From: editor@cdt.org (Bob Palacios)
Date: Sat, 21 Sep 1996 04:13:57 +0800
To: cypherpunks@toad.com
Subject: CDT Policy Post 2.32 - FBI Surveillance Demands Rejected on Privacy Grounds
Message-ID: <v02140b05ae6872dba0a4@[204.157.127.16]>
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   The Center for Democracy and Technology  /____/     Volume 2, Number 32
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      A briefing on public policy issues affecting civil liberties online
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 CDT POLICY POST Volume 2, Number 32                    September 20, 1996

 CONTENTS: (1) FBI Demands for Broad New Surveillance Power Rejected on
               Privacy Grounds
           (2) CDT Background Memo on the FBI Demands
           (3) How to Subscribe/Unsubscribe
           (4) About CDT, contacting us

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(1) FBI Demands for Broad New Surveillance Power Rejected on Privacy
    Grounds

A telecommunications industry standards body on Thursday voted to reject a
demand by the FBI to create a national tracking system out of the wireless
telephone network.  CDT applauds this decision as a significant victory
for privacy and condemns the FBI's blatant efforts to subvert the specific
requirements of the Communications Assistance for Law Enforcement Act
(CALEA, also known as "Digital Telephony").

"The FBI is demanding that every cell phone double as a tracking device,
providing instant and continuous location information not just when a
subject is talking but whenever a cellular phone is turned on. " said CDT
Executive Director Jerry Berman. "The FBI is demanding real-time tracking
of anyone suspected of committing a crime.  This is a clear violation of
the statute and the Fourth Amendment." Berman added

At issue are technical standards currently being drafted to implement the
1994 law. The FBI, which holds an influential position within the industry
standards process, has demanded that the wireless telephone network be
designed in a way that would allow real time tracking of individuals
suspected of a crime.

Specifically, the FBI is demanding that wireless networks be designed to
facilitate:

* Tracking of the physical location of a subject any time a cellular
  phone is turned on (even if no call is being made or received)

* Tracking of the physical location of a subject when a cellular phone
  moves within a service area or moves to another carrier's service area

* Tracking of the physical location of a subject when a cellular phone
  makes or receives a call

* Delivery of this information to law enforcement in real time (within
  500 milliseconds)

Although law enforcement currently has the authority to obtain certain
location information through a search warrant, the standards proposed by
the FBI would have allowed access to far more detailed location information
under a lower standard.

"The law was designed to freeze the FBI in time, not as a blank check to
the FBI to design the telecommunications network any way it pleased."
Berman said. "The FBI's demands go far beyond what's permitted under CALEA
and contradict statements by Director Freeh before Congress 2 years ago."

The drafters of CALEA specifically stated that the statute was not designed
to expand law enforcement surveillance authority. The Committee report on
the legislation notes:

 "The FBI director testified that the legislation was intended to
  preserve the status quo, that it was intended to provide law
  enforcement no more and no less access to information than it had in
  the past. The Committee urges against over broad interpretation of the
  requirements."
   -- House Judiciary Committee Report to Accompany H.R. 4922. Rept.
      103-827 Part 1, Page 22

NEXT STEPS

In order to ensure public oversight and accountability over the FBI's
surveillance authority, CALEA requires the government to reimburse the
telecommunications industry for the costs of meeting the statute's
requirements.  Congress is currently considering a mechanism to fund the
implementation of the law.

CDT urges the Congress to exercise its oversight role to determine whether
the FBI is seeking to use CALEA to expand current surveillance capabilities
contrary to the specific intent of the law.  Unless and until the FBI
clarifies its intent and justifies its demands, Congress should not allow
the expenditure of any funds to implement CALEA.

CDT and a ad-hoc task force of other privacy organizations and
telecommunications industry representatives are currently conducting a
review of electronic surveillance issues at the request of Senators Patrick
Leahy (D-VT) and Arlen Specter (R-PA).  The task force report will cover the
implementation of CALEA and will be released within the next few months.
CDT stands ready to intervene again at the standards setting process and
before the FCC if necessary in order to ensure that privacy is protected as
CALEA is implemented.

The Center for Democracy and Technology is a Washington DC based non-profit
public interest organization focusing on free speech and privacy issues in
new computer and communications technology.  CDT can be found on the World
Wide Web at:  http://www.cdt.org/

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(2) CDT BACKGROUND MEMO ON THE FBI DEMANDS

FBI SEEKS TO USE CELLULAR TELEPHONES AS TRACKING DEVICES

The FBI is demanding the telecommunications industry design cellular
telephone networks in a way which would allow law enforcement to track
the physical location and movements of individuals in clear violation of
the law.  This effort by the FBI raises grave privacy concerns and must
be rejected by the telecommunications industry.

In ongoing discussions with a Telecommunications Industry Association
committee established to set technical standards to implement the
Communications Assistance for Law Enforcement Act (CALEA, P.L. 103-414,
also known as the "Digital Telephony" statute), the FBI is requesting
surveillance capability far beyond current law enforcement capabilities and
in clear violation of the scope of the law.

