NIGHTLINE: FBI, PRIVACY, AND PROPOSED WIRE-TAPPING LEGISLATION (Friday, May 22, 1992) Main Participants: Ted Koppel (TK - Moderator) Marc Rotenberg (MR - Computer Professionals for Social Responsibility) William Sessions (WS - Director, FBI) TK: In these days of encroaching technology, when every transaction, from the purchase of a tie to the withdrawal of twenty dollars from a cash machine, is a matter of record, it may be surprising to learn that technology has given us some added privacy. To find this new boon, look at your telephone. It used to be fair game for wiretapping. Done legally, that requires a court order. But that was the hard part. For the price of a few pieces of wires and clips, human voices were there for the eavesdropping. That's changing now. The advent of phiber optics, of digital communication and encryption devices all mean that what we say, what we transmit over the telephone lines, can't easily be spied upon. Even if you could single out the one phone call among thousands passing in a phiber optic cable, what you would hear would be a hiss. Voices being transmitted in computer code. That's good news for businesses, who fear industrial spies, and it's welcomed by telephone users anywhere, who want to think that what they say into a receiver is protected. But, it's bad news for those whose business it is sometimes to eavesdrop. That includes law enforcement. As Dave Marek reports, it's getting tougher to reach out and wiretap someone. DM: The explosion of new communications technology, e-mail upstaging airmail, fax machines pushing prose into offices, homes, and even automobiles, celluar phones that keep us in touch from anywhere to everywhere, has created a confusing competition of services and counter-services. (Unseen female voice answering telephone): Who is this please. (Heavy breathing unseen male caller): Why don't you guess? DM: Take that new telephone service called "caller ID." Already most phone companies now offer a counter-service which blocks caller ID. This is bad news if you're fighting off creep callers. But it's good news if you want to block some 900 number service from capturing your number on their caller ID screen, and the selling it off to some direct marketing outfit. But today's biggest communications controversy is about interception services. Tapping telephones used to be so simple. (Film clips from commercial for adult 900 number and film clips of wiretapping from film "Three Days of the Condor") with reporter's voice-over. A snooper needed only a couple of alligator clips and a set of earphones to hear what was being said. Today's telephones digitalize chatter into computer code. Bundle all those infinitesimal ones and zeros into flashes of light and don't reconstruct them into sound again until just before the call reaches your ear. This has made phone tapping much tougher. But still, according to Bell Atlantic executive Ken Pitt (??): There's never yet been an FBI surveillance request a phone company couldn't handle. KP: We have been able to satisfy every single request that they've made, not only here at Bell Atlantic, but all across the country. DM: Still, when the FBI looks into the future, it sees trouble. It sees criminals like John Gotti becoming able to shield their incriminating conversations from surveillance and thereby becoming able to defeat law enforcements best evidence. Clifford Fishman:: When you're going after organized crime, and the Gotti case is a perfect example, the traditional techniques, visual surveillance, the paper trail, trying to turn the people who are on the inside, trying to infiltrate someone into the, uh, organization, they all have built-in difficulties. Witnesses can be killed, they can be bribed, they can be threatened. Ah, the most effective evidence quite often that a prosecutor can have, the only evidence that can't be discredited, that can't be frightened off, are tape recordings of the suspects talking to each other, discussing their crimes together, planning their crimes together, committing their crimes together. DM: As FBI Director William Sessions told a Congressional Hearing late last month: WS: The technology must allow us access, and it must allow us to stay even with what we now have. Else, we are denied the ability to carry out the responsibility which the Congress of the United States has given us. KP: One of the solutions they've asked for is the simple software solution. DM: This would involve not tapping into individual phone lines, but planting decoding software into: KP: ....The central offices where the telephone switching's done, where the wires are connected to ((bad audio cut)) ...the computers, and someone, the FBI is saying, "Let's do the switching, let's do the wiretaps with the software." DM: This software solution is already in use. But communications expert Marc Rotenberg says it could lead to future abuses of privacy by creating a surveillance