12 August 1997
The New York Times, August 11, 1997, p. D2.
By John Markoff
Privacy advocates plan to challenge the F.B.I.'s proposal for high-technology wiretapping today, contending that the agency is seeking powers never intended by Congress when it enacted a 1994 law to bring wiretapping into the digital age.
The criticism is sure to add to the disagreements surrounding the Government's effort to define standards for digital voice and data networks in a way that would permit police and F.B.I. agents to continue to eavesdrop on suspected criminals.
In addition to privacy groups, phone companies have challenged the law, contending that the Government is forcing them to open their new generation of communications networks in a way that exceeds legal and constitutional limits.
The Communications for Law Enforcement Act of 1994 calls for spending at least $500 million to modify the nation's phone network to allow continued wiretapping by law enforcement groups and specifies a standard-setting process to redesign the equipment.
The law was passed after Federal Bureau of Investigation officials contended that new communication technologies were outstripping their ability to identify and monitor suspected criminals who were using cellular and other communication gear to avoid surveillance.
But two privacy groups--the Center for Democracy and Technology and the Electronic Frontier Foundation--plan to petition the Federal Communications Commission today, challenging the proposed standard. They argue that it might force communications companies using next-generation networks to, in effect, turn over the full content of client communications when the Government is authorized to intercept only the addressing or signaling data.
United States law requires that law enforcement officials who wish to eavesdrop on the phone calls of suspected criminals gain a warrant approved by a judge for each individual who is wiretapped.
In contrast, law enforcement agencies can record dialing or signaling information under a "pen register" order, which is issued without probable cause and without judicial review. From 1990 to 1994, the annual number of wiretaps ranged from 566 to 1,154, while the number of pen register intercepts was far higher, according to an F.B.I. report to Congress.
But the privacy groups argue that after the adoption of next-generation voice and data networks it will be impossible to separate signalling or routing information from the actual content of communications, meaning that law enforcement agencies could end up, in effect, wiretapping when they are authorized only to get addressing or signaling data.
The privacy groups' concerns center on an important difference in the way that these new types of networks will operate. The nation's telephone networks are now based on a "circuit-switched" design in which voice communications travel on a separate channel from the calling-number information. That makes it simple to segregate information given to law enforcement officials.
But the Internet sends all data as a stream of digital information, in which routing and message content are bundled together in a series of "packets." All major phone companies are now designing next-generation networks that will transmit voice, video and data communications using Internet standards, or "packet switching," rather than circuit switching. Many telecommunications experts believe that in the future virtually all voice and data communications will be carried by packet switching networks.
"In the proposed standard, industry and F.B.I. have tacitly agreed not to try to insure that law enforcement agencies get only the information appropriate to the level of authorization in hand," the groups assert in comments to be filed with the F.C.C.
Last month, representatives of the cellular phone industry asked the F.C.C. to arbitrate a dispute between industry and law enforcement officials about the design of network systems. The move followed a series of sometimes bitter meetings between industry and law enforcement representatives about how much information must be made available to law enforcement agencies and how quickly the redesigned switching systems must provide it.
F.B.I. officials have said they are willing to work with industry to compromise on the design of the technology necessary to permit them to continue to wiretap in the digital age.
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