Info Watchdogs Challenge FBI Wiretap Plan

by Rebecca Vesely

3:06pm 11.Aug.97.PDT -- Saying they want to stop the FBI from overreaching its legal authority to tap into digital communications, two privacy groups filed a petition Monday asking the Federal Communications Commission to mediate the bureau's attempts to create a huge new system of surveillance.

"It's become really clear that the FBI is overstepping its authority," said Alan Davidson, staff counsel for the Center for Democracy and Technology, which, along with the Electronic Frontier Foundation, filed the petition.

The move is the latest in a two-year struggle between law enforcement, privacy groups, and phone companies over a 1994 law called the Communications Assistance for Law Enforcement Act. Known as CALEA, the law requires phone companies to factor in surveillance needs as they adopt new communications technology. Congress mandated a US$500 million federal payment to help industry accomplish the task and to create national standards for equipment redesign. So far, Congress has only handed over $100 million, and phone companies and privacy groups say that the FCC needs to step in and mediate the process.

"We determined last month that we had reached an impasse," said Tim Ayers, spokesman for the Cellular Telecommunications Industry Association, which filed a similar petition with the FCC in mid-July on behalf of 90 percent of the nation's cellular carriers, and with backing from the US Telephone Association.

Ayers said the FCC needs to broker a deal or to push back the 1 October 1998 deadline the law sets for phone companies to install the hardware necessary for digital wiretapping.

For the time being, the FBI has slowed down work on developing its phone-system specifications under CALEA. The bureau has issued no final "capacity" proposal on how many wiretaps it will need per year, though the bureau estimated in January that it would need to perform 60,000 simultaneous wiretaps on the country's 160 million phone lines.

FBI assistant director James K. Kallstrom said at the time that estimate was released that "the act and the steps flowing from it do not give law enforcement any new powers to conduct electronic surveillance."

The bureau had no comment on Monday's petition filing.

The two privacy groups say that the FBI's efforts to influence the "capability" section of the 1994 law overreaches its authority. The provision leaves it up to the industry to determine how law enforcement will get wiretap access. Under current federal law, wiretapping requires a court-approved warrant, and is subject to court supervision. Less intrusive surveillance techniques - such as a "pen register," which records the numbers dialed in an outgoing call, or "trap and trace," which identifies the phone number and location of an incoming call - can be done without a warrant, or even probable cause, and are used much more frequently.

But traditional "circuit switching" of phone lines, in which content and origin of the call are separate entities, is being replaced with Net-like packet-switching, in which the content of the call and the origin of the call are in one package. That's a dangerous combination, privacy groups say, because law enforcement looking for origins of phone calls would have access to content of the conversations without judicial review.

Some CALEA critics say that merely filing a petition for FCC mediation does not go nearly far enough and that the whole premise of the law ought to be scrutinized.

"FBI demands have become so broad that [the law] has become unconstitutional," said Barry Steinhardt, associate director of the ACLU, which along with the Electronic Privacy Information Center, said it also plans to file a petition with the commission.