capability: Marc Rotenburg: ...which would allow the agent from a remote keyboard, not in the phone system, not at the target's location, to punch in a phone number and begin recording the contents of the communication. That also's never been done in this country before. It's not too different from what the STAZI (??) attempted to do in East Germany. But the ((one word garbled)) for abuse there would be very hard. DM: Protecting the privacy of ordinary conversation isn't the only issue at stake here. Janlori Goldman (ACLU): The privacy rights of ordinary citizens will be put at risk if the FBI's proposal goes forward. Right now, all kinds of very sensitive information is flowing through the telecommunications network. A lot of routine banking transactions, people are sending information over computer lines. ((One word garbled)) will be communicating more over the network. And what is happening is that as the private sector is trying to make systems less vulnerable, to make them more secure, to develop encryption so that these people don't have to worry about sending information through, if the FBI's proposal goes forward, those systems will be at great risk. DM: Encryption, or putting communications into unbreakable code, frightens the FBI and the super-secret National Security Agency, which monitors communications of all kinds all around the globe. Like the FBI, the NSA wants total access. And to assure it, the NSA wants to limit all American companies to a communications' code system it can break. Some people call that "turning back the clock." JG: What we're seeing is an FBI effort to require US industries to basically reverse progress, and there's no way that international companies will be following the U.S. trends in this area. If anything, they will surpass us, they will go beyond us, and we will be out of competiveness in the information market. DM: The competition to control and surveil communications spreads across all the boarders on the planet and squeezes inside the flickers that activate a computer's brain. But what makes both the big picture and the little one so hard to focus is that the rules of the surveillance game are always changing. Every time, a new technological explosion makes new ways of snooping possible. I'm Dave Marek for Nightline in Washington. TK: When we come back, we'll be joined by the Director of the FBI, William Sessions, and by an expert in privacy law, Marc Rotenburg. ((COMMERCIAL)) TK: As Director of the FBI, William Sessions is the point man in the lobbying effort to adjust new technologies so that his agency can continue to use telephone wiretaps. Judge Sessions joins us in our Washington studios. Also joining us in Washington is Marc Rotenburg, the Director of the Washington Office of Computer Professionals for Social Responsibility. Mr. Rotenburg, who teaches privacy law at Georgetown University, says that the FBI proposal would invite use of wiretaps. Judge Sessions, I'd like to begin on a more fundamental point. As you understand better than most, the very underpinning of our system of jurisprudence is that it's better to let a hundred guilty men go free than to wrongfully convict one innocent man, so why should the privacy of millions of innocents be in anyway jeopardized by your need to have access to our telephone system? WS: Ted, I think that that question has been fundamentally answered by the Congress back in 1968 with the Organized Crime Control and Safe Streets Act, when it decided that it's absolutely essential for law enforcement to have court ordered and court authorized access to ((two words garbled)) privacy information normally private conversations, if they involve criminal conduct. And the point is that unless you have that access to criminal conversations, you cannot deal with it in a law enforcement technique or a law enforcement method. Therefore, it's essential that you have the ability to tap into those conversations. So, privacy of that kind is not an issue. Criminality is. TK: Although, what is currently the case, is that you would be required on a case-by-case basis, to get a judge to give you permission to do that. WS: That is absolutely correct. The United States District Judge, who is the person authorized to actually give that consent, must be convinced that it is absolutely necessary, and that the technique will be properly used under the law. TK: If you have, therefore, the centralized capacity to do that, let's say from FBI headquarters, doesn't that invite abuse? WS: There has been no suggestion that that would ever be contemplated under any system. There are necessities of tapping phones that, in connection with various criminal cases around the country, have many different jurisdictions, from the east to the west. The point is that a court would authorize the FBI, or other law enforcement agencies, to have that access. TK: All right. Mr. Rote...
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