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GOING DARK: 

LAWFUL ELECTRONIC SURVEILLANCE IN THE FACE 

OF NEW TECHNOLOGIES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

FEBRUARY 17, 2011 

Serial No. 112–59 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM REED, New York 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

DEBBIE WASSERMAN SCHULTZ, Florida 

SHEILA JACKSON LEE, Texas 

MIKE QUIGLEY, Illinois 

CAROLINE LYNCH, Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III) 

C O N T E N T S 

FEBRUARY 17, 2011 

Page 

OPENING STATEMENTS 

The Honorable Tim Griffin, a Representative in Congress from the State 

of Arkansas, and Member, Subcommittee on Crime, Terrorism, and Homeland Security ........................................................................................................ 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 2 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 3 

WITNESSES 

Valerie Caproni, General Counsel, Federal Bureau of Investigation 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 9 

Chief Mark Marshall, President, International Association of Chiefs of Police 

Oral Testimony ..................................................................................................... 16 

Prepared Statement ............................................................................................. 19 

Susan Landau, Ph.D., Radcliffe Institute for Advanced Study, Harvard University 

Oral Testimony ..................................................................................................... 23 

Prepared Statement ............................................................................................. 25 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Subcommittee on Crime, Terrorism, and Homeland Security ................................ 4 

Prepared Statement of the American Civil Liberties Union (ACLU) submitted 

by the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress 

from the State of Virginia, and Ranking Member, Subcommittee on Crime, 

Terrorism, and Homeland Security .................................................................... 52 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of Joel M. Margolis, Senior Regulatory Counsel, 

Subsentio, Inc. ...................................................................................................... 59 

Responses to Post-Hearing Questions from Valerie Caproni, General Counsel, 

Federal Bureau of Investigation ......................................................................... 73 

Prepared Statement of the Center for Democracy and Technology (CDT) ......... 78 

(1) 

GOING DARK: LAWFUL ELECTRONIC SURVEILLANCE IN THE FACE OF NEW TECHNOLOGIES 

THURSDAY, FEBRUARY 17, 2011 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 11:23 a.m., in 

room 2141, Rayburn House Office Building, the Honorable Tim 

Griffin (acting Chairman of the Subcommittee), presiding. 

Present: Representatives Griffin, Forbes, Gowdy, Adams, Quayle, 

Conyers, Scott, Johnson, Chu, and Quigley. 

Staff Present: (Majority) Richard Hertling, Deputy Chief of Staff; 

Caroline Lynch, Subcommittee Chief Counsel; Arthur Radford 

Baker, Counsel; Lindsay Hamilton, Clerk; (Minority) Bobby Vassar, 

Subcommittee Chief Counsel; Joe Graupensberger, Counsel; and 

Veronica Eligan, Professional Staff Member. 

Mr. GRIFFIN. The Subcommittee will come to order. 

Welcome to today’s hearing on ‘‘Going Dark: Lawful Electronic 

Surveillance in the Face of New Technologies.’’ I would especially 

like to welcome our witnesses and thank you for joining us today. 

I am joined today by my colleague from Virginia, distinguished 

Ranking Member of the Subcommittee, Bobby Scott. And I don’t 

see the Chairman emeritus Conyers, but he may join us. 

Today’s hearing examines the issue of the growing gap between 

the legal authority and the technological capability to intercept 

electronic communications. This is known in law enforcement circles as ‘‘going dark.’’ 

Going dark is not about requiring new or expanded legal authorities. It is about law enforcement’s inability to actually collect the 

information that a judge has authorized. Simply stated, the technical capabilities of law enforcement agencies have not kept pace 

with the dazzling array of new communication devices and other 

technologies that are now widely available in the marketplace. 

Court-ordered electronic surveillance has long been a valuable 

tool for effective law enforcement. It is a technique that is used as 

a last resort, when other investigative techniques have failed or 

would be likely to fail or would even be too dangerous to try. 

The judicial process that must be followed to seek a court order 

to authorize this type of surveillance is neither easily nor quickly 

2 

obtained. There are many layers of review, many facts that must 

be established, and ultimately, a judge decides if such a technique 

is warranted. 

Once authorized, law enforcement must comply with reporting 

requirements to the court that issued the order, and there are procedures to protect the privacy rights of innocent parties that may 

use the communication device at issue. The loss of this investigative technique would be a huge risk to both our public safety and 

our national security. 

Congress initially addressed the growing gap between what law 

enforcement was legally authorized to intercept and what they 

were technically capable of intercepting by passing the Communications Assistance for Law Enforcement Act. By clarifying the obligations of the telecommunications industry, this act attempted to 

close the gap and enable law enforcement to address the electronic 

surveillance challenges presented by new technologies. 

But that was back in 1994. Since then, extraordinary developments in communication technology have yielded new communication devices, new services, and new modes of communication that 

did not exist or had not fully reached their maximum potential 

when we first addressed this problem. 

CALEA, as it currently exists, does not address the contemporary 

challenge that law enforcement agencies face when attempting to 

legally intercept electronic communications. 

This issue is not unique to Federal agencies. But many of our 

State and local agencies may be at an even greater risk of going 

dark because many of them do not have the financial resources or 

the expertise to resolve interception problems. 

Interception solutions are not cheap, and one size does not necessarily fit all. The competition in the communication industry has 

yielded a shift from standardized to proprietary technology. This 

often requires law enforcement agencies to develop individual interception solutions that may or may not work in other instances. 

The debate on how best to modernize the law and ensure that 

our law enforcement agencies do not lose this valuable investigative tool will not be easily resolved. Balancing privacy interests, ensuring continued innovation by the communications industry, and 

securing networks from unauthorized interceptions must all be a 

part of the debate, and they will all need to be factored into any 

solution. 

I am particularly interested in hearing about collaboration and 

information sharing among the various Federal, State, and local 

law enforcement agencies as they attempt to efficiently find solutions to the interception challenges. 

I welcome our witnesses and look forward to hearing their testimony. 

I now recognize for his opening statement the Ranking Member 

of the Subcommittee, Congressman Bobby Scott of Virginia. 

Mr. SCOTT. Well, thank you very much, and thank you for holding this hearing. 

I am glad to have the hearing today because over the past few 

months, there have been news reports that new communications 

technologies are making it more difficult for law enforcement to engage in court-authorized wiretaps. The same reports indicate that 

3 

the Administration may be preparing legislation to deal with this 

issue. 

All of this has led to conjecture and speculation about whether 

or not there is, in fact, a problem, what the scope of the problem 

may be, and what Congress may be asked to do about it. Today’s 

hearing is constructive because we need information to see what is 

really going on. 

Some communications companies cited in the news reports tell us 

that they have not been given any specific complaints about their 

cooperation with law enforcement, and they say they have yet to 

hear details of any reported problems. So I am pleased that we 

have two distinguished law enforcement witnesses here today to 

discuss these matters. 

We also have a witness to testify with us today who is not a law 

enforcement representative, but an engineer with extensive experience in communications technology and who is an expert in the relationship between security and surveillance. I realize that this is 

the beginning of a discussion about a range of issues, which are 

likely to include implementation of the CALEA statute, as you 

have indicated, as well as what law enforcement is currently experiencing. 

But I believe at the onset of this discussion, eyes need to be open 

to all of the considerations involved. There is no way around the 

fact that any calls for increased surveillance capabilities will have 

significant implications for technological and economic development, as well as basic privacy concerns. I am glad to hear that we 

will have a variety of perspectives on these issues from our witnesses today. 

I want to make one last comment before concluding my statement, and that is that last week I attended a classified briefing 

given by the FBI including one of our witnesses today. And I appreciate the opportunity to hear the information that was presented. 

But while I think that sometimes it is appropriate for Government officials to discuss classified material in closed sessions, particularly discussions of specific cases, it is critical that we discuss 

this issue in as public a manner as possible. I do not think that 

congressional consideration of these issues should rest on arguments made in secret. It would be ironic to tell the American people that their privacy rights may be jeopardized because of discussions held in secret. 

So, Mr. Chairman, I look forward to our witnesses today, and 

thank you for Chairing the hearing. 

Mr. GRIFFIN. Thank you. 

I now recognize the most recent Chairman emeritus of the Committee, John Conyers of Michigan, for his opening remarks. 

Mr. CONYERS. Thank you, Mr. Acting Chairman. 

I am happy to be here today to welcome all of the witnesses. And 

to me, this is a question of building back doors into systems hearing, if we had to give it a nickname. And I believe that legislatively 

forcing telecommunications providers to build back doors into systems will actually make us less safe and less secure. 

I believe further that requiring back doors in all communication 

systems by law runs counter to how the Internet works and may 

make it impossible for some companies to offer their services. 

4 

And finally, it is my belief that our communication companies 

must be allowed to innovate without technological constraints if 

they are to continue to develop products and services that successfully compete with foreign companies. 

Now that I have given you my views, I would be eager to hear 

yours, and I thank you very much, Mr. Chairman. 

Mr. GRIFFIN. Thank you. 

Without objection, other Members’ opening statements will be 

made a part of the record. 

[The prepared statement of Mr. Johnson follows:] 

Prepared Statement of the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Subcommittee on Crime, Terrorism, and Homeland Security 

Good morning. I would like to thank the witnesses for being here. I want to begin 

by applauding the Chairman’s efforts in seeking to arm law enforcement with the 

tools they need. 

