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CALEA AND 911: IS THERE A CONNECTION?

WASHINGTON-A decision to allow law enforcement access to location information as part of the digital wiretap upgrade may have an impact on which technologies are deployed under the enhanced 911 mandate even though all players in the two dramas maintain the issues are separate.

“Both of the dockets raise privacy issues. Both highlight the fact [that] wireless phones generate location information [and] that information will become more precise because of market demands and 911 requirements … We are utterly convinced that location information is not covered by [the Communications Assistance for Law Enforcement Act of 1994] CALEA,” said James X. Dempsey, senior staff counsel of the Center for Democracy and Technology (CDT).

The intersection between CALEA and the E911 mandate comes to light as the wireless industry is racing to deploy wireless emergency location technologies by October 2001. Concurrently, the industry is in a public argument with law enforcement over what should be included in a standard to implement CALEA. The latter could influence the former.

Additionally, the industry this week urged the FCC to allow it to recover costs for E911 liability insurance from states, and the trade association representing wireline telephone carriers last week filed a lawsuit against the FBI and the Department of Justice, claiming rules to implement CALEA are “arbitrary and capricious.”

CALEA and E911 converge

Location tracking will become possible as wireless carriers implement E911 across the nation. This implementation requires wireless carriers to give public safety answering points the location of a wireless caller in 2001. This information is available today to PSAPs in the wireline environment. Government officials believe wireless carriers should give them access to this information regardless of whether a target has dialed 911. “Location technology is being dictated by the FCC. When it becomes part of the network, we are going to get it one way or another,” said a government source.

As part of this belief, the FBI in July proposed an amendment to CALEA that would have allowed it access to this type of information. Where the FBI apparently got in trouble was in the details of the amendment, specifically the language dealing with location tracking.

The law enforcement’s belief that location technology is available to carriers may be misguided, however, because “there are a couple of flavors of location technology,” as Michael F. Altschul, vice president and general counsel of the Cellular Telecommunications Industry Association, said.

One technology is network-based and conceptually would allow the carrier to know the whereabouts of a subscriber at all times. This technology could be a valuable marketing tool because subscribers could sign up for features that would allow them to dial specific digits and receive information about the closest gas station. This feature would be agreed to when a subscriber signed up for wireless service. The information could also be given to law enforcement with proper authorization to track criminal suspects.

The other technology is handset-based and uses Global Positioning System information to locate a caller. One version would require the caller to dial 911 to trigger the GPS location. Other versions, however, could be used like the network-based technology for subscriber services. Hybrid solutions also are being considered.

Those companies that want carriers to implement the GPS 911 trigger technology often argue it is the only way to protect subscriber privacy. The Justice Department told the FCC in 1996 it is not a privacy violation for a carrier to give a PSAP location information of a caller when that caller dials 911. “By dialing 911, the caller [implies consent] to the disclosure of information regarding his location at the time of the call. The whole purpose of a 911 call is to seek the aid of appropriate government officials in responding to an emergency at a particular place,” DOJ said.

911 liability insurance

In the best of all worlds, the wireless industry would like the FCC or Congress to declare it has limited liability from lawsuits resulting from cases where a call made on a wireless network does not go through. Wireline carriers are afforded this protection.

In lieu of such a ruling, the wireless industry recently told the FCC it believes liability insurance is an important component of 911 deployment and it should be able to recover the costs of the insurance in the same manner as it recovers the costs of the technology. In most cases, this means requiring the states to pay for it. The state of California has objected. California is one of 17 states that has not implemented limited liability.

The 911 program manager for the State of California, Leah A. Senitte, said the issue of “immunity from liability is now the only substantive obstacle preventing trials and commercial deployment of wireless E911 service.”

Opposition to the wireless industry’s position came from the Ad Hoc Alliance for Public Access to 911.

“There has been a concerted effort on the part of [commercial mobile radio service] providers to convince local and state authorities that local exchange carrier immunity should be extended to wireless carriers because they provide the same 911 service. This ignores the fact that LECs are rate regulated and limitation of liability tariff provisions are part and parcel of rate regulation … CMRS providers have successfully argued that the marketplace should displace regulation. It is not appropriate to confer the benefits, but not the costs and responsibilities of deregulation on CMRS providers,” said Ad Hoc Alliance Chairman Jim Conran.

The Ad Hoc Alliance has been a consistent thorn in the side of the wireless industry, fighting it on access to 911, strongest signal and now limited liability.

CALEA lawsuit

The United States Telephone Association last week filed a lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit claiming DOJ and the FBI want telecommunications carriers to pay for most of the equipment upgrade costs necessary for CALEA implementation. CALEA authorized $500 million to retrofit equipment in place by to Jan. 1, 1995. In regulations for reimbursement, the FBI uses a narrow definition of significant upgrade to exclude most equipment from reimbursement eligibility. To bring this equipment up to code, the telecom industry would have to pay for it.

Additionally, USTA argues the cost recovery rules impose burdensome procedural requirements. “These rules transform the simple claims process envisioned by Congress into a highly burdensome, inefficient, time-consuming procedure that erects unlawful hurdles for carriers to face,” said USTA President Roy Neel.

CTIA and the Personal Communications Industry Association filed lawsuits in April over the Jan. 1, 1995, date for similar reasons.

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