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  **         **      **       ***               POLICY POST
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  **         **      **       ***               November 6, 1995
  **         **      **       ***               Number 28
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  CENTER FOR DEMOCRACY AND TECHNOLOGY
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  A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST Number 28                      November 6, 1995

CONTENTS: (1) Senator Leahy Calls on FBI to Justify Surveillance 
Capacity
              Request 
          (2) Text of Senator Leahy's Letter to FBI Director Freeh
          (3) Review of Digital Telephony Implementation to Date
          (4) How To Subscribe To The CDT Policy Post Distribution List
          (5) About CDT, Contacting Us

This document may be re-distributed freely provided it remains in its
entirety. Excerpts may be re-posted by permission (editor@cdt.org)
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(1) SENATOR LEAHY CALLS ON FBI TO JUSTIFY SURVEILLANCE CAPACITY REQUESTS

FBI Must Disclose Data to Ensure Public Accountability

US Senator Patrick Leahy (D-VT) on Friday November 3rd called on the FBI 
to disclose critical information justifying the its recent request for 
wiretapping capacity under the Communications Assistance for Law 
Enforcement Act (CALEA, a.k.a. the "Digital Telephony" law).  

CDT commends Senator Leahy for his leadership on this issue and his 
efforts to ensure a detailed public discussion of the necessity of the 
FBI's request. CDT believes that Congress should not appropriate any 
funds to cover the costs of capacity modifications until the FBI 
justifies its need for the proposed surveillance capacity. 

The FBI's proposal, published in the October 16 Federal Register, has 
sparked a great deal of concern from privacy advocates and the 
telecommunications industry that the FBI is seeking to expand its 
ability to wiretap digital telecommunications networks beyond its 
current activity the analog environment. In response to this concern, 
Senator Leahy sent the attached letter to FBI Director Freeh calling on 
the FBI to disclose two critical pieces of information used by the 
Bureau to determine its capacity needs: a survey of historical 
surveillance activity and an analysis of that activity.  The FBI's 
announcement of the proposed surveillance capacity did not contain this 
information.

Under CALEA, the FBI is required to publish requests for surveillance 
capacity in order to ensure public oversight and accountability over law 
enforcement surveillance activity.  In addition, CALEA requires that the 
government reimburse telecommunications carriers for any modifications 
made to meet the capacity requests. If the government fails to reimburse 
telecommunications carriers for capacity modifications, carriers are not 
required to make any changes to their networks.  Congress is currently 
considering legislation to appropriate funding for the proposal.

These provisions of CALEA were specifically designed to ensure a public 
debate over the necessity and costs of law enforcement surveillance 
capacity.  

CDT will continue to work closely with Senator Leahy, other members of 
Congress, and representatives from the public interest community and the 
telecommunications industry to ensure that the public accountability 
provisions of the law are followed, and that Congress carefully examines 
the basis of the FBI's request before approving funding for the 
proposal.

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(2)  LETTER FROM SENATOR LEAHY TO FBI DIRECTOR FREEH

November 3, 1995

The Honorable Louis J. Freeh
Federal Bureau of Investigation
J. Edgar Hoover Building
9th Street and Pennsylvania Avenue
Washington, D.C.  20035

Dear Director Freeh:

Congress took the important step in the last Congress of passing the 
"Communications Assistance for Law Enforcement Act" (CALEA) to ensure 
that in cases of significant criminal activity, ranging from terrorism 
to kidnapping, law enforcement would continue to be able to execute 
court-authorized electronic surveillance.  Our Nation's law enforcement 
agencies are loosing their capability to use that important tool in the 
face of new and advanced telecommunications technologies.

Just as significantly, this new law also brings decisions affecting the 
privacy of our Nation's telephone system under statutory guidance and 
into the sunshine.  CALEA requires that law enforcement's demands 
regarding the number of wiretap orders that telephone companies must be 
able to service simultaneously, are published in the Federal Register 
and scrutinized in a public procedure.

The process set up in CALEA is working.  The Federal Bureau of 
Investigation recently published in the Federal Register a proposed 
notice of law enforcement's capacity demands predicated upon an 
historical baseline of electronic surveillance activity and an analysis 
of that activity.  The Federal Register notice did not include 
publication of those two documents.

Please provide me with copies of those two documents, which I also urge 
you to release to the public and publish in the Federal Register to 
ensure the fullest dissemination of the information.

I appreciate your prompt attention to this matter.

