I went to the store the other day to buy a bolt for our front door, for as I told the storekeeper, the governor was coming here. "Aye," said he, "and the Legislature too." "Then I will take two bolts," said I. He said that there had been a steady demand for bolts and locks of late, for our protectors were coming. - Henry David Thoreau
You are in a windowless ballroom in a plush, generic hotel in a soulless business district just outside of Washington, DC, and you're a little spooked, because you're in the company of a few hundred attentive men and women eager to learn how to wiretap your phone.
They're quite affable, most of these phone-company folks. And serious. They engage in earnest discussions with a stream of speakers and panelists. They take notes. They study the contents of the bulky white binder they received when they arrived. On the front, in blood-red letters, it reads: Wiretap Workshop.
At first, you feel uncomfortable, a fraud, even. Frequently, the jargon goes over your head. But as the day progresses and you start to feel clued in and strangely buoyed by the can-do tide sweeping the room, the virtual haze disappears. You start to marvel at the power of it all, the intoxicating potency of the vision. The vision in question: to create a national information infrastructure, or whatever the term du jour is, with monitoring and surveillance capabilities built in. It's awe-inspiring. It's a bit like devising a new building code that says every room must have a little microphone hidden in the wall, for the government toturn on at will.
It's easy to see why the FBI has been pushing for this. As the United States' phone system gradually shifts from analog to digital, the wiretapping capabilities of its law-enforcement agencies are being eroded. It used to be that any agent with a warrant could attach a few alligator clips to a copper wire and, if he or she got lucky, listen in on a drug deal about to take place, an assassination being planned, or a bookmaker taking bets. With copper wires being replaced by their digital equivalents, it becomes harder to make sense of anything intercepted. Voice and data transmissions on fibre-optic networks are broken into electronic bits that travel at warp speeds, take different routes, and are reassembled just before they reach their destination. On such networks, conventional wiretaps will yield a cacophony of useless electronic noise.
Since the late '80s, law enforcement has been looking for a solution. According to the Federal Bureau of Investigation, telecommunications carriers should be required to somehow adapt their new equipment so that wiretapping can continue. It's a view shared by powerful players in Washington - most notably, perhaps, Joseph Biden (Democrat, Delaware), who was chair of the Senate Judiciary Committee during the Bush administration. In 1991, Biden introduced a Draconian senate resolution (S266) that proposed to take care of the problem. The measure never made it to a vote. But to the delight of the FBI's top brass, at least the issue was now officially on the table. Emboldened, the bureau drafted full-fledged wiretap legislation, which gained little support on Capitol Hill, partly because of strenuous opposition from civil liberties groups such as the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU) and the Electronic Privacy Information Center (EPIC). Then the tide changed, and a dormant issue became a bombshell.
In 1992, Clinton rode into town, recognised the problem, and cast it in terms not of privacy but of technology. Not everyone agreed (more on that later) but Clinton's view, not surprisingly, was one shared by Louis Freeh, the director of the FBI. A Clinton appointee, Freeh is that most elusive of combinations, a charismatic straight arrow, and just the ticket to bolster America's crime-fighting spirit. Seen as a latter-day Eliott Ness, Freeh rules in Washington. He is to law enforcement what Colin Powell is to national politics.
A senior lobbyist on Capitol Hill remembers that when Ron Wyden, a Democratic congressman from Oregon, had a question about wiretapping, Freeh went over to the lawmaker's office and spent four-and-a-half hours explaining the issue as he saw it. "The guy was all over the Hill, never let up," says the lobbyist, who asked to remain nameless. "In all my years here, I have never seen that kind of lobbying by a top administration official. It was astounding."
"Stunning repudiation"
A news item in the Kansas City Star, Feb-ruary 9, 1994: "A judge threw out all evidence obtained from FBI wiretaps in what was described as the most expensive white-collar investigation in Kansas City history. The 96-page report of the reviewing magistrate concluded that the FBI's affidavit 'presented a disturbing pattern of material misstatements, overstatements and omissions designed to mislead the issuing district court.' The outcome is 'a stunning repudiation of FBI tactics.' "Such roaring reprimands notwithstanding, FBI officials remain fond of their wiretapping authority. It's not an oft-used tool; for decades, federal wiretap cases in the US have been measured in the low hundreds, although that number is now climbing. (The 1994 official count was 554. In addition, 600 state orders were granted.) But to anyone who wants to see wiretapping banned or curtailed - because it's ineffective, expensive, and may run afoul of the Fourth and fifth Amendments - the FBI response is: Forget it. The future of law enforcement is at stake. "If you think crime is bad now," Freeh told the American Law Institute in 1994, "just wait and see what happens if the FBI one day soon is no longer able to conduct court-approved electronic surveillance."
