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Rapid changes in communications technology threaten to make “a big mess” out of the federal governments ambitious plans to weave wiretapping into the fabric of the digital age, while a 1994 law grows increasingly outdated.
While parts of the 1994 Communications Assistance for Law Enforcement Act (CALEA) have already been implemented by phone and other communications carriers, important areas of the law are being disputed in courtrooms and mulled over by bureaucrats in the Federal Bureau of Investigation and the Federal Communications Commission.
One unresolved issue is how to handle packet data, a technology that was in its infancy when the law was written, but has since emerged as the leading method for transmitting voice and data in the Internet age.
Communications companies carrying packet data have until Sept. 30 to demonstrate that their systems will permit law enforcement officials to conduct wiretaps. The industry has filed requests with the FCC to extend the deadline. The FBI argues that extensions should not be granted. Industry representatives say they need to figure out a way to separate the packets header data from content before they can implement any standards, and the technological solution to the problem could take years to figure out. Its up to the FCC to decide how to proceed.
“We believe the packet issue is going to be around for a long time,” said Rodney Small, an economist in the FCCs office of engineering and technology who handles CALEA. Industry has “decided its too expensive to do this, and they arent sure what the privacy implications are,” Small said. “They are getting cold feet, legally and financially. Meanwhile, these new technologies keep developing. . . . On the packet data [issue], there could be more petitions and it could be a big mess.”
An industry official agreed. “You will see more lawsuits or court challenges. Youll certainly see carriers filing extensions on packet data deadlines,” said Grant Seiffert, vice president of external affairs and global policy at the Telecommunications Industry Association, a trade group representing many telecommunications carriers implicated in the CALEA regulations. “In a packet world, somebody has to open the packet to look for the information the FBI is seeking. Is the FBI going to do it? Were not going to do it unless we are paid to do it. Who is going to be looking over everyones shoulders when we open up this information?”
As the packet data issue looms, industry and civil liberties advocates await signals from the Bush administration about how new regulators — particularly FCC commissioners and the new FBI director — plan to approach government surveillance issues. The agencies decisions could affect the depth of the debates.
“Congress may be re-engaged,” Seiffert said. “Its sort of a wait-and-see game right now.”
“The FBIs credibility is at an all-time low here,” said Barry Steinhardt, associate director at the American Civil Liberties Union. “Attorney General [John] Ashcroft in the Senate expressed skepticism about a number of government surveillance programs.”
An FBI spokesman defended work to date, saying: “There has been significant progress made with the implementation of CALEA,” and citing technical solutions available for wireline and wireless segments of the telecom industry.
Some CALEA experts question some of what the FBI has managed to implement already, charging that the agency installed sophisticated data collection systems in communications networks that require expensive equipment to decipher.
“Its close to a scandal,” said Stewart Baker, an attorney and former general counsel at the National Security Agency who has been involved with legal challenges to CALEA. “After industry has spent all of this money, it turns out its generating all of this data that has to be translated by special-purpose machines that have to be bought by local law enforcement. This may have the effect of pricing wiretaps out of the market for a lot of smaller jurisdictions.”
Baker also said that while CALEA is supposed to apply only to voice communications, the FBI has been “pretty aggressive” when it delves into the packet data realm, “trying to persuade people who build data networks that sooner or later they will have to provide wiretap capability.”
“A year ago, when times were good, everybody leaned towards the view that it was better to not pick a fight with the FBI,” Baker said. “Now its less clear that people have the funds to spend on development or to purchase this stuff, so there could be a serious conflict over this and there is certainly a difficult question for people who are building Internet Protocol systems.”