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The Center for Democracy and Technology /____/ Volume 4, Number 1
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A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST Volume 4, Number 1 February 6, 1998
CONTENTS: (1) Digital Wiretap Law at Key Juncture
(2) FBI Pursues Expanded Surveillance Capabilities
(3) Industry-FBI Negotiations: Government Seeks Something for
Nothing
(4) CDT Will Urge FCC to Intervene to Protect Privacy
(5) CDT's Privacy Recommendations
(6) CDT's CALEA Website Updated
(7) How to Subscribe/Unsubscribe
(8) About CDT, Contacting us
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(1) DIGITAL WIRETAP STATUTE AT KEY JUNCTURE
What started as a law intended to preserve law enforcement's ability to
conduct wiretaps on digital networks is now being used by the FBI in an
effort to enhance its surveillance capabilities. The struggle over the
scope of the 1994 law is being waged in Congress, at the Federal
Communications Commission (FCC) and in negotiations between the telephone
industry and the FBI. The status of the debate and its implications for
privacy are reviewed in a recent CDT memo posted at
http://www.cdt.org/digi_tele/status.html.
(2) FBI PURSUES EXPANDED SURVEILLANCE CAPABILITIES
Congress enacted the Communications Assistance for Law Enforcement Act
(CALEA)--popularly called the 'digital telephony'law--in 1994. The FBI is
now trying to use the law to require special surveillance features in the
nation's land-based and wireless telephone systems. Telephone companies
have yielded to some of the FBI's demands and have resisted others, but now
face pressure to compromise further.
* Under pressure from the FBI, the wireless phone industry has agreed to
provide law enforcement with the capability to track the location of
cellular phone users.
* The telephone industry has also agreed that carriers using increasingly
common 'packet switching' protocols may provide to the government the full
content of customer communications even though the government is only
legally authorized to intercept the less sensitive addressing data that
indicates who is calling whom.
Despite these concessions, the FBI remains unsatisfied with the industry's
proposed compliance plan. The FBI continues its push for additional
surveillance features, including the ability to --
* continue monitoring parties on a conference call after the subject of
the wiretap order has dropped off the call;
* collect detailed information identifying each party on a call,
including parties not the subject of investigation; and
* receive instant notification when a customer has a voice mail waiting
or makes any changes in service.
The FBI also has proposed requiring carriers to install capacity for far
more surveillances than ever before. See
http://www.cdt.org/digi_tele/970218_comments.html.
(3) INDUSTRY - FBI NEGOTIATIONS: GOVERNMENT SEEKS SOMETHING FOR NOTHING
Congress set October 25, 1998 as the deadline for complying with CALEA. It
has been clear for some time that the deadline can't be met: the FBI's
insistence on adding surveillance functions outside the scope of the law
snarled the process of drafting technical standards. Congress foresaw that
compliance might take longer than expected, so it gave companies the right
to seek delays from the FCC or the courts.
The FBI, however, is offering carriers special extensions (called
'forbearances') if they agree to develop the additional surveillance
capabilities. Since the carriers are *already* entited to an extension of
time under CALEA, the FBI's negotiating ploy is seeking something for
nothing. Manufacturers or carriers may be tempted to accept the offer to
avoid the cost of litigation. They would do so, however, at the expense of
privacy and control over network design.
(4) CDT WILL URGE FCC TO INTERVENE TO PROTECT PRIVACY
CALEA gives the FCC an oversight role in how the law is applied, but the
Commission has been reluctant so far to intervene. In August 1997, the
cellular industry, CDT and the Electronic Frontier Foundation filed
pleadings at the FCC urging it to find that the FBI's demands for
additional surveillance capability go beyond the scope of CALEA. The
petitions are still pending. See http://www.cdt.org/digi_tele/#fcc.
Instead, the FCC in October began considering an FBI proposal to require
telephone company employees to undergo background investigations and to
sign nondisclosure agreements. The FBI is also urging the Commission to
limit the ability of telephone companies to verify the validity of
purported wiretap orders.
In comments to be filed on February 11, CDT will urge the FCC to balance
the interests of law enforcement with the interests of privacy and
technological innovation, as Congress intended. The full text of CDT's
comments will be posted at http://www.cdt.org.
(5) CDT'S PRIVACY RECOMMENDATIONS
CDT believes that several steps should be taken to restore CALEA to the
spirit of balance it originally incorporated. These steps would preserve
law enforcement's basic surveillance capability (without the specific and
highly detailed enhancements sought by the FBI), and yet would protect
privacy in the face of the increasing surveillance potential of the new
technology:
* Congress should put an end to the controversy over enhanced
surveillance capabilities and reaffirm its narrow intent for CALEA by
authorizing the FBI to begin reimbursing carriers and switch manufacturers
to implement the industry's interim standard, minus wireless phone tracking
and minus any premature treatment of packet switching systems that does not
require the separation of call content from addressing information.
* Congress should deny the FBI the ability to impose redundant capacity
requirements on carriers, by limiting expenditure of the capacity
reimbursement funds.
* Congress should extend the October 1998 deadline, so that the FBI
cannot use the threat of non-compliance sanctions to force industry to
capitulate. However, extension of the deadline should not be traded for
enhanced capability.
* The FCC should assure itself of the security of the networked
surveillance administration systems that carriers will be installing to
comply with CALEA.
* The FCC should drop its proposals for intrusive background
investigations of carrier personnel.
* The FCC and/or Congress should launch an inquiry into the privacy
implications of surveillance in a packet switching environment.
* Since developments in technology are already increasing surveillance
capabilities, a probable cause standard for government access to location
tracking information should be established.
* The standard for governmental access to other transactional information
(through pen registers and trap and trace devices) should be increased to
require an affirmative finding by a judge that the information sought is
relevant and material to an on-going investigation. (The current standard
reduces the role of the judge to a mere rubber-stamp.)
(6) CDT CALEA WEBSITE UPDATED
We have recently revamped and updated our CALEA website, at
http://www.cdt.org/digi_tele/
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(8) 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
technologies.
Contacting us:
General information: info@cdt.org
World Wide Web: http://www.cdt.org/
Snail Mail: The Center for Democracy and Technology
1634 Eye Street NW * Suite 1100 * Washington, DC 20006
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End Policy Post 4.1 2/6/98
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