Wiretapping

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The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them upon any subject, and although proper, confidential, and privileged, may be overheard. Moreover, the tapping of one man's telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping.

Justice Louis Brandeis, Olmstead v. United States, 277 U.S. 438 (1928)

News

Electronic Surveillance at an All-Time High. According to a report issued by the Administration Office of the United States Courts, state and federal courts authorized 1,710 interceptions of wire, oral, and electronic communications in 2004, an increase of 19 percent over intercepts approved in 2003 and the greatest number ever authorized in a single year. Federal officials requested 730 intercept applications in 2004, a 26 percent increase over the number requested in 2003. No wiretap applications were denied last year. 2003 and 2004 are the only years that more secret surveillance warrants have been granted than federal wiretap warrants, which are issued only under a more stringent legal standard. (April 29, 2005)
2003 Wiretap Report Released; No Requests Refused. The Administrative Office of the United States Courts has reported that state and federal courts authorized 1,442 interceptions of wire, oral and electronic communications in 2003, an increase of 6 percent over interceptions authorized in 2002. The agency also reported that federal officials requested 578 intercept applications in 2003, a 16 percent increase over those requested in 2002. No wiretap applications were denied last year. Although formal statistics have not yet been released, it is believed that secret foreign intelligence surveillance has increased dramatically during the same period. (April 30, 2004)
U.S. Customs Surveillance Records Lost in 9-11 Attacks. The number of federal and state police authorized wiretaps increased again this year, mostly due to drug investigations. Wired.com reports that the actual number of authorized wiretaps is likely to be higher than reported, since U.S. Customs surveillance records were lost in the destruction of the World Trade Center. It is not clear whether the results of the wiretaps were lost, or whether merely the records from which the reporting would be done--which would skew the results of the annual wiretap reports. (May 25, 2002)
FCC Again Approves FBI's CALEA Requirements. The Federal Communications Commission issued an "Order on Remand" (PDF) on April 11 reinstating the mandated surveillance capabilities that were rejected by the D.C. Circuit Court of Appeals in 2000. (April 16, 2002)
DOJ Issues Guidance on New Surveillance Powers. Within hours of the USA PATRIOT Act being signed into law, the Justice Department issued a field guidance memorandum (PDF) on the new anti-terrorism authorities approved by Congress. The memorandum does not address expanded powers under the Foreign Intelligence Surveillance Act; guidance in that area appears to be classified. Attorney General John Ashcroft announced that he has directed FBI and U.S. Attorney's offices "to begin immediately implementing this sweeping legislation." (Oct. 29, 2001)
Anti-Terrorism Bill Signed Into Law. On October 26, the President signed the USA-PATRIOT Act of 2001 into law. The Senate voted 98-1 to pass the Act, a "compromise" version of the various anti-terrorism bills, on October 25. This final congressional action followed 24 hours after the House voted 357-66 to approve the same version of the bill, based on H.R. 3108 and S. 1510. The final legislation includes a few changes: most notably, a sunset on the electronic surveillance provisions, and an amendment providing judicial oversight of law enforcement's use of the FBI's Carnivore system. However, it retains provisions vastly expanding government investigative authority, especially with respect to the Internet. (Oct. 26, 2001)
Congress Set to Consider Far-Reaching Terrorism Proposal. Congressional committees will hold hearings on Monday and Tuesday to consider broad legislation proposed by the Department of Justice that would, among other things, substantially expand government surveillance powers, including use of the controversial Carnivore Internet monitoring system. EPIC has prepared a detailed analysis of provisions in the proposed Anti-Terrorism Act of 2001 (PDF) that would affect communications and information privacy. EPIC urges Congress to carefully assess the need for new surveillance powers and to draw any possible changes narrowly to protect privacy and constitutional rights. In editorials, newspapers and magazines across the country have also endorsed that approach. (Sept. 24, 2001)
Appeals Court Limits Use of New Surveillance Techniques. The U.S. Court of Appeals for the D.C. Circuit has ruled that law enforcement agencies must meet the highest legal standard before using new surveillance capabilities. The court decision came in a legal challenge filed by EPIC, other privacy groups and the telecommunications industry to invalidate technical surveillance standards issued by the Federal Communications Commission last year. The capabilities, which include cellular phone location tracking and surveillance of "packet mode" data, were ordered implemented by the FCC under the Communications Assistance to Law Enforcement Act (CALEA). Several other technical capabilities were completely rejected by the court.
FBI System Takes a Bite Out of Privacy. The Federal Bureau of Investigation has a rolled out a new system to monitor private communications -- "Carnivore." The first public discussion of the system was contained in Congressional testimony delivered earlier this year. EPIC has filed a Freedom of Information Act request for details. See EPIC's Carnivore Page for declassified FBI documents and other information.
Electronic Surveillance for Criminal, National Security Up in 1999. According to a new report by the Administrative Office of the U.S. Courts, the number of State and Federal requests for wiretaps and bugs increased 2 percent in 1999, to a total of 1,350. Surveillance of new technologies and pagers accounted for over half of all requests. See the EPIC chart of wiretaps, 1968-1999. National Security (FISA) taps were also up in 1999, from 796 in 1998 to 886 in 1999. EPIC chart of FISA Taps, 1979-1999.
Court of Appeals Hears CALEA Case. The U.S. Court of Appeals for the DC Circuit had oral arguments on CALEA on May 18. The court heard from lawyers representing USTA, EPIC, FCC and the FBI. The court is expected to issue its ruling later this year.
Privacy Groups Challenge FBI Wiretap Standards. EPIC, ACLU and EFF have asked a federal appeals court to block new rules that would permit the FBI to dictate the design of the nation's communication infrastructure. The challenged rules would enable the Bureau to track the physical locations of cellular phone users and potentially monitor Internet traffic. The appellate brief (PDF version available) challenges an FCC order implementing the Communications Assistance to Law Enforcement Act (CALEA). See the joint press release for additional information.

