WASHINGTON-The FBI and the Department of Justice are shopping an amendment to congressional appropriators to change the Justice Department budget in a way that would re-write the controversial digital wiretap act.

The amendment not only addresses the date issue, but would have Congress order the Federal Communications Commission to deem the industry standard “deficient.”

The Communications Assistance for Law Enforcement Act of 1994 (CALEA) was passed by Congress to preserve law enforcement’s wiretapping capabilities in the digital age. Since then, the telecommunications industry, the FBI and privacy advocates have been battled over CALEA’s implementation.

The FBI’s amendment has been criticized soundly by industry and privacy advocates. The FBI “is trying to re-write the Bill of Rights through the appropriations process,” said Thomas Wheeler, president of the Cellular Telecommunications Industry Association.

“The FBI is trying to re-write [the digital wiretap act] to get what it failed to get from Congress four years ago,” echoed the Center for Democracy and Technology.

The amendment would eliminate the embedded base date of Jan. 1, 1995, which would help personal communications services carriers, which argued they did not exist then. All telecom carriers would be required to comply with CALEA by Oct. 25, 2000. This is the same change telecom carriers hailed last month.

That’s the good news for the telecom industry. The bad news for industry is compliance now would include the so-called punch-list items. The FBI and DOJ have said nine additional capabilities beyond the industry standard are necessary to completely implement CALEA.

Industry and privacy advocates believe these capabilities go too far. “This [amendment] is a clear admission that the FBI has lacked the authority [for the punch list],” said Tim Ayers, CTIA vice president for communications.

Indeed, a government official admitted the amendment was an attempt by the FBI to thwart the impact of the so-called Lofgren amendment-named for its author, Rep. Zoe Lofgren (D-Calif.-attached to the DOJ authorization bill passed last month by the House of Representatives. The Lofgren amendment “would do irreparable harm and change the intent of CALEA … if Congress is compelled to changing CALEA” then the FBI wanted its views known, the official said. The official, however, stressed that law enforcement is opposed to any change in CALEA.

The DOJ authorization bill was not expected to be considered by the Senate this year, but a letter from Rep. Henry Hyde (R-Ill.), chairman of the House Judiciary Committee, could change that. Hyde sent a letter to Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) July 16 urging adoption of the DOJ authorization bill, including the Lofgren amendment. Hyde said the Lofgren amendment “does not alter the underlying substance of CALEA.”

Hyde also said the Lofgren amendment was “necessary because of the unfortunate delays that have prevented both law enforcement and the telecommunications industry from fully implementing the provisions of CALEA.”

The FBI-proposed amendment requires the FCC to deem the punch list part of the standard and to say the new standard is “reasonably achievable” within 30 days “without notice or comment.”

In essence, Congress would define for the FCC what should be included in the technical standard to implement CALEA. This upset Jay Kitchen, president of the Personal Communications Industry Association, who said, “It is no surprise that the DOJ continues to push its own agenda … PCIA firmly believes that the [FCC] is the proper venue for determining whether or not the punch list goes beyond the bounds of CALEA.”

Attorney General Janet Reno and FCC Chairman William Kennard were expected to discuss the attempt to usurp FCC authority in a Friday afternoon meeting last week. Kennard said the meeting was “productive and quite helpful.”

It is unclear which side-between the DOJ and the FCC-the White House would favor. Vice President Al Gore, who has taken the lead on telecom issues, could not be reached for comment at RCR press time.

The reimbursement issue also would be resolved in the FBI amendment. The telecom industry long has said the $500 million originally authorized for CALEA reimbursements was not enough, but Congress consistently has said no more than $500 million would be authorized. Indeed, Rep. Harold Rogers (R-Ky.), chairman of the House Appropriations subcommittee on commerce, justice, state and the judiciary, told Reno earlier this year he would not allow for more than $500 million to be appropriated for CALEA reimbursement.

The FBI amendment would authorize $420 million for direct reimbursement to all telecom carriers in existence before Oct. 25, 1998. The money would be distributed by a formula based on the number of exchanges assigned to each carrier on that date. The remaining $80 million would be used to reimburse carriers for capacity upgrades.

In short, the amendment would implement CALEA in a manner favorable to law enforcement. This would break the implementation logjam, which has sparked frustration among lawmakers, one of whom vented at Reno at a hearing last week.

“Problems … persist in implementation of [CALEA] … To date, this law has generated litigation in the courts and before federal regulatory agencies, and provoked additional legislative action, but has not been implemented in the manner it should,” said Sen. Patrick Leahy (D-Vt.), ranking member of the Senate Judiciary Committee and a member of the Senate Appropriations Committee.

On another front, the FBI recently released the Small Entity Compliance Guide for CALEA, which says all carriers must admit their current equipment is not CALEA-compliant by Sept. 8.


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