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The Center for Democracy and Technology /____/ Volume 3, Number 1
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A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST Volume 3, Number 1 January 17, 1997
CONTENTS: (1) FBI Issues Scaled Back Surveillance Capacity Notice
(2) Background on CALEA
(3) How to Subscribe/Unsubscribe
(4) About CDT, contacting us
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(1) FBI ISSUES SCALED BACK SURVEILLANCE CAPACITY NOTICE -- COST &
CAPABILITY ISSUES REMAIN
On Tuesday January 14 1997, the FBI issued a revised notice of proposed
surveillance capacity as required by the 1994 Communications Assistance for
Law Enforcement Act (CALEA - a.k.a. Digital Telephony). The notice details
projected increases in law enforcement wiretapping and other electronic
surveillance activity in the coming years.
While the latest notice appears far less expansive than the FBI's first
capacity notice issued in October of 1995, and while this notice, by
including the unprecedented release of baseline surveillance information on
a county-by-county basis, goes a long way towards satisfying some of CDT's
objections to the first notice, many serious issues remain. Specifically:
* Does the county-by-county approach of the latest surveillance capacity
request correspond to law enforcement's real needs?
* What is the expected cost for meeting the FBI's proposed capacity
needs?
* The latest capacity request lumps together interceptions of call
content and interceptions of dialing information (through pen register
and trap and trace devices). Does this increase surveillance
capacity available to law enforcement?
* Most importantly, issues of surveillance CAPABILITY remain on the
table. The FBI has taken a broad view of CALEA and has proposed
technical standards which, in CDT's view, go far beyond the scope of
CALEA and would dramatically increase law enforcement surveillance
authority. These issues are currently being negotiated in industry
standards setting bodies and will be a major issue in 1997.
In the coming weeks, CDT will work closely with other privacy advocates and
the telecommunications industry to determine whether the latest capacity
proposal reflects the reasonable needs of law enforcement.
CDT continues to believe that no funds should be released to implement
CALEA unless and until the FBI justifies its capacity and capability
requests and until we can be assured that CALEA will not be used by law
enforcement to expand its current surveillance authority.
The full text of the notice, FBI statements, and information on how the
public can submit comments on the notice are available at:
http://www.cdt.org/digi_tele/
CURRENT NOTICE PROVIDES DETAILED BASELINE SURVEILLANCE INFORMATION ON
COUNTY BY COUNTY BASIS
The FBI's original surveillance capacity notice, issued in October 1995,
drew substantial criticism from CDT and other privacy advocates, the
telecommunications industry, and the public as being overly broad and
unsupported and was later withdrawn.
In the latest notice, the FBI has responded to many of these criticisms by
providing detailed baseline information about the FBI's surveillance needs.
Among other things, the notice describes:
* Baseline information showing the one-day peak electronic surveillance
activity for each county in the United States between January 1, 1993
and March 1, 1995.
* A projection, based on past growth, of anticipated one-day peaks in
surveillance activity for each county in 1998 (the proposed "actual
surveillance capacity"), and
* A projection, based on past growth, of anticipated one-day peaks of
surveillance activity for each county by the year 2004 (the proposed
"maximum surveillance capacity").
The capacity requirements projected in this notice appear on first analysis
to be significantly less expansive than those in the FBI's 1995 request. In
1995, the FBI requested a surveillance capacity in major cities equal to as
many as 1 intercept for every 100 lines in service. There are approximately
160 million lines currently in service in the United States.
In the current request, the FBI projects that by the year 2004, law
enforcement will require the capacity to conduct up to 57,749 simultaneous
court-authorized wiretaps, and pen register and trap and trace
interceptions nationwide.
This is still a lot of electronic surveillance. CDT, through the Digital
Privacy and Security Working Group, is preparing a report at the request of
Senators Leahy and Specter on electronic surveillance that addresses, among
other questions, the adequacy of current privacy standards in light of
steady increases in government surveillance activity. The report will be
issued in the next several months.
________________________________________________________________________
(2) BACKGROUND ON CALEA
Under the Communications Assistance for Law Enforcement Act ("CALEA")
enacted in 1994, telecommunications carriers are required to ensure that
their advanced services and technologies do not impede court-approved law
enforcement surveillance. The FBI has a primary role in implementing the
law. Carriers must ensure that their systems have both the "capability" to
intercept communications using digital and other advanced technologies and
the "capacity" to intercept multiple subscribers at one time.
There is an on-going dispute about the capability requirements,
particularly the FBI's claim that cellular carriers must have the ability
to track their customers, but the January 14 notice is about the issue of
capacity. CALEA requires telephone companies to install additional
equipment, if the federal government agrees to pay for it, to accommodate
future anticipated law enforcement surveillance activity.
