NIGHTLINE: FBI, PRIVACY, AND PROPOSED WIRE-TAPPING LEGISLATION                        (Friday, May 22, 1992)Main Participants:   Ted Koppel (TK - Moderator)   Marc Rotenberg (MR - Computer Professionals for Social Responsibility)   William Sessions (WS - Director, FBI)TK: In these days of encroaching technology, when every transaction,from the purchase of a tie to the withdrawal of twenty dollars from acash machine, is a matter of record, it may be surprising to learnthat technology has given us some added privacy. To find this newboon, look at your telephone. It used to be fair game for wiretapping.Done legally, that requires a court order. But that was the hard part.For the price of a few pieces of wires and clips, human voices werethere for the eavesdropping. That's changing now. The advent of phiberoptics, of digital communication and encryption devices all mean thatwhat we say, what we transmit over the telephone lines, can't easilybe spied upon. Even if you could single out the one phone call amongthousands passing in a phiber optic cable, what you would hear wouldbe a hiss. Voices being transmitted in computer code.  That's goodnews for businesses, who fear industrial spies, and it's welcomed bytelephone users anywhere, who want to think that what they say into areceiver is protected. But, it's bad news for those whose business itis sometimes to eavesdrop. That includes law enforcement. As DaveMarek reports, it's getting tougher to reach out and wiretap someone.DM: The explosion of new communications technology, e-mail upstagingairmail, fax machines pushing prose into offices, homes, and evenautomobiles, celluar phones that keep us in touch from anywhere toeverywhere, has created a confusing competition of services andcounter-services.(Unseen female voice answering telephone): Who is this please.(Heavy breathing unseen male caller): Why don't you guess?DM: Take that new telephone service called "caller ID." Already mostphone companies now offer a counter-service which blocks caller ID.This is bad news if you're fighting off creep callers. But it's goodnews if you want to block some 900 number service from capturing yournumber on their caller ID screen, and the selling it off to somedirect marketing outfit. But today's biggest communicationscontroversy is about interception services. Tapping telephones used tobe so simple.(Film clips from commercial for adult 900 number and film clips ofwiretapping from film "Three Days of the Condor") with reporter'svoice-over.A snooper needed only a couple of alligator clips and a set ofearphones to hear what was being said. Today's telephones digitalizechatter into computer code. Bundle all those infinitesimal ones andzeros into flashes of light and don't reconstruct them into soundagain until just before the call reaches your ear. This has made phonetapping much tougher.  But still, according to Bell Atlantic executiveKen Pitt (??): There's never yet been an FBI surveillance request aphone company couldn't handle.KP: We have been able to satisfy every single request that they'vemade, not only here at Bell Atlantic, but all across the country.DM: Still, when the FBI looks into the future, it sees trouble.  Itsees criminals like John Gotti becoming able to shield theirincriminating conversations from surveillance and thereby becomingable to defeat law enforcements best evidence.Clifford Fishman:: When you're going after organized crime, and theGotti case is a perfect example, the traditional techniques, visualsurveillance, the paper trail, trying to turn the people who are onthe inside, trying to infiltrate someone into the, uh, organization,they all have built-in difficulties. Witnesses can be killed, they canbe bribed, they can be threatened. Ah, the most effective evidencequite often that a prosecutor can have, the only evidence that can'tbe discredited, that can't be frightened off, are tape recordings ofthe suspects talking to each other, discussing their crimes together,planning their crimes together, committing their crimes together.DM: As FBI Director William Sessions told a Congressional Hearing latelast month:WS: The technology must allow us access, and it must allow us to stayeven with what we now have. Else, we are denied the ability to carryout the responsibility which the Congress of the United States hasgiven us.KP: One of the solutions they've asked for is the simple softwaresolution.DM: This would involve not tapping into individual phone lines, butplanting decoding software into:KP: ....The central offices where the telephone switching's done,where the wires are connected to ((bad audio cut)) ...the computers,and someone, the FBI is saying, "Let's do the switching, let's do thewiretaps with the software."DM: This software solution is already in use. But communicationsexpert Marc Rotenberg says it could lead to future abuses of privacyby creating a surveillance capability:Marc Rotenburg: ...which would allow the agent from a remote keyboard,not in the phone system, not at the target's location, to punch in aphone number and begin recording the contents of the communication.That also's never been done in this country before. It's not toodifferent from what the STAZI (??) attempted to do in East Germany.But the ((one word garbled)) for abuse there would be very hard.DM: Protecting the privacy of ordinary conversation isn't the onlyissue at stake here.Janlori Goldman (ACLU): The privacy rights of ordinary citizens willbe put at risk if the FBI's proposal goes forward. Right now, allkinds of very sensitive information is flowing through thetelecommunications network. A lot of routine banking transactions,people are sending information over computer lines.  ((One wordgarbled)) will be communicating more over the network. And what ishappening is that as the private sector is trying to make systems lessvulnerable, to make them more secure, to develop encryption so thatthese people don't have to worry about sending information through, ifthe FBI's proposal goes forward, those systems will be at great risk.DM: Encryption, or putting communications into unbreakable code,frightens the FBI and the super-secret National Security Agency, whichmonitors communications of all kinds all around the globe.  Like theFBI, the NSA wants total access.  And to assure it, the NSA wants tolimit all American companies to a communications' code system it canbreak. Some people call that "turning back the clock."JG: What we're seeing is an FBI effort to require US industries tobasically reverse progress, and there's no way that internationalcompanies will be following the U.S. trends in this area. If anything,they will surpass us, they will go beyond us, and we will be out ofcompetiveness in the information market.DM: The competition to control and surveil communications spreadsacross all the boarders on the planet and squeezes inside the flickersthat activate a computer's brain. But what makes both the big pictureand the little one so hard to focus is that the rules of thesurveillance game are always changing.  Every time, a newtechnological explosion makes new ways of snooping possible.  I'm DaveMarek for Nightline in Washington.TK: When we come back, we'll be joined by the Director of the FBI,William Sessions, and by an expert in privacy law, Marc Rotenburg.                            ((COMMERCIAL))TK: As Director of the FBI, William Sessions is the point man in thelobbying effort to adjust new technologies so that his agency cancontinue to use telephone wiretaps.  Judge Sessions joins us in ourWashington studios.  Also joining us in Washington is Marc Rotenburg,the Director of the Washington Office of Computer Professionals forSocial Responsibility.  Mr. Rotenburg, who teaches privacy law atGeorgetown University, says that the FBI proposal would invite use ofwiretaps.Judge Sessions, I'd like to begin on a more fundamental point.  As youunderstand better than most, the very underpinning of our system ofjurisprudence is that it's better to let a hundred guilty men go freethan to wrongfully convict one innocent man, so why should the privacyof millions of innocents be in anyway jeopardized by your need to haveaccess to our telephone system?WS: Ted, I think that that question has been fundamentally answered bythe Congress back in 1968 with the Organized Crime Control and SafeStreets Act, when it decided that it's absolutely essential for lawenforcement to have court ordered and court authorized access to ((twowords garbled)) privacy information normally private conversations, ifthey involve criminal conduct.  And the point is that unless you havethat access to criminal conversations, you cannot deal with it in alaw enforcement technique or a law enforcement method.  Therefore,it's essential that you have the ability to tap into thoseconversations.  So, privacy of that kind is not an issue.  Criminalityis.TK: Although, what is currently the case, is that you would berequired on a case-by-case basis, to get a judge to give youpermission to do that.WS: That is absolutely correct. The United States District Judge, whois the person authorized to actually give that consent, must beconvinced that it is absolutely necessary, and that the technique willbe properly used under the law.TK: If you have, therefore, the centralized capacity to do that, let'ssay from FBI headquarters, doesn't that invite abuse?WS: There has been no suggestion that that would ever be contemplatedunder any system. There are necessities of tapping phones that, inconnection with various criminal cases around the country, have manydifferent jurisdictions, from the east to the west.  The point is thata court would authorize the FBI, or other law enforcement agencies, tohave that access.TK:  All right. Mr. Rotenburg, what then is the problem? What then isdifferent from the modality that the FBI uses these days?MR: Well,  Mr. Koppel, I think the critical point, that the 1968 lawwhich Judge Sessions referred to, set down very strict procedures forthe conduct of wire surveillance. And the methods that come fromreading that history, the Congress was very much concerned about thistype of investigative method. They described it as an investigativemethod of last resort. And it's for that reason that the wiresurveillance statute creates so many requirements. Now, the FBI hasput forward a proposal that would permit them to engage in a type ofremote surveillance, in other words, to permit an agent, with awarrant, to presumably type in the telephone number to begin to recorda telephone conversation.  That capability has not previously existedin the United States, and I think that's the reason the proposal is sotroubling.TK: But, if this happens, still, under control of the judge, thetechnical means of doing it may be somewhat changing, but as long as