FBI'S DIGITAL TELEPHONY BILL WAS RESULT OF FAILED 2-YEAR BEHIND-SCENES

[David Farber <farber () central cis upenn edu>]

COMMUNICATIONS DAILY
Monday November 22, 1993
Copyright 1993


THIS ARTICLE IS INTENDED FOR PERSONAL USE ONLY AND MAY NOT BE
DISTRIBUTED IN ANY FORM, ELECTRONIC OR OTHERWISE, TO ANY OTHER
FORUMS.




FBI'S DIGITAL TELEPHONY BILL WAS RESULT OF FAILED 2-YEAR BEHIND-SCENES
CAMPAIGN
by Brock N. Meeks




     FBI's controversial Digital Wiretap Bill was result of failed
2-year campaign, code-named "Operation Root Canal," to win quiet
telephone industry agreement to give law enforcement agencies
easy wiretap access to digital conversations, Communications
Daily has learned.


   Previously classified documents show how bill was introduced
in light of industry's insistence that no voluntary agreement
could ensure compliance by all of industry. Telephone companies
ultimately opposed bill, confounding FBI, which thought it had
full industry endorsement.  Industry figures have denied publicly
that they encouraged FBI to introduce bill. Documents also raise
serious doubts about legitimacy of FBI's frequent claim that
digital technologies are proved stumbling blocks to criminal
investigations.


     Month-long examination by Communications Daily that included
interviews with telephone company and law enforcement officials and
inspection of more than 180 pages of documents obtained from FBI
and Justice Dept. under Freedom of Information Act (FOIA), supplied
to us by Computer Professionals for Social Responsibility (CPSR),
also revealed that Bureau:  (1) Tried to get industry voluntarily
to write digital wiretap "trapdoors" into future specifications for
central office switches.  (2) Attempted to convince industry to
cooperate voluntarily by indicating that FBI wouldn't be able to
protect network security.  (3) Developed study of financial impact
of digital wiretap access on industry, later claiming no such study
existed.


     In absence of law compelling industry to comply with FBI
desire for digital wiretap access, Bureau tried to induce telephone
companies to develop "immediate and interim solutions" to problem,
according to internal FBI memo dated Feb. 8, 1991.  Memo also said
FBI agents, in conversations with industry executives, "stressed
the necessity to incorporate these monitoring requirements in
future specifications for central office switches."


     When FBI began to realize industry wouldn't go along
voluntarily with its request for digital access, it painted dire
picture of how Bureau would be limited in ability to fight crime
if wiretap access weren't given, pointedly claiming that security
of networks themselves would be at risk.


     Industry reluctance to comply voluntarily with FBI plan meant
agency had to turn to legislation.  "It was the Bureau's court of
last resort," FBI source said.  Internal FBI memo dated Aug. 21,
1991, quoted unidentified PacBell official as saying:  "The only
viable solution for this problem would be through legislative
action as technical solutions alone would be cost prohibitive and
ineffective."  PacBell official also is quoted saying legislation
"would ensure the equal commitment of all providers."


     Telephone company officials have denied publicly that they
supported legislative solution.  When existence of bill was made
public, RHCs and equipment makers opposed it, confusing FBI.  In
Sept. 22, 1992, letter to Charles Bowsher, then Comptroller Gen.,
then-FBI Dir. William Sessions said that when Bureau efforts to
gain industry's voluntary compliance failed "to achieve prompt
action," industry reached consensus that "legislative mandate was
both needed and desired -- a stance later repudiated by industry
spokespersons."  In fact, industry lobbying against bill became so
intense that then-Attorney Gen. William Barr, in June 1992 letter
to Sessions, told how he had sought to enlist efforts of
then-Commerce Secy. Barbara Franklin because her "support is
urgently needed to help diminish the telecommunications industry's
intense lobbying efforts in opposition."


     Whether companies flip-flopped on legislative issue is
unclear.  FBI refused to comment on apparent conflict between
consensus Sessions thought he had from industry and industry's
vehement opposition to bill when it was introduced:  "You'll have
to get those answers from the industry," said agent Barry Smith of
FBI Legislative Affairs Office.


     Although FBI documents clearly show industry agreed
legislation was only way FBI could hope to gain industrywide
compliance, it isn't clear that industry gave any indication it
would support such a bill if introduced.  Interviews with industry
officials produced contradictory accounts.  One senior RHC official
who took part in FBI-industry meetings said flip-flop was
"calculated game of political brinksmanship."  He said industry
never had any intention of backing legislation:  "This was all an
elaborate kind of shell game to discourage the FBI from making us
spend millions of dollars to make their job easier."


     But another RHC official differed:  "I don't recall the
industry ever telling the FBI it would support legislation.
Certainly our company never indicated that position."  AT&T
spokesman said company has "always been opposed to legislative
solution."  Yet, when idea of legislation was presented to
representatives of AT&T, Bell Labs and Nynex at Aug. 21, 1991,
meeting with FBI, as recorded in Sept. 30, 1991, internal FBI memo,
none of those present was noted as opposing legislative idea.
Indeed, almost year later, perceived industry flip-flop still
bothered Bureau.  Internal FBI memo dated Sept. 30, 1992 (after
industry had come out against bill), written by Kier Boyd, FBI
Deputy Asst. Dir. Operations-Technical Services Div., said "the
RBOCs are playing both sides of the street, so as not to offend the
Justice Dept., which enjoys considerable power over their
activities" under MFJ.  However, if that was intention, result was
an FBI obviously irked by what it saw as duplicity.


               FBI Worries Groundless?


     Despite FBI insistence that digital technologies have
potential to thwart investigations, Bureau has no evidence to
support claim, documents revealed.  Bureau has said publicly that
investigations already have been hampered by current digital
technologies, but has declined to respond to requests for
specifics.  However, FBI field report documents show Bureau
received no support from field officers to back up claims of
problems caused by digital technologies;  field offices repeatedly
reported no difficulty in carrying out electronic surveillance.
Dec. 3, 1992, report from Newark office is typical, as it reported:
(1) Drug Enforcement Administration "advised that as of this date,
the DEA has not had any technical problems with advanced telephone
technology."  (2) N.J. Attorney Gen.'s office said it hasn't had
any problems "since the last contact."  (3) IRS reported no
problems with "advanced telephone matters."  (4) N.J. State Police
said that "as of this date" agency has had no problems with
technology's hindering investigations.


     Examination of all documents released turned up no reports
of technology's hampering investigations.  In Nov. 16 appearance
on Wis. Public Radio, Special Agent James Kallstrom of FBI
Technical Services Div. also contradicted previous FBI claims,
admitting during debate with CPSR legal counsel David Sobel that
digital technologies hadn't yet hampered FBI investigations.


     Major concern of Congress, consumer advocates and industry is
eventual cost of implementing FBI plan.  Agency consistently has
said it's in no position to evaluate such costs.  When GAO
investigators asked FBI for any cost analysis agency had done, FBI
denied it had any.  But in May 26, 1992, memo from Attorney Gen.
Barr to FBI Dir. Sessions titled "Digital Telephony Information
Memorandum," which outlines changes Justice Dept. made in FBI's
original bill, Barr said "significant" change in measure "is that
it is silent on how the cost burden for accommodating law
enforcement's needs will be assumed."  Same memo then said efforts
to "compress the timetable" for presenting legislation included "a
cost-benefits study formulated by the FBI [that] was forwarded
through your staff to the OMB."  FBI declined to release study.


                                  --30--