From: editor@cdt.org (Bob Palacios)
Date: Fri, 2 Aug 1996 02:29:46 +0800
To: cypherpunks@toad.com
Subject: CDT Policy Post 2.29 - Administration, Congress Propose Sweeping Anti-TerrorismInitiatives
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   The Center for Democracy and Technology  /____/     Volume 2, Number 29
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      A briefing on public policy issues affecting civil liberties online
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 CDT POLICY POST Volume 2, Number 29                        August 1, 1996

 CONTENTS: (1) Clinton Administration, Congress Propose Sweeping
               Anti-Terrorism Initiatives
           (2) How to Subscribe/Unsubscribe
           (3) About CDT, contacting us

  ** This document may be redistributed freely with this banner intact **
        Excerpts may be re-posted with permission of <editor@cdt.org>
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(1) CLINTON ADMINISTRATION, CONGRESS PROPOSE SWEEPING ANTI-TERRORISM
    INITIATIVES

In the wake of the recent bombing at the Olympics and the suspected
terrorist involvement in the TWA crash, the Clinton Administration and
members of Congress are proposing a set of sweeping counter-terrorism
initiatives. If enacted into law, these proposals will dramatically
increase law enforcement surveillance authority over the Internet and other
advanced communications technologies. An outline of the Administration's
proposal was circulated on Capitol Hill on Monday July 29.

President Clinton has urged Congress to pass new counter-terrorism
legislation before the Congressional recess at the end of this week.  While
several prominent Republican members of Congress, including House Speaker
Newt Gingrich (R-GA), have said publicly that Congress should not rush into
any new counter-terrorism legislation, most observers believe there is a
strong possibility that some or all of the Administration's proposal will
be enacted before the August recess.

The draft proposal contains several measures which were rejected by
Congress as part of the previous counter-terrorism initiative proposed
last year after the Oklahoma City bombing, as well as several new measures
including as-yet unspecified changes to U.S. encryption policy and funding
for the Communications Assistance for Law Enforcement Act (CALEA, a.k.a.
Digital Telephony).

CDT is concerned that the latest counter-terrorism efforts on Capitol Hill
are occurring without appropriate deliberation.  Major policy decisions
expanding the surveillance powers of law enforcement should not be made
without careful consideration of the necessity of such proposals and the
relative benefit to society. In the coming days and weeks, CDT will work
with Congressional leaders, privacy advocates, and the net.community to
ensure that constitutional civil liberties and the openness of the Internet
are protected as Congress considers counter-terrorism measures.
________________________________________________________________________

MAJOR POINTS OF THE COUNTER-TERRORISM PROPOSALS CIRCULATING ON THE HILL

The administration's new counter-terrorism initiative and other amendments
circulating this week in Congress contain numerous provisions, but four
are of particular concern to the net.community:

* New Threats to Encryption, Opposition to the Pro-CODE Bill
* Funding for Digital Telephony Without Public Accountability
* Amendment to Criminalize 'Bomb-Making' Information on the Internet
* Expanded Authority for Multi-Point, "Roving" Wiretaps

The full text of the Administration's proposal and background information
are available at CDT's counter-terrorism Web Page:

    http://www.cdt.org/policy/terrorism/

       --------------------------------------------------------

I. NEW THREATS TO ENCRYPTION, OPPOSITION TO THE PRO-CODE BILL

The Administration's outline contains the following statement on encryption:

 "* Encryption -- We will seek legislation to strengthen our ability to
    prevent terrorists from coming into the possession of the technology
    to encrypt their communications and data so that they are beyond the
    reach of law enforcement.  We oppose legislation that would eliminate
    current export barriers and encouraging the proliferation of encryption
    which blocks appropriate access to protect public safety and the
    national security."

While no specific legislative language has yet been proposed, this
represents the first statement by the Administration that they will seek
legislation to further restrict encryption.  Even more troubling, the
Administration is clearly attempting to use the recent suspected terrorist
incidents to push for a new and more restrictive encryption policy.

This new proposal comes as Congress is finally beginning to seriously
consider major changes in U.S. encryption policy. Bipartisan legislation
in both the House and Senate to relax encryption export controls is gaining
momentum.  The Senate Commerce Committee has held 3 hearings in the last 6
weeks, and is preparing to vote to send the Burns/Leahy "Pro-CODE" bill (S.
1726) to the floor of the Senate.  The Administration's attempt to leverage
the public's concern about terrorism to block passage of the Pro-CODE bill
is disturbing, and poses a significant threat to privacy and security on the
Internet.

CDT is working with members of Congress, privacy advocates, and the
communications and computer industries to oppose any attempt by the
Administration to impose new restrictions on encryption, and we continue to
work to move the bipartisan export relief legislation through Congress.

