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The Digital Telephony Legislation
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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 ncryption 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 uthorization".

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. 


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