FBI fears impact of digital telephony

THE BALTIMORE SUN

Wiretapping used to be so easy.

All a cop needed was a court order, a little wire, a few simple tools and a headset. With those in hand, it was a simple matter to go down to the telephone company office and listen in while Big Al told Jimmy Bananas to whack Two-Fingers Tommy.

But now something called "digital telephony" is tipping the scales, law enforcement officials say. They contend that advances in telecommunications technology are making it more difficult, sometimes impossible, for the good guys to intercept the bad guys' phone calls.

And it scares the bejabbers out of the FBI. Last month, Director Louis J. Freeh told Congress that digital telephony is "the number one law enforcement, public safety and national security issue facing us today."

His remedy, contained in a little-noticed proposal backed by the Clinton administration, would grant the Justice Department sweeping authority to throw up roadblocks on the so-called "information superhighway."

In effect, the attorney general would become a sort of technological traffic cop, empowered to slow the pace of change in the nation's telephone system until law enforcement officials are satisfied that innovation doesn't harm their ability to intercept calls.

The burden of devising back doors for government eavesdropping would be borne by the nation's telephone companies. And unless Congress attempts to divert some of the cost onto ratepayers, the companies say U.S. taxpayers would foot a bill that could run into billions of dollars.

With Washington preoccupied by Whitewater and health care, there has been little publicity about the proposed Digital Telephony and Communications Privacy Improvement Act of 1994. But the stakes are potentially enormous.

The proposal, which has united conservative telephone industry executives and liberal activists in fierce opposition, provides a stark example of the difficult policy choices that will be forced on lawmakers as Digital Age telecommunications technologies shift the balance of power from government to individuals.

In the case of digital telephony, the shorthand term used to describe the controversy, the Clinton administration has been forced to choose between its desire to promote high-technology industries and its need to be seen as a friend of law enforcement at a time when crime is a hot political issue.

The administration's proposal could have a wide impact on the nation's telecommunications future by determining the design of entire networks.

When Mr. Freeh testified last month before a joint Senate-House panel, he delivered an impassioned plea to preserve what he called "one of our most effective weapons against national and international drug trafficking, terrorism, espionage, organized crime and serious violent crimes."

"I do not relish the thought of being the first FBI director to tell a father and mother that we were unable to save their son or daughter because advanced telecommunications technology precluded the telephone company from providing us with lawful access to the criminal conversations that would have prevented the untimely death of an innocent child," Mr. Freeh told the panel.

Under existing law, common carriers are required to cooperate with law enforcement agencies executing a valid court order to wiretap a suspect, but those relations have become increasingly difficult,Mr. Freeh said.

Since the breakup of AT&T; in 1984, he told Congress, the number of common carriers has mushroomed to about 2,000, and law enforcement officers often have to deal with service providers who have no experience in dealing with wiretaps.

Meanwhile, he said, advances in the telecommunications system have made it increasingly difficult to intercept conversations and information about how a call was placed.

According to Mr. Freeh, wireless technologies and call-forwarding have made it difficult to find a caller, much less tap that person's line. Personal communications services (PCS), which are expected to grow in popularity over the rest of the decade, will further frustrate wiretaps with their ability to move seamlessly from network to network. And the bundling of multiple digital signals onto a single fiberoptic line has made it increasingly difficult to isolate a specific call.

Jim Kallstrom, agent in charge of the FBI's New York office, said the problem was already becoming apparent even though "we don't have a whole lot of bodies to stack up and point to."

Agent Kallstrom said that at times there will be 100 court orders vying for four or five ports on one of New York City's cellular phone systems. And that is only a foreshadowing of the problems the bureau could face with the digitized phone system of the future, he said.

"We in law enforcement were asleep at the switch when cellular was being developed in the mid-'80s," he said. This time, he added, the bureau wants to be ahead of the curve.

In his testimony last month, Mr. Freeh said the FBI's decision to seek a legislative mandate came after an unsuccessful four-year effort to negotiate a solution with the telecommunications industry, which contends that the FBI is exaggerating the scope of the problem.

