FBI Late in Key Wiretap Report

In October 1994, President Clinton signed the Communications Assistance to Law Enforcement Act, better known as the "Digital Telephony Bill." The 1994 law required sweeping changes to the nation's telecommunications infrastructure, forcing companies for the first time to build wiretap capabilities into their communications systems.

But while a key aspect of the new law was public accountability, the FBI is now more than four months late in delivering a mandated oversight report to the Congress.

"This report would be a roadmap to the FBI's planed revisions to the nation's telecommunications infrastructure," says David Sobel, Legal counsel with the Washington-based Electronic Privacy Information Center.

"In the language of the statute, it would show the equipment facilities or services for which payment is expected to be made. This would be the first indication of what changes they are going to mandate under the authority of the new statute," Sobel said.

The report is "going through the administration's review process," says Barry Smith with the FBI Congressional Affairs Office. In early March, Smith had said "my best guess is that it will be [released in] about a week and that's it."

Since an early draft of the legislation was first circulated by the FBI in 1992, the so-called Digital Telephony bill has been the subject of a heated controversy and cyberspace showdown between communications companies, computer firms, civil liberties groups, and law enforcement.

The FBI maintained that rapid developments in the field of telecommunications were quickly outstripping the law enforcement's ability to conduct electronic surveillance.

"If the technology is not fixed in the future, I could bring an order [for a wiretap] to the telephone company, and because the technology wasn't designed with our requirement in mind, that person could not [comply with the court order]," said James K. Kallstrom, who was then the FBI's chief of engineering.

An example frequently sited by Kallstrom New York City's cellular telephone system, which had been built in the 1980's without any explicit provisions for wiretapping: before the system was modified to accommodate the FBI's wiretap needs, less than eight telephones could be tapped simultaneously. According to the FBI, more than a hundred court-authorized wiretaps were stuck in a waiting list.

An early draft of the bill was first proposed under the Bush administration, but never made it to floor of Congress. The revised bill became a cause celebre among FBI Director Louis Freeh, who reportedly visited every member of Congress to convince lawmakers of the bill's necessity.

One of the bill's most notable casualties was the fledgling cyberspace civil rights group, the Electronic Frontier Foundation (EFF). At the outset, EFF opposed the legislation, but the organization eventually switched sides and supported the bill after a series of compromises which were supposed to exclude the Internet from the legislation's coverage, and force the US Government to reimburse telephone companies for the estimated $500 million dollars necessary to retrofit their existing systems to make them more easily wiretapped.

"[The legislation] limited the reach of [FBI's] design authority and excluded their reach into the Internet," said EFF's then-director, Jerry Berman, in 1994. "It places the responsibility for paying for [the modifications] where it belongs, in a publicly accountable way." Shortly afterwards, Berman left EFF with the group's top analysts and created a rival civil liberties organization, the Center for Democracy and Technology.

Once passed, the Communications Assistance to Law Enforcement Act (CALEA) created a new FBI office, the Telecommunications Industry Liaison Unit, established a process for both equipment manufacturers and communications carriers to work with the FBI to build wiretap provisions into their systems, and created stiff penalties for those who did not comply.

"We work with the industry in a consultative process, as CALEA points out," says David Worthley, TILU's unit chief.

Worthley said that the TILU has been working closely with standards bodies and the industry to make sure that law enforcement's surveillance requirements are designed into the communication systems of the future. He says that the new surveillance requirements being placed on the industry are similar to other requirements that the government has mandated, such as "800 portability," or the ability for companies to move their toll-free 800-numbers from one long-distance provider to another.

Supporters of the bill contended that it merely raised the curtains on a process that had been going on for years behind closed doors. That is the reason why Sobel and others are disturbed that the TILU's report has not been issued.

"In selling this bill to the Congress, the FBI guaranteed that this controversial process would, for the first time, be subject to public oversight," says Sobel, who has filed numerous Freedom of Information Act lawsuits against the FBI demanding proof for statements made by top FBI officials to Congress. "The issuance of the report was an important aspect of that oversight. The report has not been issued. And as a result, there is no public oversight."

"I was advised that the report will not be available until sometime after the public comment period for the FBI's proposed "capacity requirements" under CALEA closes on January 16, 1996," wrote Sobel in his letter.

But the capacity requirement has itself been a subject of controversy. Last October, the FBI published a notice in the Federal Register stating that the FBI required the ability to be able to wiretap one percent of all telephones in the United States simultaneously. In response to a request from Senator Patrick J. Leahy (D-VT), the FBI later clarified its position, saying that it needed only the capability of wiretapping one percent of all telephone conversations, not actual lines.

The FBI further said that the one percent figure was an upper limit maximum capacity that needed to be built into equipment to allow intensive surveillance of particular areas during times of crisis.

"As the nation moves toward the future, law enforcement must have the capability to conduct a minimum level of electronic surveillance in any locality, regardless of previous levels of criminal activity or prior levels of electronic surveillance activity," reads the FBI's official response to Leahy. "Terrorism, drug trafficking, and violent crimes are constant and unpredictable threats to the public in all locations, as evidenced by the Oklahoma City bombing in April 1995."

[The FBI's official response, showing the capacity calculations in detail, is on the FBI's Web server.]

There were 1,154 wiretap applications submitted and concluded in 1994, the last year for which data is currently available, according to the Statistics Division of the Administrative Office of the United States Courts. The previous year, 1993, there were up from 976 wiretaps. The Courts report that 876 of the 1154 taps were in drug investigations. Of the 1,154 wiretaps, 600 were approved by state judges. Eighty-eight percent of all wiretap authorizations approved by those were located in four states: New York (367), New Jersey (59), Pennsylvania (52) and Florida (49).

One of the compromises that allowed CALEA to become law was that new systems would come wiretap-ready at the manufacturer's expenses, but the government would pay $500 million to retrofit existing systems.

"CALEA authorized to be appropriate $500 million" says the FBI's Smith. In his 1996 budget, President Clinton proposed paying for the $500 million through a "40% surcharge on all civil fines and penalties. The Congress choose not to implement that surcharge."

So in the Clinton 1997 budget, says Smith, there is a direct appropriation of $100 million "towards carrier reimbursement. We feel confident that given the importance of this initiative, that Congress will provide the funding as requested."

But Sobel thinks that this funding should be denied, and the Electronic Privacy Information Center has undertaken a campaign to keep the funding off the books.

"There has been very little public information released concerning the FBI's attempts to redesign the nation's telephone system," says Sobel. "They have undertaken this unprecedented initiative based on the flimsiest evidence imaginable."