----------------------------------------------------------------------------- _____ _____ _______ / ____| __ \__ __| ____ ___ ____ __ | | | | | | | | / __ \____ / (_)______ __ / __ \____ _____/ /_ | | | | | | | | / /_/ / __ \/ / / ___/ / / / / /_/ / __ \/ ___/ __/ | |____| |__| | | | / ____/ /_/ / / / /__/ /_/ / / ____/ /_/ (__ ) /_ \_____|_____/ |_| /_/ \____/_/_/\___/\__, / /_/ \____/____/\__/ The Center for Democracy and Technology /____/ Volume 2, Number 32 ---------------------------------------------------------------------------- A briefing on public policy issues affecting civil liberties online ---------------------------------------------------------------------------- CDT POLICY POST Volume 2, Number 32 September 20, 1996 CONTENTS: (1) FBI Demands for Broad New Surveillance Power Rejected on Privacy Grounds (2) CDT Background Memo on the FBI Demands (3) How to Subscribe/Unsubscribe (4) 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) FBI Demands for Broad New Surveillance Power Rejected on Privacy Grounds A telecommunications industry standards body on Thursday voted to reject a demand by the FBI to create a national tracking system out of the wireless telephone network. CDT applauds this decision as a significant victory for privacy and condemns the FBI's blatant efforts to subvert the specific requirements of the Communications Assistance for Law Enforcement Act (CALEA, also known as "Digital Telephony"). "The FBI is demanding that every cell phone double as a tracking device, providing instant and continuous location information not just when a subject is talking but whenever a cellular phone is turned on. " said CDT Executive Director Jerry Berman. "The FBI is demanding real-time tracking of anyone suspected of committing a crime. This is a clear violation of the statute and the Fourth Amendment." Berman added At issue are technical standards currently being drafted to implement the 1994 law. The FBI, which holds an influential position within the industry standards process, has demanded that the wireless telephone network be designed in a way that would allow real time tracking of individuals suspected of a crime. Specifically, the FBI is demanding that wireless networks be designed to facilitate: * Tracking of the physical location of a subject any time a cellular phone is turned on (even if no call is being made or received) * Tracking of the physical location of a subject when a cellular phone moves within a service area or moves to another carrier's service area * Tracking of the physical location of a subject when a cellular phone makes or receives a call * Delivery of this information to law enforcement in real time (within 500 milliseconds) Although law enforcement currently has the authority to obtain certain location information through a search warrant, the standards proposed by the FBI would have allowed access to far more detailed location information under a lower standard. "The law was designed to freeze the FBI in time, not as a blank check to the FBI to design the telecommunications network any way it pleased." Berman said. "The FBI's demands go far beyond what's permitted under CALEA and contradict statements by Director Freeh before Congress 2 years ago." The drafters of CALEA specifically stated that the statute was not designed to expand law enforcement surveillance authority. The Committee report on the legislation notes: "The FBI director testified that the legislation was intended to preserve the status quo, that it was intended to provide law enforcement no more and no less access to information than it had in the past. The Committee urges against over broad interpretation of the requirements." -- House Judiciary Committee Report to Accompany H.R. 4922. Rept. 103-827 Part 1, Page 22 NEXT STEPS In order to ensure public oversight and accountability over the FBI's surveillance authority, CALEA requires the government to reimburse the telecommunications industry for the costs of meeting the statute's requirements. Congress is currently considering a mechanism to fund the implementation of the law. CDT urges the Congress to exercise its oversight role to determine whether the FBI is seeking to use CALEA to expand current surveillance capabilities contrary to the specific intent of the law. Unless and until the FBI clarifies its intent and justifies its demands, Congress should not allow the expenditure of any funds to implement CALEA. CDT and a ad-hoc task force of other privacy organizations and telecommunications industry representatives are currently conducting a review of electronic surveillance issues at the request of Senators Patrick Leahy (D-VT) and Arlen Specter (R-PA). The task force report will cover the implementation of CALEA and will be released within the next few months. CDT stands ready to intervene again at the standards setting process and before the FCC if necessary in order to ensure that privacy is protected as CALEA is implemented. The Center for Democracy and Technology is a Washington DC based non-profit public interest organization focusing on free speech and privacy issues in new computer and communications technology. CDT can be found on the World Wide Web at: http://www.cdt.org/ ----------------------------------------------------------------------- (2) CDT BACKGROUND MEMO ON THE FBI DEMANDS FBI SEEKS TO USE CELLULAR TELEPHONES AS TRACKING DEVICES The FBI is demanding the telecommunications industry design cellular telephone networks in a way which would allow law enforcement to track the physical location and movements of individuals in clear violation of the law. This effort by the FBI raises grave privacy concerns and must be rejected by the telecommunications industry. In ongoing discussions with a Telecommunications Industry Association committee established to set technical standards to implement the Communications Assistance for Law Enforcement Act (CALEA, P.L. 103-414, also known as the "Digital Telephony" statute), the FBI is requesting surveillance capability far beyond current law enforcement capabilities and in clear violation of the scope of the law. CALEA was not designed as a blank check from Congress allowing law enforcement to design the telecommunications network to expand existing surveillance capability. Rather, the statute was carefully balanced to ensure that law enforcement maintain the status quo. This overreaching by the FBI raises serious privacy concerns and clearly violates the balance struck by CALEA. CDT strongly urges Congress to refrain from approving any funding for the implementation of CALEA until the FBI makes its intentions clear. FBI Demanding Location Information In Clear Violation of the Statute The FBI's request is contained in a proposal called the Electronic Surveillance Interface (ESI), which specifies the design of the interface between the telecommunications network and law enforcement's own surveillance equipment. The FBI has refused a formal request by CDT to view a copy of the ESI. However, documents obtained from a meeting of the FBI and the telecommunications industry on September 12 indicate that the FBI is demanding that cellular networks be designed to deliver location information to law enforcement. Specifically, the ESI states that cellular networks must be designed to provide the geographic location of a particular subject: The ESI states: R7-62 The SSM (Surveillance Status Message) shall be delivered to the LEA (Law Enforcement Authority) whenever the subject changes location or between systems and this location is available to the IAP (Intercept Access Point) In short, the FBI is requesting that the cellular network be designed to report the geographic location of an individual subject: 1. When a cellular phone is turned on (even if no call is made) 2. When a cellular phone moves within a service area or moves to another carrier's service area. 3. When a cellular phone makes or receives a call. The FBI claims that location information has to be provided to law enforcement under CALEA because it is part of "call setup information." However, in his testimony before a joint hearing of the House and Senate Judiciary Committees on March 18, 1994, FBI Freeh director stated exactly the opposite: "Several privacy-based spokespersons have criticized the wording of the definition (of call setup information)... alleging that the government is seeking a new, pervasive, automated 'tracking' capability. Such allegations are completely wrong.... In order to make clear that the acquisition of such information is not... included within the term 'call setup information' we are prepared to add a concluding phrase to this definition to explicitly clarify the point: '*** except that such information [call setup information] shall not include any information that may disclose the physical location of a mobile facility or service beyond that associated with the number's area code or exchange.'" (Testimony of FBI director Louis Freeh before a joint hearing of the House Judiciary Subcommittee on Civil and Constitutional Rights and the Senate Judiciary Subcommittee on Technology and the Law, March 18, 1994. S. Hrg 103-1022). The drafters of CALEA noted in the Committee report that the statute was not designed to expand law enforcement surveillance ability: "The FBI director testified that the legislation was intended to preserve the status quo, that it was intended to provide law enforcement no more and no less access to information than it had in the past. The Committee urges against over broad interpretation of the requirements." (House Judiciary Committee Report to Accompany H.R. 4922. Rept. 103-827 Part 1, page 22) The FBI's demand that all wireless communications equipment provide the physical locations of a subscriber at all times goes raises obvious privacy issues and goes well beyond the scope of CALEA and the explicit statements of the FBI. No Funds Should Be Appropriated to Implement CALEA Until This Issue is Resolved In passing CALEA, Congress sought to preserve law enforcement's ability to conduct electronic surveillance as new communications technologies are developed. At the same time, Congress was very clear that the law was designed to preserve the status quo and not to expand law enforcement surveillance authority. In addition, Congress took the extra step of including substantial Congressional oversight and public accountability to the implementation process in order to ensure that law enforcement did not overreach and that privacy interests would be protected. The law requires the telecommunications industry to set standards for meeting the FBI's general requirements in an open process, allows interested parties to challenge any standard before the FCC if it fails to protect privacy, and requires Congressional oversight and accountability over the implementation of the law by mandating government reimbursement for expensive capability upgrades. We urge Congress to exercise its oversight role to determine whether in fact the FBI is seeking to use CALEA to expand its current surveillance capabilities contrary to the intent of the law. Unless and until the FBI clarifies its intent and justifies its demands, Congress should not allow the expenditure of any funds to implement CALEA. We look forward to discussing this issue with you further. If you have any questions please contact: Center for Democracy and Technology +1.202.637.9800 Danny Weitzner, Deputy Director <djw@cdt.org> Jonah Seiger, Policy Analyst <jseiger@cdt.org> ----------------------------------------------------------------------- (3) 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. 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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 2.32 9/20/96 -----------------------------------------------------------------------