The administration's proposed bill requires common carriers to ensure that they are able to quickly execute any court order to intercept calls as they are being made, regardless of whether they are being made from a fixed or mobile site. The proposed bill spells out no technical standards. Essentially it says to the industry: Find a way.

If they do not within three years, the proposal would authorize the attorney general to seek an injunction against common carriers or equipment manufacturers and to seek a civil fine of up to $10,000 a day against the carrier.

Not surprisingly, the telephone and high-technology industries are appalled by the idea. Opponents include AT&T;, MCI Communications Corp., Apple Corp. and the nonprofit Electronic Frontier Foundation.

Last month, Roy Neel, president of the United States Telephone Association, accused the FBI of exaggerating the problem and lambasted the administration's proposed solution.

Mr. Neel, ironically a former chief of staff to Vice President Gore and an architect of the administration's telecommunications policy, attacked the bill as "an enormous speed bump in the information superhighway."

"The legislation would make the attorney general the arbiter of whatever technologies and equipment can be deployed in the public communications network. . . ." he charged. "It makes unreasonable and perhaps impossible demands on those it does cover. It is unnecessarily punitive in nature."

In a legislative analysis for the Electronic Frontier Foundation, staff counsel Mike Godwin wrote that under the bill, the Justice Department could force a telephone company to redesign calling features of its network so that it could provide the FBI with "call set-up" information, which tells essentially everything about the call except its content. If a redesign wasn't feasible, the governmentcould force a company to abandon existing services or even cease operations, he concluded.

Other skeptics expressed the fear that the FBI could become a de facto regulatory agency as companies declined to make technological improvements until they had been cleared by the FBI.

While Congress is usually responsive to the pleadings of the FBI, there are signs that the bureau faces an uphill battle on digital telephony. So far, the proposal has not attracted a congressional sponsor, and the chairmen of the subcommittees considering the bill are openly skeptical.

Sen. Patrick Leahy, the Vermont Democrat who heads the Judiciary subcommittee on technology and the law, told the Computers Freedom and Privacy conference in Chicago last month that Congress would not grant any administration a veto on technology.

"The idea that the Department of Justice or any other agency is going to be allowed to tell the telecommunications industry what advances it can go forward with is ludicrous," Mr. Leahy said.

Rep. Don Edwards, D-Calif., chairman of the House Judiciary subcommittee on Civil and Constitutional Rights, said he and Senator Leahy want to see more evidence that a serious problem exists.

"We intend to do what we can to allow the FBI to continue its work, but we are pretty negative to this 200-page bill that gives so much power over American lives," he said, adding that he and Mr. Leahy were working with the FBI, the telephone companies and privacy advocates to forge a compromise.

The two chairmen plan to hold further joint hearings later this month. At that time, they are expected to hold the FBI's feet to the fire about the question of cost.

In his testimony last month, Mr. Neel said the FBI's estimate that changes to the system would cost $300 million to $500 million were far too low. He cited estimates that changing call-forwarding software to track calls -- just one of the changes that would have to be made to satisfy the FBI -- would cost $180 million to $1.8 billion.

Lance J. Hoffman, director of the Institute for Computer and Telecommunications Systems Policy at George Washington University, said the FBI hadn't made its case that the dangers to public order from lost wiretaps outweigh the costs of retrofitting the telephone system.

"It's inconceivable to me that in a time of serious budgetary constraints the administration isn't demanding a serious threat analysis and cost-benefit analysis from one of its own agencies," he said.

For some critics, the fundamental problem with the digital telephony proposal is that it requires communications providers to compromise the "integrity" of their own systems by providing a back door that could be abused. They concede the right of government to use legal wiretaps but insist the burden should be placed on the government to figure out how.

"You don't design networks to make it easier to wiretap," said Marc Rotenberg, Washington director of Computer Professionals for Social Responsibility. "That has never been a goal in the United States. It has been a goal in some countries -- like East Germany."

In his testimony last month, Mr. Freeh indicated that the FBI was willing to compromise on the enforcement mechanism and the time frame for compliance. But Agent Kallstrom warned last week that the issue would not go away and that the FBI would accept nothing less than a mandate.

"The notion that you're not going to have a cop on the superhighway is just crazy," he said. "It's like you're not going to have any law enforcement on the New Jersey Turnpike."

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