WASHINGTON-The Department of Justice and the FBI filed with the Federal Communications Commission a legal analysis of the controversial punch-list items law enforcement says are necessary to maintain electronic surveillance capabilities. The punch list refers to nine capabilities the telecommunications industry and privacy advocates argue go beyond the scope of the Communications Assistance for Law Enforcement Act of 1994.
The analysis, contained in reply comments filed June 12 at the FCC, said the initial round of comments “produced a voluminous body of comments … [however] the legal force of the comments opposing the government’s rule making petition in no way matches their physical weight … contrary to the commenters’ claims, each of the capabilities missing from the [telecommunications industry’s] interim standard and requested in the government’s petition is firmly rooted in the language, legislative history and policies of CALEA.”
The Cellular Telecommunications Industry Association dismissed the analysis as more of the same continuing argument. “We don’t consider the FBI’s response [to be] adequate. They are focusing on what they say they need rather than what is authorized by [CALEA],” said Tim Ayers, CTIA’s vice president for communications.
CTIA had been concerned the government would use the reply-comment phase to give the legal analysis it had repeatedly asked for, so it urged the FCC to allow the industry to file supplemental comments following the reply-comment round. “Should DOJ, in its reply comments, finally provide the legal and factual basis for its claims … industry will not have an opportunity to respond to DOJ and any new information or legal arguments raised,” CTIA said in a footnote to its reply comments. At press time, the FCC had yet to rule on CTIA’s request.
CTIA also asked the FCC in its reply comments to rule on reasonable achievable call-identifying information. A ruling on that matter could solve the issue of the punch list, CTIA said. An illustration of call-identifying information is “post-cut-through” dialing when placing a toll-free call.
Post-cut-through dialing is the buttons pushed in response to choices. For example, when dialing a long-distance company, the caller will be asked to choose between a credit-card call and a collect call. Carriers contend such responses are impossible to distinguish from other signaling used for fax machines and modems or a child playing on the telephone.
In the reply-comment round, the FBI and Justice Department received support from law-enforcement representatives from Denver and New Jersey. Bell Emergis, a manufacturer that reportedly has developed a CALEA-compliant network solution, also said it supports the law-enforcement petition.
As industry and law enforcement continue their fight over the technical standards, the American Mobile Telecommunications Association asked the FCC to clarify whether its members are subject to CALEA. AMTA said its members operate commercial wireless service throughout the country and fall within the CALEA definition of “telecommunications carrier.”
In its reply comments, AMTA said it is not certain whether law-enforcement officials intend to include specialized mobile radio operators under the auspices of the CALEA. Indeed, the joint petition filed by DOJ and the FBI is silent on the relationship, if any, between SMR and CALEA.
AMTA also is concerned the interim standard developed by the telecommunications industry as a “safe harbor” specifically says it is only applicable to wireline, cellular and broadband personal communications services operators.
In another CALEA-related action, Redcom Laboratories Inc., a switching manufacturer, asked the FCC to extend the compliance deadline beyond Oct. 25. Redcom joins a large number of carriers and CTIA in arguing that the October date is not achievable due to the continuing struggle over the technical standard.
As a small manufacturer marketing to small and rural carriers, compliance with CALEA could be especially detrimental, Redcom said, explaining that unlike large carriers that can recover CALEA solution development costs from their customers, Redcom is too small to recover these costs.