from:http://www.aci.net/kalliste/ Click Here: <A HREF="http://www.aci.net/kalliste/">The Home Page of J. Orlin Grabbe</A> ----- Big Brother FBI These Wires Were Made for Tapping It's okay. The FBI just wants to catch terrorists, child pornographers, and spies. (Recruitment is down.) A new government-approved standard for telecommunications equipment violates the Fourth Amendment's prohibition against unreasonable searches and seizures, critics say. The standard, released in updated form last week by the Telecommunication Industry Association, instructs telecommunications hardware manufacturers on how to build their equipment so that it complies with a federal wiretap law passed by Congress in 1994. The Communications Assistance for Law Enforcement Act was created to help law enforcement officials conduct wiretapping operations involving digital equipment and networks. "The whole idea of CALEA was for the FBI to be able to continue to conduct the surveillance that they could do on the old telephone networks," said Derek Khlopin, regulatory counsel for the TIA. CALEA mandates that telecom carriers make their systems capable of tracking calls placed through their networks, Khlopin said. The law provides a safe harbor for carriers whose systems adhere to industry-created and government-approved standards for CALEA-compliance. After consulting with industry, law enforcement, and privacy groups, the Federal Communications Commission approved the telecommunication industry's standard. But the American Civil Liberties Union, the Electronic Frontier Foundation, and the Electronic Privacy Information Center brought suit against the FCC this spring, alleging that the commission's treatment of packet-mode communications is unconstitutional. Packet-mode networks transmit voice or data messages by breaking them up into small envelopes called packets. Packets of diverse origins and destinations can share one line. By contrast, circuit-mode communications rely on a two-way pipe that stays open. Although CALEA specifically exempts Net-based services, the Internet, with its reliance on TCP/IP, is a packet-mode network. The lawsuit arose in part because in packet-mode communications, it is not possible to separate the call-identifying data -- origin, time/date information, and destination -- from the content of the call itself. (This separation can be made in circuit-mode communications.) The distinction seems subtle, but is an important one given the legal standard that law enforcement must prove in order to get a wiretap warrant, said David Sobel, EPIC's general counsel. Getting access to call-identifying information is easy, he said. Law enforcement officers only have to show that they need the data and that it is relevant to an ongoing criminal investigation. But getting at the contents of a call is a different matter, he said. A judge won't grant a warrant unless the cops can show that the call is related to a specific crime, that they have "probable cause" to believe that a crime is or will be committed by the person making the call, and that the warrant will be effectual in getting communications related to the crime. The FCC's action, he said, eliminated the higher standard by requiring that all packet-mode communications be turned over to law enforcement. "Armed with this lesser order, they're going to get the full content of packet-mode communications because the call-identifying and the content information are both in the same packet," Sobel said. "So you have to trust that they're going to strip out the call-ID information and ignore the content. "To give the government access to private communications under a standard of less than probable cause is a violation of the Fourth Amendment." The lawsuit is still pending a decision by the Federal Circuit. But an FCC official said that although the FCC's order requires that all packet-mode communications be turned over upon a court order, the FBI can use only the data they have a warrant for. "They're supposed to discard the content information," said the official, asked not to be identified. But he added that with call-identifying information and call content mixed in one packet, "that seems hard to do." The FCC's justification for the order relies on good faith by law enforcement and the watchful eyes of the courts to toss out illegally obtained evidence. "We recognize that the solution we have crafted above is not perfect because a (law enforcement agency) may receive both call-identifying information and call content under a (lower standard)," the commission wrote in its report. "We note, however, that independent legal barriers exist which will protect, to a certain extent, the privacy rights of individuals until a permanent solution is developed." Because of the uncertainty, the FBI and the Department of Justice have made it a policy to always seek a higher standard when getting warrants for packet-mode networks, said Mike Warren, senior project manager for CALEA implementation at the FBI. "The information that we receive outside the scope of the warrant can't be used," Warren said. "If it's used, it's illegal." There is no point in doing so because the law enforcement agency ultimately would be unable to use the evidence if it is thrown out by a court, Warren said. Criminal and civil penalties also a deterrent, he said. "In most cases, we support only receiving the information that we are allowed to receive by the order," Warren said. But the ACLU, EFF, and EPIC maintain that the FCC's approach offends the Constitution. "An individual's Fourth Amendment rights are violated, however, not when government uses fruits of an illegal search, but rather, when the illegal search occurs," the parties wrote to the court. "The commission cannot rely on a limited remedy for the unconstitutional seizure of evidence to validate an otherwise unconstitutional search. "Such a concept is antithetical to the very purpose of the Fourth Amendment: to prevent government from overstepping its limited powers." The Telecommunications Industry Association is on the hunt for a technical solution to the problem. The trade association's report is due on the commission's desk by September 30, TIA's Khlopin said. "You have a fact-gathering body that is going to report how packet data can be dealt with in the different technologies out there," Khlopin said. "The FCC clearly would rather have the industry and the FBI work things out to the satisfaction of privacy groups." The FCC's decision on the surveillance of packet-mode transmissions is only a temporary measure. The commission's goal is to incorporate some kind of solution into the TIA's standard, the FCC official said. "Currently, the packet-mode requirement doesn't have to be worked into the standard until September 30, 2001," said the FCC official, who worked on the "Third Report and Order" in which the industry standard was approved. "It's a little unclear as to what will happen. It will probably depend on what (TIA's) recommendation is." Programmers, however, are ill-suited to decide thorny legal policy when their expertise is on packets and networks, Khlopin said. The packet-mode issue is not an easy one. "It's extremely tough," Khlopin said. "That's why the FCC has to come in and make those calls." The FBI may have an answer to that problem, Warren said. "That is Carnivore -- that's what Carnivore is about," he said. "Carnivore has the ability to separate content and call identifying information. Privacy experts remain skeptical. The Carnivore system has been under attack by a number of groups who argue that the system takes too much, not too little. "If it's their position that the Carnivore technology provides a way to strip out only what they're allowed to get, why don't they give the technology to the ISP, have the ISP control it and have the ISP give the results to the FBI?" Sobel asked. "Why do they have to control it?" Wired News, August 14, 2000 ----- Aloha, He'Ping, Om, Shalom, Salaam. Em Hotep, Peace Be, All My Relations. Omnia Bona Bonis, Adieu, Adios, Aloha. Amen. Roads End <A HREF="http://www.ctrl.org/">www.ctrl.org</A> DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are unwelcomed. Substance�not soap-boxing�please! These are sordid matters and 'conspiracy theory'�with its many half-truths, mis- directions and outright frauds�is used politically by different groups with major and minor effects spread throughout the spectrum of time and thought. 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