Leahy and Edwards introduce a narrow Digital Telephony bill with major new privacy protections ============================================================ Today Senator Patrick Leahy (D-VT) and Representative Don Edwards (D-CA) introduced their version of Digital Telephony legislation. Since 1992, the Electronic Frontier Foundation has been successful at stopping a series of FBI Digital Telephony proposals, which would have forced communications companies to install wiretap capability into every communications medium. However, earlier this year, Senator Leahy and Rep. Edwards, who have helped to quash previous FBI proposals, concluded that the passage of such a bill was inevitable this year. To head off passage of the FBI's bill, Leahy and Edwards stepped in to draft a narrow bill, and asked for EFF's help in the process. EFF remains deeply troubled by the prospect of the federal government forcing communications networks to be made "wiretap ready," but we believe that the legislation introduced today is substantially less intrusive that the original FBI proposals. Jerry Berman, EFF Policy Director said: "We have opposed digital telephony proposals for the past three years and still do not believe that such legislation is necessary." "Thanks to the work of Senator Leahy and Rep. Edwards and Senator Biden, however, the bill contains a number of significant privacy advances, including enhanced protection for the detailed transactional information records generated by online information services, email systems, and the Internet," Berman said. Many online communication and information systems create detailed records of users' communication activities as well as lists of the information that they have accessed. The new legal protection is critical in that it recognizes that this transactional information created by new digital communications systems is extremely sensitive and deserves a high degree of protection from casual law enforcement access which is currently possible without any independent judicial supervision. Under current law, the government can gain access to transactional records with a mere subpoena, which can be obtained without the intervention of a court. Under the new privacy protections in this bill, law enforcement would have to convince a court to issue an order based on a finding that there are "specific and articulable facts" which prove that the information sought would be relevant to an ongoing criminal investigation. "The fact that law enforcement has to take a case to court in order to get permission to access records is a major new privacy protection which will benefit all users of online communication systems," said Daniel Weitzner, EFF Deputy Policy Director. Another important privacy protection is that there is a cap on the amount of money that can be spent on surveillance technology in the first four years. The Attorney General is authorized to spend up to $500 million on reimbursement telecommunications carriers who retrofit their systems so as to come into compliance with the bill. So that this cap truly functions as a privacy protection, we believe that carriers should only be responsible for complying with the bill if the Attorney General actually pays for modifications. Government should get what it pays for, and no more. "Although we do not support the concept of digital telephony legislation, we believe that if Congress is to pass any version of the bill this year, it should be along the lines of the Leahy/Edwards version," said Berman. "The version crafted by Senator Leahy and Rep. Edwards," Berman explained, "is substantially better from a privacy, technology policy, and civil liberties standpoint than the draconian measures offered in the past by the Bush Administration." "As the bill works through the legislative process," Berman continued, "EFF will work to ensure that privacy and public process provisions are strengthened, and that the scope remains narrow -- continuing to exclude the Internet, electronic bulletin board systems, and online communications services such as America Online, Prodigy and Compuserve. Also, we note that the radio communication provisions have not yet been subject to public discussion, and hope that this will occur before the bill is considered by the full House and Senate." FOR MORE INFORMATION CONTACT: Jerry Berman Policy Director <jberman@eff.org> Daniel Weitzner Deputy Policy Director <djw@eff.org> +1 202 347 5400 * * * * * * * * EFF Analysis of and comments on major provisions of the bill ============================================================ A. Key new privacy protections 1. Expanded protection for transactional records sought by law enforcement Senator Leahy and Rep. Edwards have agreed that law enforcement access to transactional records in online communication systems (everything from the Internet to AOL to hobbyist BBSs) threatens privacy rights because the records are personally identifiable, because they reveal the content of people's communications, and because the compilation of such records makes it easy for law enforcement to create a detailed picture of people's lives online. Based on this recognition, the draft bill contains the following provisions: i. Court order required for access to transactional records instead of mere subpoena In order to gain access to transactional records, such as a list