WASHINGTON-The Federal Communications Commission agreed with law enforcement that five controversial features of new digital wiretap capabilities are within the law.
However, the agency ruled three other capabilities are outside the law and on one other issue, the FCC chose not to make a decision. The commission also angered privacy advocates by saying that a controversial location tracking feature included within an industry interim standard is within the scope of the law.
The FCC’s further proposed rule making defining a technical standard for the Communications Assistance for Law Enforcement Act of 1994 followed petitions filed by law enforcement, the telecommunications industry and privacy advocates following a protracted debate on what capabilities the telecom industry must include in a CALEA solution.
Since 1994, the telecommunications industry, privacy advocates and law enforcement have been disputing CALEA implementation. The dispute is somewhat reminiscent of the tale of Goldilocks and the Three Bears: the FBI claims the interim standard for digital wiretapping was deficient, while privacy advocates believe the standard allows too much and the wireless industry thinks the standard is just about right. The FBI’s argument centered on the absence of nine additional capabilities-known as the punch-list-in the interim standard.
The location tracking controversy stems from a belief that law enforcement will use a wiretap order on a mobile phone to track the whereabouts of subjects even when they are not talking on the phone but merely have the phone turned on. The industry interim standard calls for wireless carriers to give law enforcement the cell site location at the beginning and end of each tapped call but not monitoring information during the call. “This does not turn wireless phones into tracking devices,” said FCC Chairman William Kennard.
The decision pleased law enforcement but angered privacy advocates who vowed to fight the rules in court if necessary. “If the [FCC] still rules in favor of location technology, we would have to challenge it [in court],” said James X. Dempsey, senior staff counsel for the Center for Democracy and Technology. CDT has led the CALEA fight for the privacy community.
The telecommunications industry tried to sound positive about the FCC’s decision, focusing on the FCC’s acting rather than the action. Indeed Jay Kitchen, president of the Personal Communications Industry Association, said PCIA continues to have “grave concerns about any encroachment that the punch-list items may have on the privacy rights of law-abiding citizens.”
Specifically, the FCC said it was tentatively concluding the telecommunications industry include the following features in a CALEA solution:
Subject-initiated conference calls: Continued access to the content of conversations connected via a subject’s conference call feature even if the subject drops off the call;
Party hold, join, drop on conference calls: Allows law enforcement to receive messages indicating whether a party is on hold, has joined or has been dropped from the conference call;
Subject-initiated dialing and signaling information: Law enforcement would be informed if a person uses special features like forwarding, call waiting, call hold and/or three-way calling;
Timing information: This allows law enforcement easier access to the content of subject calls; and
Dialed digital extraction: These are digits dialed after the call has been picked up such as those used to check voice mail or place a credit card call.
In the telecommunications industry’s favor, the FCC said it agreed that the following capabilities were beyond the scope of CALEA:
Surveillance status: Law enforcement would receive information that a wiretap had been established and was working properly;
Continuity check tone: Law enforcement would hear a tone indicating the tap is still working until the subject initiates or receives a call; and
Feature status: Law enforcement would be notified if a subject adds or deletes subjection services by any means, including by another phone.
The FCC chose not to rule on two contentious issues. One issue, packet-mode communications, was included in the industry’s interim standard but privacy advocates said it violated CALEA. The second issues was a ninth punch-list item on in-band and out-of-band signaling. The FCC said it needed more information to make a decision.
The telecommunications industry, law enforcement and the FCC all seem to agree the biggest issue of CALEA is cost. For this reason, the FCC is urging commenters to submit detailed cost estimates for each of the controversial items.
Toggle question to be revived
When the FCC receives comments from the law-enforcement community, these comments may suggest the FCC include all of the punch-list items in the standard but require the telecom industry to include an on-off switch or toggle, said law enforcement officials. The toggle would be used to disable or engage specific features with court authorization. The telecom industry refused to include toggles in the industry interim standard because law enforcement made the suggestion too late. Adding a toggle switch late in the design process is very difficult, said one industry engineering expert.
The industry expert conceded including toggles on surveillance status and continuity check tone, two of three tentatively rejected punch-list items, would be relatively easy, but said including a toggle on feature status would be complex. Indeed, the expert said, the telecom industry is not even sure how it would technically accomplish the feature-status item.
Attempts to contact the Department of Justice on the toggle question and the FCC’s CALEA tentative decision were unsuccessful.
Industry loses grandfather assurance
In last-minute action on Capitol Hill last week, language was taken out of the omnibus spending bill conference report assuring the telecommunications industry that Congress would extend the grandfather date to correspond with the compliance date the FCC extended to June 30, 2000. The grandfather date refers to CALEA language that requires the government to reimburse telecom carriers for CALEA-related upgrades to equipment in place before Jan. 1, 1995.
It is believed congressional appropriators took the telecom industry-friendly language out because it did not want to delve into the controversy. Steven Berry, CTIA senior vice president for congressional affairs, remains optimistic the 106th Congress will extend the grandfather date to the next millennium.
