EFFector Online Volume org Publicati

Found at: gopher.meulie.net:70/EFFector/effector7.05

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EFFector Online Volume 07 No. 05      Mar. 11, 1994       editors@eff.org
A Publication of the Electronic Frontier Foundation        ISSN 1062-9424

DPSWG Coalition's Digital Telephony Letter to White House
Letter of DPSWG to FBI Dir. Freeh on Wiretap Bill's Privacy Threat
EFF Files Email "Interception" Brief in Steve Jackson Games Appeal
Executive Director Position Opening Soon as EFF Expands
New EFF SysOp Membership Option
What YOU Can Do


The two letters below deserve your immediate attention, and further
Digital Telephony legislation, aimed at crippling all future communications
technology to enhance their ability to wiretap and gain the ability to
nsult to injury, tacked on to the end of the bill draft are some sections
that would hope to apply the privacy protections of the ECPA to certain
"Digital Telphony and Communications Privacy Improvement Act of 1994: A
legislative proposal to protect the American public from criminal activity
and ensure privacy in telecommunications".  Do not be fooled.  The FBI
network of staggering proportions.

The letters that follow show an unprecedented consensus of civil liberties
and industry organizations on the need to protect privacy, and on the
adverse consequences to security and privacy threatened by the Digital
Telephony bill.

"Only in a police state is the job of a policeman easy."
  -Orson Welles

"In a Time/CNN poll of 1,000 Americans conducted last week by Yankelovich
- Philip Elmer-Dewitt, "Who Should Keep the Keys", _TIME_, Mar. 14 1994


Subject: DPSWG Coalition's Digital Telephony Letter to White House

On March 9, the Digital Privacy and Security Working Group sent the following
letter to the Administration calling into question the procedures by which
the FBI's Digital Telephony "Wiretap Bill" draft is being examined, and
expressing harsh criticism of the would-be legislation.  The DPSWG is a
coalition of privacy and civil liberties organizations, trade
associations, and industry leaders, coordinated by the Electronic Frontier

March 9, 1994

The President William J. Clinton
The White House
Washington, D.C.  20500

The Vice President of the United States
United States Senate
Washington, D.C.  20510

Dear Mr. President and Mr. Vice President:

Telecommunications carriers and other members of the Digital Privacy and
Security Working Group are keenly aware of the concerns raised by the
Administration regarding the ability to intercept communications
transmitted over advanced commu nications networks.

We are concerned, however, about the nature of the process upon which the
Administration has embarked to address these issues.  Seeking immediate
ndustry reaction to the FBI's draft legislation and congressional passage
of such legislation shortly thereafter is troubling.  It suggests
curtailment of public debate and of congressional deliberation.  Given the
nterest of the public in these matters and their complexity, it is
essential that there be a full public debate on these issues.

future problems and to expand existing capacities.  This is not to say that
there have not been some transitional concerns particularly upon the
ntroduction of new technologies that have grown greatly in popularity.  But,
The FBI's actions are especially troubling in light of our view that
legislation is not needed to accomplish the agency's goals.  We still see
no evidence that current law enforcement efforts are being jeopardized by
new technologies.  Nor are we convinced that future law enforcement
activities will be jeopardized given industry cooperation.  
We still believe that continued cooperation by government and industry
Joint Government Industry Group will resolve "the digital telephony
the process of generating concrete, cost-effective solutions.  This process
an identification of possible new equipment and police tactics needed to
achieve law enforcement goals.  Nevertheless, we are prepared to work with
the Congress and the Administration to attempt to resolve the legitimate
concerns of law enforcement.  
The signatories to this letter cannot overemphasize how critical it is that
any new initiatives in this area preserve the public's confidence in the
a decade after enactment of the Electronic Communications Privacy Act of
Survey after survey performed by Professor Alan Westin and others have
communications.  We all must seek to maximize those interests and assure
the public that their communications are protected. 

