The Alicia Patterson Foundation CONFERENCE ON TELEPHONE PRIVACY July 22, 1992 National Press Club Washington, D.C. (This transcript was prepared from a tape recording.) TABLE OF CONTENTS Page Joseph Albright Welcome 3 Chairman Alicia Patterson Foundation Panelists: Margaret Engel 4 Director Alicia Patterson Foundation Jane Kirtley, 9 Executive Director Reporters Committee for Freedom of the Press Gregory Millman 20 Fellow Alicia Patterson Foundation James Sylvester 25 Director Infrastructure Issues, Bell Atlantic Network Services Marc Rotenberg 28 Washington Representative Computer Professionals for Social Responsibility Question and Answer Period 33 P R O C E E D I N G S WELCOME JOSEPH ALBRIGHT CHAIRMAN, ALICIA PATTERSON FOUNDATION MR. ALBRIGHT: Good morning. I am Joe Albright, the Chairman of the Board of the Alicia Patterson Foundation, and I want to thank everyone for coming here today, for joining us. The other members of the Board and I decided to call this conference really because we were puzzled by about what we should do about this problem. We found out about a month ago, I guess it was, that our telephone records have been taken by the IRS, and as we looked into what we should do about it, we consulted various lawyers. We found out there was really nothing we could do. Various lawyers said that there is no law that will let you do anything about the fact that your records have already been given to some government agency without your notice. As we consulted various experts, not only lawyers but other journalists, we were amazed to find that this situation exists where records can really be taken from journalistic organizations and other organizations and given to the government without the individuals being able to do very much about it. We decided the next step would be to try and call people together to really get advice and information to see what we could do. And that is the origin of this conference. So we are glad you all came, and I will be interested to listen to find out what comes up as the result of what we hear today. Thank you. I would now like to introduce Peggy Engel, Margaret Engel, the Director of the Alicia Patterson Foundation, who was directly involved in these events and who can spell out what happened and introduce the others. MARGARET ENGEL DIRECTOR, ALICIA PATTERSON FOUNDATION MS. ENGEL: Thank you, Joe. For those of you who don't know what the Alicia Patterson Foundation is, let me just tell you, it is the second oldest journalism foundation in this country. The Niemann Foundation at Harvard is the oldest. Alicia Patterson, who was the founder and publisher of Newsday, wanted to allow reporters the time to take a year off and do some in-depth research on the big stories they said they always wanted to do. So when she died, her family set up this Foundation for reporters and editors and photographers to have that year and have that ability to look into these important subjects. We have had fellows with very big names who have won this award -- Gail Sheehy and Orville Schell, Milton Viorst, David Burnham, Leonard Downey, Almaguermo Prieto, who is with The New Yorker now. But most of them are from newspapers and magazines and wire services and free lancers, whose names would not be instantly recognizable. It is now the most competitive fellowship in the business. Perhaps because of its geographical freedom, we receive many more applications than the campus-based programs. A few weeks before one of our current fellows, Greg Millman, who is seated here at my right, began his term with our Foundation in February, we learned of the successful seizure of our telephone records -- of his telephone records in his home office. We really had no idea that the records of our own Foundation were also to be seized shortly. We learned this only in June of this year. The same Internal Revenue agents who were trying to find out Greg's sources on a story that he wrote last September for Corporate Finance magazine, had also requested a subpoena for our Foundation's telephone records, for 13 months of those records. In this request, they also asked for 13 months of records and received from Ryland Homes, which is a home builder in Rockville, Maryland -- this was a company who Greg had called because he was working on a totally unrelated housing story. Also a Bethesda trade group of corporate finance officers, their phone records were turned over, 13 months of those phone records. Those are the ones that we know about. All three of those Maryland numbers had no relationship to the story Greg wrote, but the Deputy Clerk of Court of the U.S. District Court who signed the subpoena, he didn't ask those kind of questions about accuracy or appropriateness of these seizures, or did, and didn't get the right answers. Since our eyes have been opened to this practice, we have learned that Bell Atlantic receives and services some 21,000 subpoenas for telephone records each year just for subscribers in this big region. Joe and I described our experience with this seizure in an op-ed piece in The Washington Post at the end of last month. We have heard from reporters and editors throughout the country since that time who are concerned about this and have also had personal experience with this happening. Newspapers in Sacramento, Denver, Albuquerque, Des Moines, Hartford and St. Petersburg were so concerned that they have run articles about this situation, and we have also heard individually from reporters who have been visited by Treasury agents seeking sources of stories they wrote. One reporter, Steven Pieso of National Mortgage News, was visited last year after he wrote a fairly straightforward story about Federal mismanagement of an S&L cleanup in his area, and the story that he wrote is out on the pass-out table as you came in. His publication, National Mortgage News, did a very strong editorial about this practice and how they condemned it, and it ran, and it, again, is also out there. But because it ran in National Mortgage News, it wasn't as widely known. We know that past administrations have tapped journalists' phone. This all goes all the way back. JFK, you know, LBJ did it, Nixon did it. The Justice Department now has guidelines on how reporters' records should be subpoenaed. But our subpoenas were generated by the Treasury Department, which doesn't have these same type of guidelines. The administrative safety net isn't there. The Treasury Department also houses four investigative divisions which are quite large: the Internal Revenue Service, Customs, Secret Service and Alcohol, Tobacco and Firearms. In addition, the advancing technology may make some agreements currently with the Justice Department somewhat obsolete. As reported by the Wall Street Journal last month, the Federal Bureau of Investigation has asked to have the software sold or given to it that allows them to tap into digital telephone transmission. It is no longer the old style vision when you need a wire tap of going into someone's basement and hooking up clips. That just isn't the way it goes. So we are here really to talk about this issue about whether there should be secret subpoenas, whether we should use them to find news sources, and really can journalists now, in all honesty, give assurances to any source you have spoken to on the phone that this will remain confidential. Jane Kirtley from the Reporters Committee for the Freedom of the Press has dealt with these issues off and on for many more years than she cares to remember, and I would like to have her tell you a little bit about what the situation is now and perhaps for the future. JANE KIRTLEY EXECUTIVE DIRECTOR REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS MS. KIRTLEY: Thank you, Margaret. I have the, I guess, enviable task of giving you a history lesson about this issue, and I hope you will bear with me, because I think it is interesting to see that some of the players in current policy have actually been around in this issue for about 20 years. It is a problem that just won't go away. It kind of goes away for a while, but it always comes back. As many of you in this room know a lot better than I do, it really goes back 20 years. Back in 1971, C&P Telephone provided the FBI with the telephone toll records of Richard Dudman and Knight Newspapers. This was after the Pentagon Papers were published. The phone company also gave Jack Anderson's telephone toll records to the FBI at the request of the White House. The White House was seeking the source of a column that Anderson had written about an A.I.D. official who had crashed a party given by Spiro Agnew. In 1973, Attorney General John Mitchell issued the original guidelines dealing with government subpoenas of the press. Those first guidelines did not deal with telephone subpoenas. During that same time the Reporters Committee asked AT&T to stop complying with demands for toll records of journalists unless reasonable notice was also provided to the reporters. In March of '74 AT&T developed a phone policy, that phone records would be furnished in response to any valid subpoena or summons. Prior notice to the subscriber would not be required and notice could be deferred at 90-day intervals, if the government certified that notice would impede the investigation. Also in 1974, the IRS obtained the telephone toll records of all the phones in The New York Times D.C. Bureau. It was based on a complaint by a taxpayer who was being investigated, that Reporter David Rosenbaum, who is a member of the Reporters Committee Steering Committee, knew about the investigation. At that time the Reporters Committee, together with Dow Jones, the Knight Newspaper Group and 12 individual journalists, filed suit against AT&T in Federal District Court in D.C. The suit sought a declaratory judgment that the First and Fourth Amendments to the Constitution required prior notice to journalists before their phone