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----------------------------------------------------------------------------- _____ _____ _______ / ____| __ \__ __| ____ ___ ____ __ | | | | | | | | / __ \____ / (_)______ __ / __ \____ _____/ /_ | | | | | | | | / /_/ / __ \/ / / ___/ / / / / /_/ / __ \/ ___/ __/ | |____| |__| | | | / ____/ /_/ / / / /__/ /_/ / / ____/ /_/ (__ ) /_ \_____|_____/ |_| /_/ \____/_/_/\___/\__, / /_/ \____/____/\__/ The Center for Democracy and Technology /____/ Volume 2, Number 29 ---------------------------------------------------------------------------- A briefing on public policy issues affecting civil liberties online ---------------------------------------------------------------------------- CDT POLICY POST Volume 2, Number 29 August 1, 1996 CONTENTS: (1) Clinton Administration, Congress Propose Sweeping Anti-Terrorism Initiatives (2) How to Subscribe/Unsubscribe (3) About CDT, contacting us ** This document may be redistributed freely with this banner intact ** Excerpts may be re-posted with permission of <editor@cdt.org> ** This document looks best when viewed in COURIER font ** ----------------------------------------------------------------------------- (1) CLINTON ADMINISTRATION, CONGRESS PROPOSE SWEEPING ANTI-TERRORISM INITIATIVES In the wake of the recent bombing at the Olympics and the suspected terrorist involvement in the TWA crash, the Clinton Administration and members of Congress are proposing a set of sweeping counter-terrorism initiatives. If enacted into law, these proposals will dramatically increase law enforcement surveillance authority over the Internet and other advanced communications technologies. An outline of the Administration's proposal was circulated on Capitol Hill on Monday July 29. President Clinton has urged Congress to pass new counter-terrorism legislation before the Congressional recess at the end of this week. While several prominent Republican members of Congress, including House Speaker Newt Gingrich (R-GA), have said publicly that Congress should not rush into any new counter-terrorism legislation, most observers believe there is a strong possibility that some or all of the Administration's proposal will be enacted before the August recess. The draft proposal contains several measures which were rejected by Congress as part of the previous counter-terrorism initiative proposed last year after the Oklahoma City bombing, as well as several new measures including as-yet unspecified changes to U.S. encryption policy and funding for the Communications Assistance for Law Enforcement Act (CALEA, a.k.a. Digital Telephony). CDT is concerned that the latest counter-terrorism efforts on Capitol Hill are occurring without appropriate deliberation. Major policy decisions expanding the surveillance powers of law enforcement should not be made without careful consideration of the necessity of such proposals and the relative benefit to society. In the coming days and weeks, CDT will work with Congressional leaders, privacy advocates, and the net.community to ensure that constitutional civil liberties and the openness of the Internet are protected as Congress considers counter-terrorism measures. ________________________________________________________________________ MAJOR POINTS OF THE COUNTER-TERRORISM PROPOSALS CIRCULATING ON THE HILL The administration's new counter-terrorism initiative and other amendments circulating this week in Congress contain numerous provisions, but four are of particular concern to the net.community: * New Threats to Encryption, Opposition to the Pro-CODE Bill * Funding for Digital Telephony Without Public Accountability * Amendment to Criminalize 'Bomb-Making' Information on the Internet * Expanded Authority for Multi-Point, "Roving" Wiretaps The full text of the Administration's proposal and background information are available at CDT's counter-terrorism Web Page: http://www.cdt.org/policy/terrorism/ -------------------------------------------------------- I. NEW THREATS TO ENCRYPTION, OPPOSITION TO THE PRO-CODE BILL The Administration's outline contains the following statement on encryption: "* Encryption -- We will seek legislation to strengthen our ability to prevent terrorists from coming into the possession of the technology to encrypt their communications and data so that they are beyond the reach of law enforcement. We oppose legislation that would eliminate current export barriers and encouraging the proliferation of encryption which blocks appropriate access to protect public safety and the national security." While no specific legislative language has yet been proposed, this represents the first statement by the Administration that they will seek legislation to further restrict encryption. Even more troubling, the Administration is clearly attempting to use the recent suspected terrorist incidents to push for a new and more restrictive encryption policy. This new proposal comes as Congress is finally beginning to seriously consider major changes in U.S. encryption policy. Bipartisan legislation in both the House and Senate to relax encryption export controls is gaining momentum. The Senate Commerce Committee has held 3 hearings in the last 6 weeks, and is preparing to vote to send the Burns/Leahy "Pro-CODE" bill (S. 1726) to the floor of the Senate. The Administration's attempt to leverage the public's concern about terrorism to block passage of the Pro-CODE bill is disturbing, and poses a significant threat to privacy and security on the Internet. CDT is working with members of Congress, privacy advocates, and the communications and computer industries to oppose any attempt by the Administration to impose new restrictions on encryption, and we continue to work to move the bipartisan export relief legislation through Congress. -------------------------------------------------------- II. FUNDING FOR DIGITAL TELEPHONY WITHOUT PUBLIC ACCOUNTABILITY The Administration is also seeking to override the public accountability provisions of the Communications Assistance for Law Enforcement Act (CALEA - a.k.a. 