Electronic Frontier Foundation Statement on FBI Draft Digital Telephony Bill EFF has received a draft of the FBI's new, proposed "Digital Telephony" bill. After initial analysis, we strongly condemn bill, which would require all common carriers to construct their networks to deliver to law enforcement agencies, in real time, both the contents of all communications on their networks and the "signalling" or transactional information. In short, the bill lays the groundwork for turning the National Information Infrastructure into a nation-wide surveillance system, to be used by law enforcement with few technical or legal safeguards. This image is not hyperbole, but a real assessment of the power of the technology and inadequacy of current legal and technical privacy protections for users of communications networks. Although the FBI suggests that the bill is primarily designed to maintain status quo wiretap capability in the face of technological changes, in fact, it seeks vast new surveillance and monitoring tools. Among the new powers given to law enforcement are: 1. Real-time access to transactional information creates the ability to monitor individuals in real time. The bill would require common carrier network (telephone companies and anyone who plans to get into the telephone business, such as cable TV companies) to deliver, in real time, so called "call setup information." In the simplest case, call setup information is a list of phone numbers dialed by a given telephone currently under surveillance. As we all come to use electronic communications for more and more purposes, however, this simple call setup information could also reveal what movies we've order, which online information services we've connected to, which political bulletin boards we've dialed, etc. With increasing use of telecommunications, this simple transactional information reveals almost as much about our private lives as would be learned if someone literally followed us around on the street, watching our every move. We are all especially vulnerable to this kind of surveillance, because, unlike wiretapping the *content* of our communications, it is quite easy for law enforcement to get permission to obtain this transactional information. Whereas courts scrutinize wiretap requests very carefully, authorizations for access to call setup information are routinely granted with no substantive review. Some federal agencies, such as the IRS, even have the power to issue administrative subpoenas on their own, without appearing before a court. The real impact of the FBI proposal turns, in part, on the fact that it is easy to obtain court approval for seizing transactional data. The change from existing law contained in the FBI proposal is that carriers would have to deliver this call setup information *in real time*, directly to a remote listening post designated by law enforcement. Today, the government can obtain this information, but generally has to install a device (called a 'pen register') which is monitored manually at the telephone company switching office. 2. Access to communication and signalling information for any mobile communication, regardless of location allows tracking of an individual's movements. The bill requires that carriers be able to deliver either the contents or transactional information associated with any subscriber, even if that person is moving around from place to place with a cellular or PCS phone. It is conceivable that law enforcement could use the signalling information to identify that location of a target, whether that person is the subject of a wiretap order, or merely a subpoena for call setup information. This provision takes a major step beyond current law in that it allows for a tap and/or trace on a *person*, as opposed to mere surveillance of a telephone line. 3. Expanded access to electronic communications services, such as the Internet, online information services, and BBSs. The privacy of electronic communications services such as electronic mail is also put at grave risk. Today, a court order is required under the Electronic Communications Privacy Act to obtain the contents of electronic mail, for example. Those ECPA provisions would still apply for the contents of such messages, but the FBI bill suggests that common carriers might be responsible for delivering the addressing information associated with electronic mail and other electronic communications. For example, if a user connects to the Internet over local telephone lines, law enforcement might be able to demand from the telephone company information about where the user sent messages, and into which remote systems that user connects. All of this information could be obtained by law enforcement without every receiving a wiretap order. 4. The power to shut down non-compliant networks Finally, the bill proposes that the Attorney General have the power to shut down any common carrier service that fails to comply with all of these requirements. Some have already called this the "war powers" provision. Granting the Department of Justice such control over our nation's communications infrastructure is a serious threat to our First Amendment right to send and receive information, free from undue government intrusion. ******************************** The posting represents EFF's initial response to the new FBI proposal. Several documents, including the full text of the proposed bill and a more detailed section-by-section analysis are available by anonymous ftp on EFF's ftp site. This docuemnt is digtel94.announce The documents can be located via ftp, gopher, or www, as follows: ftp://ftp.eff.org/pub/EFF/Policy/Digital_Telephony/digtel94_bill.draft ftp://ftp.eff.org/pub/EFF/Policy/Digital_Telephony/digtel94_analysis.eff ftp://ftp.eff.org/pub/EFF/Policy/Digital_Telephony/digtel94.announce for gopher, same but replace first part with: gopher://gopher.eff.org/00/EFF/... for WWW, same but replace first part with: http:/www.eff.org/ftp/EFF/... ******************************** Press inquiries, contact: Jerry Berman, Executive Director Daniel Weitzner, Senior Staff Counsel +1 202-347-5400 ************************************************************************** "I believe in markets doing what they do well, which is to develop technology, and letting citizens do what they ideally do well, which is to set policy." -Esther Dyson, President, EDventure Holdings, Inc. The Electronic Frontier Foundation is working to protect your privacy. To help stop Clipper and eliminate export controls on cryptography, support a bill introduced in the House of Representatives, HR 3627. To support the bill, send email to . ...................................................................... Daniel J. Weitzner, Senior Staff Counsel Electronic Frontier Foundation 202-347-5400 (v) 1001 G St, NW Suite 950 East 202-393-5509 (f) Washington, DC 20001 *** Join EFF!!! Send mail to membership@eff.org for information ***