records are turned over to the government. As an aside, I might note that in the same year, a New York Congressman by the name of Edward Koch, Edward I. Koch, introduced a bill to protect journalists' phone records, and it didn't go anywhere. In August 1978, in a 2-to-1 decision, a panel of the D.C. Circuit ruled that neither the First or the Fourth Amendment is violated by the policy of releasing phone records to law enforcement agencies that are investigating felonies and no prior notice needs to be given. This decision came hot on the heels of the Supreme Court's decision in Zercher v. Stanford Daily. That is the case that holds that searches of newsrooms by law enforcement officials do not in and of themselves violate the First or Fourth Amendments. As many of you know, in response to that decision, Congress passed a law called the Privacy Protection Act which very strongly circumscribes the terms under which both Federal and now State agencies can search newsrooms. It often has been violated, I might add, but at least there was some Congressional reaction to that. Judge Wilkey wrote the opinion in the Reporters Committee case, and it turned on his conclusion that the phone records belong to the phone company and not to the subscriber. In other words, he said subpoenas that seek phone records are third party subpoenas, and they are not subject to any journalist privilege, whatever that privilege may be. It is important to note that Judge Wilkey read the Supreme Court ruling in the Bransford v. Hayes case very broadly or very narrowly, depending upon how you look at it. He interpreted it as recognizing no privilege protecting journalists from compelled revelation of sources in any good faith criminal investigation. I don't think that that interpretation has been borne out by other interpretations of the case, but nevertheless, that is what Judge Wilkey said. In essence, he said that journalists who knowingly utilize the telephone to contact their sources take the risk that their sources will be revealed to the telephone company. "It would be impracticable and unnecessary," he said, "for courts to engage in case-by-case balancing to decide if each individual subpoena abridges First Amendment rights." "Good faith investigations don't abridge them," he said, "because in such cases, the balance is struck in favor of the public's interest in effective law enforcement." And as for bad faith investigations that are designed to harass the press, well, "Judicial intervention would only be justified if the journalist could establish a clear and imminent threat for future misconduct." "If all this bothers you," Judge Wilkey said, "Well, stop using the telephone to contact your sources." The Supreme Court refused to review the case, and it stands as the law of the Circuit, even though the late Judge Skelly Wright wrote a blistering dissent, basically taking it apart on First and Fourth Amendment grounds. Also in 1978, in a matter that would seem unrelated, but I will draw the threats together in a moment, the Department of Justice adopted a policy in its U.S. Attorneys Manual, saying that prosecutions under 18 USC 641, which is the theft of government property statute, would not be permitted if the leak of government information was primarily for the purpose of informing the public. In other words, if they were investigating a leak and it was to inform the public, you couldn't prosecute for theft of government property. During '79 and '80 the Philadelphia Bulletin reported that its reporters' home phone records were obtained by the U.S. Attorney's Office in Philadelphia, authorized by an Assistant U.S. Attorney by the name of John Keeney. This was to discover the source of press information about a mobster who had turned an FBI informant. The journalists weren't told of this subpoena for over a year. In June of '80, the Department of Justice subpoenaed The York Times Atlanta Bureau's phone records, presumably as a follow up to a series published two years earlier linking an FBI informant with various violent anti-civil rights activities. The paper wasn't notified until the 90 days were up. In November, in response to prolonged and loud press protests, Attorney General Benjamin Civiletti issued revised Attorney General Guidelines which do cover telephone toll records. They appear in the Code of Federal Regulations, 28 CFR section 50.1. They provide that "No subpoenaed toll records of the media may be issued without authorization of the Attorney General, unless the media expressly agree to provide the material. An Assistant Attorney General must inform and negotiate with the reporter before requesting the subpoena." And that is the reason that we hear so often about reporters being contacted in the first instance by agents. That has to be done, unless the agent determines, with the Attorney General's approval, that negotiations would pose a substantial threat to the underlying investigation. The records are not to be sought if the information is obtainable through other sources and should be sought only if it is essential to the investigation. They are supposed to be limited and narrow in scope. In 1982, the New Jersey Supreme Court ruled that its State constitution protects an individual's privacy interest in his telephone records. It was not a press case, but it nevertheless, I think, was a powerful statement and appreciation on the part of one supreme court, anyway, that there was a legitimate privacy concern in the secrecy of your telephone records. Over the next 10 years, there were many other examples of newsroom searches, of sweeping subpoenas ranging from a 1985 subpoena of all the networks, the wire services and the news magazines for their material of the hijacking of the TWA jet in Beirut, to the 1987 raid by state welfare investigators on the San Jose, California office of a Vietnamese language newspaper, during which, among other things, journalist phone directories were seized. But in 1989, things got really interesting. The Department of Justice announced a new policy at a hearing on government leaks conducted by the House Judiciary Committee. Out of the blue, Deputy Assistant Attorney General John Keeney, remember him, testified that DOJ would now permit prosecution of leakers for theft of government property and that this new policy would permit the government to obtain journalist phone records in the course of leak investigations. The significance of this testimony was not lost on Don Edwards and Charles Schumer, who promptly wrote to Dick Thornburgh to express their strong concern about the Department's plan to seek criminal sanctions for leakers. They also said that they opposed forcing reporters to disclose sources either through compulsory process or through phone record subpoenas. Such subpoenas would be anathema to the First Amendment, they said. Meanwhile, Thornburgh announced that he would consider subpoenaing CBS reporter, Rita Braver's phone records in his efforts to uncover her source for the leak concerning the FBI's investigation of Representative William Gray of Pennsylvania. He didn't do so, ultimately, as far as we know, and the investigation was concluded after five months. And the cost to the taxpayer for that investigation was $224,000. Subsequently, a Thornburgh aide was implicated in the leak. In the summer of 1991, following a story in the Wall Street Journal regarding contemplated changes at Procter & Gamble, the company persuaded police in Cincinnati to obtain toll records of calls made from Cincinnati residents to the Wall Street Journal's Pittsburgh Bureau. The company claimed that whoever leaked the information to the Wall Street Journal violated state criminal statutes forbidding disclosure of proprietary business information. The subpoenas included the phone records of many residents in Cincinnati, including many Cincinnati media organizations. In January of this year, the Department of Justice on behalf of the IRS, subpoenaed Gregory Millman's phone records, as you know, and he will be telling you more about his experiences, I am sure. Legally, the significance of this, I guess, is that a Federal judge in Alexandria denied Millman's request to quash the subpoena. He claimed he was bound by the Reporters Committee case. Perhaps the most celebrated instance of threatened subpoena of phone records, in the past few months anyway, occurred during the Anita Hill/Clarence Thomas leak investigation. You may recall that as part of his interrogation of the journalists involved, Special Independent Counsel Peter Fleming threatened to subpoena their telephone toll records. The Senate refused to issue those subpoenas. It is my own belief that the threat to subpoena phone records was the last straw in that very ill-fated investigation. The Reporters Committee has issued reports over the last few years that document the increasing use of subpoenas to obtain journalists' records and testimonies. Just two months ago, Attorney General Barr approved subpoenas of broadcast outtakes and unpublished photographs of the Los Angeles riots. On behalf of the Reporters Committee, I wrote to Mr. Barr to protest the breadth of these subpoenas. Just two days ago I finally received a reply from an Assistant Attorney General, who claimed that the unique circumstances of the L.A. riots justified those subpoenas. He concluded that by saying, "The Department of Justice is," and I quote, "ever mindful of maintaining the fine working relationship that the Department has had with the news media over the years." Obviously, such relationships are in the eye of the beholder. At least he didn't take the position that Peter Fleming did in his report on the Anita Hill investigation, and I quote him: "No journalist or news organization can claim they may write or say what they want in any way they wish to write or speak it and then refuse to be held accountable for error and ambiguity