The Electronic Privacy Information Center (EPIC) has sent the following letter to Rep. Jack Brooks, Chairman of the House Judiciary Committee. For additional information on EPIC's campaign to defeat the FBI Wiretap Bill, e-mail . ================================================================== September 13, 1994 Hon. Jack Brooks Chairman Committee on the Judiciary U.S. House of Representatives 2138 Rayburn House Office Bldg. Washington, DC 20515 Dear Chairman Brooks: We are writing with regard to H.R. 4922, the Federal Bureau of Investigation's proposed wiretap legislation now pending before the Judiciary Committee. As you know, the current bill is the most recent version to emerge from a process that began more than two years ago, when the FBI first sought legislation to ensure its ability to conduct electronic surveillance through mandated design changes in the nation's information infrastructure. The Electronic Privacy Information Center (EPIC) has monitored that process closely and has scrutinized the FBI's claims that remedial legislation is necessary. EPIC has sponsored conferences at which the need for such legislation was debated with the participation of the law enforcement community, the telecommunications industry and privacy advocates. We have also sought the disclosure of all relevant information through a series of requests under the Freedom of Information Act. Having thus examined the issue, EPIC remains unconvinced of the necessity or advisability of the pending bill. The Need for the Proposed Legislation As a threshold matter, we do not believe that a compelling case has been made that new communications technologies hamper the ability of law enforcement agencies to execute court orders for electronic surveillance. For more than two years, EPIC has sought the public disclosure of any FBI records that might document the alleged problem. To date, no such documentation has been released. We recently initiated litigation under the FOIA in federal district court seeking disclosure of two internal FBI surveys cited by Director Freeh in support of the proposed legislation. Through earlier litigation we discovered that no FBI field offices had reported technical difficulties in executing court-ordered electronic surveillance. In fact, several field offices reported that they had not encountered such problems. Without public scrutiny of factual information on the nature and extent of the alleged technological impediments to surveillance, the FBI's claims remain anecdotal and speculative. Indeed, representatives of the telecommunications industry have consistently maintained that they are unaware of any instances in which a communications carrier has been unable to comply with law enforcement's requirements. For instance, in Congressional testimony on March 18, 1994, Roy Neel, President of the United States Telephone Association stated that, In the quarter century since the federal government first authorized court ordered wiretaps there have been tens of thousands of requests for assistance from local telephone exchange companies. In virtually every instance the local telephone company provided the appropriate law enforcement authority with the timely assistance it needed to effect the intercept. Under these circumstances, the nation should not embark upon a costly and potentially dangerous re-design of its telecommunica- tions network solely to protect the viability of fewer than 1000 annual surveillances against wholly speculative impediments. Increased Risk of Network Vulnerability Our nation's communications infrastructure has never before been designed with the stated purpose of facilitating the interception of private communications. The proposed legislation would require, for the first time, that the telephone network must have vulnerabilities intentionally built into it. The potential pitfalls of such a course are apparent. As the General Services Administration noted in its analysis of an earlier version of the FBI's proposal (which we obtained under the FOIA), The proposed legislation would assist eavesdropping by law enforcement, but it would also apply to users who acquire the new technology capability and make it easier for criminals, terrorists, foreign intelligence (spies) and computer hackers to electronically penetrate the phone network and pry into areas previously not open to snooping. This situation of easier access due to new technology changes could therefore affect national security. As your report on the Computer Security Act of 1987 noted, "lack of computer security is a serious problem since such systems are the core of every modern organization." H. Rpt. 100-153, Part 2, at 10. With an ever-increasing flow of sensitive commercial and personal information traveling through the communications infrastructure, we should be seeking to strengthen the security of those transmissions. Unfortunately, as the GSA recognized, the pending legislation is likely to have the precise opposite effect on communications security. A Threat to Privacy in the Future We also believe that the proposed legislation would establish a dangerous precedent for the future. While the FBI claims that the legislation would not enhance its surveillance powers beyond those contained in existing law, the pending bill represents a fundamental change in the law's approach to electronic surveillance and police powers generally. The legislation would, for the first time, mandate that our means of communications must be designed to facilitate government interception. While we as a society have always recognized law enforcement's need to obtain investigative information upon presentation of a judicial warrant, we have never accepted the notion that the success of such a search must be guaranteed. By mandating the success of police searches through the re-design of the telephone network, the proposed legislation breaks troubling new ground. The principle underlying the pending bill could easily be applied to all emerging information technologies and be incorporated into the design of the National Information Infrastructure. It could also soon lead to the prohibition of encryption techniques other than government-designed "key escrow" or "Clipper" type systems. In short, EPIC believes that the proposed FBI wiretap bill raises substantial civil liberties and privacy concerns. The present need for the legislation has not been established and its future implications are frightening. In the spring of 1992, you convened hearings on law enforcement's claimed need to restrict the development and use of privacy-enhancing encryption technology. You observed that "the decisions we make in this area could have a profound impact on the future of U.S. industry and our society as a whole." We share your concern and urge you to examine closely both the claimed need for H.R. 4922 and its desirability for our democratic society. Sincerely, Marc Rotenberg David L. Sobel Director Legal Counsel =================================================================