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1994-07-17
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############ ########## Volume 2 Number 8
############ ########## April 17, 1992
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|~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~| EFFector
| | ONline
| DIGITAL TELEPHONY |
| The FBI/DOJ Initiative: | eff@eff.org
| An EFF Editorial |
| | 155 Second Street
| ISDN YOU CAN AFFORD | Cambridge, MA 02141
| A Report from the EFF/ISDN Lab | (617) 864-0665
| |
| | 666 Pennsylvania Ave.SE
| | Washington, DC 20003
| | (202) 544-9237
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
REACH OUT AND TAP SOMEONE?
An Editorial
By Mike Godwin (mnemonic@eff.org)
You can imagine how difficult the invention of the telephone made law
enforcement in the late 19th and early 20th century. Prior to the spread
of telephone networks, criminals had to meet *in person* to conspire.
If known criminals could be seen meeting at known criminal hangouts,
law-enforcement agents would often be tipped off that something was up.
Once the telephone became widespread, however, it became possible for
criminals to plan crimes without being in the same place--without even
being in the same town! The advent of telecommunications had made
detecting and deterring crime a bit harder. Because of this we might
understand, if not entirely sympathize with, a law-enforcement agent in
1900 who believed that telephones should be banned altogether.
By the same token, we can understand the motivations of FBI Director
William Sessions, who, along with the Department of Justice, wants to
see a law passed that would prevent advances in telecommunications
technology from making wiretaps more difficult. But that doesn't mean we
should be sympathetic to the FBI/DOJ initiative, which would shift the
burden of making wiretaps feasible from the government to the phone
companies (and to other electronic communications providers such as
CompuServe, Prodigy, and small BBSs). Considered as a whole, this
initiative is based on false technological premises and questionable
philosophical ones.
The initiative,called "Digital Telephony," would "require providers of
electronic communications services and private branch exchanges to
ensure that the Government's ability to lawfully intercept
communications is unimpeded by the introduction of advanced digital
telecommunications technology or any other telecommunications
technology." The initiative would also require that changes or additions
in communications software or hardware be paid for through increased
rates to consumers. All changes and additions to the nation's
telecommunications system done under the initiative would be
administered by the Federal Communications Commission (in cooperation
with the U.S. Attorney General). The initiative also provides that, if
requested by the Attorney General, "any Commission proceeding concerning
regulations, standards or registrations issued or to be issued under
authority of this section shall be closed to the public." In effect, the
FCC would compel and supervise the incorporation of wiretapping software
and hardware into the upgraded digital telephone system. And, if the
Attorney General wished it, this action could take place without public
review.
On the technology side, telephone experts question the Justice
Department's assertion that "the emergence of digital telecommunications
technology will preclude the FBI and all of law enforcement from being
able to intercept electronic communications[,] thus all but eliminating
a statutorily sanctioned, court authorized and extraordinarily
successful investigative technique." Few of these experts believe that
digital telephony itself poses the risk of making wiretapping wholly
impossible; at most, say some experts, wiretapping of digital lines may
be more difficult. And it should be noted that digital telephone service
is already in place at many sites, yet Director Sessions told Congress
just this year that there has not been a single case in which the FBI
has been unable to implement a wiretap.
If wiretapping is not about to become obsolete, why are the FBI and the
Justice Department eager to impose upon communications providers the
obligation to build in wiretapping capability? One possible explanation
lies in last year's effort by the Department of Justice (in S. 266) to
expand government authority to compel phone-companies to "ensure that
communications systems permit the government to obtain the plain text
contents of voice, data, and other communications when appropriately
authorized by law." On its face, this language would have outlawed the
phone companies' carrying of encrypted communications if the government
could not decrypt those communications into their "plain text contents."
Far more than digital telephone service itself, encryption poses the
risk of making the interception and reading of electronic communications
immensely difficult if not impossible. Talk to law enforcement personnel
who've considered the problem, and they'll tell you they're worried
about the increasing use of commercial encryption, since it would give
criminals the potential to make their communications, even when
intercepted, impossible to read. But for the same reason, noncriminal
uses of encryption are also growing--businesses and individuals have
valid reasons for wanting to keep their communications private. That's
why a coalition of industry and civil-liberties groups opposed S. 266
last year and managed to get it killed.
That coalition might have had a harder time, however, if the FBI and the
Justice Department had already passed their Digital Telephony
initiative. If this initiative had already been in place, the
government could have urged lawmakers to outlaw encryption in order to
*protect the phone companies' investment in built-in wiretapping
capability*. "You've already required the phone companies to build in
wiretapping," the FBI could tell Congress. "All we're asking now is that
you ensure that the intercepted communications are readable."
This hypothetical case underscores the philosophical problems civil
libertarians have with the Digital Telephony initiative. Historically,
when advances in communications technology have raised problems for law
enforcement, the government has coped with those problems by developing
advances in its own investigatory techniques. For example, when
telephone systems made it hard to monitor suspects' plans and
activities, the government didn't outlaw telephones--it learned how to
implement wiretaps. Until now, U.S. law-enforcement agencies normally
have responded to new problems in detecting criminal communications by
developing innovative investigative tools.
And that's what they should be doing in response to whatever new
problems are posed by digital telephony and encryption.