Freeh never tired of driving home the point, and his prophesies got gloomier as time went by. In March 1995, he told the House that wiretaps were "crucial to the fight against drugs, terrorism, kidnapping and sophisticated white-collar crime." Losing the ability to tap people's phone lines, said Freeh, would have an "effect so profound that law enforcement will be unable to recover." The legislation Freeh toiled to get accepted was originally called the Digital Telephony Bill, or DigiTel, then rechristened the Communications Assistance of Law Enforcement Act. Civil libertarians simply talk about the wiretap bill.
Joe Biden made his second attempt to introduce such legislation in early 1994. This time, with a sympathetic administration applauding in the background and a pretty effective Mr. Nice Guy at the top of the FBI hierarchy, various Washington players pricked up their ears. Senator Patrick Leahy (Democrat, Vermont) and representative Don Edwards (Democrat, California), both held in high regard by privacy proponents, were contacted by an EFF-initiated umbrella organisation called the Digital Privacy Working Group. The group was made up of, among others, the EFF and ACLU, as well as representatives from industry giants such as IBM, MCI, Microsoft and AT&T. At the Privacy Group's behest, Leahy and Edwards asked Biden to hold off, giving them time to rewrite some of the more ominous passages in the bill. Biden agreed, but on the condition that some version of the bill would be on the table soon.
The resulting draft was partly based on recommendations made by Jerry Berman, then the EFF's chief policy analyst. Stanton McCandlish, its online services manager, says that the final version (the Leahy/Edwards draft) removed "as much FBI language from the bill as possible" and inserted "as much pro-privacy legislation as possible." The EFF did not oppose the bill outright, because it saw the writing on the wall. A boldly updated wiretap law seemed unavoidable. The choice, then, was to work within the system to defend and salvage privacy principles or to take the high road and avoid getting dirty hands. After much soul-searching, the group decided to stock up on soap and plunge right in.
Bug fixes
Here are some of the key features - call them bug fixes - the EFF helped implement in the final bill:
- To obtain so-called transactional records of online or plain telephone traf-fic, a law-enforcement officer now needs a court order instead of a mere subpoena. An online transactional record is the more revealing equivalent of a person's toll-call list. It's a log of when, where and for how long a suspected party visited an information service, and of when and with whom he or she exchanged e-mail.
- Internet service providers, online information services and private bulletin boards will not have to implement new technology to facilitate wiretaps. Only the telecommunications and phone companies are affected by the law.
- The original bill states that the phone companies, when presented with a court order, must both give to law enforcement encrypted messages sent over phone company wires and decrypt them - even if they have never had the key. That provision is about as smart and practical as requiring water utility companies to keep a detailed record of what each member of every household flushes down the toilet. This impossible condition was absent from the final version of the legislation.
- The "radio part" of cordless phone calls (the transmission between handset and base), which the government could listen in on with impunity, gets the same protection as any other phone call (a court order is required to wiretap).
- The Justice Department can no longer set design standards for the new digital networks. The industry is free to develop its own standards, albeit "in consulta-tion with the Attorney General." In other words, intervention is public, not the result of unobserved and unaccountable backroom dealing.
- The phone industry will be reimbursed for software and equipment modifications required by the Digital Telephony Bill. The federal government promises to set aside half a billion dollars for this pur-pose, subject to appropriation, so that implementation costs won't lead to higher phone rates. (Of course, now the money will come out of all taxpayers' pockets instead). The core element of the new law, however, remains unchanged. It still demands that common carriers - phone companies and competing cable enter-prises - make all new telecommunications equipment wiretappable.
Support for pragmatism
The final legislation, and its near-effort-less passage in October 1994 (a unanimous Yes in the Senate, only one No vote in the House), caused an uproar on the Net. It's true that a slew of Electronic Frontier Foundation fans weighed in with support for the organisation's pragmatic stance. They echoed the EFF's feeling that some law regulating these issues was bound to pass, and that it might as well have some EFF-brokered protections built in.It's equally true that many of the group's grass-roots backers were disgusted by what they saw as spineless pandering and a missed opportunity to oppose and perhaps stop a law that, in their eyes, was unconstitutional. It seemed merely to confirm some of their worst fears about the capital's corrupting influence. They'd wrung their hands when, in 1992, the EFF moved from Cambridge, Massachusetts, to Washington, DC; they thought it a bad sign that the group chose to abandon the creative semi-counterculture of Harvard Square for the power-obsessed, back-stabbing élite of Capitol Hill. And now this: the EFF's virtual stamp of approval on an ill-conceived, dangerous new law.
