ACLU release and letter on FBI wiretap bill

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ACLU Opposes FBI Wiretap Access Bill; 
Legislation Would Create Dangerous Precedent 
 
For IMMEDIATE RELEASE  
September 26, 1994                                       
 
Contact: Barry Steinhardt 
         BarryS @ aclu.org 
         or Kathy Parrent, 212-944-9800, ext. 424 
 
 
	The American Civil Liberties Union today called on the House 
Judiciary Committee to reject the FBI Wiretap Access Bill, H.R. 4922, 
which would require private electronics manufacturers to insure that the 
FBI can wiretap using developing telecommunications technologies.  
 
	In a letter sent to Congressman Jack Brooks, Chair of the House 
Judiciary Committee, the ACLU stated that the bill "... creates a 
dangerous and unprecedented presumption that government not only has the 
power, subject to warrant to intercept private communications, but that it 
can require private parties to create special access. It is as if the 
government had required all builders to construct new housing with an 
internal surveillance camera for government use."  
 
	"Moreover, the FBI has not borne the burden of proving why such an 
extraordinary requirement is necessary..." the letter said.  
 
	A copy of the full letter with the ACLU's detailed objections 
follows. 
___________________________________________________________________________

September 22, 1994 
 
 
 
 
Honorable Jack Brooks 
Congressman, State of Texas 
2449 Rayburn House Office Building 
Washington, D.C. 20515-4309 
 
Dear Congressman Brooks: 
 
	We are writing to you to express the ACLU's opposition to the 
FBI-Wiretap Access Bill, H.R. 4922.  While we were not actively involved 
in Subcommittee deliberations, we have reviewed the legislation and we 
have several major concerns.  
 
	The principal problem remains that any digital telephone bill 
which mandates that communications providers make technological changes 
for the sole purpose of making their systems wiretap-ready creates a 
dangerous and unprecedented presumption that government not only has the 
power, subject to warrant, to intercept private communications, but that 
it can require private parties to create special access.  It is as if the 
government had required all builders to construct new housing with an 
internal surveillance camera for government use.  Even if such use were 
triggered only by a judicial warrant, such a requirement would be strongly 
resisted by the American people.  H.R. 4922 establishes a similar 
requirement, and is without precedent.  
 
	Moreover, the FBI has not borne the burden of proving why such an 
extraordinary requirement is necessary.  In 1993, there were fewer than 
1,000 wiretaps authorized and many of them failed to yield any substantive 
evidence while intercepting many innocent conversations.  It is far from 
clear that digital telephones will substantially obstruct legitimate law 
enforcement efforts.  Without further public discussion and debate, the 
public will not have a sufficient opportunity to weigh the loss of privacy 
against the FBI's claims.  There has been no opportunity to learn the full 
extent of the types of investigations that the FBI claims were precluded 
because of a restriction on their public dissemination.  Yet, based on 
these secret assertions, 91 such incidents were cited by the FBI.  On 
those slim assertions, the public's loss of privacy in digital 
communications is all but assured and taxpayers will be asked to pay an 
extraordinary price.  
 
	H.R. 4922 authorizes $500 million over the next four years to 
reimburse telecommunications carriers for the costs that would be imposed 
by the bill. Even if you accept these cost estimates -- the industry puts 
the real cost in the billions -- we will spending $125 million or $125,000 
per wiretap, for the fewer than 1,000 taps that will be conducted each 
year.  
 
	As you know, the ACLU has the greatest respect for Congressman 
Edwards and Senator Leahy. Both have been tireless champions for civil 
liberties. The Edwards/Leahy proposal is an improvement over earlier 
versions offered by the FBI and we applaud their efforts to add new 
privacy protections.  
 
	The proposed expansion of the Electronic Communications Privacy 
Act to cordless phones and the requirement that a court order be obtained 
for transactional data from electronic communication providers both are 
steps forward and merit separate consideration by the Congress.  But they 
cannot and should not be traded for the unprecedented intrusion 
represented by H.R. 4922.  
 
	In several respects, H.R. 4922 is still too broad in its 
application.  
 
