The Electronic Frontier Foundation went to Washington to "reverse-engineer government, hack politics down to its component parts, and fix it." Then it helped pass the FBI's loathsome "let's-just-wiretap-everyone" Digital Telephony Bill. And discovered it was Washington that had reverse-engineered the EFF, driving it into dissension, debt, disgrace - and right out of town.
__"Stunning repudiation"
__
A news item in the Kansas City Star, February 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 an infrequently used tool; for decades, federal wiretap cases 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 prophecies 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 for Law Enforcement Act. Civil libertarians simply speak of 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 (D-Vermont) and Representative Don Edwards (D-California), both held in high regard by privacy proponents, were contacted by an EFF-initiated umbrella organization 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 a version of the bill would be on the table soon.
The resulting draft was partly based on recommendations made by Jerry Berman, then the Electronic Frontier Foundation's chief policy analyst. Stanton McCandlish, the EFF's online services manager, says 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, it saw the writing on the wall. A boldly updated wiretap law seemed unavoidable. The choice, then, was either 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 traffic, 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 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.
- The original bill states that the phone companies, when presented with a court order, have to give law enforcement encrypted messages sent over phone company wires and decrypt them - even if they don't have the key. That provision is about as smart and practical as requiring water utility companies to keep a detailed record of what each user 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 standards for new digital networks. The industry is free to develop its own standards, albeit "in consultation with the Attorney General." In other words, it is public, not the result of unscrutinized backroom dealing.
- The phone industry will be reimbursed for software and equipment modifications required by the bill. The federal government promises to set aside half a billion dollars for this purpose, 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 law, however, remains unchanged. It demands that common carriers - phone companies and competing cable enterprises - make new telecommunications equipment wiretappable. __Support for pragmatism
__
The final legislation, and its near effortless passage in October 1994 (a unanimous Yes in the Senate, only one No vote in the House), caused an uproar among Net cognoscenti. It's true that a slew of Electronic Frontier Foundation fans weighed in with support for the organization'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. Some of these people's worst fears about the capital's corrupting influence seemed to be confirmed. They'd wrung their hands when, in 1992, the EFF moved from Cambridge, Massachusetts, to Washington, DC, arguing it was a bad sign that the group chose to abandon the creative semi-counterculture of Harvard Square for the power-obsessed, backstabbing 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 (R-Wyoming), citing "general concerns," placed a hold on the bill before it could be voted on. It just so happens Wallop is a friend of Barlow.
"Malcolm put a hold on the bill mostly for political reasons," says Barlow, who is also vice chair of the EFF board (Wired President Jane Metcalfe was, at the time, a member 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 type of 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 accuse Barlow 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." Wallop, now retired from politics, did not respond to phone calls or a fax. Other politicians, when asked to comment on their vote for DigiTel, were equally silent.)
In any case, Barlow never made the request. Instead, he dialed into The Well and tried to explain why. "From some of the reactions, you'd think I was the Darth Vader of civil liberties," he recalls. "People don't read all that carefully. If you shoot a whole bunch of ASCII at them, with complex legal stuff in it, many are not going to get it. 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. If you're a purist, you go down to defeat almost every time, and the things you care about ultimately suffer. Maybe your honor 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 evidence 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 organization also helped legitimize 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 in cahoots with robocops and superspooks.
__Why the EFF did it
__
As it turned out, the Beltway reverse-engineered the EFF. For starters, policy director and former executive director Jerry Berman, a dealmaker par excellence whom some outside the organization 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. 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 organization's newfound 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, a lovefest it wasn't. 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 he never negotiated anything without a solid mandate from his colleagues. "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 11 paid staffers to five plus one volunteer.
__The granularity principle
__
Officially, the EFF won't say what happened at that fateful board meeting in July 1994, when it was decided not to oppose the Leahy/Edwards DigiTel legislation on principle but 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 the vote, 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 believes. "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 organizations suck," Caruso intones. "Everyone's somewhere else."
There was, however, another reason why the EFF ultimately didn't Take It to the People. David Johnson, another board member, remembers taking part, a mere few weeks later, in negotiations inside a hearing room on the Hill. He along with EFF lobbyists Berman and Daniel Weitzner were seated at one side of the table, 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 former category, argued the EFF delegation, deserves extra protection from government snoops, because it says much more about the person's interests, opinions, and affiliations than does a list of 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 transactional 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, the EFF not only did a deal with the other side; it allowed its silence to be bought.
__"Fat-cat lobbying machine"
__
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 overdependent on corporate money. The EFF had been developing into an expensive organization, 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 the Digital Telephony nightmare, that we needed to wean ourselves from that corporate nipple in order to maintain our conscience." He 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 the EFF in Washington; that both groups can now "complement" each other. Berman says he's perfectly willing to maintain his working relationship with the 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, 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, the group is in debt to the tune of US$200,000.
And no amount of spin - all right, let's call it positivism - can undo the language that flashed across newsgroups in those final months of 1994. There were snubs and slights from the organization's constituency, and angry charges poisoning bulletin boards. Charges of collaboration, sellout, 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 TV screens and front pages. It happens to be a convenient metaphor 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 teddybearish man who looks agreeable enough, is probably the only one here who is not only concerned about the issues discussed; truth be told, he's just plain mad. I find this out 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. Haines is reminded of the war because, he says, "These proceedings are like discussing whether the Japanese internment camps should have inside or outside plumbing - when 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 authorized, 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 nonelectronic surveillance."
On the stage, Alan McDonald, too, talks of the war. Uses it as a rallying cry. "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.
I have a question for Dan Haines, and I'm not sure if it's me talking, or the devil's advocate I love to impersonate. 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 Op-Ed articles 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 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."
And the effectiveness of the wiretaps is questionable anyway, argues Haines's colleague Barry Steinhardt, associate director of the national ACLU at the organization'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. So why do they even need the wiretap evidence? 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 lawbreakers, 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."
__A copy for a datacop
__
The morning of my interview with Jim Kallstrom, an FBI assistant director, 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 preemptive 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 humor 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 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 ultrasafe design. But the issue is not about to go away. 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 and by all computer makers. It was only the first attempt to show that this kind of thing could work."
Kallstrom 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 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. The debate is ongoing in Congress, in this administration, and in 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 three out of four 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, uh, this was a survey published by his employer, the Department of Justice. "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." (Here's the origin of my data: Sourcebook of Criminal Justice Statistics, US Department of Justice, 1992. The question pollers asked: "Everything considered, would you say that you approve or disapprove of wiretapping?")
Was Kallstrom surprised by the assertion of the General Services Administration - the largest nonmilitary 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-favorite 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 in Washington, DC. The center 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 lease 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, immigrant support groups, and even a student exchange program...." The information comes on the heels of The News's revelation that the FBI was secretly spying on ACT UP and other AIDS advocacy groups.
Hmm. 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 programs 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 connotation of 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 because it had the advantage of clarity. The gist can be given in a few sentences. That 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 unwieldy to explain in a few 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, 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 New York Times's front page. It 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 in 1,000.) Apparently, the FBI was ready to utilize the powers it had been given under the wiretap bill - and then some.
__Keeping tabs on taps
__
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. For federal wiretaps, the price tag is $66,783.
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, 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? 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 having it greenlighted by the government.
The vague funding mechanism makes it difficult to understand why Congress voted for a law whose financial consequences it 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 now 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 is good law and bad law, "the best we can do is to make it harder for government to do anything." Then, he says, "it can at most be inept - even if it's completely malevolent."
