ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU NEWS RELEASE * NEWS RELEASE * NEWS RELEASE * NEWS RELEASE ACLU Opposes FBI Wiretap Access Bill; Legislation Would Create Dangerous Precedent For IMMEDIATE RELEASE September 26, 1994 Contact: Barry Steinhardt BarryS @ aclu.org or Kathy Parrent, 212-944-9800, ext. 424 The American Civil Liberties Union today called on the House Judiciary Committee to reject the FBI Wiretap Access Bill, H.R. 4922, which would require private electronics manufacturers to insure that the FBI can wiretap using developing telecommunications technologies. In a letter sent to Congressman Jack Brooks, Chair of the House Judiciary Committee, the ACLU stated that the bill "... creates a dangerous and unprecedented presumption that government not only has the power, subject to warrant to intercept private communications, but that it can require private parties to create special access. It is as if the government had required all builders to construct new housing with an internal surveillance camera for government use." "Moreover, the FBI has not borne the burden of proving why such an extraordinary requirement is necessary..." the letter said. A copy of the full letter with the ACLU's detailed objections follows. ___________________________________________________________________________ September 22, 1994 Honorable Jack Brooks Congressman, State of Texas 2449 Rayburn House Office Building Washington, D.C. 20515-4309 Dear Congressman Brooks: We are writing to you to express the ACLU's opposition to the FBI-Wiretap Access Bill, H.R. 4922. While we were not actively involved in Subcommittee deliberations, we have reviewed the legislation and we have several major concerns. The principal problem remains that any digital telephone bill which mandates that communications providers make technological changes for the sole purpose of making their systems wiretap-ready creates a dangerous and unprecedented presumption that government not only has the power, subject to warrant, to intercept private communications, but that it can require private parties to create special access. It is as if the government had required all builders to construct new housing with an internal surveillance camera for government use. Even if such use were triggered only by a judicial warrant, such a requirement would be strongly resisted by the American people. H.R. 4922 establishes a similar requirement, and is without precedent. Moreover, the FBI has not borne the burden of proving why such an extraordinary requirement is necessary. In 1993, there were fewer than 1,000 wiretaps authorized and many of them failed to yield any substantive evidence while intercepting many innocent conversations. It is far from clear that digital telephones will substantially obstruct legitimate law enforcement efforts. Without further public discussion and debate, the public will not have a sufficient opportunity to weigh the loss of privacy against the FBI's claims. There has been no opportunity to learn the full extent of the types of investigations that the FBI claims were precluded because of a restriction on their public dissemination. Yet, based on these secret assertions, 91 such incidents were cited by the FBI. On those slim assertions, the public's loss of privacy in digital communications is all but assured and taxpayers will be asked to pay an extraordinary price. H.R. 4922 authorizes $500 million over the next four years to reimburse telecommunications carriers for the costs that would be imposed by the bill. Even if you accept these cost estimates -- the industry puts the real cost in the billions -- we will spending $125 million or $125,000 per wiretap, for the fewer than 1,000 taps that will be conducted each year. As you know, the ACLU has the greatest respect for Congressman Edwards and Senator Leahy. Both have been tireless champions for civil liberties. The Edwards/Leahy proposal is an improvement over earlier versions offered by the FBI and we applaud their efforts to add new privacy protections. The proposed expansion of the Electronic Communications Privacy Act to cordless phones and the requirement that a court order be obtained for transactional data from electronic communication providers both are steps forward and merit separate consideration by the Congress. But they cannot and should not be traded for the unprecedented intrusion represented by H.R. 4922. In several respects, H.R. 4922 is still too broad in its application. For example, earlier versions of the bill would have applied directly to on-line communication and information services such as internet providers, America On Line, Compuserve, Prodigy etc. H.R. 4922 would apply directly only to "telecommunications carriers" such as the Regional Bell Operating Companies. But this provision does not narrow the scope of the bill as much as it might seem. First, with the new presumption that the government is entitled to require private manufacturers to insure its ability to wiretap, law enforcement will undoubtedly be back in future years insisting that this limitation thwarts its efforts and will seek to broaden the coverage to other information providers. Once the basic principle of H.R. 4922 is accepted, what arguments remain to resist its expansion. The limited application of H.R. 4922 is surely temporary; what matters is the basic requirement, not its immediate application. More importantly, law enforcement will still have the opportunity to intercept on-line communications over the internet or commercial on-line networks, by tapping into the facilities of the telecommunications companies. As critics of the earlier versions had noted the coverage of the on-line providers was largely redundant. All these communications still pass over telephone lines. Law enforcement does not need access at every point in a telecommunication in order to intercept it. Access at any one point is sufficient and that would be readily available since ultimately on-line communications must travel over the public switched telephone network which the bill requires be wiretap ready. Moreover, given the commingled nature of digital communication lines, it is inevitable that more private information from third parties will be intercepted than would be the case with analog phones, and the minimization requirements in the bill will not prevent this. In the end, this proposal will make our telecommunications structure more, not less vulnerable. In its original form the FBI Digital Telephony proposal would have given the power to the Attorney General to impose standards on communication providers which would guarantee that their systems were wiretap-ready. Essentially, this would have created a centralized wiretapping system that threatened the privacy of the entire nation and was dependent for its security on a few select people. This raised the real concern that if electronic communications service providers must design their systems to allow and ensure FBI access, then the resulting mandatory "back doors" may become known to and be exploited by "criminals." The new proposal contains the same risks. It would have the technical standards developed by the industry, through trade associations or standard-setting bodies, in consultation with the Attorney General. But it contains a "safe harbor" provision, which protects a carrier from sanction if it is in compliance with standards created by this approach. The safe harbor provision virtually guarantees that the standards developed through the industry-based process will be adopted by all. Whether the standards are directly imposed by government or created by concerted industry action, in consultation with the government, makes little difference. The result is the same. A centralized wiretapping capacity with all of its vulnerabilities will still be created. Finally, we have grave concerns about the encryption provisions. The Edwards/Leahy version has been described as "neutral" on encryption. The bill provides that telecommunications providers do not need to decrypt data, unless they hold the key. In the short term, this is an improvement over the earlier versions of the bill which would have created obligations to decrypt, but there are at least two longer term problems. First, is the new presumption that industry has the affirmative responsibility to create special technical capacity for the government to snoop. Can there be any real doubt that the FBI will be back in the years to come asserting that its ability to intercept communications has been thwarted by easily available encryption and that an industry obligation, analogous to the new obligation to provide wiretap capacity, must be created. Secondly, in some cases the telecommunications providers may well hold the key -- particularly as they expand the services they provide to their customers. H.R. 4922 proposes a radical and expensive change in our telecommunications structure. The threats it poses, now and prospectively, are real, but the need for it far less than evident or proven. We urge that your Committee not rush into consideration of this far reaching measure with so little time left in the session. We thank you for your consideration of our views and we would be happy to sit down with you to discuss these issues. Sincerely, Ira Glasser Laura Murphy Lee --endit-- The ACLU urges interested persons to contact the following members of Congress immediately: Rep. Jack Brooks Sen. Howard Metzenbaum (202) 225-6565 (voice) (202) 224-7494 (voice) (202) 225-1584 (fax) (202) 224-5474 (fax) ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty" . -- ACLU Free Reading Room | American Civil Liberties Union gopher://aclu.org:6601 | 132 W. 43rd Street, NY, NY 10036 mailto:infoaclu@aclu.org| "Eternal vigilance is the ftp://aclu.org | price of liberty"