under the guise of a purported First Amendment privilege." That kind of thinking is particular dangerous when it is coupled with the present administration's obsession with leaks. I take it as notice that the DOJ wouldn't hesitate to subpoena journalists as part of criminal investigations which, according to their policy statements, now seem to include leak investigations. How much more insidious it is to subpoena phone records. A journalist does not even have the ability to contest such subpoenas, the courts say, wouldn't even have the option of going to jail rather than to reveal a source, because he won't even know about the subpoena until it is too late. Thank you. MS. ENGEL: Thank you, Jane. I would like to introduce you to one reporter who didn't know until it was too late that his phone records were being subpoenaed, Greg Millman, who is currently an Alicia Patterson fellow. GREGORY MILLMAN FELLOW ALICIA PATTERSON FOUNDATION MR. MILLMAN: Thanks. The analogy between law enforcement and fishing is as old as the Dragnet reruns on late-night TV, but as fishing has changed with time, so has law enforcement, and we now confront the law enforcement analog of a drift net. Appalling things, sometimes 30 miles long, trailed usually between Asian factory boats, the drift nets catch everything: fish, seals, dolphins, and disrupt the ocean ecology. The law enforcement analog to drift nets is telephone-record surveillance. It too catches everything and disrupts the environment of the press as thoroughly as drift nets disrupt the sea. Like drift nets, telephone-record surveillance seems to trail on endlessly, unreasonably. Fortunately for the ocean, there are laws and policies and agreements that address the issue of drift nets. Unfortunately for the working press, there are no such policies to regulate telephone-record surveillance. The only limit is the prudence and discretion of the investigator, as weak a limit in law enforcement as the prudence and discretion of factory boat captains has proven to be in ocean conservation. The IRS and the Justice Department swept the Alicia Patterson Foundation, a Maryland home builder, a professional association and an old friend into an investigation, despite the fact that none of these people have even a remote connection with the subject of the investigation. They were swept into the drift net only because I happened to phone them at some point to discuss something or other. Besides these four, many others may have been or may now be under surveillance. There is no rule that requires either the IRS or the Justice Department to notify people that agents are combing through records of every call they have made, making lists of whom they spoke with, seizing additional records from names on the list, combing through them, making more lists, et cetera. This type of investigation opens endless paths to the dogged investigator. One could assemble a complete chart of a reporter's entire network, map the connections and relationships among all members of that network, who calls whom, when, how often. And all in perfect secrecy. This sounds extreme, but it is not an exaggeration. In September 1991, I published in Corporate Finance magazine a story about questionable activities at the IRS. In a nutshell, the Service had spent years trying to restore a $2 billion tax break to large corporations despite a Supreme Court decision ruling the tax break illegal. The tax issue is complicated, and I will not elaborate here. I relied on internal IRS memo traffic for some information and cited these memos in the story. The IRS almost immediately subpoenaed my telephone records. The IRS did not notify me. The telephone company did not notify me. I only found out about this a couple of weeks ago on June 23 and only because an attorney for Corporate Finance called the phone company to discuss a later subpoena by a different government agency. Two months after the IRS seized my records, a pair of criminal investigators from the Treasury Department visited my home unannounced. They asked me to identify my source of information for the IRS story. I refused. Meanwhile, the Justice Department made a separate move to seize my telephone records. The Justice Department has guidelines that require notice to be given when investigators seize records of reporters, so the Justice Department duly provided notice on January 15. We went to court to fight the subpoena. We lost, and the records were in the hands of the government by January 23. What records have the Justice Department seized? I don't know. But in May, they came back for more. Attorneys for Corporate Finance received notice that the Justice Department was requesting unspecified additional records from my phone company. Meanwhile, the IRS has quietly, in fact, secretly seized telephone records of a number of my sources, contacts or friends. In each case, the IRS has demanded that the telephone company keep people in the dark about the fact that their phone records are under surveillance. These demands for secrecy are so strictly honored, that my telephone company even refuses to confirm what the Justice Department has told me, that in January and May, the government subpoenaed my records. So far the telephone company, New Jersey Bell, has only advised me of one subpoena, the secret subpoena issued in September without any notice, well before our court fight against the government's second known move for my records. Curiously, one investigator's name appears in connection with all subpoenas issued to telephone companies in connection with this investigation. The same Treasury Department investigator examined my records, secretly obtained in September, visited my house in November and made several calls from my phone to Justice Department attorneys names in the second move for my records and in the subpoenas for records of the Alicia Patterson Foundation and the other parties. Obviously, the Justice Department policy on notice to the media is, in this case, porous. An investigator employed by Treasury, but working closely with Justice, had already obtained all records relevant to the article months before Justice provided a notice that a subpoena was about to be issued. I don't know how far this drift net trails or when it will end, but end it must. Thank you. MS. ENGEL: Questions about privacy are not the sole province of the news media. These issues have been considered by the telephone company for years, and there has been a lot of thoughtful attention given to it. James Sylvester, who is going to speak to us today, is Director of Infrastructure Issues for the Bell Atlantic Network Services. There are two copies of his -- copies of two articles out on the handout table. Please take a look at them, because he will speak to us briefly today, but they go into great detail on some of these important issues. JAMES SYLVESTER DIRECTOR INFRASTRUCTURE ISSUES BELL ATLANTIC NETWORK SERVICES MR. SYLVESTER: Good morning. What I would like to do in the next couple minutes is just talk a little bit about what the Bell Atlantic policy is towards telephone company records and to provide a little bit of background information with regards to some of the articles that have been appearing in the press and elsewhere. Bell Atlantic receives about 20 to 22,000 requests annually for telephone records. Those are not only toll-type records, they are also requests for unlisted numbers, any kind of information regarding the records that the telephone company keeps. As the custodians of those records, we are obligated to respond to a valid, lawful request. That request would take the form of either a subpoena or a search warrant or a court order, but those are the only ones we respond to. And so when you see the scenes on popular TV or in the movies where somebody calls up their friend at the telephone company and obtains information, that is not the case. The only way they obtain that, again, is either through a subpoena or a search warrant or a court order. And so, of those 20 to 22,000 requests we receive annually, we turn down about 5 to 10 percent of them, because they are not valid requests, valid, lawful requests. Whenever someone requests a toll record, and a toll record means a record of someone's outgoing calls, our policy which, as Jane indicated, is basically unchanged since March of 1974, is to notify the customer whose records are requested and provide the following kinds of information: the type of information that has been requested, who requested it, and the date that we would plan on delivering that information. We generally try to put those notices out within 24 hours, by mail. If the request happens to come in late on a Friday afternoon, it may not be in the mail till Monday, but the policy is still unchanged, to notify the customer of a request for those toll records. And those toll records are only kept by the telephone company for 18 months. So if a request comes in for records that are older than 18 months, we respond and say we no longer have those records. Now, there is an exception. That exception, which is a fraction of those 20 to 22,000 annual requests, says that if the subpoena is received from a grand jury or an official legislative summons is received and that is accompanied by a written certification that release or notification of the customer would impede the ongoing investigation, then we honor that request. And that request is good for a 90-day period. At that time, it must be renewed. It can be renewed for subsequent 90-day periods. But the process is one that says, if someone requests, has a valid, lawful request for records, the customer is notified, unless there is written certification that accompanies either a request from a grand jury or an official legislative summons. So that is basically the process, and maybe we can get into that a little bit more later, but let me just leave it there for right