In 1994, Congress passed the Communications Assistance for Law Enforcement Act (CALEA). The law was designed to make it easier for law enforcement and criminal investigation agencies to wiretap telephone conversations. While the entire legislation was bitterly controversial, one of the most contentious provisions of CALEA was the demand for the capability to ascertain specific information about telephone calls without a warrant. Since then, the telecommunications industry, the Federal Bureau of Investigation (FBI), the Federal Communications Commission (FCC), and civil liberties advocacy groups have been squabbling about how to bring the telecommunications networks into compliance with the law. In mid-April, the FCC ordered the telecommunications companies to comply with CALEA by the end of June.
CALEA requires telecommunications carriers to provide law enforcement and investigation agencies with not only wiretapping capabilities but also “call-identifying information” that contains telephone numbers dialed as well as the telephone numbers of incoming calls. In order to obtain a full wiretap, law enforcement has to convince a judge that there is probable cause that the target of the surveillance has committed a crime. In order to obtain “call-identifying information,” a police officer only has to certify that the surveillance is “relevant to an ongoing criminal investigation.”
Of course, there is disagreement over what “call-identifying information” covers. The privacy groups say it’s congressional verbiage for “phone numbers” while the FBI wants it to include additional information—referred to as “dialed-digit extraction”—including all the numbers dialed during a phone call.
Think about this for a minute. Using “dialed-digit extraction,” law enforcement would be able to obtain your voicemail and telebanking PINs without a warrant. And that’s just for starters. What else you do with the buttons on your telephone?
In August 1999 various privacy advocacy organizations, including the Center for Democracy and Technology (CDT), filed a lawsuit to block the expanded wiretapping capabilities demanded by the FBI on the grounds that what the FBI wanted was much more extensive than what Congress intended. A year later, the U.S. Court of Appeals for the District of Columbia blocked the expanded capabilities and everyone assumed that the FBI had accepted defeat because the agency simply stopped requesting expanded wiretapping capabilities.
Since the 11 September 2001 attack, however, it’s become unpopular—unpatriotic, even—to question any request for expanded surveillance capabilities from any law enforcement or criminal investigation agency. Congress went so far as to foolishly pass the USA Patriot Act, in a knee-jerk reaction, which includes provisions for many of the warrantless expanded surveillance capabilities requested by the FBI and blocked by the U.S. Court of Appeals for the District of Columbia. So the FCC merely added some explanations required by the court and reissued its order.
One of the primary areas of contention surrounding CALEA has been interpreting whether the law applies only to telephone conversations or data traveling on the network as well. Predictably, the FBI interprets the law as applying to anything that travels across the network, and the USA Patriot Act goes a long way to supporting this interpretation by making it clear that the digital equivalent of “call-identifying information” applies to all Internet traffic, including email. This is especially problematic because a digital message packet contains call-identifying information that is inseparable from the content of the message.
And just where are the privacy advocacy organizations in all of this? It would appear that dissent is no longer palatable to them. It’s much easier to underwrite the creation of cute cartoon parodies of Disney than it is to question the integrity of our government. It’s more popular and helps with the fund-raising effort as well. The American Civil Liberties Union (ACLU), the Electronic Frontier Foundation (EFF), the Electronic Privacy Information Center (EPIC), and the Center for Democracy & Technology (CDT) have collectively and individually dropped the ball on this issue.
So far, not one of the telecommunications companies has made any move to challenge the most recent FCC order. The only reason the telecommunications companies resisted the FCC order in 1999 was because they feared the high costs associated with adding the expanded wiretapping capabilities to their networks. Even though CALEA provided US$500 million to offset the costs of upgrading the networks to comply with the new law. There’s no telecommunications industry resistance to the latest FCC order because the telecommunications companies have already implemented the technology necessary to comply with the FBI’s demands. According to Jeffrey Benner in an excellent article in Salon, the FBI used the money to pay the telecommunications companies to implement the expanded surveillance capabilities in their equipment:
“As part of CALEA, Congress set aside $500 million to defray costs the industry would incur to make the necessary upgrades to comply with the law. The FBI disburses this money. So, even though the court blocked four of the six items on its wish list in 2000, the bureau went ahead and cut deals with all the major telecom switch manufacturers. They agreed to build their equipment according to the FBI standards, and the FBI paid them millions to do it.”
Even more disturbing is the FBI’s renewed exuberance in pursuing expanded surveillance capabilities anywhere and everywhere. Al Gidari, a telecommunications attorney specializing in government surveillance issues, told Benner that the FBI is “currently working behind the scenes with other standards-making bodies to get the surveillance capabilities it wants built into Internet Protocol telephony, DSL, the wireless Web, and other communications platforms, even some that are exempt from CALEA.”
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