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tronic communications." 1 Pointing to advanced cellular technology and new digital features that "have already frustrated orders,” the FBI notes that “[t]his happened because the legitimate needs of law enforcement were not considered during the design and development phases of the systems."2
The solution, according to the FBI, is legislation mandating the telecommunications industry to accommodate the legitimate needs of law enforcement during the design and development phases of new technologies so that, when served with a court order, they will be able “to identify and provide the entire content of specific telephone conversations to the exclusion of all others, regardless of the technology involved." 3
Specifically, the FBI proposal would impose obligations to provide various generic interception "capabilities and capacities and empower the Attorney General to grant exemptions, after consultation with the Federal Communications Commission, the Department of Commerce, and the Small Business Administration. Any person who manufactured equipment or provided a service that did not comply with the broad and vague requirements of the proposed statute would be subject to a civil penalty of $10,000 per day. In short, the FBI proposal would grant the government a right to mandate the use of particular technologies, block other technologies, and effectively redesign the communications network and the equipment used by large segments of our society.
Ironically, the FBI concedes that the desired industry-developed "technical solutions” to the needs of law enforcement should, of course, also be both "cost effective” and sensitive to "the intense competitive demands of the market place.” 4 Yet, the proposal imposes a burden on the more than 140 million lines or ports existing in the U.S. telecommunications network, rather than the less than 10,000 lines targeted for court-ordered interception, each year, i.e., the five thousandths of one percent (.005 percent) of the network subject to wiretaps. 2. What are the government's "current authorities"?
The Wiretap Act, as amended by ECPA, governs the government's communications surveillance activities. Electronic or wire surveillance requires prior authorization by court order (or, in emergency cases, must be approved by the court within 48 hours of inception). Only upon a showing that satisfies the statutory requirements, may a federal court issue an order authorizing a specified law enforcement agency to intercept a certain type of communication by an identified individual for a definite period of time in order to obtain evidence concerning specified offenses.6
Since 1970, federal law has also authorized federal courts, upon the request of a law enforcement agency, to direct telecommunications providers and other persons to furnish "all information, facilities, and technical assistance necessary to accomplish a surveillance permitted by law.7 While the statute does not define "technical assistance,” the Senate Committee Report accompanying ECPA stated that the provision “is a codification of the cooperative working relationship that exists between telephone companies and law enforcement officials."8 Further, the report makes clear that Congress did not intend to make the assistance obligation unlimited by, for example, making the telephone industry, “in effect, a branch of Government law enforcement.” 9 It certainly reveals no mandate to change the communications networks in order to make authorized interceptions possible.
1 FBI, Digital Telephony: A Legislative Proposal, at p. 1 of "Summary of Issues” (Feb. 1993). Although the FBI has recently circulated a new draft of its proposed legislation, the Agency's justifications for the legislation remain essentially the same as in 1992 and 1993.
21d. As noted infra at part B.5, FBI records about "Project Root Canal" recently released pursuant to a Freedom of Information Act request show that FBI field offices nationwide were reporting that they and other federal, state, and local law enforcement agencies were experiencing no problems" and "no difficulties" with new telephone technologies at the same time as the FBI was contending that such technologies had already frustrated" wiretap orders. 3 Id. at p. 2*
8 The total number of court-authorized content wiretaps in 1991 was 856 (almost 60 percent of which were at the state level), while the call-set-up or pen register tap orders for 1991 at the federal level were only 2,445, which implies a national total under 7,000. See Administrative Office of the United States Courts, Reports on Applications for Orders Authorizing or Approving the Interception of Wire, Oral, or Électronic Communications
(1983-1992). By comparison, according to the United States Telephone Association, the number of access lines exceeds 140 million.
8 See 18 U.S.C. 82510 et seq. In certain limited circumstances specified by the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. $$ 1802 et seq.), electronic or wire surveillance to acquire foreign intelligence information may not require court authorization.
See 18 U.S.C. 882518(4), 3124; see also 50 U.S.C. & 1802(aX4). 8 S. Rep. No. 541, 99th Cong., 2nd Sess. 29 (1986).
