FLASH: FBI's Draft Digital Telephony Bill: EFF Summary and Analysis (fwd)

[Mike Godwin <mnemonic@eff.org>]

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From postmaster Wed Feb 23 22:51:01 1994
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Date: Wed, 23 Feb 1994 22:48:55 -0600
To: eff-staff, eff-board
From: djw@eff.org (Daniel J. Weitzner)
Subject: FLASH: FBI's Draft Digital Telephony Bill: EFF Summary and Analysis

Electronic Frontier Foundation Statement on FBI Draft Digital Telephony Bill

        EFF has received a draft of the FBI's new, proposed "Digital
Telephony" bill.  After initial analysis, we strongly condemn bill, which
would require all common carriers to construct their networks to deliver to
law enforcement agencies, in real time, both the contents of all
communications on their networks and the "signalling" or transactional
information.  

        In short, the bill lays the groundwork for turning the National
Information Infrastructure into a nation-wide surveillance system, to be
used by law enforcement with few technical or legal safeguards.  This image
is not hyperbole, but a real assessment of the power of the technology and
inadequacy of current legal and technical privacy protections for users of
communications networks.

        Although the FBI suggests that the bill is primarily designed to
maintain status quo wiretap capability in the face of technological
changes, in fact, it seeks vast new surveillance and monitoring tools. 
Among the new powers given to law enforcement are:

1. Real-time access to transactional information creates the ability to
monitor individuals in real time.

        The bill would require common carrier network (telephone companies
and anyone who plans to get into the telephone business, such as cable TV
companies) to deliver, in real time, so called "call setup information." 
In the simplest case, call setup information is a list of phone numbers
dialed by a given telephone currently under surveillance.  As we all come
to use electronic communications for more and more purposes, however, this
simple call setup information could also reveal what movies we've order,
which online information services we've connected to, which political
bulletin boards we've dialed, etc. With increasing use of
telecommunications, this simple transactional information reveals almost as
much about our private lives as would be learned if someone literally
followed us around on the street, watching our every move.

        We are all especially vulnerable to this kind of surveillance,
because, unlike wiretapping the *content* of our communications, it is
quite easy for law enforcement to get permission to obtain this
transactional information.  Whereas courts scrutinize wiretap requests very
carefully, authorizations for access to call setup information are
routinely granted with no substantive review.  Some federal agencies, such
as the IRS, even have the power to issue administrative subpoenas on their
own, without appearing before a court.  

        The real impact of the FBI proposal turns, in part, on the fact
that it is easy to obtain court approval for seizing transactional data.

       The change from existing law contained in the FBI proposal is that
carriers would have to deliver this call setup information *in real time*,
directly to a remote listening post designated by law enforcement.  Today,
the government can obtain this information, but generally has to install a
device (called a 'pen register') which is monitored manually at the
telephone company switching office.

2. Access to communication and signalling information for any mobile
communication, regardless of location allows tracking of an individual's
movements.

        The bill requires that carriers be able to deliver either the
contents or transactional information associated with any subscriber, even
if that person is moving around from place to place with a cellular or PCS
phone.  It is conceivable that law enforcement could use the signalling
information to identify that location of a target, whether that person is
the subject of a wiretap order, or merely a subpoena for call setup
information.

        This provision takes a major step beyond current law in that it
allows for a tap and/or trace on a *person*, as opposed to mere
surveillance of a telephone line.

3. Expanded access to electronic communications services, such as the
Internet, online information services, and BBSs.

        The privacy of electronic communications services such as
electronic mail is also put at grave risk.  Today, a court order is
required under the Electronic Communications Privacy Act to obtain the
contents of electronic mail, for example.  Those ECPA provisions would
still apply for the contents of such messages, but the FBI bill suggests
that common carriers might be responsible for delivering the addressing
information associated with electronic mail and other electronic
communications.  For example, if a user connects to the Internet over local
telephone lines, law enforcement might be able to demand from the telephone
company information about where the user sent messages, and into which
remote systems that user connects.  All of this information could be
obtained by law enforcement without every receiving a wiretap order.

4. The power to shut down non-compliant networks

        Finally, the bill proposes that the Attorney General have the power
to shut down any common carrier service that fails to comply with all of
these requirements.  Some have already called this the "war powers"
provision.  Granting the Department of Justice such control over our
nation's communications infrastructure is a serious threat to our First
Amendment right to send and receive information, free from undue government
intrusion.

********************************

The posting represents EFF's initial response to the new FBI proposal. 
Several documents, including the full text of the proposed bill and a more
detailed section-by-section analysis are available by anonymous ftp on
EFF's ftp site.

This docuemnt is digtel94.announce

The documents can be located via ftp, gopher, or www, as follows:

ftp://ftp.eff.org/pub/EFF/Policy/Digital_Telephony/digtel94_bill.draft
ftp://ftp.eff.org/pub/EFF/Policy/Digital_Telephony/digtel94_analysis.eff
ftp://ftp.eff.org/pub/EFF/Policy/Digital_Telephony/digtel94.announce

for gopher, same but replace first part with:

gopher://gopher.eff.org/00/EFF/...

for WWW, same but replace first part with:

http:/www.eff.org/ftp/EFF/...

********************************
Press inquiries, contact:

Jerry Berman, Executive Director <jberman@eff.org>
Daniel Weitzner, Senior Staff Counsel <djw@eff.org>

+1 202-347-5400




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......................................................................
Daniel J. Weitzner, Senior Staff Counsel              <djw@eff.org>
Electronic Frontier Foundation                        202-347-5400 (v) 
1001 G St, NW  Suite 950 East                         202-393-5509 (f)
Washington, DC 20001

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