« PrécédentContinuer »
Quite simply, the purpose of this legislation (draft) is to maintain technological capabilities commensurate with existing statutory authority—that is, to prevent advanced telecommunications technology from repealing de facto the statutory authority already conferred by the Congress. The proposed legislation explicitly states that the legislation does not enlarge or reduce the government's authority to lawfully conduct court-ordered electronic surveillance and install or use court-ordered pen register or trap and trace devices. The essence of the draft legislation is to clarify and more fully define the nature and extent of the telecommunications service provider's "assistance" requirement that was enacted by Congress in 1970. That requirement evidenced Congress' clear intent that lawful court orders should not be frustrated due to a service provider's failure to provide needed technological assistance and facilities. The proposed legislation relates solely to advanced technology, not legal authority or privacy.
We did not come to seek legislation blithely. For nearly four years, the FBI has expended every reasonable effort to address this threat through numerous and ongoing meetings with the telecommunications industry. However, it is my considered judgment, and that of the administration, that dialog alone, no matter how well intended, will not solve this serious threat to public safety. Nonetheless, we have listened and learned, and the legislative proposal before you represents, in our estimation, the only proper approach. On the one hand, it deals with the advanced telephony problem in an appropriately comprehensive fashion-it does not simply "band-aid-over" past problems, it also responsibly deals with new services and technologies (such as personal communications services) that likely will emerge in the next few years. On the other hand, the draft legislation is narrowly focused and covers on only those segments of the telecommunications industry where the vast majority of the problems exist—that is, on common carriers, a segment of the industry which historically has been subject to regulation. We believe the provisions of the administration's proposal address the problem in a very rational fashion. They include clearly stated law enforcement electronic surveillance requirements, systems security provisions, a reasonable deadline for compliance, requirements for equipment manufacturer and support service provider cooperation, proper enforcement and penalty provisions, ongoing government consultation with common carriers to facilitate compliance, and, importantly, a commitment on the part of the federal government to pay common carriers for reasonable charges associated with achieving compliance.
IMPORTANCE OF ELECTRONIC SURVEILLANCE As the proposed legislation is considered, it is absolutely essential that Congress understand the importance of electronic surveillance, as well as the severe harm that will occur if this critical law enforcement tool is lost or diminished.
The nation's telecommunications networks are routinely used in the commission of serious criminal activities, including terrorism and espionage. Organized crime groups and drug trafficking organizations, which are often highly structured, rely heavily upon telecommunications to plan and execute their criminal activities and hide their illegal proceeds. Similarly, foreign intelligence service officers and their agents carry out their spy and other clandestine missions through these networks.
Congress recognized this fact a little over 25 years ago, when it passed the Omni. bus Crime Control and Safe Streets Act of 1968. Title III of that Act contained the first comprehensive federal legislative regimen regarding electronic surveillance for use in criminal investigations. The Title III legislation established strict procedures for the conduct of electronic surveillance by federal, state and local law enforcement authorities. These procedures are carefully adhered to by law enforcement and are rigorously enforced by the courts. To date, thirty-seven (37) states, Puerto Rico, the U.S. Virgin Islands, and the District of Columbia also have enacted electronic surveillance statutes. In 1992, a total of 919 Title III orders, as well as an estimated 9,000 pen register orders, were authorized for all federal, state, and local law enforcement agencies. On average, approximately two-thirds of the criminal-related electronic surveillance conducted in the United States is carried out by state and local law enforcement agencies. As mandated in the Title III legislation, electronic surveillance may be used only in the investigation of serious felony offenses and only when other investigative techniques will not work or are too dangerous.
In 1978, Congress established an analogous federal electronic surveillance regimen for use in counter-intelligence, counter-terrorism, and counter-espionage investigations, the foreign intelligence surveillance act of 1978 (FISA). Pursuant to FISA, the U.S. Government is authorized to intercept communications of individuals who pose a threat to the national security, and include those in furtherance of espionage and terrorism.
Since the passage of Title III, law enforcement has found electronic surveillance to be one of its most important investigative techniques if not the most important. Use of the technique has been critical in fighting organized crime, drug trafficking, public corruption, fraud, terrorism, and violent crime, and in saving numerous innocent lives. In many of these cases, the criminal activity under investigation could never have been fully detected, prevented, adequately investigated, or successfully prosecuted without the use of evidence derived from court-ordered electronic surveillance. Similarly, FISA-based intelligence information makes a significant and important contribution to U.S. counter-intelligence, counter-terrorism, and counter-espionage efforts.
