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CWD--Wiretap In the Night
CyberWire Dispatch // September // Copyright (c) 1996 //
Jacking in from the "Smoked Filled Room" Port:
Washington, DC -- Federal provisions funding the digital telephony bill
and roving wiretaps, surgically removed earlier this year from an
anti-terrorism bill, have quietly been wedged into a $600 billion
omnibus spending bill.
The bill creates a Justice Department "telecommunications carrier
compliance fund" to pay for the provisions called for in the digital
telephony bill, formally known as the Communications Assistance in Law
Enforcement Act (CALEA). In reality, this is a slush fund.
Congress originally budgeted $500 million for CALEA, far short of the
billions actually needed to build in instant wiretap capabilities into
America's telephone, cable, cellular and PCS networks. This bill now
approves a slush fund of pooled dollars from the budgets of "any agency"
with "law enforcement, national security or intelligence
responsibilities." That means the FBI, CIA, NSA and DEA, among others,
will now have a vested interest in how the majority of your
communications are tapped.
The spending bill also provides for "multipoint wiretaps." This is the
tricked up code phase for what amounts to roving wiretaps. Where the
FBI can only tap one phone at a time in conjunction with an
investigation, it now wants the ability to "follow" a conversation from
phone to phone; meaning that if your neighbor is under investigation and
happens to use your phone for some reason, your phone gets tapped. It
also means that the FBI can tap public pay phones... think about that
next time you call 1-800-COLLECT.
In addition, all the public and congressional accountability provisions
for how CALEA money was spent, which were in the original House version
(H.R. 3814), got torpedoed in the Senate Appropriations Committee.
Provisions stripped out by the Senate:
-- GONE: Money isn't to be spent unless an implementation plan is sent
to each member of the Judiciary Committee and Appropriations committees.
-- GONE: Requirement that the FBI provide public details of how its new
wiretap plan exceeds or differs from current capabilities.
-- GONE: Report on the "actual and maximum number of simultaneous
surveillance/intercepts" the FBI expects. The FBI ran into a fire storm
earlier this year when it botched its long overdue report that said it
wanted the capability to tap one out of every 100 phones
*simultaneously*. Now, thanks to this funding bill, rather than having
to defend that request, it doesn't have to say shit.
-- GONE: Complete estimate of the full costs of deploying and
developing the digital wiretapping plan.
-- GONE: An annual report to Congress "specifically detailing" how all
taxpayer money -- YOUR money -- is spent to carry out these new wiretap
"No matter what side you come down on this (digital wiretapping) issue,
the stakes for democracy are that we need to have public accountability,"
said Jerry Berman, executive director of the Center for Democracy and
Although it appeared that no one in congress had the balls to take on
the issue, one stalwart has stepped forward, Rep. Bob Barr (R-Ga.). He
has succeeded in getting some of the accountability provisions back into
the bill, according to a Barr staffer. But the fight couldn't have been
an easy one. The FBI has worked congress relentlessly in an effort to
skirt the original reporting and implementation requirements as outlined
in CALEA. Further, Barr isn't exactly on the FBI's Christmas card list.
Last year it was primarily Barr who scotched the funding for CALEA
during the 104th Congress' first session.
But Barr has won again. He has, with backing from the Senate, succeeded
in *putting back* the requirement that the FBI must justify all CALEA
expenditures to the Judiciary Committee. Further, the implementation
plan, "though somewhat modified" will "still have some punch," Barr's
staffer assured me. That includes making the FBI report on its
expected capacities and capabilities for digital wiretapping. In other
words, the FBI won't be able to "cook the books" on the wiretap figures
in secret. Barr also was successful in making the Justice Department
submit an annual report detailing its CALEA spending to Congress.
However, the funding for digital wiretaps remains. Stuffing the funding
measures into a huge omnibus spending bill almost certainly assures its
passage. Congress is twitchy now, anxious to leave. They are chomping
at the bit, sensing the end of the 104th Congress' tortured run as the
legislative calender is due to run out sometime early next week. Then
they will all literally race from Capitol Hill at the final gavel,
heading for the parking lot, jumping in their cars like stock car
drivers as they make a made dash for National Airport to return to their
home districts in an effort to campaign for another term in the loopy
world of national politics.
Congress is "going to try to sneak this (spending bill) through the back
door in the middle of the night," says Leslie Hagan, legislative
director for the National Association of Criminal Defense Lawyers. She
calls this a "worst case scenario" that is "particularly dangerous"
because the "deliberative legislative process is short-ciricutied."
Such matters as wiretapping deserve to be aired in the full sunlight of
congressional hearings, not stuffed into an 11th hour spending bill.
This is legislative cowardice. Sadly, it will most likely succeed.
And through this all, the Net sits mute.
Unlike a few months ago, on the shameful day the Net cried "wolf" over
these same provisions, mindlessly flooding congressional switchboards
and any Email box within keyboard reach, despite the fact that the
funding provisions had been already been stripped from the
anti-terrorism bill, there has been no hue-and-cry about these most
Yes, some groups, such as the ACLU, EPIC and the Center for Democracy
and Technology have been working the congressional back channels,
buzzing around the frenzied legislators like crazed gnats.
But why haven't we heard about all this before now? Why has this bill
come down to the wire without the now expected flurry of "alerts"
"bulletins" and other assorted red-flag waving by our esteemed Net
guardians? Barr's had his ass hanging in the wind, fighting FBI
Director Louis "Teflon" Freeh; he could have used some political cover
from the cyberspace community. Yet, if he'd gone to that digital well,
he'd have found only the echo of his own voice.
And while the efforts of Rep. Barr are encouraging, it's anything from a
done deal. "As long as the door is cracked... there is room for
mischief," said Barr's staffer. Meaning, until the bill is reported
and voted on, some snapperhead congressman could fuck up the process yet
We all caught a bit of a reprieve here, but I wouldn't sleep well. This
community still has a lot to learn about the Washington boneyard.
Personally, I'm a little tired of getting beat up at every turn. Muscle
up, folks, the fight doesn't get any easier.
Declan McCullagh <[email protected]> contributed to this report.