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To support normal operations, service providers must manage and maintain their networks. This is terribly important to the FBI just as it is for everyone. Law enforcement electronic surveillance interception access to communications will be a stringently controlled extension of the system's features. With adequate planning, the integration of law enforcement's needs should be easily accommodated within the requirements for network security. To further enhance the public's confidence in the security of our communications networks, subcommittee staff have raised with us the issue of imposing reporting and auditing requirements on common carries concerning their implementation of authorized intercepts. We are supportive of such requirements.
EFFECTS ON NETWORK DESIGN AND TECHNOLOGY Another concern that has been raised is the possible negative impact this legislation might have on network design and technology, requiring a broad re-engineering of the network components. The proposed legislation does not require common carriers to design their systems in any one, particular way. The proposal simply requires that common carriers respond to the generic requirements of law enforcement and provide law enforcement with interception access and the capability and capacity to intercept wire and electronic communications, in real time, when authorized by law.
This legislation also does not propose that industry design systems with the abil. ity to wiretap as the "design goal.” Law enforcement is simply requiring common carriers to craft appropriate solutions that interface with their networks designs. Industry is in the best position to develop reasonable and cost-effective solutions and, at the same time, maintain the security and reliability of the networks.
Furthermore, we are unaware of any authoritative industry statement that these requirements would significantly delay development of new technologies.
Additionally, this legislation does not prohibit or impede the deployment of new telecommunications 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 impede electronic surveillance, likely will offer solutions to these very problems.
Law enforcement's requirements will not dictate the course or pace of technology. However, with this legislation, our requirements intentionally will be included, rather than excluded, in the development of new technology in much the same fashion that other legislation requires new technologies and products to take public safety into account.
COMPETITIVENESS Another issue raised pertains to the effect of the legislation on American competitiveness. The proposed legislation will not in any fashion adversely affect competitiveness. Domestically, the proposed legislation would mean that all 2,000 common carriers would compete on a "level playing field" because all providers would be required to meet the sane electronic surveillance specifications. The proposed legislation does not prohibit U.S. manufacturers or international service providers from developing or deploying equipment or service features for sale outside the United States that are different from that required pursuant to the proposed legislation. This proposal only applies to common carrier communications services deployed within the United States. If anything, this legislation could provide U.S. industry with a competitive edge. Other democratic nations will very likely want tele. communications systems and equipment that preclude service providers from developing or deploying equipment or service features not capable of intercept.
PRIVACY-BASED OBJECTIONS A spokesperson for the American Civil Liberties Union (ACLU) has stated on numerous occasions that the ACLU opposes the proposed legislation because it would allow law enforcement to maintain technical capabilities commensurate with existing federal and state legal authorities. This is because the ACLU opposes the existing legal authorities—those found in the Title III and FISA statutes, as it persists in the erroneous position that wiretapping is unconstitutional per se. This radical position is in flat opposition to the policy positions and the constitutional analyses of the executive, legislative, and judicial branches of both the Federal and State Governments. The United States Supreme Court held long ago that the Title III wiretap statute is constitutional. See United States v. Donovan, 429 U.S. 413 (1977).
Privacy is protected in the federal and state electronic surveillance statutes by requiring law enforcement agencies' adherence to a number of legislatively-created protections that far exceed the fourth amendment requirements relating to court orders based upon probable cause.
In fact, the proposed legislation contains a number of privacy-enhancing provisions, such as extending full privacy protection to cordless telephones, radio-based electronic communications, and communications transmitted using privacy-enhancing modulation techniques.
THE FALSE “TRANSACTIONAL DATA SCARE" The Digital Privacy and Security Working Group (DPSWG) has attempted to interject a false "transactional data scare" into the current discussion of the need for legislation that will allow law enforcement to maintain its electronic surveillance and pen register/trap and trace technical capabilities commensurate with existing law.
In a letter to me, dated March 11, 1994, a copy of which was sent directly to the chairmen, the DPSWG falsely alleges that we are seeking to "dictate to industry" a new capability to acquire "minute-by-minute surveillance of individuals” through transactional data. This is a false issue for a number of reasons.
First, as is clearly set forth in the "purpose" section of the proposed legislation, the intent of the legislation is to maintain existing technical capabilities and to "clarify and define the responsibilities of common carriers * * * to provide the assistance required to ensure that government agencies can implement court orders and lawful authorizations to intercept the content of wire and electronic communications and acquire call setup information under Chapters 119 and 206 of Title 18 and Chapter 36 of Title 50." (emphasis added.) These chapters have nothing to do with "transactional information" under our federal electronic surveillance and privacy laws. All telecommunications "transactional” information is already protected by Federal law and is exclusively dealt with in Chapter 121 of Title 18 of the United States Code ("stored wire and electronic communications and transactional records access"). The proposed legislation does not relate to Chapter 121 of Title 18.