As you are aware, electronic surveillance is a critical tool used to detect and obtain evidence of, and often prevent, the most serious, and often most violent, crimi. nal activity confronting our society. As shown in the attached exhibit, although used sparingly, electronic surveillance has proved to be an extremely effective investigative technique for law enforcement and has led to the convictions of thousands of dangerous persons involved in drug trafficking, organized crime, violent crime, kidnaping, crimes against children, and public corruption. Because a substantial number of prosecutions are ongoing, the exact number of convictions resulting from these wiretaps increases almost daily; however, this key investigative technique has proven to be incomparably effective, with the resulting evidence securing the conviction of over 22,000 dangerous felons over the past decade.
PUBLIC SAFETY: PREVENTING CRIMES AND SAVING HUMAN LIVES Although electronic surveillance is extremely important as an investigative tool to acquire evidence, frequently it has been essential in preventing crimes from occurring and in saving human life. Electronic surveillance has been essential in preventing murders; in saving human life put at risk through planned terrorist attacks; in dismantling entrenched organized crime groups which severely harm the economy through extortion, fraud, and corruption; and in attacking the major national and international drug importation and distribution cartels and networks whose activities ravage society and cause incalculable personal and economic injury in the United States.
ORGANIZED CRIME INVESTIGATIONS The activities of organized crime are extremely harmful to American business and industry, labor unions, and individuals in our society. Electronic surveillance is indispensable in combating organized crime. Indeed, the FBI's organized crime/drugs section reports that every major FBI organized crime investigation has relied upon electronic surveillance. In April, 1988, the importance of the electronic surveillance technique was formally recognized in hearing testimony before the U.S. Senate permanent subcommittee on investigations, Governmental Affairs Committee, on Organized Crime: "25 years after Valachi." in particular, David C. Williams, Office of Special Investigations, General Accounting Office, testified that "electronic surveillance is another tool that has been of great value to the law enforcement community to combat the La Cosa Nostra (LCN) (organized crime families). Evidence gathered through electronic surveillance * * * has had a devastating impact on organized crime." (emphasis added)
Left unchecked, organized crime exerts a choke hold on society, and the subsequent cost to business and industry is dramatic. Greater detail concerning areas of organized crime's penetration in business and labor unions and examples of the successful use of electronic surveillance to effectively combat the adverse impact of organized crime upon the economy and society is set forth in the attached appendix.
In the 1986 report, The Impact: Organized Crime Today, the President's Commission on Organized Crime utilized the Wharton Business School's long-term model of the United States economy to estimate the cost of organized crime on the economy, in terms of sustained higher prices and the continued underpayment of taxes to the Federal Government. The commission concluded that the estimated economy. wide impact of organized crime, excluding drug trafficking organizations, was as follows:
• U.S. output was reduced by $18.2 billion in 1986 dollars.
FBI organized crime program managers state: “The loss or impairment of the ca. pability to conduct court-ordered electronic surveillance would catastrophically im
pair Federal and State law enforcement agencies' ability to effectively investigate or. ganized criminal groups." (emphasis added)
Although no studies have been conducted to measure the precise economic and so cietal benefits derived from the successes of Federal and State criminal law enforcement agencies against organized crime, it is evident that an abatement in successful organized crime investigations, due to the loss or impairment of one of law enforcement's most important tools—the court ordered electronic surveillance technique would allow organized crime's damage to the U.S. economy to become substantially greater.
NARCOTICS AND DANGEROUS DRUGS The greatest use of electronic surveillance by law enforcement relates to the fed. eral and state governments “war on drugs." Information reported in the Federal wiretap report by the Administrative Office of the United States Courts indicates that almost two thirds (62 percent) of all Title III governmental electronic surveillance is devoted to this critical national problem. The major drug trafficking organizations which import and distribute drugs, like any business organization, rely heavily on telecommunications to coordinate and carry out these criminal activities and to "launder the billions of dollars in illegal drug proceeds. Accordingly, Federal and State law enforcement maximize their limited resources and focus electronic surveillance efforts on the main drug importation and distribution networks.
Although figures abound with regard to the billions of dollars in Federal, State, and local seizures of drugs, illegal drug proceeds (cash and other assets), etc., the fundamental harm to society is incalculable. It is impossible to fully identify the human, economic, and other societal harm brought about by drug dependency and addiction. In one attempt to quantify certain facets of this harm, the U.S. public health service has estimated the health, labor, and crime costs of drug abuse at $58.3 billion in 1988, exclusive of the value of the drugs themselves. D. Rice, et al., U.S. Department of Health and Human Services, the Economic Cost of Alcohol and Drug Abuse and Mental Illness: 1985, table 1, page 2 (1990). A 1992 U.S. Department of Health and Human Services study estimates the 1992 costs of drug abuse in the United States to be $168 billion or $675 per person. Approximately $40 billion a year are spent by users to procure these drugs.
