WASHINGTON-Wireless and wireline carriers last week tabled a plan to sue the FBI over implementation of the 1994 digital wiretap law, just as Rep. Bill McCollum (R-Fla.) was putting the final touches on draft legislation that is not expected to give carriers the relief offered by Rep. Bob Barr’s (R-Ga.) bill.
New developments evolving in the high-stakes battle between the telecom industry and the Justice Department over the Communications Assistance for Law Enforcement Act suggest some level of disorganization and indecision by the industry over just how to take on federal law enforcement on this contentious issue.
The Justice Department declined to comment on the prospect of being taken to court over CALEA.
The industry, for its part, is in a dilemma for several reasons.
First, according to congressional and law enforcement sources, the digital wiretap measure McCollum plans to introduce after Congress returns from its spring recess next week is not expected to grandfather wireless carriers and others into CALEA to the extent Barr’s bill would.
Barr’s bill postpones the CALEA compliance deadline from this Oct. 25 to Oct. 1, 2000. McCollum’s bill is said not to have firmly established dates.
Second, Barr’s bill, while embraced by the telecom industry, is not expected to carry the weight of McCollum’s bill. McCollum chairs the crime subcommittee of the House Judiciary committee and is a senior member of the full committee.
Barr is a junior member of that panel.
Moreover, McCollum has an established relationship with the FBI by virtue of his stature on the authorizing committee that oversees the FBI.
Barr, on the other hand, is one of Congress’ biggest critics of the FBI.
This may explain why Barr did not consult with the FBI, according to the FBI, in crafting his CALEA rescue bill and why McCollum and the FBI are talking.
Last Thursday, a group of telecom carrier associations asked the Federal Communications Commission to resolve CALEA disputes among industry, privacy advocates and the FBI.
The Telecommunications Industry Association, which represents manufacturers, made a similar entreaty to the FCC two weeks ago.
The Justice Department recently declared the industry digital wiretap standard deficient and asked the FCC to intervene.
The telecom industry believes nine digital wiretap features sought by the FBI and Justice and opposed by industry and privacy proponents go beyond CALEA.
The Center for Democracy and Technology, representing privacy activists, agrees and believes even the industry CALEA standard should be scrapped.
The telecom industry contends the FBI has been lax in articulating technical specifications it wants industry to meet while holding firm to a CALEA compliance date that even Attorney General Janet Reno concedes is unrealistic.
The FBI and Justice disagree, arguing the wiretap functions they want do not expand their eavesdropping powers. In addition, federal law-enforcement officials insist industry wants to keep digital wiretap modifications as minimal as possible to keep their expenses down. They say industry’s concern over privacy and other objections are red herrings.
Industry’s concern over funding is well founded, though. Despite being authorized for $500 million from fiscal years 1995 through 1998, only $100 million to date has been appropriated to reimburse carriers for CALEA compliance. Of the $100 million, not a cent has been expended.
Indeed, under CALEA, new personal communications services licensees and digital cellular carriers will not be compensated for complying with CALEA mandates.
Telecom carriers face the prospect, beginning Oct. 25, of being fined $10,000 a day for failing to adhere to CALEA.
It is unclear how the FCC-which is openly reluctant to get in the middle of the crossfire between industry and the Justice-will respond.
The Cellular Telecommunications Industry Association, the Personal Communications Industry Association and the U.S. Telephone Association have joined TIA in requesting the following from the FCC:
Any recommended changes by the FCC to the standard must go through the industry’s existing standard-setting process.
The original compliance date set in CALEA is now impossible to meet and the FCC should set a new date once the standard-setting process is complete.
The FCC should clarify that adopting the standards is voluntary on the part of the telephone carriers. Carriers can meet the requirements of the law using alternative technologies. This issue is clear in the law, but is opposed by the FCC, the associations contend.
The FCC should rule that compliance with the law is not reasonably achievable for equipment installed after Jan. 1, 1995.