       --------------------------------------------------------

II. FUNDING FOR DIGITAL TELEPHONY WITHOUT PUBLIC ACCOUNTABILITY

The Administration is also seeking to override the public accountability
provisions of the Communications Assistance for Law Enforcement Act (CALEA
- a.k.a. 'Digital Telephony') by providing a funding for the law in a way
that prevents public oversight of the FBI's surveillance ability.

Enacted in October of 1994, granted law enforcement new authority to
influence the design of telecommunications networks (the Internet,
Commercial online services, and BBS's were exempted) in order to preserve
their ability to conduct court authorized electronic surveillance.

Congress balanced this new authority with a number of mechanisms to ensure
public accountability over law enforcement surveillance ability.
While complicated, the public accountability mechanisms are designed to
work as follows:

* Law enforcement provides telecommunications carriers, the Congress,
  and the public with notice of its surveillance capacity needs (i.e.,
  the number of simultaneous wiretaps in a given geographic location)
  with an opportunity for public comment.

* Based on an assessment of the reasonableness of the law enforcement
  surveillance capacity request, Congress appropriates money to cover
  the cost of modifications.  If Congress does not believe law
  enforcement has adequately justified its request, money will not be
  appropriated.

* Telecommunications carriers are not obligated to comply with the
  statute or make any capacity modifications without government
  reimbursement.

In October 1995, the FBI published its first notice of surveillance
capacity (see CDT Policy Post Vol. 1, No. 26).  The telecommunications
industry and privacy advocates used the public accountability provisions of
CALEA to respond to the FBI's request and argued that the FBI had not
adequately justified the extensive surveillance capability contained in the
request.  As a result, Congress has not yet appropriated funds and no
modifications have been made.

The FBI clearly believes that the public accountability provisions of CALEA
are working **too well**, and appears to be using the recent focus on
terrorism to push for a new funding mechanism which does not contain public
oversight.

CDT is fighting hard to ensure that the public accountability provisions of
CALEA, which have until now prevented the FBI from acquiring unnecessary
surveillance capacity, remain a part of the law, and will vigorously oppose
any effort by the FBI and the Clinton Administration to remove the last
opportunity for public oversight over law enforcement power.

       --------------------------------------------------------

III. THE AVAILABILITY OF 'BOMB-MAKING' INFORMATION ON THE INTERNET

Senator Dianne Feinstein (D-CA) has reintroduced an amendment to make it
illegal to disseminate information on how to construct explosives knowing
that the information will be used in furtherance of a federal crime.  The
amendment was adopted by the Senate earlier this month as part of a
Department of Defense Appropriations bill.  CDT believes that the vague
provisions of the Feinstein amendment could have a chilling effect on online
speech, needlessly duplicate existing criminal statutes, and should be
removed.

Feinstein first proposed the amendment as part of the 1995
counter-terrorism bill. The initial Feinstein amendment was extremely broad
and would have resulted in a flat ban on certain constitutionally protected
speech online.  After civil liberties advocates objected, Feinstein
narrowed her amendment substantially, although it was ultimately dropped
from the final terrorism bill signed in April 1996.

       --------------------------------------------------------

IV.  EXPANDED WIRETAP AUTHORITY

The Administration's proposal would also significantly expand current
wiretapping authority to allow multi-point (or "roving") wiretaps. This
would dramatically change surveillance authority to include wiretaps of
INDIVIDUALS instead of LOCATIONS.

This proposal would do away with the delicate balance between privacy and
law enforcement that Congress has struck over 30 years of wiretapping
legislation. Federal law has always required that wiretaps issue for a
specific location, to meet Fourth Amendment requirements. In 1986 Congress
introduced a narrow exception to this rule, only for cases where it could
be shown that the target was intentionally evading wiretaps by changing
facilities. The Administration proposal would completely remove this
standard, allowing so-called "roving taps" for any persons whose behavior
makes wiretapping difficult for law enforcement.

The administration proposed similar provisions in the spring of 1995 in the
wake of the Oklahoma City bombing. These provisions proved controversial in
Congress and were dropped from the final bill.

________________________________________________________________________

FOR MORE INFORMATION

For more information on the counter-terrorism proposals and their impact on
the Internet check out:

CDT's Counter-Terrorism Page:     http://www.cdt.org/policy/terrorism/
CDT's Encryption Policy Page:     http://www.cdt.org/crypto/
CDT's Digital Telephony Page:     http://www.cdt.org/digtel.html
Encryption Policy Resource Page:  http://www.crypto.com/

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(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 democratic values and
constitutional civil liberties in new computer and communications
technologies.

Contacting us:

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End Policy Post 2.29                                             8/1/96
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