally served and with whom arrangements are made to effect electronic surveillance court orders. However, TSA was unable to resolve the problems.

Later (in early 1992), the FBI along with other federal, state, and local law enforcement agencies, after consulting with industry representatives, developed and published a document entitled “Law Enforcement Requirements For The Surveillance of Electronic Communications.” The purpose of this document was to provide telecommunications industry representatives with a generic set of requirements tha can be referred to during the design of new systems. In addition to this document, in early 1992 the FBI began to meet on a regular basis with telecommunications industry representatives under the auspices of an industry-created Technical Committee to discuss these requirements. This committee, which was created by industry to avoid legislation, and which began as an ad hoc gathering, has since been chartered under the Alliance for Telecommunications Industry Solutions (ATIS) (formerly the ECSA) as the Electronic Communications Service Provider Committee (ECSPC). The ECSPC is made up of federal, state, and local law enforcement representatives, service providers, and manufacturers. Participation is voluntary and membership is open to all service providers and manufacturers. The ECSPC meets in committee on a quarterly basis with action teams meeting when necessary. The purpose of the ECSPC is to create a forum for dialog between law enforcement agencies and telecommunications industry representatives to discuss the legitimate needs of law enforcement with respect to new and emerging technologies.

Though helpful, this committee can only recommend solutions, assuming they are developed—it cannot dictate that any known solution be implemented. As impor

tant, there are over 2,000 common carriers and that number is increasing daily. As a practical matter, it is impossible for such a committee to bring about the deployment of needed solutions on a timely and comprehensive basis for over 2,000 common carriers. Legislation alone can assure this.

Question 3. The United States Telephone Association estimated that 1,200 digital switches in the U.S. are currently operational. Of the 919 wiretap orders and estimated 9,000 pen register orders authorized in 1992 for all federal, state, and local law enforcement agencies, were any such interception orders conducted on facilities using digital switches? If so, how many?

Answer. See Answer to No. 4 below.

Question 4. Up to this point, how any wiretap orders could not be executed because digital switches were used? For each nonexecuted order, please identify the date, the service provider involved, and the specific nature of the problem. In addition, please describe in each instance 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 instance, please indicate whether law enforcement and the cellular providers involved have been able to resolve the problem.

Answer. It is certain that many of the estimated 919 wiretap orders and 9,000 pen register orders authorized within the U.S. during 1992 were carried out within facilities that use digital switches. For the most part, the local loop, which connects the customer to the central office, has been one of the few links within the network to remain relatively unchanged by the advent of digital switches, since the local loop is normally an analog link. This has allowed law enforcement agencies to continue to conduct court-ordered wiretaps on the local loop without regard to the type of switch being used. The digital switches that are being deployed today are capable of supporting sophisticated digital transmissions over the local loop; however, to date, these particular services have been sparsely deployed and have caused few problems for law enforcement agencies. However, the use of digital switches by service providers has led to the introduction of many new and sophisticated features and services that were not practical in an analog switching environment. It is the deployment of these new features and services, supported by digital technology, by the service oviders that frequently has created problems for law enforcement agencies. As the features and services being deployed and offered by service providers have become more advanced, the communications and dialing information that law enforcement agencies attempt to intercept and acquire become less accessible in the local loop thus making it a less feasible access point, and effective central office access has not been developed by the telephone companies. Of course, in the near future when the many and diverse sophisticated digital-based services and features are deployed in the local loop, there will be substantially more problems.

Question 5. You have referred to an informal survey of federal, state, and local law enforcement agencies that uncovered 91 instances where interception orders could not be executed due to technology. Please detail how the survey was conducted.

Answer. The FBI relies on a Technical Advisor (TA) within each field office to coordinate the technical efforts necessary to execute court orders and other technical aspects of investigations. These TAs maintain informal technical liaison with many federal, state, and local law enforcement agencies within their field office area. The TAs within each office were asked to collect, through their contacts with other law enforcement agencies, information relating to recent technology-based problems that have impeded electronic surveillance/pen register/trap and trace efforts. This information was solicited and provided on a confidential basis in order to assure each agency that their ongoing investigations would not be hampered or compromised by the release of this information and in order to protect information regarding the law enforcement agencies' technical capabilities and inabilities. Additionally, this survey was not conducted in a rigorous, comprehensive, or in-depth fashion since participation was entirely voluntary and the information provided was generally limited in detail.

Nonetheless, the information obtained does clearly indicate that there are serious and widespread problems and serious implications regarding the frustration of court orders when telephone companies deploy technology without accommodating electronic surveillance requirements and without considering whether such deployment will, as a practical matter, prevent them from fully and effectively assisting law enforcement pursuant to the statutory "assistance provision" in the current law.

Not included in the tabulation were the numerous instances where court orders were not sought or had been "discouraged" due to these technological impediments. Since this survey was conducted, the FBI has become aware that technology-based problems have been encountered in many more instances.

