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DIGITAL TELEPHONY AND
LAW ENFORCEMENT ACCESS TO
ADVANCED TELECOMMUNICATIONS

TECHNOLOGIES AND SERVICES

FRIDAY, MARCH 18, 1994

U.S. SENATE, SUBCOMMITTEE ON TECHNOLOGY AND THE
LAW, COMMITTEE ON THE JUDICIARY, JOINTLY WITH
HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CIVIL
AND CONSTITUTIONAL RIGHTS, COMMITTEE ON THE JU-
DICIARY,

Washington, DC. The subcommittees met, pursuant to notice, at 10:35 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy and Hon. Don Edwards presiding.

Also present: Senators Specter, and Cohen (ex officio), and Representatives Edwards, Hyde, and Canady. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S.

SENATOR FROM THE STATE OF VERMONT Senator LEAHY. We can begin. I am going to make a brief opening statement and then yield to Chairman Edwards and then the ranking Republican on this side and then my good friend, Henry Hyde, from Illinois.

I should state before I start, however, that it is a matter of great pride to me to be here with Don Edwards, a man I am going to miss, somebody I have known in all my years in the Senate. He was already a senior member of the Congress when I came here and one person I have worked with very closely on so many issues, far more than I could recount here, in the 20 years I have been here. Mr. Chairman, I am proud that you could join us here, and I am going to miss you when you leave at the end of this year.

Representative EDWARDS. Thank you, Pat.

Senator LEAHY. The fourth amendment strikes a delicate balance that we have always maintained to protect our personal privacy to the greatest extent possible. At the same time, it provides for law enforcement needs. This balance is what we, Judge Freeh and others, are here to examine today.

Law enforcement, as we all know, is our way to help secure our personal safety. I do not think there are any times that I can remember when the American people's concern about crime and our vulnerability to crime has been greater than it is today. We have seen the terrorist bombing of the World Trade Center, something that paralyzed not only a great city but, in many ways, much of

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the rest of the Nation as that situation was sorted out. We have seen the exposure of a foreign spy within the upper echelon of our intelligence agency. We have heard the reports of violent crime in virtually every part of our country, whether it is an urban or rural areas.

Now, I would note for those who are here, these hearings are being chaired by a former State prosecutor and a former FBI agent. I must say that FBI agent has served not only this country but the people of San Jose and the Bay area very, very well, and he will be missed.

What we have to do is to understand where we have come from those days back in 1928 when Justice Brandeis said:

Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home • • *. Can it be that the Constitution affords no protection against such invasions of individual security?

We have worked in the Congress and in our Federal law enforcement to strike the appropriate balance to protect our individual privacy and expectation of privacy. Ten years ago, in 1984, I asked the then Attorney General whether interceptions of electronic mail and computer-to-computer communications were covered by the Federal wiretap law. The Justice Department's answer 10 years ago highlighted developing communications technology but could not provide a definitive answer. So together with House and Senate colleagues and Federal and State law enforcement, the communications industry and privacy advocates, we worked for the next couple of years, through hearings and legislation proposals, to produce the last major revision of our Nation's wiretap laws, the Electronic Communications Privacy Act of 1986—something I was very proud to work on.

Now, current law requires telephone companies and other providers of electronic and wire services to give all assistance necessary so that law enforcement agents can implement lawful wiretap orders. I think the question we are going to have, the basic question that will be asked a dozen different ways, is why the authority that we enacted in 1986 is no longer sufficient. We need to reassure the public how they will be affected. We have to clarify for telecommunications service providers what duties they are going to be assigned. Finally, we need to consider the ultimate costs of the changes being proposed, but we also have to consider the costs that might be there if we do nothing.

Some suggest that the costs if we go forward will include expenditures of hundreds of millions, if not billions of dollars. But I think more important is the issue of whether we are making merely a course correction or embarking on a fundamental change that will affect how we do business, how innovative technology develops, and how much personal privacy we are able to maintain in a digital, high-tech world.

