WASHINGTON-The Justice Department on Friday asked the Federal Communications Commission to declare the telecom industry’s digital wiretap standard deficient and to approve on an expedited basis a broader standard that incorporates eavesdropping features sought by federal, state and local law enforcement.
Justice wants the FCC to add to industry’s interim digital wiretap standard, adopted in December, nine functions that carriers, manufacturers and privacy advocates argue go beyond the requirements of the Communications Assistance for Law Enforcement Act of 1994.
Indeed, the Center for Democracy and Technology asked the FCC last week to scrap the industry digital wiretap standard because it compromises constitutional privacy rights.
“This is a petition I’m not looking forward to seeing,” Bill Kennard, chairman of the Federal Communications Commission, told House appropriators last week. Kennard said the rulemaking will be a drain on the agency’s resources, especially technical personnel.
The Justice petition follows a breakdown in negotiations between the U.S. government and the telecom industry, which intensified earlier this month when Attorney General Janet Reno got involved.
“This is not about expanding authorities or increasing wiretaps,” said a senior Justice Department official in a briefing with reporters Friday afternoon. “This is about ensuring that we have the technical capability to carry out our lawful, court-approved surveillance requirements in support of not only federal law enforcement but for state and local law enforcement.”
Justice said it would enforce the Oct. 25 CALEA compliance date insofar as the industry digital wiretap standard is concerned, but would give telecom carriers 18 months after the FCC adopts a new standard to come into line with additional wiretap obligations sought by Justice and the FBI.
Under CALEA, telecom carriers can be fined $10,000 a day for noncompliance.
A Justice official, noting there has been a combination of cooperation and intransigence by industry, said enforcement will be applied on a case by case basis.
FBI and Justice officials said telecom carriers would be reimbursed for wiretap capacity upgrades but not for capability-related modifications required by the industry wiretap standard. Carriers will be reimbursed for capability only when they have complied fully with the Justice’s digital wiretap standard.
While Justice and industry officials acknowledge some progress during the past three and a half years, emotions still run high. Talks on technical feasibility and costs between the FBI and industry will continue, for example, while the FCC considers Justice’s petition.
But there is still bad blood.
“This is not about technology; it’s about the funding,” said a senior Justice official.
The telecom industry says the FBI has not sufficiently articulated the technical requirements it needs and has not fully cooperated on CALEA.
“Congratulations to DOJ that they finally realized they can’t work with the FBI any more than we can,” said Steve Berry, a lobbyist for the Cellular Telecommunications Industry Association.
“The one thing the FBI now must understand is that we’re not giving them the industry standard and arguing over the punch list,” Berry stated. “I think we’re going back to ground zero” because of privacy concerns.
The Justice Department opposes legislation by Rep. Bob Barr (R-Ga.) that would postpone the CALEA compliance deadline until October, 1, 2000, and that would enable personal communications services licensees and digital cellular carrier to be reimbursed for CALEA upgrades.
Under current law, only telecom carriers that have deployed new systems or upgraded networks before Jan. 1, 1995, can be paid back for CALEA technical modifications.
Rep. Bill McCollum (R-Fla.) is expected to introduce another CALEA bill shortly.
“I think both sides are at fault,” said Rep. Harold Rogers, chairman of the Commerce appropriations subcommittee. “We’ve being trying to midwife the process. It’s been frustrating.”
Because of the impasse, Rogers is unlikely to grant the Clinton administrations request for $100 million in fiscal 1999 for CALEA implementation.
“We look forward to the FCC’s guidance and encourage the commission to act on both petitions,” said Matthew Flanigan, president of the Telecommunications Industry Association. “TIA continues to believe that [the industry digital wiretap standard] meets Congress’ intent of CALEA and represents a good faith effort by industry to balance society’s competing interests in preserving individual privacy, technological innovations and public safety.”
