The Federal Communications Commission late Friday extended the compliance deadline for implementation of the digital wiretap act until June 30, 2000. Without the extension, telecommunications carriers were subject to possible fines of as much as $10,000 per day come Oct. 25.
The extension was not unexpected. It had been anticipated for weeks since a technical solution to implement the Communications Assistance for Law Enforcement Act of 1994 is not yet available.
Last spring, the telecommunications industry asked the FCC to extend the compliance date two years to give manufacturers and carriers time to develop and deploy a CALEA solution. FCC officials had been saying for weeks an extension would be released soon. Indeed, FCC Chairman William Kennard last week told RCR the FCC would extend the deadline either Thursday or Friday.
The commission told telecommunications carriers they must deploy the industry’s interim standard, which was approved last December, by the June 2000, date.
The FCC is considering whether the industry developed standard is deficient. Privacy advocates, most notably the Center for Democracy and Technology, say the standard goes beyond the scope of CALEA. Law enforcement, led by the Department of Justice and the FBI, has said it does not go far enough. Law enforcement has been fighting for nine so-called punch-list items-additional capabilities-that industry says go beyond the scope of CALEA.
Along those lines, the FCC also announced it soon would initiate a proceeding to “consider modifications to the [industry interim] standard that may be necessary to comply with the requirements of [CALEA]. If this standard is ultimately modified and new CALEA capabilities or functions are added to the core standard, we will consider establishing a separate deadline for upgrading carrier equipment and facilities to provide those additional capabilities or functions in that proceeding.”
All of the FCC commissioners, except Gloria Tristani, issued statements with the press release announcing the extension. The commissioners said the extension was necessary due to the lack of equipment available. Indeed Kennard called it essential. Commissioners Susan Ness and Michael Powell said the June date would not conflict with carrier efforts to combat the millennium bug, which could impact computers at the turn of the century if they have not been upgraded to more than two date fields.
Despite the extension, the telecom industry did not get what it wanted from the FCC. Although telecom carriers will not be subject to the fines come Oct. 25, the extension is too short to implement CALEA. The telecom industry, privacy advocates, the FBI and the Justice Department continue to battle over CALEA’s implementation and this extension just portends of more battles to come.
The FCC did not say when it expected to complete its proceeding on the CALEA standard. Manufacturers consistently have said it would take at least 18 months to deploy any standard. “Clearly [there] is not enough time,” said Alyson V. Ziegler, director and counsel for government relations of the United States Telephone Association. Manufacturers cannot start building equipment until they have a standard because carriers can’t start building compliant equipment until they have a standard, Ziegler commented.
This time frame may upset key lawmakers. Two of them, Reps. Henry Hyde (R-Ill.) and John Conyers (D-Ga.), the leadership of the House Committee on the Judiciary, sent a letter last month to Kennard urging the FCC grant a two-year extension with a direction that manufacturers be directed to begin building CALEA-compliant solutions and equipment based on the industry standard.
Ziegler said there may be an industry push to get Congress to extend the date to two years after a standard is developed. A similar extension, extending the compliance date to Oct. 1, 2000, was passed by the House of Representatives as part of the DOJ reauthorization bill on June 22.
The Senate, however, is not expected to take up the DOJ reauthorization bill this year. If the Senate does consider the DOJ reauthorization, it will have to answer to the strong opposition of Attorney General Janet Reno, who sent a letter to Vice President Al Gore (in his role as President of the Senate) urging the CALEA language be dropped from DOJ authorization. “There is no need to tamper with the carefully negotiated balance created by CALEA,” Reno said in the letter dated July 30.
The prospects of such an extension seem murky at best, since Congress last week began the process of evaluating the report by Independent Counsel Kenneth Starr about alleged impeachable offenses by President Bill Clinton.
FCC Commissioner Harold Furchtgott-Roth also would have preferred the two-year extension, he said in his statement.
The members of the coalition that had been fighting for an extension each reacted positively to the news that the extension had been granted. “The FCC’s action was simply a matter of common-sense that offers much-needed relief in the difficult process of implementing this important law … Make no mistake about it-the wireless industry is committed to helping law enforcement do its job. Hopefully, this extension will give everyone the necessary time to do just that,” said Jay Kitchen, president of the Personal Communications Industry Association.
The Cellular Telecommunications Industry Association agreed. “Our industry is committed to providing state-of-the-art surveillance tools to the law-enforcement community in accordance with the law,” said CTIA President Tom Wheeler.
BellSouth Corp., a company with both wireless and wireline customers, said, “Today’s FCC action will go a long way toward helping the industry to implement CALEA in a cost-effective and efficient fashion-which will assure a system that works for law enforcement with maximum economy for the taxpayer.”
PCIA, CTIA and BellSouth also pledged to work with Congress to extend the grandfather date, which only allows for reimbursement for upgrades to equipment in place prior to Jan. 1, 1995, thus precluding most personal communications services carriers.
While the Telecommunications Industry Association, another coalition member, said it “was pleased that the [FCC] had finally acted,” a statement by TIA President Matthew J. Flanigan also said “the FCC is aware from the extensive record in front of it, it will not be possible for CALEA-compliant equipment to be installed in every carrier’s facility by this new deadline.”
