Date: Tue, 31 Aug 1999 22:36:21 -0500 (CDT)
From: "Harry M. Cleaver" <hmcleave-AT-eco.utexas.edu>
Subject: AUT: Big Brother just got more tools



---------- Forwarded message ----------
Date: Tue, 31 Aug 1999 13:37:58 -0400
From: Ari Schwartz <ari-AT-cdt.org>
To: policy-posts-AT-cdt.org
Subject: CDT Policy Post 5.21 -  FCC Mandates Surveillance Features in Phone
    System

============================================================C D T   P O L I C Y   P O S T
***********************************************************************
A BRIEFING ON PUBLIC POLICY ISSUES
AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY
***********************************************************************
Volume 5, Number 21      August 31, 1999
============================================================
CONTENTS:
(1) FCC Mandates New Telephone Surveillance Features
(2) Turning Cell Phones Into Tracking Devices; Other Features
(3) Packet Switching - CALEA's Sleeper Issue
(4) CDT Examines Appeal
(5) Subscription Information
(6) About the Center for Democracy and Technology

** This document may be redistributed freely with this banner intact **
Excerpts may be re-posted with permission of ari-AT-cdt.org
This document is also available at:
http://www.cdt.org/publications/pp_5.21.html
_______________________________________________________________________

(1) FCC MANDATES NEW TELEPHONE SURVEILLANCE FEATURES

On Friday, August 27, the Federal Communications Commission (FCC) ordered
the nation's telephone companies to modify their switching equipment to
provide more information to government agencies conducting electronic
surveillance.  The Commission largely rejected privacy concerns and aligned
with the Federal Bureau of Investigation, which had sought the enhanced
monitoring capabilities under the 1994 Communications Assistance for Law
Enforcement Act (CALEA).

The decision was the latest step in a long-running struggle over the
surveillance potential of communications technology. CALEA was enacted in
1994 after the FBI complained to Congress that new digital technology and
other advanced services would soon make it impossible to carry out wiretaps
and other electronic surveillance.  The FBI originally sought direct
control over phone system design.  Congress refused to grant the Bureau
that kind of power, but adopted CALEA with the intent of balancing law
enforcement, privacy and industry interests.  Congress made it clear that
CALEA was intended to preserve but not enhance government monitoring
capabilities.  The Act left design decisions to the telephone  industry,
subject to FCC review.

However, soon after CALEA was enacted, the FBI began insisting on very
specific surveillance features, including some never before available to
the government.  After industry worked with law enforcement agencies to
draft technical standards to put CALEA into effect, the FBI claimed the
industry plans did not go far enough and petitioned the FCC to order
additional, specific surveillance features.  CDT claimed that the industry
plan failed to protect privacy and opposed the FBI's add-ons.
_________________________________________________________________

(2) TURNING CELL PHONES INTO TRACKING DEVICES; OTHER FEATURES

The most immediately disturbing element of the FCC's ruling was its
requirement that cellular and other wireless phone companies provide the
capability to identify where their customers are at the beginning and end
of every call, effectively turning wireless phones into tracking devices.
In 1994, FBI Director Louis Freeh testified twice before Congress that
CALEA did not cover this kind of location information.  While many cellular
systems already have some ability to locate callers, CDT argued to the FCC
that this should not be a mandatory element of system design.  CDT was
concerned that, as the technology evolves, the FBI is likely to seek more
and more precise location information.  The FCC ignored the legislative
history and rejected CDT's concerns

In addition, for both wireline and wireless systems, the FCC ruled that
six other specific surveillance features sought by the FBI were required by
CALEA. One of the six requires carriers to ensure that the government will
be able to continue listening to those on a conference call after the
criminal suspect has dropped off the call. Another add-on guarantees the
government access to credit card numbers and bank account data generated
when a user punches numbers on a telephone. Other add-ons ensure government
access to the detailed signaling information generated in connection with
calls, information that law enforcement would obtain under a legal standard
lower than the one required to conduct a wiretap. CDT and the telephone
industry had argued that none of these items was required by CALEA.

Carriers are currently required to comply with most aspects of CALEA,
including the location mandate, by June 30, 2000.  The other features
required by the FCC last week must be available to the government by
September 30, 2001.

_________________________________________________________________

(3) PACKET SWITCHING - CALEA'S SLEEPER ISSUE

One CALEA issue of immense importance has received little press attention:
how to conduct electronic surveillance in packet environments.  Packet
technology, until recently used mainly on the Internet, breaks
communication into many small packets, each consisting of some addressing
information and some content.  For efficiency's sake, the packets may be
transported by various routes, and are reassembled at their intended
destination to create a coherent communication.  Packet technology is
becoming increasingly important for voice communications, posing the risk
that the government will obtain access to the content portion of packets
when it has only satisfied the lower legal standard for intercepting the
call routing or addressing information.

CDT argued that CALEA imposes on carriers an affirmative obligation to
design their equipment, to the extent  technically reasonable, to withhold
content from the government when the government has not met the legal
standard to intercept it.  Industry responded that carriers should be
allowed to disclose everything to law enforcement, including content, and
rely on the government not to read (or listen to) what it is has no
authority to intercept.

The FCC declined to require carriers to protect the privacy of packet
communications that the government is not authorized to intercept.
Instead, the FCC requested the industry to report on what steps can be
taken to protect the privacy of packet communications.  Last Fall, the
Commission asked the same question and industry said that protecting
privacy was too hard.  This leaves it to CDT to prove to the industry that
the technology can be designed to protect privacy.

______________________________________________________________

(4)  CDT EXAMINES APPEAL

CDT had believed that CALEA was a balanced statute.  We had accepted the
FBI Director's assurances that the statute would not be used as a mandate
for cell phone tracking, and we had believed that the FCC would resist any
FBI efforts to dictate surveillance enhancements. Yet on all the issues
that mattered, the Commission ruled against privacy and in favor of
expanded law enforcement surveillance.   The ability of the FBI to turn
CALEA on its head does not generate confidence in government claims to be
seeking balanced solutions on other issues such as encryption.

CDT is deciding whether to appeal the decision of the FCC to the federal
Court of Appeals in the District of Columbia.

As of August 31, the full text of the FCC's order has not been released.
The only official description of the FCC's action comes in the form of FCC
press releases, which are available at
http://www.cdt.org/digi_tele/fccpress0899.shtml

For background on CALEA, go to http://www.cdt.org/digi_tele/.

_______________________________________________________________________

(5) SUBSCRIPTION INFORMATION

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(6) ABOUT THE CENTER FOR DEMOCRACY AND TECHNOLOGY/CONTACTING US

The Center for Democracy and Technology is a non-profit public interest
organization based in Washington, DC. The Center's mission is to develop
and advocate public policies that advance democratic values and
constitutional civil liberties in new computer and communications
technologies.

Contacting us:

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World Wide Web:       http://www.cdt.org/


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