This hearing will largely focus on the Communications Assistance for Law Enforcement Act, CALEA. 

CALEA’s purpose is to enhance the ability of law enforcement and intelligence 

agencies to conduct electronic surveillance by requiring that telecommunications 

carriers and manufacturers of telecommunications equipment modify and design 

their equipment to ensure that they have built-in surveillance capabilities, allowing 

federal agencies to monitor communications. 

In the wake of new technologies, law enforcement, particularly the FBI, has concerns about its inability to conduct court ordered surveillance and refers to this inability as ‘‘Going Dark.’’ 

Law enforcement would like to extend the CALEA requirement to more communications like Skype, encrypted BlackBerry devices, and social networking sites like 

Facebook and Twitter. 

While it is important to arm law enforcement with the tools they need, we must 

be mindful of what such an expansion would cost the American people? 

Not simply in terms of dollars and cents, but in privacy rights, civil liberties, our 

national security, innovation and global competitiveness? 

In addition to sitting on the Judiciary Committee, I sit on the Armed Services 

Committee and am very concerned about how expanding CALEA could jeopardize 

national security, especially cyber security. 

As Susan Landau states in her written testimony, we must be careful that the 

difficulties faced by law enforcement are not solved in a manner that puts U.S. communications at serious risk of being hacked by criminals, non-state actors, or other 

nations. 

It is important that we move with caution when it comes to expanding CALEA. 

Legislatively forcing telecommunications providers to build back doors into their 

systems to allow for surveillance by law enforcement may also provide opportunities 

for hackers and foreign adversaries to gain access to these systems. 

Legislatively expanding CALEA could create vulnerabilities in our communications systems that would allow cyber criminals and terrorists to attack us. 

Expanding CALEA could also hurt America’s competitiveness. Our economic 

growth depends in large part on the continued expansion of ways we use the Internet. Imposing technological constraints on communications companies may make it 

more difficult for American companies to develop products and services that successfully compete with other countries. 

Expanding CALEA could certainly have some unintended consequences that 

would be detrimental to our country. We must keep this in mind as we examine 

this issue. 

I look forward to hearing from our witnesses about how we can balance the rights 

of law enforcement without compromising our national security interests or trampling over the privacy rights of millions of Americans. 

Thank you, Mr. Chairman, and I yield back the balance of my time. 

Mr. FORBES. Mr. Chairman? 

Mr. GRIFFIN. Yes, sir? 

5 

Mr. FORBES. Mr. Chairman, could I just take 2 minutes for the 

Committee? 

I just want to recognize a good friend of mine who is here today. 

We are proud of Chief Marshall. He is the president of the International Association of Chiefs of Police. But near and dear to me, 

he is the chief of police in Smithfield, Virginia, in Congressman 

Scott and my home State. 

And we are proud of all of our witnesses, but particularly glad 

to see him. And I just wanted him to know that I have got some 

amendments on the floor. So I will be slipping in and out, but we 

are so glad to have you here today. 

Thank you, Mr. Chairman. I yield back. 

Mr. GRIFFIN. Did he bring any hams with him? [Laughter.] 

Mr. FORBES. Mr. Chairman, if he did, they would be the best 

hams in the world, I will tell you. [Laughter.] 

Mr. MARSHALL. If it would help you with your deliberations. 

[Laughter.] 

Mr. GRIFFIN. It might make me go to sleep. Thank you for that. 

It is now my pleasure to introduce today’s witnesses. Valerie 

Caproni—is that correct? 

Ms. CAPRONI. That is correct. 

Mr. GRIFFIN. Oh, great. Ms. Caproni has been a general counsel 

in the FBI’s Office of the General Counsel since 2003. Prior to her 

work with the FBI, she was regional director of the Pacific Regional Office of the Securities and Exchange Commission. She then 

became a counsel at the law firm of Simpson, Thacher, and Bartlett, specializing in white-collar criminal defense and SEC enforcement actions. 

Ms. Caproni has also previously worked in the U.S. Attorney’s 

Office as an assistant U.S. attorney, chief of special prosecutions, 

and chief of the Organized Crime and Racketeering Section, and as 

chief of the Criminal Division. 

Ms. Caproni received her bachelor of arts in psychology from 

Newcomb College of Tulane University—I am a Tulane grad as 

well—in 1976 and her law degree from the University of Georgia 

in 1979. 

Chief Marshall is president of the International Association for 

Chiefs of Police. He has held the position of chief of police in 

Smithfield for over 18 years and has been in State and local law 

enforcement for 25 years. Chief Marshall serves as Chairman for 

the Law Enforcement Date Exchange and sits on the Advisory Policy Board for the FBI’s CJIS Division. 

Chief Marshall is the past president of the Hampton Roads 

Chiefs Association and is on the executive board of the Virginia Association of Chiefs of Police. 

Chief Marshall received his bachelor of arts in criminology from 

St. Leo University and his master’s in public administration from 

Old Dominion University. He is a graduate of the FBI National 

Academy and the Police Executive Leadership Program through 

the University of Virginia and the Virginia Police Chiefs Foundation. 

Susan Landau, Dr. Landau, studies the interplay between privacy, cybersecurity, and public policy for Radcliffe Institute at Harvard University. Prior to her work at the Radcliffe Institute, Dr. 

6 

Landau was a distinguished engineer at Sun Microsystems for 12 

years. 

Before her work at Sun Microsystems, she taught computer 

science at the University of Massachusetts and Wesleyan University. Dr. Landau is the co-author with Whitfield Diffie of ‘‘Privacy 

on the Line: The Politics of Wiretapping and Encryption.’’ And her 

book ‘‘Surveillance or Security: The Risks Posed by New Wiretapping Technologies’’ will be published this spring. 

Dr. Landau received her bachelor of arts from Princeton University, her master’s of science from Cornell University, and her Ph.D. 

from MIT. 

Without objection, the witnesses’ statements will appear in the 

record, put in their entirety. Each witness will be recognized for 5 

minutes to summarize their written statement. 

The Chair now recognizes Ms. Caproni. 

TESTIMONY OF VALERIE CAPRONI, GENERAL COUNSEL, 

FEDERAL BUREAU OF INVESTIGATION 

Ms. CAPRONI. Thank you. 

Good morning, Chairman Griffin, Ranking Member Scott, and 

Members of the Subcommittee. Thank you for the opportunity to 

testify before you today regarding the problem that we refer to as 

‘‘going dark.’’ 

Most of us are old enough to remember when the world of communications involved a home telephone and an office telephone. In 

that world, when a court authorized law enforcement to conduct a 

wiretap, we knew exactly where and how to conduct it. 

We placed a device called a ‘‘loop extender’’ on the target’s telephone line. That device intercepted the target’s telephone conversations, which were then routed to our monitoring plant so we could 

hear everything said on the telephone and learn the telephone 

numbers of all incoming and outgoing calls. 

Then the world of communications got a little more complicated. 

The telephone companies started to shift their technology from 

analog to digital signals, and cell phones became ubiquitous. The 

phone companies were adding services like call forwarding, call 

waiting, and three-way calling. 

All of that had a negative impact on our ability to conduct authorized wiretaps, and Congress stepped into the breach. In 1994, 

it passed the Communications Assistance for Law Enforcement, or 

CALEA. 

To ensure that advances in technology would not outstrip law enforcement’s ability to conduct court-approved wiretaps, CALEA required telecommunication carriers to develop and deploy intercept 

solutions in their networks so that when the Government gets a 

wiretap order, it can actually conduct the authorized surveillance. 

Since then, the number of ways in which we communicate has 

exploded. We still have home office and cell telephones that can be 

forwarded, put on hold, and make three-way calls. But we also now 

have home and office email accounts, Twitter accounts, Facebook 

and MySpace pages, BlackBerrys and Androids, iPhones and iPads. 

We can chat, text, and send instant messages. We can video chat. 

We can upload videos with comments, and we can communicate 

using an avatar in Second Life. 

7 

If all of that is not complicated enough, we can access our accounts from our home desktop computer via cable connection to the 

Internet or from a laptop that has a wireless connection. We can 

access our accounts from our office computer, from a computer in 

the business center of a hotel, and even from an iPad via a Wi-Fi 

hotspot while drinking no-fat latte at the closest Starbucks. 

The advances in our ability to communicate have many advantages, but they also have made it exponentially more difficult for 

law enforcement to execute court-authorized wiretaps. Over the 

past several years, the FBI and other law enforcement agencies 

have increasingly found themselves serving wiretap orders on providers that are not covered by CALEA and, therefore, under no preexisting legal obligation to design into their systems a wiretap capability. 

Such providers may or may not have intercept capabilities in 

place for all of their services. If they have no capability or only limited capability, it takes time to engineer a solution—sometimes 

days, sometimes months, and sometimes longer. 

Potentially critical evidence in intelligence can be lost while the 

provider designs a solution so that it can isolate to the exclusion 

of all others the communications of the particular person whose account we are authorized to wiretap and then deliver those communications and only those communications to law enforcement with 

the relevant metadata. 

Our inability to immediately and completely execute court wiretap orders is not limited to new and exotic ways of communicating. 