Question 6. In 40 instances the cellular provider could not provide called number information or had insufficient capacity. For each instance, please identify the date, the service provider involved, and whether the problem was one of capability or capacity. In addition, please describe in each instance 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 instance, please indicate whether law enforcement and the cellular providers involved have been able to resolve the problem.

Answer. See answer No. 9 below.

Question 7. You have cited 29 instances in which interception orders were impeded because of custom calling features. For each instance, please identify the date, the service provider involved, and whether the problem was one of capability or capacity. In addition, please describe in each instance 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 instance, please indicate whether law enforcement and the cellular providers involved have been able to resolve the problem.

Answer. See answer No. 9 below. Question 9. You have generally referred to the nature of the problem in 69 of the 91 instances in which interception orders could not be executed due to technology. what was the problem in the remaining 22 instances? For each of those 22 instances, please identify the date, the service provider involved, and the problem. In addition, please describe in each instance 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 instance, please indicate whether law enforcement and the cellular providers involved have been able to resolve the problem.

Answer. The survey that is the source of these numbers, as indicated above, was conducted in an informal way, as a means of trying to determine the scope of the problem that existed at that time and how it was affecting law enforcement agencies. In order to encourage law enforcement agencies to candidly share information regarding the technological problems they were encountering, the survey was rather narrow in the scope of information sought. Hence, many of the details you have requested were not acquired in the survey. The various agencies were asked only to provide information (no level of detail specified) regarding court orders that were frustrated by technology-based problems.

Of the forty (40) instances of technological problems involving cellular providers that were identified, ten (10) instances resulted from insufficient capacity within the service providers' systems. However, the overall number of court orders that have been frustrated due to limited capacity within the cellular system is known to be much greater than this. It is known, for example, that a large number of requests for cellular-based electronic surveillance and pen register/trap and trace court orders have been discouraged in various localities because of the cellular capacity problem and were therefore never prepared for submission to a court. Although many of the cellular capacity problems have been addressed, some still remain. In addition, there remain many aspects (capability problems) where law enforcement requirements for electronic surveillance of cellular communications have yet to be addressed.

Twenty-nine (29) of the instances of technological problems reported through the survey were associated with custom calling features. Because service providers traditionally have refused law enforcement admittance to central office facilities or have discouraged law enforcement agencies from conducting interceptions from within their central office facilities, and because in the past adequate access could be obtained by law enforcement on the outside plant portion of the telecommunications network, most electronic surveillance/pen registers have been technically effected in the local loop. However, the deployment of calling features has created serious problems for law enforcement agencies and has resulted in the frustration of court orders. For example, abbreviated dialing features have allowed the subjects of interceptions to place calls from their phones by dialing a short sequence (e.g. No. 2) which is translated at the central office into a full 10 digit telephone number. There is currently no means for law enforcement to obtain these translations in real-time nor have service providers themselves solved this problem at this time. Other calling features, such as call forwarding, similarly pose serious problems and frustrate court orders. Call forwarding, in many instances, is carried out by the service provider at the central office switch. The telephone companies' deployment of call forwarding permits subjects to utilize call forwarding to reroute their communications to a distant telephone number. In these cases, communications of interest to law enforcement are not accessible in the local loop. Further, telephone compa

nies themselves have not devised solutions, to date, to capture these communications. Although we have not specifically tracked these problems, we know they remain, and we have no reason to believe that they have been resolved where they occurred since they were reported.

The remaining twenty-two (22) instances were in several major categories: Features (other than calling features) such as Voice Mail; central office-based digital subscriber lines (e.g. CENTREX); multiplexed digital transmission lines (e.g: T-1); service provider furnished encryption; fiber optic lines; and trap and trace inabilities on the part of the service provider. Although we have not specifically tracked these problems, we know these problems remain, and we have no reason to believe that they have been resolved where they occurred since they were reported.

One feature that was recently deployed by some service providers has already created problems for law enforcement agencies. “Voice Dialing" is a form of abbreviated dialing feature that allows a user to “dial” a phone number by speaking into the telephone. For example, a user might say “Call work” and thereby be connected to his work phone by the service provider who has equipment capable of recognizing and decoding his voice. Law enforcement agencies utilizing a pen register to acquire the dialing tones in order to obtain dialing information cannot capture this dialing information. Unless service providers devise a method of furnishing law enforcement agencies this information, many pen register court orders for dialing information will be frustrated.