Sincerely yours,

Apple Computer, Inc.                        
American Civil Liberties Union                         
Business Software Alliance                                
Cellular Telecommunications Industry Association
Computer Business Equipment & Manufacturers Assn
Digital Equipment Corporation                
Electronic Frontier Foundation                 
Electronic Messaging Association          
GTE Corporation                        
McCaw Cellular
MCI Communications Corporation
Software Publishers Association
Sun Microsystems Federal, Inc.
Trusted Information Systems
United States Telephone Association

        cc:     Louis Freeh, Director, Federal Bureau of Investigation
                John Podesta, Office of the President
                Michael Nelson, Office of the Vice President
                Senator Patrick Leahy
                Senator Ernest Hollings
                Representitive Don Edwards
                Representative Edward Markey


Subject: Letter of DPSWG to FBI Dir. Freeh on Wiretap Bill's Privacy Threat

On March 11, the Digital Privacy and Security Working Group sent the
letter below to FBI Dir. Louis Freeh as a followup to the March 9 letter to
the Administration, detailing the DPSWG's criticisms of the FBI's proposed
Digital Telephony bill, and raising serious privacy questions.  EFF and
the DPSWG feel that the Digital Telephony scheme, coupled with the
Administration's Clipper Chip plan, could turn the future National
enforcement is vastly outweighed by the massive threat to citizen privacy. 
The DPSWG is a coalition of privacy and civil liberties organizations, trade
associations, and industry leaders, coordinated by the Electronic Frontier

March 11, 1994

By Hand Delivery
Mr. Louis Freeh
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 
t is our hope that this letter will assist in narrowing the scope of any
While we have additional, important questions and concerns, this letter

(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 
call setup or transactional data.

Legislation should apply to "call setup information" only when that 
nformation is incident to a warrant issued for wire, oral, or electronic
communications as set forth in 18 U.S.C. ยค 2518.  Extending the legislation's 
legal standard for obtaining transactional data is a certification (via 
an ongoing criminal investigation.  In the era of personal communications 
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 
ndustry that it create a surveillance-based system that will allow federal,
communication facilities to conduct minute-by-minute surveillance of 

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 
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 
ts 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 
nformation 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
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 
s appropriate for the FBI to seek their assistance in intercepting
communications on their networks only when the requests are reasonably 

Therefore, the question is not necessarily who is covered, but what 
telecommunications services are covered.  For example, the legislation 
companies sometimes are unable in those instances to furnish call setup 
nformation 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

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

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 
nstalled in vehicles.  Service providers cannot be held to an absolute
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?

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
this goal, the wireless industry understands that available excess port
capacity is needed in all switches throughout the nation.  While it may be
contents of wireless communications pursuant to "Title III"  warrants
through additional port capacity, it would be prohibitively expensive to
enable it to acquire such information on a "real time" basis at remote

Connecting every one of the nation's switches to the FBI, moreover, 
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 
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,
s not available from vendors?  Why?  How would the obligations be
enforced against foreign manufacturers?  What would be the liability of a 
trade implications of having domestic manufacturers export equipment 

(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
underestimated these costs and proposed an arbitrary three-year limit on 
cost reimbursement.  Government compensation should be ongoing with 
ndustry'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,

						Jerry Berman
						(202) 347-5400

						Ronald Plesser
						(202) 861-3969
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


Subject: EFF Files Email "Interception" Brief in Steve Jackson Games Appeal

"information superhighway," Steve Jackson of Austin, Texas, and his
company, Steve Jackson Games Incorporated -- together with three users of
the company's electronic bulletin board system (BBS) -- are asking a
federal appeals court to rule on how federal wiretap laws apply to
electronic mail.

Circuit in New Orleans, the plaintiffs seek a ruling that a seizure of
electronic mail (e-mail) before the addressee receives it qualifies as an
"interception" under the Electronic Communications Privacy Act (ECPA).

The appeal follows a court victory last year for Steve Jackson Games, a
United States Secret Service Agents seized the company's BBS and three
computers containing the company's business records and all copies of an
upcoming publication.  On March 12, 1993, Judge Sam Sparks of the U.S.
District Court for the Western District of Texas found that Secret Service
agents involved with the raid had violated the Privacy Protection Act of
awarded $51,040 in damages under that claim.

the company's electronic bulletin board system was a violation of the

On a third, independent claim, however, the trial judge ruled against the
ts intended recipient is not "intercepted" under the ECPA.  Judge Sparks
at the same time it is occurring -- in other words, in real time as the
message is actually travelling over the wires.

meaning of the term "interception."  "As any defensive back knows," states
the plaintiffs' brief, "this is the classic definition of an
'interception,' and one comfortably within the statute's definition."

Three organizations interested in electronic communications, the Electronic
Frontier Foundation, The Society for Electronic Access and InterCon Systems
Corporation, filed a friends of the court brief to support Plaintiffs'
contents of an electronic mail message, the time the message actually
travels through the wire between computers is a technical detail of the

The Justice Department has 30 days to reply.


Subject: Executive Director Position Opening Soon as EFF Expands

For Immediate Release

The Board of Directors of the Electronic Frontier Foundation announced
today that has begun the search for a new Executive Director.  An increase
n EFF's activities with the rapid development of the national information
nfrastructure requires an addition to the management team.

