[Congressional Record Volume 145, Number 167 (Friday, December 3, 1999)]
[Senate]
[Pages S15227-S15228]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     CONTINUED REPORTING OF INTERCEPTED WIRE, ORAL, AND ELECTRONIC 
                           COMMUNICATIONS ACT

 Mr. LEAHY. Mr. President, I am pleased that the Senate is 
today considering H.R. 3111 to exempt from automatic elimination and 
sunset certain reports submitted to Congress that are useful and 
helpful in informing the

[[Page S15228]]

Congress and the public about the activities of federal agencies in the 
enforcement of federal law. Senator Hatch and I offer as an amendment 
to H.R. 3111 the text of a bill, S. 1769, which I introduced with 
Chairman Hatch on October 22, 1999 and which passed the Senate on 
November 5, 1999. This amendment will continue and enhance the current 
reporting requirements for the Administrative Office of the Courts and 
the Attorney General on the eavesdropping and surveillance activities 
of our federal and state law enforcement agencies.
  For many years, the Administrative Office (AO) of the Courts has 
complied with the statutory requirement, in 18 U.S.C. Sec. 2519(3), to 
report to Congress annually the number and nature of federal and state 
applications for orders authorizing or approving the interception of 
wire, oral or electronic communications. By letter dated September 3, 
1999, the AO advised that it would no longer submit this report because 
``as of December 21, 1999, the report will no longer be required 
pursuant to the Federal Reports Elimination and Sunset Act of 1995.'' I 
commend the AO for alerting Congress that their responsibility for the 
wiretap reports would lapse at the end of this year, and for doing so 
in time for Congress to take action.
  The AO has done an excellent job of preparing the wiretap reports. We 
need to continue the AO's objective work in a consistent manner. If 
another agency took over this important task at this juncture and the 
numbers came out in a different format, it would immediately generate 
questions and concerns over the legitimacy and accuracy of the contents 
of that report.
  In addition, it would create difficulties in comparing statistics 
from prior years going back to 1969 and complicate the job of 
congressional oversight. Furthermore, transferring this reporting duty 
to another agency might create delays in issuance of the report since 
no other agency has the methodology in place. Finally, federal, state 
and local agencies are well accustomed to the reporting methodology 
developed by the AO. Notifying all these agencies that the reporting 
standards and agency have changed would inevitably create more 
confusion and more expense as law enforcement agencies across the 
country are forced to learn a new system and develop a liaison with a 
new agency.
  The system in place now has worked well and we should avoid any 
disruptions. We know how quickly law enforcement may be subjected to 
criticism over their use of these surreptitious surveillance tools and 
we should avoid aggravating these sensitivities by changing the 
reporting agency and methodology on little to no notice. I appreciate, 
however, the AO's interest in transferring the wiretap reporting 
requirement to another entity. Any such transfer must be accomplished 
with a minimum of disruption to the collection and reporting of 
information and  with complete assurances that any new entity is able 
to fulfill this important job as capably as the AO has done.

  The amendment would update the reporting requirements currently in 
place with one additional reporting requirement. Specifically, the 
amendment would require the wiretap reports prepared beginning in 
calendar year 2000 to include information on the number of orders in 
which encryption was encountered and whether such encryption prevented 
law enforcement from obtaining the plain text of communications 
intercepted pursuant to such order.
  Encryption technology is critical to protect sensitive computer and 
online information. Yet, the same technology poses challenges to law 
enforcement when it is exploited by criminals to hide evidence or the 
fruits of criminal activities. A report by the U.S. Working Group on 
Organized Crime titled, ``Encryption and Evolving Technologies: Tools 
of Organized Crime and Terrorism,'' released in 1997, collected 
anecdotal case studies on the use of encryption in furtherance of 
criminal activities in order to estimate the future impact of 
encryption on law enforcement. The report noted the need for ``an 
ongoing study of the affect of encryption and other information 
technologies on investigations, prosecutions, and intelligence 
operations.'' As part of this study, ``a database of case information 
from federal and local law enforcement and intelligence agencies should 
be established and maintained.'' Adding a requirement that reports be 
furnished on the number of occasions when encryption is encountered by 
law enforcement is a far more reliable basis than anecdotal evidence on 
which to assess law enforcement needs and make sensible policy in this 
area.
  The final section of this amendment would codify the information that 
the Attorney General already provides on pen register and trap and 
trace device orders, and require further information on where such 
orders are issued and the types of facilities--telephone, computer, 
pager or other device--to which the order relates. Under the Electronic 
Communications Privacy Act (``ECPA'') of 1986, P.L. 99-508, codified at 
18 U.S.C. 3126, the Attorney General of the United States is required 
to report annually to the Congress on the number of pen register orders 
and orders for trap and trace devices applied for by law enforcement 
agencies of the Department of Justice. As the original sponsor of ECPA, 
I believed that adequate oversight of the surveillance activities of 
federal law enforcement could only be accomplished with reporting 
requirements such as the one included in this law.
  The reports furnished by the Attorney General on an annual basis 
compile information from five components of the Department of Justice: 
the Federal Bureau of Investigation, the Drug Enforcement 
Administration, the Immigration and Naturalization Service, the United 
States Marshals Service and the Office of the Inspector General. The 
report contains information on the number of original and extension 
orders made to the courts for authorization to use both pen register 
and trap and trace devices, information concerning the number of 
investigations involved, the offenses on which the applications were 
predicted and the number of people whose telephone facilities were 
affected.
  These specific categories of information are useful, and the 
amendment would direct the Attorney General to continue providing these 
specific categories of information. In addition, the amendment would 
direct the Attorney General to include information on the identity, 
including the district, of the agency making the application and the 
person authorizing the order. In this way, the Congress and the public 
will be informed of those jurisdictions using this surveillance 
technique--information which is currently not included in the Attorney 
General's annual reports.
  The requirement for preparation of the wiretap reports will soon 
lapse so I am delighted to see the Senate take prompt action on this 
legislation to continue the requirement for submission of the wiretap 
reports and to update the reporting requirements for both the wiretap 
reports submitted by the AO and the pen register and trap and trace 
reports submitted by the Attorney General.

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