Ultimately, the economic, societal, and personal harm of drug trafficking is also measured in daily "drive-by shootings" in neighborhood streets (where the blood of innocent children is spilled next to that of neighborhood drug lieutenants); substantially increased crime such as thefts, robberies, and murders brought about by drug use; violent "turf battles" to control drug distribution; lost productivity, employee absence; extensive and expensive health care with drug casualties that clog our hospital emergency rooms; as well as the sad occurrence of a generation of drug-dependent babies.
The drugs which are most responsible for this problem are essentially those (such as cocaine and heroin) which must be imported into the United States, generally by highly organized criminal groups, drug trafficking cartels and other syndicates, and thereafter transported over vast distances and distributed widely within the United States. These cartels and organizations rely heavily on telecommunications to carry out their illegal activities. The United States Government estimates that every year over 400 metric tons of cocaine and approximately 18 to 22 metric tons of heroin are smuggled into the United States.
Electronic surveillance is critical in the monitoring of the drug traffickers' "communications networks,” providing law enforcement with the ability to identify all of the organization's drug traffickers and their illegal proceeds, as well as ultimately in dismantling those national and international drug trafficking organizations. Since national and international drug chieftains and local drug “kingpins" do not appear at drug buys or shipments, electronic surveillance ordinarily provides the only reliable method of linking the drug organizations' leaders with the enterprise, and frequently provides the only direct and persuasive evidence that will support a crimi. nal conviction. Consequently, information derived from electronic surveillance is essential in successfully prosecuting those at the executive level of the drug trade.
Recent examples of the critical role of electronic surveillance in drug investigations are:
In a New York City-based drug trafficking investigation, an FBI-led task force conducted over 55 separate electronic surveillances (with numerous extensions). As of March 1993, this investigation has resulted in 222 arrests; 167 convictions; the dismantling of 15 major drug trafficking organizations/gangs, and the identification of 30 others; the resolution of some 40 New York area homicides, including the assassination of a NYCPD police officer and a New York state parole officer. Substantial quantities of drugs have been seized and over $8 million in assets have been seized. These efforts have resulted in a substantial reduction in drug-related homicides; The April, 1992, drug raid in Miami that netted 15,000 pounds of cocaine which was based on information developed through electronic surveillance. Evidence derived from electronic surveillance was instrumental in identifying the net
work's leader among the 22 defendants arrested; • The 1991 DEA Herrera Drug Investigation in New York City resulting in the
successful prosecution of 51 defendants, including key individuals linked to the
call drug cartel, relied upon electronic surveillance. Without the use of one of federal and state law enforcement's most important enforcement toolo-electronic surveillance the volume of drugs would dramatically in. crease and the ease and means of drug importation and distribution would be dra. matically enhanced through the drug traffickers' unfettered use of their drug "com. munications networks."
PUBLIC CORRUPTION AND GOVERNMENTAL FRAUD Integrity in government is a keystone in any democracy. Corruption and fraud undermine the public's respect and confidence in governmental institutions and in the rule of law. By their nature, corruption and fraud can only flourish in secrecy, hidden from public view. As a result, normal, overt investigative techniques are in most cases totally unavailing. Hence, as a general proposition, law enforcement has found that electronic surveillance and undercover operations are critical means to effectively detect, investigate, and prosecute these insidious crime problems.
In several recent judicial corruption investigations, electronic surveillance evidence has directly led to the conviction of two federal district court judges and, in another case, to the indictment or plea of six current of former Dade County, Florida, State judges (four convicted, one acquitted, and one to be retried) and five attorneys (all convicted) for extortion and case fixing. Within the recent past, electronic surveillance helped build a corruption case involving the police force of a large midwestern city which included extortion and protection for gambling and narcotics distribution. Thirty police officers and 17 others were indicted, and 46 of the 47 either pled or have been found guilty.
Electronic surveillance has played an indispensable role in countering governmental fraud. For example, the "ill-wind" investigation (which was largely based upon 36 separate court ordered electronic surveillances conducted across the United States) has had a tremendous impact upon fraud and abuse both within the government and within the industries that contract with the government. To date, the “illwind" investigation has resulted in 65 convictions (including high-level Department of Defense officials and eight corporations), sanctions against contractors, and over a quarter of a billion dollars ($271,000,000) in fines, restitutions, and recoveries ordered. Evidence necessary to obtain these convictions fines recoveries etc., would have been impossible to obtain without electronic surveillance.
The high cost of health care in the United States is a problem of tremendous importance to our society. Unfortunately, billions of health care dollars are wasted through fraud. With regard to health care fraud, electronic surveillance has been extremely important. In 1993, in New York, electronic surveillance of hardwired (fixed) and cellular (mobile) telephones produced critical evidence in a case involving widespread Medicare Medicaid fraud carried out by numerous pharmacies and pharmacists. Seventy-nine (79) individuals, including 38 pharmacists, were indicted. To date, 79 individuals have been convicted or pled guilty and $6.6 million in assets are subject to seizure and forfeiture. Similarly, in 1993, in Detroit, electronic surveillance was instrumental in investigating and prosecuting a wide-spread Medicare Medicaid fraud perpetrated by numerous pharmacies and pharmacists.
