WASHINGTON-Attorney General Janet Reno, amid indications of coming legislation, told Congress last week she will order the Federal Communications Commission to intervene in mid-March if the deadlock between the FBI and the telecom industry over digital wiretap implementation is not resolved by then.
“We may be at an impasse,” said Reno, testifying before a House appropriations subcommittee last Thursday. “Simply said, industry’s proposal is that all equipment, services and facilities installed or deployed as of October 1998 would be deemed in compliance forever … unless the government agrees to pay to modify or to upgrade it.”
With the Oct. 25 digital wiretap compliance date looming and the prospect of $10,000 daily fines for violations, the blood feud between the wireless industry and FBI over implementation of the 1994 Communications Assistance for Law Enforcement Act appears to have come to a head.
Reno’s testimony before the subcommittee may have marked a critical turning point in the debate.
Now, not only is Justice prepared to thrust the FCC into the controversy but Reps. Bob Barr (R-Ga.) and Bill McCollum (R-Fla.) and possibly others are expected to introduce bills shortly to give industry relief on CALEA funding reimbursement and compliance deadlines.
“We want to force the issue,” said McCollum.
At the same time, the possibility exists that the digital wiretap fiasco will wind up in court and cause even more delay in finding a solution that enables law enforcement to conduct lawful eavesdropping on advanced telecommunications networks and that fully compensates telecom carriers for installing new software and hardware to further that goal.
Reno told lawmakers the digital wiretap impasse is limiting the ability to employ electronic surveillance as a key law-enforcement tool.
For more than three years, the FBI and industry have been fighting over capability and capacity requirements and cost recovery and compliance deadlines.
Congress authorized $500 million for CALEA implementation for fiscal years 1995 to 1998. But only $100 million has been appropriated to date.
“You move three paces with the Justice Department and back two with the FBI,” lamented Tom Wheeler, president of Cellular Telecommunications Industry Association.
CTIA has a petition pending before the FCC seeking the agency’s assistance.
Under CALEA, personal communications services licensees that began operations after Jan. 1, 1995, and cellular carriers that converted to digital technology after that date are not eligible for reimbursement by the government for technical modifications required by digital wiretap law.
The FBI appears to acknowledge that the Oct. 25 compliance date is unrealistic and may be willing to let it slip. But the agency is holding firm on the Jan. 1, 1995, reimbursement eligibility deadline.
The industry wants an October 1998 date for CALEA reimbursement.
Meanwhile, lawmakers appear to be running out of patience with Justice and the industry.
“I not only hope that it’s going to happen; I’m going to make it happen,” said Rep. Harold Rogers (R-Ky.), chairman of House appropriations subcommittee on Commerce, Justice, State and Judiciary.
“I don’t know how (much) more bluntly I can put it. You (Reno) dragged your feet for three years … the industry has dragged their feet. I think it’s a plague on both your houses,” said Rogers.
Reno, conceding as much during her grilling by lawmakers, now appears geared to file March 13 a `deficiency’ petition with the FCC that would order the agency to set digital wiretap standards for local, state and federal law enforcement.
“Unfortunately, if we are pressed to take this step, we will avail ourselves of all lawful mechanisms available,” said Reno.
“It is unfortunate that months of negotiations with the FBI have failed to produce a resolution that treats new networks fairly,” said Jay Kitchen, president of the Personal Communications Industry Association. “From the very beginning we have said Legislation should only be introduced as a last resort. That time has come.”
Various new services contributed to this report.
