December 23, 1997


by Andy Oram
American Reporter Correspondent

CAMBRIDGE, MASS.—A shaky balance has existed for years between law enforcement officers who swear by the value of wiretapping and civil liberties groups that have protested its abuses. A compromise established by a 1968 law has been gradually frayed by new technology: programmable digital switches, mobile phones, and advanced services like call forwarding.

Passed in 1994 but not yet implemented, the Communications Assistance for Law Enforcement Act (CALEA) tries to re-balance the old compromise on a new technological basis. The FCC has recently released a notice asking for comments on how to implement this law. While most of the FCC’s role is the hum-drum one of approving technical plans and determining reasonable costs, they also are charged with considering "the need to protect the privacy and security of communications not authorized to be intercepted."

In other words, the job of the FCC and the service providers includes protecting the public from unlawful wiretaps. The comment period has given a new impetus for traditional wiretapping critics—like the American Civil Liberties Union—to indicate that the law says more than what telephone companies must do to help the police: it also says what the companies must not do.

CALEA is no minor undertaking. Introduced by the Bush administration, the law passed through innumerable Congressional hearings that scrutinized every detail of law enforcement’s requests. Five hundred million dollars were released to pay telephone companies for CALEA’s implementation, and the FBI has held hundreds of meetings with companies to represent the interests of police departments nationwide.

CALEA is the first bill that requires manufacturers to actually design equipment around the ability to wiretap. This precedent has now been extended to the more highly publicized area of computer encryption too: the FBI and Clinton Administration want encryption products to include back doors for law enforcement to decrypt any communication. CALEA may be even more important than the computer encryption debate, because a lot more people use a telephone than send encrypted email messages.

The problem with the new telephone switches, like so much digital technology, is that they dislodge a compromise from its comfortable middle ground and propel it to one all-or-nothing extreme or another. Mechanical switches require some work to wiretap, so they impose a practical restraint on how many wiretaps are installed. Unless specially designed to permit wiretapping, digital switches make it unworkable under some circumstances. But if they are specially designed to permit it—as CALEA requires—they make it so easy that it could become much more widespread.

Furthermore, new technology raises questions that never existed before. With traditional land-wire telephones, police never had to ask where a suspect was when making his call. Mobile phones allow suspects to make calls from anywhere.

The legal system has offered constraints on wiretapping for a long time. Merely to learn the phone numbers that someone is calling, or being called from, requires a warrant and a court order. Retrieving the actual content of the call requires an order from a District Court. Furthermore, the police have to justify wiretapping as a last resort, by proving that the use of informers or other methods of collecting information is unfeasible or dangerous.

The courts are the main line of defense in protecting privacy, but CALEA also places some responsibility on the telephone companies to make sure the law is not breached right at the switch. They are supposed to make sure their staff follow the law and keep records of wiretaps, and their plans must be reviewed by the FCC.

In a comment submitted on last week to the FCC by several organizations (one of which, CPSR, I am affiliated with), the Center for Democracy and Technology suggests that record-keeping at telephone switches should go much further than the simple logging of requests for wiretaps. They point out that computerized auditing techniques are also valuable, as they are at computer sites. Auditing is an automated way of checking traffic so that administrators can look for unusual patterns that suggest break-ins; it has been a central part of computer network security for years and may, according to the CDT, be equally important for telephone networks when switches go digital.

The FBI disagrees with CDT about how much of a role the FCC should play. But both agree that it is responsible for determining whether the standards used by telephone manufacturers and services adhere to the law.

Barry Smith, Unit Chief of the FBI’s Office of Public and Congressional Affairs, says the FBI will insist that implementations give them everything allowed by CALEA. Meanwhile, the ACLU and CDT are acting as watchdogs to pounce if the implementation gives anything more. The FCC will have to answer to both sides; "if the scale do turn but in the estimation of a hair" there will be hell to pay.

There have been plenty of other skirmishes between the FBI and civil liberties groups over implementation details. The latter, for instance, accuse the FBI of holding up implementation by stating their requirements in a confusing manner (as percentages of switch capacity). Smith says the FBI was just using the measurement system the phone companies asked it to use.

One way or another, wiretapping will remain a tool of law enforcement. Spokespersons for the FBI say that its demands are by no means frivolous, and stay within current restraints maintained by laws and courts.

An incident discussed heavily in Congress during CALEA hearings was a plan by a Chicago street gang to shoot down a jet leaving O’Hara airport; wiretapping was critical to blocking the attack. Mike Ponzo, Unit Chief of the FBI’s CALEA Implementation Section, also says that without wiretapping, "the Mob would be alive and well in New York City."

The example of New York, of course, reminds us that law enforcement officers themselves can be criminals; that’s what gives civil liberties organizations worries about the implementation of CALEA. Meanwhile, disputes over how much wiretapping access is legal and reasonable have dragged out negotiations between the FBI and the telephone companies. Three years after enactment of the law and less than a year before it requires companies to comply, no one knows how much access they will allow or quite how it will be done technically.

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