The Digital Telephony Law (CALEA)

On the last night of the 1994 session, Congress enacted the Communications Assistance for Law Enforcement Act (CALEA), sometimes called the "Digital Telephony" bill. CALEA requires telephone firms to make it easy to wiretap the nation's communication system. The bill faced strong opposition from industry and civil liberties organizations, but was adopted in the closing hours of Congress after the government offered to pay telephone companies $500,000,000 to make the proposed changes. EPIC opposed passage of the bill and believes that the government has failed to justify the $500,000,000 appropriation required.
As part of the final omnibus funding bill enacted in the last days of the 104th Congress, the Congress approved a provision allowing for funding the digital telephony bill from money reprogrammed from intelligence and law enforcement agencies.

The text of the Communications Assistance for Law Enforcement Act of 1994
Legislative history of the Communications Assistance for Law Enforcement Act (House Report No. 103-827)

Recent Developments

FCC Again Approves FBI's CALEA Requirements. The Federal Communications Commission issued an "Order on Remand" (PDF) on April 11 reinstating the mandated surveillance capabilities that were rejected by the D.C. Circuit Court of Appeals in 2000. (April 16)

Appeals Court Limits Use of New Surveillance Techniques. The U.S. Court of Appeals for the D.C. Circuit has ruled that law enforcement agencies must meet the highest legal standard before using new surveillance capabilities. The court decision came in a legal challenge filed by EPIC, other privacy groups and the telecommunications industry to invalidate technical surveillance standards issued by the Federal Communications Commission last year. The capabilities, which include cellular phone location tracking and surveillance of "packet mode" data, were ordered implemented by the FCC under the Communications Assistance to Law Enforcement Act (CALEA). Several other technical capabilities were completely rejected by the court.

Court of Appeals Hears CALEA Case. The US Court of Appeals for the DC Circuit had oral arguments on CALEA on May 18. The court heard from lawyers representing USTA, EPIC, FCC and the FBI. The court is expected to issue its ruling this summer.

Privacy Groups Challenge FBI Wiretap Standards. EPIC, ACLU and EFF have asked a federal appeals court to block new rules that would permit the FBI to dictate the design of the nation's communication infrastructure. The challenged rules would enable the Bureau to track the physical locations of cellular phone users and potentially monitor Internet traffic. The appellate brief (PDF version available) challenges an FCC order implementing the Communications Assistance to Law Enforcement Act (CALEA). See the joint press release for additional information.

FCC Okays FBI Cell Phone "Location Tracking" Request. In a statement released on October 22,1999, the Federal Communications Commission expressed its initial approval of FBI-proposed technical requirements that would enable law enforcement to determine the location of individuals using cellular telephones. A formal Notice was released on November 5. The Commission rejected other capabilities requested by the Bureau and deferred decisions on other issues, including surveillance of Internet communications. The initial decision came in a proceeding under the controversial Communications Assistance to Law Enforcement Act (CALEA).

FCC Approves FBI Wiretap Standards for Telecom Networks. EPIC has expressed its concern that a Federal Communications Commission (FCC) decision issued on August 27 could result in a significant increase in government interception of digital communications (see FCC press release for summary). In its decision, the FCC largely has adopted technical standards proposed by the Federal Bureau of Investigation (FBI) that would dictate the design of the nation's telecommunications networks. Included is a requirement that cellular telephone networks must have the ability to track the physical location of cell phone users.

EPIC Urges FCC to Protect User Privacy. EPIC, joined by the American Civil Liberties Union and the Electronic Frontier Foundation, has filed formal comments with the Federal Communications Commission urging it to reject FBI-proposed technical requirements that would -- among other things -- enable law enforcement to determine the location of individuals using cellular telephones. Also at issue is surveillance of Internet communications. The comments on implementation of the controversial Communications Assistance to Law Enforcement Act (CALEA) were filed on December 14. In a statement released on October 22, the Commission expressed its initial approval of the FBI proposal. A formal Notice was released on November 5.

