Ch3a Wiretapping

1/20/02 CSC309 MillerMiller CSC309 1

Ch3a Wiretapping


Tap Or Not to Tap

Advances in technology are rapidly making traditional wiretaps obsolete.

FBI interested in maintaining the ability to wiretap granted by law by requiring that wiretap capabilities be built into new systems.

Concerns raised about competitiveness,privacy, and technological abuse.


Wiretapping

Long controversy here. When there were phone operators making all the connections and party lines there were lots of privacy questions raised. Wiretapping was widely used by law-enforcement agencies, businesses, private detectives, political candidates, and others.

In 1928 the Supreme Court ruled that it was not unconstitutional but could be banned by Congress.


Wiretapping (Cont.)

In 1934 Congress passed the Federal Communications Act that prohibited any person not authorized by the sender from intercepting and divulging a message. No exception was made for law enforcement who kept on wiretapping.


Wiretapping (Cont.)

The first legal wiretapping and electronic surveillance by law enforcement (court order needed) was approved by congress in 1968.


Wiretapping (Cont.)

In order to obtain permission to wire tap law enforcement needed to demonstrate probable cause that the subject under investigation is committing some specific, serious, felony and communications concerning the offense will be obtained through the intercepts.


Wiretapping (Cont.)

Before issuing a court order, a judge must review a lengthy affidavit that sets forth all the evidence and agree with the assertions contained there in. The affidavit must alsodemonstrate that other investigative techniques have been tried without success, or won't work, or would be too dangerous.


Wiretapping (Cont.)

The Electronic Communications Privacy Act of 1986 extended 1968 wire tapping regulations to electronic communication including fax transmissions, e-mail, cordless and cellular phones, and paging devices.


What’s Different?The stakes are now higher in that when someone does a wiretap they have access to all of the account numbers, Pin's, and passwords we enter when we conduct business transactions. The flip side is that call forwarding, the switch to digital from analog, etc. make wiretaps more difficult to do and many of the techniques that worked with analog signals simply do not work.


Digital Telephony LegislationLaw enforcement agencies have reported technical difficulties in doing taps whentechnologies such as fiber optic transmissions are used. So the government proposed in September of 1992 digital telephony legislation "to ensure law enforcement's continued ability to conduct court-authorized taps."

A version (CALEA) was passed in 1994.


CALEAThe Communications Assistance for LawEnforcement Act of 1994 required telephone companies to rewire their networks and switches to guarantee ready eavesdropping access to law enforcement. This was supposed topreserve law enforcement surveillance capabilities in the face of technological change.What the FBI really wanted was assurance that they could tap any new technology so theywanted to have the final say on the development and deployment of any related new technology.


CALEAThe communication industry and privacygroups fought expanding the FBI’s power.Congress agreed and established minimum functional requirements intended to preservebut not expand law enforcement access to communications, and deferred to industry to develop implementing solutions. Congress also made $500,000,000 available to fund the activity.


Limits on CALEA

A House of Representatives committee report prepared in October 1994 says CALEA's requirements "do not apply to information services such as electronic-mail services; or online services such as CompuServe, Prodigy, America Online or Mead Data; or to Internet service providers."


CALEA/FCC Aug 1999 DecisionThe Federal Communications Commission has ordered the nation's phone companies to modify their systems to provide the FBIwith added surveillance capabilities. The FCC ruled in favor of the government on virtually all issues of privacy concern, including ruling that wireless phone companies must be able to provide the cell site of their customers at the beginning and end of every call, effectively turning cell phones into tracking devices.


CALEA/FCC Aug 1999 DecisionOn packet mode communications, the Commission declined the request that carriers be required to protect the privacy of packet communications that the government is not authorized to intercept. Instead, the Commission asked the industry for more information on the rapidly looming question of surveillance of packet networks. August 27, 1999.


CALEA/FCC Aug 1999 DecisionPartially Rejected

In August of 2000 an Appeals Court upheldthe cell phone tracking requirement but not the FCC's decision ordering carriers to provide added call dialing and signaling information sought by the FBI. The court,also ruled that a full, probable cause-based Title III wiretap order was needed to obtainpackets from which content has not been stripped. This raises doubts about the legality of the FBI's Carnivore.


1999 Wiretapping Statistics

1,350 requests approvedNo request denied1,921 conversations intercepted per wiretap195 people intercepted per wiretap$57,511 per wiretap28.8% of intercepted conversations deemed “incriminating”


Wiretapping Statistics

Requests for a wiretap order are almost always approved.