There are no reported court decisions on the assistance requirement since the enactment of ECPA. 10 A review of pre-1986 judicial opinions shows that there have been few instances where telecommunications providers have challenged the propriety of court-ordered technical assistance. In the rare cases that have arisen, the courts have ruled in favor of the government and against the telecommunications carrier. 11 3. Exaggerations: An illustration
In promoting its digital telephony proposal, the FBI has advanced exaggerated claims that a crisis exists in law enforcement. It is important to keep the claims in perspective when determining what precisely is the digital telephony “problem.”
For instance, one example routinely used in the past is the effect of fibre optic cables, which transmit communications digitally, on the FBI's ability to intercept communications. It has been said that FBI agents tapping into fibre optic trunk lines would hear only computer code or nothing at all. Alternatively, tapping a highcapacity fibre optic line would result in the interception of thousands of conversations, making it nearly impossible for FBI agents to find the conversation of suspected criminals in the complex "bit stream." By contrast, with lower speed, lower capacity telephone lines carrying analog transmissions (the electronic signals used by the first telephones in which sounds correspond proportionally to voltage) law enforcement agents can clearly hear conversations. 12
This characterization of the fibre optic “problem” illustrates two issues. First, it reveals an ignorance of fundamental aspects of the way law enforcement conducts wiretaps today. Second, it shows the unreasonableness of law enforcement's demands if taken to their logical conclusion.
This characterization of the fibre optic “problem” overlooks the fact that wiretaps are made at the local loop, not off trunk línes, regardless of technology. Local loops are the telephone lines connecting homes and offices to switches at telephone company central offices. A telephone company usually has various central offices in a city. The trunk lines connect central offices within a city or between cities. Courtordered wiretaps operate off the local loop connecting the telephone to be intercepted and the switch of the nearest telephone company central office, not the trunk line.
Because access at one point is all that is needed for wiretapping in any given circumstance, it would be unreasonable for the FBI to demand access to a communication at any point in its transmission on any telephone line, including a fibre optic line. Thus, the fact that fibre optic lines are being deployed is essentially irrelevant. The important issue for law enforcement is the continued ability to isolate individual communications at the customer side of the last switch. As is discussed below, at part B.1.a, industry has teen working with law enforcement to address this issue in the context of recent developments in the decade-long deployment of fibre optic in the local loop, known as digital loop carrier, and more recent deployment of integrated services digital network (ISDN) lines.
The need for isolating individual communications, however, leads to the second issue illustrated by this characterization of the fibre optic “problem”: the unreasonableness of law enforcement's demands if taken to their logical conclusion.
Just like it would be unreasonable for the FBI to demand access to a communication at any point in its transmission on any telephone line, it would be unreasonable for the FBI to demand any person involved with the communication to furnish it with access to the communication. Local telephone companies, for example, need to isolate communications for purposes of billing and maintenance. It is reasonable for the FBI to seek their assistance in intercepting communications on their network; the request is reasonably related to the business services provided by the telephone company.
A packet switching company, on the other hand, does not have a need for isolating individual communications. It provides "wholesale,” bulk access to trunk lines, bills for its services accordingly, and has no means of finding a specific conversation in the complex "bit stream.” Because the company is not set up from a business perspective to isolate conversations, it would be unreasonable for the FBI to seek their assistance in intercepting communications on their network. Indeed, to facilitate re
10 The last published decision on the technical assistance requirement appears to be United States v. Mountain Bell, 616 F.2d 1122 (9th Cir. 1980), which held that even in the absence of a federal statute governing governmental use of trap and trace devices for electronic surveillance, federal courts possess the requisite authority to direct a telephone company to assist the government in its use of a trap and trace device.
11 See, e.g., United States v. New York Telephone, 434 U.S. 159 (1977).
12 See, e.g., Anthony Ramirez, "As Technology Makes Wiretaps More Difficult, F.B.I. Seeks Help," New York Times, March 8, 1992, at A22.
sponding to such FBI requests, the entire packet switching industry would need to undertake a costly reconfiguration of its services for entirely noncommercial reasons.