Historically, law enforcement agencies have not taken any steps to compel cooperation by the service providers through legal action for several reasons. First, due to the time-critical nature of most investigations, the length of time needed to resolve a problem through such means would not result in satisfactory solutions. Second, litigation concerning such a problem would very likely compromise not just an investigation of a particular subject and his use of a subject telephone but potentially an entire investigation of a criminal group or organization. Third, there is no clear consensus that such legal action would result in the service providers being compelled to provide necessary assistance or held in contempt under the current law, where the provider is not technically capable of doing so at the time. The prevailing attitude expressed by industry representatives has been that the current statutory “assistance” requirement does not clearly extend to modifications of existing systems or to the development of new equipment or systems to support law enforcement electronic surveillance needs. Fourth, since the working relationships between law enforcement agencies and service providers have been generally good in the past, there has been a fear of damaging these relationships and ultimately impacting many other critical investigations negatively. In particular, within the last few years (and during which time the survey was conducted), law enforcement has been attempting to have a dialog with telephone companies to obtain a firm and comprehensive commitment to meeting law enforcement's electronic surveillance requirements within a fixed and reasonable period of time. Seeking contempt of court or other such remedies during this time undoubtedly would have been viewed as confrontational and would have been counterproductive.

Further, companies have been reluctant to undertake greater efforts to provide assistance because they perceive that such assistance places them at a disadvantage when compared to other companies that simply refuse to expend developmental resources for law enforcement needs. The FBI has attempted to encourage service providers to voluntarily comply in different ways: e.g., in some instances purchasing a known solution for the service provider.

Question 8. Please identify whether the FBI is aware of any technological solution(s) to provide wiretap capability for each custom calling telephone feature that impedes interception orders. what is the estimated cost per year of implementing the technological solution(s) that the FBI has identified for each custom calling feature?

Answer. The FBI, through its liaison with many foreign law enforcement agencies, has learned that a technological solution to many of the switch-based problems is under development in one of those countries. The foreign law enforcement agency in question has requested that the FBI not share the details or costs related to this effort. Aside from this constraint, further elaboration would involve classified information.

Question 10. Under the proposal, the Attorney General would be given authority to enforce the requirements. What is the mechanism the Attorney General will use to make accurate estimates of criminal activities requiring wiretaps as an investigative technique, so that industry will be given clear capacity guidelines? Is the FBI able to predict accurately the number of wiretaps that will be employed in the future? If so, has the FBI provided the telephone companies with those estimates and discussed wiretap capacity? What has been the result of those discussions?

Answer. The, Administration's legislative proposal contains a “consultation" provision (Section 3(g)) which encourages the Attorney General to consult with the FCC and the telecommunications industry to discuss details of the law enforcement requirements "related to capacity and cost-effective approaches." Pursuant to this provision, the Attorney General, through the FBI and other law enforcement representatives, will consult closely with industry so that industry will be able to develop appropriate and flexible deployment strategies for their solutions based, in part, upon historical interception activity as well as upon flexible components that accommodate broad "ranges of capacity.” (See pages 5 and 6 of the legislative proposal's section-by-section analysis and page 47 of Director Freeh's statement for the record.) Approaches currently being discussed in the Electronic Communications Service Provider Committee, acting under the aegis of ATIS, will most likely allow for acceptable and compliant ranges of intercept|pen register capacity without the need to develop or be concerned with precise interception/pen register/trap and trace numbers.

Representative EDWARDS. Thank you, Mr. Freeh.

Senator LEAHY. I am going to yield to Senator Specter, but I would just make one point. None of us wants to impede the ability to go after kidnappers. I have been involved in kidnapping cases. I have been involved with missing persons cases. I have been involved in extortion cases. I have another district attorney beside me who is going to ask questions who has had far more experience than I.

I would just remind you of a survey done, a Time-CNN survey, that said 66 percent of the people thought privacy was more important than wiretapping capability by police. Now, obviously if it is your family involved, that may well change. But we do have some very serious privacy concerns in this country. I know you are dedicated to protecting privacy; we are dedicated to protecting privacy. But that is also one of the underlying questions of this whole thing.

Arlen? STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM

THE STATE OF PENNSYLVANIA Senator SPECTER. Thank you very much, Mr. Chairman.

At the outset, I commend the chairmen of the Senate and House for convening this joint hearing. Coincidentally, Director Freeh, with your testimony today the Philadelphia Inquirer has a major story on “FBI Nets Stanfá In Mob Sweep,” and the subheadline is "FBI's Rich Harvest Was a Tale of the Tape," which could not come at a more opportune time to underscore the kind of need of which you are testifying.

As Senator Leahy stated, I was district attorney of Philadelphia where we targeted the mob for a long period of time, so that I think there is a good bit of sympathy from the Congress on trying to accommodate law enforcement's interests.

I have just written a note to one of the chairmen asking if we might hear early from the telephone company on the technical problems—I have to excuse myself at about 11:45—to see what is involved there and perhaps have some insights from the civil liberties interests where there understandably a major concern. When you and I talked about this matter privately, we spent some substantial time on the civil liberties aspect.

I have long had a concern about wiretapping from the civil liberties point of view. Back in the mid to late 1960's I was the sole dissenter among Pennsylvania's 67 DA's on a a wiretapping issue. Therefore, I think the issue of need is fairly well established as to

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