Phone Companies Sue FBI Over Wiretapping Law. The U.S. Telephone Association, which represents over 1,200 local phone companies (including the Baby Bells), filed suit on August 19 against the FBI and DOJ over implementation of the Communications Assistance for Law Enforcement Act (CALEA).

Groups Ask FCC to Delay Wiretap Law. Industry and public groups filed petitions on May 8 asking the FCC to delay the implementation of CALEA. Comments filed by EPIC, ACLU & EFF asking for indefinite delay until controversy over standards is resolved.

Wireless Phone Companies Sue FBI for Wiretap Costs. The Cellular Telephone Industry Association and the Personal Communications Industry Association filed a lawsuit on April 27 against the DOJ and FBI. The companies say that the FBI's new regulations on CALEA unlawfully shifts the cost of paying for phone equipment upgrades for wiretapping from the FBI to the telephone companies.

FBI Issues Final Capacity Requirements. The Federal Bureau of Investigation sets out wiretap requirements for the nation's telephone system. Companies are expected to comply by October 1998. EPIC and other cyber-liberties groups have sent a letter to Congress and filed comments with the FCC asking for a review of the Bureau's actions. The groups say the FBI has acted in "bad faith" in seeking to implement a massive wiretapping scheme. Rep. Bob Barr (R-GA) has introduced the CALEA Implementation Amendments of 1998 which would delay implementation until 2000.

EPIC Urges Rejection of FBI Wiretap Initiative. In formal comments filed with the Federal Communications Commission on May 20, EPIC says the FBI's implementation of the Communications Assistance to Law Enforcement Act (CALEA) -- calling for the redesign of the nation's communications network to facilitate surveillance -- threatens fundamental privacy and constitutional rights.

Major Cyber-liberty Groups Call for FCC to Stop Wiretap Law Implementation. EPIC and other major cyber-liberties groups filed comments with the FCC on February 12 asking the FCC to stop implementation of the Communications Assistance for Law Enforcement Act.

EPIC, ACLU File Comments on CALEA. ACLU, EPIC and EFF filed comments with the Federal Communications Commission on December 12 calling for delaying the implementation of CALEA until October 2000.

New Report Reveals EU/FBI Global Surveillance Plans. A newly issued report by Statewatch reveals that the European Union and US FBI have been actively promoting agreements to ensure surveillance of all telecommunications networks. See the Privacy International Phone Tapping page for more information.

Funding Digital Telephony

Text of the 1996 House bill funding the Digital Telephony bill.

EPIC's Oppose Digital Telephony Funding Campaign, 1994.

EPIC's Press Release on campaign to oppose funding of the CALEA.

Comprehensive file of material opposing wiretap funding, including budget documents, testimony of FBI Director Freeh, and a sample letter.

Early Implementation of CALEA

The FBI's proposed rule on procedures for recovery of CALEA-related costs by telecommunications carriers (May 10, 1996) (PDF format).

The FBI's belated report to Congress on annual wiretap expenditures under CALEA.

The FBI's report on the methodology used to produce its estimate of required wiretap capacity .

FBI notice of wiretap capacity requirements., January 1997. FBI press release and coverage from the Washington Post.

EPIC's December 12, 1995, letter to Congress concerning the FBI's failure to produce a statutorily-mandated report on wiretap expenditures.

Federal Register Notice reveals that the FBI expects to simultaneously monitor one percent of all communications in some regions of the country (October 16, 1995) (PDF format)

EPIC's formal comments on the FBI's wiretapping capacity requirements (described above).

FBI Director Freeh's letter to Rep. Henry Hyde on the FBI's wiretapping capacity requirements.

February 23, 1995 Federal Register Notice concerning implementation of the CALEA.

FBI Director Freeh's testimony (3/30/95) on the CALEA and cryptography.

Materials on the Enactment of CALEA

Office of Technology Assessment report "Electronic Surveillance in a Digital Age"

White House document obtained under FOIA shows Approval of President George Bush and the link between digital telephony and the Clipper Chip. (gif file)

EPIC Statement on CALEA enactment, October 1994.

EPIC's FOIA Wiretap Survey Case against the FBI for the surveys allegedly showing the need for the FBI Digital Telephony Proposal.

1992 memos from the General Services Administration (GSA) showing that they opposed the Digital Telephony proposal because it could "adversely affect national security."

Other Wiretap Resources

Administrative Office of the US Courts Wiretap Reports
EPIC's Charts and graphics of Title III federal and state wiretaps and bugs 1968 - 2004.
Chart of number of "national security" taps and bugs authorized by the Foreign Intelligence Surveillance Act of 1978 (1979-2003).
Chart of federal usage of pen registers and trap and trace devices 1987-1998.
Text of the Electronic Communications Privacy Act of 1986.
EPIC's page on Counter-terrorism, including text of Comprehensive Counterterrorism Prevention Act of 1995 and current wiretap expansion proposals.

EPIC Privacy Page | EPIC Home Page

Last Updated: April 29, 2005
Page URL: http://www.epic.org/privacy/wiretap/default.html