Providers that are covered by CALEA and, therefore, required to 

maintain a solution in their systems are sometimes unable to immediately execute wiretaps. 

Sometimes that happens because the company has made changes 

to its network but did not adjust its intercept solution so that it 

would still work. Sometimes the problem is that the approved industry standard does not provide the Government all the information it is lawfully authorized to collect. 

Whatever the reason, this is a problem that creates national security and public safety risks. The challenge facing us and our 

State and local counterparts is exacerbated by the fact that there 

is currently no systematic way to make electronic intercept solutions widely available across the law enforcement community. 

Federal, State, and local law enforcement agencies have varying 

degrees of technical expertise regarding electronic surveillance and 

lack an effective mechanism for sharing information about existing 

intercept capabilities. This leads to the inefficient use of scarce 

technical resources and missed opportunities to leverage existing 

solutions. 

The absence of institutionalized ways to coordinate and share information in this area impedes the deployment of timely, cost-effective intercept capabilities that are broadly available to the law enforcement community. Today’s technical advances inure to the 

great benefit of society, but they create significant challenges to the 

Government’s ability to conduct lawful wiretaps. 

We see going dark as a problem with many facets, but they all 

boil down to this. The combination of carrots and sticks that the 

8 

Government has are not working to incentivize industries to develop and maintain adequate intercept solutions for their services. 

As a consequence, when a court issues an order authorizing a 

wiretap, we are not consistently able to execute that order and 

promptly begin to collect evidence and intelligence. If we continue 

to be unable to accomplish that which even the most ardent privacy 

advocates will agree we ought to be able to accomplish—namely, to 

execute a wiretap order when authorized to do so by a court—then 

we will be significantly hobbled in achieving our mission of protecting the public safety and national security. 

Thank you for the opportunity to address this Subcommittee, and 

I look forward to answering your questions. 

[The prepared statement of Ms. Caproni follows:] 

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Mr. GOWDY [presiding]. Thank you, Ms. Caproni. 

Chief Marshall? 

TESTIMONY OF CHIEF MARK MARSHALL, PRESIDENT, 

INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE 

Mr. MARSHALL. Good morning, Mr. Chairman and Members of 

the Subcommittee. 


Caproni-8.eps
17 

My name is Mark Marshall, and I serve as the chief of police in 

Smithfield, Virginia. I also serve as the president of the International Association of Chiefs of Police. 

I am here today representing over 20,000 of IACP’s members 

who are law enforcement executives in over 100 countries throughout the world. The majority of our membership, however, is here 

in the United States. 

As my good friend Congressman Forbes indicated, I am from 

Hampton Roads, Virginia, a smaller jurisdiction there. I have the 

big-city problems without the big-city resources. And I have got 2 

million people sitting on my doorstep. 

I am pleased to be here to represent and to discuss the challenges currently confronting the U.S. law enforcement community 

on electronic surveillance issues. 

In the United States, there are more than 18,000 law enforcement agencies and well over 800,000 officers who patrol our State 

highways and the streets of our communities each and every day. 

Very simply, in this day and age with budgets, we are tasked to 

do more with less. 

A great number of those officers also use electronic surveillance 

as they investigate crimes. Each day, local, State, tribal, and Federal law enforcement agencies use lawful electronic surveillance as 

a critical tool for enforcing the Nation’s laws and protecting the 

citizens we have the honor to serve. Moreover, electronic evidence 

is now a routine issue in all crimes and at most crime scenes. 

The IACP believes that the lawful interception of voice and data 

communications is one of the most valuable techniques available to 

law enforcement in identifying and crippling criminal and terrorist 

organizations. Understandably, there is an increased volume and 

complexity of today’s communication services and technologies. And 

the evolution and development of communication devices has had 

a significant impact on law enforcement’s ability to be able to conduct that surveillance, as well as to recover valuable evidence from 

communication devices. 

Additionally, legal mandates and authorities have not kept pace 

with the changing technology. CALEA or, the Communications Assistance for Law Enforcement Act, for example, does not cover 

many types of services that are, unfortunately, used routinely by 

criminals. 

The advanced features of today’s phones can process more information about where people have been, who they know, who they 

are calling, what they are texting, pictures they have sent and/or 

are sending, as well as larger amounts of data than ever before. Information recovered can also produce connections to other media 

like Facebook and Twitter, contact lists, call histories, calendars, 

waypoints, and email. 

If properly recovered, this sort of stored data on communication 

devices has great investigative and intelligence value to assist law 

enforcement with investigations. The proposed center, however, 

does not attempt to thwart or inhibit social discourse, which is a 

fundamental piece to democratic societies, not attempting to water 

down Title III or judicial orders for these electronic intercepts. 

Unfortunately, many of the agencies that need to be able to conduct electronic surveillance of real-time communications are on the 

18 

verge of going dark because they are increasingly unable to access, 

intercept, collect, and process wire or electronic communications information when they are lawfully authorized to do so. 

This serious intercept capability gap often undercuts State, local, 

and tribal law enforcement agencies’ efforts to investigate criminal 

activity such as organized crime, drug-related offenses, child abduction, child exploitation, prison escape, and other threats to public 

safety. This must change. 

Law enforcement must be able to effectively use lawful electronic 

surveillance to combat terrorism and fight crime. Law enforcement 

needs the Federal Government to generate a uniform set of standards and guidelines to assist in this exploration. 

In order for law enforcement to maintain its ability to conduct 

electronic surveillance, laws must be updated to require companies 

that provide individuals with the ability to communicate. 

In September, the Law Enforcement Executive Forum, comprised 

of law enforcement executives, including the IACP, released a plan 

to address the spectrum of issues related to electronic surveillance. 

This plan was the National Domestic Communications Assistance 

Center, otherwise known as NDCAC. In the Federal Government, 

we have to have lots of acronyms. 

The proposal calls for a strategy to be created to address issues 

related to maintaining law enforcement’s ability to conduct courtauthorized electronic surveillance. The proposal calls on Congress 

and the Administration to make funding available to establish the 

center. 

The center would leverage the research and development efforts 

of the law enforcement community with respect to lawful electronic 

surveillance capabilities. The center would also facilitate the sharing of technology between law enforcement agencies. 

I see that my time is up. So let me just wrap this up. 

State, local, tribal, and Federal law enforcement are doing all 

that we can to protect our communities from increasing crime rates 

and the specter of terrorism, both in our streets and in the many 

communications devices available today. But we cannot do it alone. 

We need the full support, we need the assistance of the Federal 

Government. 

We need clear guidance and regulations on our use of lawful 

interception of voice and data communications to aid us in successfully investigating and prosecuting the most dangerous of criminals. It is important for the safety of our hometowns, and that will 

equate to the safety of our homeland. 

Thank you. 

[The prepared statement of Mr. Marshall follows:] 

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Mr. GOWDY. Thank you, Chief. 

Dr. Landau? 


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TESTIMONY OF SUSAN LANDAU, Ph.D., RADCLIFFE INSTITUTE 

FOR ADVANCED STUDY, HARVARD UNIVERSITY 

Dr. LANDAU. Mr. Griffin and Members of the Committee, thank 

you very much for inviting me to testify. 

I am Susan Landau, a fellow at the Radcliffe Institute for Advanced Study at Harvard University. I am here representing my 

own opinions and not that of Harvard or any of the other institutions with which I am affiliated. 

I have spent, for the last half dozen years and more, time looking 

at the risks involved when you build wiretapping capabilities into 

communications infrastructures. And while there are issues in 

CALEA about security versus privacy and security versus innovation, I am here to talk about security risks in building the surveillance technology in. 

A major national security problem facing the United States is 

cyber exploitation. We have nation states and criminals penetrating systems, finding the files of interest, and downloading them 

quickly and shipping them out of the country. 

This began happening in the early 2000’s and has occurred at 

U.S. military sites, at Government labs, and private industry. 

Google, Lockheed Martin, NASA, Northrop Grumman, Oak Ridge 

National Labs, the list goes on. 

How serious is the threat? According to Deputy Secretary William Lynn, it may be the most significant cyber threat that the 

U.S. will face over the long term. In 2003, the FBI reported that 

industrial espionage cost the U.S. $200 billion. It is many times 

higher now. 

Can wiretapping capabilities built into communications infrastructures be exploited? The answer is, unfortunately, ‘‘yes’’ because wiretapping is an architected security breach. 

Let me tell you a story about Vodafone Greece. A CALEA-type 

switch was built into Vodafone Greece’s network, built in by 

Ericsson. Vodafone Greece didn’t want this switch. So it had been 

turned off. Because they didn’t pay for that piece of the switch, 

they also didn’t have auditing capabilities. 

The result? A hundred senior members of the Greek government—including the prime minister, the head of the ministry of defense, the ministry of interior—were wiretapped for a period of 10 

months until a text message went awry and they discovered the 

problem with the system. 

At Telecom Italia over a period of 10 years, presumably from an 

insider attack, people using the system—celebrities, politicians, 

judges, sports figures—were wiretapped for a period of 10 years. 

Six thousand Italians. That is 1 in 10,000 Italians was wiretapped. 

Presumably, no large business deal or political arrangement was 

ever really private. 

