which impute the intent of the primary target to his co-conspirators using the argument here is that it is reasonable to assume that successful methodologies of thwarting law enforcement would be common knowledge shared by the group. However logical this argument, it still fails to meet the burden required by the current statutes.

These proposed changes in the law will enable law enforcement to keep pace with criminals who have become more sophisticated in developing ways to thwart electronic surveillance. As the example above illustrates, the modern criminal element has developed methods which make it extremely difficult, if not impossible, to prove a target's intent to thwart electronic surveillance and interception of criminal conversations.

SHARING OF ELECTRONIC SURVEILLANCE INFORMATION WITH FOREIGN GOVERNMENTS

As I stated earlier in this statement Organized Crime and Terrorism are international in scope. The FBI and other federal law enforcement agencies have become increasingly more involved in domestic investigations that require substantial amounts of cooperation with foreign law enforcement officials who are working with the same goal in mind-putting the bad guys in jail and dismantling criminal organizations. For example, two of the fastest growing organized crime entities in the United States today are Russian and East Asian organizations. Typical cases currently being worked by the FBI involve money laundering where large sums of money obtained through criminal activity in a foreign country are laundered through the U.S. The FBI will use court ordered electronic surveillance when working these types of investigations and often receives information relating to high level targets located in Russia or for instance Japan. Often the use of electronic surveillance as an investigative tool in international investigations proves to be the most effective way to achieve our common goals. However, the electronic surveillance statutes as they are currently written, do not specifically address the dissemination of information received from a court authorized electronic surveillance to our counterparts within foreign governments. The administration is reviewing the need for legislation to address this issue. Anytime an international criminal is put in jail it has a positive effect on the crime rate of the countries he victimized. International criminals do not recognize national boundaries unless it is to their advantage. Therefore, international law enforcement needs to be able to work effectively together in order to overcome this new threat to each of our nation's security.

CONCLUSION

We as a nation face increasing challenges from more sophisticated individual criminals, criminal enterprises and terrorist groups that engage in illegal activities, both domestic and foreign. Using technological innovations not available to their predecessors, present day criminals have benefitted and improved their criminal enterprises in much the same way you and I and other law-abiding citizens use such advances to improve the quality of our lives. Law enforcement must be able to combat those who use enhanced technology to engage in criminal acts against American citizens. This legislation can contribute to the safety and well-being of this nation by addressing the internationalization and changing modus operandi of criminals in our advanced technological society.

Mr. Chairman, this concludes my prepared statement. I would be pleased to answer any questions that you or members of the Committee may have.

PREPARED STATEMENT OF JAMES X. DEMPSEY

Mr. Chairman, and Members of the Committee, thank you for the invitation to testify today on proposals affecting FBI authorities.

The Center for National Security Studies is a non-profit, civil liberties organization. For the past twenty-one years, the Center has worked to insure that governmental actions undertaken in pursuit of national security interests do not have the effect of violating the rights of individuals or undermining constitutional government. The Center is guided by the conviction that our national security must and can be protected without curtailing the fundamental rights of individuals guaranteed by the Bill of Rights. As a joint project of the Fund for Peace and the American Civil Liberties Union, the Center has long worked on issues relating to wiretap authority, standards for FBI investigations, and First Amendment rights. Since January of this year, the Center ceased to be affiliated with the ACLU, and is now solely a project of the Fund for Peace.

The attack on innocent persons in Oklahoma City has produced justifiable outrage and a desire to take steps to more effectively prevent such incidents. However, as Justice Frankfurter once warned, "Individual liberties fundamental to American institutions are not to be destroyed under pretext of preserving those institutions, even from the gravest external dangers." Terrorism is a challenge to our system of government; it would be giving in to terrorists were we to abandon the rights of privacy, due process and freedom of association enshrined in the Constitution. Unfortunately, measures have been proposed that would undermine precisely those rights. I will direct my comments to S. 735, introduced by Majority Leader Dole and Chairman Hatch, and to S. 761, introduced by Senator Daschle, Senator Biden and others. Both bills encompass provisions originally proposed by the Administration.

I. PROVISIONS RELATING TO WIRETAP AUTHORITY

Both bills would loosen the rules on use of wiretaps. Several of the proposals affect rules at the heart of what FBI Director Freeh has previously described as the "carefully balanced" regimen found in current wiretap law.1

It is particularly inappropriate that the Administration would seek these changes now, when only last year Congress, through this Committee, undertook a comprehensive review of the wiretap laws in the context of the digital telephony bill, Pub. L. 103-414. Through extensive discussions, meetings, hearings and negotiations last year, as Members of this Committee, the FBI, civil liberties advocates, and industry sought to update Title III to preserve the balance among privacy, law enforcement and technological innovation interests, the Administration raised none of these proposals. This Committee, having given such care to preserving the balance in the wiretap laws just last year, should not endorse changes such as those now sought by the Administration under the time pressures dictated by the circumstances of this counter-terrorism legislation.

A. Curtailing Sanctions for Violations of the Wiretap Laws (§ 805, p. 126 in S. 761) The Administration bill would allow courts to use evidence obtained in violation of the privacy protections in the wiretap law unless it could be proved that the government acted in "bad faith." The proposal, which the Administration incorrectly describes as a "good faith" exception, has nothing to do with terrorism per se. It would throw a monkey wrench into a complex statutory scheme. Of all the proposals for changes in wiretap authority, it is perhaps the most dangerous. It is not included in S. 735.