of to whom a subject sent email, which online discussion group one subscribes to, or which movies you request on a pay-per view channel, law enforcement will have to prove to a court, by the showing of "specific and articulable facts" that the records requested are relevant to an ongoing criminal investigation. This means that the government may not request volumes of transactional records merely to see what it can find through traffic analysis. Rather, law enforcement will have to prove to a court that it has reason to believe that it will find some specific information that is relevant to an ongoing criminal investigation in the records that it requests. With these provisions, we have achieved for all online systems, a significantly greater level of protection than currently exists for telephone toll records. The lists of telephone calls that are kept by local and long distance phone companies are available to law enforcement without any judicial intervention at all. Law enforcement gains access to hundreds of thousands of such telephone records each year, without a warrant and without even notice to the citizens involved. Court order protection will make it much more difficult for law enforcement to go on "fishing expeditions" through online transactional records, hoping to find evidence of a crime by accident. ii. Standard of proof much greater than for telephone toll records, but below that for content The most important change that these new provisions offer, is that law enforcement will (a) have to convince a judge that there is reason to look at a particular set of records, and (b) have to expend the time and energy necessary to have a US Attorney or DA actually present a case before a court. However, the burden or proof to be met by the government in such a proceeding is lower than required for access to the content of a communication. 2. New protection for location-specific information available in cellular, PCS and other advanced networks Much of the electronic surveillance conducted by law enforcement today involves gathering telephone dialing information through a device known as a pen register. Authority to attach pen registers is obtained merely by asserting that the information would be relevant to a criminal investigation. Courts have no authority to deny pen register requests. This legislation offers significant new limits on the use of pen register data. Under this bill, when law enforcement seeks pen register information from a carrier, the carrier is forbidden to deliver to law enforcement any information which would disclose the location or movement of the calling or called party. Cellular phone networks, PCS systems, and so-called "follow-me" services all store location information in their networks. This new limitation is a major safeguard which will prevent law enforcement from casually using mobile and intelligent communications services as nation-wide tracking systems. i. New limitations on "pen register" authority Law enforcement must use "technology reasonably available" to limit pen registers to the collection of calling number information only. Currently, law enforcement is able to capture not only the telephone number dialed, but also any other touch-tone digits dialed which reflect the user's interaction with an automated information service on the other end of the line, such as an automatic banking system or a voice-mail password. 3. Bill does not preclude use of encryption Unlike previous Digital Telephony proposals, this bill places no obligation on telecommunication carriers to decipher encrypted messages, unless the carrier actually holds the key. 4. Automated remote monitoring precluded Law enforcement is specifically precluded from having automated, remote surveillance capability. Any electronic surveillance must be initiated by an employee of the telecommunications carrier. 5. Privacy considerations essential to development of new technology One of the requirements that telecommunications carriers must meet to be in compliance with the Act, is that the wiretap access methods adopted must protect the privacy and security of each user's communication. If this requirement is not met, anyone may petition the FCC to have the wiretap access service be modified so that network security is maintained. So, the technology used to conduct wiretaps cannot also jeopardize the security of the network as a whole. If network-wide security problems arise because of wiretapping standards, then the standards can be overturned. B. Draconian provisions softened In addition, the surveillance requirements imposed by the bill are not as far-reaching as the original FBI version. A number of procedural safeguards are added which seek to minimize the threatens to privacy, security, and innovation. Though the underlying premise of the Act is still cause for concern, these new limitations deserve attention: 1. Narrow Scope The bill explicitly excludes Internet providers, email systems, BBSs, and other online services. Unlike the bills previously proposed by the FBI, this bill is limited to local and long distance telephone companies, cellular and PCS providers, and other common carriers. 