The following release was issued on July 29th by the White House.
These were authorized by the Electronic Communications Privacy Act of 1986 (as amended), codified at 18 USC Sec. 2518(11). We propose harmonizing the standards for obtaining a roving microphone and a roving electronic intercept. Under existing law, roving microphone interceptions require only a demonstration of probable cause that it is "impracticable" to use a standard uni-point order, while roving electronic interceptions require a demonstration of probable cause that the subject is attempting to evade surveillance by changing telephone devices. This latter standard is extremely difficult to meet in the investigative phase of a case. By way of example, an individual switching between multiple cellular telephones, all of which he can carry in a brief case, may be doing so to defraud a cellular carrier rather than to evade surveillance. Since the burden is on the government to demonstrate probable cause, an absence of proof means that the burden is not met. Absent a court order, multi-point surveillance like nonconsensual uni-point intercepts is punishable as a crime or a civil offense and evidence gained through the illegal surveillance is subject to supression.
-- Pen Registers and Trap-and-trace devices for foreign intelligence investigations.
Pen registers are devices which record numbers dialed on a telephone. Trap and trace devices record the incoming number similar to Caller ID. Neither records the content of the conversation. Both may be issued on a representation by an attorney for the government -- generally an Assistant United States Attorney -- that the information is "relevant to an ongoing criminal investigation," 18 U. S.C. Sec. 3123(a). In FISA investigations, a full electronic intercept order, approved by the Attorney General must be sought. We seek to harmonize the FISA and criminal standards so that a FISA application may be made on the same showing and representation. Under existing law, a FISA pen register could not be authorized under the criminal standard and the use of a pen register without a court order may result in criminal and/or civil penalties.
Congress should fund at $25 million a six-month study of indentification taggants -- microscopic partiles which are identifiable and which are designed to survive an explosion -- and thereafter permit the Treasury Department to promulgate regulations -- subject to a 45-day review period - -- which would criminalize the possession of untagged explosives, including black powder and smokeless powder. The 1996 Terrorism Act expressly excludes the study and regulation of black powder.
-- Common Carrier and Public Accomodation Records
We seek authority for the FBI to issue administrative requests -- National Security Letters -- to common carriers, hotels, communications providers and storage facilities for records in foreign counterintelligence (FCI) cases. Under existing law, grand jury subpoenae may be issued in criminal cases, see Fed. R.Crim. P. 6(e), the Attorny General has authority which she has delegated to certain Federal agents in narcotics cases to issue administrative subpoenae. We seek the same authority as exists in routine criminal cases for the FBI in FCI cases. Under existing law, carriers need not comply with an FBI request and there is no sanction for them not doing so. Those who fail to comply with a valid grand jury and/or adminstrative subpoena are subject to penalties which may include criminal contempt.
-- Emergency Wiretap Authority
These are authorized in ECPA in 18 U.S.C. Sec. 2518(7) and permit the
Attorney General (and Deputy) to authorize an emergency wiretap without a
court order for 48 hours in certain limited situations involving organized
crime, national security or immediate risk of injury. At the conclusion of
the 48 hours, a standard application must be presented to a judge and if
the intercept order is not approved by the judge, evidence gained during
the 48-hour period cannot be used. We seek to expand the emergency
situation to those which are clearly terrorist related but which do not
trigger one of the exceptions. An emergency order granted outside of the
specified statutory criteria would constitute an illegal intercept and
would subject the interceptor to criminal and civil penalties and the
evidence to suppression.
-- Terrorist Offenses as RICO Predicate The Rackateer Influenced Corrupt
Organizations Act (RICO) provides severe criminal, civil and forfeiture penalties for organizations engaged in certain conduct. Although most serious violations are RICO predicates, terrorist acts are not. We propose to make terrorism offenses RICO predicates so that investigators and prosecutors can utilize the proven tools of the statute which include freezing assets, lengthy sentences of imprisonment and favorable case law.
-- Expanded Predicates
ECPA limits the Federal felonies which can constitute a sufficient predicate for an intercept order, see 18 U.S.C. Sec. 2516(1). We propse that any Federal felony ought to constitute a Section 2516(1) predicate when there is a nexus to terrorist activity. While most crimes which are likely predicates in terrorism cases are already listed, in the early stages of a terrorism investigation, it is entirely possible that the only predicate may be a relatively technical crime. By way of example, explosives shipped to a terrorist in the United States but labelled on a Customs declaration as "medical supplies" give rise to a putative violation of Customs statutes. While more serious violations may become apparent through further investigation, investigators may only have the relatively technical false statement violation in the first instance. Under existing law, a court order could not issue. If an intercept were conducted, it would be illegal and could lead to criminal and civil penalties as well as the suppression of evidence.
-- Statute of Limitations on Unregistered Firearms/Explosive Devices
We propse extending the statute of limitations for firearms registration offenses -- crimes designed to prohibit the possession of machine guns and short-barrelled firearms -- from 3 to 5 years. The five-year statute of limitations applies to virtually all other Federal crimes, including the misuse of the Smokey the Bear emblem.
We will seek legislation to strengthen our ability to prevent terrorists from coming into possession of the technology to encrypt their communications and data so that they are beyond the reach of law enforcement. We oppose legislation that would eliminate current export barriers and encouraging the proliferation of encryption which blocks appropriate access to protect public safety and the national security.
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