CALEA included a number of provisions to enhance privacy and to provide for
public oversight of the implementation process. As one of these
safeguards, Congress required the FBI to publish detailed capacity
requirements in the Federal Register, to justify its proposals, and to seek
public comments, before making them final.
HISTORY OF THE CAPACITY-SETTING PROCESS
In October 1995, the FBI published in the Federal Register a notice of
proposed capacity requirements for telecommunications carriers under CALEA,
combining interceptions of call content and interceptions of dialing
information (captured through pen registers and trap and trace devices).
The notice proposed requiring telephone companies and other
telecommunications common carriers to establish maximum surveillance
capacities equal to 1.0% of capacity (or 1 in 100 lines) in some densely
populated urban areas, falling off to 0.5% in other cities and 0.25% in the
rest of the country
The October 1995 notice was widely criticized as vague, too expansive, and
unsupported (the FBI did not release any of the historical data that it had
collected). The FBI withdrew the proposal and indicated that it would
reissue it in light of the various comments submitted and further
discussions with industry.
For more information, see CDT Policy Post Vol. 1 No.26
(http://www.cdt.org/publications/pp261020.html)
WHAT IS SIGNIFICANT ABOUT THE NEW PROPOSAL
The revised proposal was accompanied by a large statistical appendix
consisting of the baseline data, showing county by county for the entire
country past law enforcement electronic surveillance activity. This data
had never before been made public. The notice also projected future
activity, using actual numbers, instead of a percentage of capacity.
With the FBI's disclosure of the baseline data on Tuesday, CALEA has
served an important public accountability function by requiring the FBI to
disclose in detail the historic extent of law enforcement electronic
surveillance activity and projections for future growth in government
surveillance. CALEA was intended to bring the decision-making process
about law enforcement's requirements for the nation's telephone system out
into the public. (Prior to CALEA, decisions about intercept capacity and
equipment design were made in one-on-one negotiations between the FBI and
telephone companies, with no public oversight.)
INCREASES IN THE AMOUNT OF ELECTRONIC SURVEILLANCE
The number of wiretaps has increased yearly in recent years (18% from 1993
to 1994, 43% since 1984) and would be expected to continue to increase,
with or without CALEA. The use of pen registers and trap and trace
devices, which capture numbers dialed but not call content, has grown at
even higher rates. Indeed, the deployment of advanced communications
technologies was expected to accelerate these trends, regardless of CALEA.
As the FBI said in its authorization and budget submission for fiscal year
1992, long before CALEA was adopted, "In the long term, digital telephone
technology will enhance the FBI's ability to collect, share and analyze
information. Many of these enhancements will come without any FBI
development effort, driven by consumer demand."
In the capacity notice on January 14, the FBI estimated an annual yearly
growth of 6% for wireline interceptions and 14% for wireless interceptions
through 1998, and growth rates thereafter of 4.5% for wireline and 8% for
wireless.
WHAT THIS IS NOT ABOUT
While CALEA is certainly controversial, it is important to note what the
debate over CALEA implementation is all about. The FBI is not seeking
authority to randomly wiretap any percentage of telephones. CALEA did not
change the legal requirement that law enforcement must obtain a court order
for wiretaps and other forms of electronic surveillance.
WHAT TO EXPECT IN COMING MONTHS
The new notice is subject to a 30 day comment period, in which telephone
companies, privacy advocates and members of the public can submit comments.
Any person can submit comments, directing them to the Telecommunications
Industry Liaison Unit, FBI, P.O. Box 220450, Chantilly, VA 20153-0450. The
Bureau has not made arrangements for on-line submissions. Hard-copy
comments must be submitted by mail, in triplicate.
CDT is prepearing comments on the January 14 notice and will post them at
http://www.cdt.org/digi_tele/ on or before February 14. Please check back
for details.
After the notice is finalized, telephone companies will then be required to
assess their current systems, to determine if they already have the
capacity to meet law enforcement's projected needs. Those that cannot meet
the published capacity standards must notify the FBI and seek reimbursement
for the cost of expanding their surveillance capacity. If the government
does not agree to pay a company, it need not take any further action -- a
company is deemed to be in compliance if the government declines to pay for
additional capacity.
FOR FURTHER INFORMATION CONTACT:
James X. Dempsey or Daniel J. Weitzner
Center for Democracy and Technology +1.202.637.9800
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(4) 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 democratic values and
constitutional civil liberties in new computer and communications
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End Policy Post 3.01 01/17/97
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