To hear EFF co-founder John Perry Barlow tell it, the drama reached nail-biting proportions when, at the eleventh hour, the EFF got a golden opportunity to stop passage of the Digital Telephony Bill. Senator Malcolm Wallop (Republi-can, Wyoming), citing "general concerns," placed a hold on the bill before it could be voted on. It just so happens Wallopis a friend of Barlow's.
"Malcolm put a hold on the bill mostly for political reasons," says Barlow, whois also vice chair of the EFF board. "He used it as trading stock with Democrats in order to stop a California wilderness bill he opposed. He's also a civil-libertarian typeof Republican, and Digital Telephony made him uneasy. I'm very close to him and to his former chief of staff; I'm reasonably certain that if I'd called him on the basis of that and said, 'Keep the hold,' they would have. And the bill would not have passed."
Others in the privacy community doubt Barlow's power in this respect, and accuse him of delusions of grandeur. "No way could he have stopped it," says one source who requested anonymity. "He just says that to show everyone how long his dick is." Malcolm Wallop, now retired from active politics, did not respond to phone calls or faxes. Other politicians, when asked to comment on their vote for DigiTel, were equally silent.
In any case, Barlow never made the request. Instead, he dialled into the Well and tried to explain why he had chosen not to intervene. "From some of the reactions, you'd think I was the Darth Vader of digital civil liberties," he recalls. "People don't read things all that carefully. Some of my most vocal opponents never grasped the huge difference between the initial bill and the one that passed."
All things considered, does Barlow still think the EFF fought the good fight? "Hell, I think we won," he says without hesitation, brushing aside notions of a Pyrrhic victory. "Politics is simply the art of the possible. My work in the environmental movement taught me that if you're a purist, you go down to defeat almost every time, and the things you care about ultimately suffer. Maybe your honour and dignity will remain intact, but the environment - or civil liberties or whatever your cause is - won't. Sometimes you have to do a bit of nasty dealing.
"We got right down to the floor of the sausage factory, getting ourselves smeared with blood and pig fat, and it wasn't all that pleasant. But we did what we felt we had to do, and I'm proud of that."
That the EFF never actually supported - in fact, opposed - the bill, was largely lost in the fracas. The critics who did acknowledge that fact still saw it as further evi-dence that the EFF had lost its way. They asked good questions: How can you co-engineer a law that you believe is wrong and misguided? Didn't the EFF understand that by helping shape the Digital Telephony Bill, the organisation also helped legitimise it? And that this made it easier for lawmakers to vote "yea" because, after all, prominent privacy advocates had been involved in drafting the statute?
In these dissenters' eyes, the merry pranksters of the digital age were suddenly in cahoots with robocops and superspooks.
Why the EFF did it
What the EFF has to say for itself boils down to four points:
- FBI director Louis Freeh was starting to convince lawmakers that he needed up-dated wiretapping authorities. In the of the World Trade Center bombing and Congress's overall toughness on crime, it seemed clear to the EFF that a new wiretap bill could not be fought off much longer.
- The group had become worried that the FBI was already claiming new wiretap-ping powers without proper regulation or oversight. "The FBI kept going to the phone companies asking for incremental changes and improvements," says Barlow. "And getting them without any legal overview at all." The EFF propounded that a new wiretap law with some checks and balances would put an end to such "under-the-table deals."
- Congressman Don Edwards was about to retire. On the House side, he was the privacy groups' chief ally.
- The EFF looked to the future and foronce didn't like what it saw: the political climate was about to become much more conservative after the November 1994 elections. If the 103rd Congress didn't deal with the wiretap issue, and the 104th turnedout to have a Republican majority in the House and the Senate (which it did), law-enforcement interests would likely obliterate privacy concerns. It became important to whip up a wiretap bill and get it to the floor before the Republicans took over.
- "Look at the present Congress and tell me with a straight face that a new, far worse version of the wiretap bill would not pass now if we'd held off last year," argues Stanton McCandlish. "If you're still sceptical, examine last year's Congressional Record; you'll find 30 bills that pose serious privacy and free-speech threats."
