Ch3a Wiretapping

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Ch3a Wiretapping
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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.
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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.
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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.
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Wiretapping (Cont.)
The first legal wiretapping and electronic
surveillance by law enforcement (court order
needed) was approved by congress in 1968.
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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.
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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
also demonstrate that other investigative
techniques have been tried without success, or
won't work, or would be too dangerous.
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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.
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Whats 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.
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Digital Telephony Legislation
Law enforcement agencies have reported technical
difficulties in doing taps when technologies 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.
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CALEA
The Communications Assistance for Law Enforcement
Act of 1994 required telephone companies to
rewire their networks and switches to guarantee
ready eavesdropping access to law enforcement.
This was supposed to preserve 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 they wanted to have the final say
on the development and deployment of any related
new technology.
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CALEA
The communication industry and privacy groups
fought expanding the FBIs power. Congress agreed
and established minimum functional requirements
intended to preserve but 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.
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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."
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CALEA/FCC Aug 1999 Decision
The Federal Communications Commission has
ordered the nation's phone companies to modify
their systems to provide the FBI with 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.
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CALEA/FCC Aug 1999 Decision
On 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.
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CALEA/FCC Aug 1999 DecisionPartially Rejected
In August of 2000 an Appeals Court upheld the
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 obtain packets from which
content has not been stripped. This raises
doubts about the legality of the FBI's
Carnivore.  
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1999 Wiretapping Statistics
1,350 requests approved No request denied 1,921
conversations intercepted per wiretap 195 people
intercepted per wiretap 57,511 per wiretap 28.8
of intercepted conversations deemed
incriminating
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Wiretapping Statistics
Requests for a wiretap order are almost always
approved. 1990-1999 10,849 applications
approved 1990-1999 2 applications denied
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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.)
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FISC Statistics
Requests for a FISA warrant (wiretap
order) Through the end of 2004, 18,761
warrants were 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
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By The Rules?
May, 2002, the FISC rebuffed then-Attorney Genera
l John Ashcroft, releasing an opinion that
alleged that FBI and Justice Department officials
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 Times reported that the Bush
administration had been conducting surveillance
against U.S. citizens without the knowledge of
the FISC since 2002. Wikipedia
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In Practice
Courts throw out evidence obtained in
illegal wiretaps. 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 whenever the conversation
appears to be irrelevant to the purpose of the
tap.
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Pen Register/Trap and Trace
Pen 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.
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Pen Register/Trap and Trace
These 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 information to be gathered is
relevant to an ongoing criminal investigation.
Every request has been approved. September 11,
2001, triggered a push to extend legislation to
cover Internet.
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Pen Register and Trap and TraceDevice Usage
Statistics
In 1996 U.S. Department of Justice law
enforcement agencies obtained 4569 pen
register or trap and trace orders covering the
telephone facilities 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.
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Transactional Data
With 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
or international terrorism cases) Real-time
tracking information generated in wireless
systems is a new type of transactional data.
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9/23/05 FCC
The 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 phone services 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.
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9/05
New 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.
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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
the Internet surveillance regulations, saying the
Federal Communications Commission made a
"reasonable policy choice.
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Congress to Rewrite Rules on Wiretapping
June 20, 2008 A deal has been reached to
overhaul the rules on the governments
wire- tapping powers and provide what amounts to
legal immunity to the phone companies that took
part in President Bushs warrantless
eavesdropping program after the Sept. 11
attacks.
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Congress to Rewrite Rules on Wiretapping
The deal, expanding the governments 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.
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(No Transcript)
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Normal vs. Electronic Search
With 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.