WASHINGTON-Negotiations between the Justice Department and the telecom industry over a digital wiretap standard collapsed last week, an outcome that will pull the Federal Communications Commission into the fray and raise the stakes for a legislative fix.
The Justice Department is expected shortly to file a petition with the FCC that declares the industry digital wiretap standard deficient.
The impasse could give new momentum to a bill by Rep. Bob Barr (R-Ga.) that would push back the CALEA compliance deadline to Oct. 1, 2000, and allow personal communications services and other emerging telecommunications technologies to be reimbursed for digital wiretap upgrades.
Rep. Bill McCollum (R-Fla.) plans to introduce a separate CALEA bill soon.
“I think industry and government concluded that this issue of capability is best left to the FCC,” said Stephen Colgate, assistant U.S. attorney general for administration.
Colgate, Attorney General Janet Reno’s point man on the implementation of the Communications Assistance for Law Enforcement Act of 1994, said despite differences on digital wiretap capability, industry and the FBI continue to cooperate on cost and technical-feasibility issues.
“Industry has strong views; we have strong views,” said Colgate.
Reno, for her part, said, “I think … the matter ultimately will be resolved in the FCC, but we’re continuing discussions so that we narrow the issues in every way possible.”
There are nine features and functions on the “punch list” sought by the FBI that industry and privacy advocates argue go beyond the scope of CALEA. The FBI, for instance, demands that telecom switches instantaneously (500 milliseconds) provide call content and call identification information despite claims that it is not possible today and would take two years to engineer a solution.
In addition, there is disagreement over whether the FBI, through CALEA, is attempting to broaden its wiretap powers.
Jay Kitchen, president of the Personal Communications Industry Association, called the breakdown in talks disappointing.
Kitchen, whose PCS members are precluded by the digital wiretap law from being reimbursed for network modifications and face $10,000-a-day fines for non-compliance beginning Oct. 25, said it is possible the FCC could shield wireless carriers from penalties by declaring carriers in compliance with CALEA.
Likewise, Cellular Telecommunications Industry Association President Thomas Wheeler, whose digital cellular carriers are in the same dilemma as new PCS licensees, was disturbed by the turn of events last week following a March 6 meeting between federal law enforcement officials and telecom industry representatives that some believed would lead to progress on the thorny issue.
“I think the FBI made it very clear that if industry didn’t accept their shape of the world, they would go to the FCC,” said Wheeler.
Indeed, the FBI offered a 60-day extension of the Oct. 25 CALEA compliance deadline if industry agreed to its demands for incorporating the nine punch-list features.
Matthew Flanigan, president of the Telecommunications Industry Association, called the offer “insulting.”
“The FBI feels strongly about the punch list and feels like they’re in the driver’s seat,” said Flanigan. The coalition of PCIA, CTIA, TIA and the U.S. Telephone Association would flood the FCC and Justice Department with paperwork to make their views known on CALEA, Flanigan noted.
In a March 20 letter to Reno, the four trade associations thanked the attorney general for offering to clarify the FBI’s final notice of digital wiretap capacity requirements but said law enforcement was being unreasonable on other issues.
“We are concerned, however, at other remaining divisions between industry and the Department of Justice-particularly the FBI’s insistence that the compliance deadline will only be extended for carriers that agree to provide all nine of the punch-list items as well as the Bureau’s failure to recognize that compliance is not reasonably achievable within the current statutory deadline for currently installed or deployed technologies,” they stated.