Down and dirty
In an EFF profile ("The Merry Pranksters Go to Washington," US Wired 2.06, page 77) written months before the wiretap bill fiasco, co-founder Mitch Kapor said that the move from Cambridge to DC represented a "struggle" and a "clash of two cul-tures" within the ranks of EFF itself, not just within its constituency.But, concluded Kapor, it was worth the imbroglio, because the change of cultural climate turned out to be "incredibly stimulating ... watching how power works. Trying to reverse-engineer the architecture of the Beltway." As it turned out, the Beltway reverse-engineered the EFF. For starters, policy director and former executive director Jerry Berman, a deal-maker par excellence whom some outside the organisation fingered as the chief culprit (both in the EFF's alleged moral corruption and the passage of the bill), left to form a new cyberspace rights group, the Center for Democracy and Technology (CDT). Officially, that move wasn't the result of the row over the Digital Telephony Bill.
Berman was widely seen as a cunning negotiator, someone who forced coalitions and was prepared to get down and dirty if he thought it would advance the Greater Cause. Supposedly, his limited experience with number-crunching and administrative trivia was one reason the EFF asked him to leave. The organisation's new-found mission as a legal and educational force, not as a policy group, was another reason. All that just happened to occur in the aftermath of the group's greatest crisis.
Though the departure seemed amicable on the surface, the farewells were none too fond. One source close to the process, who wants to remain anonymous, says that Berman "got so wrapped up in the game that he lost sight of the goal. Jerry's a loose cannon: he would go off and say things that he hadn't consensus on. On the other hand, it's really hard to get consensus within the EFF board. Especially with Digital Telephony, there was an incredible amount of soul-searching. It was the most divisive issue the EFF ever confronted."
Berman, for his part, says that he never negotiated anything without a solid mandate from his colleagues. "And I have all the papers and electronic records to back that up." What's uncontested is that he took many of the EFF's corporate sponsors with him: AT&T, Microsoft, Bell Atlantic, and others. The number of full-time EFF employees was eventually cut in half, from a high of eleven paid staffers to five plus one volunteer.
The granularity principle
Officially, the EFF won't say what happened at the fateful board meeting in July 1994 when it was decided not to oppose the Leahy/Edwards DigiTel legislation on principle, but instead to work to improve it. Participants who speak off the record concede that sparks flew. "The only thing we all agreed on was that the original bill stunk to high heaven," says one source. "How to handle it from there was a highly contentious matter."Former board member Denise Caruso describes the meeting as "monumental, dramatic. I was sick to my stomach." She declines to reveal what the vote was, but says that she abstained. "I couldn't support [helping draft a new wiretap bill], and I couldn't not support it. It was an impossible situation. Politics is largely a binary world. In a binary world, there is no/yes. But in the world where people live, there are many more permutations - like 'No, unless you do X' or 'Yes, but only if you remove Y.'"
Another source says that Caruso was one of three abstainers; six people on the board voted for collaboration; only one - John Gilmore - voted against it. Gilmore won't confirm this, but in an e-mailed reply to an interview request, he seemed bitter about the whole affair and the climate in Washington. "Civil rights and the power to tax are like canaries," Gilmore writes. "Nobody is always watching the canary. Congress is a roomful of cats, and all the canaries get eaten eventually."
Because of time constraints, some board members felt they had no choice but to work with the FBI and the policy makers on Capitol Hill. "If we had known two or three months earlier how rapidly the legislation was advancing, we could have done something about it," says Caruso ruefully. "We could have had a campaign, we could have taken it to the people and they would have gone batshit."
So why didn't the EFF know earlier how serious the situation was getting? "Because distributed organisations suck," Caruso says. "Everyone's somewhere else."
Fat-cat lobbying machine
There was, however, another reason why the EFF ultimately didn't Take It to the People. David Johnson, another board member, remembers taking part, mere weeks later, in negotiations inside a hearing room on the Hill. He and EFF lobbyists Jerry Berman and Daniel Weitzner were seated at one side of the table and five or six of the politicians' staff members on the other.The talk turned to transactional records - the data showing which online areas a computer user frequents, and which phone numbers he or she calls. The for-mer category, argued the EFF delegation, deserves extra protection from government eavesdropping, because it provides much more information about the person's interests, opinions and affiliations than does a simple list of the phone numbers called by that same individual.