1990-1999: 10,849 applications approved

1990-1999: 2 applications denied


The United States Foreign Intelligence Surveillance Court

FISC is a U.S. Federal court established by the Foreign Intelligence Surveillance Act (FISA) of 1978. The FISC oversees requests for surveillance warrants against suspected foreign intelligence agents inside the United States by federal police agencies (primarily the F.B.I.)


FISC StatisticsRequests for a FISA warrant (wiretap order):

Through the end of 2004, 18,761 warrantswere granted, while at most five were rejected. Fewer than 200 requests had to be modified before being accepted. The four known rejected requests were all partially granted after being resubmitted for reconsideration by the government. Wikipedia


By The Rules?May, 2002, the FISC rebuffed then-AttorneyGeneral John Ashcroft, releasing an opinion that alleged that FBI and Justice Departmentofficials had "supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh". On December, 2005, the New York Timesreported that the Bush administration had been conducting surveillance against U.S. citizens without the knowledge of the FISC since 2002.Wikipedia


In PracticeCourts throw out evidence obtained in illegalwiretaps.

Tend to authorize taps when some other method has been tried and failed (not all other methods).

Do not enforce the minimization requirements of the law which requires that agents screen calls and turn off recording devices wheneverthe conversation appears to be irrelevant tothe purpose of the tap.


Pen Register/Trap and TracePen registers are surveillance devices that capture the phone numbers dialed on outgoing telephone calls; trap and trace devices capture the numbers identifying incoming calls. They are not supposed to reveal the content of communications. They are not even supposed to identify the parties to a communication or whether a call was connected, only that one phone dialed another phone.


Pen Register/Trap and TraceThese devices were not covered in either the Federal Communications act of 1934 or the Crime Act of 1986. Current law requires the Judge to issue approval for the use of pen register or trap and trace orders whenever the government certifies that the informationto be gathered is “relevant” to an ongoing criminal investigation. Every request has beenapproved. September 11, 2001, triggered a push to extend legislation to cover Internet.


Pen Register and Trap and TraceDevice Usage Statistics

In 1996 U.S. Department of Justice law enforcement agencies obtained 4569 pen registeror trap and trace orders covering the telephonefacilities of 10,520 individuals. The figures for 1995 were 4972 orders covering 11,801 people.

These figures do not include other federal law enforcement agencies or state and local police.


Transactional DataWith a a subpoena law enforcement can gain access to stored transactional data related to local or long distance calls. (No court order required in foreign counterintelligence orinternational terrorism cases)

Real-time tracking information generated in wireless systems is a new type of transactionaldata.


9/23/05 FCCThe Federal Communications Commission (FCC) has issued a 59 page set rules designed to make it easier for police to seek wiretaps.Broadband providers and internet phoneservices have until spring 2007 to comply. Any provider linking with the public telephone network must be wiretap-ready. What remains uncertain is what this CALEA ruling means for companies, universities, not-for-profit organizations, or individuals offering internet access.


9/05New federal wiretapping rules forcing Internet service providers and universities to rewire their networks for FBI surveillance of e-mail and Web browsing are being challenged in court. Telecommunications firms, nonprofit organizations and educators are asking the U.S. Court of Appeals to overturn the new rules that extend the sweep of an 11-year-old surveillance law designed to guarantee police the ability to eavesdrop on telephone calls.


Appeal 6/9/06

Bush administration's plans to force Internet providers to comply with extensive wiretapping rules received a boost on Friday, when a three-judge panel of the U.S. Court of Appeals in Washington, D.C., refused to overturn theInternet surveillance regulations, saying the Federal Communications Commission made a "reasonable policy choice”.


Congress to Rewrite Rules on Wiretapping

June 20, 2008 A deal has been reached to overhaul the rules on the government’s wire-tapping powers and provide what amounts to legal immunity to the phone companies that took part in President Bush’s warrantless eavesdropping program after the Sept. 11 attacks.


Congress to Rewrite Rules on Wiretapping

The deal, expanding the government’s powers in some key respects, would allow intelligence officials to use broad warrants to eavesdrop on foreign targets and conduct emergency wiretaps without court orders on American targets for a week if it is determined important national security information would be lost otherwise.


Normal vs. Electronic SearchWith a search warrant there is a knock and notify requirement (So that the owner can observe the process to assure that his rights are not violated [not to give time to flush the drugs])and if nothing is found they need to go back in get a second search warrant before doing it again.

No notification with electronic and it can go on for years without seeking additional approval.

Ch3a Wiretapping

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