EPIC Files Brief in Challenge to FCC CALEA Order

(January 21, 2000) The Electronic Privacy Information Center and other public interest petitioners filed their brief with the U.S. Court of Appeals arguing that the FCC's CALEA Order should be vacated. EPIC argues that the Order intrudes on Internet and phone communications privacy in violation of the Fourth Amendment and federal statutes.

The Electronic Privacy Information Center (EPIC) filed a brief jointly with the ACLU and EFF on Thursday, January 20. A separate brief by a group of "telecommunications petititioners," including the United States Telecom Association (USTA), the Cellular Telecommunications Industry Association (CTIA), and the Center for Democracy and Technology (CDT), was also due on the same date.

These public interest petitioners seek review of the final order of the Federal Communications Commission, titled the Third Report and Order, in the proceeding titled In the Matter of Communications Assistance for Law Enforcement Act, which was released on August 31, 1999. (See, CC Docket No. 97-213, FCC 99-230.)

EPIC summed up the case as follows:

"This case concerns the fundamental right to privacy held by the American public in the telecommunications and Internet age. Our nation’s reliance upon the telecommunications network has never been greater. Yet, the Commission’s interpretation of CALEA – a statute intended simply to replicate law enforcement’s existing wiretapping capabilities in the digital age – has endangered the public’s right to privacy by permitting law enforcement to obtain the actual content of conversations and Internet transmissions ..." [Brief, at page 2.]

One part of the FCC's CALEA Order which EPIC attacks is a provision allowing the FBI and other law enforcement agencies to obtain both the header and content of packet mode communications, without a warrant. CALEA allows law enforcement to obtain call identifying information, but not call content, without a warrant.

"If the distinction between call-identifying information and call-content information is eroded for packet-mode communications, the privacy protections implemented by Congress and courts and relied on by the public will all but disappear", EPIC wrote. "This outcome would be ominous because packet-mode communication is swiftly becoming the telecommunications technology of choice for today's Internet age." [Brief, at page 10.]

EPIC's brief also objects to the portion of the FCC's CALEA Order which allows law enforcement to obtain post-cut-through content without a warrant. For example, phone callers often use touch tone phones, after they have dialed a number, to enter data, such as credit card numbers, extensions, and passwords. EPIC argues that this is content, not call identifying information.

Congress passed the Communications Assistance for Law Enforcement Act in 1994 to enable law enforcement authorities to maintain their existing wiretap capabilities in new telecommunications devices. It provides that wireline, cellular, and broadband Personal Communications Services carriers must make their equipment capable of certain surveillance functions. Section 103 provides that:

"a telecommunications carrier shall ensure that its equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications are capable of expeditiously isolating and enabling the government ... intercept, to the exclusion of any other communications, all wire and electronic communications carried by the carrier within a service area to or from equipment, facilities, or services of a subscriber of such carrier concurrently with their transmission to or from the subscriber's equipment, facility, or service, or at such later time as may be acceptable to the government".

The Act also requires telecommunications carriers to ensure that its facilities are capable of enabling the government "to access call-identifying information".

However, the CALEA also provides that provisions do not apply to "information services".

"The FBI is seeking surveillance capabilities that far exceed the powers law enforcement has had in the past and is entitled to under the law," said David Sobel, EPIC's General Counsel, in a press release. "It is disappointing that the FCC resolved this issue in favor of police powers and against privacy."

Sobel said that the appeals court challenge "raises fundamental privacy issues affecting the American public. This case will likely define the privacy standards for the Nation's telecommunication networks, including the cellular systems and the Internet."

Oral argument in the case is scheduled for May 17, 2000.