Date: Mon, 6 Nov 1995 15:20:49 -0500 To: mnemonic@eff.org, mech@eff.org From: editor@cdt.org (editor@cdt.org) ------------------------------------------------------------------------ ****** ******** ************* ******** ********* ************* ** ** ** *** POLICY POST ** ** ** *** ** ** ** *** November 6, 1995 ** ** ** *** Number 28 ******** ********* *** ****** ******** *** CENTER FOR DEMOCRACY AND TECHNOLOGY ------------------------------------------------------------------------ A briefing on public policy issues affecting civil liberties online ------------------------------------------------------------------------ CDT POLICY POST Number 28 November 6, 1995 CONTENTS: (1) Senator Leahy Calls on FBI to Justify Surveillance Capacity Request (2) Text of Senator Leahy's Letter to FBI Director Freeh (3) Review of Digital Telephony Implementation to Date (4) How To Subscribe To The CDT Policy Post Distribution List (5) About CDT, Contacting Us This document may be re-distributed freely provided it remains in its entirety. Excerpts may be re-posted by permission (editor@cdt.org) ------------------------------------------------------------------------- (1) SENATOR LEAHY CALLS ON FBI TO JUSTIFY SURVEILLANCE CAPACITY REQUESTS FBI Must Disclose Data to Ensure Public Accountability US Senator Patrick Leahy (D-VT) on Friday November 3rd called on the FBI to disclose critical information justifying the its recent request for wiretapping capacity under the Communications Assistance for Law Enforcement Act (CALEA, a.k.a. the "Digital Telephony" law). CDT commends Senator Leahy for his leadership on this issue and his efforts to ensure a detailed public discussion of the necessity of the FBI's request. CDT believes that Congress should not appropriate any funds to cover the costs of capacity modifications until the FBI justifies its need for the proposed surveillance capacity. The FBI's proposal, published in the October 16 Federal Register, has sparked a great deal of concern from privacy advocates and the telecommunications industry that the FBI is seeking to expand its ability to wiretap digital telecommunications networks beyond its current activity the analog environment. In response to this concern, Senator Leahy sent the attached letter to FBI Director Freeh calling on the FBI to disclose two critical pieces of information used by the Bureau to determine its capacity needs: a survey of historical surveillance activity and an analysis of that activity. The FBI's announcement of the proposed surveillance capacity did not contain this information. Under CALEA, the FBI is required to publish requests for surveillance capacity in order to ensure public oversight and accountability over law enforcement surveillance activity. In addition, CALEA requires that the government reimburse telecommunications carriers for any modifications made to meet the capacity requests. If the government fails to reimburse telecommunications carriers for capacity modifications, carriers are not required to make any changes to their networks. Congress is currently considering legislation to appropriate funding for the proposal. These provisions of CALEA were specifically designed to ensure a public debate over the necessity and costs of law enforcement surveillance capacity. CDT will continue to work closely with Senator Leahy, other members of Congress, and representatives from the public interest community and the telecommunications industry to ensure that the public accountability provisions of the law are followed, and that Congress carefully examines the basis of the FBI's request before approving funding for the proposal. ---------------------------------------------------------------------- (2) LETTER FROM SENATOR LEAHY TO FBI DIRECTOR FREEH November 3, 1995 The Honorable Louis J. Freeh Federal Bureau of Investigation J. Edgar Hoover Building 9th Street and Pennsylvania Avenue Washington, D.C. 20035 Dear Director Freeh: Congress took the important step in the last Congress of passing the "Communications Assistance for Law Enforcement Act" (CALEA) to ensure that in cases of significant criminal activity, ranging from terrorism to kidnapping, law enforcement would continue to be able to execute court-authorized electronic surveillance. Our Nation's law enforcement agencies are loosing their capability to use that important tool in the face of new and advanced telecommunications technologies. Just as significantly, this new law also brings decisions affecting the privacy of our Nation's telephone system under statutory guidance and into the sunshine. CALEA requires that law enforcement's demands regarding the number of wiretap orders that telephone companies must be able to service simultaneously, are published in the Federal Register and scrutinized in a public procedure. The process set up in CALEA is working. The Federal Bureau of Investigation recently published in the Federal Register a proposed notice of law enforcement's capacity demands predicated upon an historical baseline of electronic surveillance activity and an analysis of that activity. The Federal Register notice did not include publication of those two documents. Please provide me with copies of those two documents, which I also urge you to release to the public and publish in the Federal Register to ensure the fullest dissemination of the information. I appreciate your prompt attention to this matter. Sincerely, [signature] PATRICK J. LEAHY United States Senator ---------------------------------------------------------------------- (3) REVIEW OF DIGITAL TELEPHONY PROCESS TO DATE FBI Must Address Critical Questions About The Proposed Capacity Notice On October 16, 1995, the FBI published in the Federal