Subject: Letter of DPSWG's Berman and Plesser to FBI Dir. Freeh
---------------------------------------------------------------

March 11, 1994

By Hand Delivery
Mr. Louis Freeh
Director
Federal Bureau of Investigation
Washington, D.C.
Dear Director Freeh:

This letter is a follow-up to our letter of March 9, 1994 to President 
Clinton and Vice President Gore (a copy is attached).  While we do not 
believe that new legislation is needed to accomplish the FBI's goals, we 
take this opportunity to more specifically raise some of the questions that 
should be answered in pursuing any digital telephony legislation.  The 
draft that the White House has given us for comment is overly broad, and 
it is our hope that this letter will assist in narrowing the scope of any 
legislation.
While we have additional, important questions and concerns, this letter
sets forth our primary concerns.

(1) Should digital telephony legislation reach "call setup information" 
    independently of a "Title III" search warrant?

The New York Times of February 28, 1994 quotes you as stating, "My real
objective is to get access to the content of telephone calls."  The bill 
should therefore be limited to content of communications and incidental 
call setup or transactional data.

Legislation should apply to "call setup information" only when that 
information is incident to a warrant issued for wire, oral, or electronic 
communications as set forth in 18 U.S.C. Û 2518.  Extending the legislation's 
scope beyond the acquisition of content (pursuant to a warrant under 
section 2518) to the independent acquisition of call setup information 
raises many issues that require examination.  For example, currently the 
legal standard for obtaining transactional data is a certification (via 
subpoena or statement to a judge) that the sought-after data is relevant to 
an ongoing criminal investigation.  In the era of personal communications 
services ("PCS") and of the information highway, transactional data will 
reveal far more about individuals than it has in the past.  In fact, in some 
cases it may be equivalent to content information.  This transactional data 
certainly could make it possible to build a detailed model of an individual's 
behavior and movements.  The net result could be government dictating to 
industry that it create a surveillance-based system that will allow federal, 
state, and local government to use a service provider's electronic 
communication facilities to conduct minute-by-minute surveillance of 
individuals.

As long as they have an IRS or other administrative subpoena or a law
enforcement agent willing to certify that the sought-after data is 
relevant to an ongoing criminal investigation, law enforcement officials 
could demand that they be notified at some remote location every time 
certain individuals communicate by telephone, and their location at the 
time, as well as every database they connect to and when they log on and 
off.  In short, law enforcement officials could insist on instantaneously 
knowing the existence of every single electronic communication (but not 
its content).

The enormous potential for abuse and threat to personal privacy suggests
that, if transactional data were to be covered by digital telephony 
legislation, it should be incidental to a "Title III" wiretap warrant.  This 
would not limit in any way law enforcement's access to trap and trace, pen 
register, or call billing information under current law or practice.  This is 
particularly true given that there has been no case made that 
demonstrates any current or potential difficulty in getting this non-content 
information under current practices.  The technology in fact has made 
these type of services much easier for law enforcement to use and access.  
Additional legislation is simply not necessary to obtain this data.

(2) What is covered?

The obligation to isolate the content of communications must be reasonably
related to the service provider's telecommunications services.  It would
be unreasonable for the FBI to demand any person involved with the
communication to furnish it with access to that communication.  For 
example, most providers, including local telephone companies, usually 
need to isolate communications for purposes of billing and maintenance.  It 
is appropriate for the FBI to seek their assistance in intercepting 
communications on their networks only when the requests are reasonably 
related to the telecommunications services they provide.

Therefore, the question is not necessarily who is covered, but what 
telecommunications services are covered.  For example, the legislation 
should reflect the fact that, in reselling services, even local telephone 
companies sometimes are unable in those instances to furnish call setup 
information regardless of whether it is incident to the acquisition of a 
communication's content.

(3) What will be the requirements placed upon service providers and what
    will be the standard of compliance that will be applied?

