In 1986, Chicago's El Rukn street gang struck a deal with Libya to commit terrorist attacks against American planes and buildings.
Informed of the plot, FBI agents tapped the gang's phones, gathered information and arrested the bad guys before they could do any damage. The FBI claimed that hundreds of lives were saved.
Today, the El Rukn gang members are the prime examples of the FBI's long-running campaign for enhanced authority to tap cellular phone calls and wired communications. Agents say that changes in technology since then have made it difficult, if not impossible, to carry out the kind of surveillance that put El Rukn's leaders behind bars.
But critics say the FBI wants too much power to tap - certainly more than a sympathetic Congress envisioned in 1994 when it required telephone carriers to adopt technology that would let -- law enforcement keep pace in the digital age.
The legislation directed law enforcement agencies and the industry to develop a surveillance standard acceptable to both sides. But nearly four years later, the two sides are still at 'N loggerheads.
The telecommunications industry has resisted some of the changes. But an even louder outcry has arisen from civil liberties groups. They say the FBI's proposals would trample on citizens' rights by giving police excessive authority to monitor conversations - fundamentally altering the historic balance between privacy and the needs of law enforcement.
In a petition to the Federal Communications Commission, which will make the initial ruling, the American Civil Liberties Union and two electronic privacy groups argued that "the FBI is seeking unprecedented surveillance capabilities never envisioned by Congress."
"I shudder to think about where we're moving," says ACLU attorney Cassidy Sehgal. "The more privacy we're willing to give up, the easier it is to infringe on our rights."
But law officers say they want to maintain their long-standing ability to monitor suspected criminal activity. Unless they can keep pace with the technology being exploited by criminals, FBI Director Louis J. Freeh told Congress, they might be unable to solve or prevent many kidnapping, drug and terrorist crimes.
The wiretap fight parallels a battle over how much access law officers should have to encrypted computer data. The FBI has demanded access to the keys used to scramble everything from e-mail to credit card numbers exchanged over the Internet, with similar opposition from the industry and privacy rights groups.
In congressional testimony, Freeh called the preservation of wiretap capacity in the digital age "one of the most difficult, complex issues ever to confront law enforcement."
For example, many cellular phone systems don't allow the interception of more than one call at a time. And even a simple service such as call forwarding can put a criminal a step ahead of law enforcement.
"As technology advances, we need to be able to keep up with the kinds of constitutionally authorized searches we have done for the last 200 years," said Gene Voegtlin, legislative counsel for the International Association of Chiefs of Police, which supports the FBI's efforts.
The industry has agreed to many of the changes the FBI wants, although it remains at odds over others. Meanwhile, privacy advocates are unhappy about some concessions the industry has already made.
For example, they're concerned about a change that could give the FBI expanded access to the content of calls. Until now, courts have been far more willing to let authorities record the source and destination of calls than to listen to actual conversations.
In newer systems, it's hard for carriers to separate those two pieces of information because the contents of the call move in tiny packets from one person to another like an envelope with a visible address.
"The FBI and industry have said: 'Let phone companies give them everything. We'll trust them not to open the envelope - or if they do by accident, not to read what's inside.' We think that's not good enough," say James X. Dempsey, senior staff counsel for the Center for Democracy and Technology, a Washington-based watchdog group.
Privacy worry about another industry concession: Cellular service providers would disclose the general location in which a call begins and ends.
David Sobel, general counsel for the Electronic Privacy Information Center, says this provision clearly exceeds the authority Congress intended to give the FBI in 1994. The change, Sobel says, would let authorities track someone's movements from one minute to the next - just a step short of having the government issue a "smart card" to follow citizens round.
"Suddenly, our comings and goings would be part of a database that could at some point be used," he said.
With 50 million Americans using cell phones, Dempsey argued, the number of people whose location could be monitored as the result of a tap on themselves, a friend or business associate is growing daily.
The FBI says the cell-site information is vital when a cellular phone is used by suspected criminals.
"We recently had a case in a major metropolitan area where kidnappers were using the victim's wireless phone, and the carrier was unable to implement the necessary tap to intercept the conversation," said supervisory agent Barry Smith.
The FBI argues that a court order would continue to be required for any wiretapping. But that argument doesn't sway critics who note that judges routinely grant almost all law enforcement wiretap requests.
In fact, between 1984 and 1994, only seven surveillance requests were denied nationwide, according to U.S. Courts records.
Last year, 1,186 wiretap requests were granted, split almost evenly between federal agencies and local police. A total of 1,094 taps were actually installed, yielding 3,086 arrests.
The FBI has other demands. It wants to know when someone has joined or left a multi-party conversation and to eavesdrop on conference calls even after the target of the tap has put the other parties on hold. This particularly worries privacy groups, XTC who fear it would enable the monitoring of people not named in a court order, without probable cause.
The FBI's smith argues that terrorists could use a conference call to discuss plans to blow up a building. If one caller gets a call-waiting notice and leaves the conference to take the call, he said police should be entitled to listen to both the new call and to what the conference participants are saying in the meantime.
"This is not a hypothetical," Smith adds. "We're seeing two criminally related conversations going on at the same time that we have a wiretap order to hear."
But Dempsey says the potential for unwarranted interception is already great enough. As evidence, he cites Operation Ill Wind, the late 1980s federal investigation that involved taps on 30 Pentagon employees and defense contractors. During the investigation, Dempsey says, federal agents listened to the conversations of up to 6,000 people in the Washington area - many of whom were never suspects but happened to know a contractor or Pentagon worker.
Some in Congress are critical of the FBI's new demands. One of them is Sen. Patrick J. Leahy, the Vermont Democrat who was the chief Senate sponsor of the 1994 Communications Assistance for Law Enforcement Act.
"Delaying implementation of this important law over such a relatively small number of functions, which would only arise in fairly unique and isolated investigatory circumstances, seems extremely short-sighted," he wrote in a letter to Attorney General Janet Reno earlier this year.
For its part, the FCC pledges to give each side a fair hearing.
Because of the complexity of the dispute, the new law is unlikely to take full effect for several more years. And should the FCC return a judgment unacceptable to either side, lawsuits are expected.
Sobel says his group would consider going to court. But he remains optimistic.
"At the very least, this is the only opportunity that the public and the privacy interests have had to have a say in this process," he says.
Pub Date: 7/06/98