Jacking in from the "Just Nationalize It" Port:
Washington, DC -- The most recent draft of the FBI's digital wiretap bill turns control of the nation's communications network over to the Justice Department.
It's a twisted policy that, in essence, ponies up more than $500 million in an effort to nationalize all telephone and electronic communications networks, a move that's unprecedented in U.S. history. For although private companies retain control over profits and revenues, this bill puts them at the technological beck and call of the Justice Department. Think of it as Attorney General Janet Reno moving her lips, but it's FBI Director Louis Freeh making all the noise.
The July 19 draft of the FBI bill obtained by Dispatch, gives the Justice Department the authority to make technological demands of the nation's communications networks that must be complied with or risk severe penalties.
However, the bill specifically states that law enforcement agencies can't dictate a "specific design or system configurations," but that's little comfort.
The bill gives the government the authority to dictate -- forever - -specific capabilities each communications company has to met or be held in contempt, forced to pay as much as $10,000 for every day they can't met the government's demands of easy wiretap access to their customer's conversations, electronic mail messages, faxes or file transfers.
The draft also dramatically expands the scope of the bill, from just "common carriers" (which are mainly your local and long distance telephone companies) to a new category of "telecommunications carriers."
This new category, penciled in at the insistence of the telephone companies facing the threat of having to bear the entire burden for making the FBI's job easier, includes "any person or entity engaged in the transmission or switching of wire or electronic communications for value for unaffiliated persons, but does not include persons or entities engaged in providing information services."
This means all networks, including the one that delivered this Dispatch article to your electronic mailbox, will now have to be "wiretap ready," according to FBI blueprints. The only companies that escape are free BBSs and systems that must prove they are information services rather than communications services. Just how America Online, Prodigy and CompuServe will deal with this is unknown, since systems like these split the fence between information providers and communications facilitators.
If this bill is passed, the Attorney General has one year to draw up its easy wiretap access battle plan and present it to the industry. Included in that plan must be a written notice of the maximum capacity required to "accommodate all the communications interceptions, pen registers and trap and trace devices" the Attorney General "estimates" the government will need.
All "telecommunications carriers" then have 3 years to comply with those requests. The catch is, the Justice Department can "periodically" provide updates to that original plan, which "increases the maximum capacity" first stated. For each upgraded estimate, the industry has 3 years to cooperate or get hammered.
If a carrier fails to comply, the Justice Department can order compliance, up to and including ordering manufacturers to redesign their products so they can be installed on U.S. communications networks -- yes, that includes the amorphous Internet, at least on the U.S. side. Noncompliance carries the possible fine of $10,000 per day. However, the current bill takes away the veritable "Thor's Hammer" authority from Justice, that is, the ability to shut down a carrier's network for not complying with the bill.
Standards? We Don't Need No Stinking Standards
Just to make sure that all this "easy use wiretap" software gets codified, there will be standards written. This means every public telephone network and communications system, will, forever, now come with built in eavesdropping capability, courtesy of Uncle Sam.
The bill doesn't actually demand that wiretap access be written into the standards, but the sub-text of the bill clearly intends for them to be there. "The absence of specifications or standards for implementing" wiretap access won't be considered an excuse for carriers to claim noncompliance, the bill says.
Enter the Federal Communications Commission. Under this bill, the FCC is made out to be court of last resort for any wiretap standards disputes. "[I]f industry associations or bodies fail to issue specifications or standards, any person may petition" the FCC to "establish... specifications or standards" that implement easy wiretap access, the bill says.
In other words: If industry tanks on creating specs, Uncle Sam, impersonating the above referenced "any person" will compel the FCC to write the damn things. The FBI gets its wiretap software written voluntarily or by force. They don't care which route they have to take.
Of course, the FCC is woefully equipped to write standards; they are enforcers after all of such standards, not creators of them. So, in order to help out with this egregious task, the bill allows the FCC to assess and collect fees that it will levy against telecommunications carriers for, well, there's no nice way to say this, doing their fucking job.
And get this, the FCC gets to use that penalty tax money to help it pay for writing the wiretap rules. You gotta love these bill writing wonks for creating: Self-help Agency Funding or "Bigger Appropriations Through Fines."
The Bottom Line
What's it going to cost to allow the FBI to eavesdrop from virtually any "remote" location of their choice, as the bill states? The first bite from the taxpayer wallet is a healthy $500 million in the first 3 years. (Remember, now, FBI Director Louis Freeh, as late as last month, was on television telling the world this electronic Trojan Horse would cost only $300 million.)
However, the bill contains a "blank check" clause, which allows the government (Hint: This is really you and me) to continue paying for upgrades to this wiretap software from 1999 "and thereafter" in "such sums as may be necessary to carry out the purpose of this act." You can thank the telephone companies for this clause. Without the endless credit line, they said they would fight the bill with all their resources. Now they'll just whimper a lot and roll over.
Although the telephone still oppose the bill on principle -- they just don't like the government telling them to do anything -- they're just happy not to have to pay for this themselves. As long as every other telecommunications company gets stung and the taxpayer foots the bill, well, hell, they can live with it. Besides, they have bigger fish to fry, like squeezing Congress to let them into the long distance market where they can really make some coin.
So, what we get now from the telephone industry -- trust me on this -- is token opposition to the FBI bill. "This thing is beginning to smell like law," said a telephone company executive familiar with his industries efforts on the bill. Dispatch suggested a more colorful "smells like" phrase. The executive simply smiled.
All Said And Done
The bill, while not the final version, is "pretty damn close," a congressional staffer said. The fight over language hasn't been pretty and it's likely to continue to be ugly until the final bill is submitted, which will be before the August recess. "We will have a bill one way or another," another congressional staffer said. The staffs of Senator Patrick Leahy (D-Vt.), Sen. Joe Biden (D.-Del) and Rep. Don Edwards (D-Cal.) have all had a crack at melding this bill.
EFF's been in there fighting, too. In fact, EFF's legislative liaison cancelled a trip to Japan to stay and "fight" for better language in the bill, according to a message he posted online.
If that's the case, someone needs to fight harder. There is, however, some evidence of EFF's fingerprints on this bill.
The bill specifically states, for example that "any law enforcement agency" is NOT authorized to "prohibit the adoption of any feature or service by providers of wire or electronic communication service." This means that if your "telecommunications provider" provides some kind of encryption capability -- even non-government approved encryption -- this bill doesn't force you to turn over the encryption keys to the cops.
And in the area of transactional data, the bill limits the cops to just getting your telephone number and address, without the ability to scavenge through all your private transactions and billing records. This ends the threat of the bill having the effect of turning the telephone network into "a nationwide surveillance tool" of the FBI, as EFF Executive Director Jerry Berman said previous versions of the bill would allow.
Just remember, as this bill stands, the FBI bought your privacy rights for a mere $500 million-plus. That cheap at twice the price.