Legislation should carefully define the obligations of service providers. 
This is not the case with the FBI's current draft of proposed legislation.
 These obligations are vague and subject to considerable interpretation. 
Service providers and manufactures must have flexibility to adopt
procedures that reasonably comply with the specific functional performance
requirements of law enforcement.  

This is particularly true where, as here, compliance requires an 
assessment of future needs and interoperability requirements.  There
is a  difference between compliance and a guarantee, and legislation must 
reflect that difference.  Carriers should be required to provide reasonable 
cooperation and that cooperation should be measured by a standard of 
reasonable compliance.

In installing new software or equipment under this statute, a service 
provider must be able to reasonably assess future demands by law 
enforcement.  Other industries subject to regulation at least know, for 
example, the temperature at which they must maintain the specimens, the 
emission standard they must satisfy, or the type of safety restraint 
equipment they must install and the date by which they must have it 
installed in vehicles.  Service providers cannot be held to an absolute 
standard of compliance where they are using and delivering new 
technologies to the public and the demands of law enforcement are not 
clearly specified.  This applies to both capability and capacity.  Law 
enforcement must be specific in its requirements for capacity and 
capability from each service provider.

(4) What is expected of commercial mobile service providers?

It is not a foregone conclusion that mobility in a digitized 
telecommunications environment will degrade or otherwise impede the 
law enforcement community's ability to effectively execute court-
approved wiretap orders.

Wireless carriers are committed to assisting law enforcement agencies to
successfully wiretap and intercept voice communications.  To accomplish
this goal, the wireless industry understands that available excess port
capacity is needed in all switches throughout the nation.  While it may be
reasonable for federal and state law enforcement agencies to acquire the
contents of wireless communications pursuant to "Title III"  warrants
through additional port capacity, it would be prohibitively expensive to
require that every one of the nation's switches be connected to the FBI to
enable it to acquire such information on a "real time" basis at remote
locations.  

Connecting every one of the nation's switches to the FBI, moreover, 
would increase exponentially the risk of unauthorized access to wireless 
communications.  Further, the proliferation of fraudulent use of wireless 
telephones through such techniques as "cloning" and "tumbling" ESNs 
(electronic serial numbers) poses additional questions with respect to 
privacy and the ability of law enforcement to properly execute court-
approved wiretap orders.

(5) What are the responsibilities of manufacturers and suppliers, if any?

The FBI wishes manufacturers of telecommunications equipment and providers
of support services to fall within the scope of the legislation. But,
would service providers be held liable for software or hardware that 
is not available from vendors?  Why?  How would the obligations be 
enforced against foreign manufacturers?  What would be the liability of a 
domestic carrier that relies upon foreign manufacturers?  What are the 
trade implications of having domestic manufacturers export equipment 
designed for governmental surveillance?

(6) How, and during what period, are costs to be recovered to ensure that
    there is a direct relationship between the costs reasonably incurred 
    by covered entities and the government's requirements?

Government should pay for what it needs, which will help focus attention
upon the facilities that truly need upgrading.  If the government does not
pay for upgrades or facilities, then the service providers should not be
held responsible.  The FBI appears to have accepted the concept that
government should pay for the costs of compliance but has so far 
underestimated these costs and proposed an arbitrary three-year limit on 
cost reimbursement.  Government compensation should be ongoing with 
industry's compliance.

* * *

We trust you find our comments helpful.  We remain prepared to work with
you, Congress, and others to attempt to resolve the legitimate concerns of
law enforcement.

						Sincerely yours,

					        [signed]
						Jerry Berman
						(202) 347-5400

					        [signed]
						Ronald Plesser
						(202) 861-3969
Enclosure
cc:	John Podesta, Office of the President
	Michael Nelson, Office of Science & Technology Policy
	Senator Joseph Biden
	Senator Ernest Hollings
	Senator Patrick Leahy
	Representative Jack Brooks
	Representative John Dingell
	Representative Don Edwards
	Representative Edward Markey