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government lacks thu linancial resources to mouemize its cummunicatuins equipment or to fund the costs of lawful interceptions that it initiates.
Since the total number of content wiretaps in 1991 authorized by Federal | and State courts was only 856 laps (and almost 60% of these were at the State level, 356 Federal versus 500 Slate), and since the call-set-upar pen register tap orders for 1991 at the Federal level were only 2.445. (thus, implying a national total under 7.000), it appears the costs may be better targeted to the specific lines or ports necessary, instead of burdening all lines of ports existing in the network
By comparis.mn, there were over 138 million access lines as of December 31, 1990 according to the United States Telephone Association, and this does not include ports used for cellular ur many other network accesses. (We under stand the current FBI budget provides for $9 million for new digital telephony interception equipment.) Thus, although there is valid reason to be concerned that changes in technology will challenge law enforcement agencies to find and adopt new techniques, there is no immediate crisis requiring swift action.
Broad Scope of the Current Proposal.
These absolute requirements might not be capable of being met, as a technical matter, in some contexts, regardless of costs. The proposal is redundant, in the sense that it requires the ability to access communications at all points during their transmission, even though access at one point is all that is needed in any given circumstance. Although current wiretap law requires "minimization and use of wiretaps as a last resort," the proposal imposes obligations on all communications systems as if preserving the ability to wiretap at any point should be the system designer's highest priority. The application of these requirements would have substantially different costs and other implications depending upon where in a communications pathway they were actually applied. In uny event, they dramatically expand the nature and reach of current law – which requires cooperation but does not grant the government a right to redesign the communications network or the equip ment used by large numbers of businesses.
The FBI has defended its proposal on the ground that it is only seeking to "preserve the status quo," by preventing changes in technology from taking away capabilities that Congress meant to assure when it passed the 1968 and 1986 wiretap statutes. But that nischaracterizes the "status quo. The current wiretap statutes take the communications networks as they find them and do not require any provider of communications service to redesign the system, or to refrain from using any particular technology, solely on the ground that such a technology would make interception more difficult. While there may well be
(The proposal) greatly expands the
jurisdiction of the Attorney General and would represent a giant step beyond
current law and congressional intent
going back to 1968.
sound reasons for all concerned to cooperate to seek to preserve for the government a practical ability to engage in authorized wiretapping there is simply no cristing legal authority for law enforceanent officials to mandate the we a particular technologies and, thus, contrary to the claims made by the FBI, the proposal doce nor simply maintain the status quo, but greatly expands the jurisdiction of the Adorney General and would represent a glant step beyond current law and congressional Intent going back to 1968.
While the proposal impoves rubstantial uncertainties, there is no question that, as drafted, I would have an extremely brand reach. As a result, it could complicate the development of various new technologies. Even though the language of the proposal would extend to cable information systems and Au.onated Teller Machines ("ATMS), the FBI has stressed in its proposal that various systems might be exempted by executive action. But the exemption authority is vague and standardlea - to the net effect is that every system provider has to worry on a continuing basis about whether or not iis system b covered. Moreover, the proposal is clearly designed to cover any system facilitating two-way conversation, regardless of the size of the communicaHomsservice provider. In consequence any small business that installs its own local PBX system for forwarding calls from customers could be required to replace its equipanent with new switches that meet the law's requirements. If current online information services do not track the "services and features used by those who send messages through thetr electronic mail channels, then expensive modifications might be mandated. Because these electronk mail systems are all being poined together, and soune function as links that forward messages between other systems, all night have to be designed to allow 'real ting interception by retransmission to a remote site -- even though delayed searches of stored files would seem to anake a lot more sense in the context of electronic mall.
Costs Likely to Be Imposed by the Proposal.
The proposal mandates compliance with very brondly stated functional standards and contemplates the exemptions (available from the Attorney General, without the benefit of any specific standards or criteria) will be granted only after this broad new governmental authority has been enacted Into law. The most recent proposal assumes that the costs of compliance will becoane a cost of doing busineu imposed on all communications service providers and passed on to telephone ratepayers and other subscribers to dectronic communications services. (The current law's provision that the government will pay reasonable expenses incurred in cooperating with a spadfc request for interception has not been expressly applied to this new requirement to provide the capability and capacity to respond to such requests) Communication service providers and computer equipment manu. facturers could suffer major lowes as a result of delays, mandatory redesigns, and even prohibition of certain technological options. There has been no opportunity as yet to compare (1) the costs the rol would incur to modernize its approach to interception (especially given the data on the small number of taps performed annually) with (2) the costs that would be incurred by
Although there is valid reason to be concerned that changes
in technology will challenge law enforcement agencies
to find and adopt new techniques, there is no immediate crisis requiring swift action.
consumers as a result of mandatory limitations on new technology design applied to all technologies nationwide.
Uncertainties Created by the Proposal.
What exactly are the boundaries of the "public switched network to
As drafted, the proposal appears to threaten U.S.
interests in international trade and competitiveness.
We don't know the answers to these questions, despite their importance. More importantly, the answers to key policy questions may differ substantially depending on what particular technology and interception need (and minimization goal) is being addressed. And we don't even know by what means providers of electronic communications services and designers and users of electronic communications and computing equipment will find out how the requirements will be applied to their systems. In short, the FBI's proposal, as currently drafted, may generate new and unnecessary contro versy. despite its legitimate goals, by attacking perceived problems at the wrong level of generality.
Threat to Security and Privacy.
Legitimate Law Enforcement Concerns Should Be Served. Thwre is no doubt that authorized wiretapping to an inportant weaton properly used by the FBI to fight serious critne. And there is generaicgrcearcni anong communications service providen, and the makers of communkra. tions and computing equipmetel, that the FBI is entitled mful cooperation la its efforts to exercise the powers granted to it in the wiretap statute. If new technologies require changes in police tactia, then acroar.modations may be needed on all sides to make sure that new tactics that do not threaten the effectiveness or safety of law enforcement for unreasonably threaten privacy Interests) are available. The FBI proposal has served a valuable purpose in drawing attention to the need for adequate planning and ratnubled coopera tive efforts
It Is Too Soon to Know if Legislation Will Be Necessary.
Congress shoaid reject the FBI proposal
and encourage continuing discussions....
The Proposal Is Premature in light of Industry Efforts.
may be ripe for decision, in a context in which the costs and implications of such decisions for trade, security and privacy concerns will be much more clear. Technical Working Groups representing both the telephone companies and the computer industry are hard at work — but the issues are coinplex and even the first stage of identifying serious potential problems for law enforcement will take some time. Consideration of proposed solutions should await the results of these detailed and technical discussions.
Conclusion. As the broad collaboration that accompanied consideration of the 1986 amendments to the wiretap statute showed, the public interest in sound law enforcement, and public expectations of privacy and security, are best served by encouraging a constructive exchange of views among industry, concerned citizens and government before any new legislation is enacted. Congress should reject the FBI proposal and encourage continuing discussions that will lead to more specific identification of any problems and to concrete, ecsteffective solutions.
For further information contact:
John Podesta, Coalition Legislative Counsel (202) 514-6906
Electronic Frontier Foundation
202) 344-9237 tel