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tempt proceeding against the service provider. Is the threat of a contempt proceeding effective in compelling telephone companies to cooperate with law enforcement agencies in implementing interception orders? What penalties would be effective?

Answer. The current law applicable to wiretaps, pen registers and trap-and-trace devices is effective to assure compliance. Telephone companies strive to meet all requests within the time specified, with professionalism, and in cooperation with law enforcement officials. The telephone industry takes very seriously its responsibility to respond to law enforcement requirements. Given the long history of cooperation between our industry and law enforcement we believe additional penalties are unnecessary.

Question 2. Do you interpret the "technical assistance necessary” language of Section 251(4) of Title 18, to require service providers to take affirmative steps to develop technical solutions to accommodate or effectuate a court's electronic surveillance order?

Answer. The Congressional Committee report on Section 251 states that it “* * * is a codification of the cooperative working relationship that exists between telephone companies and law enforcement officials." The report describes that relationship as follows: “Telephone companies have, as a matter of practice, provided information and technical assistance to law enforcement officials in connection with lawfully authorized wiretaps.” Therefore, it is useful to examine the nature of the assistance provided today in order to interpret this statutory term. "Technical assistance” most often involves work by service providers that is operational in nature rather than technological. But telephone companies also have assisted in developing solutions to technological problems that have arisen when implementing particular wiretap orders. This assistance has involved such matters as a lack of working lines, malfunctioning lines, network equipment congestion (in the feeder plant) and lines with special features, such as Voice Mail. In practice, service providers and law enforcement agencies work cooperatively to find ways to implement and effect court orders.

Question 3. Can the same technology used by telephone companies to isolate particular lines for billing and maintenance purposes also be used to support a wiretap capability even as telecommunications networks become more advanced and digital transmissions are used from end-to-end? If not, what options are there for intercepting all communications associated with a specific digital line at a point or points remote from the customer's premises? Are options being studied or developed to permit for isolation of a particular line to a subscriber?

Answer. Telecommunications manufacturers and software vendors are in the best position to address the use of billing and maintenance systems to effectuate wiretaps. FBI requirements are different from a telephone company's record keeping needs, making it difficult to use current billing and maintenance technology for law enforcement purposes. For example, when fixing a customer's line, a telephone company's work need not be transparent to the customer.

For ISDN lines, existing test equipment can do much of what is needed to accommodate the needs of law enforcement agencies to access specific lines at a point or points remote from the customer's premises. Additional options have been studied in the ECSP Committee (under the auspices of the Alliance for Telecommunications Industry Solutions) to address ISDN and Digital Loop Carrier. ECSP is writing generic requirements for telecommunications equipment so that vendors can develop capabilities to gather data at the service provider's switch. At the switch, a particular customer line could be selected and monitored using this capability.

Question 4. You estimated in your written testimony that 1200 digital switches in the U.S. are currently operational. Have any interception orders been conducted on facilities using these digital switches? If so, how many?

Answer. Interception orders are conducted on lines that are connected to digital switches. The number of wiretaps on such facilities is not tracked by switch type because interception orders typically are executed in such a way that the switch type is not relevant.

Question 5. The FBI and telecommunications industry representatives have been meeting over the past couple of years to address law enforcement needs for continued wiretap capability. The FBI does not believe that this process is adequate to insure that any technological solutions to solve wiretapping problems will be implemented. Is the FBI correct in their evaluation of how well this Committee can work, even if all the participants operate in good faith with the best intentions?

Answer. There may be some confusion as to the role of the ECSP joint industryl law enforcement committee. Its purpose is to develop technical proposals for how law enforcement requirements can be met. The ECSP is making excellent progress in achieving those objectives. It was not intended, nor does it attempt, to address implementation commitments by individual companies.

