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ACLU Opposes FBI Wiretap Access Bill;
Legislation Would Create Dangerous Precedent

For IMMEDIATE RELEASE 
September 26, 1994                                      

Contact: Barry Steinhardt
         BarryS @ aclu.org
         or Kathy Parrent, 212-944-9800, ext. 424


	The American Civil Liberties Union today called on the House
Judiciary Committee to reject the FBI Wiretap Access Bill, H.R. 4922,
which would require private electronics manufacturers to insure that the
FBI can wiretap using developing telecommunications technologies. 

	In a letter sent to Congressman Jack Brooks, Chair of the House
Judiciary Committee, the ACLU stated that the bill "... creates a
dangerous and unprecedented presumption that government not only has the
power, subject to warrant to intercept private communications, but that it
can require private parties to create special access. It is as if the
government had required all builders to construct new housing with an
internal surveillance camera for government use." 

	"Moreover, the FBI has not borne the burden of proving why such an
extraordinary requirement is necessary..." the letter said. 

	A copy of the full letter with the ACLU's detailed objections
follows.
___________________________________________________________________________
September 22, 1994




Honorable Jack Brooks
Congressman, State of Texas
2449 Rayburn House Office Building
Washington, D.C. 20515-4309

Dear Congressman Brooks:

	We are writing to you to express the ACLU's opposition to the
FBI-Wiretap Access Bill, H.R. 4922.  While we were not actively involved
in Subcommittee deliberations, we have reviewed the legislation and we
have several major concerns. 

	The principal problem remains that any digital telephone bill
which mandates that communications providers make technological changes
for the sole purpose of making their systems wiretap-ready creates a
dangerous and unprecedented presumption that government not only has the
power, subject to warrant, to intercept private communications, but that
it can require private parties to create special access.  It is as if the
government had required all builders to construct new housing with an
internal surveillance camera for government use.  Even if such use were
triggered only by a judicial warrant, such a requirement would be strongly
resisted by the American people.  H.R. 4922 establishes a similar
requirement, and is without precedent. 

	Moreover, the FBI has not borne the burden of proving why such an
extraordinary requirement is necessary.  In 1993, there were fewer than
1,000 wiretaps authorized and many of them failed to yield any substantive
evidence while intercepting many innocent conversations.  It is far from
clear that digital telephones will substantially obstruct legitimate law
enforcement efforts.  Without further public discussion and debate, the
public will not have a sufficient opportunity to weigh the loss of privacy
against the FBI's claims.  There has been no opportunity to learn the full
extent of the types of investigations that the FBI claims were precluded
because of a restriction on their public dissemination.  Yet, based on
these secret assertions, 91 such incidents were cited by the FBI.  On
those slim assertions, the public's loss of privacy in digital
communications is all but assured and taxpayers will be asked to pay an
extraordinary price. 

	H.R. 4922 authorizes $500 million over the next four years to
reimburse telecommunications carriers for the costs that would be imposed
by the bill. Even if you accept these cost estimates -- the industry puts
the real cost in the billions -- we will spending $125 million or $125,000
per wiretap, for the fewer than 1,000 taps that will be conducted each
year. 

	As you know, the ACLU has the greatest respect for Congressman
Edwards and Senator Leahy. Both have been tireless champions for civil
liberties. The Edwards/Leahy proposal is an improvement over earlier
versions offered by the FBI and we applaud their efforts to add new
privacy protections. 

	The proposed expansion of the Electronic Communications Privacy
Act to cordless phones and the requirement that a court order be obtained
for transactional data from electronic communication providers both are
steps forward and merit separate consideration by the Congress.  But they
cannot and should not be traded for the unprecedented intrusion
represented by H.R. 4922. 

	In several respects, H.R. 4922 is still too broad in its
application. 

	For example, earlier versions of the bill would have applied
directly to on-line communication and information services such as
internet providers, America On Line, Compuserve, Prodigy etc. H.R. 4922
would apply directly only to "telecommunications carriers" such as the
Regional Bell Operating Companies. 