A Cisco switch made to comply with law enforcement wiretapping standards in Europe was discovered to have mechanisms 

in it that were designed in such a way that it was easy to spoof 

the system and evade auditing. When you think about a wiretapping system that can evade auditing, I want to remind you of 

people like Robert Hanssen, who evaded the auditing systems of 

the FBI for many years. 

24 

If you think about it, when a Lockheed Martin or a Northrop 

Grumman fails to adequately secure its networks, the cost can be 

thousands of proprietary files stolen. But if a communications provider, an applications provider, or a switch provider fails to have 

an adequately secured communications system, that cost occurs 

over the millions of communications that utilize that switch or application. 

It is unlikely that surveillance can be built in securely. In the 

U.S., there are hundreds of communications providers, many of 

them very small, with fewer than 100 employees. 

Many startups producing new communications applications are 

similarly small. Putting wiretapping into the mix risks the communications of all their customers. 

I want to step back for a moment and talk about cryptography, 

a fight we had in the 1990’s in which the NSA and the FBI opposed 

the deployment of cryptography through the communications infrastructure. In 1999, the U.S. Government changed its policy. 

The NSA has been firmly behind the change of policy, and endorsed a full set of unclassified algorithms to be used for securing 

the communications network. The NSA obviously believes that in 

the conflict between communications surveillance and communications security, we need to have communications security. 

What needs to happen? I agree that law enforcement has a problem. Law enforcement needs to be more entrepreneurial. Instead of 

the one-size-fits-all of CALEA, it needs more tailored solutions. 

It is already using transactional information. Chief Marshall described all of the information currently available on the PDAs and 

so on. That was not information available at the time that the 

wiretap laws were passed. 

Transactional information is what enabled us to capture Khalid 

Sheikh Mohammed, the designer behind September 11th. It enabled us to capture the July 21st bomber who fled from London to 

Rome. It is what enables U.S. Marshals Service to have cut the 

time to catch fugitives from an average of 42 days to 2. 

I think we should augment the FBI going dark effort. I know 

that is expensive in a time of financial austerity, but we are going 

to have to pay for this, and we don’t want to pay for it by increasing security risks or threatening innovation. 

I agree that with new communications technologies there is a 

need for law enforcement access to legally authorized surveillance. 

But let us not do it in a way that makes things more dangerous 

and unsecures the U.S. 

Thanks very much. I would be happy to take questions. 

[The prepared statement of Ms.. Landau follows:] 

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Mr. GOWDY. Thank you. 

Because I am merely keeping the seat warm for my distinguished colleague from the great State of Arkansas, Mr. Griffin, I 

would call on my equally distinguished colleague from the great 

State of Virginia, Mr. Scott. 

Mr. SCOTT. Thank you. 

Ms. Caproni, are you asking for any surveillance authority over 

and above what you have now—requirement for warrant, probable 

cause, and all of that? 

Ms. CAPRONI. No, we are not. We believe that the authority that 

we have to conduct court-authorized wiretaps, which appears in 

Title III as well as in FISA, is more than adequate. 

Mr. SCOTT. And when you have a wiretap and the technology 

doesn’t let you listen in, that is the problem we are dealing with, 

right? 

Ms. CAPRONI. Correct. We are dealing with the problem of we 

have a wiretap order. So a court has authorized us to conduct the 

surveillance. But when we serve it on the provider, the provider 

tells us they don’t have the ability to isolate our target’s communication to the exclusion of all others and deliver them to us in a 

secure manner. 

Mr. SCOTT. And Chief Marshall, good to see you. As indicated, 

their recommendation that a technological way to get into the conversation be required to be part of cell phones or whatever else. Is 

that right, Chief Marshall? 

Mr. MARSHALL. Yes, sir. I mean, there is so much—there is valuable data that is contained in every—most criminals are using 

their cell phone in one way, shape, fashion, or form. 

Mr. SCOTT. Now, Ms. Landau, if law enforcement can get into a 

conversation, what would prevent anyone else who is a skilled 

hacker, what would be the problem for them getting in? 

Dr. LANDAU. You want a tailored solution for the problem. So the 

problem with the case in Vodafone Greece is that the wiretapping 

capability was built into the switch, and it was easy to go in and 

turn the switch on instead of off. Not completely trivial, but easy. 

And what you want to do, what I am proposing is that it not be 

built in in a way that decreases the security of all communications. 

Mr. SCOTT. Well, how can the law enforcement get into a conversation and a skilled hacker not be able to? Can you construct 

it in such a way that only law enforcement can listen in and not 

others? 

Dr. LANDAU. That is right. It used to be that you had to go—— 

Mr. SCOTT. That is right you can, or you can’t? 

Dr. LANDAU. You can. You can. But you can’t have it done in a 

method that makes it possible to just automatically turn it on remotely, deliver it. You have to make it more specially tailored. 

Mr. SCOTT. Is this hard? I mean, Chief Marshall, as he indicated, 

is from a small city. They don’t have a lot of high-tech people sitting around. Is that something that is easy to put together? 

Dr. LANDAU. No, it is not easy to put together, which is why I 

applaud the FBI effort to do much better information sharing with 

State and local law enforcement. I think that the FBI should be the 

one taking the lead in developing those capabilities, and doing that 

information sharing is absolutely crucial. 

36 

Mr. SCOTT. Now this back door would be required in domestically 

produced cell phones, for example. Could we require imported 

phones to have this same capability? 

Dr. LANDAU. I don’t want to see a back door. I want to see specially tailored capability, and those are different requirements. We 

can require what we want about systems sold here. The question 

is how they can operate here and—— 

Mr. SCOTT. Well, can a phone, imported phone be hacked into by 

law enforcement and not hacked into by others? 

Dr. LANDAU. It depends on how you do the hacking. And that is 

really the question. If you build the system in a way that simplifies 

the hacking and makes it very easy for somebody to get in, and 

that is the problem with applying CALEA to IP-based communications. It is simply too easy to do that. Then you run into trouble. 

Mr. SCOTT. Well—— 

Dr. LANDAU. So I am arguing for something that is more expensive. But you are measuring the cost of a more expensive tailored 

solution against the national security cost of risking communications of everybody going through that switch or that application 

being accessible. 

Mr. SCOTT. If we could require this technology be placed in 

phones that are imported, we could have no ability to require that 

for phones that are manufactured outside of the United States and 

reportedly sold outside of the United States? 

Dr. LANDAU. That is right. But the question is where you do the 

tapping. You could do it at the phone. You could do it at the switch. 

You can do it at many places along the pathway. 

In the case of a cell phone, you can do it at a switch. That is how 

we do it now. 

Mr. SCOTT. So if you had an out of the country phone and 

brought it into the United States, the capability would be in the 

system, not in the phone itself? 

Dr. LANDAU. That is correct. 

Mr. SCOTT. And American manufacturers would, therefore, not 

be at a disadvantage? 

Dr. LANDAU. That is correct. 

Mr. SCOTT. Mr. Chairman, I yield back. 

Dr. LANDAU. But there is currently not a problem typically with 

wiretapping cell phones. The problem is with IP-based communications. 

Mr. GRIFFIN [presiding]. I recognize Mrs. Adams for 5 minutes. 

Mrs. ADAMS. Thank you, Mr. Chair. 

Ms. Caproni, you have listened to Dr. Landau, and are you concerned at all about her concerns? 

Ms. CAPRONI. We share some of the same concerns, and I am little concerned that some of the answers to the questions to Representative Scott may have left a misunderstanding of how we conduct intercepts. 

There is no—the attacking of the device or hacking into a device, 

if we had a court order, is sometimes permitted. That is sometimes 

the best way to do it. It is not the normal way to conduct a wiretap. 

We want the wiretap and the device that conducts the wiretap 

to be under the control of the provider. So, to that extent, I think 

Dr. Landau and I may actually agree that we don’t want the interVerDate Aug 31 2005 16:42 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\021711\64581.000 HJUD1 PsN: DOUGA
37 

cept solution to be somewhere where it can be gotten to by thirdparty actors. 

Mrs. ADAMS. Manipulated. 

Ms. CAPRONI. Correct. The lawful intercept solution should be 

under the control of the provider, and the provider is responsible 

for security. There is always risk from insiders. That is a risk that 

companies manage all the time, particularly big communication 

providers. So they need to manage that risk. 

And we will look, obviously, very hard at the issue of the security 

associated with anything that we propose to deal with this problem. So security is a legitimate concern. I think we may disagree 

that having a lawful intercept solution under the control of a provider increases that risk in any kind of a material way. 

Mrs. ADAMS. Chief, you have heard the concerns, and I preface 

this by I will tell you I am a past law enforcement officer. And it 

did send some red flags up to me when I start reading the breaches 

and everything else and on the security level of it. I would like to 

hear your opinion. 

Mr. MARSHALL. Yes, ma’am. Thank you. 

We certainly don’t want to circumvent the stringent legal process 

involved in, one, obtaining those intercepts, whether it is voice and/ 

or data. Again, I think we are, particularly at the local and State 

level—you know, I represent all of law enforcement. The bulk of 

our membership is really at the local and State level, and it is 

where law enforcement actually takes place on a day-to-day basis 

in this country. 

We need a place, particularly for the smaller and mid-sized agencies that don’t have the capabilities to be able to go out, to be able 

to get those tools, to be able to retrieve that data. We need that 

place that we can make that call, that we would have that one-stop 

shop, if you would. That would at least, it may not have the information but would at least be able to direct us to be able to get that 

information. 

