EFFector Online Volume org Publicati

=========================================================================

  ________________             _______________          _______________

 /_______________/\           /_______________\        /\______________\

 \\\\\\\\\\\\\\\\\ \          |||||||||||||||||       / ////////////////  

  \\\\\\\\\\\\\\\\\/          |||||||||||||||||      / ////////////////

   \\\\\\_______/\            ||||||_______\        / //////_____\  

    \\\\\\\\\\\\\ \           ||||||||||||||       / /////////////

     \\\\\\\\\\\\\/____       ||||||||||||||      / ///////////// 

      \\\\\___________/\      |||||              / ////   

       \\\\\\\\\\\\\\\\ \     |||||             / ////  

        \\\\\\\\\\\\\\\\/     |||||             \////

=========================================================================

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

Foundation.

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.                        

AT&T                           

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

Foundation.

March 11, 1994

By Hand Delivery

Mr. Louis Freeh

Director

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

legislation.

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. ¤ 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 

ndividuals.

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

locations.  

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,

					        [signed]

						Jerry Berman

						(202) 347-5400

					        [signed]

						Ronald Plesser

						(202) 861-3969

Enclosure

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

education.  

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

members.

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 IN THE ELECTRONIC FRONTIER FOUNDATION

================================================

  Membership Coordinator

  Electronic Frontier Foundation

  1001 G Street, NW, Suite 950 East, Washington, DC  20001

SIGN ME UP!

-----------

___ Regular membership -- $40

___ Student membership -- $20

___ SysOp membership   -- $10*

  * SysOp members are required to bring in 10 new members to renew at the

    SysOp membership rate (otherwise normal rates apply).  Send queries to

    membership@eff.org for more info.

Special Contribution

  I wish to make an additional tax-deductible donation in the amount of

  $__________ to further support the activities of EFF and to broaden

  participation in the organization.

---------------

___ Enclosed is a check or money order payable to 

    the Electronic Frontier Foundation.

___ Please charge my:

     ___ MasterCard        ___ Visa        ___ American Express

     Card Number: _____________________________________________

     Expiration Date: _________________________________________

     Signature: _______________________________________________

     NOTE:  We do not recommend sending credit card information via email!

YOUR CONTACT INFORMATION:

-------------------------

Name: __________________________________________________________

Organization: __________________________________________________

Address: _______________________________________________________

         _______________________________________________________

         _______________________________________________________

E-mail addresses: ______________________________________________

                  ______________________________________________

BBS:   _____________________    Modem Type: ____________________

       _____________________    ________________________________     

       _____________________    ________________________________

BBS Info:  BBS Name: ___________________________________________

           SysOps:______________________________________________

           Voice/Support Phone: ________________________________

           Network Addresses: __________________________________

                              __________________________________

           BBS Notes (OS, modem types/speeds, Internet connectivity,

                      access requirments, hours, fees, software, focus

                      or special interests, unique features, etc.)

           _____________________________________________________

           _____________________________________________________

           _____________________________________________________

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

that support the efforts of the Electronic Fontier Foundation.  Members

be listed as well.

___ Electronic:  Please contact me via the Internet address listed above.

                 I would like to receive the following at that address:

  ___ EFFector Online - EFF's biweekly electronic newsletter 

                        (back issues available from ftp.eff.org,

                         pub/EFF/Newsletters/EFFector).

  ___ Online Bulletins - bulletins on key developments

                         affecting online communications.

        NOTE:  Traffic may be high.  You may wish to browse these

        publications in the Usenet newsgroup comp.org.eff.news (also

        available in FidoNet, as EFF-NEWS).

___ Paper:  Please contact me through the US Mail at the street

            address listed above.

        NOTE:  Paper documents available upon request.  

        "Networks & Policy" Newsletter automatically sent via US Mail.

--------------

EFF occasionally shares our mailing list with other organizations promoting

___  I grant permission for the EFF to distribute my name and contact

     information to organizations sharing similar goals.

[This form came from eff.org  - please leave this line on the form!

The Electronic Frontier Foundation is a nonprofit, 501(c)(3) organization

------------------------------

Administrivia

=============

EFFector Online is published biweekly by:

     Electronic Frontier Foundation

     1001 G Street, N.W., Suite 950 East

     Washington, DC 20001, USA

     Phone: +1 202 347 5400,  FAX: +1 202 393 5509

     Internet Address:  eff@eff.org or ask@eff.org

     Coordination, production and shipping by:

     Stanton McCandlish, Online Activist 

Reproduction of this publication in electronic media is encouraged.  Signed

articles do not necessarily represent the views of EFF.  To reproduce

To subscribe to EFFector via email, ask brown@eff.org for a subscription

to the EFFector mailing list.

------------------------------

--------------------------

Membership & donations: membership@eff.org

Legal services: ssteele@eff.org

Hardcopy publications: pubs@eff.org

Technical questions/problems, access to mailing lists: eff@eff.org

General EFF, legal, policy or online resources queries: ask@eff.org

End of EFFector Online v07 #05

******************************

$$