Date: Mon, 9 Mar 92 19:58:41 CST
From: Jim Thomas <
[email protected]>
Subject: File 5--F.B.I.' Proposed Digital Communications Legislation
Increasingly sophisticated technology available to the average citizen
undeniably makes it more difficult for law enforcement to pursue
legitimate investigations. When technology expands faster than
society's capacity to examine the social, ethical, or legal
implications of the changes, two potential problems emgerge: Laws
that correspond to technological advances do not change, leaving law
enforcement either handicapped or forced to implement illicit means in
investigations, or laws change in ways that potentially intrude on
civil liberties by reducing Constitutional protections. The trick is
to find a happy medium.
The legislation proposed by the U.S. Government reflects an attempt to
bring current Federal legislation in line with technology. In
principle, this is wise. In practice, questions arise that should be
addressed in order to assure that the proposed legislation allows law
enforcement to pursue its legitimate ends while simultaneously
protecting the interests of citizens.
The proposed legislation has not yet been submitted to Congress, and
our understanding is that there is as yet no draft of the proposed
changes. CPSR, EFF, the ACLU, and other groups appear to be actively
involved in assuring that the language and implications of the final
document will be carefully examined prior to submission.
As we understand the proposed legislation, it would make it easier for
investigators to conduct *legal* surveillance of digital, broad-band,
communications by implementing technology that targets a specific user
rather than an entire stream of users. To do this, telecommunications
systems would require modification that would be implemented by the
phone companies and would include changes in user devices.
Among the questions the proposed legislation raises are:
1. Who would bear the costs of the modifications? Should costs be
passed on to end telecommunications users?
2. How would the modifications change the requirements for obtaining
warrants?
3. What potential abuses might arise from the modifications?
4. What unanticipated advantages or social benefits might emerge?
5. How might the concept of "good faith" be interpreted when
non-targeted information is obtained?
6. How would the proposed legislation dovetail into recent U.S.
Supreme Court decisions that expand the search powers of law
enforcement?
7. What concepts or definitions of "telecommunications" and other
terms would be established? How far would the scope of the legislation
extend? Would it include data lines if it were suspected that the
target were transferring an unlicensed version of Word Perfect? Among
the "evidence" used to justify the seizure of Steve Jackson Games, the
Secret Service claimed that the simple description of Kermit as a
7-bit protocol used to transfer data between mainframes and PCs was
evidence of a conspiracy. Would this allow monitoring of all Kermit
up/downloads by Steve Jackson employees?
There are many other questions to be addressed, but the ultimate one
remains: What is the best language that would protect both law
enforcements' ability to carry out its function while preserving
Constitutional rights? The recent history of some law enforcement
officials, particularly in the Secret Service and a few local
jurisdictions, indicates that the question is more than a
philosophical debate. The consequences of ill-considered language for
all involved require careful consideration of balance.
The following is the press release proposing the legislation:
+++++
U.S. Department of Justice
Federal Bureau of Investigation
Office of the Director Washington, D.C. 20535
March 6, 1992
STATEMENT BY FBI DIRECTOR WILLIAM S. SESSIONS
CONCERNING PROPOSED DIGITAL COMMUNICATIONS LEGISLATION
Law enforcement's continued ability to conduct court-authorized
electronic surveillances is one of the most critical issues facing law
enforcement today. However, recent telecommunications systems
improvements have outpaced the government's ability to technologically
continue this highly successful, and lawful technique.
Consequently, the U.S. Government has proposed legislation requiring
the telecommunications industry to ensure that its advanced digital
telephone systems accommodate the legitimate needs of federal, state,
and local law enforcement.
Specifically, this legislation seeks to preserve the status quo of an
extraordinarily efficient and effective technique utilized by law
enforcement to conduct court-authorized electronic surveillances, as
authorized by Congress in Title III of the Omnibus Crime Control and
Safe Streets Act of 1968. The approach suggested in the legislation
represents by far the least costly alternative and is the only certain
method of addressing the issue.
Without an ultimate solution, terrorists, violent criminals,
kidnappers, drug cartels, and other criminal organizations will be
able to carry out their illegal activities using the
telecommunications system without detection. This proposal is critical
to the safety of the American people and to the law enforcement
officers who must daily enforce the laws of this country.
The Legislative proposal is not solely a law enforcement proposal but
is a result of a cooperative effort by Administration and Congressional
leaders, telecommunications industry executives and law enforcement.
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