Jacking in from the "Cancer Among Us" Port:
Washington, DC -- At some point today (Tuesday), Senator Patrick Leahy (D-Vt.) will take control of the Senate floor, tug once on his modestly priced suit, run a hand through his thinning sliver hair, adjust the glasses on his made for C-Span face and formally recommend that the privacy rights of your most cherished communications -- your telephone calls -- be subjected to a kind of digital chemotherapy in the form of his "Digital Telephony Bill."
This bill will, forever, mandate that our nation's communications networks be made "wiretap ready" at the behest of the Attorney General, walking point for the Federal Bureau of Investigation. This bill ends the FBI's two year running battle to infect every form of communications network possible -- from the tiny switchboard at your local Jiffy Lube shop to the entire U.S. Internet infrastructure -- with a kind of easy access wiretap software. The FBI didn't get the Internet (or any other online system) covered under this bill, but it damn near got every other kind of telecommunications provider.
And let's be clear what we're talking about here: This "wiretap software" is digital cancer. It will never go into remission; it will forever grow and search out new technologies to "infect."
Enter Senator Leahy's "digital chemo" bill. Like its analog kin, Leahy's digital chemo will make you sick; it's a poison to be willfully injested for the "greater good." You go through hell in the hopes that the means justifies the end.
So, although the FBI got what it wanted -- a codified, put-up-or-shut-up piece of legislation that mandates wiretap access -- it didn't get nearly all it wanted. And thanks to Leahy and Rep. Don Edwards (D-Cal.), the FBI will have to jump through a myriad of hoops to gain their hard fought victory of being able to eavesdrop on digital conversations.
What's Hot, What's Not
FBI Director Louis Freeh is bankrupt. That is, his political capital is bankrupt. Freeh had such a hard on for this bill that he personally lobbied virtually every member of congress personally. Freeh is charismatic. Forget C-Span; Freeh has a face the big screen would love. What's curious is that it must have been these superficial features that gained him support for a wiretap bill because he sure as hell couldn't cough up statistics to back it up.
Despite promises by the FBI that it has had "hundreds" of investigations thwarted by digital technologies, they have NEVER produced a single shred of evidence beyond limp anecdotes.
And in fact, the United States Telephone Association (USTA) is still waiting for documentation of these "hundreds" of incidents, according to Larry Clinton, executive director for governmental affairs for USTA. An FBI representative had promised to produce such records for the USTA during a recent privacy roundtable sponsored here by the Electronic Privacy Information Center (EPIC). The documentation never arrived. Clinton says he never even heard again from the FBI on the matter.
"We have yet to see any evidence that this bill is necessary," said Dave Banisar, EPIC policy analyst. "We still think the principle behind (the bill) is dubious, that being that the FBI should be in the business of mandating that surveillance be built into all networks."
Name Your Poison
The bill presents a dilemma to civil liberties groups. On principle, they oppose it. But without the Leahy/Edwards bill, the FBI would have cake-walked through the nation's privacy rights. So the current situation turns out to be a kind of "name your poison" scenario.
Without a bill, it's likely that the FBI could have had their originally nefarious proposal snuck into law as a rider on the crime bill, allowing it to become law through the "back door," and with little public debate.
At least with the Leahy/Edwards package the FBI has to work for everything they get. The bill is chock full of checks and balances our "outs" as one telephone executive said.
There are, for example, several ways for the telephone companies to stall the mandates of installing the wiretap software, including court action, FCC proceedings and extensions granted for compliance. Although the bill requires that companies install such wiretap access software within 4 years, even a pedestrian telecommunications lawyer could stall compliance for at least 6 years. A hot shot attorney could fuck with the FBI and its demands for even longer.
Although checks and balances are a primary firewall, "it's still a troubling precedent to have government make industry think first about making their networks wiretap ready," said Jerry Berman, policy director for Electronic Frontier Foundation (EFF).
EFF's position on the bill is "complicated by the fact that we don't think a digital telephony bill is necessary," Berman said. "We're not opposing this legislation," he said. "We support the privacy provisions. But is has to be this version and this package," that passes, he said.
EFF succeeded in negotiating stronger privacy protection for transactional data into the bill. Namely, the FBI now has to get a court order to gain access to even the "to/from/subject" lines of electronic mail. Previously, they only needed a subpoena, a kind of "trust us, we really need this" effort that now at least makes them show "specific and articulable facts" before being granted access to such information.
But even this "intermediary" protection isn't enough for EPIC's Banisar who said such court orders can be signed by "low level bureaucrats." He would have liked to see the most stringent test for this data -- probable cause -- be required.
No More Secrets
For years there's been a quiet give and take between the telephone industry and law enforcement when it came to wiretaps. The Feds (or your local sheriff) showed up with a court ordered wiretap and Mr. Telephone would comply. Any problems? They were solved right there at the tap. No hassles. No public debate. And once a year, the FBI would publish its wiretap figures and everyone would go back to "catching bad guys."
That all changes now.
The Attorney General is required to publish, in the Federal Register, estimates of how many wiretaps will be needed, both state and local. This, says EFF's Berman, "gives us a chance to question the figures before hand."
Also, the standards process for implementing the wiretap statute must be public. The standards will be open to public scrutiny. And in fact, if you don't like what's happening, "any person" can bitch to the FCC about the wiretap standards. The FCC in turn, will be required to open a hearing on the matter.
Openness is all well and good on its face, but if it doesn't win you anything, what good is it really? "What difference does it make if I'm shot in the back or in the front?" says EPIC's Banisar.
Fight The Good Fight
The bill, as it stands, will pass. That's the word on the Hill. There will be hearings on the bill this Thursday to flesh out some clarifications. For example, the telephone industry doesn't think it's jake that they'll be required to pay billions to comply with this bill's requirements but are only given $500 million to start with. So, they'll have to fight for every extra penny of appropriations that congress will eventually pony up. Big deal, everyone fights for government money these days.
There's an old saying that there are two things in this world you can always count on: Death and taxes.
Natch, make that three: Death, taxes and Digital wiretapping.