In terms of, at the same time, I agree with Ms. Caproni’s statement that it is—that I think that this is the industry or the provider would have that, and they would only be providing that when 

you had that lawful intercept order, that judicial order. For us, it 

is about going dark. It is most of the criminal element are using 

and exploiting the ability of the communication tools that are out 

there. They change every day. It is amazing to me. 

I waited 2 years to get a Verizon phone. I finally ordered one. 

Came into the D.C. area last night, turned on the TV, and I found 

out that they have got the new generation. Generation 5G is now 

going to be out in June. That is the problem. I have already done 

my order. So it is too late. 

But that is the problem, and that is what we are seeing, that this 

is just—this changes so quickly. 

Mrs. ADAMS. Technology is changing rapidly. 

Ms. Caproni, leaving it at the provider, are you at least the least 

bit concerned that a possibility could arise, and is there a way to 

check the auditing system, if it is at the provider, so that we don’t 

have a Greece or an Italy? 

Ms. CAPRONI. I think the answer to that is yes, and the providers 

who provide lawful intercept to us also have responsibilities for the 

38 

general security of their system. The providers are responsible for 

making sure that their systems are not being hacked into overall. 

Mrs. ADAMS. Correct. 

Ms. CAPRONI. As well—— 

Mrs. ADAMS. But are you aware if any of the systems currently 

have that switch that they just haven’t turned on? 

Ms. CAPRONI. I am not sure about the specific switch that Dr. 

Landau was talking about. She references two instances where 

that switch has been compromised. I would say that switch has 

been deployed to literally hundreds of thousands of telephone companies throughout the world. 

So two out of hundreds of thousands, that is a balance. We will 

obviously be looking, though, at security issues. 

Mrs. ADAMS. Okay. 

Ms. CAPRONI. We are concerned—we would not propose anything 

to solve this problem that would appreciably change the security 

situation that exists in our telecommunication or the Internet system. 

Mrs. ADAMS. That is what I wanted to hear. Thank you. 

Mr. GRIFFIN. Chairman emeritus Conyers is recognized for 5 

minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. 

To our distinguished chief of police and the president of the 

International Association of Police, you don’t have much personal 

contact with these kinds of issues of cryptography going on, do you? 

Mr. MARSHALL. No, sir. We don’t have it in terms of the cryptography. We do, however, have the issue surrounding cell phones and 

being able to extrapolate that data because, as we have found, they 

are using—anymore it is not even about voice, it is also about 

texting. It is IM messages. It is all of those things. 

Mr. CONYERS. Yes. 

Mr. MARSHALL. Those are pieces that we need that would help, 

would significantly help our crime-fighting capabilities. The unfortunate—— 

Mr. CONYERS. Okay. Let me get to the point that I am working 

at. Have you had much contact or experienced problems with Federal or State law enforcement officials seeking to conduct electronic 

surveillance and you were stymied because you wanted access to 

encrypted information that was unavailable from the communications service that you were using? 

Mr. MARSHALL. Yes, sir. We have, and it happens every day 

throughout the law enforcement community, an inability for us to 

be able to retrieve that data. In other words, if I seize a cell phone, 

I don’t have the capabilities—as you well understand, I don’t have 

the capabilities to be able to do it except with some off-the-shelf 

products that are, frankly, obsolete. 

I send it to the State lab. They then have to go do the search 

to try to find the newest, the latest and greatest tool to be able to 

get that. Quite often, they come back that they are unable to do 

it. And that, unfortunately, is something that is happening with 

my law enforcement colleagues in agencies across this country. 

Mr. CONYERS. Dr. Landau, we have all agreed there is a problem 

here, and it is complicated. It is expensive and could also be very 

39 

dangerous to our national security. What would your recommendations as first steps be in terms of dealing with this? 

Dr. LANDAU. So I think that Ms. Caproni and I will find that we 

agree more than we disagree. I think it is imperative that the FBI, 

which is in a positive to develop solutions to emerging communications technologies, have a very good information-sharing system 

with State and local law enforcement because they clearly are overwhelmed and cannot manage that on their own. 

I think transactional information, which has become much more 

valuable as emerging technologies come out, should be used even 

to greater extent than it is at present. And I think the research 

arm of the going dark program has to be expanded so that the FBI 

does the same kind of thing that the NSA does, finds out the 

emerging communications technologies and figures out solutions to 

the wiretapping before there is a case. So that when the case 

comes, they are ready with the solution. 

And so, I think that we would find we agree quite a bit. 

Mr. CONYERS. Well, Ms. Caproni, you are here under I think you 

have come out from under the cloud that the whole Federal Bureau 

of Investigation was under the last time you were here, namely, 

that the IG had found out that you had been abusing the national 

security letters and that you promised to clean it up. 

And my general counsel says that he feels satisfied about it. I 

don’t sound like I am too satisfied about it. But you are here now 

telling us that and it is being recommended by our own witness 

that you need more resources to effect this more satisfactory communication with Federal and State law enforcement officials. Is 

that correct? 

Ms. CAPRONI. Congressman, the FBI is always eager to have additional resources. Resources will help, but resources to the FBI 

standing alone is not going to solve this problem. 

The reality is that we have ways and we know how certain intercepts can be done. Our technicians know how to do that. But these 

systems need to be deployed within the provider’s system. 

And I think from both the privacy perspective and in kind of real 

life what you want, you don’t really want the FBI crawling around 

in providers’ systems to install the wiretap solution. We want them 

to develop and deploy the wiretap solution. We think—— 

Mr. CONYERS. I ask unanimous consent for one additional 

minute, Mr. Chairman. 

Mr. GRIFFIN. Go right ahead. 

Mr. CONYERS. Thank you very much. 

Well, then that gets us to my back door comments when I started 

off. Do you recall that I was saying the back door way won’t work? 

Mr. CAPRONI. Congressman, I actually wrote that down, that you 

were concerned about building back doors into systems. And let me 

make one thing clear. The FBI’s view is that this is not about back 

doors into systems. 

In fact, quite the contrary. We don’t want a back door. What we 

want is for the provider to isolate the transactions and isolate the 

communications that the court has authorized us to get and to 

hand those communications and no others to us through the front 

door. 

Mr. CONYERS. All right. Great. 

40 

Ms. CAPRONI. We do not want a back door—— 

Mr. CONYERS. That sounds good. 

Dr. Landau, do you agree or disagree? 

Dr. LANDAU. I disagree. It is a bit of word play here. Ms. Caproni 

said, look, the Telecom Italia and the Vodafone Greece case were 

only two cases out of thousands of deployed switches. 

If it were the President of the United States or the Speaker of 

the House instead of the prime minister of Greece, would we still 

be saying only two switches out of thousands deployed? Surely not. 

When you build wiretapping capability into an application, when 

you build it into a switch, you are creating a serious security risk. 

I would say in light of the cyber exploitations we have been seeing 

nationally the last half dozen years, that is not a risk we can afford. 

Mr. CONYERS. Thank you very much, Mr. Chairman. 

Mr. GRIFFIN. Thank you. 

The Chair recognizes Mr. Gowdy for 5 minutes. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Ms. Caproni, to those who may misapprehend and fear that you 

are seeking an expansion of the Bureau’s legal authority in this 

realm, alleviate those fears for them. 

Ms. CAPRONI. I will do the best I can. We are not looking for any 

new authority. We believe that the authority that we have to conduct wiretaps that appears in Title III on the criminal side and in 

FISA on the national security side are adequate to our needs. 

But what we are concerned is that we are losing ground to actually be able to gather the information that we are authorized to 

gather. For example, Dr. Landau is focusing on and suggests that 

we should rely more on transactional data. Transactional data is 

valuable. It is useful to us. It is not the same as the actual conversation, the content of the conversation, which is critically important, again, from both the national security and public safety perspective. 

But I would also point out that even gathering transactional 

data, like PIN register data, which is the most basic information. 

Who is the telephone calling? Who are the two sides of the communication? Under the J standards that has been adopted by industry, under CALEA, we can’t get basic PIN register data. 

So while we may know that a telephone is texting, we don’t know 

what the telephone number of each side of the transaction is. Without that very basic information, our investigations are stymied. We 

need that information in order to keep the public safe. 

Mr. GOWDY. Cite for me the specific remedies you are seeking 

and Congress’s authority to grant them to you. 

Ms. CAPRONI. Congressman, the Administration is still working 

on what the solution would be, and we hope to have something that 

we can work with Congress on in the near future. 

Mr. GOWDY. I take it by your title, counsel, that you are legally 

trained? 

Ms. CAPRONI. I am. 

Mr. GOWDY. No doubt better than me. So help me with the authority that Congress would have to, as I understand it, dictate to 

telecommunications companies changes that they have to make. 

41 

Ms. CAPRONI. Well, CALEA, which was enacted in 1994, already 

requires telecommunications companies to have a wiretap solution 

built into their system. There are some issues with CALEA and 

some ways that I think with the experience of 16 years with it, it 

could be improved, and I think that would be part of—conceivably, 

that would be part of what we would recommend is how to make 

the CALEA process for those companies that it covers more productive, and it would better accomplish the goal that Congress created 

in ’94. 

