DeMaria Group — In the News



				New York Law Journal, Volume 213—No. 74 Wednesday, April 19, 1995 OUTSIDE COUNSEL 1994 Digital Telephone Act: A Response to Technology By Peter A. Crusco and Roseanna DeMaria The telecommunications revolution is here. Unfortunately, this revolution is not limited to legitimate enterprises. Just as legitimate businesses rely on these new means of communication, illegitimate businesses, from highly structured crime families and drug cartels to loosely organized street gangs, have adopted these advanced devices to facilitate and enhance their criminal enterprises. Legislative initiatives to proscribe this conduct and to ensure law enforcement’s access to criminal communications became both inevitable and necessary. In response to progress in technology and to the clamor of law enforcement, Congress enacted the Digital Telephony Act.¹The Act, officially known as “The Communications Assistance for Law Enforcement Act,”² was passed on Oct. 25, 1994, “to make clear a telecommunications carrier’s duty to cooperate in the interception of communications for law enforcement purposes, and for other purposes.”³ The Act seeks to account for the rapid advances in telecommunications technology and to balance the legitimate needs of law enforcement for continued eavesdropping capabilities with individual privacy values.⁴ This article discusses the carrier’s duty and the practical impact of the Act on the criminal practitioner. The Act is divided into three titles. Title I, Interception of Digital and Other Communications, addresses electronic surveillance capacity requirements along with increased legal protections for location-related information. Title II amends Title 18 of the U.S. Code, including the application of eavesdropping provisions to cordless phones, the inclusion of cellular fraud in the access device statute, and amended rules concerning transactional data disclosure, which among other things, protect e-mail transmissions. Title III amends the Communications Act of 1934 to conform to the carrier capacity requirements created by Title I. The Act’s objective is to maintain the status quo for law enforcement’s ability to conduct electronic surveillance.⁵ It was not intended to expand or diminish law enforcement’s present eavesdropping abilities; thereby preserving the balance currently struck by existing law between law enforcement needs and an individual’s privacy rights. Carrier’s Duty The Act only applies to telecommunications carriers.⁶ Information services and private branch exchange networks are not covered.⁷ Section 103 requires the carrier to “ensure that its equipment, facilities or services that provide a customer or subscriber with the ability to originate, terminate or direct communications”⁸ have the capacity, pursuant to a lawful court order, to: (1) expeditiously isolate for interception requested wire and electronic communications carried by the carrier, (2) expeditiously isolate for law enforcement call-identifying information⁹ that is available to the carrier, (3) deliver intercepted communications and call-identifying information to law enforcement in a format that can be transmitted to a location other than the carrier’s premises, and (4) facilitate the foregoing interception with a minimum of interference with any subscriber’s service in a manner that protects the privacy and security of such communications and the confidentiality of government investigations.¹⁰ Carriers are not responsible for decrypting any communication encrypted by a customer unless the encryption was provided by the carrier and the carrier possesses the information necessary to decrypt the communication.¹¹ This section concludes by authorizing carriers to intercept communications on their premises for law enforcement in exigent situations.¹² This exigency exception, however, only addresses the execution of an emergency wiretap. It is silent with respect to the exigent situations that necessitate location-related information where safety considerations are time prohibitive for obtaining the court orders required by the Act. Title I then delineates the capacity requirements plan along with technical requirements and the implementation plan. FBI Director Louis Freeh has created a unit to develop specific capacity requirements for the Attorney General by the statutorily mandated October 1996 deadline. This group is called the Telecommunications Industry Liaison Unite (TILU). TILU is presently compiling the law enforcement requirements under the Act and is surveying information concerning the amount of eavesdropping warrants that have been conducted since 1993 in order to ascertain future requirements. Additionally, TILU will decide how to spend an allocated $500 million to retrofit carrier equipment predating January 1995. Pen Registers One of the most significant changes wrought by the Act involves the type of information a carrier can provide in response to pen register or trap-and-trace orders. Prior to the Act, such orders for a cellular phone would generate not only the dialed digits or origination number, but also the cell site where the targeted phone was being used. Such cell site information helps locate the individual using