"I'd brought a glass jar filled with sand and a couple of stones," Johnson recalls. "The stones, I explained, were phone calls. The grains of sand were the online trans-actional records. I referred to it as 'the granularity principle.' I said, 'Look, if law enforcement can isolate and examine every grain of sand, not just the stones, it's obviously a grave threat to a person's privacy."
The Congressional aides appeared to be swayed by the argument. They asked the EFF people to leave the room to facilitate "private deliberation." When the delegation was invited back, the EFF received a final offer. The Digital Telephony Bill would indeed offer increased protection for transactional records (to obtain them, a court order would now be required, not a mere subpoena) if the EFF agreed not to oppose the bill further.
The condition was agreed to. While ACLU lobbyists were still working Washington's corridors of power to try to kill the bill or at least put it on the back burner, the EFF not only did a deal with the other side; it allowed its silence to be bought.
After Berman's Center for Democracy and Technology splintered off from the EFF, it was getting hard for the EFF to pay the bills, says Barlow. "Most of our funding went over to CDT. We found that we had been over-dependent on corporate money. The EFF had been developing into an expensive organisation, a big fat-cat Washington-style lobbying machine. That's not inherently wrong, but you run into trouble when you take a position different from that of your corporate masters. For example, we were perhaps too timid when it came to discussing our views on intellectual property, because we didn't want to piss off Microsoft. So I felt, even before theDigital Telephony nightmare happened, that we needed to wean ourselves from that corporate nipple in order to maintain our conscience." Barlow pauses, then adds with a wry smile: "Of course, I didn't want to see the weaning happen quite so suddenly."
Last July came EFF's decision to leave Washington for San Francisco, where most of its "funding base" is located. The official line, as explained by Stanton McCandlish, is that Berman's Center for Democracy and Technology negates the need for EFF's Washington presence; that both groups can now "complement" each other.
Berman says he's perfectly willing to maintain his working relationship with EFF; that, indeed, they're "good friends." But he's a little puzzled by his good friends' one-way cross-country trip. "To change the system, you have to be in Washington," he reasons. "You don't sit in Silicon Valley and expect Washington to come to you."
The EFF's interpretation - in the end it was all for the best, everything is hunky-dory now - is, perhaps, a little skewed. To the casual observer, it looks like Washington tarred and feathered the EFF, then drove it right out of town laughing, with this message: We play this game better than you.
Whatever the correct take, the EFF is flat broke. Worse than that: board member John Gilmore confirmed, when this issue of Wired went to press, the group was in debt to the tune of US$200,000 (£125,000).
And no amount of spin - all right, let's call it positivism - can undo the damage done by the language that flashed across newsgroups in those final months of 1994. There were snubs and slights from the organisation's constituency, and angry charges poisoning bulletin boards, charges of collaboration, sell-out, and betrayal.
Weird and disconcerting"
We're back in that ballroom with the earnest telephone company folks, and the talk has turned to war. World War II, to be precise. Maybe it's that there's another 50-year commemoration today that is splashed all over US TV screens and front pages. It happens to be a convenient meta-phor for those to whom rhetoric comes naturally.First meet Don Haines, a lawyer for the American Civil Liberties Union, which continues to oppose the wiretap bill all the way. Haines, a teddy-bearish man who looks agreeable enough, is probably the only one here who is not merely concerned about the issues discussed; truth be told, he's furious.
I discover this when I introduce myself during a coffee break. Before his cup even hits the saucer, he's muttering angrily about the disgrace being concocted here, at the telephone industry's wiretap workshop, where everyone is scrambling to find out how to implement the technical changes the Digital Telephony Bill requires.
The situation reminds Haines of the war because, he says, "These proceedings are like discussing whether the Japanese internment camps should have inside or outside plumbing - what we should be talking about is the desirability of those camps to begin with. I find this incredibly weird. Weird and disconcerting. Why doesn't anyone stand up and say, 'Can't we undo this?'"
What does he expect, I inquire. After all, isn't the wiretap bill a fait accompli?
"That's what they all think, isn't it?" he says. "Well, the money for the bill, $500 million, has been authorised, but not appropriated yet. That is a whole different political process. As far as I know, everyone - the ACLU, EPIC, EFF, CDT - is going to oppose appropriation. I believe we have a fair shot at stopping it; remember, Congress is in a budget-cutting mood. Maybe I can draw some attention to those facts here. Other than that," he adds, cracking a smile, "just consider my presence a bit of non-electronic surveillance."