I hope that we can serve legitimate law enforcement needs without jeopardizing privacy rights or frustrating innovation and the development of new technologies or undercutting the competitive ness of America's high-tech industries. We have maintained a delicate balance for 200 years, but what we are going to do here will

actually set much of what we may do as we go into the next century. [The prepared statement of Senator Leahy follows:]

PREPARED STATEMENT OF SENATOR PATRICK J. LEAHY The Fourth Amendment to our Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Within these words and evident in the very structure of the Fourth Amendment is the delicate balance we have always maintained to protect our personal privacy to the greatest extent possible while providing for legitimate law enforcement needs. This is the delicate balance that we are here to examine, again, today.

Law enforcement is, at its core, our way to help secure our personal safety. Never have the American people's concern about crime and our feeling of vulnerability to crime been greater than it is today. We have recently experienced the terrorist bombing of the World Trade Center, the exposure of a foreign spy within the upper echelon of our intelligence agency, and the incessant reports of violent crime in virtually every town, city and rural area in every state in the country.

I observe that these Joint Hearings of the House and Senate are being jointly chaired by a former state's prosecutor and a former FBI agent. I am delighted to share the responsibility for chairing these hearings with the distinguished and longstanding Chairman of the Subcommittee on Civil and Constitutional Rights of the House Judiciary Committee. Don Edwards has announced that after serving 32 years he will not be seeking re-election. His judgment, legislative skills and commitment to serving not only the people of San Jose and the Bay Area in California but the interests of all people and the Nation, will be sorely missed.

When the issue of wiretapping first came before the United States Supreme Court in 1928, Justice Brandeis cautioned:

Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home * * *. Can it be that the Constitution affords no protection

against such invasions of individual security? The answer to his question is, of course, that the Constitution is our protection from unreasonable searches and seizures, but the technological capabilities Brandeis foresaw are fast upon us.

In 1968 Congress first considered and passed comprehensive wiretap legislation and drew the delicate balance between personal privacy and law enforcement needs.

Ten years ago, in 1984 I asked the then Attorney General whether interceptions of electronic mail and computer-to-computer communications were covered by the Federal wiretap law. The Justice Department's answer highlighted developing communications technology but could not provide a definitive answer. Together with House and Senate colleagues, Federal and State law enforcement, the communications industry and privacy advocates we worked for the next two years, through hearings and legislative proposals, to produce the last major revision of our Nation's wiretap laws, the Electronic Communications Privacy Act of 1986. At the time, we amended the law to take into account developments in communications and computer technology and the structure of the telecommunications industry.

In late February of this year, Director Freeh came to me and other members of Congress to consult about a proposal to revise our wiretaps laws anew in the face of the increasing pace of advances in telecommunications technology and impediments to execution of court-ordered wiretaps. I have great respect for Director Freeh and take very seriously his request that we examine these important issues, as this prompt joint hearing demonstrates. I look forward to hearing from Director Freeh and working with him and other representatives of law enforcement.

Current law requires telephone companies and other providers of electronic and wire services to give all assistance necessary so that law enforcement agents can implement lawful wiretap orders. We need to know why and how that authority is no longer sufficient. We need to reassure the public how they will be affected and clarify for telecommunications service providers what duties they will be assigned Finally, we will need to consider the ultimate costs of the changes being proposed and the risks of inaction. Some suggest float those costs will include expenditures of hundreds of millions if not billions of dollars But more important is whether we

are making merely a course correction or embarking on a fundamental change that will affect how we do business, how innovative technology develops and how much personal privacy we are able to maintain in a digital, high-technology world

My hope is that we can serve legitimate law enforcement needs without jeopardizing privacy rights or frustrating innovation and the development of new technologies or undercutting the competitiveness of America's high-tech industries. Americans' basic values demand that we maintain the delicate balance that has served us so well for over 200 years.

Senator LEAHY. Chairman Edwards?

expresses of being te very imp

STATEMENT OF HON. DON EDWARDS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA Representative EDWARDS. Thank you very much, Mr. Chairman, and thank you very much for your gracious introduction and welcome. And also thanks for letting Mr. Hyde and me have a visa to come into this grand place.

