New York Times, Monday, February 28, 1994
Business Day
A PUSH FOR SURVEILLANCE SOFTWARE
By John Markoff
In the age of computer communications and digital telephone calls, the
American people must be willing to give up a degree of personal privacy
in exchange for safety and security, the head of the Federal Bureau of
Investigation said.
In an interview on Friday, Louis J. Freeh, the F.B.I. Director, defended
proposed legislation that critics say would turn the nation's telephone
network into a vast surveillance system. He said taxpayers would be
asked to pay up to half a billion dollars to develop and deploy the
necessary network software.
The Administration wants to impose new technology that would enable law-
enforcement agents to gather a wealth of personal information by
monitoring citizens' calling patterns and credit card transactions over
the telephone network --- and over the two-way cable television networks
being planned by cable and phone companies. The system would go well
beyond the current wiretapping technology, because much of the information
could be gleaned without the police or F.B.I. actually having to eavesdrop
on specific voice or electronic-mail conversations.
"The costs are high, but you have to do a cost-benefit analysis," said
Mr. Freeh, who insisted that fighting terrorists and criminals was the
Government's intention --- not playing Big Brother to the citizenry.
`A Credible Solution'
"The damage to the World Trade tower and the economic interests of the
country are conservatively estimated at $5 billion," he said, citing
last year's bombing of the World Trade Center in Manhattan. "I think
the American people will agree that this is a credible solution to the
problem we face."
The Administration is trying to line up Congressional support for the
legislation, called the Digital Telephony and Communications Privacy
Improvement Act of 1994, before having it formally introduced.
Government officials say traditional wiretapping is becoming increasingly
more difficult because more and more phone calls and data communications
are transmitted as streams of digital information --- representing the
ones and zeros understood by computers. Thousands of such calls may
intermingle on a public-network circuit at any moment. Proponents of
the legislation say new software placed on computerized network switching
equipment is necessary to help law enforcement sort through this traffic.
But executives of McCaw Cellular Communications, the nation's biggest
cellular telephone company, told Mr. Freeh and White House officials at
a meeting on Thursday that their newest telephone switches already provide
the surveillance capabilities requested in the legislation.
Moreover, privacy advocates say the Government can point to no case in
which digital network technology alone has impeded an investigation. And
they note that in the World Trade Center case, it was not electronic
communications but mundane bungling of vehicle and warehouse rentals that
led to arrests.
An Electronic Portrait
Such critics have long warned that in the information age, it is possible
to build a detailed model of an individual's behavior, political and
sexual preferences, social network and travel itineraries simply by
examining telephone-calling patterns and credit card purchases.
Some capabilities were demonstrated when law-enforcement agents pieced
together a chronological list of phone calls made by the people accused
of plotting and carrying out the attack in January on the figure skater
Nancy Kerrigan. But the type of software the Clinton Administration wants
to add to the public communications network would make possible much more
detailed records of individuals' electronic activities.
"It will be possible to develop a life-size portrait about you as a
person," said Jerry Berman, executive director of the Electronic Frontier
Foundation, a Washington privacy-rights lobbying group. "This is not just
about a phone number."
For the Administration, having taxpayers rather than communications
companies pay for the system is meant to dilute industry criticism of the
plan, which has met resistance since it was disclosed a few weeks ago.
Congressional support is difficult to gauge.
"The bill has some significant problems we need to resolve," said
Representative Don Edwards, Democrat of California and chairman of the
House Judiciary subcommittee on civil rights. "The profiling and the
tracking aspect of the bill is something we are concerned abut."
A version of the legislation was first proposed in 1991 by the Bush
Administration at the urging of the Justice Department. But unlike that
version, the new bill would limit the surveillance to public networks and
not include company phone systems --- private branch exchanges, or PBXs
--- or private corporate computer networks.
Despite those changes, civil liberties groups and some industry executives
say they are concerned that the scope of the new bill would give law-
enforcement agencies new access to a vast amount of "transactional," or
billing, information related to the setup of a telephone call.
Under current law, obtaining a subpoena to obtain transaction data from
the telephone company is easier than getting a wiretap warrant to
eavesdrop on actual conversations, which requires a judge to find
probable cause that a crime has taken place.
Mr. Freeh met with telephone industry executives at the White House on
Thursday and with Congressional leaders on Capitol Hill on Friday in an
effort to attract support for the bill. He said in the interview that
he was willing to compromise by adding safeguards for transactional
information.
"I understand the privacy concern," he said. "My real objective is to
get access to the content of telephone calls. With respect to the
extraordinary amount of personal information that is generated by this
new technology, we would consider some way to block some of that
information or raise the standard required to gain access. We're flexible
on that."
The F.B.I. Director said new digital communications technologies were
making it more difficult for authorities to listen to conversations of
suspected criminals who may be using cellular telephones or whose
conversations may be carried as data streams in networks of fiber optic
cables.
Mr. Freeh said wiretapping had long been one of law enforcement's most
effective tools. He cited examples in which it had been used effectively
to prevent crimes, including a case in Chicago in which a terrorist was
planning to shoot down an airliner with a Stinger missile.
In that instance, Mr. Freeh said, The telephone networks involved
were not advanced digital systems, but older analog networks that
send voices as electronic patterns mimicking natural sound waves.
But he said there had already been hundreds of cases in which
attempted F.B.I. wiretaps had been thwarted by new digital
communications technology --- not, he said, because the suspected
criminals were necessarily trying to evade detection, but simply
because the public-network technology made it difficult for agents to
listen.
Last year, a group called the Computer Professionals for Social
Responsibility obtained Government documents through a Freedom of
Information request indicating that an informal survey of F.B.I. offices
in Newark, Philadelphia and Las Vegas, Nev., found no instances in
recent years in which F.B.I. agents had encountered any technology-
based problems in conducting wiretaps.
Asked about those findings, Mr. Freeh said he was not aware of them.
Several telephone industry executives who met with Mr. Freeh at the
White House last week said that they were skeptical whether new
legislation was needed and that they were concerned about provisions that
would fine telephone companies up to $10,000 a day for failing to comply
with the new law.
"This is just new faces giving the same pitch," said one telephone
industry vice president who attended the meeting and who had been opposed
to the Bush Administration's version of the legislation. He spoke on
condition of anonymity.
Executives at the American Telephone and Telegraph Company said they did
not believe there were significant technological problems that warranted
new legislation. They also said they feared that the proposed legislation
would undercut the privacy expected by customers.
"Clearly the privacy concern is the biggest concern for A.T.&.T.," a
spokesman for the company, Herb Linnen, said. He said the company would
continue to meet with the White House and Justice Department in an effort
to narrow the bill. Industry executives and privacy advocates have also
warned about abuses of new surveillance technologies by telephone company
insiders and computer vandals.
But the F.B.I. Director said the protections in current analog telephone
systems would be adequate to deter most break-ins.
"This is always a threat," Mr. Freeh said. "But it's de minimus if
you consider the alternative, which is not giving law-enforcement and
intelligence agencies these capabilities."
A White House official said that he believed opponents of the legislation
were overreacting and that the law was a good compromise between privacy
and law-enforcement needs.
"The authority to gather transactional information already exists; I
don't think this expands that authority," said John Podesta, the White
House staff secretary. "We're open to talking through the issue with the
privacy community."
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