As to providers that aren’t covered by CALEA, I think that is the 

bigger challenge. And that is where, through the interagency process, there is a lot of discussion about what is the right way to walk 

the line, which is an important line, between having providers have 

the ability to execute a wiretap order when it is delivered to them 

and not squashing innovation and not hurting the competitiveness 

of U.S. companies. 

We have a very active discussion in the interagency about how 

to walk that line. I think it is going to be something that Congress 

is going to be incredibly interested in. Is there a way to accomplish 

these two goals? 

I am optimistic that there are ways to incentivize companies to 

have intercept solutions engineered into their systems that are safe 

and secure and not make their system more vulnerable to outside 

attacks while still encouraging the sort of innovation that we have 

seen in the American market. 

Mr. GOWDY. Chief, let me thank you for your service and ask you 

are there specific instances that you can cite within the confines of 

an open hearing where you or members of your membership have 

had investigations thwarted because of inadequacies in our information-capturing systems? 

Mr. MARSHALL. Thank you, Congressman. 

I don’t have specific instances. I have talked to a number of my 

colleagues around the country who indicate that this happens on 

almost a daily basis. 

I know that we are just inundated with our case logs. We are 

also—because of the budgets, we have been forced to make reductions. And because of some of those case reductions, when we are 

trying to do some of these investigations, particularly in terms of 

retrieval of data that is being stored on phones or other electronic 

devices, they simply can’t do it. 

When we send it, for example, in my agency, we send it, we send 

it to the Virginia State lab, who then contacts the Federal partners, typically the FBI. The problem is, is they also have their own 

case log. And because of the number of small industry agencies or 

small providers that are continuing to pop up with the new electronic, what ends up happening is we get the report back that it 

simply can’t be found. 

And that happens every day. 

Mr. GOWDY. Thank you, Chief. 

Thank you, Mr. Chairman. 

Mr. GRIFFIN. Mr. Johnson is recognized for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Law enforcement wants us to extend the CALEA requirement to 

more communications like Skype, encrypted BlackBerry devices, 

42 

and social networking sites like Facebook and Twitter. It is important, I believe, that we move with caution when it comes to expanding CALEA, which may also provide opportunities for hackers 

and foreign adversaries to gain access to these systems. 

I have a couple of questions. Number one, how big is the problem, Ms. Caproni, that you are trying to solve? In rough numbers, 

how many times in the last year did Federal and State law enforcement officials seek to conduct electronic surveillance and were stymied because the communications it wanted to access were 

encrypted or were unavailable from the communications service 

that carried them? 

And secondly, as you know, governments around the world have 

recently shown a strong interest in accessing the communications 

of BlackBerry business users whose emails are currently encrypted 

with a key not known to BlackBerry’s parent company or the wireless carrier or anyone other than the company employing the individual user. 

Several countries have threatened to ban the use and sale of 

BlackBerry devices unless BlackBerry’s parent company provides 

them with intercept capabilities. The ability of American business 

people to communicate securely, particularly when they travel 

abroad, is obviously of great importance to our own economic wellbeing. 

If the emails of a U.S. businessman or woman can be monitored 

by the Saudi, Indian, or Indonesian governments when they travel 

abroad, we risk losing the intellectual property advantage that is 

at the very core of our economy. However, if we force BlackBerry’s 

parent company to give U.S. law enforcement agencies intercept capabilities over these business users, it will likely be quite difficult 

for the company to keep saying no to those other governments. 

Is providing U.S. law enforcement agencies with this access 

worth it if it means that foreign governments will then be able to 

get the same intercept capabilities in their own countries? 

Ms. CAPRONI. So there are several questions in that question. Let 

me try to take them one at a time. 

First, let me start with law enforcement or at least FBI has not 

suggested that CALEA should be expanded to cover all of the Internet. In fact, the subject of how you would achieve the goal that we 

are talking about is very actively being discussed in the interagency. That might be a solution. That might not be a solution. So 

we are not really suggesting that. 

But let us turn directly to encryption. Encryption is a problem, 

and it is a problem that we see for certain providers. It is not the 

only problem. And if I don’t communicate anything else today, I 

want to make sure that everyone understands that this is a multifaceted problem. And encryption is one element of it, but it is not 

the entire element. 

There are services that are not encrypted that do not have an 

intercept solution. So it is not a problem of it being encrypted. It 

is a problem of the provider being able to isolate the communications and deliver them to us in a reasonable way so that they are 

usable in response to a court order. 

Mr. JOHNSON. Well, that is not to minimize, however, the 

encryption problem. 

43 

Ms. CAPRONI. Absolutely not. But what I do want to say is, as 

we said in the written statement, that we are not looking, and we 

think this problem—there are individual encryption problems that 

have to be dealt with on an individual basis. 

The solution to encryption that is part of CALEA, which says if 

the provider isn’t encrypting the communications, and so they have 

the ability to decrypt and give them in the clear, then they are obligated to do that. That basic premise that provider-imposed 

encryption, that the provider can give us communications in the 

clear, they should do that. 

We think that is the right model. No one is suggesting that Congress should reenter the encryption battles that were fought in the 

late ’90’s and talk about sequestered keys or escrowed keys or the 

like. That is not what this is all about. 

For individuals who put encryption on their traffic, we understand that there would need to be some individualized solutions if 

we get a wiretap order for such persons. 

The other thing I would note, and I thought at one point you 

were referencing the public reports that we do relative to how often 

encryption is encountered in Title III collection. What we find is 

that our agents know, for instance, that BlackBerrys are encrypted. 

So if their target is using a BlackBerry, they are not going to get 

a Title III order for that. 

Title III orders, for those of you who were never AUSAs, Title 

IIIs are a lot of work to obtain. It requires an awful lot of work 

from the agent’s part, a lot of work on the AUSA’s part. They are 

not going to do that to get a Title III order on a BlackBerry that 

they know has encrypted traffic, and therefore, they would not be 

able to get any usable proceeds from that Title III. 

So you see very low numbers in terms of the report of the number of times that we encounter encryption. But I think it is because 

agents, and I think Chief Marshall sort of referenced this, they will 

see a problem. And agents, rather than just sort of—and police officers, rather than throwing up their hands and saying, ‘‘Well, I can’t 

do it,’’ they will figure out another way to get to where they need 

to go. 

And it may not be a Title III. It may be that they will then approach the problem from a different direction because they know 

that a Title III is simply not going to be productive use of their 

time. 

Mr. JOHNSON. Thank you. 

Mr. GRIFFIN. Thank you. 

Mr. Quayle is recognized for 5 minutes. 

Mr. QUAYLE. Thank you, Mr. Chairman. 

Ms. Caproni, I want to go back to the back door issue that we 

were talking about earlier so that we can just clear up any misconceptions. But as you know, a lot of the public reports say that 

solving the problem that we have would create the back door to the 

Internet, where law enforcement would have the key to all communication systems in the U.S. 

Is that accurate? Would the Government have direct access to 

these communication systems? 

Ms. CAPRONI. No, that is not accurate. In fact, the way that we 

execute wiretaps is we go to the provider who is providing the comVerDate Aug 31 2005 16:42 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\021711\64581.000 HJUD1 PsN: DOUGA
44 

munication service. We serve the order on them. We ask them to 

isolate the communications and deliver them to us. 

To some extent, actually, what Dr. Landau I think is proposing, 

although it is not entirely clear, that is for the FBI to individually 

have solutions, that we then deploy the intercept solution throughout the Internet. That is actually a much less privacy protective 

way of doing an inception. 

It is also not as accurate. With packet-switched communications, 

you have to collect all of the packets or you can’t put the message 

back together. So there would always be the question of where 

would you deploy the device if we were simply deploying it in the 

Internet? 

It is for that reason that we want to do the collection with the 

provider. We want to be able to serve our order on the provider, 

which then puts a third party in the mix. We serve our order on 

the provider. The provider figures out what account it is, isolates 

that account and delivers those communications to us and only 

those communications to us. 

So there is no wiretapping of the Internet. It is really just our 

ability to serve a targeted order on a targeted account on a particular provider. 

Mr. QUAYLE. Okay. And with those communications that the 

Government would be seeking, has a court reviewed and authorized 

you to obtain those communications? And also could you briefly go 

through that process so everybody knows how that is done? 

Ms. CAPRONI. Absolutely. So looking at a Title III, because that 

is the authority in a criminal case, the agent and the AUSA have 

to put together an affidavit that establishes probable cause to believe that the target is engaged in particular criminal activity. 

They are committing felonies. They are using the targeted facility 

to commit the felony, that evidence will be—of the felony will be 

obtained if we intercept their communications. 

They also have to show that other investigative techniques have 

been tried and failed or are too dangerous to use or would likely 

fail. So this is really a last-resort type of technique. 

The court considers that. They issue an order. It lasts only for 

30 days. During the period of that 30 days, law enforcement has 

to report back to the judge to tell the judge how the wiretap is 

going, what sort of evidence is being collected. 

The wiretap itself has to be minimized. So they will do real-time 

review of the traffic that is coming in. If it is not evidence of a 

crime so that they are not authorized to keep it, it gets minimized. 

So they don’t keep that information. So they only keep the information that is actually relevant to their investigation, and it is evidence of criminality. 

Mr. QUAYLE. Okay. And just so we are brief, so there is no 

warrantless wiretap? 

