WASHINGTON-Legislation to extend the digital wiretap act grandfather date to June seems to be on a fast track to nowhere because proponents don’t have a strategy to get it passed by the Senate and signed by President Clinton.
The House of Representatives July 13 passed changes to the Communications Assistance for Law Enforcement Act of 1994, including extending the grandfather date to June 30 and amending definitions to make them more industry friendly.
The CALEA amendments were attached to a bill dealing with technical amendments regarding federal arbitration and were passed under a procedure set aside for noncontroversial legislation.
This is the second time the House has voted to extend the grandfather date. The Senate has not taken any action on the issue.
As the law stands today, government is required to reimburse telecom carriers for CALEA-related equipment upgrades in place before Jan. 1, 1995.
Passing the amendment was an initial victory for the telecom industry last week.
“This critical action by the House once again puts Congress on record supporting the wireless industry’s position on key CALEA issues,” said Thomas E. Wheeler, president of the Cellular Telecommunications Industry Association.
“We have been in a slugfest with the [Department of Justice] and the Congress has gradually accepted our view,” chimed Roy Neel, president of the United States Telephone Association.
By Friday, however, it appeared all telecom carriers could hope for from the amendment was that it would add a spark to ongoing negotiations with the Justice Department. Indeed, there doesn’t appear to be any strong proponents of the amendment in the Senate.
Steven K. Berry, CTIA senior vice president for congressional affairs, said the amendment might focus the DOJ’s attention on the CALEA issue and may lead the FBI into discussions with industry.
“I am surprised that [some] think that we don’t have a game plan for the Senate, but I assure you we do, and I hope that it proves to be successful [to] at least generate a little more focus at a time when the FBI has been almost nonexistent in terms of discussions with us on what the `flexible implementation plan’ is. Remember, they briefed Congress about three-and-a-half months ago on their `plan’ and they have yet to respond [or] provide the Congress or industry any physical attributes of such a plan. I think I would question whether or not the FBI has a plan. I think they are making their plan as they go. I think we have some purpose in our effort here,” Berry said.
Berry did not comment on what chances the amendment had in the Senate.
The Clinton administration also may not approve the grandfather date extension. Stephen Colgate, assistant attorney general for administration, said “DOJ is adamantly opposed” to the amendment.
The legislation adds a new wrinkle to the implementation of the cantankerous CALEA law-perhaps one that is not welcomed. CTIA, USTA, the Personal Communications Industry Association and the Telecommunications Industry Association already have sued DOJ and the FBI over CALEA. The two sides are trying to settle the issue out of court, but negotiations appear to have stalled.
The lawsuit has been put on hold to give DOJ time to negotiate a software solution with manufacturers. No one is willing to say how negotiations between DOJ and manufacturers are going, but the amendment could irritate DOJ.
TIA, the trade group representing manufacturers, was not involved either in the House passage of the law or any subsequent strategy sessions. This may indicate the grandfather date had been taken off the negotiating table, despite public assurances that some accommodation would be made.
Personal communications services carriers stand to lose the most if the grandfather date is not extended because they didn’t exist in January 1995. These carriers argue it would have been impossible for them to install CALEA-compliant equipment because there are no technical specifications for the equipment in place.
The FBI has not been so generous, saying carriers should have built out their systems to the FBI’s view of the functional requirements.
In addition, the FBI has said if telecommunications carriers have significantly upgraded their equipment since Jan. 1, 1995, that equipment no longer qualifies for reimbursement. This line in the sand has brought the cellular, landline and manufacturing industries into the fight over the grandfather date.
The amendment passed by the House last week also allows the Federal Communications Commission to extend the compliance date past its current date of June 30. This coincides with a letter to the FCC sent on July 9 by Michael Altschul, CTIA vice president and general counsel, urging the FCC to extend the compliance date to Dec. 31, 2001.
