Assistant Attorney General Viet Dinh October 2001 Remarks on PATRIOT Act

Thank you very much and thank you very much for having me here. It's a wonderful opportunity to be with you all, especially my former and now current colleague at Georgetown, John Podesta. As a recovering academic, I am used to speaking in 55-minute blocks, so I will try to keep it to ten minutes. I will try very hard to talk in my new type of speak, that is talking point speak, so that we can all get to the business. First, as a matter of context, I do agree very much with all the numbers Internet Caucus who preface this meeting by saying that we should not, in the haste of the moment, really find the line between law enforcement capabilities and civil liberties. Those principles are the ones that we hold dear, and one of the things that we have consistently stated during this process is that we will not let our values, the protection of freedom and independence, the love of liberty, fall victim to the terrorist attacks of September 11. One of the key criteria that we as a department and administration have been using in formulating this package is: are we including something that 20 years from now we may look back and say we regret? That has been the criteria that keeps us intellectually honest, to be true to our values at a theoretical matter. So you will notice that what we have proposed as a package is a very limited, very measured, very restrained set of needs, both in the immediate term and in the intermediate term, in order to fight terrorism. Congressman Goodlatte and Senator Burns were right to know, and I confirmed that encryption is not in the package. We certainly have views on this, but we simply did not include it because it would not fit the core criteria of what we are trying to accomplish. That does not mean that we would not come back to you at a later day to advance that debate, but this package is appropriately measured and sufficiently pared down to ask for only those things which we need in the short term and intermediate term to fight terrorism.

I'm asked to talk specifically about Title III, but since there isn't very much that we do in Title III, because one of the things that we aim to do is not to redefine the subjective protections of privacy in this bill, consistent with what Congressman Goodlatte, Congressman Boucher, and Senator Burns have stated as a principle, we have not proposed very much in Title III. As a matter of fact, the current draft of both the Sensenbrenner-Conyers bill and also, I understand, the circulating draft of the Senate Judiciary bill does not have one of the provisions that was originally included in the package, which is the use of foreign wiretap information in court. We agree with that omission from the final package. So there really isn't much that we can talk about in Title III except for my absolute assurance, inserted into the language that we've advocated in the Sensenbrenner-Conyers bill, that content is still protected by the subjective protections of Title III. That is explicit; it was implicit in our proposal. At the request of the Senate and House Judiciary Committee, we provided language to make that absolutely explicit and crystal clear. But let me just step back one step and take the opportunity to explain a little bit about the Title III regime. What Title III does is give the department the ability to conduct wiretaps straightforwardly, get the content of communications, oral, electronic, or telephonic analog telephonic communication. Because we're talking about content, which has privacy concerns and constitutional protection, the Title III regime is quite restrictive. A Title III order is only issued if we have probable cause: the government shows they have probable cause to believe that one, an individual is committing or has committed or is about to commit a particular offense enumerated in 18 USC 2516; two, that particular communications concerning that offense will be obtained through the interception; three, that normal investigative procedures are unlikely to succeed; and four, that there is probable cause to believe that the facility, the telephone from which the communications are intercepted, is being used in connection with the commission of the offense. So a fairly restrictive standard in order to get to the content of the communications. We fully agree with those substantive protections. We are not seeking to redefine the line between law enforcement capability and substantive privacy or civil liberties protections that exist under current law. In addition to these substantive standards, there are procedural standards mandated by Title III interceptions. One of the most significant is that an application for Title III authorization has to be signed personally by a person at the Deputy Assistant Attorney General level or above. I see Jonathan Maier sitting back there, who until several months ago was a Deputy Assistant Attorney General in the Office of Legal Policy until he found greener pastures with Senator Biden. We congratulate him on this move. That shows the importance of Title III in the sense that it has to be somebody at Jonathan's level or above within the Department of Justice in order to sign even an application for an authorization. Most normal things you just have an AUSA or even US Attorney and not have to go to Main Justice to get the application. In contrast to that, on a pen register or trap-and-trace device, as Congressman Goodlatte pointed out, the case of Smith v. Maryland draws a bright line between content and non-content. Trap-and-trace and pen register, the court found in Smith v. Maryland clearly that the person does not have a privacy interest in the dialing and routing information that is captured by a pen register or trap-and-trace device. Hence this clear line between content controlled by Title III and pen register and trap-and-trace, with the more relaxed standard of court authorization for such orders. This is not a distinction only in theory but in practice; it is a critical distinction. Why? Because pen registers and trap-and-trace devices are what law enforcement personnel use at the very beginning stages of the investigation to determine whether or not there is probable cause to go in and get a Title III authorization. Because there is no privacy interest in this information, the regime under existing law is that it is a much more relaxed standard. There is no subjective privacy interest, either constitutional or as we all agree policy-wise, with respect to the dialing and routing information in the analog world. For such information, there is a more relaxed standard so that we can use the pen register and trap-and-trace in order to acquire evidence constituting probable cause to go in and get a Title III authorization for the actual content. We agree with the clear distinction between content and non-content information. Content is still controlled by Title III; we don't relax that at all. Non-content we propose to be controlled under existing law, as concluded in the pen register and trap-and-trace device. We do, of course, propose in Section 101 an extension of the pen register and trap-and-trace authority in order to update the law to the technology. The law was crafted at a time when analog communication through telephone lines using rotary phones was the standard. Obviously, everybody in this room and almost everybody outside of this room relies upon electronic forms of communication, including those who would not obey the law of the United States, including those who would not obey the law in order to commit terrorist acts. What we seek here is the expansion of the power to use pen register and trap-and-trace authority exactly to the same extent that we have the ability to use in the telephonic lines in the world of electronic communications. Because if there is a different requirement for electronic communications, you don't have to be a very smart criminal to rely upon the modes of electronic communications or whatever communications in order to evade detection by law enforcement. So what we're trying to do here is bring the law to parity with the technology at a functional level. To answer Congressman Boucher's question whether or not the subject line is content, we completely agree as a department and as a matter of law that content includes the subject line of an email. We do not get the subject line unless we have a Title III authorization. So that's the basic gist of where we are with respect to one other core Title III amendment that I do not think is controversial. As a matter of fact, I have not heard any controversy; I will be interested if there were any. We seek to get voicemail messages by the same authorities, either search warrant or subpoena depending on the context, as we would get for a message on a tape machine. Right now the law has an interesting disconnect. If I am a Luddite and only have an answering machine with a tape recorder on it, a person serving a search warrant or a subpoena on my house can get that tape with that search warrant. However, if I, like everybody else in this room, have probably moved to voicemail, a more efficient way of serving the same function, getting that voicemail would require a Title III wiretap authorization. It seems to me that there needs to be parity in the law with respect to the tape answering machine or the voicemail, because there is no reason to distinguish between those two modes. As a matter of fact, there is a great reason to distinguish between live communications with content and recorded communications. That is the approach that we are going under. I think that all that we proposed, after we have this very good conversation, will fall on the line of permissibility in the sense that we do not seek to redefine the line between civil liberties and law enforcement. All we are doing is trying to update the law to the extent that the criminals have already outpaced us in the use of technology without the corresponding legal authorization for us to enforce the law with respect to those efforts.