I feel I have to push him a little; even the devil gets an advocate. Listen, I tell the ACLU man: The first version of the new wiretap bill was horrendous, no doubt about it. Then the EFF and Leahy and Edwards made it a lot less so. That's a real result, which, maybe, beats churning out high-minded press releases and opinion pieces in newspapers bemoaning any form of effective compromise.
Haines sighs: "But you've got to understand how radical this law is. What we're talking about is the federal government requiring an industry to change its product so that the government can spy on the industry's customers more readily. There is no fundamental difference between that demand and the government mandating there should be a tiny camera built into the corner of every computer screen which that they can activate whenever, with the right papers.
"The FBI has said all along that it's not seeking new wiretapping powers, just maintaining current ones. This is a fallacy, and here's why. Up to now, it had the ability to wiretap, because that's how the world developed. No one said a century ago, 'We want to make sure our government police force has the ability to eavesdrop on our conversations, so we should design our communication lines so they can do that.' Reversing that precedent is just so totalitarian - it's incredibly, profoundly unconstitutional."
The other beef Haines has is that obtaining a court order to wiretap may sound impressive, but it's probably a paper tiger. He doesn't know of one single case of a federal judge turning down an FBI wiretap request in the last six years. "That can mean two things," Haines muses: "Either the judge is always impressed with the officers' impeccable homework and can never find any reason to deny the request, or law-enforcement successfully seeks out those judges most likely to sign."
The same cannot be said for the effectiveness of the wiretaps themselves, argues Haines's colleague Barry Steinhardt, associate director of the national ACLU at the organisation's headquarters in New York City. "There are about 1,000 wiretaps each year," he says. "Only a small percentage of them result in convictions. Secondly, in order for a law-enforcement agency to obtain a wiretap, it has to have some evidence a crime is being committed. And thirdly, wiretaps have been applied primarily in cases of 'lifestyle' crimes: drugs, gambling, and prostitution. Now, those are felonies that perhaps shouldn't be considered crimes at all. But even if you want to go after those kinds of law-breakers, there's a big difference between saying to the American people, 'We need to be able to wiretap so we can catch terrorists and serial bombers,' and 'We want the potential to violate your privacy because we're looking for a bookie or a prostitute.' The first approach would probably generate considerable support - certainly after Oklahoma City - but I'm sure the more truthful second approach would not.
Back at the conference, Alan McDonald, too, talks of the war. He's not worrying about internment camps. He's remembering Pearl Harbor. "What American forces accomplished in a relatively short time is amazing," intones the lawyer for the FBI's Information Division in an improvised speech. "This was after we had part of our fleet destroyed, at a time when there was little domestic harmony. Back then, we coped beautifully with what seemed like insurmountable problems, and we came out on top. I think the lesson should be this: If we all work together and give our utmost, we can do it, and we can do it quickly."
He is, of course, not referring to any bold battlefield action he expects of his audience; McDonald is just telling the phone companies again, in an admonition disguised as faint praise and fiery pep talk, that now is the time to start redesigning their software and hardware. You'll be rewarded for your efforts with a nice fat carrot of half a billion dollars, he's saying. Now get to work and make it snappy.
A copy for a datacop
The morning of my interview with Jim Kallstrom, the FBI's assistant director dealing with DigiTel, a friend sends me an article from the San Jose Mercury News. It reads, in part:"As the US Senate debates granting the Federal Bureau of Investigation new powers to wiretap personal communications, three West Coast computer programmers have planned their own pre-emptive strike: a free program, distributed on the Internet, that renders legal and illegal wiretaps useless. The programmers, Bill Dorsey of Los Altos, California, Pat Mullarkey of Bellevue, Washington, and Paul Rubin of Milpitas, California, plan to release today a program that turns ordinary IBM-compatible personal computers into an untappable secure telephone. It uses an encryption algorithm called 'triple-DES' that is widely believed to be unbreakable."
When I mention the piece to Kallstrom, whose most distinguishing feature is oversized earlobes - oddly appropriate for a wiretap buff - he asks to make a photocopy. We both smile, appreciating the humour of the situation: I've barely been in this datacop's office for 10 minutes, and I'm already being asked to turn over my information. It's a nice little icebreaker, and now seems like a good time to bring up Digital Telephony's twin brother: encryption. One is almost useless without the other. After all, what good is the ability to wiretap phone and data lines if the signal you intercept is electronically garbled? Unless, of course, you also have codes that let you ungarble anything that anybody zaps over that wire.