now. MS. ENGEL: There are many trade groups throughout this country who have become seriously concerned about threats to privacy that are really encouraged by advancing technology. Marc Rotenberg, who is the Washington representative for Computer Professionals for Social Responsibility, has spent many hours and years of his time working on this issue and has thought a little bit about the future and where we are going with responsibility, computers, privacy. Marc? MARC ROTENBERG WASHINGTON REPRESENTATIVE COMPUTER PROFESSIONALS FOR SOCIAL RESPONSIBILITY MR. ROTENBERG: I read the editorial in The Washington Post about the Gregg Millman case. My first reaction is what struck me as most significant about this case is that the Alicia Patterson Foundation ultimately found out about the search, because there is everything in the character of the technology and the changing nature of criminal investigations to drive these types of investigations increasingly underground, to make them secret, to make them impossible to detect. And I would not be surprised if a few years from now when people speak about this incident, they will, in fact, speak about the significance of learning that such a search took place. Now I would like to talk about the future, because I think it is very important, if we are going to understand how to protect communications privacy, to understand what is taking place right now in the communications infrastructure. Some of you may think that the Millman incident is a replay of the 1960's. I think it is really the beginning of the 1990's. Let me tell you about two proposals that affect privacy, not only of journalists but of all phone users. The first is a proposal put forward by the FBI to automate the process of wire surveillance to create a capability built into the telephone network to allow FBI agents to select a telephone number to gain access in real time, not only to the content of the communication but also to the transactional information, the toll information and have that transferred directly to the Bureau. A second proposal put forward by the telephone companies about three or four years ago and now heavily debated across the country, is the caller number identification service, or as it is commonly called "Caller ID," which many people, I believe, believe undermines fundamental expectations of communications privacy. In particular, it diminishes the ability of individual phone subscribers to control the disclosure of records of telephone calls, which is exactly the same issue here in the Millman case. Now there are a number of reasons that we are facing these privacy problems, particularly in the United States that we are facing these problems. One is that our wire-tap statute does a very good job of protecting the content of a communication, the words that you actually speak, but it doesn't do a very good job of protecting the record of the communication, the billing information, who you called, how long you spoke, the number associated with the person that you called. This information receives a much lower level of protection. And as investigations increasingly rely upon transactional data, incident data, to initiate an investigation, this is where the privacy battle is going to be fought. Now I have put up these cards, and I would just like to take a minute to tell you how other countries view this problem. While I said a moment ago that the United States has done a very good job on the telephone content front, we have done very poorly on the transactional record front. The Europeans and the Japanese, however, are very sensitive to this second problem. The Europeans, in part, because of the experience with the Nazis in gaining access to telephone toll records and using that as a basis for persecution in the thirties have changed, in fact, I should say they have established billing policies to limit the disclosure of phone number information. It is typically not available to phone subscribers to know the numbers that are called. These cards, which are much like the Metro cards in Washington, allow people at a public pay phone in Great Britain or in France or in Japan to simply insert a card, make an anonymous call, have the credit debited from the card and to leave no trace that the communication ever took place. The best type of protection in advanced communication networks is simply not to create the record, not to have an issue about the circumstances under which the government may gain access to those records. Now let me just say a few more words about the issues related to privacy in technology. It appears as we look ahead that technology may also offer some opportunities to protect privacy. One of the critical technologies for protecting privacy is cryptography. That is the process of encoding information so that only the person who is supposed to receive the information is able to decode it. Now cryptography is increasingly becoming a widespread commercial product. It is being incorporated into computer network technologies. It is being brought into the cellular telephone network. It is necessary in a sense to seal the envelope in communication environments, because today most of the information that is exchanged is, in a sense, written on the side, postcards. And not surprisingly, it is the Federal agencies that are involved in communication surveillance that are most concerned about the use of cryptography in communication networks. The FBI is trying to restrict cryptography. The National Security Agency is trying to restrict cryptography. In both areas, I think there is a strong interest, if you want to protect communications privacy, to try to put the agencies back in their place. But the final point I would just like to make about communications privacy, I know that the journalists feel particularly strongly about this in terms of protecting the confidentiality of sources. We have tried to say for a number of years that in the First Amendment realm, there is a very strong interest in protecting privacy, and it seems to me sometimes that journalists view privacy and view the First Amendment as a trade-off, and sometimes, you know, see this as an obstacle to getting stories out. And I think that is unfortunate. I think there is a joint interest in protecting the right of privacy. It is clear here in the Millman case, but it is also clear in, I believe, many of the important cases that the court has handed down in the wire-tap areas and the speech areas, if you are going to have an environment in which people can write investigative stories, can contact sources who need to be protected against public disclosure, then you are going to need to protect privacy, because if you can't protect privacy, then you are not going to be able to get the information that you need. MS. ENGEL: We might need to know how to get those cards, Marc. QUESTION AND ANSWER PERIOD We are really here for questions, to ask questions of the panelists. Some of it is a little bit of pushing the envelope on the areas of communication privacy that many of us don't know a lot about. We certainly, as an individual Foundation, were drawn into this, and as Jane will tell you, one becomes a believer faster when they have their own records taken. So, are there questions? Yes. QUESTION: Do you know of any legislative initiatives to essentially (inaudible). Is anybody presently active on this? MS. ENGEL: Well, I am going to defer to Jane. She will know some of that, but I do know that Congressman Skaggs has asked us to come up and speak with him tomorrow. So that is one person who is concerned about it. MS. KIRTLEY: Well, we've got Bob Gelman sitting here in the audience and Bob knows everything that is going on on the Hill, so..... Is there anything going on, Bob? MR. GELMAN: No, not that I have heard of. MS. KIRTLEY: Yes. This is -- I mean, there are a number of bills floating around that deal with the, you know, various kinds of privacy concerns in the area of electronically stored communications, but I know of none that specifically address this issue. VOICE: There are some bills on telemarketing which were passed last year, signed into law. There are bills pending on caller ID-related activities. The FBI has tried to introduce legislation with regards to their own concerns on access to communications, but on this particular issue, once again, I am not aware of anything there. QUESTION: Mr. Sylvester, how many people does Bell Atlantic employ in the processing of those 20-odd thousand requests? Can you categorize them by professional, legal staff persons, clerical staff persons? MR. SYLVESTER: I don't have those numbers. There are certainly people assigned to help respond to security-related issues. We have some people that provide support for -- that provide the technical assistance that is required, if an actual wire tap is required, but in terms of the processing of the toll records or obtaining that information, that type of thing, I don't have that. It would be very similar, though, to the overhead that any other large corporation would maintain in order to respond to other outside legal requests. I mean, if a request comes to a GM or a Ford or anyone else, they maintain some people to help respond to those or banks do, as well. QUESTION: Do you think there are 10 people employed, 20, 100? MR. SYLVESTER: Don't know that number. MS. ENGEL: Yes. QUESTION: The telephone transaction data, that is only one part of an investigative reporter's use. Increasingly, you are using fax, electronic mail, remote file transfers, access to remote databases, all of which gathers content data and transaction data. It is very similar. Have there been cases of people trying to capture that transaction data, the processes used in investigative reporting? MS. ENGEL: Yes. I am glad you asked that, because -- Marc, I think, can speak to that. He told me that, yes, you can pull off faxes now, content of