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NIGHTLINE: FBI, PRIVACY, AND PROPOSED WIRE-TAPPING LEGISLATION
(Friday, May 22, 1992)
Main Participants:
Ted Koppel (TK - Moderator)
Marc Rotenberg (MR - Computer Professionals for Social Responsibility)
William Sessions (WS - Director, FBI)
TK: In these days of encroaching technology, when every transaction,
from the purchase of a tie to the withdrawal of twenty dollars from a
cash machine, is a matter of record, it may be surprising to learn
that technology has given us some added privacy. To find this new
boon, look at your telephone. It used to be fair game for wiretapping.
Done legally, that requires a court order. But that was the hard part.
For the price of a few pieces of wires and clips, human voices were
there for the eavesdropping. That's changing now. The advent of phiber
optics, of digital communication and encryption devices all mean that
what we say, what we transmit over the telephone lines, can't easily
be spied upon. Even if you could single out the one phone call among
thousands passing in a phiber optic cable, what you would hear would
be a hiss. Voices being transmitted in computer code. That's good
news for businesses, who fear industrial spies, and it's welcomed by
telephone users anywhere, who want to think that what they say into a
receiver is protected. But, it's bad news for those whose business it
is sometimes to eavesdrop. That includes law enforcement. As Dave
Marek reports, it's getting tougher to reach out and wiretap someone.
DM: The explosion of new communications technology, e-mail upstaging
airmail, fax machines pushing prose into offices, homes, and even
automobiles, celluar phones that keep us in touch from anywhere to
everywhere, has created a confusing competition of services and
counter-services.
(Unseen female voice answering telephone): Who is this please.
(Heavy breathing unseen male caller): Why don't you guess?
DM: Take that new telephone service called "caller ID." Already most
phone companies now offer a counter-service which blocks caller ID.
This is bad news if you're fighting off creep callers. But it's good
news if you want to block some 900 number service from capturing your
number on their caller ID screen, and the selling it off to some
direct marketing outfit. But today's biggest communications
controversy is about interception services. Tapping telephones used to
be so simple.
(Film clips from commercial for adult 900 number and film clips of
wiretapping from film "Three Days of the Condor") with reporter's
voice-over.
A snooper needed only a couple of alligator clips and a set of
earphones to hear what was being said. Today's telephones digitalize
chatter into computer code. Bundle all those infinitesimal ones and
zeros into flashes of light and don't reconstruct them into sound
again until just before the call reaches your ear. This has made phone
tapping much tougher. But still, according to Bell Atlantic executive
Ken Pitt (??): There's never yet been an FBI surveillance request a
phone company couldn't handle.
KP: We have been able to satisfy every single request that they've
made, not only here at Bell Atlantic, but all across the country.
DM: Still, when the FBI looks into the future, it sees trouble. It
sees criminals like John Gotti becoming able to shield their
incriminating conversations from surveillance and thereby becoming
able to defeat law enforcements best evidence.
Clifford Fishman:: When you're going after organized crime, and the
Gotti case is a perfect example, the traditional techniques, visual
surveillance, the paper trail, trying to turn the people who are on
the inside, trying to infiltrate someone into the, uh, organization,
they all have built-in difficulties. Witnesses can be killed, they can
be bribed, they can be threatened. Ah, the most effective evidence
quite often that a prosecutor can have, the only evidence that can't
be discredited, that can't be frightened off, are tape recordings of
the suspects talking to each other, discussing their crimes together,
planning their crimes together, committing their crimes together.
DM: As FBI Director William Sessions told a Congressional Hearing late
last month:
WS: The technology must allow us access, and it must allow us to stay
even with what we now have. Else, we are denied the ability to carry
out the responsibility which the Congress of the United States has
given us.
KP: One of the solutions they've asked for is the simple software
solution.
DM: This would involve not tapping into individual phone lines, but
planting decoding software into:
KP: ....The central offices where the telephone switching's done,
where the wires are connected to ((bad audio cut)) ...the computers,
and someone, the FBI is saying, "Let's do the switching, let's do the
wiretaps with the software."
DM: This software solution is already in use. But communications
expert Marc Rotenberg says it could lead to future abuses of privacy
by creating a surveillance capability:
Marc Rotenburg: ...which would allow the agent from a remote keyboard,
not in the phone system, not at the target's location, to punch in a
phone number and begin recording the contents of the communication.
