II. CUSTOM CALLING FEATURES

Switch-based custom calling features such as call forwarding, which allows a user to transfer calls to other phones, challenge law enforcement's ability to follow calls. Because wiretaps are installed at the customer side of the last switch, a law enforcement agency may be lead to believe that no calls are being made when in reality all the calls are being re-routed at the switch. When call forwarding features could only be accessed through customer purchased equipment placed on the customer's premises, law enforcement could follow the calls because the calls went through the local loop and were redirected at the customer's premises. With switch-based features, the calls are redirected at the switch and do not pass through the local loop at all.

III. INTEGRATED SERVICES DIGITAL NETWORKS (ISDN)

Integrated Services Digital Network (ISDN) is an increasingly popular technology that converts today's analog telephone lines into digital signals. Digitization offers much higher data capacity, better audio quality, and greater control over advanced telephone features.

Just like a regular telephone jack will not work with an ISDN line, law enforcement cannot use the same equipment to wiretap an ISDN line that it uses to tap a traditional analog voice telephone line. A basic ISDN line has six channels-two in one direction, two in the other, and two "signalling" channels (one in each direction), which the system uses continuously. Tapping these lines requires the ability to sort out the two channels being used by the suspected criminal from the remainder of the bit stream.

As is the case with other new technologies mentioned here, telephone company engineers have already identified readily available technology that can be used to enable law enforcement to maintain their surveillance capabilities on new, ISDN lines. Nearly two years ago, Bellcore technicians demonstrated to law enforcement officers that commercially-available ISDN testing equipment can also be used to tap into ISDN lines. Even though one ISDN line actually carries up to six data streams, the standard equipment used by Bellcore enables law enforcement to separate out each individual data stream for surveillance.

The days when law enforcement officers climb up telephone poles and tap into a conversation by attaching alligator clips directly to the telephone line are dwindling in number; in the majority of jurisdictions law enforcement officers prefer to have the tapped communications rerouted to a remote, safer location. ISDN may precipitate the end of these remaining "field taps." To the extent that a field tap is still required, however, these days the officer is well advised to bring along a hand-help device called an ISDN protocol analyzer. Such devices are readily available for about $2000.

IV. CELLULAR COMMUNICATIONS

Cellular telephony can present both capacity and technical challenges to law enforcement. 15

Let's first compare interception of noncellular communications to interception of cellular communications. Keeping in mind that access at one point is all that is needed for wiretapping, the wiretap target's location is always known in noncellular telephony. The nearest central office can be identified, and the telephone company can furnish the police with the target's cable make-up for interception. By contrast, because cellular's mobility allows its users to send and receive calls from multiple points, the target's location can change throughout the day, or from day to day. As the target moves, his or her calls originate at or are handed off to a different cell site. This has forced cellular service providers to establish wiretap connections at a central location on the provider's premises.

The capacity problem arises when a cellular service provider exhausts the ports at which wiretap connections can be made. In the New York City area, a cellular provider for several years had the capacity for handling only twelve such simulta

15 It is important to distinguish those issues arising out of limitations in communications equipment capacity from those arising out of communications equipment design characteristics. The former may be peculiar to a particular service area or region due to an unusual demand for wiretaps, the nature of a particular service provider's network equipment, or the geography. The solution to any problem may lie in the acquisition of certain equipment by the particular service provider or by the particular law enforcement operation. The latter issue, by comparison, reflects a technical matter inherent in the technology as it is deployed anywhere in the country.

neous wiretaps. Until this situation was corrected, the capacity limitation determined the provider's ability to service requests for court ordered wiretaps.

The process of developing appropriate equipment to resolve this capacity problem also illustrates the substantial efforts that industry expends to respond to law enforcement needs. In 1991 a telecommunications equipment manufacturer unveiled a cellular surveillance system that would resolve the New York City capacity problem. The system had required two years to develop. The system permitted real time remote surveillance through the public switched network, which would have enabled law enforcement officials to conduct an unlimited amount of simultaneous wiretaps. In addition, it offered many advantages over the existing surveillance technology, including coast-to-coast remote monitoring capability on short notice.

While law enforcement officials wished to overcome the capacity problem, they also needed to have the "call set up information" (which identifies the calling and called parties) forwarded to them in the same medium as the content of the communication. The rationale for this requirement is authentication concerns that arise with evidence in criminal prosecutions. Unfortunately, while the new system made the call set up information available concurrently with the communication content, it was available only in a separate medium. In resolving one problem, the manufacturer had created another one. Because of law enforcement's unwillingness to present new authentication issues to the courts, two years of research and development had been wasted and resolution of a law enforcement problem had been further delayed. It was not until the summer of 1993, after modifying the equipment in 1991 and undertaking a series of field tests of the modified equipment in 1992, that the manufacturer was able to begin deploying the new equipment.