The new Executive Director will work collaboratively with EFF's current
Executive Director, Jerry Berman.  Mr. Berman will continue as the
Foundation's Director of Policy in order to devote full time leadership to
EFF's critical and expanding public policy activities.

EFF identifies significant issues related to information and communication
technologies, and creates activities that seek to understand how they will
affect society, and change the way that people think, work and interact. 
Current EFF activities focus on public policy, civil liberties, and public

The new Executive Director will build organizational capacity by
mplementing management, fundraising and membership programs, and will
expand the scope of the Foundation's activities by developing diverse
-  information infrastructure;
-  the development and application of law;
-  evolution of new technology;
-  protection of civil liberties;
-  changes in social fabric and the meaning of community;
-  opportunities and effects on commerce/economics; and
-  international issues.

EFF was started in 1990 by Mitchell Kapor, founder of Lotus Development
Corporation, and John Perry Barlow, an author and lecturer interested in
active on the Board of Directors of the organization.  

For more information contact:

Electronic Frontier Foundation
Attn: Executive Director Search Committee


Subject: New EFF SysOp Membership Option

EFF is now offering a special members for BBS sysops.  For a *$10*
tax-deductible membership contribution, sysop members will receive a
access to our online bulletin board system.  In addition, sysop members will
EFF's most popular resources which can be posted for distribution, ASCII
and ANSI screens announcing your system's membership in EFF, and the
opportunity to be listed in a directory of boards supporting EFF and its
of $10 if in the course of their 1 year membership they recruit 10 new EFF

As soon as EFF's BBS (Outpost) is fully functional, sysop members will be
among the first invited to join our new FTN- and QWK-format network. 
s available.

SysOp membership may be open to operators/admins of other online services
as well, not just the prototypical BBS.

Any questions regarding EFF or the sysop membership can be directed to
EFF's Membership coordinator at membership@eff.org.  For general
nformation about EFF and it's mission, send mail to info@eff.org.


Subject: What YOU Can Do

"In order to keep up with the criminals and to protect our national
telephone companies and other carriers provide law enforcement with access
to this new technology."

  - FBI Dir. Louis Freeh, 12/8/93, on hampering new telecom technology
    to make it easily wiretappable. [Full text of this Dec. 1993 DC Press
    Club speech available for anonymous ftp as wiretap.speech from
    ftp.eff.org in Pub/EFF/Policy/Digital_Telephony/digtel93_freeh.speech]

That's right - it's the Digital Telephony proposal. Again. The FBI wants

You've been following the newspapers and reading EFFector Online. 
You know that today there are several battles being fought over the future
of personal privacy.  The Clipper Chip, export restrictions, the Digital
Telephony Proposal - the arguments are numerous and complex, but the

The Electronic Frontier Foundation believes that individuals should be
able to ensure the privacy of their personal communications through any
technological means they choose.  However, the government's current
Rep. Maria Cantwell has introduced a bill (H.R. 3627) in the House that
needs vocal support if the bill is to make it out of the committee stage.  

The decisions that are made today will affect our futures indefinitely.  
EFF is a respected voice for the rights of users of online technologies
and EFF members receive regular online updates on the issues that affect
our online communications and particpate in shaping the future.

Now, more than ever, EFF is working to make sure that you are the one that
makes these decisions for yourself.  Our members are making themselves heard
on the whole range of issues.  To date, EFF has collected over 4800 letters
of support for Rep. Cantwell's bill to liberalize restrictions on
cryptography.  We also have over 1400 letters supporting Sen. Leahy's 
open hearings on the proposed Clipper encryption scheme

Leahy hearings, you can send your letters to:

cantwell@eff.org, Subject: I support HR 3627
leahy@eff.org, Subject: I support hearings on Clipper

Your letters will be printed out and hand delivered to Rep. Cantwell and
Sen. Leahy by EFF.

You KNOW privacy is important. You have probably participated in our online
campaigns.  Have you become a member of EFF yet?  We feel that the best
opinions heard.  EFF members are informed, and are making a difference. 
Join EFF today!



  Membership Coordinator
  Electronic Frontier Foundation
  1001 G Street, NW, Suite 950 East, Washington, DC  20001


___ Regular membership -- $40
___ Student membership -- $20
___ SysOp membership   -- $10*

  * SysOp members are required to bring in 10 new members to renew at the
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BBS:   _____________________    Modem Type: ____________________

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EFF will maintain a publicly available list of BBSs and similar services
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