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

*The Digital Telephony Bill is legislation that will increase the government's ability to "wire-tap" digital communications such as cellular phone, fax, and E-mail.

10 Good Reasons for the Digital Telephony Bill
by Dorothy Denning

* 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.