Question 6. The FBI seeks to have industry, with its more thorough knowledge of the operations of telecommunications systems, develop the means to implement interception orders. The alternative would be for law enforcement agents to effectuate interceptions using their own equipment in complex, sensitive networks. This carries the risk of disrupting service. Is it better to have the telephone companies work with networks, switches and switch software, since they have the expertise, and provide the capability for wiretapping?

Answer. It is better to have the industry working with the customer (i.e., law enforcement agencies) to develop technical requirements. Service providers have more expertise with networks, switches, and software and can work with equipment and software vendors to create solutions in a consistent and standard way. This approach reduces the risk of disrupting service.

Question 7. Could features designed to facilitate law enforcement access to comm ations increase vulnerability to unauthorized interception?

Answer. It is difficult to predict how features designed into networks to facilitate law enforcement activities will affect the reliability of the network. However, features designed to facilitate law enforcement access to communications could well increase the vulnerability to unauthorized interceptions. This is because the more opportunity provided to any group to gain access, the more opportunity for the unauthorized to gain access. On the operations side, the responsibility for monitoring and upgrading the capability and using the technology effectively will fall to the service provider. Besides the surveillance capability itself

, a secure operational support system may be required to manage the process. This is one reason why interindustry standards must be set and followed regardless of what other issues may be addressed in legislation.

Question 8. If law enforcement's requirements had to be designed into every new piece of telecommunications equipment or new system, would this have any effect on how quickly American manufacturers could bring their products onto the market?

Answer. It could significantly slow development and implementation of new technologies/services. Law enforcement requirements would be another necessary consideration before designing and ultimately building a product. It would greatly affect manufacturers that have not built in these requirements, as existing equipment would become obsolete or need major upgrades.

Question 9. If designing and developing wiretap friendly telecommunications equipment and systems slowed down advances in U.S. technology, would this effect the competitiveness of U.S. industry in the global market?

Answer. A slowing of the development of domestic technology, such as described in response to question 8, would generally impair international competitiveness. After a piece of technology is developed domestically, the answer to this question then depends upon countries' policies regarding wiretaps, etc. If there is sufficient demand in other countries for these capabilities within their communications network, then vendors would have an opportunity to serve those markets as well. If there is insufficient demand in other countries, then the costs to provide such capability in equipment of American manufacture could reduce its competitiveness in global markets.

Question 10. Do you have a sense of whether American telecommunications equipment and systems will be more marketable overseas to foreign governments and foreign customers if these products incorporate law enforcement's requirements and are wiretap friendly?

Answer. See the response to Question 9.

Question 11. Existing law requires the government to pay for all “reasonable expenses incurred” by a service provider in assisting the government to execute wiretap orders. Under the FBI's proposal, the scope of industry's assistance would be expanded to include designing future telecommunications systems and equipment to comply with law enforcement's wiretapping requirements. What is your estimate of how much these design requirements would cost taxpayers in the future?

Answer. In order to answer this question on costs with any precision, one needs to know the technical impacts of law enforcement requirements in a number of areas, including present capacity demands, future capacity demands, coverage areas, amount and format of information, delivery mechanisms (store, leased line, dial-up), security measures, functionality, and features. The ECSP committee has made progress in writing generic requirements to guide vendor development. One would need estimates from the vendors about the cost of building these capabilities. We believe the cost could exceed a billion dollars. In one sense, these costs would continue into the future indefinitely, since each new system developed in the future would have to be designed and manufactured to meet these additional requirements.

Question 12. As personal communications services and networks (PCS/PCN) are developed, will the industry be able to isolate and intercept at a particular point remote from the customer, all communications associated with a specific customer number? What points will that be? If not, is that a capability being developed?

Answer. While the provision for PCS/PCN services generally lies outside the scope of USTA's member local exchange carriers, it is our understanding that a significant amount of work concerning PCS/PCN is being conducted in industry standards bodies. The ECSP Committee will be presenting contributions to several U.S. standards groups in the next few months regarding PCS. These contributions describe law enforcement's requirements for the lawfully-authorized interception of call setup information and call content, and discuss a concept for meeting these requirements in a PCS environment. (Last week, the ECSP Committee presented to one U.S. standards body a contribution regarding the requirements and capabilities sought in PCS for wiretaps.)