	But this provision does not narrow the scope of the bill as much
as it might seem. First, with the new presumption that the government is
entitled to require private manufacturers to insure its ability to
wiretap, law enforcement will undoubtedly be back in future years
insisting that this limitation thwarts its efforts and will seek to
broaden the coverage to other information providers.  Once the basic
principle of H.R. 4922 is accepted, what arguments remain to resist its
expansion.  The limited application of H.R. 4922 is surely temporary; what
matters is the basic requirement, not its immediate application. 

	More importantly, law enforcement will still have the opportunity
to intercept on-line communications over the internet or commercial
on-line networks, by tapping into the facilities of the telecommunications
companies. As critics of the earlier versions had noted the coverage of
the on-line providers was largely redundant.  All these communications
still pass over telephone lines. 

	Law enforcement does not need access at every point in a
telecommunication in order to intercept it. Access at any one point is
sufficient and that would be readily available since ultimately on-line
communications must travel over the public switched telephone network
which the bill requires be wiretap ready. 

	Moreover, given the commingled nature of digital communication
lines, it is inevitable that more private information from third parties
will be intercepted than would be the case with analog phones, and the
minimization requirements in the bill will not prevent this. 
 
	In the end, this proposal will make our telecommunications
structure more, not less vulnerable. 

	In its original form the FBI Digital Telephony proposal would have
given the power to the Attorney General to impose standards on
communication providers which would guarantee that their systems were
wiretap-ready. 
	
	Essentially, this would have created a centralized wiretapping
system that threatened the privacy of the entire nation and was dependent
for its security on a few select people.
	
	This raised the real concern that if electronic communications
service providers must design their systems to allow and ensure FBI
access, then the resulting mandatory "back doors" may become known to and
be exploited by "criminals." 

	The new proposal contains the same risks. It would have the
technical standards developed by the industry, through trade associations
or standard-setting bodies, in consultation with the Attorney General. 
But it contains a "safe harbor" provision, which protects a carrier from
sanction if it is in compliance with standards created by this approach. 

	The safe harbor provision virtually guarantees that the standards
developed through the industry-based process will be adopted by all. 
Whether the standards are directly imposed by government or created by
concerted industry action, in consultation with the government, makes
little difference. The result is the same.  A centralized wiretapping
capacity with all of its vulnerabilities will still be created. 

	Finally, we have grave concerns about the encryption provisions. 
The Edwards/Leahy version has been described as "neutral" on encryption.
The bill provides that telecommunications providers do not need to decrypt
data, unless they hold the key. 

	In the short term, this is an improvement over the earlier
versions of the bill which would have created obligations to decrypt, but
there are at least two longer term problems. 

	First, is the new presumption that industry has the affirmative
responsibility to create special technical capacity for the government to
snoop. Can there be any real doubt that the FBI will be back in the years
to come asserting that its ability to intercept communications has been
thwarted by easily available encryption and that an industry obligation,
analogous to the new obligation to provide wiretap capacity, must be
created. 

	Secondly, in some cases the telecommunications providers may well
hold the key -- particularly as they expand the services they provide to
their customers. 

	H.R. 4922 proposes a radical and expensive change in our
telecommunications structure.  The threats it poses, now and
prospectively, are real, but the need for it far less than evident or
proven. We urge that your Committee not rush into consideration of this
far reaching measure with so little time left in the session. 

	We thank you for your consideration of our views and we would be
happy to sit down with you to discuss these issues. 

Sincerely,

Ira Glasser                                   Laura Murphy Lee 

--endit--

The ACLU urges interested persons to contact the following members of 
Congress immediately:

Rep. Jack Brooks			Sen. Howard Metzenbaum
(202) 225-6565 (voice)			(202) 224-7494 (voice)
(202) 225-1584 (fax)			(202) 224-5474 (fax)

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