Second, under federal law, Congress treats law enforcement's use of pen registers and dialing information differently than "transactional information"-such as detailed telephone billing information. The dialing information derived from a pen reg, ister is obtained by law enforcement and is limited to a specific telephone line and number. On the other hand, transactional billing information is compiled by telephone companies and captures billing information from every telephone a subscriber may use during the billing period, such as credit card calls, collect calls, operator assisted calls, and third number billing information which are associated with all the different telephones a subscriber may use.
Third, Congress has enacted legislation that requires law enforcement to obtain a court order in order to obtain "call setup information" through the use of a pen register or trap and trace device, based upon a certification of an attorney for the government that the information likely to be obtained is relevant to an ongoing criminal investigation. Such court orders last for up to sixty days. Any renewal requires the approval of an appropriate judge. On the other hand, Congress has legislated that "transactional information" can be obtained through a number of legal processes, including subpoenas, without resort to court orders. Subpoenas for transactional information typically cover periods of six months or longer. In any event, law enforcement is not authorized to obtain noncriminal, irrelevant information about any individual, and any acquisition of transactional information or dialingtype information must be grounded in relevancy to a criminal investigation or inquiry.
Fourth, the letter indicates that enactment of this legislation, with regard to maintaining our ability to lawfully acquire call setup (dialing) information pursuant to court order, will somehow permit law enforcement to acquire some new information that is not now available. That is simply untrue. This legislation ensures a maintenance of the status quo as it relates to legal authorities under Chapters 119 and 206 of Title 18 and Chapter 36 of title so, and as it relates to the types of information obtainable through pen register and trap and trace devices used pursuant to the court order.
Fifth, unlike the government's proposed legislation, which specifically asserts no intention to alter the existing laws regarding the conduct of electronic surveillance and the installation and use of pen register and trap and trace devices, the DPSWG, by interjecting a false transactional data scare, is apparently seeking to repeal Chapter 206 of Title 18 and the pen register and trap and trace authorizations found in Chapter 36 of Title 50. As explained above, call setup information (that is dialing information) is obtained through the use of pen register and trap and trace devices. In the DPSWG letter referred to above, it states: "legislation should apply to 'call setup information' only when that information is incident to a warrant issued for wire, oral, or electronic communications as set forth in 18 U.S.C. 2518 (Title III).” To accept this radical position on privacy would mean, for example, that anytime an FBI agent simply sought to acquire a telephone number dialed by a criminal subject through the use of a pen register, he/she should be required by law to draft a 30-40 page title iii affidavit, and send it to Washington, DC, for the Deputy Assistant Attorney General of the criminal division to review and authorize, before taking it to a Federal District Court Judge for review and approval. Frankly, such a notion is absurd and is wildly inconsistent with current law.
ALLEGATIONS OF "TRACKING" PERSONS Law enforcement's requirements set forth in the proposed legislation include an ability to acquire "call setup information.” This information relates to dialing type information-information generated by a caller which identifies the origin, duration, and destination of a wire or electronic communication, the telephone number or similar communication address. Such information is critical to law enforcement and, historically, has been acquired through use of pen register or trap and trace devices pursuant to court order.
Several privacy-based spokespersons have criticized the wording of the definition regarding this long-standing requirement, alleging that the government is seeking a new, pervasive, automated "tracking" capability. Such allegations are completely wrong.
Some cellular carriers do acquire information relating to the general location of a cellular telephone for call distribution analysis purposes. However, this information is not the specific type of information obtained from "true" tracking devices, which can require a warrant or court order
when used to track within a private location not open to public view. See United States v. Karo, 468 U.S. 705, 714 (1984). Even when such generalized location information, or any other type of “transactional” information, is obtained from communications service providers, court orders or subpoenas are required and are obtained.
In order to make clear that the acquisition of such information is not being sought through the use of a pen register or trap and trace device, and is not included within the term "call setup information, we are prepared to add a concluding phrase to this definition to explicitly clarify the point: except that such information (call setup information) shall not include any information that may disclose the physical location of a mobile facility or service beyond that associated with the number's area code or exchange."
TITLE III INTERCEPTIONS 1
340 919 2,685 607 Total
5,407 2,979 8,386 36,782 22,069 Administrative Office of the United States Courts, Report on Applications for Orders Authorizing or Approving the Interception of Wire, Oral, of Electronic Communications (Wiretap Report) (1983–1992).
2 A substantial number of prosecutions are ongoing and total convictions will not be reported for several years. Convictions continue to be reported as a result of interceptions going as far back as 1982. Unfortunately, the reporting of convictions appears to lag
substantially behind the actual convictions and there are indications that convictions that should be reported by State prosecutors and judges are not actually reported.
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