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EFFector - Volume 7, Issue 5 - DPSWG Coalition's Digital Telephony Letter to White House


EFFector - Volume 7, Issue 5 - DPSWG Coalition's Digital Telephony Letter to White House

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

In This Issue:

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
redistribution.  The FBI has released a draft of the new version of its
Digital Telephony legislation, aimed at crippling all future communications
technology to enhance their ability to wiretap and gain the ability to
perform communications traffic analysis without a warrant.  To add
insult 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
wireless communications, allowing the FBI to name their would-be bill,
"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
scheme would turn the data superhighway into a national surveillance
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
Partners, two-thirds said it was more important to protect the privacy of
phone calls than to preserve the ability of police to conduct wiretaps."
- 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
industry 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
interest of the public in these matters and their complexity, it is
essential that there be a full public debate on these issues.

Industry is currently cooperating with appropriate authorities to avoid
future problems and to expand existing capacities.  This is not to say that
there have not been some transitional concerns particularly upon the
introduction of new technologies that have grown greatly in popularity.  But,
whenever transitional problems have arisen, industry representatives have
worked with law enforcement officials to resolve them.
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
within the working relationship that has emerged from the 1992 Quantico
Joint Government Industry Group will resolve "the digital telephony
problem" and preserve the government's current authorities.  The
discussions have succeeded in identifying specific problems and have begun
the process of generating concrete, cost-effective solutions.  This process
has facilitated a more robust exchange of technical information and
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
privacy of information carried over the public switched network.  Less than
a decade after enactment of the Electronic Communications Privacy Act of
1986, the nation can ill afford to undercut customer privacy expectations. 
Indeed, on the eve of the National Information Infrastructure's deployment,
preserving customer confidence is all the more important.  Privacy
protection is not a secondary interest here.
Survey after survey performed by Professor Alan Westin and others have
demonstrated the public's concern with privacy and the security of their
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                        
Information Industry Association
Information Technology Association of America
Iris Associates, Inc
McCaw Cellular
MCI Communications Corporation
People for the American Way
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
Inforamation Infrastructure into a nationwide surveillance network. 
It is clear that law enforcement needs and wants do not require
such overly-broad legislative action, and the possible gain to law
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 
should be answered in pursuing any digital telephony legislation.  The 
draft that the White House has given us for comment is overly broad, and 
it is our hope that this letter will assist in narrowing the scope of any 
While we have additional, important questions and concerns, this letter
sets forth our primary concerns.

(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 
should therefore be limited to content of communications and incidental 
call setup or transactional data.

Legislation should apply to "call setup information" only when that 
information 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 
scope beyond the acquisition of content (pursuant to a warrant under 
section 2518) to the independent acquisition of call setup information 
raises many issues that require examination.  For example, currently the 
legal standard for obtaining transactional data is a certification (via 
subpoena or statement to a judge) that the sought-after data is relevant to 
an ongoing criminal investigation.  In the era of personal communications 
services ("PCS") and of the information highway, transactional data will 
reveal far more about individuals than it has in the past.  In fact, in some 
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 
industry that it create a surveillance-based system that will allow federal, 
state, and local government to use a service provider's electronic 
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 
relevant to an ongoing criminal investigation, law enforcement officials 
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 
its 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 
would not limit in any way law enforcement's access to trap and trace, pen 
register, or call billing information under current law or practice.  This is 
particularly true given that there has been no case made that 
demonstrates any current or potential difficulty in getting this non-content 
information 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
related to the service provider's telecommunications services.  It would
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 
is appropriate for the FBI to seek their assistance in intercepting 
communications on their networks only when the requests are reasonably 
related to the telecommunications services they provide.

Therefore, the question is not necessarily who is covered, but what 
telecommunications services are covered.  For example, the legislation 
should reflect the fact that, in reselling services, even local telephone 
companies sometimes are unable in those instances to furnish call setup 
information 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
procedures that reasonably comply with the specific functional performance
requirements of law enforcement.  

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

In installing new software or equipment under this statute, a service 
provider must be able to reasonably assess future demands by law 
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 
installed in vehicles.  Service providers cannot be held to an absolute 
standard of compliance where they are using and delivering new 
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?