This would be unreasonable and unnecessary. Such a demand of a packet switching company is akin to demanding that an airline land a jumbo 747, rummage through the cargo compartment, unload the bags of mail, and locate the envelope for which a warrant has been issued, when the envelope can be seized by postal authorities at the sender's or recipient's locality before or after it is shipped by air. Yet, the legislation proposed by the FBI in 1992 was clearly designed to cover any system facilitating two-way conversation, and would have required packet switching companies to modify their business to accommodate “the legitimate needs of law enforcement.”
Thus, it is critical to keep the FBI's claims in perspective when determining what precisely is the digital telephony “problem.” B. CONTINUED COOPERATION WITHIN THE WORKING RELATIONSHIP THAT HAS EMERGED
FROM THE QUANTICO JOINT GOVERNMENT INDUSTRY GROUP WILL RESOLVE THE DIGITAL TELEPHONY PROBLEM AND PRESERVE THE GOVERNMENT'S CURRENT AUTHORI
TIES 1. The FBI and the electronic communications industry are engaged in a cooperative
working relationship aimed at addressing law enforcement's legitimate needs The FBI and the electronic communications industry are engaged in a cooperative working relationship aimed at addressing the legitimate needs of law enforcement to lawfully intercept electronic or wire communications and at ensuring that these needs are taken into account during the design and development phases of new technologies. The goal is for electronic communications providers, when served with a court order, to be able to identify and provide the entire content of specific telephone communications to the exclusion of all others, regardless of the technology involved, while ensuring that this goal is accomplished through technical solutions that are both cost effective and sensitive to the intense competitive demands of the market place. a) The ECSPC
Industry and law enforcement officials have established a permanent forum and a process by which to identify and resolve problems. This forum is the Electronic Communications Service Provider Committee (ECSPC), sponsored by the Alliance for Telecommunications Industry Solutions (ATIS), formerly the Exchange Carriers Standards Association. ATIS is a recognized industry association that seeks to resolve issues involving telecommunications standards and operational guidelines. More than 300 companies participate in ATIS-sponsored committees. 13
ECSPC, established in March 1993, is the successor to the "Technical Committee,” a temporary committee of experts from industry and government, which was established in May 1992 by the Quantico Joint Government Industry Group. The "Technical Committee's" charter was to: • Develop a process for incorporation of law enforcement's needs into future in
dustry technology standards, technical requirements, and specifications; • Develop technological capabilities and procedures to permit continued intercep
tion by law enforcement of communications that use transition technologies;
and • Monitor and track the timeliness of industry's response to law enforcement's re
quests for intercepts. The goal is “zero-held intercepts.” Like the "Technical Committee," ECSPC consists of representatives from both industry and government. Its mission is to “establish an open, yet secure forum between the telecommunications industry and law enforcement representatives to identify those technical and associated operational issues related to lawfully-authorized electronic surveillance and to develop resolutions to such issues for voluntary implementation by the industry." Representatives from various telecommunication companies and associations regularly attend ECSPC meetings, including:
18 ATIS's Toll Fraud Prevention Committee ("TFPC”) was viewed as a possible model for ECSPC because TFPC deals with sensitive issues that require participants to sign nondisclosure agreements.
Representatives from the following state and federal government agencies regularly attend ECSPC meetings:
• Bureau of Alcohol, Tobacco, and Firearms
ECSPC has been meeting in six- to eight-week intervals. In addition to resolving organizational matters (e.g., by-laws), ECSPC has been addressing problems that law enforcement has identified, in the order of priority that law enforcement has assigned them.
Little or no evidence has been presented to the ECSPC of held orders that require technical solutions. Efforts are under way to better track any held orders that may exist. (Held orders are requests for lawfully-authorized electronic surveillance that electronic communications service providers are unable to fulfill at the time they are made.)
Law enforcement representatives report to their industry counterparts on the ECSPC that they are satisfied with this forum, and the dedication and seriousness of the participants. A recent published report that FBI officials were still dissatisfied with industry 14 has stimulated the ECSPC to accelerate its pace even further. b) ECSPC Action Teams
Four separate "action teams," staffed by representatives of both industry and government, meet more frequently than does the full ECSPC to check transition technologies against law enforcement's "nine requirements." These teams propose technical solutions which are then checked with operational staff and the Telecommunications Security Association. Where appropriate, vendor requirements are drafted.