faxes. MR. ROTENBERG: I'm not sure, Chris, in which investigations that is done, and I know that in the computer crime case in New York City that broke a couple weeks ago, the Department of Justice made a point of stating that they had obtained access to communications to computer bulletin boards. So it is clear that is taking place. MS. ENGEL: Yes. QUESTION: What is your theoretical or legal justification for allowing this access to your records? Don't you think your customers have an expectation of privacy? MR. SYLVESTER: Certainly, we do, and in the case of toll records, as I mentioned, we do notify them in every case except where there is the written certification that accompanies either the grand jury or the legislative summons. So we notify them in every case, and in those cases, at the termination of the 90- day period, we would notify them also, unless it has been extended. And at least for the Bell Telephone Companies, there are specific FCC guidelines that deal with a number of the telephone company records with regards to customer name, address, billing number, billing address and features that they subscribe to as well as the toll records that go with that. And that information is generally or is not released outside the company, except with the customer's authorization or a valid lawful court request. MS. ENGEL: I just want to add that in our case, the IRS asked that we not be notified because it said it would impede the investigation. Well, that was sort of laughable on the face, because it turns out we are not even related to the investigation. But does that give you pause? I mean, there must be a lot of angry customers who call up after they get those letters that you send out. I want to make it clear that Bell Atlantic is one of the good guy phone companies for sending them out. Reporters in California have told me that they never find out on Pacific Bell. So, I mean, the fact that we even found out is because Bell Atlantic has that mechanism in place. But because it so American to sue, do you get angry calls from customers saying, "I just got this letter from you. We're suing. And we had nothing to do with this investigation, why did you turn over the records?" MR. SYLVESTER: I haven't been involved in those processes. I can't speak to the customer's reaction, but certainly, we do get requests, and it would be natural to have an inquiry if someone receives a letter, but I can't comment on that. MS. ENGEL: Right, but, you know, in our case, we didn't even really have anything to do with the investigation, so impeding it would have been pretty impossible. MR. SYLVESTER: You know, if a company, any company, a telephone company or otherwise receives a lawful warrant, a court order to turn over information, and we do try to take the step to say we will notify the customer in advance of having to turn over the information, so that there is an opportunity for that customer to respond, but in the case of a written certification that says, "Do not notify the customer," we obey that certification. MS. ENGEL: Right. In our case, when it is so off base, do you ever go back then to Treasury and say, "Don't give us any more black eyes like this. We don't need this publicity. Why don't you be a little more careful?" MR. SYLVESTER: I don't know how that works. MS. ENGEL: Okay. Yes. QUESTION: Mr. Sylvester, I would be interested if you could give us a little more breakdown on the figure of 20 to 22,000 requests. Could you tell us how many of those do come with this exception that you cannot publicize at the time, can't disclose to the customer -- MR. SYLVESTER: We were trying to get that just before we came, and Ken, did -- MR. PITT: I've got some interesting numbers, because the 22,000 relate to -- it turns out that our -- this comes into a special (inaudible) in Bell Atlantic. The requests come in to the Law Enforcement Liaison Office and (inaudible) items. An item would be a request for a number. That item might be an individual (inaudible) toll records. And I will give you two figures, one for July 1 and December 31, '91. This is just for C&P Telephone Company. Atlantic also has the Jersey Bell, Pennsylvania and (inaudible) Telephone in Delaware. This represents about 40 percent of the customers service, and subpoenas and court orders for toll records. In July through December of '91, there were 1,374 requests for 11,146 months of toll records. When I say requests, these are subpoenas and court orders. QUESTION: Would you give those numbers again? MR. PITT: Yes. There were 1,374 requests for 11,146 of toll records. (End side 1.) MR. PITT: -- from the six-month figure of 1,000. QUESTION: Okay. MR. PITT: So we don't get 22,000 requests for, the calendar year of '91, for approximately 22,000 months of toll records, if that makes sense. QUESTION: Okay. So what I am trying to get at is the proportion of the requests which are not disclosed to the customers. MR. PITT: I don't know (inaudible) involve criminal investigations disclose, even when there is a request that is not a criminal investigation (inaudible). In other words, (inaudible) criminal investigation from the grand jury which requires from us, we are being seen as the custodian of the records, and it requires from us a showing that we had not (inaudible). MR. SYLVESTER: Now there are some government agencies that have power of subpoena. I believe the SEC does, and if they give us a subpoena, a valid court request, we would honor that, but we would notify the customer, because it is not part of a grand jury investigation and it is not part of an official legislative summons. So we would notify in those cases. QUESTION: Would these include cases where a (inaudible) security clearance and background checks (inaudible)? MR. SYLVESTER: I can't respond to that. I don't know the answer to that. QUESTION: (Inaudible.) MS. KIRTLEY: I'd just like to note that back in '78 when Skelly Wright wrote his dissent, he listed 47 Federal Government agencies that have subpoena power. I mean, they include everything from Justice and the FBI to the National Transportation Safety Board, the National Commission on Electronic Funds Transfer. I mean, things that you would think would be logical. The Coast Guard, the Railroad Retirement Board. A lot of people have the authority to subpoena records. VOICE: I have a question for Jim. MS. ENGEL: Wait. Let's let Ken Pitt give the numbers for '90? MR. PITT: For '92. MS. ENGEL: '92. MR. PITT: For the first six months of '92, the requested toll records were 1,492 requests. 12,130 months of records. And there is a second category here, which is request for listings. We give the second half of '91 number, these are requests for listings published and nonpublished. I don't have a breakdown between them. We don't keep records of whether they are requests for published or nonpublished listings. There were 2,426 requests with 29,857 individual listings. QUESTION: 29,000 -- MR. PITT: -- 857. This is, again, the is again, the last half of '91. For the first half of '92, requests for these listings, and the 2,743 requests, 37,249 listings. And there were all subpoenas or court orders. MS. ENGEL: Jim Sylvester had said between 5 and 10 percent of these are not granted. Are they not granted only because the phone number is not working, or it is not listed to the person on the subpoena? MR. PITT: (Inaudible) the subpoena. It's not a valid subpoena. It's not a valid subpoena or not (inaudible). MS. ENGEL: But I mean, you don't do any other checking of the subpoena, other than to see that it is a working number and it is to the same person that's -- MR. PITT: These are for records, and what happens is most of these come in by number. We don't know who the customer is (inaudible). It's by a telephone number, and the indications as to whether this is a mafia informant, I mean, a mafia -- a mafioso or whether it is some activity with drugs (inaudible). MS. ENGEL: I think it is clear -- people should understand, ours is a criminal investigation. This leak investigation is considered a criminal investigation. Yes. QUESTION: I had a question for Jim Sylvester. Jim, I think you said that you hold onto the records for 18 months. Now, the original AT&T policy was typically to destroy the records after six months, and in terms of protecting the interests of the customer, I mean, this would be good, of course, it is similar to what I was saying about I was saying about data minimization with the other phone systems. Is there a reason for holding the records for this period? MR. SYLVESTER: I am not sure what the generation of the 18-month period is, but my understanding is that that is the policy that we have followed since March of '74, is to keep the records for 18 months.. MS. ENGEL: Yes. QUESTION: I have a question in terms -- and I am not sure anybody can answer this, in terms of the 47 agencies that can issue subpoenas, are there any constants for standards for the issue of subpoenas? It seems to me that is where some of the problem lies. Once they get it, the people who get the (inaudible), the people who issue (inaudible), that's where the control point is. So, maybe Jane has (inaudible). MS. KIRTLEY: Well, I think that there are standards and there are regulations within the agencies, but as Skelly Wright says, they are not subject to any prior judicial review in most instances. So to a great extent, what you are dealing with is almost a self-policing proposition. As we noted here, the Justice Department does have its own guidelines, the Attorney General's guidelines, that cover not only the subpoenas of phone records but the subpoenas of anything that is a work product or others things relating to a journalist. But of course, those guidelines are just that, they are just guidelines. They don't create an independent cause of action, they don't make it possible on their face anyway for a journalist to sue, because they