That also's never been done in this country before. It's not too
different from what the STAZI (??) attempted to do in East Germany.
But the ((one word garbled)) for abuse there would be very hard.
DM: Protecting the privacy of ordinary conversation isn't the only
issue at stake here.
Janlori Goldman (ACLU): The privacy rights of ordinary citizens will
be put at risk if the FBI's proposal goes forward. Right now, all
kinds of very sensitive information is flowing through the
telecommunications network. A lot of routine banking transactions,
people are sending information over computer lines. ((One word
garbled)) will be communicating more over the network. And what is
happening is that as the private sector is trying to make systems less
vulnerable, to make them more secure, to develop encryption so that
these people don't have to worry about sending information through, if
the FBI's proposal goes forward, those systems will be at great risk.
DM: Encryption, or putting communications into unbreakable code,
frightens the FBI and the super-secret National Security Agency, which
monitors communications of all kinds all around the globe. Like the
FBI, the NSA wants total access. And to assure it, the NSA wants to
limit all American companies to a communications' code system it can
break. Some people call that "turning back the clock."
JG: What we're seeing is an FBI effort to require US industries to
basically reverse progress, and there's no way that international
companies will be following the U.S. trends in this area. If anything,
they will surpass us, they will go beyond us, and we will be out of
competiveness in the information market.
DM: The competition to control and surveil communications spreads
across all the boarders on the planet and squeezes inside the flickers
that activate a computer's brain. But what makes both the big picture
and the little one so hard to focus is that the rules of the
surveillance game are always changing. Every time, a new
technological explosion makes new ways of snooping possible. I'm Dave
Marek for Nightline in Washington.
TK: When we come back, we'll be joined by the Director of the FBI,
William Sessions, and by an expert in privacy law, Marc Rotenburg.
((COMMERCIAL))
TK: As Director of the FBI, William Sessions is the point man in the
lobbying effort to adjust new technologies so that his agency can
continue to use telephone wiretaps. Judge Sessions joins us in our
Washington studios. Also joining us in Washington is Marc Rotenburg,
the Director of the Washington Office of Computer Professionals for
Social Responsibility. Mr. Rotenburg, who teaches privacy law at
Georgetown University, says that the FBI proposal would invite use of
wiretaps.
Judge Sessions, I'd like to begin on a more fundamental point. As you
understand better than most, the very underpinning of our system of
jurisprudence is that it's better to let a hundred guilty men go free
than to wrongfully convict one innocent man, so why should the privacy
of millions of innocents be in anyway jeopardized by your need to have
access to our telephone system?
WS: Ted, I think that that question has been fundamentally answered by
the Congress back in 1968 with the Organized Crime Control and Safe
Streets Act, when it decided that it's absolutely essential for law
enforcement to have court ordered and court authorized access to ((two
words garbled)) privacy information normally private conversations, if
they involve criminal conduct. And the point is that unless you have
that access to criminal conversations, you cannot deal with it in a
law enforcement technique or a law enforcement method. Therefore,
it's essential that you have the ability to tap into those
conversations. So, privacy of that kind is not an issue. Criminality
is.
TK: Although, what is currently the case, is that you would be
required on a case-by-case basis, to get a judge to give you
permission to do that.
WS: That is absolutely correct. The United States District Judge, who
is the person authorized to actually give that consent, must be
convinced that it is absolutely necessary, and that the technique will
be properly used under the law.
TK: If you have, therefore, the centralized capacity to do that, let's
say from FBI headquarters, doesn't that invite abuse?
WS: There has been no suggestion that that would ever be contemplated
under any system. There are necessities of tapping phones that, in
connection with various criminal cases around the country, have many
different jurisdictions, from the east to the west. The point is that
a court would authorize the FBI, or other law enforcement agencies, to
have that access.
TK: All right. Mr. Rotenburg, what then is the problem? What then is
different from the modality that the FBI uses these days?
MR: Well, Mr. Koppel, I think the critical point, that the 1968 law
which Judge Sessions referred to, set down very strict procedures for
the conduct of wire surveillance. And the methods that come from
reading that history, the Congress was very much concerned about this
type of investigative method. They described it as an investigative
method of last resort. And it's for that reason that the wire
surveillance statute creates so many requirements. Now, the FBI has
put forward a proposal that would permit them to engage in a type of
remote surveillance, in other words, to permit an agent, with a
warrant, to presumably type in the telephone number to begin to record
a telephone conversation. That capability has not previously existed
in the United States, and I think that's the reason the proposal is so
troubling.
