Ch3a Wiretapping

1. Ch3a Wiretapping Miller CSC309

2. 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. Miller CSC309

3. 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. Miller CSC309

4. 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. Miller CSC309

5. Wiretapping (Cont.) The first legal wiretapping and electronic surveillance by law enforcement (court order needed) was approved by congress in 1968. Miller CSC309

6. 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. Miller CSC309

7. 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. Miller CSC309

8. 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. Miller CSC309

9. 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. Miller CSC309

10. 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. Miller CSC309

11. 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. Miller CSC309

12. CALEA The communication industry and privacy groups fought expanding the FBI’s 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. Miller CSC309

13. 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." Miller CSC309

14. 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. Miller CSC309

15. 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. Miller CSC309

16. 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. Miller CSC309

17. 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” Miller CSC309

18. Wiretapping Statistics Requests for a wiretap order are almost always approved. 1990-1999: 10,849 applications approved 1990-1999: 2 applications denied Miller CSC309

19. 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.) Miller CSC309

20. 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 Miller CSC309

21. By The Rules? May, 2002, the FISC rebuffed then-Attorney General 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 Miller CSC309

22. 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. Miller CSC309

23. 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. Miller CSC309

24. 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. Miller CSC309

25. 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. Miller CSC309

26. 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. Miller CSC309

27. 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. Miller CSC309

28. 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. Miller CSC309

29. 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”. Miller CSC309

30. 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. Miller CSC309

31. 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. Miller CSC309

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33. 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. Miller CSC309