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EPIC Letter to Rep. Henry Hyde 11/9/95

November 9, 1995

Honorable Henry Hyde
Committee on the Judiciary
House of Representatives
Washington, D.C. 20515

Dear Mr. Chairman:

We are responding to the letter from FBI Director Louis Freeh regarding the New York Timesarticle which stated that the FBI has proposed "a national wiretapping system of unprecedented size and scope." (Nov. 2, 1995)

Director Freeh takes issue with the report and contends that it is not the intent of the Bureau to expand wiretapping activity. He notes correctly that Congress intended to maintain the "status quo" when wiretap legislation was passed last year.

Based on our review of the wiretap records produced each year by the Administrative Office of the US Courts and documents that we have obtained from the Department of Justice and the Federal Bureau of Investigation, Director Freeh's contentions are inaccurate.

  • During Mr. Freeh's tenure as Director of the FBI, there has been a dramatic upsurge in the level of wiretapping conducted by the federal government. In 1992, there were a total of 340 wiretaps authorized in federal investigations. By the end of last year, 554 taps were authorized. There has been no similar upturn in wiretapping at the state or local level during this period. (In 1992 579 taps were authorized. In 1994, the number had gone to only 600).
  • The vast majority of cases where wiretaps are approved involve drug trafficking. In 1994, seventy-six percent of all orders were for narcotics investigations and eight percent each for racketeering and gambling. These are serious crimes without question, but it is misleading to suggest that wiretapping plays a primary role in the effort to control terrorism, violent crime, or espionage.
  • The Federal Register notice ignored current reporting requirements followed by prosecutors across the country and the Administrative Office of the US Courts for measuring wiretap activity. Instead of looking at the actual number of taps authorized and projecting needs for the coming years, the FBI proposed that a percentage of total communications capability be dedicated to wiretap activity. This a completely untested approach. The FBI has itself to blame for much of the public confusion about the plan.
I should also note that it was the Attorney General, under the Communications Assistance for Law Enforcement Act, who was expected to review the plan prior to public comment.

Many individuals and companies will take advantage of the public notice opportunity to express their ongoing concern about the implementation of the wiretap program. There is clear consensus that the "digital telephony" proposal is fraught with problems.

Given the apparent confusion concerning the FBI's intentions with regard to implementation of the Communications Assistance for Law Enforcement Act, we urge the Judiciary Committee to convene a public hearing to address this matter.

EPIC is currently preparing our comments for the Bureau and completing a review of the impact of the scheme as currently proposed. We would be pleased to work with you and your staff on this issue critical to the future of the nation's communications infrastructure.

Sincerely yours,

Marc Rotenberg, director

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