TK: But, if this happens, still, under control of the judge, the
technical means of doing it may be somewhat changing, but as long as
the legality has not been changed, and the means by which the FBI gets
permission to do this kind of thing, why should that trouble us in
anyway?
MR: Well, the two are closely related. Communications privacy is very
much about network security. It's about sealed pipes, and showing
that information can move through the network and not be intercepted
unlawfully by anyone who shouldn't have access to it. When you talk
about designing the network to facilitate wire surveillance, in a
sense to replace walls with doors that can be opened, you create new
opportunities for abuse, and I see this as a problem.
TK: Judge Sessions, again, there is the argument that is made, and I
guess Mr. Rotenburg is one of the most eloquent proponents of this
argument, that the FBI doesn't want this particular breakthrough in
technology, that the FBI is taking a sort of Luddite philosophy here,
and saying if indeed communications can be so safeguarded against
intrusion, well that's just too darn bad.
WS: Well, of course, as you noted, it is absolutely essential, the
essential ingredient is that there be a court authorization to kick
out that particular conversation that is authorized to be overheard,
authorized to be intercepted. And, so, the spectre that Mr. Rotenburg
raises does not exist in any shape or form in what we're proposing.
All we are proposing is that with the digital telephony capability,
that we be able to maintain the same capability that we've always had
under the Organized Crime Control and Safe Streets Act. That is, to
have access to that particular digital bit, or that particular
conversation, always under a court authorization with (two words
garbled). And as Mr. Rotenburg noted, very, very meticulously and
carefully followed by the courts with an insistence upon total
compliance with the law. That's all we seek. That is, to stay even and
to be able to have that necessary access under the law.
TK: Has the FBI, in the past, Mr. Rotenburg, ever requested any kind
of technological assistance? I mean, they've always had to go to the
telephone company anyway, and say, "Help us get in."
MR: Well, yes. And that's appropriate to an extent. The FBI, when
they're in possession of a lawful warrant, I think, can expect
assistance in execution of the warrant. The difference in the FBI
proposal that's now before the Congress is that the communications
service providers are going to need to design their systems with wire
surveillance in mind. And that's not been previously done. The
Congress of 1968 that Judge Sessions referred to purposely created an
"arms-length" relationship between the Bureau and the telephone
companies, and I don't think they wanted a situation to develop where
this system was being designed to facilitate wiretapping.
TK: All right. We have to take a break, gentlemen, but when we come
back, let's discuss where it is in Congress right now, and where it is
likely to go next. We'll continue our discussion in a moment.
((COMMERCIAL))
TK: And we're back once again with Marc Rotenburg and FBI Director
William Sessions. Judge Sessions, what is it you're asking Congress?
WS: What we want to be able to do is to maintain our capabilities to
actually access the digital bitstream that is in the digital telephony
capability. We're asking the Congress to give us a mechanism whereby
we can actually do that. I believe it will now be proposed that rather
than being through the Federal Communications System, it will be
actually through the Department of Justice, that it will, in fact,
allow that oversight to ensure that those companies that do in fact,
under that guidance, prepare us the capability, or give us the
capability, to access that digital stream in the digital telephonic
process.
TK: Which you could access independently, without turning to the
telephone company.
WS: We would be able to do it under a court order, and always under a
court order.....
TK: ...I understand that. I'm just talking about, technologically
speaking, you would have the capacity to access it on your own without
assistance from the telephone company.
WS: I would think that that would not be so, Mr. Koppel, because what
will happen is that it would be, normally the court would order the
telephone company to provide the access.
TK: Again, Mr. Rotenburg, I don't quite understand what the difference
is. If the telephone company has the capacity to do that, then even
though...under the current law, presumably, the FBI would be able to
go to the telephone company if it has the right court order in hand
and say, "Give us access."
MR: The difference, Mr. Koppel, is that currently agents either go to
the site where the target is and conduct a physical wiretap or they go
to the central exchange office of the telephone company and conduct a
tap there. There are other ways to do it as well, but for the most
part it involves physical access to the networks. The new proposal
speaks specifically about designing a remote surveillance or
monitoring capability. Now, that's a change.