CALEA was not designed as a blank check from Congress allowing law
enforcement to design the telecommunications network to expand existing
surveillance capability. Rather, the statute was carefully balanced to
ensure that law enforcement maintain the status quo. This overreaching by
the FBI raises serious privacy concerns and clearly violates the balance
struck by CALEA.  CDT strongly urges Congress to refrain from approving any
funding for the implementation of CALEA until the FBI makes its intentions
clear.

FBI Demanding Location Information In Clear Violation of the Statute

The FBI's request is contained in a proposal called the Electronic
Surveillance Interface (ESI), which specifies the design of the interface
between the telecommunications network and law enforcement's own
surveillance equipment. The FBI has refused a formal request by CDT to view
a copy of the ESI.

However, documents obtained from a meeting of the FBI and the
telecommunications industry on September 12 indicate that the FBI is
demanding that cellular networks be designed to deliver location
information to law enforcement.  Specifically,  the ESI states that
cellular networks must be designed to provide the geographic location of a
particular subject:

The ESI states:

  R7-62     The SSM (Surveillance Status Message) shall be delivered to
            the LEA (Law Enforcement Authority) whenever the subject
            changes location or between systems and this location is
            available to the IAP (Intercept Access Point)

In short, the FBI is requesting that the cellular network be designed to
report the geographic location of an individual subject:

1. When a cellular phone is turned on (even if no call is made)
2. When a cellular phone moves within a service area or moves to another
   carrier's service area.
3. When a cellular phone makes or receives a call.

The FBI claims that location information has to be provided to law
enforcement under CALEA because it is part of  "call setup information."
However, in his testimony before a joint hearing of the House and Senate
Judiciary Committees on March 18, 1994, FBI Freeh director stated exactly
the opposite:

 "Several privacy-based spokespersons have criticized the wording of the
  definition (of call setup information)... alleging that the government
  is seeking a new, pervasive, automated 'tracking' capability. Such
  allegations are completely wrong.... In order to make clear that the
  acquisition of such information is not... included within the term
  'call setup information' we are prepared to add a concluding phrase to
  this definition to explicitly clarify the point: '*** except that such
  information [call setup information] shall not include any information
  that may disclose the physical location of a mobile facility or
  service beyond that associated with the number's area code or
  exchange.'"    (Testimony of FBI director Louis Freeh before a joint
  hearing of the House Judiciary Subcommittee on Civil and
  Constitutional Rights and the Senate Judiciary Subcommittee on
  Technology and the Law, March 18, 1994. S. Hrg 103-1022).

The drafters of CALEA noted in the Committee report that the statute was not
designed to expand law enforcement surveillance ability:

 "The FBI director testified that the legislation was intended to
  preserve the status quo, that it was intended to provide law
  enforcement no more and no less access to information than it had in
  the past.  The Committee urges against over broad interpretation of
  the requirements." (House Judiciary Committee Report to Accompany H.R.
  4922. Rept. 103-827 Part 1, page 22)

The FBI's demand that all wireless communications equipment provide the
physical locations of a subscriber at all times goes raises obvious privacy
issues and goes well beyond the scope of CALEA and the explicit statements
of the FBI.

No Funds Should Be Appropriated to Implement CALEA Until This Issue is Resolved

In passing CALEA, Congress sought to preserve law enforcement's ability to
conduct electronic surveillance as new communications technologies are
developed.  At the same time, Congress was very clear that the law was
designed to preserve the status quo and not to expand law enforcement
surveillance authority.  In addition, Congress took the extra step of
including substantial Congressional oversight and public accountability to
the implementation process in order to ensure that law enforcement did not
overreach and that privacy interests would be protected.

The law requires the telecommunications industry to set standards for
meeting the FBI's general requirements in an open process, allows
interested parties to challenge any standard before the FCC if it fails to
protect privacy, and requires Congressional oversight and accountability
over the implementation of the law by mandating government reimbursement
for expensive capability upgrades.

We urge Congress to exercise its oversight role to determine whether in
fact the FBI is seeking to use CALEA to expand its current surveillance
capabilities contrary to the intent of the law.  Unless and until the FBI
clarifies its intent and justifies its demands, Congress should not allow
the expenditure of any funds to implement CALEA.

We look forward to discussing this issue with you further.  If you have any
questions please contact:

Center for Democracy and Technology        +1.202.637.9800
        Danny Weitzner, Deputy Director      <djw@cdt.org>
        Jonah Seiger, Policy Analyst         <jseiger@cdt.org>

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(4) 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:

General information:  info@cdt.org
World Wide Web:       URL:http://www.cdt.org/
FTP                   URL:ftp://ftp.cdt.org/pub/cdt/

Snail Mail:  The Center for Democracy and Technology
             1634 Eye Street NW * Suite 1100 * Washington, DC 20006
             (v) +1.202.637.9800 * (f) +1.202.637.0968

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End Policy Post 2.32                                            9/20/96
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