Sincerely,

[signature]
PATRICK J. LEAHY
United States Senator

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(3) REVIEW OF DIGITAL TELEPHONY PROCESS TO DATE

FBI Must Address Critical Questions About The Proposed Capacity Notice

On October 16, 1995, the FBI published in the Federal Register its 
proposed notice of surveillance capacity, as required by CALEA.  The FBI 
has requested that telecommunications carriers, depending on the 
geographic area served by their network and the frequency of 
surveillance orders in those areas, reserve up to 1% of the capacity of 
each switch, feature, or service for law enforcement to conduct 
simultaneous electronic surveillance pursuant to proper legal 
authorization. 

CDT hopes that the publication of the basis of the FBI's surveillance 
capacity request will help to answer several critical questions about 
the proposal.  These include:

* ARE THE PROPOSED SURVEILLANCE CAPACITY REQUIREMENTS CONSISTENT WITH
  LAW ENFORCEMENT'S REAL NEEDS?

Is the FBI seeking to expand its surveillance capacity in digital 
telecommunications networks beyond its current activity in the analog 
environment?

The FBI has requested that, at a minimum, all telecommunications 
carriers nationwide ensure that .05% (.25% after 1998) of the 
"engineered capacity" of their networks be reserved for simultaneous 
surveillance activity, including wiretaps, trap and trace, and pen-
registers (devices used to capture dialed number information).  Greater 
capacity would be required in some areas (up to 1% by 1998 in the most 
populated parts of the US). 

Although there is some dispute about what is meant by the term 
"engineered capacity", the proposed notice appears to allow law 
enforcement the ability to conduct a great deal more surveillance 
activity than they currently undertake (estimated to be between 850 and 
1,000 per year nationwide).

* WHAT ARE THE REAL NUMBERS?

How much capacity is being asked for and how does it compare with 
today's surveillance levels?

The proposed surveillance capacity requirements are based on a 
percentage of the "engineered capacity" of the telecommunications 
network.  In the notice, the FBI defines "engineered capacity" as "the 
maximum number of subscribers that can be served by that equipment, 
facility, or service".  There is some dispute over the meaning of this 
term.

Taken on its face, the FBI's definition of "engineered capacity" appears 
to grant the FBI the capacity to conduct up to 1 wiretap for every 100 
telephone subscribers in densely populated areas.  The FBI disputes this 
number, and has stated that "engineered capacity" refers to the number 
of subscribers who can be serviced *simultaneously* by a particular 
facility, equipment, or service.  The FBI maintains that by this 
definition, the actual number of simultaneous wiretaps would be far 
lower than some have estimated.

Making public the basis of the FBI's surveillance capacity requests will 
help to clarify this issue.  However, regardless of the actual number, 
the FBI must demonstrate that it is not requesting unnecessary 
surveillance capacity.

* DIRECT NEGOTIATIONS WITH TELECOMMUNICATIONS CARRIERS FOR SURVEILLANCE 
  CAPACITY ABOVE THE NATIONAL MINIMUM?

The FBI has proposed to undertake direct negotiations with 
telecommunications carriers for surveillance capacity beyond the 
proposed national minimum standard requested in the notice.  

When Congress passed CALEA last year, it created a public process to 
bring law enforcement's electronic surveillance ability under public 
scrutiny in order to balance the new authority to influence the design 
of telecommunications networks.  

The public accountability provisions of CALEA require the FBI to publish 
*all* surveillance capacity requests.  Congress must take a critical 
look at this aspect of the FBI's proposal, and should not appropriate 
funds until the FBI agrees to disclose all capacity requests, as 
required by the law.

NEXT STEPS 

Public Accountability Requirements Of The Statute Must Be Met

CDT will work closely with Senator Leahy and others to ensure that the 
FBI discloses the basis for its recent surveillance capacity request.  
Once the information is made available, we will work with Senator Leahy, 
other interested members of Congress, public interest groups and the 
telecommunications industry to ensure that the FBI does not receive 
unnecessary surveillance capacity.  We will also work to ensure that no 
funding is made available until the public accountability provisions of 
the law are satisfied. 

FOR MORE INFORMATION:

Visit CDT's Digital Telephony Web Page
 
  http://www.cdt.org/digtel.html

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(4) HOW TO SUBSCRIBE TO THE CDT POLICY POST LIST

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(5) ABOUT THE CENTER FOR DEMOCRACY AND TECHNOLOGY/CONTACTING US

The Center for Democracy and Technology is a non-profit public interest
organization based in Washington, DC. The Center's mission is to develop 
and advocate public policies that advance constitutional civil liberties 
and democratic values in new computer and communications technologies.

Contacting us:

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End Policy Post No. 28                                        11/6/95
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