the phone. This type of location information is unique to cellular telephones, since the traditional hard-wired phone is stationary. Yet the law imposed the same standard for pen register and trap-and-trace orders for both hard-wired and cellular phones. The Act changed this and Congress acknowledged the distinction between the types of information provided by these orders depending on whether the phone is hard-wired or cellular. Section 103(a)(2B) of the Act directs that the information provided “solely” by a pen register or trap-and trace order “shall not include any information that may disclose the physical location of the subscriber (except to the extent that the location may be determined from the telephone number)…” Consistent with the above prohibitions, Title II of the Act amended 18 USC §3121 by redesigning subsection (c) of 18 USC §3121 as subsection (d) and adding a new subsection (c) as follows: “(c) Limitation: — A government agency authorized to install and use a pen register under this chapter or under stat law shall use technology reasonably available to it that restricts the recording or decoding of electronic or other impulses to the dialing and signaling information utilized in call processing.” This section mandates the use of reasonably available technology to minimize information obtained through pen registers to dialing or signaling information necessary to process a call, excluding any additional communications conducted through the use of dialed digits that would otherwise be captured.¹³ The standard of proof under federal law for pen registers or trap-and-trace orders is merely a certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation.¹⁴ Federal law says that if a state’s law is more demanding, then state law controls.¹⁵ Needless to say, New York law is more demanding. Under CPL Article 705, pen registers require a court order. However, that standard is not the same as a search warrant, it is far less. The standard proof required by the application for a pen register or trap-and-trace device is “reasonable suspicion.”¹⁶Additionally, providers of telecommunications services are required to assist law enforcement with facilities and services (see CPL §705.35), and are paid reasonable compensation for expenses incurred in providing facilities and assistance (see CPL §705.35 (3)).¹⁷ The Act clarifies that assistance and eliminates cell site information from pen register or trap-and-trace order compliance. The Act does, however, provide law enforcement with the means to obtain such information in Title II. Subpoenas Congress did provide law enforcement with a way to obtain this cell site information, but it requires them to jump through an additional hoop. In Title II, §207 amends 18 USC §2703 which sets the standards for governmental access to certain telephone record information. Based on this amendment an administrative subpoena or a federal or state grand jury or trial subpoena may be used to obtain “the name, address, telephone toll billing records, telephone number or other subscriber number identity, and length of service of a subscriber to or customer of such service and the types of services the subscriber or customer utilized.”¹⁸ This amendment appears straight-forward until one explores the definition of telephone toll billing records. The Act itself does not offer any definition. Legal authority for the meaning of telephone toll billing records can be found in two areas. First, a definition was applied in Michigan Bell v. DEA, 693 F.Supp. 542 (1988), which involved an unsuccessful suit for the costs of subpoena compliance by Michigan Bell against DE. The subpoena demanded subscriber records and toll records. The court explained that, “Toll records contain the telephone numbers of long-distance calls placed by the subscriber.” id. This definition is consistent with the definition of “telephone toll service” in the Communications Act of 1934. That definition states that “telephone toll service means telephone service between stations in different exchange areas for which there is made a separate charge not included in contracts with subscribers for exchange service.” In sum, this definition describes long distance service. All of the foregoing analysis is problematic in the cellular context. Just as a cellular pen register provides more information than a hard-wired phone pen register (namely cell sites), cellular phone billing records also provide more information than a hard-wired phone’s billing records. The average hard-wired phone billing record will not reflect local usage because the customer does not pay for local usage. Accordingly, a subpoena for such billing records will not result in local usage records. In the cellular world, however, the customer pays for all local usage, all incoming calls and may even receive cell site information with their bill. All of this excess information falls outside the scope of subpoena compliance defined in the Act, given the prominent privacy considerations in the legislative history. Notwithstanding this problem, the Act does provide law enforcement with a means to obtain the restricted information (i.e. local records, cell site information). Section 207(a)(2) of the Act indicates that additional transactional data may be obtained through a court order finding “specific and articulable facts showing there are reasonable grounds to believe that the….records or other information sought are relevant and material to an ongoing criminal investigation.” This order may be obtained from “any court that is a court of competent jurisdiction.”