WASHINGTON-At RCR Wireless News press time, the Federal Communications Commission was preparing to release a public notice asking for industry comment on the August federal appeals court decision that threw out key items of the FBI’s punch list to implement the digital wiretap act.
At the heart of the expected comments is the fate of packet-mode technologies and by extension the fate of the FBI’s Internet surveillance tool known as Carnivore.
The U.S. Court of Appeals for the District of Columbia circuit in August told the FCC that it had to better explain its rationale for four of the six punch list items it said industry needed to include in the technical standard to implement the Communications Assistance for Law Enforcement Act of 1994.
The appeals court also said that law enforcement was only entitled to packet mode information after it obtained a warrant rather than the current standard of a pen register which does not require a warrant.
The industry has been reviewing how to make packet mode information available while at the same time protecting privacy. Late last month the Telecommunications Industry Association presented an 89-page report to the FCC which said there isn’t a one-size-fits-all solution.
TIA’s report was the result of two meetings of industry technical experts who met twice-once in May in Las Vegas and then again in June in Washington.
Also attending the meetings were representatives from the FBI and the Center for Democracy and Technology-a privacy advocacy group that challenged both the CALEA rules and Carnivore.
In the end, the JEM discussed packet-mode technologies for cdma2000, general packet radio service and the Internet protocol.
The joint expert meetings did not deal with the legal issues surrounding packet mode technologies. While the technical issues are complex because there are so many differing technologies, it is the legal issues that have been the thorniest.
One legal issue that the JEM termed to be ambiguous was what constitutes call-identifying information. This definition could be important because it impacts the level of scrutiny law enforcement must face before obtaining that information.
Call identifying information-known as a pen register (in the telecom world a telephone number is a pen register) does not require a court order while the content of the message does. In other words, law enforcement, with a pen register, can know that “Sam” called “Harry” but not what they talked about.
In a packet world, the call identifying information (e-mail to and from addresses) gets jumbled with the content of the message and then put back together when it is delivered. Carnivore purports to separate out the call identifying information from the content but privacy experts have questioned this.
For this reason, the decision made by the FCC on packet-mode transmissions could greatly impact the FBI’s future use of Carnivore.
The FCC is also in the process of deciding whether to enforce the CALEA implementation deadlines. The Cellular Telecommunications Industry Association asked the FCC to suspend the Sept. 30, 2001, deadline until the remand issues were resolved. Surprisingly, the FBI agreed that enforcing the deadlines for the two uncontested punch list items would be more inefficient since these are integrally tied to the contested items.
