FCC CALEA Decision Upsets Industry and Privacy Groups

(August 28, 1999) The FCC released a summary of its CALEA implementation decision on Friday, August 27. Industry and privacy groups accused the FCC of exceeding its authority under the Communications Assistance for Law Enforcement Act, placing unreasonable financial burdens on industry, and violating the privacy and Constitutional rights of Americans. Janet Reno, Louis Freeh, and the companies that make the affected equipment were pleased.

The FCC adopted the TIA standard J-STD-025, and six of nine of the FBI's "punch list." In particular, the FCC adopted the TIA standard for intercepting "packet-mode" communications. Also, while CALEA exempts "information services", the FCC decision extended the Act to "telecommunications carriers' facilities used to provide both telecommunications and information services".

The Federal Communications Commission did not release its actual order implementing CALEA. Rather, it released two press releases summarizing its decision. The Office of Engineering and Technology and the Wireless Telecommunications Bureau each wrote their own statements. The former, ET Report 99-4, focused on the technical standards adopted by the FCC. The later, WT Report 99-24, focused on which entities are covered by CALEA.

The actual order is due to be released on the web sometime next week, said Mary Beth McCarrick, an FCC spokesman.

Congress passed the Communications Assistance for Law Enforcement Act in 1994 for the purpose of allowing 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 Department of Justice and Federal Bureau of Investigation submitted a wish list, or "punch list," of nine capabilities that they wanted to apply to telecommunications carriers and others. The FCC adopted six out of nine of the DOJ/FBI requested items.

The six DOJ/FBI punch list items approved by the FCC were as follows:

• Content of subject-initiated conference calls.
• Party hold, join, drop on conference calls.
• Subject-initiated dialing and signaling information.
• In-band and out-of-band signaling.
• Timing information.
• Dialed digit extraction.

Three of the DOJ/FBI punch list items were rejected by the FCC:

• Surveillance status.
• Continuity of check tone.
• Feature status.

The FCC also required that all capabilities of the Telecommunications Industry Association (TIA) interim standard (J-STD-025) be implemented. J-STD-025, titled the "Interim Standard: Lawfully Authorized Electronic Surveillance Standard," was prepared by TIA (an equipment manufacturers' group) and others.

TIA issued a press release which stated that "TIA President Matthew J. Flanigan welcomed the commission's action".

In particular, the FCC's ET Report 99-4 addressed the "packet-mode communications" capabilities of this interim standard. Although, the statement was far from clear or complete. The relevant section of the report stated, in full, as follows:

"Packet-mode communications: The FCC required that carriers provide LEAs access to packet-mode communications by September 30, 2001. However, the Commission acknowledged that significant privacy issues had been raised with regard to the J-STD-025 treatment of packet-mode communications. Under the J-STD-025, law enforcement could be provided with access to both call identifying information and call content, even where it may be authorized only to receive call identifying information. Accordingly, the FCC invited TIA to study CALEA solutions for packet-mode technology and report to the FCC by September 30, 2000 on steps that can be taken, including particular amendments to the interim standard, that will better address privacy concerns."

TIA's Flanigan warned, however, that "the commission's September 30, 2001, deadline for compliance is unrealistic."

The press release of the FCC's Wireless Bureau, WT Report 99-24, addressed which categories of service providers are subject to the requirements of CALEA. The FCC stated that the following entities are subject to CALEA:

• All entities previously classified as common carriers are subject to CALEA, as are cable operators and electric and other utilities to the extent they offer telecommunications services for hire to the public.
• CMRS providers are subject to CALEA, except to the extent they offer service that is not interconnected to the PSTN (e.g., dispatch service). PMRS operators are subject to CALEA only where they offer service that qualifies as CMRS.
• Resellers, which often operate hybrid networks consisting of their own facilities and resold services, will be responsible for CALEA compliance only with respect to their own facilities.
• While facilities used solely for the provision of information services are not subject to CALEA, telecommunications carriers' facilities used to provide both telecommunications and information services are subject to the requirements of the Act.

William Kennard

FCC Chairman William Kennard had this to say in an FCC press release: "Our actions today will help ensure that law enforcement has the most up-to-date technology to fight crime. We have carefully balanced law enforcement’s needs against the rights of all Americans to privacy, and the cost to industry of providing these tools to assist law enforcement."

However, telecommunications industry representatives disagreed.

"The member companies of the United States Telephone Association are extremely disappointed in the FCC's adoption of the punch list items for CALEA," said Linda Kent, Associate General Counsel of the USTA. "While USTA members have a longstanding and successful working relationship with state and federal law enforcement agencies, the FCC requirement of six of nine punch list capabilities will be overly costly for America's local phone companies. Considering that none of the punch list items are required under CALEA, the FCC is clearly extending its regulatory reach in this instance."

Kent added that "the FCC went further by adopting an unreasonable time frame by which carriers must implement the six new punch list requirements; the 9/30/01 compliance date will make it an unnecessary challenge for local phone companies to comply. It is our hope that the FCC will give favorable consideration to local phone companies interested in extensions to that deadline as called for in Section 107(c) of CALEA."

Privacy groups were likewise upset with the ruling. The Center for Democracy and Technology (CDT) wrote in its web site that: "While claiming to respect privacy, the FCC ruled in favor of the government on virtually all issues of privacy concern, including ruling that wireless phone companies must be able to provide the cell site of their customers at the beginning and end of every call, effectively turning cell phones into tracking devices. On packet mode communications, the Commission declined CDT's request that carriers be required to protect the privacy of packet communications that the government is not authorized to intercept. Instead, the Commission asked the industry for more information on the rapidly looming question of surveillance of packet networks."

Electronic Privacy Information Center (EPIC) also expressed its opposition. "The FBI was 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, General Counsel of EPIC. "It is disappointing that the FCC appears to have resolved this issue in favor of police powers and against privacy."

"Privacy is under assault, and the public is increasingly concerned," said Sobel. "It's time to put the breaks on intrusive government action and reverse the trend toward increased surveillance and information collection."

In contrast, law enforcement officials in the Clinton administration applauded the FCC decision. Attorney General Janet Reno said in a press release that the "FCC has carefully addressed the needs of law enforcement to combat terrorism, organized crime and illegal drug activity while ensuring important privacy protections. The continuing technological changes in the nation's telecommunications systems present increasing challenges to law enforcement. This ruling will enable law enforcement to keep pace with these changes and ensure we will be able to maintain our capability to conduct court-authorized electronic surveillance. The FCC's careful, deliberative process concerning this matter is yet another example that CALEA is working as Congress intended."

FBI Director Louis Freeh said in the same Department of Justice press release that, "Today's announcement by the FCC regarding CALEA is an extremely important and positive public safety ruling. From the FBI's perspective, the FCC's announced ruling goes a long way to balance public safety, privacy and the needs of telecommunications carriers to remain competitive in today's market."