nightline- fbi,privacy,and proposed wire-tapping legislation.txt

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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.

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