New Phones Stymie FBI Wiretaps

Legislation proposed by Justice Department would change the way telecommunications equipment is developed in the United States

FOR more than 50 years, wiretapping a telephone has been no more difficult than attaching two clips to a telephone line. Although legal wiretaps in the United States have always required the approval of a judge or magistrate, the actual wiretap has never been a technical problem. Now that is changing, thanks to the same revolution in communications that has made car phones, picture telephones, and fax machines possible.

The only thing a person tapping a digital telephone would hear is the indecipherable hiss and pop of digital bits streaming past. Cellular telephones and fiber-optic communications systems present a would-be wiretapper with an even more difficult task: There isn't any wire to tap.

Although cellular radio calls can be readily listened in on with hand-held scanners, it is nearly impossible to pick up a particular conversation - or monitor a particular telephone - without direct access to the cellular telephone "switch," which is responsible for connecting the radio telephones with the conventional telephone network.

This spring, the Federal Bureau of Investigation (FBI) unveiled legislation that would require telephone companies to include provisions in their equipment for conducting court-ordered wiretaps. But critics of the legislation, including some members of Congress, claim that the proposals would expand the FBI's wiretap authority and place an undue burden on the telecommunications industry.

Both sides agree that if provisions for monitoring communications are not made in the planning stages of new equipment, it may eventually become impossible for law enforcement personnel to conduct wiretaps.

"If the technology is not fixed in the future, I could bring an order [for a wiretap] to the telephone company, and because the technology wasn't designed with our requirement in mind, that person could not [comply with the court order]," says James K. Kalstrom, the FBI's chief of engineering.

The proposed legislation would require the Federal Communications Commission (FCC) to establish standards and features for makers of all electronic communications systems to put into their equipment, require modification of all existing equipment within 180 days, and prohibit the sale or use of any equipment in the US that did not comply. The fine for violating the law would be $10,000 per day.

"The FBI proposal is unprecedented," says Rep. Don Edwards (D) of Calif., chairman of the House Judiciary Subcommittee on Civil and Constitutional Rights and an outspoken critic of the proposal. "It would give the government a role in the design and manufacture of all telecommunications equipment and services."

Equally unprecedented, says Congressman Edwards, is the legislation's breadth: The law would cover every form of electronic communications, including cellular telephones, fiber optics, satellite, microwave, and wires. It would cover electronic mail systems, fax machines, and all networked computer systems. It would also cover all private telephone exchanges - including virtually every office telephone system in the country.

Many civil liberties advocates worry that if the ability to wiretap is specifically built into every phone system, there will be instances of its abuse by unauthorized parties.

Early this year, FBI director William Sessions and Attorney General William Barr met with Sen. Ernest F. Hollings (D) of South Carolina, chairman of the Senate Commerce Committee, and stressed the importance of the proposal for law enforcement.

Modifying the nation's communications systems won't come cheaply. Although the cost of modifying existing phone systems could be as much as $300 million, "We need to think of the costs if we fail to enact this legislation," said Mr. Sessions before a meeting of the Commerce, Justice, State, and Judiciary Subcommittees in April. The legislation would pass the $300 million price-tag along to telephone subscribers, at an estimated cost of 20 cents per line.

But an ad-hoc industry coalition of electronic communications and computer companies has objected not only to the cost, but also to the substance of the FBI's proposal. In addition, they say that FCC licensing of new technology would impede its development and hinder competitiveness abroad.

Earlier this month, a group of 25 trade associations and major companies, including AT&T, GTE, and IBM, sent a letter to Senator Hollings saying that "no legislative solution is necessary." Instead, the companies expressed their willingness to cooperate with the FBI's needs.

FBI officials insist that legislation is necessary. "If we just depend on jaw-boning and waving the flag, there will be pockets, areas, certain places" where technology prevents law enforcement from making a tap, says Mr. Kalstrom, the FBI engineer. "Unless it is mandatory, people will not cooperate."

For example, Kalstrom says, today's cellular telephone systems were not built with the needs of law enforcement in mind. "Some companies have modified their equipment and we can conduct surveillance," he says. But half of the companies in the US haven't, he adds.

Jo-Anne Basile, director of federal relations for the Cellular Telecommunications Industry Association here in Washington, D.C., disagrees.

"There have been problems in some of the big cities because of [limited] capacity," Ms. Basile says. For example, in some cities, cellular operators had to comply with requests for wiretaps by using limited "ports" designed for equipment servicing. Equipment now being installed, though, has greatly expanded wiretap capacity in those areas.

"We believe that legislation is not necessary because we have cooperated in the past, and we intend on cooperating in the future," she adds.

The real danger of the FBI's proposal is that the wiretap provisions built in for use by the FBI could be subverted and used by domestic criminals or commercial spies from foreign countries, says Jerry Berman, director of the Electronic Frontier Foundation, a computer users' protection group in Cambridge, Mass.

"Anytime there is a hearing on computer hackers, computer security, or intrusion into AT&T, there is a discussion that these companies are not doing enough for security.... Now here is a whole proposal saying, 'Let's make our computers more vulnerable.' If you make it more vulnerable for the Bureau, don't you make it more vulnerable for the computer thief?"

Civil liberties advocates also worry that making wiretaps easier will have the effect of encouraging their use - something that the FBI vehemently denies.

"Doing a wiretap has nothing to do with the [technical] ease," says Kalstrom. "It is a long legal process that we must meet trying all other investigations before we can petition the court."

Kalstrom points out the relative ease of doing a wiretap with today's telephone system, then cites the federal "Wiretap Report," which states that there were only 872 court-approved wiretaps nationwide in 1990. "Ease is not the issue... There is a great dedication of manpower and cost," he says.But digital wiretapping has the potential for drastically lowering the personnel requirements and costs associated with this form of electronic surveillance. Computers could listen to the phone calls, sitting a 24 -hour vigil at a low cost compared with the salary of a flesh-and-blood investigator.

"Now we are seeing the development of more effective voice-recognition systems," says Edwards. "Put voice recognition together with remote-access monitoring, and the implications are bracing, to say the least."

Indeed, it seems that the only thing both sides agree on is that digital telephone systems will mean more secure communications for everybody.

"It is extremely easy today to do a wiretap: Anybody with a little bit of knowledge can climb a telephone poll today and wiretap someone's lines," says Kalstrom. "When the digital network goes end-to-end digital, that will preclude amateur night. It's a much safer network from the privacy point of view."