From: Black Unicorn <unicorn@access.digex.net>
Date: Fri, 18 Mar 94 12:38:16 PST
To: cypherpunks@toad.com
Subject: Joint Committee DT94 Hearings Summary
Message-ID: <199403182037.AA24759@access3.digex.net>
MIME-Version: 1.0
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Quick Summary of the Digital Telephony Hearings
 
18-3-94
 
I have a full recording of the first three sets of witnesses, but I 
wont type the whole transcript in because it should be available 
publicly as part of legislative history files in a few weeks.
 
The below is a quick summary of the FBI case for the Wiretap Bill, I 
have omitted most of the testimony of the other witnesses.  If there 
is enough interest I will work up a more full analysis.
 
The Hearing:
 
I was surprised by a few things.
 
1>  The attendance.  Most of the large telco corps. were represented 
and some thought the hearing important enough to hire messenger people 
to wait in line for them. In addition, there was a large law 
enforcement presence.  The FBI was in full force, not surprisingly, as 
were the Prince George's County Police and members of the Attorney 
General's Office.  All this was expected, what really surprised
me was recognizing several members of non-domestic intelligence 
agencies.  Typically the legislative process is observed by the 
intelligence communities at arms length.  Such was not the case here.
 
2>  The lack of any concerted support for the bill from the Chair.
Despite efforts by Rep. Canady and Sen. Cohen (sp?) there was no real
organized support for the draft bill except from the FBI.  (Director 
Freeh)
 
I was pleased to find the privacy issue raised several times, and 
usually there was deference to civil liberties rather than law 
enforcement.
 
One of my favorite comments from Sen. Don Edwards (Former Prosecutor 
and FBI agent):
 
"[Before 1968 when I was an agent] wiretapping was illegal.  I seem
to remember doing it anyway however."
 
The FBI position was exposed as flexible with Freeh admitting that he 
did not want access to the kind of transactional data that EFF and 
civil libertarians have been complaining about.  Of course he offered 
no real solution either, and it came out in later testimony that 
ferreting out this data was a distinct technical problem in and of 
itself.
 
Freeh's position was basically this:
 
New technology is preventing wiretapping.
Wiretapping is only used when it can be shown nothing else will work.
The FBI is not seeking an expansion of powers, but only trying to 
maintain the balance they "currently have."
Wiretapping is typically used in the most important "life and death" 
cases.
Without wiretapping crimes will take victims that otherwise would have
been protected.
Communications technology is essentially repealing the wiretap 
authority de facto.
 
His statistics were interesting too.
 
993 Wiretaps in 1992, over 9000 pen register connections.
252 by the FBI, 340 Federal, 2/3 State and local authorities.
 
22,000 "dangerous felons" arrested in the last ten years.
 
There was much concern from the chair as to why the current law was 
not enough.
 
Freeh replied that the telco companies themselves had been the ones to 
forecast a gap in access for the FBI, and that the telco lawyers were 
advising the telcos that they did not have to comply with old 
legislation if access under the new systems was not possible.
 
Freeh went on to say that the new law cannot compel that which is 
technologically impossible, and if the telco's don't install the 
equipment, then it is simply impossible.
Freeh claims there were 91 cases he knew of in 1993 where the new 
equipment had interfered with the government's ability to wiretap.
 
The chair was concerned that the legislation was basically halting 
development until the government could catch up.
 
Freeh replied that without the legislation the telco's would not 
comply with law enforcement needs.  "2000 companies will not sit down 
at a table at the same time and agree unilaterally to do exactly the 
same thing...."
 
The chair asked if the FBI was asking for an industry standard, and 
will the legislature be stepping in and "impeding technological 
advances that would be there without our stepping in."
 
Some hesitation from Freeh, then: "Yes."
 
Will call forwarding and such calling features that might interfere 
with the enforcement of this bill be kept off the market because of 
this legislation?
 
Freeh:  "No, absolutely not.   That is not the intent of the 
legislation, and I don't believe that is the effect."
 
And encryption?
 
"That's another problem...  This legislation doesn't ask them to 
decrypt, it just tells them to give us the bits as they have it.  If 
they're encrypted that's my problem."
Chair: "That will be another hearing."
[Laughter]
Sen. Leahey: "I feel very fortunate to have all these things land in 
my subcommittee, otherwise I probably would have had nothing to do on 
weekends and evenings."
[Laughter]
[...]
Freeh:  "That's why we are here, the technology is running at such a 
pace that we could be out of the wiretap business in a short period of 
time."
 
Are the companies going to pay for the 24 hour personal for each and 
every telephone company.
 
Freeh:  Yes, but your only talking about 900 wiretaps a year.
 
The chair expresses concern that a small and budding telco with five 
employees might be unduly burdened by the payroll of 3 more employees 
round the clock.
[...]
 
On the $10,000 a day fine, "I think that's flexible." Freeh insisted 
this was only a benchmark and that the authority to impose at least 
those sanctions existed already.  "But we don't use it because the 
phone companies have been so cooperative."
 
On the cost of the Digital Telephony equipment.
 
Freeh:  "We estimate 300-500 million dollars.  That could be off by 
200 million, it could be off by 500 million."
[Laughter]
[...]
"What I do know is that the World Trade Center [bombing] cost upwards 
of 5 billion dollars."
 
The chair cites the Time survey with the 66% prefer privacy to 
wiretapping statistic.
 
Sen. Leahey expressed concern over the fact that sanctions do not take 
into account good faith.  Instead the FBI dictates terms, and if the 
carrier is unable to comply, despite whatever efforts, the sanctions 
are leveled.
 
The chair questions that if common carriers did not include small 
cable companies getting into the local telephone business, wasn't 
there an economic regulation at work?
 
Freeh responded by noting the last bill was rejected because it was 
too broad, and this one is intended to be more narrow.
 
Leahey dismissed the witness and commented that the technological 
advances in the United States were one of the major reasons the Unites 
States had remained a world leader.
 
- -uni- (Dark)
 
 
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