Ms. CAPRONI. Absolutely not. 

Mr. QUAYLE. Okay. And a final question for Chief Marshall. 

What role does State and local law enforcement play in the research and development of interception solutions? Do you feel that 

State and locals have had adequate voice in this process to address 

this issue? 

Mr. MARSHALL. Thank you for the question. 

45 

Yes, we are putting together and we actually met about a year 

and a half ago with the FBI and other Federal justice agencies and 

a significant portion represented at the State and local level to discuss this problem. Because at the State and local level, we don’t 

have the same level of resources, particularly the smaller and midsized agencies don’t have the same resources to be able to do these. 

So we rely on our Federal partners to be able to do it. At the 

same time, we also know that we are increasingly seeing the difficulty in being able to achieve that. That was why a year and a 

half ago, when we started meeting, we ended up meeting, looking 

at the problems, particularly at the State and local level, and coming up with this proposal for the NDCAC. 

And the NDCAC actually, its proposed governance—and we are 

still continuing to work some of that out—but it would have a significant proportion would be relegated at the State and local so 

that we have that representation, that we have that voice, that we 

have that ability to be able to share some of the solutions that have 

been developed by some of—and for the most part, they are usually 

some of the major metropolitan areas. 

But we have that place that we can all put in that we would be 

able to share those best practices and strategies and also be able 

to have a voice in this problem. This is a problem for all of law enforcement, not just for the FBI. It is not just for the DEA. This is 

a problem whether it is a 5-member department or 5,000. 

Mr. QUAYLE. All right. Thank you. 

Mr. GRIFFIN. Chairman emeritus Conyers is recognized for another question. 

Mr. CONYERS. Thank you very much, Mr. Chairman. 

Dr. Landau, I would like to feel a little bit more comfortable with 

you commenting on the question of our colleague Mr. Quayle in 

terms of the back door question that he initially asked. Do you remember what that was? 

Dr. LANDAU. If he could restate it, that would be great. 

Mr. GRIFFIN. We are playing musical chairs. 

Mr. QUAYLE. Oh, great. What was that? 

Dr. LANDAU. Restate your back door question. 

Mr. QUAYLE. Okay. Basically, would the solutions to the problem 

that we are talking about actually provide a back door to the Internet where law enforcement could have a key to all communications 

systems in the U.S.? 

Dr. LANDAU. So Ms. Caproni said that I talked about building 

the wiretapping into the fabric of the Internet, and certainly not. 

Earlier, I said that I couldn’t speak for Harvard, and that is absolutely true. Let me point out that I also can’t speak for the NSA. 

The NSA has been pushing hard for communications security 

within the United States. It pushed out in 2005 a set of recommendations on how to secure a communications network using 

publicly available cryptography developed through the National Institute for Standards and Technology. 

It is pushing that land mobile radio be available. Secure, interoperable land mobile radio can be purchased over the counter in a 

place like Radio Shack, and we know that it is not just local law 

enforcement and first responders who will be using those systems. 

46 

So if the NSA can function in that environment, I would certainly hope that the FBI can learn to function in that environment. 

I am saying that building wiretapping into a communications infrastructure, whether a switch or an application, building interception 

into that communications infrastructure is a dangerous model, 

whether you are Vodafone Greece, Telecom Italia, or the United 

States. 

Thank you. 

Mr. CONYERS. Could I give, Mr. Chairman, the representative 

from the FBI the last word on this in this discussion? 

Ms. CAPRONI. I am sorry. On the discussion of whether it is a 

back door? 

Mr. CONYERS. Yes. Just what Dr. Landau just commented on. 

Ms. CAPRONI. I think what she is suggesting is that there should 

be security for information, and we agree with that. I mean, that 

is not—we are not suggesting that communications should be insecure. We are suggesting that if the provider has the communications in the clear and we have a wiretap order, that the provider 

should give us those communications in the clear. 

But, for example, Google, for the last 9 months, has been 

encrypting all gmail. So as it travels on the Internet, it is 

encrypted. We think that is great. But we also know that Google 

has those communications in the clear, and in response to a wiretap order, they should give them to us in the clear. 

Dr. LANDAU. No problem there. 

Mr. CONYERS. Thank you very much, Mr. Chairman. 

Mr. QUAYLE [presiding]. Thank you. 

The gentle lady from California, Ms. Chu, is recognized for 5 

minutes. 

Ms. CHU. Thank you, Mr. Chair. 

For Ms. Caproni and Mr. Marshall, today you have described difficulties in gaining assistance from companies in complying with 

lawful wiretap orders under 18 U.S.C. 2518. Title III orders include 

a requirement that all providers furnish the applicant forthwith all 

information, facilities, and technical assistance necessary to accomplish this interception. 

Have you pursued contempt motions against any providers who 

have failed to comply with these lawful orders? 

Ms. CAPRONI. Our approach with industry is one of cooperation. 

So we try to work with the companies to get them to develop a solution that will work. 

Our sense has been that it is very difficult on the one hand to 

be cooperative and to work with a company who tells you we are 

trying, we are trying to figure out how to do this so that it will 

work and not interfere with our solution—with our general system, 

to at the same time be hauling those people into court. It seems 

to interfere with the cooperative relationship. 

So, no, we have not hauled any of these providers into court on 

an order to show cause why they should not be held in contempt. 

Ms. CHU. Mr. Marshall? 

Mr. MARSHALL. Yes, ma’am. My answer is a little bit more basic. 

No, we have not pursued that because we typically do not have any 

direct involvement. We don’t have the involvement directly with industry. 

47 

In other words, we are working through our lab or we are working, if it would be a Title III, it would be worked through our Federal partners, whether it is a task force application or something 

of that nature. 

I will say, and I certainly I would stress this, I think that this 

has to be a partnership with industry. Industry, we want industry 

to be involved in a collaborative effort to come up with a solution. 

We understand that certainly there are costs involved, but a piece 

of this is it also has to be about what is good for public safety and 

being able to have that ability to be able to keep our crime-fighting 

capabilities at least up to the level that we have. 

Ms. CHU. Ms. Landau, how do you respond to that? 

Dr. LANDAU. So I am mystified in some sense by the discussion 

because while I certainly understand the going dark issue, and I 

hear the FBI and local law enforcement saying we are having problems, what I am not hearing are specific types of solutions. Ideas 

were floated last fall about getting rid of peer-to-peer and Skype, 

getting rid of encryption or making keys required to be stored. 

And as we saw in Ms. Caproni’s testimony, the written testimony, the FBI is no longer asking for any re-architecting the Internet, no longer asking at least for certain changes on encryption. So 

I am a little confused. 

I understand that there are serious problems, and I agree that 

the new technologies sometimes do cause those problems. But there 

aren’t concrete suggestions on the table. The only one being better 

research at the FBI, and I think that is important. 

I want to tell a little story, which is a couple of weeks ago when 

the situation was developing in Egypt and all the communications 

were cut off with the rest of the world, all the Internet communications, Google sat down with Twitter over a weekend and developed 

Speak to Tweet. 

That was a handful of engineers. You could speak into a call. It 

could be translated into a Tweet message, and that was a way for 

the Egyptians to communicate with one another. That is terrific. 

I was delighted to see that innovation was happening here. It 

was happening with a handful of engineers. And that is the way 

many systems are developed in the U.S., whether you are talking 

about Google, which started with two engineers at Stanford, or 

Facebook, with a handful of people at Harvard. 

So I don’t quite understand what the FBI is pushing for, other 

than saying we are having a problem. We would like to augment 

our research arm, which I think is good. We would like industry 

to deliver things when they have it in the clear. 

Industry, when they are capable of delivering it in the clear, 

should be delivering it in the clear. So, thank you. 

Ms. CHU. Okay. Last question. If we do grant the FBI the authority it seeks, will this stop sophisticated criminals and terrorists 

from encrypting their communication, or will they simply start 

using communication tools provided by companies or programmers 

outside the U.S.? 

And what do we do when criminals start using secure communication tools provided by developers associated with the 

WikiLeaks organization, who will ignore requests by U.S. law enforcement agencies? 

48 

Ms. CAPRONI. Thank you for that question. 

There will always be criminals, terrorists, and spies who use very 

sophisticated means of communications that are going to create 

very specific problems for law enforcement. We understand that 

there are times when you need to design an individual solution for 

an individual target, and that is what those targets present. 

We are looking for a better solution for most of our targets, and 

the reality is, I think, sometimes we want to think that criminals 

are a lot smarter than they really are. Criminals tend to be somewhat lazy, and a lot of times, they will resort to what is easy. 

And so, long as we have a solution that will get us the bulk of 

our targets, the bulk of criminals, the bulk of terrorists, the bulk 

of spies, we will be ahead of the game. We can’t have individual— 

have to design individualized solutions as though they were a very 

sophisticated target who was self-encrypting and putting a very difficult encryption algorithm on for every target we confront because 

not every target is using such sophisticated communications. 

Ms. CHU. And Dr. Landau, any response? 

Dr. LANDAU. Thank you. 

So I am glad to hear, actually, the specific issue now of individualized solutions versus better solutions for bulk. And certainly, in 

some cases, and the one that Ms. Caproni mentioned about getting 

the unencrypted gmail that gmail obviously has at the other end 

or you couldn’t read your gmail when you logged on, in that case, 

in that particular architecture, I suspect it is very easy for Google 

to deliver that mail, and I suspect it does it forthwith. 