Question 13. Some of the noncommon carrier companies going into the wireless and PCS technologies will be direct competitors of the telephone companies, who would be subject to the FBI's requirements in the proposal. Would this have any effect on the ability of telephone companies to compete with these new technologies?

Answer. The same requirement to assist with wiretaps needs to be established for all entities that provide telecommunications services. All service providers (including noncommon carriers) must be required to work, support, implement, and comply with law enforcement requirements. In that way, broad compliance can be achieved and the competitive impacts will be lessened. To do otherwise would put common carriers at a disadvantage, but even more importantly, without the full ubiquity of law enforcement capabilities, there would be services where law enforcement would not have access to the call setup and call content information. People intending to violate the law can be expected to find the service providers for which law enforcement lacks wiretap capabilities and exploit the situation.

A related concern is whether it is cost effective to insist that each and every new telecommunications capability used on common carrier networks meet the proposed requirements. Some of these new capabilities would be deployed only for limited and special applications. They are not likely to be used by the typical targets of wiretap orders, and so one must question whether it makes sense to spend significant amounts of time and money on ensuring they meet the proposed requirements.

Question 14. The FBI has cited 91 instances in which law enforcement agencies could not execute interception orders due to technology. Forty instances apparently involved cellular providers, but in 29 instances, special calling features were the problem. The problem or problems in 22 instances were not identified by the FBI. Is your association or any members of your association aware of what the problem or problems were in the 22 instances referred to above? In addition, could you describe what, if anything telephone companies have done to assist law enforcement in executing interception orders involving special calling features that may thwart interception orders?

Answer. USTA has not had a direct involvement in handling wiretap orders, as this activity is conducted between the relevant law enforcement agency and the telephone operating company serving the surveillance target. Accordingly, we cannot respond at this time to the particulars of the alleged 29 instances involving special calling features. We do know that the ECSP Committee, in which USTA and its member companies participate, is working to identify circumstances that may interfere with wiretap capabilities and to develop standards for solutions. We also are aware of instances where a member company has facilitated wiretaps on special calling features for law enforcement agencies, including real-time voice mail interceptions.

Question 15. The FBI has conservatively estimated that, over the last decade, several hundred electronic surveillance, pen register and tap-and-trace orders have been frustrated, in whole or in part, by various technological impediments. Is your association or any member of your association aware of what the technological impediments are that would frustrate this number of interception orders? Please describe those impediments and what efforts, if any, the industry has taken with respect to overcome each impediment and assist law enforcement.

Answer. For the reason stated above, USTA is not in possession of specific particulars on wiretap events. The appropriate body to assess impediments encountered due to various technologies is the ECSP Committee, which is supported by a number of relevant industries in addition to USTA and its member companies.

Senator LEAHY. Mr. Berman, how do you feel about all this?


STATEMENT OF JERRY BERMAN Mr. BERMAN. Mr. Chairman, I am here on behalf of the Electronic Frontier Foundation, which is an organization concerned with civil liberties in the digital era. I am also here on behalf of the coalition of over 50 communications, computer, and civil liberties organizations that have been opposing the administration's proposals, but also always saying let's work out a more reasonable solution. And I am accompanied by Ron Plesser, from Piper & Marbury, who drafted a report which I would submit for the record which is a long chronology of the efforts by industry to cooperate and to meet the needs of the FBI as they identify problems.

But I want to stress the privacy issues here. The Digital Privacy and Security Working Group really is the outgrowth of the coalition that worked with you and with Mr. Edwards and others in the Congress to pass the Electronics Communications Privacy Act. That was the recognition that we were entering into an era of an information highway, that technologies were converging and that we needed to protect the content of communications being carried over these networks, and also the transactional information that was being generated by these technologies. It was landmark legislation establishing that we had to incorporate these values into the information highway.

