CyberWire Dispatch // Copyright (c) 1994 //

Jacking in from the Congressional Port:

Washington, DC -- The General Accounting Office today (Thurs.) will reaffirm its 1992 finding that new and emerging technology pose "legitimate impediments" to electronic eavesdropping by law enforcement agencies, according to a letter sent to Dispatch by Rep. Don Edwards (D-Cal.).

The GAO report will be released today during a joint hearing of the Senate Technology Subcommittee and the House Civil Rights Subcommittee, chaired by Senator Patrick Leahy (D-Vt.) and Rep. Edwards, respectively. The report is a follow up to the GAO's 1992 study of the digital telephony issue. The follow up was requested by Leahy.

Edwards' letter also reveals for the first time that in April, the FBI presented his Subcommittee with "details of 183 instances... where the FBI, state or local agencies encountered problems" in wiretapping digital conversations. This "evidence" was given to the Subcommittee with the proviso that it wouldn't be released to the public, the letter says.

The FBI has continually refused to release the documentation on these 183 cases, despite the fact that FBI Director Louis Freeh has dragged them out anecdotally during several public speaking appearances. The Electronic Privacy Information Center (EPIC) filed suit Wednesday against the FBI in an attempt to get this documentation released. Edwards, however, may save EPIC a hell of a lot of court costs.

"I believe that this information [on the 183 cases] can and should be made publicly available," Edwards says in his letter. "[A]nd I am working with the FBI to that end, since it is important that all interested members of the public appreciate the factual basis for this legislation."

The issue of giving the FBI easier wiretap access "appropriately raises gave concerns about government control over technology and intrusion on personal privacy," the letter says. "I share those concerns, which is why I opposed the digital telephony legislation proposed during the Bush Administration and why I told the Clinton Administration that its proposal would not be introduced in its original form," Edwards writes.

Privacy Concerns

Face it, the Feds have always had the right to tap your Email, faxes, voice, whatever. It's the law. Edwards's letter says his bill doesn't expand the current authority of the FBI and in fact, that it includes "several provisions that actually limit the government's current authority.

These protections include: (1) Eliminating the use of subpoenas to obtain Email addresses and other transactional data from electronic service providers. This means the Feds can currently snag your *entire* online profile -- who you send Email too, how many of those "Hot Nude" GIF files you've downloaded from CompuServe, etc -- just by presenting an administrative subpoena, which is signed by the same kat doing the investigation. The Leahy/Edwards bill at least would require a court order, meaning a judge would have to sign off on these instead of the Feds themselves.

(2) "Expressly" prohibiting the use of pen registers and "trap and trace devices" from being used to track your transactional history or location information. (3) "Explicitly" stating that the bill doesn't limit your rights to use encryption. (4) Allowing anyone or any organization to petition the FCC for review of standards that implement the FBI's wiretap capability standards. (5) Extending the Electronic Communications Privacy Act to include cordless phone conversations and certain data communications transmitted by radio. (6) Stopping the FBI from turning on its own wiretaps; there must be a company employee doing the work. What this boils down to is that the FBI doesn't get remote "wiretap log in" access to the local telephone network.

Last, but not least, Edwards points out that this bill is narrower in scope, limiting compliance to common carriers, which effectively locks out the Internet and other online systems, such as AOL, Prodigy and CompuServe.

No Technological Hang-ups

All those nifty "Have You Ever?... You Will!" gadgets promised in those slick AT&T commercials can still go forward, even if they don't come wiretap ready, that's the spirit of the law anyway, Edwards says in his letter. (Edwards' letter, however, doesn't address the AT&T dilemma of how to attract the money needed to develop an ill-fated, over-hyped device like its EO product, which the company summarily tossed into the "failed dreams" pile recently.)

Law enforcement can't bar the introduction of any new technology, Edwards writes. "Courts may order compliance and may bar the introduction of technology, but only if law enforcement has no other means reasonably available to conduct interception and if compliance with the standards is reasonably achievable through application of available technology," the letter says. [Emphasis in the original].

"This all means that if a service or technology cannot reasonably be brought into compliance... the service can be deployed," the letter says. [emphasis in the original.]

Passive Aggressive

Edwards' letter says he pursued this wiretap legislation because "it was not possible to ignore the claims of law enforcement." Edwards, a former FBI agent, it should be pointed out, has not been a Bureau patsy during this congressional run. He says the FBI was going to get what it wanted and that he figured it was better to get as narrow a bill as possible rather than a bill that served up America's privacy rights on a platter to the FBI.

Edwards' letter also provides some cover for the Electronic Frontier Foundation (EFF), which has suddenly found itself being stung by the very community it thought it was looking out for. Negative comments about the role EFF has played in the negotiations of this bill have started to spring up on the Internet and commercial online systems.

Edwards, however, praises EFF's role: "Without EFF, we would not have had a narrow scope to this bill or the privacy protections," he says. EFF's involvement "in a very difficult negotiating process... ensured that we were always mindful of the on-line community," he writes. Because of those efforts, "this bill balances the interests of law enforcement, technological innovation and privacy."

Meeks out...