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CFP'93 - FBI

CFP'93 - FBI Digital Telephony Proposal

Federal Bureau of Investigation

SUMMARY OF ISSUES

The Nation's various telecommunications systems are often used in the furtherance of serious and sometimes violent criminal activities including illegal drug trafficking, organized crime, terrorism, kidnapping and extortion. One of the most important and effective tools in the investigation of these crimes by Federal, state and local law enforcement agencies is the court-authorized interception of communications (wiretaps).

The telecommunications industry, which has relied on the same analog technology for approximately 50 years, is now rapidly moving to more advanced telecommunications systems and fundamentally different technology, e.g., personal communication networks, advanced cellular, and integrated services digital networks. These new technologies have the capacity for high speed, simultaneous transmission of multiple, commingled communications.

These advances in technology, and undoubtedly the future introduction of new technologies, will soon make it impossible for law enforcement agencies to effect lawful court orders to intercept electronic communications. In some cases, advanced cellular technology and new digital features have already frustrated orders, thereby allowing criminals to carry out serious criminal activity using the telecommunications systems without detection.

These technologies inadvertently hamper the ability of law enforcement to investigate crimes and protect the public safety. This happened because the legitimate needs of law enforcement were not considered during the design and development phases of the systems. These new systems are unable to provide law enforcement with the content of communications by the target of the court-authorized electronic interception, to the exclusion of all other communications by persons not engaged criminal conduct. This was not a problem with the old analog technology because every communication was distinct and identifiable and could be accessed several points within the network. Without modifications to systems software and, in some cases, hardware, the telecommunications systems of this country will no longer be able to accommodate access by law enforcement conduct electronic surveillance.

Following discussions about this issue with the telecommunications industry, the Congress, the White House, and other Federal agencies; the Department of Justice and the FBI have proposed legislation which seeks to preserve the status quo, i.e., the current ability to obtain a court-authorized warrant and, with assistance from the telephone companies, intercept specific communications that are in the furtherance of criminal conduct. This proposal relies on the telecommunications industry to develop technical solutions which are both cost effective and that will ensure that telecommunications technology continues to be designed, manufactured, and deployed in a competitive fashion that still meets the needs of law enforcement.

The proposal, if enacted, simply requires the telephone companies, when served with a court order, to be able to identify and provide the entire content of specific telephone conversations to the exclusion of all others, regardless of the technology involved. This is what the telephone companies do now in the analog format but cannot do in the digital format absent some modifications.

The legislative proposal also ensures that all providers of telecommunications services remain on the same competitive "level playing field" by requiring all telecommunications service providers ultimately to use systems that take into consideration both the legitimate need for law enforcement to access criminal conversations and the intense competitive demands of the market place.

In 1968, Congress carefully considered and passed the Omnibus Crime Control and Safe Streets Act which laid out a meticulous procedure by which law enforcement can obtain judicial authorization to conduct electronic surveillance. This law was enacted after Congress exhaustively debated the Government's need to effectively address serious and often violent criminal conduct against an individual's right to privacy. Nothing in this proposal seeks to change or enhance this authority or procedure. The 1968 law requires the telecommunications industry to provide the "technical assistance necessary to accomplish the interception." What has been proposed is legislation clarifying the duties of the telecommunications industry in responding to court orders and assisting law enforcement in the face of advances in digital telephony technology.

Thirty-seven states, the District of Columbia, Puerto Rico and the Virgin Islands have enacted legislation authorizing their State and local law enforcement agencies to conduct court-authorized electronic surveillance in criminal investigations. Approximately 60 percent of the court-authorized criminal wiretaps conducted annually in this country are by state and local law enforcement agencies. These also will not be possible absent a viable solution.

SUMMARY OF LEGISLATIVE PROPOSAL

The purpose of this proposal is to clarify the responsibilities of the providers of electronic communication services when providing law enforcement with the "technical assistance necessary to accomplish the interception," required by Title 18, U.S.C., Section 2518(4) and Title 18, U.S.C., Section 3124(a) (b). This clarification is needed to ensure that the Government's continued technical ability to conduct intercepts is not impeded by current or emerging telecommunications technology. Specifically, the new legislative proposal provides for the following:

1. Clearly establishes, as a matter of law, the responsibilities of electronic communication service providers and private branch exchange operators within the United States in providing the Government with the technical assistance necessary to conduct the lawful interceptions of communications. These include the ability to provide the Government with:

The real time and identical communication signals as transmitted to or by the individual(s) named in the court order.
Isolation of all communication signals and services directed to and/or from the subject of the intercept to the exclusion of all other users who are not the subject of the lawful interception.
The intercepted communication signals provided by the telephone company to the Government at a monitoring facility that is remote from the target of the court order and not in the facility of the communications service provider.
Without detection by the subject of the interception or any other subscriber.
Without degradation or interruption of the subscriber's telecommunications service.

2. Providers of electronic communications services within the public switched network, such as local exchange carriers, interexchange carriers, cellular carriers, etc., shall ensure that their systems comply with these requirements within 18 months of enactment into law.

3. Private branch exchange operators shall ensure that their systems comply with these requirements within 3 years of enactment into law.

4. Provides the Attorney General with the authority to grant exceptions to these requirements as well as exceptions to the implementation deadlines. In considering any request for an exception, the Attorney General must consult with the Federal Communications Commission, the Small Business Administration, and the Department of Commerce.

5. Provides the Attorney General specific authority to seek civil penalties and injunctive relief to enforce the provisions of this law.

BENEFITS AND COSTS OF LEGISLATION TO ENSURE THE GOVERNMENT'S CONTINUED CAPABILITY TO INVESTIGATE CRIME WITH THE IMPLEMENTATION OF NEW TELECOMMUNICATIONS TECHNOLOGIES

The Nation's telecommunications systems and networks are often used in furtherance of serious criminal activities. Recent and continuing advances in telecommunications technology and the introduction of new technologies and transmission modes have made it increasingly difficult for Federal and state government agencies to enforce the criminal law through a key investigative technique: statutory-based, court-ordered electronic surveillance. The proposed legislation is intended to preserve the status quo for the criminal law enforcement community in terms of its current and past ability to carry out court-ordered or otherwise authorized electronic surveillance.

The societal and economic benefits derived from the effective enforcement of the criminal law are in many regards difficult to quantify. The use of electronic surveillance by State and Federal authorities has in a number of instances been essential in preventing murders, saving human life put at risk through planned terrorist attacks, 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 cause incalculable personal and economic injury in our society. The economic benefit from the continued use of electronic surveillance that would be assured by the legislation easily could be billions of dollars per year.

The cost to the telecommunications industry of complying with the provisions and requirements of the legislation is not susceptible to precise measurement. Nonetheless, consultations with the industry have indicated that first order estimates of the cumulative costs suggest a range from $150-$250 million. By way of context, the telecommunications industry, which has annual revenue exceeding $190 billion, expends approximately $22 billion each year in acquisition of systems equipment and components. The maximum developmental costs may be $300 million, or approximately 1.5% of the industry's acquisition budget. Further, the total costs associated with compliance with the legislation would not necessarily be incurred in the first year after enactment of the legislation, but would likely be expended and amortized over several years concurrent with implementation of technologies.

Accordingly, the benefits of enactment of the proposed legislation far outweigh the associated costs.