Now we have proposals which amount, by the administration and in going through the Congress, to expand the information highway so that eventually voice, data, and video communications by all citi

are going to be carried over this network. We are going to do the real dream of being able to do banking, medical services, political activity, order movies. The whole range of activities that are possible here is coming to fruition, and government is bringing that about by a policy of decentralization and competition and allowing the industry to really make use of its innovation to drive the technology, to get government out of the way.

Here we have on the other side of the fence the FBI and the Justice Department coming in and saying, no, what we really need here is to establish industrial policy and put the Attorney General at the head of the information highway to make sure that we can conduct our wiretapping job. No one disagrees with the need to maintain law enforcement authority, but there is simply no justification on the record for this broad sweeping legislation, which includes broad sweeping new intrusions into privacy.

While the Director said that there was some misleading of the public about the intent in this bill and they have also said that they are prepared to redraft it, that means that something was wrong with this first draft. And what was wrong was that they were saying not only do we want the contents of communications delivered to remote locations through network design, but we want all of the transactional information, the call setup information which is being generated, delivered to remote locations, not simply investigations where there is a warrant but any lawful investigation.

The toll record and the pen register which this may get carved out to is one thing. There are even questions about the broad use and access to that information. But the toll record and billing record of the future is all these transactions we as citizens are

going to be doing across this network. It will tell you what movies you are going to be watching. It will tell you what magazines you subscribe to, what doctor you are seeing, where you are at any particular moment.

Congressman Edwards, when I was at the ACLU, we were for years on the NCIC tracking system, the National Crime Information Center, and they might be able to point at people. And we op

pose that.

This dwarfs the NCIC. This is NCIC-squared because this really is the real-time transactions, not of people arrested or wanted, but every live American human being dealing in the electronic communications era. So it has to be narrow.

On top of that, to come out with a proposal that says if you do not—this is industrial policy. It says if you do not meet the design here and if a network provider does not meet, we can shut you down. I do not believe that that would stand scrutiny under the first amendment, that failure to meet some requirement for a fourth amendment wiretap could allow the Federal Government to go into court and enjoin Bell Atlantic or AT&T and say you are not operating anymore, the phones are stopped. And that is on the face of this bill.

There are also war powers in here with respect to manufacturers. There is a section in here which says that manufacturers of hardware and software have to meet the requirements that carriers need to meet on a priority basis at reasonable cost. It does not say you get to bid on the software design, but, Microsoft, if you are building the set top box of the future, you design it the way we want it. That is industrial policy. I think it is unconstitutional except in time of war. But it raises enormous questions about the scope of this legislation, and we really have to go back in questions and get to the heart of where the problem is. And I think it can be addressed in much narrower form and without this kind of legislation, and I hold myself open to questions.

My last comment is that I simply applaud the fact that Congress is getting into this. We have been having a dialog. I speak on behalf of this coalition for 2 years with the administration, the Bush administration and Clinton administration. And we are like ships passing in the dark. There is a great deal of separation between the private sector, industry and civil liberties, and the administration, and it needs Congress to bridge that gap if we are going to solve law enforcement problems and continue to keep a balance with our privacy rights in the United States.

Thank you, Mr. Chairman.
[Mr. Berman submitted the following:]

PREPARED STATEMENT OF JERRY BERMAN AND RONALD L. PLESSER Chairman Leahy, Chairman Edwards, and Members of the Subcommittees: We appreciate the opportunity to testify today on the Clinton Administration's draft legislation, "the Digital Telephony and Communications Privacy improvement Act of 1994.” I am the executive director of the Electronic Frontier Foundation (EFF), a public interest organization dedicated to achieving the democratic potential of new communications and computer technology. With me today is Ronald Plesser, a partner at Piper and Marbury and counsel to EFF on digital telephony issues.

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