A different problem is presented by cellular roaming arrangements. Through roaming, a target can send and receive calls outside of the cellular company's service area. The wiretap connection at the cellular service provider's premises does not intercept the target's calls. Thus, a New York City target who uses his cellular telephone in New Jersey to call Philadelphia frustrates the court-ordered wiretap connection installed on the premises of his New York City cellular service provider: the call originates in the New Jersey cellular provider's service area and terminates in the Philadelphia cellular provider's service area. This problem reflects a technical issue arising out of the inherently mobile design characteristics of cellular communications equipment.

ECSPC action teams are developing reasonable, affordable, and effective means to be used for authorized interceptions in these circumstances. In some cases, new surveillance techniques, equipment, and skills may be necessary, too.

So far this process has generated at least five final or draft "contributions," which report on a problem and propose possible solutions. The contents of these reports are confidential and subject to the terms of the nondisclosure agreement under which ECSPC and its participants operate.

The ECSPC has even begun to apply the same approach to new technologies by establishing an action team to address the new family of wireless services known as personal communications services or "PCS," which the FCC has yet to license. Examining technologies before they are widely deployed will help industry and law enforcement to "stay ahead of the curve" rather than having to "play catch-up."

2. The forum and process that industry and law enforcement have jointly established will satisfy the government's need to maintain its ability to lawfully intercept communications

ECSPC provides a much-needed forum and process for the telecommunications industry and government to communicate with each other about technical developments and needs.

According to the FBI, advances in technology threaten to make it impossible for law enforcement agencies to effect lawful court orders to intercept electronic and wire communications, and this obstacle can only be avoided by having industry design new technologies according to government specifications.

While the FBI sought, as part of its legislative proposal, to have Congress mandate that industry accommodate these law enforcement needs, 16 the reality is that the FBI and the electronic communications industry are now engaged in a cooperative working relationship aimed at addressing these needs and at ensuring that they are taken into account by industry as they develop new technologies. This process has facilitated a more robust exchange of technical information and an identification

16 See FBI, Digital Telephony: A Legislative Proposal, at pp. 1–2* of "Summary of Legislative Proposal" (Feb. 1993).

of possible new equipment and police tactics needed to achieve law enforcement goals.

This process would have been necessary even if legislation had been enacted. The process facilitates the functional responsiveness of electronic communication providers and their equipment manufacturers to law enforcement's needs. This functional responsiveness is accomplished through technical solutions that are both cost effective and sensitive to the intense competitive demands of the market place.

The ECSPC also is capable of evolving and adapting as needed to address future challenges identified by industry or government.

3. The forum and process that industry and law enforcement have jointly established respond to GAO's criticism of the FBI

Furthermore, the forum and process that industry and law enforcement have jointly established respond to GAO's criticism that the FBI had failed to (1) communicate with industry, (2) define its wiretapping needs, and (3) permit industry to analyze these needs.17

The FBI defined its wiretapping needs in a 20-page document entitled "Law Enforcement Requirements," which it circulated in July 1992. The requirements are designed to permit law enforcement officials to conduct real time monitoring and recording at their facilities of both the content of the communication and information identifying the calling or called party, in the same signal form as the communication is transmitted, whether the target is stationary or mobile, and without detection or degradation of service.

The FBI's role in establishing and participating in the ECSPC facilitates communication between industry and law enforcement, and permits industry to analyze law enforcement's wiretapping needs in light of current technologies and during the design and development phases of new technologies. The discussions have succeeded in identifying specific problems and have begun the process of generating concrete, cost-effective solutions.

The delays experienced in developing a cellular surveillance system to solve the New York City capacity problem, discussed above at part B.1, illustrate the importance of this process of dialog and analysis. The ECSPC will help prevent the type of waste and delay that occurred there.

By comparison, had the FBI proposal been law in the 1980's, it would have blocked the deployment in the U.S. of wireless technologies, such as cellular telephony, damaging our national economy and the balance of trade.

4. The ECSPC preserves but does not extend the government's current authorities The working relationship that has emerged from ECSPC permits electronic communications providers and their equipment manufacturers to reasonably anticipate problems that could arise in a company's furnishing of the technical assistance necessary to accomplish lawful electronic surveillance. By developing with law enforcement technical solutions to obstacles posed by technologies, service providers—when served with a court order—are able to identify and provide the entire content of specific telephone communications to the exclusion of all others, regardless of the technology involved. The discussions also alert the law enforcement community to the occasional need to make changes in police surveillance tactics.

5. No legislative solution is required because no technological or law enforcement crisis exists

Virtually no evidence has been presented of held orders that require technical solutions. Indeed, FBI records about "Project Root Canal" recently released pursuant to a Freedom of Information Act request show that FBI field offices nationwide were reporting that they and other federal, state, and local law enforcement agencies were experiencing "no problems" and "no difficulties" with new telephone technologies at the same time as the FBI was telling the Congress and the press that such technologies had "already frustrated" wiretap orders.

This paucity of evidence of difficulties confirms that no crisis exists that cannot be addressed through this new forum and process. No legislative solution is needed. There certainly is no need to grant the government the right to mandate the use of particular technologies, block other technologies, and effectively redesign the communications network and the equipment used by large segments of our society. If law enforcement is dissatisfied with either the forum or the process, it would be appropriate to consider alternatives. * * *

17 See General Accounting Office, FBI: Advanced Communications Technologies Pose Wiretapping Challenges, at 4 (July 1992) (GAO/IMTEC-92-68BR).

