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AN ANALYSIS OF THE FBI DIGITAL TELEPHONY

PROPOSAL

September 18, 1992

This report was prepared by
The Electronic Frontier Foundation

in coalition with:

wind - The Microcomputer Industry Association
Advanced Network & Services, Inc.

Agson, Inc.
American Civé Liberties Union

Astow

ATUT
Business Software Allance
Cellular Telecommunication Industry

Amodation
Computer and Business Equipament

Manufacturas Amodation
Computer and Communications Industry

Association
Computer Professionals for Social Responsibility
Digital Equipament Corporation

Eastman Kodak
Electronic Mall Association
Graphics Technologies, Inc.

IBM
Information Industry Association

Information Technology Association of

Ameria

Iris Associates
Logistics Management, Inc.
Lotus Development Corporation

Merisel, Inc.
Micro Computer Centers lanc.
Microsoft Corporation

Okidata

Once

Panama
PC Parts Express

Prodigy
Seneca Data Distributors, Inc.
Software Publishers Association

Sun Microsystems
Telecommunications Industry Association
United States Telephone Association

Westbrook Technokogies

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Average Number of People Intercepted Per Tide III Intercept 1968-1993

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Executive Summary

Although the FBI has characterized its proposed Digital Telephony legislation as relating to the preservation of Soukrument's ability to engage in authorized wiretap ping, the proposal actually requires that all communications and computer systemske designed to facilitate interception of private messages, on a concurrent and remote basis -- thus imposing new engineering standards that go far beyond any existing law. As currently drafted, the proposal would impose substantial costs and create significant uncertainties, despite the absence of any clear showing that the proposed measures would be either effective or necessary. In addition, the proposal raises serious sourity aut privacy concerns.

Beginning in 1991, the FBI expressed concern that technological changes occurring in the telecommunications industry might have an adverse effect on the ability of law enforcement officials to conduct lawful authorized wiretapping. For example, the FBI raised questions about its ability to extract individual telephone calls froir multiplexed signals sent over light fibers using new digital protocols. Various FB! proposals have generated concern on the part of industry that the security and privacy of electronic communications and computer systems might be weakened and that the competitiveness or technical advancement of serious systems might be undercut. No one in industry challenges the FBI's right to cooperation in seeking to implement wiretaps or disagrees with the proposition that law enforcement officials need communications interception tools to do their vital job. The communications industry. network users and public interest groups are concerned with the sweep of the FBřs draft proposal and the potential uncertainties and costs it would impose.

Although the FBI proposal is described as relating to "digital telephony." it actually applies to all forms of communication, including all computer networks. The proposal requires that equipment be designed to give access to communications on a

concurrent“ basis, regardless of the mobility of a target, in isolation from messages being exchanged by any other persons. These requests may have complex and differing application in different contexts, but they would certainly introduce additional costs and uncertainties for both equipment manufacturers and everyone who offers messaging service to others. These days, the list of those covered by the proposal ("providers of electronic communications services and "PBX owners) includes just about cveryone. Because the wiretap statute was written to protect the privacy of broad range of communications types, and because of the growing interdependence and intermixing of all forms of communications, the statutory language of the FBI proposal could turn out to require redesign or expensive alteration of

While the FBI proposal is described as

relating to "digital telephony," it actually applies to all forms of

communication, including all computer

networks.

• public electronic mail systems, like those offered by MCI, AT&T and

others; • all telephone switches and the equipment used by long distance carriers; • software used by online information services like Prodigy, Genie, Com

puserue. America Online and many others; • local area networks, linking all kinds of computers, operated by somall businesses, colleges and universities and other organizations, including

links into these systems from homes and offices; • PBXs owned by small and large businesses: • high speed networks connecting workstations with mainframes and

supercomputers, as well as those carrying traffic across the "Internet;" • radio-based and cellular communications systems, including pocket tele

phones and computers with radio-based modems; • The thousands of personal computers owned by businesses, hobbyists, local

governments, and political organizations that communicate with others

via computer bulletin boards; • private metropolitan wide area communications systems used by busi

nesses such as large benks; • satellite uplink and doumlink equipment supporting radio and television

transmissions and other communications: and

• air-to-ground equipment serving general aviation and commercial air.

craft.

The United States is becoming an information economy. Imposing mandatory system design requirements on those involved in the transfer of information has an impact on large numbers of people and most sectors of the economy.

There is no doube that coolving lechnologies will challenge law enforcement officials and industry alike. We need affective loro enforcement tools, as well as appropriate levels of privacy and security in communications and computer systems. The goals underlying the FBI proposal are valid and important ones. Bui they may well be best achieved without additional legislation. Industry has historically cooperated with law enforcement and is presently engaged in ongoing discussions to identify specific problems and concrete solutions. This cooperative process will lead to needed exchanges of technical information, better understanding on all sides of the real policy issues, and better, more cost-effective solutions. Congress should reject the FBI proposal and encourage continuing discussions that will lead to more specific identifiation of any problems and to more concrete, cost-effective solutions.

The Digital Telephony Report

Introduction: What Is Proposed?
The most recent FBI proposal imposes obligations to provide various generic
interception "capabilities and capacities and empowers the Attorney Genre
eral to grant exemptions, after consultation with the Federal Communications
Commission, the Department of Commerce and the Somall Business Adminis
tration. Any person who manufactures equipment or provides a service that
does not comply with the broad and vague requirements of the proposed
statute would be subject to a divil penalty of $10,000 per day.
How Serious Is the Problem?
The predicate for the FBI proposal is that advances in technology have made
it more difficult for the government to intercept particular telephone conver-
sations in the course of legally-authorized wiretapping. There have been few
actual problems, historically, in executing authorized wiretaps. None have
stemmed from characteristics of communications equipment design (as dis-
tinct from limitations in equipment capacity). On the other hand, it is clear that
changes in the technologies used for communications will require the FBI (and
the communications industry asa whole) to use new techniques and to acquire
additional equipment and skills. Some developments, such as encryption,
may make interception (or, at least, understanding the contents of what has
been "intercepted“) much more difficult - but in ways that are not even
addressed and cannot be fixed by the proposed legislation. It is difficult to
evaluate the FBI argument that it would have asked for more interceptions if
some technological barriers had not existed. There have always been and will
always be some technological barriers to interception of the content of commu-
nications the participants seek to protect.)

Existing law requires all companies providing electronic communications services to cooperate fully with lawful requests from the FBI and other law enforcement officials - and there is no history of any general failure to provide such cooperation

Existing law contemplates that the government will bear the costs imposed by requests for access to communications. (As noted below, the proposal does not specifically extend that principle.) There is no showing that the

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There have been few actual problems,

historically, in executing authorized

wiretaps. None have stemmed from characteristics of

communications equipment design..

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