By Roberto Suro and Elizabeth Corcoran
As a young federal prosecutor in the mid-1980s, Louis J. Freeh captured Mafia drug kingpins in a vast electronic net of more than 100,000 wiretapped phone conversations and hundreds of computerized bank record searches. Technology was a servant of law enforcement.
Now, barely a decade after the legendary "Pizza Connection" case, FBI Director Freeh is complaining that new technologies often benefit the criminals more than the police.
"The overriding concern now facing law enforcement is how rapidly the threats from terrorists and criminals are changing, particularly in terms of technology," Freeh told Congress earlier this year.
Freeh has argued that the capability to conduct court-authorized electronic surveillance should be built into every telecommunications and computing system from the start. Business leaders counter that law enforcement's overly ambitious demands could prove expensive, technically difficult and damaging to the country's international competitiveness.
These views have become increasingly polarized in recent months, and the confrontation may now be close to a turning point.
Freeh and Attorney General Janet Reno filed papers with the Federal Communications Commission Friday launching a legal battle with the telecommunications industry that is meant to preserve wiretapping capabilities in the digital age.
The law enforcers want the FCC to require industry to build in capability to trace calls as they are routed through complex computer switching. Among other things, this would make it easier to identify all the participants in a conference call. The industry says this upgrade in equipment is too expensive and that its proposed standards meet legal requirements.
And, to avoid a showdown on another sensitive high-tech issue, Vice President Gore is trying to broker talks between the Justice Department and the computer industry over sophisticated data-scrambling technologies that can make computer messages unintelligible to uninvited readers, including investigators with court-issued warrants. While preliminary talks began last weekend, both sides remained armed with backup plans to fight it out in Congress over competing legislative proposals.
Such struggles are something new for law enforcement officials. Until a few years ago, investigators conducting surveillance could confidently approach any telephone system in the country knowing that they merely had to put alligator clips on a copper wire to hear their target's conversations something about as technologically tricky as pinning laundry on a clothesline.
About 1,200 court-ordered criminal wiretaps are conducted every year by federal, state and local authorities, and the number has been rising steadily in recent years, largely as a result of their frequent use in drug-trafficking cases. But investigators addicted to electronic surveillance are now discovering they cannot count on listening in to conspirators, and they are starting to realize that regaining the technological edge may be difficult, if not impossible, simply because more technology is available to more people, including criminals, than ever before.
In addition, businesses are not the compliant ally they once were. The cozy relationships that developed decades ago when monoliths like AT&T and IBM dominated the corporate landscape are not available to the FBI in an era of intense fragmentation and competition in the telecommunications and computer industries.
"The FBI's view was you have an obligation" to guarantee public safety, said Stewart Baker, a Washington attorney who was general counsel for the National Security Agency. But now few executives are willing to spend money to change the design of their products to meet law enforcement's needs. The increasingly common response is, " 'Our customers don't want to pay for that,' " said Baker.
"If any company thought that it would lose business but stop terrorism by going along with the FBI, it would do so in a minute," said Deborah Triant, chief executive of CheckPoint Software Technologies Inc., an information security company in Redwood City, Calif. But even if the FBI could impose any rules it wanted on U.S. manufacturers, she said, terrorists and criminals would just circumvent U.S. law by obtaining computer equipment abroad.
Law enforcement officials say they are already seeing many instances where advanced technology is slowing their ability to crack cases. In Atlanta, federal investigators recently spent three months gathering enough evidence to justify a wiretap warrant but then were thwarted because they lacked the technical ability to tap into the telephone their target was using, according to a Drug Enforcement Agency official.
Even when they execute surveillance warrants, investigators claim they now encounter telephone calls and e-mail messages that have been scrambled. Ongoing investigations of the two largest Mexican drug cartels have logged several hundred telephone calls that were legally intercepted but unintelligible, FBI and DEA officials said.
A growing number of software applications and hardware systems apply encryption technology that translates written text, graphic images or the sounds of a voice into digital gibberish through the use of an algebraic code. The encrypted data can only be deciphered by applying the appropriate "key" to unlock the code, and the sender can make sure that only the intended audience has the key. The more complex the key, the more computing is required to crack the code.
When Ramzi Yousef, the convicted mastermind of the World Trade Center bombing, was arrested in Pakistan, investigators found encrypted data files in his laptop computer. After cracking the code, the FBI discovered that files contained plans to blow up 11 U.S.-owned airliners over the Far East in a coordinated terrorist action. Investigators have found encrypted communications in at least 500 cases worldwide over the past several years, according to a recent study by Dorothy Denning, who heads Georgetown University's computer science department, and William E. Baugh Jr., a vice president at Science Applications International Corp. in McLean. They estimate that the number is growing at an annual rate of 50 percent to 100 percent but note that law enforcement often is able to work around the problem by cracking codes or getting information by other means.
Frustration has been rising among both those in law enforcement and in industry. Last summer, Reno wrote to every member of Congress, stating the case bluntly "Let there be no doubt: Without encryption safeguards, all Americans will be endangered." Reno argued that Congress should mandate a system for recovering encryption keys "that will permit law enforcement to obtain lawful access to the plain text of encrypted communications and data." The letter was co-signed by the head of every major federal law enforcement agency and received formal backing from association's representing the nation's police chiefs, sheriffs and prosecutors.
But the encryption battle has been complicated by a long-standing government policy dealing only with the kinds of scrambling technologies that can be exported. Until recently, this policy effectively curbed the spread of U.S.-made encryption technologies because companies were reluctant to build different systems for home and abroad.
Now, Reno wants Congress to require that U.S. companies build into their encryption technologies a route by which law enforcement officers could get at spare keys for unlocking scrambled information. Last September, Freeh went one step further: He asked that such spare keys be stored with a "trusted" third party, such as a bank, whether the technology was used in this country or abroad.
Freeh's proposal gained backing in the House and sent shock waves through the computer industry, which responded by pressing legislation to loosen existing export regulations on encryption products.
To make its case, the industry launched a new trade association, Americans for Computer Privacy, which is conducting a multimillion-dollar lobbying and advertising campaign.
With generous funding from big corporations like Microsoft, Intel and Cicso, the group aims to convince voters that they should rise up in defense of their digital privacy.
Some industry advocates insist that current technology is benefiting law enforcement. "Oceans of new information are now available to government because people are leaving more and more electronic traces of themselves, and investigators can get that information from banks, phone companies and other legitimate businesses without regard to encryption," said James X. Dempsey, senior staff counsel at the Center for Democracy and Technology.
Instead of seeking to maintain its surveillance capabilities, Dempsey said, "with encryption, the FBI is trying to control something they never had: the devices people use to secure the privacy of their computer communications. It is basically an effort to eliminate a new technology."
Gore stepped into the middle of the conflict this year.
Administration officials are well aware that Gore risks either antagonizing Silicon Valley's treasure trove of campaign contributors or condemnation by Freeh and other law enforcement leaders.
To start negotiations, Gore convinced Freeh to drop his demand for mandatory key recovery, at least for now, and to go along with a unified administration position on encryption that does not demand any single technological solution. In order to get law enforcement to the table, Gore committed the administration to finding ways to preserve investigators' access to the decoded text of computer data and communications.
But both sides remain wary.
"I would say the jury is still out as to how much the FBI has really changed its position, and we are going to have to see something more definite from them," said Jack Quinn, a former White House counsel now representing the computer industry.
"We are looking for a good-faith discussion because we realize that only these industries have the abilities to solve our problems. And at the same time, we realize that even with industry's expertise, we are probably not going to be able to get all the capabilities we have today," said a Justice Department official.