Ten Good Reasons for the Wiretap Bill

[David Farber <farber@central.cis.upenn.edu>]

Opposing viewpoints are clearly welcome


Dave




Date: Fri, 30 Sep 94 17:27:51 EDT
From: denning@chair.cosc.georgetown.edu (Dorothy Denning)


Ten Good Reasons for the Digital Telephony Bill (S. 2375 and H.R. 4922)


1.  FBI Director Louis Freeh has stated that wiretaps are "one of law
    enforcement's most important and effective investigative
    techniques, and often the only way of solving the most serious
    crimes facing society."  He has predicted "dire consequences to
    effective law enforcement, the public safety, and the national
    security if no binding solution to [the problem of maintaining a
    wiretap capability] is obtained." [Testimony of FBI Director Louis
    Freeh before the Senate Judiciary Subcommittee on Technology and
    the Law and the House Judiciary Subcommittee on Civil and
    Constitutional Rights, Aug. 11, 1994]


2.  Wiretaps helped prevent the bombing of a foreign consulate in the
    U.S., a rocket attack by a U.S. ally, and the shooting down of a
    commercial airliner. [Testimony of FBI Director Louis Freeh
    before the Senate Judiciary Subcommittee on Technology and the Law
    and the House Judiciary Subcommittee on Civil and Constitutional
    Rights, Mar. 18, 1994]


3.  Wiretaps led to the conviction of 22,000 serious criminals in the
    past decade, including 79 individuals in a major health fraud case
    and 65 in a major government fraud case.  The latter case alone has
    led to $271,000,000 in fines, restitutions, and recoveries ordered.
    [Freeh's Mar. testimony]


4.  With wiretaps, criminals can be caught and convicted using their own
    words.  Wiretaps can be more reliable and less dangerous than other
    methods, for example, the use informants.


5.  Changes in technology are threatening the ability of law enforcement
    to conduct court-ordered wiretaps.  A recent informal survey by the
    FBI identified 183 instances where law enforcement was frustrated
    by technological impediments [Freeh's Aug. testimony].  One federal
    agency reported that it did not pursue 25 court orders because of
    the know inabilities of a particular cellular carrier [Freeh's Mar.
    testimony].  The GAO reported that "industry representatives told
    us that there are current and imminent technological situations
    that would be difficult to wiretap" [Testimony of Hazel Edwards,
    GAO, at the Aug. 11 hearings].


6.  The problems are not likely to be solved without legislation. In his
    March testimony, FBI Director Freeh reported that while meetings
    with industry over the past four years have led to a greater
    understanding of the problem, they have not produced implemented
    solutions or a commitment from industry to implement solutions.
    Moreover, of the 2,000 or so companies that would be affected, only
    a handful have participated in the technical working group which
    was established two years ago to address the problem and is now
    operating as the Electronic Communications Service Provider
    Committee (ECSP) under the Alliance for Telecommunications Industry
    Solutions (ATIS).  This experience plus the general non-binding
    nature of committee resolutions and the cost factor led the
    Administration and Congressional leaders to conclude that a
    legislative mandate was needed.


7.  If the ability to conduct court-ordered wiretaps is lost, those under
    investigation might not have greater privacy. Although the government
    would be unable to successfully investigate or prosecute many cases
    without the use of wiretaps, it is likely to try other methods that
    might otherwise have been rejected because they are more dangerous, for
    example, undercover operations and the placing of bugs on subjects'
    premises.  These methods are potentially more invasive of privacy than
    a wiretap.


8.  The Digital Telephony bill will help ensure that the capability to
    conduct court-ordered wiretaps is not lost.  It does not force any
    particular solution on industry in order to achieve this.


9.  The DT bill strengthens privacy protections.  It requires that the
    carriers protect "the privacy and security of communications and
    call-identifying information not authorized to be intercepted" and
    that switched-based intercepts "be activated only with the
    affirmative intervention of an individual officer or employee of
    the carrier."  Law enforcement officers will not be able to dial
    into switches and start their own taps.  The DT bill extends
    privacy protections for transactional records, location-specific
    information, cordless phones, and radio communications.


10. The DT bill is sponsored by two leading advocates of civil
    liberties, Senator Patrick Leahy and Representative Don Edwards.
    They and their staff have been working closely with the FBI,
    industry groups, and privacy advocates to address concerns about
    privacy, costs, compliance, scope, design requirements, and
    government accountability.  A lot of effort has gone into it.  The
    result is a very well thought through and worked over piece of
    legislation.


Dorothy Denning