2. Open process with public right of intervention The public will have access to information about the implementation of the Act, including open access to all standards adopted in compliance with the Act, the details of how much wiretap capacity the government demands, and a detailed accounting of all federal money paid to carriers for modifications to their networks. Privacy groups, industry interests, and anyone else has a statutory right under this bill to challenge implementation steps taken by law enforcement if they threaten privacy or impede technology advancement. 3. Technical requirements standards developed by industry instead of the Attorney General All surveillance requirements are to be implemented according to standards developed by industry groups. The government is specifically precluded from forcing any particular technical standard, and all requirements are qualified by notions of economic and technical reasonableness. 4. Right to deploy untappable services Unlike the original FBI proposal, this bill recognizes that there may be services which are untappable, even with Herculean effort to accommodate surveillance needs. In provisions that still require some strengthening, the bill allows untappable services to be deployed if redesign is not economically or technically feasible. C. Provisions that must be changed EFF plans to work on the following issues in the bill as the legislative process continues: 1. Strengthened public process In the first four years of the bill's implementation, most of the requests that law enforcement makes to carriers are required to be recorded in the public record. However, additional demands for compliance after that time are only required to be made by written notice to the carrier. All compliance requirements, whether initial requests or subsequent modification, must be recorded in the Federal Register after public hearings, to allow for public scrutiny. 2. Linkage of cost to compliance requirements -- the FBI gets what it pays for and no more The bill authorizes, but does not appropriate, $500 million to be spent by the government in reimbursing telecommunications carriers for bringing their networks into compliance with the bill. The FBI maintains that this is enough money to cover all reasonable expenses. The industry, however, has consistently maintained that the costs are five to ten times higher. Given the FBI's confidence in their cost estimate, we believe that telecommunications carriers should only be required to comply to the extent that they have been reimbursed. This spending cap is both a safeguard against requiring unnecessary surveillance technology, and a way to guarantee that carriers' expenses for electronic surveillance are truly paid for by the government, not by the customers. 3. Ensure right to deploy untappable services The enforcement provisions of the bill suggest, but do not state explicitly, that services which are untappable may be deployed. The bill should be state directly that if it is technically and economically unreasonable to make a service tappable, then it may be deployed, without interference by a court. 4. Clarify definition of call identifying information The definition of call identifying information in the bill is too broad. Whether intentionally or not, the term now covers network signaling information of networks which are beyond the scope of the bill. To maintain the narrow scope of the bill, this definition should be clarified. 5. Review of minimization requirements in view of commingled communications The bill implicitly contemplates that law enforcement, in some cases, will intercept large bundles of communications, some of which are from subscribers who are not subject of wiretap orders. For example, when tapping a single individual whose calls are handled by a PBX, law enforcement may sweep in calls of other individuals as well. Currently the Supreme Court requires "minimization" procedures in all wiretaps, to minimize the intrusion on the privacy of conversations not covered by a court's wiretap order. We believe that the bill should reinforce the current minimization requirements by recognizing that stronger minimization procedures may be required. * * * Locating Relevant Documents =========================== ** Original 1992 Bush-era draft ** ftp.eff.org, /pub/EFF/Policy/FBI/Old/digtel92_old_bill.draft gopher.eff.org, 1/EFF/Policy/FBI/Old, digtel92_old_bill.draft http://www.eff.org/pub/EFF/Policy/FBI/Old/digtel92_old_bill.draft bbs: +1 202 638 6120 (8N1, 300-14400bps), file area: Privacy - Digital Telephony; file: digtel92.old ** 1993/1994 Clinton-era draft ** ftp.eff.org, /pub/EFF/Policy/FBI/digtel94_bill.draft gopher.eff.org, 1/EFF/Policy/FBI, digtel94_bill.draft http://www.eff.org/pub/EFF/Policy/FBI/digtel94_bill.draft bbs: +1 202 638 6120 (8N1, 300-14400bps), file area: Privacy - Digital Telephony; file: digtel94.dft ** 1994 final draft, as sponsored ** ftp.eff.org, /pub/EFF/Policy/FBI/digtel94.bill gopher.eff.org, 1/EFF/Policy/FBI, digtel94.bill http://www.eff.org/pub/EFF/Policy/FBI/digtel94.bill bbs: +1 202 638 6120 (8N1, 300-14400bps), file area: Privacy - Digital Telephony; file: digtel94.bil ** EFF Analysis of sponsored version ** ftp.eff.org, /pub/EFF/Policy/FBI/digtel94_analysis.eff gopher.eff.org, 1/EFF/Policy/FBI, digtel94_analysis.eff http://www.eff.org/pub/EFF/Policy/FBI/digtel94_analysis.eff bbs: +1 202 638 6120 (8N1, 300-14400bps), file area: Privacy - Digital Telephony; file: digtel94.ana Personnally this makes me want to puke...... No Compromise!!!!