Thirty-two (32) pharmacies/pharmacists were prosecuted, and $4 million in crimi. nal forfeitures are expected to follow. The FBI estimates that the health care fraud in of the foregoing cases alone ranged in the tens of millions of dollars.
Recently, a major governmental fraud case involving Russian emigre organized crime and the Gambino LCN organized crime family was successfully investigated through the use of an undercover operation and the substantial use of electronic surveillance to intercept a number of cellular telephones. The criminal scheme involved defrauding the Federal Government and State governments of motor fuel taxes. The Department of Justice estimates than more than $1 billion in federal excise tax, funds that are earned for the highway trust fund for use in maintaining the nation's highway infrastructure, is illegally "skimmed" each year. An indictment in the foregoing case has been returned in Newark, charging 14 individuals with defrauding the Federal Government and the State of New Jersey out of more than $60 million in tax revenues and with laundering $66.2 million resulting in 4 convictions to date. A number of the subjects in this investigation utilized cellular telephones and frequently changed cellular telephones in an effort to thwart electronic surveillance. The intercepted telephone conversations were critical to proving the involvement of the LCN in this Russian organized crime fraud against Federal and State Governments.
TERRORISM A significant number of terrorist acts, including bombings and murders, have been prevented through the effective use of electronic surveillance. Many of these terrorist acts, if not prevented, likely would have had substantial national and/or international implications. In one case, the bombing of a foreign consulate in the United States was prevented, and the electronic surveillance evidence was used in the subsequent conviction of the principals. In another case, a terrorist rocket attack against a United States ally by a foreign-based terrorist group was thwarted, and the electronic surveillance-based investigation led to the arrest of the principals and the prevention of the loss of life of scores of persons.
In 1986, the efforts of the violent El Rukn Chicago street gang to shoot down a commercial airliner within the United States with a stolen military weapon system was thwarted through electronic surveillance. The FBI's prevention of this act of state-sponsored terrorism, financed by Libya, which would have cost several hundred U.S. lives, was singularly attributable to the use of electronic surveillance but for the availability of this technique, another pan an 103 disaster could have occurred on American soil.
More recently, in 1993, electronic surveillance contributed to the indictment of individuals in the St. Louis-based cell of the ABU Nidal organization on RICO charges of murder, conspiracy to commit murder, and conspiracy to bomb the Israeli embassy in Washington, DC in 1990, foreign-based terrorists were prevented from acquiring a stinger surface-to-air missile which was to be employed in a terrorist act wherein numerous people would undoubtedly have been killed. Also, in 1989, as a direct result of court-ordered electronic surveillance in a terrorist-related matter, information was obtained which resulted in the conviction of two individuals for the brutal homicide of their 16-year-old daughter.
Beyond the foregoing instances, over the last decade numerous other terrorist-related investigations have utilized electronic surveillance to: prevent a rocket attack against an FBI field office; prevent an attack on a nuclear power facility; solve several murders; identify the perpetrators of a $7,000,000 armed robbery; and solve and prevent several bombings by anti-Castro groups in Miami, Florida.
VIOLENT CRIME Many violent crimes, including murder, have been solved and a significant number prevented by law enforcement's "real time" response to, and preventive actions taken as a result of conversations intercepted through electronic surveillance. Electronic surveillance has been used in combating and solving violent crimes perpetrated by both organized criminal groups and by individuals. The following are recent examples of cases in which electronic surveillance has been crucial in saving lives or preventing violent acts from occurring:
Conversations of members of the New England LCN family were intercepted wherein the murders of three individuals were planned, and details concerning six prior murders were discussed. Of the three planned murders, two were prevented by the FBI; the third could not be prevented because of an inability to
locate the victim prior to his murder. • One of the most violent Asian organized crime gangs active in the New York
City area is the Green Dragons, which, as of 1990, was directed telephonically by Kin Fei Wong from the People's Republic of China. The Green Dragons Gang perpetrated murder, armed robberies, home invasions, extortion, drug trafficking, and were involved in the obstruction of justice. Court-ordered electronic surveillance provided evidence of these crimes and also disclosed that the Green Dragons were about to engage in a "shoot out" with a rival Asian gang. Immediately acting upon this information, 16 members of the group were arrested by FBI agents and police officers and an imminent violent confrontation and loss of life were prevented. Based partly upon evidence derived from electronic surveillance, all defendants were found guilty of racketeering, racketeering conspiracy, and numerous substantive counts which included murder, kidnapping, home invasions, armed robbery, extortion and bribery of a public official.