But we are arguing about the issue of developing individualized 

solutions for wiretapping versus creating bulk solutions, what the 

FBI calls better solutions for bulk when we have a national security threat of downloading and exploiting U.S. industry, U.S. military, U.S. national labs, U.S. civilian agencies. 

And I don’t think we can possibly build into the various communications infrastructures wiretapping solutions that will allow that 

type of bulk when it is so easy to subvert software and so easy to 

subvert IP-based solutions. 

Thank you. 

Mr. QUAYLE. The Chair recognizes the gentleman from Virginia, 

Mr. Scott, for one additional question. 

Mr. SCOTT. Thank you. 

I am a little confused. Ms. Caproni, you indicated that you don’t 

want the access through the phone itself, but through the system, 

which would require—are you looking for real-time access or a copy 

of conversations? 

Ms. CAPRONI. We are looking for—I am sorry. Primarily, what we 

are talking about here today is real-time interception. Part of what 

Chief Marshall has talked about is actually information that would 

not be collected in real time, information that is stored on your cell 

phone or your smart device, whatever. 

But the bulk of what I have been talking about today is electronic surveillance. So capturing the communications in real time. 

Mr. SCOTT. And having somebody in the industry go around trying to find this would take obviously someone on company payroll 

and expense. Who is paying for this expense, and how much is it? 

49 

Ms. CAPRONI. So we are responsible, and we are typically billed 

for the cost of electronic surveillance. So we will reimburse. But 

they have to have a solution. 

So they have to have the ability to find—— 

Mr. SCOTT. But law enforcement will pay the costs of the finding 

and making access to the communication? 

Ms. CAPRONI. Let me just double check, but I am pretty sure that 

is right. 

Yes. 

Mr. SCOTT. And so, that would come out of Chief Marshall’s 

budget? 

Ms. CAPRONI. Yes, I am sorry, Chief. 

Mr. SCOTT. And does Chief Marshall have to have somebody on 

staff technologically sophisticated to figure out what to ask for and 

how to do all this? 

Ms. CAPRONI. Well, that actually is an issue is different providers 

want orders to be worded slightly differently, and that actually is 

one of the things that we think the NDCAC, or I can’t remember 

what, the DCAC, this center that we are talking about would provide. It would provide the ability to be a single point of contact. 

So law enforcement, if they are doing a wiretap, let us say, of an 

RCN account that they have never done before, we would probably 

have a relationship with RCN. We would know how the order 

should be worded. We would know who in the company it should 

be served on. 

So we would provide that intermediary so that every law enforcement agency in the country doesn’t have to have that level of expertise. So it could be much more tailored, and they would have 

one-stop shopping, and we would serve as an intermediary or the 

center would serve as a useful intermediary between industry and 

law enforcement. 

Mr. QUAYLE. The Chair recognizes the gentleman from Georgia, 

Mr. Johnson, for one additional question. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

CALEA’s purpose is to require that telecommunications carriers 

and manufacturers of telecommunications equipment modify and 

design their equipment to ensure that they have built-in surveillance capabilities, thus allowing Federal agencies to surveille in 

real time electronically. 

And that calls for individualized solutions to communications like 

Skype or encrypted BlackBerry devices and social networking sites. 

Am I correct about that? Am I on track? 

Ms. CAPRONI. CALEA doesn’t cover social networking sites. 

Mr. JOHNSON. Okay. All right. But as far as Skype and BlackBerry devices, it is applicable to? 

Ms. CAPRONI. So Skype is not a U.S. company. So it is not covered by CALEA, or it may not be covered by CALEA because it is 

not a U.S. company. The same with REM. 

Mr. JOHNSON. Okay. So non-U.S. companies would not be subject 

to any extension of CALEA. You are seeking—what are you seeking here today? That is really, I think, Ms. Landau’s point, and 

that is my point also. What is it exactly that you would want Congress to do, or are you asking Congress for anything? 

Ms. CAPRONI. Not yet. 

50 

Mr. JOHNSON. Or did we just simply invite you here to tell us 

about this? 

Ms. CAPRONI. You invited me, and we came. But we don’t have 

a specific request yet. We are still—the Administration is considering—I am really here today to talk about the problem. And I 

think if everyone understands that we have a problem, that is the 

first step, and then figuring out how we fix it is the second step. 

The Administration does not yet have a proposal. It is something 

that is actively being discussed within the Administration, and I 

am optimistic that we will have a proposal in the near future. 

Mr. JOHNSON. So you mean I have been worried for the last 24 

hours about some legislation or some issue that I could have worried about later, I guess? I am still worried about it. 

Ms. CAPRONI. I am sorry to have put you through a sleepless 

night. I am sure we will have many others once we get a proposal 

on the table to consider. 

Mr. JOHNSON. Well, I will tell you, life becomes so complicated 

that it is almost impossible to keep from worrying. 

Thank you. 

Ms. CAPRONI. I agree. 

Mr. QUAYLE. I am going to recognize myself for one additional 

question. 

Ms. Caproni, I was just curious. Do you know if the number of 

court-ordered electronic surveillance have actually gone down or up 

than the previous years? You don’t have to be specific. But do you 

know if they have gone down or up? 

Ms. CAPRONI. I think they are going up a little bit, and the raw 

numbers may not be as revealing as the sort of services that are 

being asked for now. So we are seeing more sophisticated and difficult services, like VOIP is coming up more and more in wiretaps. 

I think the absolute number of wiretaps may be about the same 

or going up slightly. 

Dr. LANDAU. I actually know the answer, which is that I believe, 

according to the wiretap report, it has been steadily increasing 

with perhaps a little bump down in 2009. But a quite steady increase. 

What is also increasing quite substantially is the number of PIN 

register requirements, PIN registers being asked for. 

Mr. QUAYLE. Thank you. 

Well, I would like to thank our witnesses. 

Mr. CONYERS. Mr. Chairman? 

Mr. QUAYLE. Yes? 

Mr. CONYERS. Before we—— 

Mr. QUAYLE. Another one? 

Mr. CONYERS. Yes, one final question. Is the ACLU correct in 

worrying about once we start trying to get into this question it is 

going to spin out of control, and all the things that may have kept 

Hank Johnson up last night is going to keep all of us up? 

I ask Dr. Landau that because there are some up here that say, 

well, let us help the FBI out, and we will give them the legislation 

that we think they need. And there are others that say, well, if you 

do that, you are going to get something much worse back. And 

there we get into this legislative turmoil. 

Dr. LANDAU. Thank you very much for the question. 

51 

So I really said I was going to talk about security, but I will take 

that privacy question. When you make it easy to wiretap, when all 

you have to do is flip a switch, it becomes much easier for privacy 

to be violated. So what we saw, and I know this is not the issue 

being discussed now. But what we saw during 2001 was a single 

opinion by a single relatively low member of the Department of 

Justice about warrantless wiretapping. 

It was not reviewed by other members of the Department of Justice, and it instituted the warrantless wiretapping. So the point is 

that when you make it simple to wiretap, when you make it technologically simple to wiretap, it can be abused. 

Mr. CONYERS. Thank you, Mr. Chairman, for your generosity. 

Ms. CAPRONI. I am sorry. May I respond to that question? 

Mr. QUAYLE. Yes. Ms. Caproni, could you please respond to that? 

Ms. CAPRONI. Representative Conyers, there are a lot of things 

that keep me up at night. One thing is the privacy of people who 

are communicating on the Internet. One is the security of the 

Internet. FBI is responsible for cyber attacks. We investigate them 

all the time. The security of the Internet is extremely important to 

the FBI. 

But I also get kept up by worrying that we have got criminals 

running around that we can’t arrest and can’t prosecute because 

we can’t actually execute a wiretap order. And that criminal may 

be a massive drug dealer. They may be an arms trafficker. They 

may be a child pornographer or a child molester. 

Those are things, real-life things that keep us up at night because we need the authority—I am sorry. We have the authority, 

but we need the actual ability to conduct the wiretap so that we 

can keep the streets safe. 

I worry about things like a Mumbai-style attack where, God forbid, the attackers are using communications modalities that we 

don’t have an intercept solution for. 

Mr. CONYERS. So what is a little privacy invasion compared to 

all those big things that you could or are worrying about, right? 

Ms. CAPRONI. Remember, what we are talking about is court-authorized wiretaps. So the privacy of people that are being invaded 

is only being invaded if an Article III judge has said that probable 

cause has been established and that the Government has the right 

to intercept these communications. 

Mr. QUAYLE. Well, I would like to thank all of our witnesses— 

since we are kind of diverging off topic. I want to thank all of the 

witnesses for their testimony today. 

And without objection, all Members will have 5 legislative days 

to submit to the Chair additional written questions for the witnesses, which we will forward and ask the witnesses to respond as 

promptly as they can so that their answers may be made part of 

the record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

Mr. SCOTT. Mr. Chairman? Mr. Chairman? I would ask unanimous consent that a statement from the ACLU, the Center for Democracy and Technology, and other industry and privacy advocates 

be included in the record. 

Mr. QUAYLE. Without objection. 

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Mr. QUAYLE. This hearing is adjourned. 

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