haven't been followed. The only thing that the guidelines themselves provide is for administrative sanction within DOJ, if the Assistant Attorney General doesn't follow them. And although there have been a couple of cases where a court quashed a subpoena based on the fact that it did not follow the guidelines, those cases are very few and far between. I also would just point out that there has been one case holding that the NLRB is subject to the Justice Department guidelines. There has been another case that says it isn't. So I think the question of whether any other agency could -- particularly one with law enforcement powers could be construed to be under the DOJ guidelines is still a question very much up in the air. MS. ENGEL: Yes. QUESTION: To follow up on that, it would seem that if there is a requirement for certification that -- I don't know whether that is the same thing as a certification on a pleading, for example, but is there any possibility that the investigating agent might be subject to some kind of sanction, professional sanction? MS. KIRTLEY: Well, that certification requirement is just AT&T's requirement. QUESTION: It is not a legal requirement? MS. KIRTLEY: No. No. AT&T requires that. QUESTION: So it is not the DOJ's guideline or -- MS. KIRTLEY: Well, again, under the guidelines, any time a subpoena is issued that is after journalists' materials, it is supposed to be approved by the Attorney General himself. And if it is not, then it is a violation of the guidelines. So there is an internal departmental review process in that sense. It is supposed to happen, although we reported a few years ago a number of regular subpoenas issued on journalists that had not been approved by the then Attorney General, and no sanctions, as far as we know, were ever imposed on the agents who did that. And as Greg will tell you, that didn't follow in our case either. The first time his records were seized was by Treasury, which doesn't have a guideline and didn't notify him. The second time it was seized it was Justice Department, and they did notify. Yes. QUESTION: Mr. Sylvester, you were talking about toll records. Do you get requests for records of local calls, and do you have the capability of providing lists of local calls that have been made? MR. SYLVESTER: The toll records are primarily kept in order to do billing, and so there is a need to keep those. For local calls, many people, most people, at least residential customers, have some kind of flat-rate calling which, for X dollars a month, they can make an unlimited number of calls. So there is no need to keep records of those calls. In some jurisdictions, they have what is called message rate billing, where they bill for the time and duration and distance of the call, and in those cases, they would keep records of the call. QUESTION: Do you have the ability to track local calls if you have flat rate service? MR. SYLVESTER: If a trace is put on that line, certainly you can -- you know, there are -- something people call a pen register or a trap and trace that you can put on a line that would make a record of who is calling or who you are calling. QUESTION: Well, to follow up on that point, how many instances in the past period of time we are talking about here were traces put on in those (inaudible)? MR. SYLVESTER: I don't have that information here today. MR. PITT: James, if I could add, on the question of local records of local calls, there is not a generic and general capability to capture much less retain records of local calls (inaudible). With message unit calling, what we do with the records is essentially (inaudible), typically, are billed either for duration (inaudible). A number of calls (inaudible) message units. Unless you capture those, you do not retain a permanent record. There are a lot of tape replays that is recycled every few week to at most a few months. So there is a short window of opportunity when message unit billed calls might be traceable in some -- or retrievable in some jurisdictions that may only keep a stroke count and don't have those records, in fact. So for most residential customers, in most of the cases, there is no record anywhere of local calls. MR. SYLVESTER: All we need to know to complete that billing process is the duration of the call, in many cases. So we do the kind of stroke count that Ken is indicating and that gives us the information that we need. MS. ENGEL: Yes. QUESTION: Mr. Sylvester, you said -- what kind of procedures do you have in place to make sure that that movie scenario doesn't happen where a private eye is calling one of his contacts in the phone company and just plunks down a hundred bucks and gets some -- MR. SYLVESTER: We have an internal Bell Atlantic Code of Conduct that each employee signs that indicates under what circumstances employee or customer information may be released and to whom. Violations of that Code of Conduct are punishable by actions up to and including dismissal. QUESTION: And you say that never happens? MR. SYLVESTER: It's not to say that it never happens, but we do follow up on those cases. QUESTION: And have you ever fired an employee for doing that? MR. SYLVESTER: Yes. MS. ENGEL: Yes. QUESTION: If I can follow up on that. Do you have any other means of following it? Do you have audit trails or anything that you can tell when people have been accessing files? MR. SYLVESTER: I am not as familiar with what we do in some those areas. I know that many of the -- or at least, put it this way, some of those investigations are launched because of customer complaints. You know, someone has information that they didn't think that they should have, and calls the telephone company. It is referred to security, and we follow up. There are certain guidelines that the FCC requires us to follow with regards to release of customer information that we do have audit trails on to monitor how and who accesses that information, and it has to be done under certain particular requirements. MR. PITT: If I could add to that, James. There is, within the computer systems, limited access to records (inaudible) employee access to records (inaudible). QUESTION: I have a question and a comment to the telephone company (inaudible.) And we were not advised (inaudible) looked like an form letter, drafted and (inaudible). And it was a computer-generated notification. And Peggy's notification, I think, was just about the (inaudible.) MS. ENGEL: Right. And no phone number on it. It wasn't signed by anyone. QUESTION: Yes. And ours was not signed either. It didn't have anyone's name on it. And this is a pretty low-grade method of notification. I personally protect that. We always threw that thing away (inaudible). (Inaudible) because we had also written the phone company ahead of time saying, "Look, (inaudible), we expect or anticipate that there may be a request for the phone records. You stated your policy is (inaudible) notify. We want you to abide by that." But this was just a very low-grade, informal, like a piece of junk mail. And I think you need to upgrade that a little bit. MS. ENGEL: Good point. Joe. QUESTION: I would be interested in whether the telephone company charges the government agencies for the time it takes to generate all this information. If you don't, why don't you, if you are passing on this extra cost to conduct this information to your customers? MR. SYLVESTER: I am not aware that we do charge for the information that we provide. It is built into our administrative costs that we recover through local rates. MS. ENGEL: Yes. QUESTION: Mr. Sylvester, I think that the numbers here are sort of amazing to most of us, these thousands of annual requests. I guess it doesn't surprise me, that unless you have hired a pretty large division of people to handle them, that all anyone gets is a sort of low-order piece of mail as notification. But what are we really talking about here? Bell Atlantic services a lot of big, nasty cities. Are we talking about crack dealers here getting their phones trace or -- what are these thousands of cases? What is a good way to characterize them? MR. SYLVESTER: These are criminal investigations. They result from grand jury investigations, primarily. For reference, Bell Atlantic has about 18 million access lines. So this is a relatively small percentage, not that the number is insignificant, but we do serve the State of New Jersey. Northern New Jersey has some problems. We do serve the State of Pennsylvania. There are some active crime organizations in a number of our service areas. So we do serve the States of New Jersey, Pennsylvania, Delaware, Maryland, Virginia, West Virginia and District of Columbia. QUESTION: But can you characterize in any way what a big proportion of them might be? Are we talking about drug cases that -- what are we talking about here? MR. SYLVESTER: They certainly include them in that, but we don't have any way of knowing the answer to that. We get a request to follow up and identify the subscriber for a particular telephone number. We get a request to provide toll records for a particular telephone number. We don't have the interest in understanding who that person is in terms of what their job is or whatever. We have an obligation, we feel, to provide that record in response to a valid court request. QUESTION: But you can't be blind to what the situation is, as blind as you are making out to be. Anybody who has a job sort of knows what is going on in the world. Isn't there any talk in your company what is generating all these requests? Don't you have any liaison with law enforcement people who are -- let's talk about the real world here rather than a sort of a vicious situation. Where are these cases coming from? MR. SYLVESTER: Unfortunately, I don't know enough to be able to respond on that. We have -- QUESTION: Drug organizations aren't creating toll records; right? MR. SYLVESTER: Pardon? QUESTION: Most of