FOR IMMEDIATE RELEASE  --  DISTRIBUTE WIDELY


The Clinton Administration is backing a proposal by law enforcement
agencies that could make the entire communications infrastructure
susceptible to surveillance.  The Digital Telephony Proposal, reintroduced
this year after being successfully thwarted last year, would require
communications service providers to include "back doors" in their software
through which "wiretapping" can be done.  In addition, the proposal would
give law enforcement officers access to records *about* communications,
such as who you call and how long you talk. Such traffic analysis can
reveal vast amounts of information about you.  EFF is extremely concerned
about this proposal and has prepared the following summary to explain it
and the harm it could do. 



Electronic Frontier Foundation Statement on FBI Draft Digital Telephony Bill
----------------------------------------------------------------------------

        EFF has received a draft of the FBI's new, proposed "Digital
Telephony" bill.  After initial analysis, we strongly condemn the bill,
which would require all common carriers to construct their networks to
deliver to law enforcement agencies, in real-time, both the contents of all
communications on their networks and the "signalling" or transactional
information.  

        In short, the bill lays the groundwork for turning the National
Information Infrastructure into a nation-wide surveillance system, to be
used by law enforcement with few technical or legal safeguards.  This image
is not hyperbole, but a real assessment of the power of the technology and
inadequacy of current legal and technical privacy protections for users of
communications networks.

        Although the FBI suggests that the bill is primarily designed to
maintain status quo wiretap capability in the face of technological
changes, in fact, it seeks vast new surveillance and monitoring tools. 
Among the new powers given to law enforcement are:

1. Real-time access to transactional information creates the ability to
monitor individuals "live".

        The bill would require common carrier networks (telephone companies
and anyone who plans to get into the telephone business, such as cable TV
companies) to deliver, in real-time, "call setup information."  In the
simplest case, call setup information is a list of phone numbers
dialed by a given telephone currently under surveillance.  As we all come
to use electronic communications for more and more purposes, however, this
simple call setup information could also reveal what movies we've ordered,
which online information services we've connected to, which political
bulletin boards we've dialed, etc. With increasing use of
telecommunications, this simple transactional information reveals almost as
much about our private lives as would be learned if someone literally
followed us around on the street, watching our every move.

        We are all especially vulnerable to this kind of surveillance,
because, unlike wiretapping the *content* of our communications, it is
quite easy for law enforcement to get permission to obtain this
transactional information.  Whereas courts scrutinize wiretap requests very
carefully, authorizations for access to call setup information are
routinely granted with no substantive review.  Some federal agencies, such
as the IRS, even have the power to issue administrative subpoenas on their
own, without appearing before a court.  

The real impact of the FBI proposal turns, in part, on the fact
that it is easy to obtain court approval for seizing transactional data.

The change from existing law contained in the FBI proposal is that carriers
would have to deliver this call setup information *in real-time*, that is,
"live", as the communication occurs,  directly to a remote listening post
designated by law enforcement.  Today, the government can obtain this
information, but generally has to install a device (called a 'pen
register') which is monitored manually at the telephone company switching
office.

2. Access to communication and signalling information for any mobile
communication, regardless of location allows tracking of an individual's
movements.

        The bill requires that carriers be able to deliver either the
contents or transactional information associated with any subscriber, even
if that person is moving around from place to place with a cellular or PCS
phone.  It is conceivable that law enforcement could use the signalling
information to identify that location of a target, whether that person is
the subject of a wiretap order, or merely a subpoena for call setup
information.

        This provision takes a major step beyond current law in that it
allows for a tap and/or trace on a *person*, as opposed to mere
surveillance of a telephone line.

3. Expanded access to electronic communications services, such as the
Internet, online information services, and BBSs.

        The privacy of electronic communications services such as
electronic mail is also put at grave risk.  Today, a court order is
required under the Electronic Communications Privacy Act to obtain the
contents of electronic mail, for example.  Those ECPA provisions would
still apply for the contents of such messages, but the FBI bill suggests
that common carriers might be responsible for delivering the addressing
information associated with electronic mail and other electronic
communications.  For example, if a user connects to the Internet over local
telephone lines, law enforcement might be able to demand from the telephone
company information about where the user sent messages, and into which
remote systems that user connects.  All of this information could be
obtained by law enforcement without ever receiving a wiretap order.

4. The power to shut down non-compliant networks

        Finally, the bill proposes that the Attorney General have the power
to shut down any common carrier service that fails to comply with all of
these requirements.  Some have already called this the "war powers"
provision.  Granting the Department of Justice such control over our
nation's communications infrastructure is a serious threat to our First
Amendment right to send and receive information, free from undue government
intrusion.

********************************

This posting represents EFF's initial response to the new FBI proposal. 
Several documents, including the full text of the proposed bill and a more
detailed section-by-section analysis are available via anonymous ftp on
EFF's ftp site, as well as an archived copy of this announcement, and
FBI Director Louis Freeh's Digital Telephony speech from late 1993.

This document is digtel94.announce

The documents can be located via ftp, gopher, or WWW, as follows:

ftp://ftp.eff.org/pub/EFF/Policy/Digital_Telephony/digtel94_bill.draft
ftp://ftp.eff.org/pub/EFF/Policy/Digital_Telephony/digtel94_analysis.eff
ftp://ftp.eff.org/pub/EFF/Policy/Digital_Telephony/digtel94.announce
ftp://ftp.eff.org/pub/EFF/Policy/Digital_Telephony/digtel93_freeh.speech

gopher: substitute "gopher://gopher.eff.org/00/" for "ftp://ftp.eff.org/pub/"
WWW: substitute "http://www.eff.org/" for "ftp://ftp.eff.org/"


The directory also contains older Digital Telephony materials from earlier
incarnations of the FBI's wiretapping scheme; see digtel92* and digtel93*

********************************
Press inquiries, contact:

Jerry Berman, Executive Director <jberman@eff.org>
Daniel Weitzner, Senior Staff Counsel <djw@eff.org>

+1 202-347-5400 <voice>
+1 202-393-5509 <fax>

Basic EFF info: info@eff.org
General queries: ask@eff.org
Membership info: membership@eff.org