January 01, 1994

The Digital Telephony Legislation

3 min

The Digital Telephony Legislation

By: Thomas J. Cooper

Ironically, in light of the end of the Cold War, the Administration has developed an enhanced interest in electronic surveillance in response to rapid technological progress in telecommunications and the use of personal computers in connection with the commercial telephone system. Certain agencies, notably, the Federal Bureau of Investigation ("FBI") and the National Security Agency are concerned that their capabilities for electronic surveillance have diminished in the face of rapid technological advances.

One manifestation of this interest has been the Administration's espousal of the Clipper Chip, which amounts to a Government sponsored surveillance - friendly encryption technology. The Administration's intention is that the Clipper Chip and its various manifestations will become, in effect, a standard technology, which due to the U.S. Government's vast market power will be adopted by American manufacturers.

One other manifestation of the Administration's policy regarding enhanced electronic surveillance is certain digital telephony legislation. This particular legislation has not yet been introduced in Congress and has already encountered unfavorable reviews. It has, however, been formally transmitted to Congress.

It was drafted by lawyers at the FBI. The Director of the FBI has indicated that this legislation is a serious priority for the FBI.

The stated specific aim of the bill is to statutorily mandate the assistance of the telephone operating companies to provide capabilities sufficient to permit the government to conduct electronic surveillance and certain specialized surveillance activities. The second category of activities is the surveillance of origination and destination information for wire and electronic communications. An example of this type of surveillance would be the disclosure of numbers called from a particular telephone number.

This latter activity is referred to in the legislation as setup information. This type of surveillance has significance for a wide array of activities in light of the increasing use of the telephone system in conjunction with personal computers.

The bill obligates the telephone common carriers to provide "capabilities and capacities "in order to permit the Government to conduct electronic surveillance in an effective manner. The legislation specifically tasks the common carriers to provide the Government with the ability to intercept the content of communications and to "acquire call setup information concurrent with the transmission of communications to or from the subscriber's facility of service that is the subject of the court order or lawful authorization".

The common carriers are charged to consult with "providers" of support services and telecommunications equipment manufacturers to identify any service or equipment, including hardware and software that may require modification so as to permit compliance with the legislation. Telecommunication equipment manufacturers are obliged to provide common carriers on a priority basis, and at a reasonable cost, with any support service or equipment, including hardware or software, which may be required so as to permit compliance with the bill.

The legislation, as currently drafted is extremely broad and could include within its scope the manufacture of network boards and modems. The measure should, therefore, be of concern to the entire electronics industry.

The Director of the FBI testified in support of the draft bill on March 18. Roy Neel, President of the United States Telephone Association, gave testimony on behalf of telephone companies in which he criticized the proposal and questioned the need for legislation. While the bill is supported by the White House, as of March 28 it had not been sponsored by any legislator.