Contrary to the Administration's claim, this is not a proposal to extend the "good faith exception" of Leon and Sheppard to warrants issued to conduct electronic surveillance. First of all, it is a "bad faith" provision, apparently requiring the affected party to show bad faith by law enforcement, a usually impossible undertaking. Second, the courts already excuse good faith, technical defects in a warrant. Third, the proposal is not limited to defects in a wiretap order. Rather, the proposal would apply to all of the provisions of the wiretap law, including those governing the conduct of the government after the warrant is issued: It would vitiate such central elements of the statute such as the minimization and sealing requirements, provisions that Congress and the courts have considered central to the wiretap scheme. When Congress adopted the wiretap law in 1968, it included a statutory exclusionary rule (or “suppression rule," as it was called). 18 U.S.C. § 2515. Congress de

1 Title III of the Omnibus Crime Control and Safe Streets Act of 1968, codified at 18 U.S.C. §§ 2510-22, governs wiretaps in criminal investigations. The Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801-22, governs wiretaps of foreign powers, including international terrorism groups, and their agents, and is generally not affected by the pending proposals.

termined that the only effective protection against illegal government wiretapping must be to exclude evidence illegally obtained. This Committee, in its report on the 1968 bill, states, "Such a suppression-rule is necessary and proper to protect privacy. *** The provision thus forms an integral part of the system of limitations designed to protect privacy" (emphasis added). Omnibus Crime Control and Safe Streets Act of 1967, Senate Report No. 1097, 90th Cong. 2d Sess. (1968) at 96.

Congress went on in two other sections of the law to spell out in express_terms when wiretap evidence was to be suppressed. Section 2518(10)(a) expressly defines the grounds for suppression for transgressions occurring before or during interception including defects in the warrant itself. A separate rule in §2518(8)(a) addresses post-interception handling of taped evidence, excluding evidence that was not properly sealed to prohibit tampering, unless there is a satisfactory explanation for the absence of the seal.

In applying these three, inter-related statutory suppression requirements, the courts have recognized their importance in effecting the privacy protections in the law. But the courts have not been applied the suppression rules in a mechanical or technical way. To the contrary, the Supreme Court has held that, under § 2518(10)(a), suppression is required only for "failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." United States v. Giordano, 416 U.S. 505, 527 (1974). In determining whether suppression is warranted, courts must examine whether the violated statutory requirement occupies "a central, or even functional, role in guarding against unwarranted use of wiretapping." United States v. Chavez, 416 U.S. 562, 578 (1974). The courts have consistently refused to suppress wiretap evidence for technical defects in orders. United States v. Moore, 41 F. 3d 370, 374-75 (8th Cir. 1994).

With no apparent regard to the distinction between suppression under § 2518(8) versus suppression under §2518(10), and with no reference to the extensive Supreme Court and lower court caselaw on the interplay between §§2515 and 2518(10), the Administration proposal would add its "bad faith" exception only to § 2515 and reconfigure the wiretap scheme in unpredictable ways. This is not a step that this Committee should take.

B. Eliminating or Loosening the Standards for "Roving" Taps (§ 103(f), p. 11 in S. 735; §808, pp. 129-30 in S. 761)

The Fourth Amendment expressly requires that applications for search warrants must "particularly" describe the place to be searched; indeed, one of the main purposes of the Fourth Amendment was to prohibit general search warrants. When Congress adopted the federal wiretap law, it necessarily carried over this principle, requiring interception applications and orders to specify the phone line or location to be tapped or bugged. 18 U.S.C. §§ 2518(1)(b) and 2518(4)(b).

In the mid 1980's, law enforcement agencies noted that some suspects were attempting to evade wiretaps by using pay phones or otherwise frequently changing phones, the location of which would not always be anticipated for inclusion in a wiretap application. In response, as part of the Electronic Communications Privacy Act of 1986, Congress enacted a limited exception to the particularity requirement for situations where the government makes a special factual showing, authorizing what are sometimes known as "roving taps." In the case of wiretaps, the government must show, based on physical surveillance or other evidence, that the target is thwarting interception "by changing facilities."

When it wrote the standards for roving taps in 1986, this Committee had terrorism cases specifically in mind. The Committee report noted:

"An example of a situation which would meet this text would be an alleged terrorist who went from phone booth to phone booth numerous times to avoid interception." Electronic Communications Privacy Act of 1986, Senate Report 99-541, 99th Cong., 2d Sess. (1986) at 32.

As an exception to the Fourth Amendment's particularity requirement, the roving tap authority has been carefully scrutinized by the courts. The courts have upheld it, but only after noting the carefully drawn requirements imposed by Congress. See, e.g., United States v. Bianco, 998 F.2d 1112, 1122-24 (1st Cir. 1993). Any loosening of those standards could open the door to the type of abuse Congress sought to avoid in 1986 and could render the roving tap authority unconstitutional.

The Administration has over the past several months proposed two separate changes to the roving tap authority. Its first terrorism package included a provision that would have allowed roving taps in any investigation of international terrorism, without a showing of need by the government and without any other standard. The