¹⁹ Hence in the case of a pen register or trap-and-trace where cell sites are desired the above order should be obtained for that information. Similarly, local records with or without cell sites and call detail information with cell sites can be obtained with this order. This statutory amendment, however, applies only to an “ongoing criminal investigation.” Accordingly, on its face the Act does not address regulatory civil subpoenas such as those issued by the Internal Revenue Service, the Federal Communications Commission or the Securities and Exchange Commission, to name a few possible scenarios. Wireless technology is redefining our concepts of property, and our constitutional privacy values must be maintained and translated into this new definition. The Act is the result of Congress’ first assumption of the role of this interpreter – a role that will continue into the future. This amendment does not include an exception for the carrier to be able to provide this information to law enforcement inn the absence of a subpoena or court order even when the carrier is a victim. This creates an interesting anomaly. If a carrier discovers that a certain cellular phone is being used to defraud the carrier, the carrier cannot report the phone or its location to law enforcement unless the carrier is served with the requisite subpoena or order under the Act. Yet, law enforcement cannot obtain the requisite subpoena or order unless they know the phone number. This conundrum, like the above-described regulatory issue, needs to be resolved legislatively.²⁰ Conclusion The Communications Assistance for Law Enforcement Act is the beginning of legislative pioneering into the world of exponentially developing wireless technology. Its acknowledgement of law enforcement interception needs in the context of privacy values is emblematic of the inevitable effects of present day technological advancement. Wireless technology is redefining our concepts of property, and our constitutional privacy values must be maintained and translated into this new definition. The Act is the result of Congress’ first assumption of the role of this interpreter – a role that will continue into the future. (1) See, statement of Rep. Oxley, Cong. Rec. HR 4922, Oct. 4, 1994, H 10782, referring to the Act as “the Digital Telephony Act of 1994.” (2) See H Rep No 4922, 103d Congress, 2d Session, 1-20 (1994). (3) See the Act, Preamble. (4) See Cong Rec statement of Mr. Markey, Oct. 4, 1994 at H10780. Furthermore, Rep. Hyde stated: HR 4922 as amended seeks to carefully balance the needs of law enforcement, the interests of the telecommunications industry and the privacy rights of the American public in order to ensure that law enforcement can continue to conduct court-authorized wiretaps. (Id. At H10779). (5) See H Rep No 4922, Cong Rec Oct. 4, 1994, H 10780, statement of Rep. Markey; statement of Rep. Fields, Cong Rec, HR 4922, Oct. 4, 1994, H 10781-10782; letter of FBI Director of Louis Freeh to Rep. Oxley, reprinted in its entirety in Cong Rec, HR 4922, Oct. 4, 1994, H 10782-83; statement of Rep. Edwards, Cong. Rec., HR 4922, Oct. 4, 1994, H 10781-10782. (6) See the Act §102 subd. 8 and §103(a). (7) See the Act §103(b) subd. (1) and (2). (8) See the Act §103(a) (9) See the Act §102 subd. 2. (10) See the Act §103(a) subd. (4) (11) See the Act §103(b) subd. (3) (12) See the Act §103 © (13) See, Report of the House of Committee on the Judiciary, Telecommunications Carrier Assistance to the Government Act, House Report 103-827, 103d Congress, 2^nd Section, pgs. 11-13, 31-32 (1994). (14) 18 USC 3122(b)(2). (15) 18 USC 2703(d). (16) See CPL 705(10), CPL 705(15). Pen register capability must not include the capacity to acquire the contents of communications. See People v. Bialostok, 81 NY2d 995, 599 NYS2d 532 (1993). (17) The federal analog may be found at 18 USC 3124. (18) See the Act §207(c) (19) See the Act §207(c) subd. 2. (20) Similarly, a Notice of Proposed Rulemaking is now pending before the Federal Communications Commission (FCC) to establish rules for providing enhanced 911 services. Under the FCC’s proposal carriers would be required to provide law enforcement with the exact location of all 911 calls. The proposed rule, however, does not address the standards set forth in the Act for location information, nor does the Act carve out any exceptions for such regulatory action. A legislative response is necessary. Revision of the Commission’s Rules to Ensure Compatibility With E-911 Emergency Calling Systems. CC Docket No. 94-102, RM-8143 (released Oct. 19, 1994). Peter A. Crusco is a Queens Assistant District Attorney and deputy chief of the organized crime and rackets bureau. His opinions are his own. Roseanna DeMaria is corporate vice president of revenue security for McCaw Cellular.
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