The areas that have been the focus of ECSPC's work include:
I. DIGITAL LOON CARRIER Deployment of digital fibre optic cable in the local loop began over ten years ago. It presented no problem for law enforcement as long as communication providers were able to isolate individual communications at the customer side of the last switch. Design improvements have enabled the fibre to be integrated directly at the switch. This requires communication providers and law enforcement officials to devise new methods (e.g., test ports) of isolating individual communications at the customer side of the last switch, which may now be fully integrated at the switch.
14 See Paula Bernier, "FBI Says New Technology Hinders Wiretaps, Seeks Re-engineering," Telephony, Aug. 16, 1993, at 7 & 14 (quoting Barry Smith, supervisory special agent of congressional affairs for the FBI, as complaining that "no solutions have been forthcoming" by the ECSPC to cellular and call forwarding problems).
II. CUSTOM CALLING FEATURES Switch-based custom calling features such as call forwarding, which allows a user to transfer calls to other phones, challenge law enforcement's ability to follow calls. Because wiretaps are installed at the customer side of the last switch, a law enforcement agency may be lead to believe that no calls are being made when in reality all the calls are being re-routed at the switch. When call forwarding features could only be accessed through customer purchased equipment placed on the customer's premises, law enforcement could follow the calls because the calls went through the local loop and were redirected at the customer's premises. With switch-based features, the calls are redirected at the switch and do not pass through the local loop at all.
III. INTEGRATED SERVICES DIGITAL NETWORKS (ISDN) Integrated Services Digital Network (ISDN) is an increasingly popular technology that converts today's analog telephone lines into digital signals. Digitization offers much higher data capacity,
better audio quality, and greater control over advanced telephone features.
Just like a regular telephone jack will not work with an ISDN line, law enforcement cannot use the same equipment to wiretap an ISDN line that it uses to tap a traditional analog voice telephone line. A basic ISDN line has six channels_two in one direction, two in the other, and two "signalling" channels (one in each direction), which the system uses continuously. Tapping these lines requires the ability to sort out the two channels being used by the suspected criminal from the remainder of the bit stream.
As is the case with other new technologies mentioned here, telephone company engineers have already identified readily available technology that can be used to enable law enforcement to maintain their surveillance capabilities on new, ISDN lines. Nearly two years ago, Bellcore technicians demonstrated to law enforcement officers that commercially-available ISDN testing equipment can also be used to tap into ISDN lines. Even though one ISDN line actually carries up to six data streams, the standard equipment used by Bellcore enables law enforcement to separate out each individual data stream for surveillance.
The days when law enforcement officers climb up telephone poles and tap into a conversation by attaching alligator clips directly to the telephone line are dwindling in number; in the majority of jurisdictions law enforcement officers prefer to have the
tapped communications rerouted to a remote, safer location. ISDN may precipitate the end of these remaining “field taps.” To the extent that a field tap is still required, however, these days the officer is well advised to bring along a hand-help device called an ISDN protocol analyzer. Such devices are readily available for about $2000.
IV. CELLULAR COMMUNICATIONS Cellular telephony can present both capacity and technical challenges to law enforcement. 18
Let's first compare interception of noncellular communications to interception of cellular communications. Keeping in mind that access at one point is all that is needed for wiretapping, the wiretap target's location is always known in noncellular telephony. The nearest central office can be identified, and the telephone company can furnish the police with the target's cable make-up for interception. By contrast, because cellular's mobility allows its users to send and receive calls from multiple points, the target's location can change throughout the day, or from day to day. As the target moves, his or her calls originate at or are handed off to a different cell site. This has forced cellular service providers to establish wiretap connections at a central location on the provider's premises.
The capacity problem arises when a cellular service provider exhausts the ports at which wiretap connections can be made. In the New York City area, a cellular provider for several years had the capacity for handling only twelve such simulta
16 It is important to distinguish those issues arising out of limitations in communications equipment capacity from those arising out of communications equipment design characteristics. The former may be peculiar to a particular service area or region due to an unusual demand for wiretaps, the nature of a particular service provider's network equipment, or the geography. The solution to any problem may lie in the acquisition of certain equipment by the particular service provider or by the particular law enforcement operation. The latter issue, by comparison, reflects a technical matter inherent in the technology as it is deployed anywhere in the country.