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FBIPHONE.TXT
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1994-07-17
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========================================================================
From The Electronic Frontier Foundation FTP Archives (ftp.eff.org)
EFF 155 Second Street Cambridge, MA 02141 +1 617 864 0665
eff@eff.org
========================================================================
ANALYSIS OF THE FBI PROPOSAL REGARDING DIGITAL TELEPHONY
Executive Summary
Although the FBI has characterized its proposed "Digital Telephony"
legislation as relating to the preservation of government's ability to
engage in authorized wiretapping, the proposal actually requires that
all communications and computer systems be designed to facilitate
interception of private messages, on a concurrent and remote basis --
thus imposing new engineering standards that go far beyond any existing
law. As currently drafted, the proposal would impose substantial costs
and create significant uncertainties, despite the absence of any clear
showing that the proposed measures would be either effective or
necessary. In addition, the proposal raises serious security and
privacy concerns.
Beginning some time last year, the FBI has expressed concern that
technological changes occurring in the telecommunications industry might
have an adverse affect on the ability of law enforcement officials to
conduct lawful, authorized wiretapping. For example, the FBI has raised
questions about its ability to extract individual telephone calls from
multiplexed signals sent over light fibers using new digital protocols.
Various FBI proposals have generated concern on the part of industry
that the security and privacy of electronic communications and computer
systems might be weakened and that the competitiveness or technical
advancement of various systems might be undercut. No one in industry
challenges the FBI's right to cooperation in seeking to implement
wiretaps or disagrees with the proposition that law enforcement
officials need communications interception tools to do their vital job.
The communications industry, network users and public interest groups
are concerned with the broad sweep of the FBI's draft proposal and the
potential uncertainties and costs it would impose. This memorandum
explains the basis for those concerns.
Although the FBI proposal is described as relating to "digital
telephony," it actually applies to all forms of communication, including
all computer networks. The proposal requires that equipment be designed
to give access to communications on a "concurrent" basis, regardless of
the mobility of a target, in isolation from messages being exchanged by
any other persons. These requests may have complex and differing
application in different contexts, but they would certainly introduce
additional costs and substantial uncertainties for both equipment
manufacturers and everyone who offers messaging service to others.
These days, the list of those covered by the proposal ("providers of
electronic communications services" and "PBX owners") includes just
about everyone. Because the wiretap statute was written to protect the
privacy of a broad range of communications types, and because of the
growing interdependence and intermixing of all forms of communications,
the statutory language of the FBI proposal could turn out to require
redesign or expensive alteration of:
(1) public electronic mail systems, like those offered by MCI, AT&T
and a host of other companies and individuals;
(2) all telephone switches and the sophisticated equipment used by
long distance carriers;
(3) software used by online information services like Prodigy, GEnie,
Compuserve, America Online and many others;
(4) local area networks, linking all kinds of computers, operated by
small businesses, colleges and universities and many other types of
organizations, including links into these systems from other homes and
offices;
(5) PBXs owned by small and large businesses;
(6) high speed data networks connecting workstations with mainframes
and supercomputers, as well as those carrying messaging traffic across
the "Internet;"
(7) radio-based and cellular communications systems, including pocket
telephones and computers with radio-based modems;
(8) the thousands of small personal computers owned by businesses,
hobbyists, local governments, and political organizations that
communicate with others via computer bulletin boards;
(9) private metropolitan wide area communications systems used by
businesses such as large banks;
(10) satellite uplink and downlink equipment supporting radio and
television transmissions and other communications; and
(11) air-to-ground equipment serving general aviation and commercial
aircraft.
We are becoming an information economy and, accordingly, imposing
mandatory system design requirements on all those involved in the
transfer of information has an impact on large numbers of people and
most sectors of the economy.
There is no doubt that evolving technologies will challenge law
enforcement officials and industry alike. We need effective law
enforcement tools, as well as appropriate levels of privacy and security
in communications and computer systems. The goals underlying the FBI
proposal are valid and important ones. But they may well be best
achieved without additional legislation. Industry has historically
cooperated with law enforcement and is presently engaged in ongoing
discussions to identify specific problems and concrete solutions. This
cooperative process will lead to needed exchanges of technical
information, better understanding on all sides of the real policy
issues, and better, more cost-effective solutions. Congress should
reject the FBI proposal and encourage continuing discussions that will
lead to more specific identification of any problems and to more
concrete, cost-effective solutions.
* * * * * *
Analysis of the FBI Proposal Regarding Digital Telephony
What is Proposed? The most recent proposal imposes obligations to
provide various generic interception "capabilities and capacities" and
empowers the Attorney General to grant exemptions, after consultation
with the Federal Communications Commission, the Department of Commerce
and the Small Business Administration. See Attachment A. Any person who
manufactures equipment or provides a service that failed to comply with
the broad and vague requirements of the proposed statute would be
subject to a civil penalty of $10,000 per day.
How Serious is the Problem? The predicate for the FBI proposal is
that advances in technology have made it more difficult for the
government to intercept particular telephone conversations in the course
of legally-authorized wiretapping. There have been few actual problems,
historically, in executing authorized wiretaps. None have stemmed from
characteristics of communications equipment design (as distinct from
limitations in equipment capacity). On the other hand, it is clear
that, over time, changes in the technologies used for communications
will require the FBI (and the communications industry as a whole) to use
new techniques and to acquire additional equipment and skills. Some
developments, such as encryption, may make interception (or, at least,
understanding the contents of what has been "intercepted") much more
difficult -- but in ways that are not even addressed and cannot be fixed
by the proposed legislation. (It is difficult to evaluate the FBI
argument that it would have asked for more interceptions if some
technological barriers had not existed. There have always been and will
always be some technological barriers to interception of the content of
communications the participants seek to protect.)
Existing law requires all companies providing electronic
communications services to cooperate fully