1996-01-18
Craig A. Johnson
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** ** ** *** POLICY POST
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** ** ** *** January 17, 1996
** ** ** *** Number 35
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A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST Number 35 January 17, 1996
CONTENTS: (1) FBI Surveillance Capacity Request Fails to Meet Public
Accountability Requirements of Digital Telephony Bill (CALEA)
(2) Subscription Information
(3) About CDT, Contacting Us
This document may be re-distributed freely provided it remains in its
entirety. Excerpts may be re-posted by permission (•••@••.•••)
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(1) FBI Surveillance Capacity Request Fails to Meet Public Accountability
Requirements of Digital Telephony Bill
The Center for Democracy and Technology (CDT) and the Center for National
Security Studies (CNSS), in comments filed Tuesday (1/16), argued that the
implementation of the Communications Assistance for Law Enforcement Act
(CALEA, a.k.a the 'Digital Telephony legislation") cannot proceed because
the FBI has not justified its proposal for surveillance capacity, as
required by law.
CALEA, enacted in October of 1994, granted the FBI an unprecedented new
role in the design of telecommunications networks to accommodate electronic
surveillance. In order to protect against abuse, and to ensure that privacy
and security are not compromised, Congress balanced the FBI's new authority
with a detailed public process to ensure oversight and accountability.
Thus, CALEA also created an unprecedented opportunity for those concerned
about privacy to have their say over law enforcement's surveillance
ability.
CDT and CNSS argued that no funds should be appropriated by Congress or
spent to fund the implementation of the Digital Telephony law until the FBI
meets these public accountability requirements.
PUBLIC OVERSIGHT AND ACCOUNTABILITY -- FUNDAMENTAL ELEMENTS OF CALEA
The public accountability provisions of CALEA, which created a detailed
public process for determining law enforcement surveillance capacity
requirements, require the Bureau to disclose the factual basis for its
recent capacity request. Without such data, it is impossible for the public
and other interested parties to determine whether the proposed surveillance
capacity is reasonable.
As Senator Patrick Leahy (D-VT), co-author of CALEA, emphasized during the
August 11, 1994 joint House/Senate Judiciary Committee hearing:
"To allay public concern over the breadth of wiretapping in
America, the entire [compliance] process remains subject to
public scrutiny, oversight, and accountability. This bill
accomplishes this by requiring any standards or technical
requirements that industry adopts to ensure wiretap capability
be publicly available." (House/Senate Judiciary Committee Hearing
on CALEA, August 11, 1994, S. HRG. 103-1022, page 111)
As a result, CALEA contains several mechanisms to bring law enforcement's
surveillance ability under public scrutiny, including the creation of a
public process for determining law enforcement's surveillance requirements
and a requirement that government reimburse telecommunications carriers for
all modifications required to meet the requirements.
These provisions were intended to allow privacy advocates and other
concerned individuals to have a substantive voice in the compliance
process. The public accountability provisions of CALEA are essential to
ensuring that law enforcement and does not take actions that expand
surveillance authority or jeopardize the privacy and security of
telecommunications networks. The comments filed by CDT, CNSS, EPIC, and
industry associations such as the United States Telephone Association
(USTA) and the Cellular Telecommunications Industry Association (CTIA), and
other interested parties, are the strongest example yet of the public
accountability mechanisms in action.
CDT & CNSS ARGUE FBI NOTICE FAILS TO COMPLY WITH PUBLIC ACCOUNTABILITY
PROVISIONS OF CALEA
In joint comments filed January 16, CDT and CNSS told the FBI that its
October 16, 1995 proposal does not contain critical information necessary
for interested parties to assess the reasonableness of the FBI's request.
Among other things:
* The notice does not disclose the historical baseline data that the FBI
itself used to determine the proposed surveillance capacity
requirements. Without this information, it is impossible for the
public to determine whether the proposed surveillance levels are
reasonable.
* Has not disclosed certain details that CALEA itself requires to be
published, including the actual number of expected future
surveillances and the geographic locations where such capacity will be
necessary;
* Has not clearly defined "engineered capacity", a key term. The scope
of surveillance capacity available to the FBI varies greatly depending
on the definition of this term;
Until the FBI meets these public accountability requirements, no funds
should be appropriated by Congress or spent to fund the implementation of
the Digital Telephony law
CDT stands ready to intervene as necessary before Congress, the Federal
Communications Commission, the telecommunications industry standards bodies
charged with setting technical standards for implementing the requirements,
and at other points necessary to ensure that privacy is protected and the
public accountability provisions are strictly enforced. We will continue
to update you on developments on this issue as they occur.
FOR ADDITIONAL INFORMATION ON THE DIGITAL TELEPHONY ISSUE:
For the full text of CDT and CNSS joint comments, a detailed analysis of
the public accountability mechanisms of CALEA, the text of the statute, and
other background information, visit CDT's Digital Telephony Issues Page:
URL:http://www.cdt.org/digtel.html
FOR MORE INFORMATION CONTACT:
Daniel J. Weitzner, <•••@••.•••>
Deputy Director
Center for Democracy and Technology +1.202.637.9800
James X. Dempsey
Deputy Director
Center for National Security Studies +1.202.994.7060
The Center for National Security Studies is is a Washington DC based civil
liberties organization that has worked for over 20 years on issues at the
intersection of national security and constitional rights.
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(2) SUBSCRIPTION INFORMATION
CDT Policy Posts, which is what you have just finished reading, are the
regular news publication of the Center For Democracy and Technology. CDT
Policy Posts are designed to keep you informed on developments in public
policy issues affecting civil liberties online.
In order to subscribe to CDT's Policy Post list, send mail to
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(3) 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 constitutional civil liberties
and democratic values in new computer and communications technologies.
Contacting us:
General information: •••@••.•••
World Wide Web: URL:http://www.cdt.org/
FTP URL:ftp://ftp.cdt.org/pub/cdt/
Snail Mail: The Center for Democracy and Technology
1001 G Street NW * Suite 500 East * Washington, DC 20001
(v) +1.202.637.9800 * (f) +1.202.637.0968
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End Policy Post No. 35 1/17/96
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