Senator LEAHY. I yield to Senator Specter to go first with questions, and then Chairman Edwards, and then I will ask some questions.

Senator SPECTER. Thank you very much, Mr. Chairman.

Mr. Neel, I was very interested in your testimony about the cost factor, and I understand that if there is to be value for the Government on law enforcement, the Government ought to pay for it. I agree with that completely. I think it is possible to appropriate the moneys and have the adequate guarantees that the costs will be paid. Furthermore, on the determination of reasonable cost we could perhaps structure an arbitration system and set some time limits so that there is adequate consideration for those realistic matters.

If that were structured, would you withdraw at least that facet of your objection?

Mr. NEEL. Well, it would be an improvement. I think, as always, the critical thing there is reasonable cost and, you know, expeditious payment. Very honestly, the Government might have a different definition for a reasonable amount of time to pay, and you could get into quite a long harangue about the reasonableness of a particular cost. Already this industry has faced that in a couple of cases where compensation was in order, and they just simply wrote the bills off.

Senator SPECTER. Well, we could specify time. We could make it 60 days or 30 days or 90 days, and as to a reasonable cost, we could structure a procedure to determine that.

Let me move on to some of the other points that you made.

Mr. NEEL. Clearly that would be an improvement, Senator, but it is important to make sure that that money is available in the out-years as well, because this will be a permanent problem as new technologies are developed.

Senator SPECTER. Well, I think that is a fair request on your part, and I think we can meet that. When you talk about other networks and that criminals are not stupid, I quite agree with you that they are not stupid at all. But sometimes they are careless, and that is evidenced by the arrest made in Philadelphia yesterday, and I commend the telephone companies for their cooperation. When you noted that facet, you are exactly right. And I think we have to work on the structure of the exceptions, and I believe that we need the assistance, the FBI needs the assistance of the telephone companies to give them information as to how you structure the exceptions so that there is realistic law enforcement at work. But I think that has to be attempted.

You talk about competition. Maybe some of your competition will be discouraged from competing with all these onerous requirements if we pass law like this. You may have

Mr. NEEL. Well, unfortunately, in this legislation, many of the competitors of local telephone exchanges would be exempted under this. So while this is certainly not a reason not to redouble anticrime efforts, it is clearly inequitable for the local telephone exchange to bear this entire burden.

Senator SPECTER. Well, I think we have to work on the exceptions so that it is fair all the way around. I sense from your testimony, in toto, that the telephone companies are prepared to cooper

ate, as you always have, if it is fair and if you do not have to pay the costs of it if it is done by the Government and the payment is by the Government and that it is fair all the way around. So we will work with you on that. We want to address those concerns. Mr. PLESSER. Senator, can I have permission to add one response to that?

Senator SPECTER. Go ahead.

STATEMENT OF RONALD L. PLESSER

Mr. PLESSER. The issue is cost, but it is not only cost. The question is: What are the standards applied in the legislation? There was a lot of discussion this morning about this legislation putting requirements. If you read the legislation, there really are not any specific requirements. It is really very, very generalized, and really the question is not just the cost of doing it, but what are the requirements. And that is both a cost issue and a privacy issue for the general public because the way the structure of this bill is, the Attorney General can seek an injunction enjoining the provision of service of any common carrier. So, indeed, call forwarding could be sought to be enjoined if it did not get to a vague standard.

There is no process in here it is not just an arbitration on the price. There is no process in the provision to establish what those standards are and what the expectations of the telephone companies are to respond to them.

Senator SPECTER. Well, it is very difficult to articulate those standards, and that is something we have to work on. And it is going to require technical assistance from the telephone companies, and I want to talk to Mr. Berman in a few minutes about the privacy issue. But it seems to me that we can work it out. We have to know a lot more than we know, and this subcommittee is going to have the responsibility for markup. But we are going to need your inputs, and there may be some areas in which we are going to have to do the best we can, see how the problems develop and be available to you.

But the severity of the need is extreme. The complications on the technology are overwhelming. We do not know what is going to happen. We just have to do the best we can.

When Mr. Neel talks about the fact that there may be some other developments, or perhaps the chairman raised that, we just have to see what develops along that line and do the very best we can. But we need your inputs on it.

Let me turn to you, Mr. Berman, because I do not want to take too long, and I have deferred my other commitments for a moment. The issue of civil liberties is something about which we are all very, very concerned, and we want to see that met. When I was district attorney of Philadelphia a long time ago, I opposed wiretapping because I thought we could get along without it. And given what has occurred on the crime problem, we are past my individual judgment on that. Pennsylvania did not have wiretapping when I was district attorney, and now it is a matter of working it out as best as we can.

I think you put your finger on a critical aspect when you talk about the responsibility of the phone company beyond situations where there are warrants. My question to you: If this was limited