the drug organizations wouldn't be creating toll records. MR. PITT: (Inaudible) coin boxes and other stuff, but they sure do (inaudible) transactions. But the question of what is driving them, there are some opinions that is drug-related and criminal activity. Certainly, in some cases it is (inaudible). All we have, as a third-party repository, we have got a request from (inaudible) grand jury to not disclose. (Inaudible.) So you've got a subpoena for the records, you are a third party. You essentially are not a party, a direct party to the case. Beyond that, (inaudible). There is constant escalation (inaudible). (Inaudible.) There is an awful lot of communication. The idea of black boxes (inaudible) disappear, if you will, not keep a permanent record of those calls. QUESTION: Have the number of requests been going up over the past 10 years? MR. PITT: They might have been (inaudible). MS. ENGEL: Steve. QUESTION: How many of the requests for records are from grand jury subpoenas and how many are just from agencies, and is it possible to get a breakdown on which agencies are making these requests? VOICE: (Inaudible.) MS. ENGEL: Joe. QUESTION: (Inaudible.) MR. SYLVESTER: I don't have that data. I have to admit I wasn't aware of my appearance on this panel till Monday, when I returned from out of town. So I haven't had time to pull together some of that kind of material. MS. ENGEL: Ira. QUESTION: Does it require Congressional legislation in order to get to the Alicia Patterson part of the problem, the request made of someone who is phoned by someone who is under investigation? Couldn't the FCC actually issue regulations that would control that, have some prior restraint, some previous judicial intervention before a private citizen's phone records are released? (Inaudible.) MS. KIRTLEY: I think so. I see no reason why the FCC couldn't. I mean, it required the beep tone for years and years. They obviously regulate privacy concerns for the telephone company. So I would think so, but I am not an FCC expert, so I can't tell you for sure, but, yes, I think it is possible. QUESTION: (Inaudible.) MS. KIRTLEY: Well, we're not a lobbying group, so we can't pursue it, but we will be happy to support anybody who wants to. I think that -- just one other thing that I want to point out, and I certainly don't want to say that Bell Atlantic is in any way responsible for this, because Cincinnati Bell has nothing to do with them, but I underscore that in the Procter & Gamble case, that was an instance where a private company went to the cops in Cincinnati, said, "We think that this leak constitutes a violation of law. We want to know who the leaker was. So subpoena everybody's phone records in Cincinnati and find out who called the Pittsburgh bureau of the Wall Street Journal." A lot of private citizens, a lot of news organizations in Cincinnati had their phone records turned over without any notice, without any opportunity to contest it. So while we can sit here and paint the feds black if we want to, I think it is important to recognize that this is not an issue that is limited to Federal agencies. It extends to any law enforcement agency or any entity that can issue a valid subpoena. MR. SYLVESTER: I guess I would like to follow up on one thing there, and that is, the telephone phone company certainly keeps these records, but if you are looking for legislation or controls, I would suggest that you might direct it, not at the telephone company but at the agencies that issues these subpoenas, because they make the determination as to what they are after and how they are going to obtain it. The telephone company is, at least at this point in time, required to respond, at least we feel we are required to respond to those requests. So if the request comes to us, we will respond within the guidelines we have. MS. KIRTLEY: That is really just a business decision, though, isn't it, Jim? I mean, as a recipient of a subpoena, you, like any other recipient of a subpoena, would have legal standing to go into court and contest it, but I assume that given the volume you are talking about, you are saying that, in fact, the telephone companies simply don't want to have to engage in that process. QUESTION: I am just wondering, I guess I am more concerned about (inaudible). I was wondering (inaudible), if anybody has ever -- if there have been any attempts to introduce these anonymous (inaudible). MR. SYLVESTER: Yes. QUESTION: What do you think needs to be done (inaudible)? MR. ROTENBERG: Yes. NYNEX has introduced the card in parts of New York City, primarily in response to concerns about vandalism of pay phones, but there are now companies on the West Coast who are looking at the use of the card as well, and I expect over the next few years we will see more public systems that use these cards. I would like to just make a point, if I could. I know this discussion is very much focused on the disclosure of telephone toll records and the legal responsibilities that the phone companies might or might not have when they are faced with a subpoena, but I really hope you will consider the relationship between this particular problem and the offering of a service to sell customer data through Caller ID, for example, to other recipients. It has certainly been recognized by courts. In fact, the 1982 Pennsylvania case which Jane discussed a moment ago, which established a right of privacy in telephone toll records, was supported by the Pennsylvania court in 1990, when it looked at the caller ID issue and said this is the same question. It is whether individual users or phone subscribers have the right to control personal information, and we find, relying on the '82 opinion, a constitutional right in the State of Pennsylvania that individuals should have to protect personal information. Now the linkages become more and more apparent, the more you look at the cases. It is true as well in the Reporters Committee. The 78 case was an unfortunate outcome, but the question was still, what is the right of the individual to control information about himself or herself? In that case, the 78 case, the District Court here relied upon -- I'm sorry, the Appellate Court here relied upon the U.S. v. Miller decision two years earlier, which was a bad decision. Said you don't have any rights. And that is how the result was reached. But I really think, particularly as we look ahead, you need to explore those connections, because this issue is much bigger than subpoenas and toll records. MS. ENGEL: Yes. QUESTION: I guess I wanted to follow up on something that Marc had said about the Miller case. It seems to me that in the aftermath of the Miller case, Congress passed the Right to Financial Privacy Act about bank records, which isn't a perfect statute, but having read -- probably having read more of the cases than most people, I think that it is a statute that plaintiffs have won fairly frequently on when they have gone to court, and it seems to me to provide probably an imperfect model that Congress might be able to adapt to phone records. I mean, agencies who are trying to get bank records have to provide notifications and (inaudible) -- and there are some very broad loopholes for drug trafficking and espionage and stuff like that, besides some smaller loopholes that I can't remember any more. It at least puts a regulatory scheme into existence where you are not kind of existing only on the largesse of the phone company, you know. There is a statute that says the phone company has to provide -- that the government and the phone company has to provide this notification (inaudible) contest it both administratively and judicially. I just bring that up at least as a possible starting point. MR. ROTENBERG: Let me say something about that, Harry. This issue of statutory protections for privacy in response to bad court decisions has now been going on, you know, for a number of years. Jane mentioned the Privacy Protection Act of 1980 which followed the Zercher case and protected newsrooms. We had the Electronic Communications Privacy Act of '86, the amendment to the wire-tap statute which was, in part, an effort to address a case called Smith v. Maryland, involving telephone toll records. And there is always a sense, you know, we can go to Congress and try to fix this a bit, when these bad decisions come out. But increasingly, I found myself also, having worked for the Senate Judiciary Committee, that the legal decisions are just not adequate. We need to look much more closely at the technologies and much more closely at new business services to really get a handle on what the privacy problem is. People thought they had solved the telephone toll record problem with the Communications Privacy Act, but then services were offered which, on their face, violate the Act. So what are we left with? They are not enforced in court. We are pretty much back to square zero. So that is why I carry phone cards around and hope we get them soon in the U.S. MS. ENGEL: One thing you will see in one of the reprints out there for the Wall Street Journal is an entrepreneur out in California, Will Dwyer, an attorney, has set up basically, a telephone laundering service, a 900 number that you call, and he promises that it will be so scrambled that there will be no record of it. But at 2 or 3 dollars a call, I don't think it is going to be very useful for most newsrooms. MS. KIRTLEY: Just one other footnote, which I think is self-evident, but you just have to remember it, that any attempt to legislatively deal with this will have very, very strong opposition from the law enforcement community, particularly the FBI. As has been discussed here, they are seeking to increase their ability to tap into people's phones, and they are not going to sit idly by while an effort is made to curtail or even make more difficult obtaining this kind of stuff. So in a law-and-order mindset, in