FOR IMMEDIATE RELEASE -- DISTRIBUTE WIDELY The Clinton Administration is backing a proposal by law enforcement agencies that could make the entire communications infrastructure susceptible to surveillance. The Digital Telephony Proposal, reintroduced this year after being successfully thwarted last year, would require communications service providers to include "back doors" in their software through which "wiretapping" can be done. In addition, the proposal would give law enforcement officers access to records *about* communications, such as who you call and how long you talk. Such traffic analysis can reveal vast amounts of information about you. EFF is extremely concerned about this proposal and has prepared the following summary to explain it and the harm it could do. Electronic Frontier Foundation Statement on FBI Draft Digital Telephony Bill ---------------------------------------------------------------------------- EFF has received a draft of the FBI's new, proposed "Digital Telephony" bill. After initial analysis, we strongly condemn the bill, which would require all common carriers to construct their networks to deliver to law enforcement agencies, in real-time, both the contents of all communications on their networks and the "signalling" or transactional information. In short, the bill lays the groundwork for turning the National Information Infrastructure into a nation-wide surveillance system, to be used by law enforcement with few technical or legal safeguards. This image is not hyperbole, but a real assessment of the power of the technology and inadequacy of current legal and technical privacy protections for users of communications networks. Although the FBI suggests that the bill is primarily designed to maintain status quo wiretap capability in the face of technological changes, in fact, it seeks vast new surveillance and monitoring tools. Among the new powers given to law enforcement are: 1. Real-time access to transactional information creates the ability to monitor individuals "live". The bill would require common carrier networks (telephone companies and anyone who plans to get into the telephone business, such as cable TV companies) to deliver, in real-time, "call setup information." In the simplest case, call setup information is a list of phone numbers dialed by a given telephone currently under surveillance. As we all come to use electronic communications for more and more purposes, however, this simple call setup information could also reveal what movies we've ordered, which online information services we've connected to, which political bulletin boards we've dialed, etc. With increasing use of telecommunications, this simple transactional information reveals almost as much about our private lives as would be learned if someone literally followed us around on the street, watching our every move. We are all especially vulnerable to this kind of surveillance, because, unlike wiretapping the *content* of our communications, it is quite easy for law enforcement to get permission to obtain this transactional information. Whereas courts scrutinize wiretap requests very carefully, authorizations for access to call setup information are routinely granted with no substantive review. Some federal agencies, such as the IRS, even have the power to issue administrative subpoenas on their own, without appearing before a court. The real impact of the FBI proposal turns, in part, on the fact that it is easy to obtain court approval for seizing transactional data. The change from existing law contained in the FBI proposal is that carriers would have to deliver this call setup information *in real-time*, that is, "live", as the communication occurs, directly to a remote listening post designated by law enforcement. Today, the government can obtain this information, but generally has to install a device (called a 'pen register') which is monitored manually at the telephone company switching office. 2. Access to communication and signalling information for any mobile communication, regardless of location allows tracking of an individual's movements. The bill requires that carriers be able to deliver either the contents or transactional information associated with any subscriber, even if that person is moving around from place to place with a cellular or PCS phone. It is conceivable that law enforcement could use the signalling information to identify that location of a target, whether that person is the subject of a wiretap order, or merely a subpoena for call setup information. This provision takes a major step beyond current law in that it allows for a tap and/or trace on a *person*, as opposed to mere surveillance of a telephone line. 3. Expanded access to electronic communications services, such as the Internet, online information services, and BBSs. The privacy of electronic communications services such as electronic mail is also put at grave risk. Today, a court order is required under the Electronic Communications Privacy Act to obtain the contents of electronic mail, for example. Those ECPA provisions would still apply for the contents of such messages, but the FBI bill suggests that common carriers might be responsible for delivering the addressing information associated with electronic mail and other electronic communications. For example, if a user connects to the Internet over local telephone lines, law enforcement might be able to demand from the telephone company information about where the user sent messages, and into which remote systems that user connects. All of this information could be obtained by law enforcement without ever receiving a wiretap order. 4. The power to shut down non-compliant networks Finally, the bill proposes that the Attorney General have the power to shut down any common carrier service that fails to comply with all of these requirements. Some have already called this the "war powers" provision. Granting the Department of Justice such control over our nation's communications infrastructure is a serious threat to our First Amendment right to send and receive information, free from undue government intrusion. ******************************** This posting represents EFF's initial response to the new FBI proposal. Several documents, including the full text of the proposed bill and a more detailed section-by-section analysis are available via anonymous ftp on EFF's ftp site, as well as an archived copy of this announcement, and FBI Director Louis Freeh's Digital Telephony speech from late 1993. This document is digtel94.announce The documents can be located via ftp, gopher, or WWW, as follows: ftp://ftp.eff.org/pub/EFF/Policy/Digital_Telephony/digtel94_bill.draft ftp://ftp.eff.org/pub/EFF/Policy/Digital_Telephony/digtel94_analysis.eff ftp://ftp.eff.org/pub/EFF/Policy/Digital_Telephony/digtel94.announce ftp://ftp.eff.org/pub/EFF/Policy/Digital_Telephony/digtel93_freeh.speech gopher: substitute "gopher://gopher.eff.org/00/" for "ftp://ftp.eff.org/pub/" WWW: substitute "http://www.eff.org/" for "ftp://ftp.eff.org/" The directory also contains older Digital Telephony materials from earlier incarnations of the FBI's wiretapping scheme; see digtel92* and digtel93* ******************************** Press inquiries, contact: Jerry Berman, Executive Director Daniel Weitzner, Senior Staff Counsel +1 202-347-5400 +1 202-393-5509 Basic EFF info: info@eff.org General queries: ask@eff.org Membership info: membership@eff.org