The Clinton administration's 1993 Clipper Chip proposal (see coverage in US Wired 2.04, 2.06, 2.09, and 3.11) met with so much resistance that the plan was eventually dropped - hastened by the fact that a scientist at AT&T Bell Labs had found a flaw in the prototype of the Clipper's supposedly ultra-safe design. But the issue is not about to go away. Louis Freeh was walking the fine line between concern and cynicism last April when he urged lawmakers to understand that "the FBI cannot and should not tolerate any individuals or groups that would kill innocent Americans, that would kill America's kids." Congress, said Freeh, should think about what it means that "encryption capabilities are available to criminals and terrorists."
I ask Kallstrom what he thought when privacy groups and other adversaries torpedoed Clipper in 1994. He shrugs. "We knew right from the beginning that the Clipper Chip wasn't going to be universally adopted by the whole country and by all computer makers. It was only the first attempt to show that this kind of thing could work."
Kallstrom says he doesn't know whether or not government-controlled encryption is unavoidable. "It's a function of how much cooperation we get from the main players in technology - the Microsofts and the Lotuses and so on. I can tell you right now there are a lot of people in private industry, people in Fortune 500 companies, who want key escrow, because they don't want some disgruntled employee selling all of their trade secrets down the tubes."
Is Kallstrom implying that Microsoft and IBM are pining for an encryption scheme to which government officials, by law, hold the key? It seems like a specious argument. Why wouldn't big businesses be capable of using their own watertight, carefully guarded encryption, and prefer that the keys remain entirely within the company? Kallstrom will only say that "without some public policy, we're going to get less information. I'll give you that. Anyway, the debate is ongoing in Congress, in this administration and within the business community. How that will fall out, I don't know."
How does the assistant director feel about reports by the Bureau of Justice Statistics that say roughly 3 out of 4 Americans are against wiretapping, a figure that has remained steady for the last 20 years? "I don't believe those polls. You can construct a poll to get any answer you want," says Kallstrom. True - but this was a survey published by his employer, the Department of Justice. Surely it should be given some consideration?
"No it wasn't," Kallstrom barks. "You're quoting some USA Today or EFF poll or something. It's just total nonsense. Somebody is interpreting numbers for their own political purposes." This isn't going so well. But before we move on to other topics, here's the origin of my data: Sourcebook of Criminal Justice Statistics, US Department of Justice, 1992. The question pollsters asked: "Everything considered, would you say that you approve or disapprove of wiretapping?"
Was Kallstrom surprised by the asser-tion of the General Services Administration - the largest non-military purchaser of telecommunications equipment in the federal government - that the FBI wiretap plan would in fact make it easier for hackers and criminals to penetrate the phone network and snoop around? It's another one of his not-so-favourite subjects. "They don't know what they're talking about," he sneers. "It's stupidity. You can quote me. It's just stupidity. Whoever said that is not aware of the facts."
But, I say, the same point was made by the Electronic Privacy Information Center. The centre maintains that implementing Digital Telephony is like "cutting a door into a wall where no previous opening existed." No dice.
"Nonsense," says Kallstrom. "Look, that assumes we're hacking our way in, that we've built some vulnerability into the technology so that we can come in through the back door. In fact, the way this bill is written you can't get in there without someone inside, someone in a small group of phone company security people who have access to the software. We don't do this remotely. We don't sit at a computer and access the central office switch. We bring a court order to the phone company, and only the people who work there and have been designated to enable the [wiretaps] can route the content out to us over our leased line. Again, we're not hacking our way into the network."
Among the captivating reading on the way back to my hotel is New York's Daily News: "The FBI has kept tabs on a Brooklyn-based Haitian newspaper, immi-grant support groups, and even a student exchange programme...." The surprising in-formation comes on the heels of the News's revelation that the FBI was secretly spy-ing on ACT UP and other AIDS advocacy groups.
Hmmm. Kallstrom had just told me that he did not understand what the opposition to Digital Telephony and Clipper was about. "Unless you're a criminal, you have nothing to fear from the government," he'd said. That was obviously a belief he held dear. Still - I wondered if student exchange programmes and gay-rights groups really foster the "criminals and terrorists which would kill innocent Americans, kill America's kids." Kallstrom claims that the ACT UP file is of an "administrative," not an "investigative" nature, and that the FBI has neither infiltrated the group nor wiretapped its phones. "Maybe we shouldn't call it a file at all," he says, exasperated, pondering the somewhat intimidating connotationof the word. "Maybe we should call it a banana."