'Digital Telephony') by providing a funding for the law in a way that prevents public oversight of the FBI's surveillance ability. Enacted in October of 1994, granted law enforcement new authority to influence the design of telecommunications networks (the Internet, Commercial online services, and BBS's were exempted) in order to preserve their ability to conduct court authorized electronic surveillance. Congress balanced this new authority with a number of mechanisms to ensure public accountability over law enforcement surveillance ability. While complicated, the public accountability mechanisms are designed to work as follows: * Law enforcement provides telecommunications carriers, the Congress, and the public with notice of its surveillance capacity needs (i.e., the number of simultaneous wiretaps in a given geographic location) with an opportunity for public comment. * Based on an assessment of the reasonableness of the law enforcement surveillance capacity request, Congress appropriates money to cover the cost of modifications. If Congress does not believe law enforcement has adequately justified its request, money will not be appropriated. * Telecommunications carriers are not obligated to comply with the statute or make any capacity modifications without government reimbursement. In October 1995, the FBI published its first notice of surveillance capacity (see CDT Policy Post Vol. 1, No. 26). The telecommunications industry and privacy advocates used the public accountability provisions of CALEA to respond to the FBI's request and argued that the FBI had not adequately justified the extensive surveillance capability contained in the request. As a result, Congress has not yet appropriated funds and no modifications have been made. The FBI clearly believes that the public accountability provisions of CALEA are working **too well**, and appears to be using the recent focus on terrorism to push for a new funding mechanism which does not contain public oversight. CDT is fighting hard to ensure that the public accountability provisions of CALEA, which have until now prevented the FBI from acquiring unnecessary surveillance capacity, remain a part of the law, and will vigorously oppose any effort by the FBI and the Clinton Administration to remove the last opportunity for public oversight over law enforcement power. -------------------------------------------------------- III. THE AVAILABILITY OF 'BOMB-MAKING' INFORMATION ON THE INTERNET Senator Dianne Feinstein (D-CA) has reintroduced an amendment to make it illegal to disseminate information on how to construct explosives knowing that the information will be used in furtherance of a federal crime. The amendment was adopted by the Senate earlier this month as part of a Department of Defense Appropriations bill. CDT believes that the vague provisions of the Feinstein amendment could have a chilling effect on online speech, needlessly duplicate existing criminal statutes, and should be removed. Feinstein first proposed the amendment as part of the 1995 counter-terrorism bill. The initial Feinstein amendment was extremely broad and would have resulted in a flat ban on certain constitutionally protected speech online. After civil liberties advocates objected, Feinstein narrowed her amendment substantially, although it was ultimately dropped from the final terrorism bill signed in April 1996. -------------------------------------------------------- IV. EXPANDED WIRETAP AUTHORITY The Administration's proposal would also significantly expand current wiretapping authority to allow multi-point (or "roving") wiretaps. This would dramatically change surveillance authority to include wiretaps of INDIVIDUALS instead of LOCATIONS. This proposal would do away with the delicate balance between privacy and law enforcement that Congress has struck over 30 years of wiretapping legislation. Federal law has always required that wiretaps issue for a specific location, to meet Fourth Amendment requirements. In 1986 Congress introduced a narrow exception to this rule, only for cases where it could be shown that the target was intentionally evading wiretaps by changing facilities. The Administration proposal would completely remove this standard, allowing so-called "roving taps" for any persons whose behavior makes wiretapping difficult for law enforcement. The administration proposed similar provisions in the spring of 1995 in the wake of the Oklahoma City bombing. These provisions proved controversial in Congress and were dropped from the final bill. ________________________________________________________________________ FOR MORE INFORMATION For more information on the counter-terrorism proposals and their impact on the Internet check out: CDT's Counter-Terrorism Page: http://www.cdt.org/policy/terrorism/ CDT's Encryption Policy Page: http://www.cdt.org/crypto/ CDT's Digital Telephony Page: http://www.cdt.org/digtel.html Encryption Policy Resource Page: http://www.crypto.com/ ------------------------------------------------------------------------ (4) SUBSCRIPTION INFORMATION Be sure you are up to date on the latest public policy issues affecting civil liberties online and how they will affect you! Subscribe to the CDT Policy Post news distribution list. CDT Policy Posts, the regular news publication of the Center For Democracy and Technology, are received by nearly 10,000 Internet users, industry leaders, policy makers and activists, and have become the leading source for information about critical free speech and privacy issues affecting the Internet and other interactive communications media. To subscribe to CDT's Policy Post list, send mail to policy-posts-request@cdt.org with a subject: subscribe policy-posts If you ever wish to remove yourself from the list, send mail to the above address with a subject of: unsubscribe policy-posts ----------------------------------------------------------------------- (5) 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: URL:http://www.cdt.org/ FTP URL:ftp://ftp.cdt.org/pub/cdt/ Snail Mail: The Center for Democracy and Technology 1634 Eye Street NW * Suite 1100 * Washington, DC 20006 (v) +1.202.637.9800 * (f) +1.202.637.0968 ----------------------------------------------------------------------- End Policy Post 2.29 8/1/96 -----------------------------------------------------------------------