a war-on- drugs mindset, I would suggest that while the privacy interests seem very compelling to those in this room, I am afraid many people would agree with Judge Wilkey that in the interests of law enforcement, that this is a more compelling interest than the privacy rights of the subscriber. That is what you have got to overcome, and I suggest it will be a very difficult thing to overcome. MS. ENGEL: Yes. VOICE: To pursue the technology issue on another parallel, people have fought to get library circulation records, similarly, for many years, as in you find a library card on someone. You want to see what they have been reading. The most publicized case was Lee Harvey Oswald and going through millions of microfilm at Dallas Public Library, for instance. That has been fought at a state level, and there are now state statutes on library records. And as libraries automate, they are trying to break that book-to-patron record as soon as the record is cleared. And so it is a technical solution. So that even if you come in with a subpoena, the record no longer exists. (Inaudible) reporting the same way. But now, almost anybody can get into Information America or some of these other services out there and get a credit report record with almost no restrictions on it, despite the other kinds of restrictions. And you can go into these other databases, and you can figure out, if you are searching SEC filings or what subject you are searching into a database for, you can get a whole lot of information about what you are trying to investigate, simply on the transaction. And we do not yet have in place the sort of legislation that covers the new technology of other ways to get that information that we have put in place against the (inaudible) type systems. MS. ENGEL: And I have to say that journalists are in a very peculiar situation on that. On one hand, we go to conferences to learn how to learn everything we can about companies and individuals we want to write about, and on the other hand, here we are today saying that the line should be drawn. Are there other questions? Yes. QUESTION: How does the phone company's going into the answering machine business impact on the ability to retrieve either the concept (inaudible) transactions (inaudible) answering services (inaudible)? MR. SYLVESTER: For those of you that may not be familiar with it, Bell Atlantic has a service called answer call that provides a network-based telephone answering service, whereby, either on a don't answer or a busy, the call is automatically forwarded to an answering machine, basically, that gives a prerecorded customer-specific message and then takes the customer's message. I don't know. It is the customer's option to be able to certainly erase those messages at their --it is their decision to erase them, but if they choose to archive them, they are maintained on the system until that customer erases them or until their space on the disk, so to speak, fills up. In terms of access to that information, I don't know how that works. QUESTION: Where a subpoena is received before a customer erases it, the content as well as the transaction (inaudible) anybody who seeks it? MR. SYLVESTER: I don't know the answer to that question. I know that in some private companies, they do on their voice mail systems make tape backups or disk backups of those systems, and some of those companies choose to maintain them for some period of time. In some points in the past, those have come into question. But in terms of what we, Bell Atlantic, are doing, I can certainly get that information, but I don't have it here today. MR. ROTENBERG:(?) Stored voice communication, which is what voice mail is, is covered under the Communications Privacy Act of 1986. So you do have certain legal obligations under the wire tap statute when you are presented with a subpoena or warrant. and I think there is a distinction in the statute between messages which have been on the system for less than 180 days and those which have been there for more, which is one of the reasons I asked you the question before about why you now hold records for 18 months. But there are some protections there. MS. ENGEL: Any final questions? Yes. QUESTION: How do the policies of and the number of requests received by Bell Atlantic compare to the other regional Bell companies? MR. SYLVESTER: I don't have that information. MS. KIRTLEY: We only really know, anecdotally, that many of the other Bell companies, apparently after the AT&T split up, no longer felt that they were bound by the AT&T policy and do not notify the person whose records have been subpoenaed. I think that it is very much an individual Baby Bell decision or regional Bell decision of what they are going to do. MS. ENGEL: You will see on the handout table, St. Louis Journalism Review piece by Dan Fidusia, a free-lance writer on the West Coast who writes extensively about these issues about how every individual Bell system now has sort of a crazy quilt of policies articulated or not articulated on this issue. MR. SYLVESTER: Let me just follow up one thing, I mean, just a point that you should be aware of. The Bell Telephone Companies do not serve every telephone in this country. In fact, we serve about 40 percent of the land area, and we serve about 80 percent of the telephones, and there are over 1300 telephone companies in the United States alone. So there is certainly going to be some diversion in terms of policies and such that these companies implement. But the Bell Telephone Companies are the ones that generally are most heavily regulated by the AT&T consent decree, certainly, and also by FCC requirements with regards to disclosure of customer proprietary network information. Those rules generally do not apply to other companies. But as you talk about telephone companies, you may choose to think about telephone companies in general versus the Bell Telephone Companies specifically, in terms of how you write. MS. ENGEL: Right. We should be more careful about that. Let me just ask each of the panelists if they want to give some concluding remarks on something that came up today that struck you. If not, we will do one final round of questions. Marc, anything specific you want to add? MR. ROTENBERG: Well, as I said, I think the first issue is the subpoena process on telephone toll records. But very quickly after that, you have to look at the FBI's wire tap proposal, and you have to look at commercial services to sell personal information. MS. ENGEL: Jane? MS. KIRTLEY: I just would like to reiterate a point I made initially, which is this. It really was my observation during the Anita Hill/Clarence Thomas investigation that for the general public the hot point on that investigation was when it was announced that the telephone records were going to be seized. It is something that I think everybody can identify with, anyone who has a telephone line, and I would suggest that to the extent that journalists and others are interested in trying to deal with this legislatively or otherwise, they bear in mind that it really has broad ramifications beyond the First Amendment concerns of reporters. One thing that Judge Wilkey said with which I do agree is that the First Amendment interests at stake here are not just those of journalists, they are of anyone, and I think that that is something that we need to keep in mind if we do attempt to rectify this situation. MS. ENGEL: I wanted to add that some of the reporters involved with that, Tim Phelps and Nina Totenberg and Paul Ramirez, called me specifically to say that they really wished they could be here today to talk about this, because they found out that one of the most chilling parts of that whole examination that they went through. Greg? MR. MILLMAN: Yes, just to underscore that there is really no rule out there to cover these. Policies differ among government agencies. Policies differ among telephone companies. And with that many difference out there and that many different ways to go, it is tantamount to having no rule at all. I think that is the most dangerous thing about the whole scenario. MS. ENGEL: Jim. MR. SYLVESTER: Just a follow-up to some of Marc's comments on other innovations in technology that are coming down the pike. There are a number of innovations that are coming down the pike that will cause people to think about privacy implications. Certainly, the article that is outside covers some of those, at least at a cursory level. You may wish to look at that. A number of those technologies can also increase a person's privacy to allow them greater control. There are certainly people these days, and some of the services that Bell Atlantic is beginning try in areas in Pennsylvania where people can have a single telephone number, and based upon time of day, day of week, who's calling, telephone calls can be routed to that customer wherever they are, either at their home or business or using their mobile telephone. Also calls can be blocked and routed to an announcement, based upon who's calling. It may well be that certain people the person doesn't want to talk to at all, certain people that a person would like to just have them leave an announcement or leave a recording for them. In some cases, they want the call to complete. So as we move forward, there are a number of technologies that are allowing additional services that are increasing a person's flexibility in privacy and control over communications. And I think that as time proceeds, you know, those will become much more interesting. And I will be happy to talk to you. MS. ENGEL: Well, on behalf of the Alicia Patterson Board, Joe Albright, I would like to thank you for the time and attention, particularly the panelists' time and attention to this subject. It is one that is not going to go away, and I am sure will be back in some other form. Thank you. (Applause.) (Whereupon, the conference was adjourned.) 1