WS: That's because of the nature of the technology. The technology now
allows us simply to do exactly what he says....
MR: ....But that's not maintaining the status quo. That is a new
capability that you would get if the proposal goes forward.
TK: Why should I, as an individual consumer of telephone, fax,
whatever the technology may be, why should I be concerned about that,
Mr. Rotenburg?
MR: As I've said before, I think that this is the type of proposal
that's likely to invite abuse. It makes the network less secure. And
the other aspect of the proposal, which has also raised concerns, is
that it give the Department of Justice new authority to set standards
for communications of all kinds in this country.
TK: May I turn it around for a moment? If I may, I think that what
you're suggesting is not that it makes it less secure, but that the
new technology makes it more secure than it has been in the past, and
the FBI wants to stay even. Would you argue with that?
MR: It may make it more secure in the future. It's not clear what the
outcome will be, frankly, if you go forward with these changes that
the Bureau has proposed.
WS: What I think you must remember is that when you're talking about
illegal access, you're talking about illegal conduct. That is, conduct
for which a crime can be charged. Therefore, if you had illegal
conduct anywhere, now or then, illegal use of the system, improper use
of the system, that is the basis of a criminal charge.
TK: The easier the access, the easier the abuse, and the more
difficult it is to approve that abuse. Would you agree with that,
Director?
WS: Well, the easier the access, it is still a matter of having access
under the law, under court-authorized permission, and that access,
whether it's on digital, or whether it's on, presently, analogue, that
access is what we seek to maintain.
TK: I guess what I'm saying, Judge Sessions, is that there have been
enough instances of abuse over the past 25 or 30 years that people
become concerned about making it too easy for their law enforcement
operatives.
WS: One of the things you see, Mr. Koppel, is when there is abuse or
failure to follow the techniques, it plays out in the courtroom. You
see it in the courtroom with the testimony that goes on that stand,
under oath, that describes a failure, if there is a failure, to carry
out the procedures under Title Three. So it's all in the court
processes. It is not hidden. And if there is an abuse, either the
wiretap evidence would not be allowed, or it would be weakened to that
extent, or, criminal charges would be brought if there's actually
illegal conduct.
TK: Unless, of course, the wiretap evidence is used to acquire other
evidence, and the defense attorneys are not aware of the fact that the
wiretap evidence was used in the first place.
WS: Well, there's always the "Fruit of the Poisonous Tree" philosophy.
That is, if you've illegally acquired at some point, done something
illegal, it may thereafter change that, it's not acceptable....
TK: ...I understand the philosophy Judge. What I'm saying is that if
you don't know that that has happened, if you don't know that the
other information has been acquired through the wiretap, and if the
wiretap is too easily controlled by the FBI, with or without, I mean,
if you have the physical capability of doing it, do you at least
concede the potential for abuse is greater than it would have been
before?
WS: No, I really don't concede that at all, because now, if you have
endless numbers of ways that you could actually tap into the analogue,
it will be a much more secure system that you actually have, because
it will require special ways again. A special computer program that
will allow you to do that, that is designed to let you in, that is
court-authorized, court-approved, and specifically for that line,
specifically for that conversation, specifically for that purpose
and no other.
TK: All right. Closing argument again, Mr. Rotenburg.
MR: Well, it is simply the replacement of fixed walls with doors that
can be opened, and while it may be the case that some agents operating
operating with warrants will use that facility as it should be used,
it's clear the opportunities for abuse will increase. And I think all
these new problems for the Bureau as well.
TK: New problems in the sense that, when Judge Sessions says you can't
bring it to court if it hasn't been done through proper procedures,
he's quite right obviously.
MR: But it may not be the Bureau that we would be concerned about. It
may be people acting outside of any type of authority. For the last
several years, we've seen that the telephone network is increasingly
vulnerable, and this vulnerability plays out as new weaknesses are
introduced.
WS: Well, I'd have to interject that with the new systems, with the
new technology, it would be far more secure and far less likely that
could happen, and if it does happen, again, the recourse is the
criminal charge for the improper criminal conduct in accessing that
information.
TK: Judge Sessions. Mr. Rotenburg. Thank you both very much for being
with us.
WS: Thank you Mr. Koppel.
MR: Thank you, Mr. Koppel.
** END **