It is not a foregone conclusion that mobility in a digitized 
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
successfully wiretap and intercept voice communications.  To accomplish
this goal, the wireless industry understands that available excess port
capacity is needed in all switches throughout the nation.  While it may be
reasonable for federal and state law enforcement agencies to acquire the
contents of wireless communications pursuant to "Title III"  warrants
through additional port capacity, it would be prohibitively expensive to
require that every one of the nation's switches be connected to the FBI 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, 
would increase exponentially the risk of unauthorized access to wireless 
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 
privacy and the ability of law enforcement to properly execute court-
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,
would service providers be held liable for software or hardware that 
is not available from vendors?  Why?  How would the obligations be 
enforced against foreign manufacturers?  What would be the liability of a 
domestic carrier that relies upon foreign manufacturers?  What are the 
trade implications of having domestic manufacturers export equipment 
designed for governmental surveillance?

(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
pay for upgrades or facilities, then the service providers should not be
held responsible.  The FBI appears to have accepted the concept that
government should pay for the costs of compliance but has so far 
underestimated these costs and proposed an arbitrary three-year limit on 
cost reimbursement.  Government compensation should be ongoing with 
industry'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

In a move that could have significant ramifications for the proposed
"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.

In an appeal filed in the United States Court of Appeals for the Fifth
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
small roleplaying-games book publisher in Austin, Texas.  On March 1, 1990,
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
1980, which is designed to protect publishers.  Steve Jackson Games was
awarded $51,040 in damages under that claim.

In addition, the trial judge held that the seizure of electronic mail on
the company's electronic bulletin board system was a violation of the
stored communications provisions of the ECPA and awarded each of the
plaintiffs $1,000 in statutory damages.

On a third, independent claim, however, the trial judge ruled against the
plaintiffs, holding that electronic mail that had not yet been accessed by
its intended recipient is not "intercepted" under the ECPA.  Judge Sparks
held that an interception can occur when a only communication is acquired
at the same time it is occurring -- in other words, in real time as the
message is actually travelling over the wires.

Plaintiffs base their appeal on Congress' intention in creating separate
statutory provisions for "intercepted" communications and on the plain
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'
definition of "interception" under ECPA.  "For purposes of intercepting the
contents of an electronic mail message, the time the message actually
travels through the wire between computers is a technical detail of the
delivery process that should not be relevant to the law."

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
in EFF's activities with the rapid development of the national information
infrastructure 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
implementing management, fundraising and membership programs, and will
expand the scope of the Foundation's activities by developing diverse
projects that encompass:
-  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
digital technology and society.   Both founders will continue to remain
active on the Board of Directors of the organization.  

For more information contact:

Electronic Frontier Foundation
Attn: Executive Director Search Committee
1001 G St. NW, Suite 950 E, Washington DC 20001


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
subscription to EFF's biweekly electronic newsletter (EFFector Online), a
subscription to our quarterly hardcopy newsletter (Networks & Policy) and
access to our online bulletin board system.  In addition, sysop members will
receive a special version of our Frontier Files diskette containing some of
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
work.  Sysop members are eligible to renew at the special discounted rate
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. 
Information will be forwarded about Outpost and the network as soon as it
is 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  For general
information about EFF and it's mission, send mail to


Subject: What YOU Can Do

"In order to keep up with the criminals and to protect our national
security, the solution is clear: we need legislation to ensure that
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 in Pub/EFF/Policy/Digital_Telephony/digtel93_freeh.speech]

That's right - it's the Digital Telephony proposal. Again. The FBI wants
guaranteed access to *your* communications.  If you want to fight
government invasions of your privacy, join EFF!

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
principles are clear.  Who will decide how much privacy is "enough"?

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
restrictions on the export of encrytion software have stifled the
development and commercial availability of strong encryption in the U.S. 
Rep. Maria Cantwell has introduced a bill (H.R. 3627) in the House that
would liberalize export controls on software that contains encryption, but
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

If you'd like to add your voice in support of the Cantwell bill and the
Leahy hearings, you can send your letters to:, Subject: I support HR 3627, 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
way to protect your online rights is to be fully informed and to make your
opinions heard.  EFF members are informed, and are making a difference. 
Join EFF today!



Print out in monospaced (non-proportional) font and mail to:

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  Electronic Frontier Foundation
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I wish to become a member of the Electronic Frontier Foundation. I enclose:

___ Regular membership -- $40
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