IP: CDT POLICY POST 4.9: FCC Launches Inquiry Into Wiretap Law

[Dave Farber <farber () cis upenn edu>]

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   The Center for Democracy and Technology  /____/     Volume 4, Number 9
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      A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST Volume 4, Number 9                   April 24, 1998


CONTENTS: (1) FCC Launches Inquiry Into Digital Wiretap Law
           (2) Cellular Phone Industry Files Suit Challenging FBI Efforts to
                  Shift Costs
           (3) How to Subscribe/Unsubscribe
           (4) About CDT, Contacting us


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(1) FCC LAUNCHES INQUIRY INTO DIGITAL WIRETAP LAW


In the wake of the filing last month of petitions by the Center for
Democracy and Technology (CDT), the FBI and the telecommunications
industry, the Federal Communications Commission (FCC) has launched a
full-scale inquiry into the FBI's efforts to require enhanced surveillance
capabilities in the nation's telecommunications systems.


The Commission issued a notice April 20 soliciting public comment on all
the issues that CDT, the FBI and  the industry have raised about the
implementation of the 1994 Communications Assistance for Law Enforcement
Act (CALEA), also called the 'digital wiretapping' law. This is the first
time since Congress passed CALEA that the FBI's expansive reading of the
law has been challenged directly. For a copy of the FCC's notice, see:


http://www.fcc.gov/Bureaus/Common_Carrier/Public_Notices/1998/da980762.txt


CALEA was originally intended to preserve wiretapping in new digital
networks, but the FBI is now attempting to use the law improperly  to
expand its surveillance capabilities, CDT argued in a March 26 petition to
the FCC. The privacy interests of all Americans have been overlooked in
disputes  between industry and law enforcement over the implementation of
CALEA, CDT stressed. CDT's petition can be found at:


http://www.cdt.org/digi_tele/980426_fcc_calea.html




CALEA calls for the telecommunications industry to comply with its terms by
Oct. 25, 1998.  CDT argued, however, that compliance with the law is not
reasonably achievable by that date and should be delayed while the FBI's
demands are scaled back.


The day after CDT filed its petition, the FBI asked the Commission to
require telecommunications companies to add even more monitoring
capabilities to their network switches than they have agreed to add so far.
Later, telecommunications companies and industry associations also filed
petitions with the FCC, arguing that they cannot meet the digital
wiretapping law's October deadline because disputes with the FBI about
CALEA's meaning have delayed their ability to design ways to comply with
the law.


In its notice, the FCC requested that interested parties explain their
views of CALEA 'based on existing privacy laws and their legislative
history.'  This request means that CDT will now have the opportunity to
demonstrate how privacy principles require a narrow interpretation of CALEA
-- in other words, an interpretation that excludes the enhancements sought
by the FBI.


The Commission set short deadlines for comment on the issues raised by the
implementation of CALEA. Comments on the difficulty of meeting the
compliance date are due by May 8.  Comments on the privacy issues are due
by May 20.
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(2) CELLULAR PHONE INDUSTRY FILES SUIT CHALLENGING FBI EFFORTS TO SHIFT COSTS


The FCC's action isn't the only recent movement on the CALEA front,
however. Today -- Friday, April 24 -- the cellular telephone industry filed
suit in federal district court in Washington challenging the FBI's efforts
to avoid paying telecommunications companies, or "carriers," for the costs
of retrofitting their existing equipment to bring it into compliance with
CALEA.


The cost issue raised in the carriers' suit has direct impact on privacy.
Congress wanted the federal government to bear the costs of retrofitting as
a way of constraining the breadth of the FBI's demands. If the FBI can
shift the cost of compliance to the carriers, then there is no budgetary
limitation on the FBI's surveillance proposals.


Congress has only appropriated $102 million of the $500 million authorized
for CALEA compliance, precisely because Congress has been concerned about
the FBI's overreaching and its mismanagement of the process.  But if the
FBI, through the reimbursement rules, can shift the cost to carriers,
Congress' control over the purse strings becomes irrelevant and the FBI can
evade one of the central constraints built into CALEA.