Mr. Chairman, I think you expressed very well our concerns about the bill and certainly our intention of being responsible in resolving the problem, taking into consideration the very important points that you outlined.

When I was an FBI agent-it was before some of you were born-Mr. Hoover was the boss, and it was illegal for us to tap telephones. I seem to remember we did it anyway, but I do not

(Laughter.)
Senator LEAHY. I always wondered about that.
Representative EDWARDS. But I will not admit it.

Then in 1968, for the first time, we made wiretapping legal with the certain safeguards. It has been legal ever since. We are anxious to help in the important work that the FBI does. This is an unsafe world, and the work that the FBI does is so important and especially under our new Director, whom we are delighted to have with us today.

Thank you again. Senator LEAHY. Thank you. Mr. Hyde? STATEMENT OF HON. HENRY J. HYDE, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF ILLINOIS Representative HYDE. Well, very briefly, Mr. Chairman, it is an honor to share a podium with Senator Leahy and Don Edwards. Don will be missed. Don is a living example of why term limits are not the brightest idea that I have ever heard.

In any event, I think all of us are working toward the same goal. We want to make sure that the technological advances in the field of telecommunications, which are considerable and ongoing and enormous, will not foreclose the ability of the FBI and other law enforcement agencies to conduct legal electronic surveillance.

Legislation is clearly necessary to help accomplish this goal, and I am confident that both the Senate and the House will work together to carefully craft legislation that will ensure that the delicate balance between citizens' rights of privacy and the important interests of law enforcement are balanced and met.

So I thank you, and I appreciate the opportunity of being here.

Representative EDWARDS. The gentleman from Florida is a new member. We are delighted to have him.

a thats a livinenator" Mr. CLINOISWATIVE IN

Senator LEAHY. Mr. Canady?
STATEMENT OF HON. CHARLES T. CANADY, A REPRESENTA.

TIVE IN CONGRESS FROM THE STATE OF FLORIDA
Representative CANADY. Thank you, Mr. Chairman.

I want to express my appreciation to both chairmen for conducting this hearing on a subject which is of such great importance to the law enforcement community throughout the United States. The ability of law enforcement authorities to monitor telephone communications pursuant to legal authorization is critical to our crimefighting and crime-preventing efforts, both at the Federal level and at the State and local level.

The impact that changing technology will have on that ability cannot be ignored. We in the Congress have an important responsibility to listen to the concerns of law enforcement on this important issue and to work with them and the telecommunications industry to fashion workable solutions to the problems and challenges created by the development and expansion of new telecommunications technologies.

I believe that we must do so in an expeditious manner to ensure that we avoid the degradation of law enforcement capabilities and that we also avoid the unnecessary expenditure of funds that may be necessary to correct problems that could have been avoided by timely action.

Thank you.
Senator LEAHY. Thank you.

We are delighted to have Judge Freeh, the Director of the FBI, here. Judge Freeh has received the strong and I think well-deserved support of everybody, certainly on the Senate Judiciary Committee, and I expect the same on the House Judiciary Committee, Republican and Democrat alike.

As I said during the hearings on his confirmation, I feel having somebody with a strong law enforcement background as FBI Director is extremely important.

Incidentally, Judge, I am glad to hear what you told me earlier this morning, that the two agents who were wounded are coming along well. I think the fact that they, like so many others in law enforcement, do face situations like that is a constant reminder that we are not dealing in the abstract in issues of law enforcement. You constantly have a lot of men and women who put their lives on the line, just as State and local law enforcement officers do.

We are delighted to have you here, and your full statement, of course, will be part of the record. Please proceed. STATEMENT OF LOUIS J. FREEH, DIRECTOR, FEDERAL

BUREAU OF INVESTIGATION Mr. FREEH. Thank you very much, and good morning to both chairmen and the other distinguished members. It is a delight to be before your distinguished respective committees and to be before you this morning. .

The United States is facing a grave and growing problem. New telecommunications technology is impeding or preventing law enforcement from conducting court-authorized electronic surveillance,

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