	For example, earlier versions of the bill would have applied 
directly to on-line communication and information services such as 
internet providers, America On Line, Compuserve, Prodigy etc. H.R. 4922 
would apply directly only to "telecommunications carriers" such as the 
Regional Bell Operating Companies.  
 
	But this provision does not narrow the scope of the bill as much 
as it might seem. First, with the new presumption that the government is 
entitled to require private manufacturers to insure its ability to 
wiretap, law enforcement will undoubtedly be back in future years 
insisting that this limitation thwarts its efforts and will seek to 
broaden the coverage to other information providers.  Once the basic 
principle of H.R. 4922 is accepted, what arguments remain to resist its 
expansion.  The limited application of H.R. 4922 is surely temporary; what 
matters is the basic requirement, not its immediate application.  
 
	More importantly, law enforcement will still have the opportunity 
to intercept on-line communications over the internet or commercial 
on-line networks, by tapping into the facilities of the telecommunications 
companies. As critics of the earlier versions had noted the coverage of 
the on-line providers was largely redundant.  All these communications 
still pass over telephone lines.  
 
	Law enforcement does not need access at every point in a 
telecommunication in order to intercept it. Access at any one point is 
sufficient and that would be readily available since ultimately on-line 
communications must travel over the public switched telephone network 
which the bill requires be wiretap ready.  
 
	Moreover, given the commingled nature of digital communication 
lines, it is inevitable that more private information from third parties 
will be intercepted than would be the case with analog phones, and the 
minimization requirements in the bill will not prevent this.  
  
	In the end, this proposal will make our telecommunications 
structure more, not less vulnerable.  
 
	In its original form the FBI Digital Telephony proposal would have 
given the power to the Attorney General to impose standards on 
communication providers which would guarantee that their systems were 
wiretap-ready.  
	 
	Essentially, this would have created a centralized wiretapping 
system that threatened the privacy of the entire nation and was dependent 
for its security on a few select people. 
	 
	This raised the real concern that if electronic communications 
service providers must design their systems to allow and ensure FBI 
access, then the resulting mandatory "back doors" may become known to and 
be exploited by "criminals."  
 
	The new proposal contains the same risks. It would have the 
technical standards developed by the industry, through trade associations 
or standard-setting bodies, in consultation with the Attorney General.  
But it contains a "safe harbor" provision, which protects a carrier from 
sanction if it is in compliance with standards created by this approach.  
 
	The safe harbor provision virtually guarantees that the standards 
developed through the industry-based process will be adopted by all.  
Whether the standards are directly imposed by government or created by 
concerted industry action, in consultation with the government, makes 
little difference. The result is the same.  A centralized wiretapping 
capacity with all of its vulnerabilities will still be created.  
 
	Finally, we have grave concerns about the encryption provisions.  
The Edwards/Leahy version has been described as "neutral" on encryption. 
The bill provides that telecommunications providers do not need to decrypt 
data, unless they hold the key.  
 
	In the short term, this is an improvement over the earlier 
versions of the bill which would have created obligations to decrypt, but 
there are at least two longer term problems.  
 
	First, is the new presumption that industry has the affirmative 
responsibility to create special technical capacity for the government to 
snoop. Can there be any real doubt that the FBI will be back in the years 
to come asserting that its ability to intercept communications has been 
thwarted by easily available encryption and that an industry obligation, 
analogous to the new obligation to provide wiretap capacity, must be 
created.  
 
	Secondly, in some cases the telecommunications providers may well 
hold the key -- particularly as they expand the services they provide to 
their customers.  
 
	H.R. 4922 proposes a radical and expensive change in our 
telecommunications structure.  The threats it poses, now and 
prospectively, are real, but the need for it far less than evident or 
proven. We urge that your Committee not rush into consideration of this 
far reaching measure with so little time left in the session.  
 
	We thank you for your consideration of our views and we would be 
happy to sit down with you to discuss these issues.  
 
Sincerely, 
 
Ira Glasser                                   Laura Murphy Lee  
 
--endit-- 
 
The ACLU urges interested persons to contact the following members of  
Congress immediately: 
 
Rep. Jack Brooks			Sen. Howard Metzenbaum 
(202) 225-6565 (voice)			(202) 224-7494 (voice) 
(202) 225-1584 (fax)			(202) 224-5474 (fax) 
 
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