Media dud
Perhaps the Exon Decency Act, the first all-out attempt to censor online communications, roused passions all around not just because of its boldness. It may also have struck a nerve with a lot of people because it had the advantage of clarity. The gist of the Exon bill can be given in a few sentences. That, along with the bill's content and scope, perhaps explains why newspapers and TV stations across the country covered it fairly extensively. The Digital Telephony Bill, by comparison, was a total media dud. Relatively few people heard about the new wiretap law, because reporters and editors, by and large, found the bill and its implications too complicated and unwieldy to explain in a few easy-to-understand paragraphs.Andre Bacard, author of The Computer Privacy Handbook (Peachpit Press, 1995), believes that the story of the Digital Telephony Bill "should be on the front of every newspaper and magazine in the country, because here is a law that attacks the core of our democracy."
Bacard got his wish, if belatedly. Last November, almost 13 months after the passage of the Digital Telephony Bill, the news media caught on to the fact that something strange and odious had happened. "FBI Wants Advanced System to Vastly Increase Wiretapping," read the front page of The New York Times. Its cyberspace correspondent, John Markoff, reported that a proposed new national wiretapping system "of unprecedented size and scope" would give government the capacity "to monitor simultaneously as many as one out of every 100 phone lines in some high-crime areas in the country." (The estimate was later scaled back to one out of 1,000.) Apparently, the FBI was ready to utilise the powersit had been given under the wiretap bill - and then some.
Those who find the Digital Telephony dispute a bit too high-minded - an argument over whose principles are superior - might want to focus instead on a more mundane component of the issue: money. According to the bill, phone companies will receive up to half a billion dollars over a four-year period to pay for the required changes (appropriation still pending). "That's an enormous price tag for the potential return of being able to prosecute a few dozen extra cases each year," says Blaise Liffick, the mid-Atlantic director of Computer Professionals for Social Responsibility, a group that opposes funding for Digital Telephony. "Especially when you consider that even law enforcement agencies admit that the efficacy of wiretapping is quite low, and that often the information gleaned could have been obtained in some other, more standard, investigative way."
Already, wiretaps are expensive. Numbers released by the Administrative Office of the United States Courts show that the average tap costs $49,478 (£31,717). For federal wiretaps, the price tag rises to $66,783 (£42,810).
But it gets worse: the proposed half-a-billion sum may not be enough. Since communications technology is constantly changing, and the implementation standards for DigiTel remain under discussion, experts say the eventual cost could run into the billions.
"Law enforcement thinks that the problem won't exist in five years, that the networks will be properly modified," says Roy Neel, president of the United States Telephone Association. "Well, they ought to think again. The phone companies will introduce technologies in the future that don't even exist today. Those need to be made wiretap-friendly also, and who's going to pay for that when the money runs out? Are we going to charge our customers for the privilege of having their phones tapped?"
The other thing that concerns Neel is that the Digital Telephony Bill may hamper technological development. No phone company is going to invest in new gear without the federal government giving it the green light. The vague funding mechanism makes it difficult to understand why Congress voted for a law whose financial consequencesit could not possibly predict. "I don't know either," concedes Neel. "But I can tell you it's done every day."
Jerry Berman is equally glum. "The Digital Telephony Bill passed on the final day of the 1994 Congress. The number of bills that got to the floor was staggering. You and I know a lot more about DigiTel than just about anybody who voted on it in Congress. There's not much rationality to the process."
Could the Digital Telephony Bill have been prevented? It's now a moot question. Says EFF board member John Gilmore: "Bad bills exist. Members of Congress will introduce them. Administrations will push them. They will get enacted no matter how stupid they are or no matter how much they hurt society."
Gilmore believes that, given the deep divisions in society about what makes good law and bad law, "the best we can do is to make it harder for governmentto do anything." Then, he says, "it can at most be inept - even if it's completely malevolent."
Rogier van Bakel (rogier@li.com) is a writer in Connecticut. His most recent story for Wired was about Dan Hurley, the 60-second novelist).
For further information, check out:
The American Civil Liberties Union. For excellent background on wiretap law, gopher://aclu.org:6601/.
HotWired. Check out the privacy archive for more dope on DigiTel and other Congressional shenanigans at www.hotwired.com/Lib/Privacy/.