Register its proposed notice of surveillance capacity, as required by CALEA. The FBI has requested that telecommunications carriers, depending on the geographic area served by their network and the frequency of surveillance orders in those areas, reserve up to 1% of the capacity of each switch, feature, or service for law enforcement to conduct simultaneous electronic surveillance pursuant to proper legal authorization. CDT hopes that the publication of the basis of the FBI's surveillance capacity request will help to answer several critical questions about the proposal. These include: * ARE THE PROPOSED SURVEILLANCE CAPACITY REQUIREMENTS CONSISTENT WITH LAW ENFORCEMENT'S REAL NEEDS? Is the FBI seeking to expand its surveillance capacity in digital telecommunications networks beyond its current activity in the analog environment? The FBI has requested that, at a minimum, all telecommunications carriers nationwide ensure that .05% (.25% after 1998) of the "engineered capacity" of their networks be reserved for simultaneous surveillance activity, including wiretaps, trap and trace, and pen-registers (devices used to capture dialed number information). Greater capacity would be required in some areas (up to 1% by 1998 in the most populated parts of the US). Although there is some dispute about what is meant by the term "engineered capacity", the proposed notice appears to allow law enforcement the ability to conduct a great deal more surveillance activity than they currently undertake (estimated to be between 850 and 1,000 per year nationwide). * WHAT ARE THE REAL NUMBERS? How much capacity is being asked for and how does it compare with today's surveillance levels? The proposed surveillance capacity requirements are based on a percentage of the "engineered capacity" of the telecommunications network. In the notice, the FBI defines "engineered capacity" as "the maximum number of subscribers that can be served by that equipment, facility, or service". There is some dispute over the meaning of this term. Taken on its face, the FBI's definition of "engineered capacity" appears to grant the FBI the capacity to conduct up to 1 wiretap for every 100 telephone subscribers in densely populated areas. The FBI disputes this number, and has stated that "engineered capacity" refers to the number of subscribers who can be serviced *simultaneously* by a particular facility, equipment, or service. The FBI maintains that by this definition, the actual number of simultaneous wiretaps would be far lower than some have estimated. Making public the basis of the FBI's surveillance capacity requests will help to clarify this issue. However, regardless of the actual number, the FBI must demonstrate that it is not requesting unnecessary surveillance capacity. * DIRECT NEGOTIATIONS WITH TELECOMMUNICATIONS CARRIERS FOR SURVEILLANCE CAPACITY ABOVE THE NATIONAL MINIMUM? The FBI has proposed to undertake direct negotiations with telecommunications carriers for surveillance capacity beyond the proposed national minimum standard requested in the notice. When Congress passed CALEA last year, it created a public process to bring law enforcement's electronic surveillance ability under public scrutiny in order to balance the new authority to influence the design of telecommunications networks. The public accountability provisions of CALEA require the FBI to publish *all* surveillance capacity requests. Congress must take a critical look at this aspect of the FBI's proposal, and should not appropriate funds until the FBI agrees to disclose all capacity requests, as required by the law. NEXT STEPS Public Accountability Requirements Of The Statute Must Be Met CDT will work closely with Senator Leahy and others to ensure that the FBI discloses the basis for its recent surveillance capacity request. Once the information is made available, we will work with Senator Leahy, other interested members of Congress, public interest groups and the telecommunications industry to ensure that the FBI does not receive unnecessary surveillance capacity. We will also work to ensure that no funding is made available until the public accountability provisions of the law are satisfied. FOR MORE INFORMATION: Visit CDT's Digital Telephony Web Page URL:http://www.cdt.org/digtel.html --------------------------------------------------------------------------- (4) HOW TO SUBSCRIBE TO THE CDT POLICY POST LIST CDT Policy Posts, which is what you have just finished reading, are the regular news publication of the Center For Democracy and Technology. CDT Policy Posts are designed to keep you informed on developments in public policy issues affecting civil liberties online. SUBSCRIPTION INFORMAITON 1. SUBSCRIBING TO THE LIST To subscibe to the policy post distribution list, send mail to "Majordomo@cdt.org" with: subscribe policy-posts in the body of the message (leave the subject line blank) 2. UNSUBSCRIBING FROM THE LIST If you ever want to remove yourself from this mailing list, you can send mail to "Majordomo@cdt.org" with the following command in the body of your email message: unsubscribe policy-posts youremail@local.host (your name) (leave the subject line blank) You can also visit our subscription web page URL:http://www.cdt.org/join.html ----------------------------------------------------------------------- (5) ABOUT THE CENTER FOR DEMOCRACY AND TECHNOLOGY/CONTACTING US The Center for Democracy and Technology is a non-profit public interest organization based in Washington, DC. The Center's mission is to develop and advocate public policies that advance constitutional civil liberties and democratic values in new computer and communications technologies. 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