Date: Mon, 9 Mar 92 19:58:41 CST From: Jim Thomas Subject: File 5--F.B.I.' Proposed Digital Communications Legislation Increasingly sophisticated technology available to the average citizen undeniably makes it more difficult for law enforcement to pursue legitimate investigations. When technology expands faster than society's capacity to examine the social, ethical, or legal implications of the changes, two potential problems emgerge: Laws that correspond to technological advances do not change, leaving law enforcement either handicapped or forced to implement illicit means in investigations, or laws change in ways that potentially intrude on civil liberties by reducing Constitutional protections. The trick is to find a happy medium. The legislation proposed by the U.S. Government reflects an attempt to bring current Federal legislation in line with technology. In principle, this is wise. In practice, questions arise that should be addressed in order to assure that the proposed legislation allows law enforcement to pursue its legitimate ends while simultaneously protecting the interests of citizens. The proposed legislation has not yet been submitted to Congress, and our understanding is that there is as yet no draft of the proposed changes. CPSR, EFF, the ACLU, and other groups appear to be actively involved in assuring that the language and implications of the final document will be carefully examined prior to submission. As we understand the proposed legislation, it would make it easier for investigators to conduct *legal* surveillance of digital, broad-band, communications by implementing technology that targets a specific user rather than an entire stream of users. To do this, telecommunications systems would require modification that would be implemented by the phone companies and would include changes in user devices. Among the questions the proposed legislation raises are: 1. Who would bear the costs of the modifications? Should costs be passed on to end telecommunications users? 2. How would the modifications change the requirements for obtaining warrants? 3. What potential abuses might arise from the modifications? 4. What unanticipated advantages or social benefits might emerge? 5. How might the concept of "good faith" be interpreted when non-targeted information is obtained? 6. How would the proposed legislation dovetail into recent U.S. Supreme Court decisions that expand the search powers of law enforcement? 7. What concepts or definitions of "telecommunications" and other terms would be established? How far would the scope of the legislation extend? Would it include data lines if it were suspected that the target were transferring an unlicensed version of Word Perfect? Among the "evidence" used to justify the seizure of Steve Jackson Games, the Secret Service claimed that the simple description of Kermit as a 7-bit protocol used to transfer data between mainframes and PCs was evidence of a conspiracy. Would this allow monitoring of all Kermit up/downloads by Steve Jackson employees? There are many other questions to be addressed, but the ultimate one remains: What is the best language that would protect both law enforcements' ability to carry out its function while preserving Constitutional rights? The recent history of some law enforcement officials, particularly in the Secret Service and a few local jurisdictions, indicates that the question is more than a philosophical debate. The consequences of ill-considered language for all involved require careful consideration of balance. The following is the press release proposing the legislation: +++++ U.S. Department of Justice Federal Bureau of Investigation Office of the Director Washington, D.C. 20535 March 6, 1992 STATEMENT BY FBI DIRECTOR WILLIAM S. SESSIONS CONCERNING PROPOSED DIGITAL COMMUNICATIONS LEGISLATION Law enforcement's continued ability to conduct court-authorized electronic surveillances is one of the most critical issues facing law enforcement today. However, recent telecommunications systems improvements have outpaced the government's ability to technologically continue this highly successful, and lawful technique. Consequently, the U.S. Government has proposed legislation requiring the telecommunications industry to ensure that its advanced digital telephone systems accommodate the legitimate needs of federal, state, and local law enforcement. Specifically, this legislation seeks to preserve the status quo of an extraordinarily efficient and effective technique utilized by law enforcement to conduct court-authorized electronic surveillances, as authorized by Congress in Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The approach suggested in the legislation represents by far the least costly alternative and is the only certain method of addressing the issue. Without an ultimate solution, terrorists, violent criminals, kidnappers, drug cartels, and other criminal organizations will be able to carry out their illegal activities using the telecommunications system without detection. This proposal is critical to the safety of the American people and to the law enforcement officers who must daily enforce the laws of this country. The Legislative proposal is not solely a law enforcement proposal but is a result of a cooperative effort by Administration and Congressional leaders, telecommunications industry executives and law enforcement. =+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+ + END THIS FILE + +=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+===+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=