Communications Assistance for Law Enforcement Act
By Michael Fraase
Thursday, 02 September 1999 02:17PM CDT
Section: 07 Personal privacy
In March 1994, the FBI trotted out a revised Digital Telephony proposal. This time FBI Director Louis Freeh provided secret documentation to the House and Senate Judiciary Committees outlining 180 cases in which court-authorized FBI wiretaps had been at least partially subverted. The FBI proposal became law as the Communications Assistance for Law Enforcement Act (CALEA).
CALEA mandated that all American telecommunications networks placed in service after 1994 be configured to enable complete and transparent interception by law enforcement agencies. The statute included a cryptography provision making telecommunications carriers responsible for any encrypted traffic on their networks that used encryption provided by the carrier. (For more information of the cryptography aspects of CALEA, see the “Cryptography” chapter beginning on page 237.)
One of the provisions of CALEA required the attorney general to accurately publish the maximum wiretap capacity required by law enforcement agencies. In October 1995, the capacity requirements were released, and the FBI claimed it would need wiretaps on approximately thirty thousand telephone lines simultaneously. There are about 160 million telephone lines in the United States, and the FBI’s requirements were more than four times the total number of wiretaps executed in 1993.
Shortly after the release of the proposed wiretap capacity requirements, the FBI creatively interpreted CALEA, proposing that cellular carriers implement a standard that would allow law enforcement to determine the exact location of a cellular telephone within a half a second. Before CALEA was passed, FBI Director Louis Freeh testified before Congress, promising that the proposed legislation would not expand law enforcement’s wiretapping abilities. The language of CALEA clearly precluded cellular location information:
“... call-identifying information shall not include any information that may disclose the physical location of the subscriber….“
FBI Director Freeh also pressed for the ability to activate roving wiretaps without having to get individual court orders for each wiretap. At about the same time, President Clinton was also pressing for expanded electronic surveillance capabilities, including the bizarre idea that illegally obtained electronic surveillance information could be used in court, so long as it had not been obtained in “bad faith.“ For the most part, Congress kept a level head and rejected most of these proposals. Congress did, however, approve US$500 million for full implementation of CALEA and approved the use of subpoenas instead of search warrants to obtain telephone records.
Shortly after the explosion of TWA Flight 880 in August 1996, FBI Director Freeh and President Clinton renewed their efforts to expand the use of electronic surveillance on American citizens. Proposals included emergency wiretaps without warrants for forty-eight hours, airline passenger profiling, and roving wiretaps. The FBI and the Clinton administration clearly appeared to be leveraging widespread suspicion of terrorist responsibility for the airline explosion in order to fuel an effort for expanded surveillance powers. Again, Congress rejected the proposals.
The investigation of the TWA Flight 880 disaster was eventually closed; the cause of the explosion is now assumed to have been mechanical failure, not the act of terrorists.
In mid-February 1997, the FBI yet again revived its efforts to garner support from telephone companies and telecommunications trade associations for its plan to modernize and expand the agency’s system for eavesdropping on telephone conversations. The telecommunications industry was near unanimous in its opposition to the FBI’s expansion effort.
By October 1997, some members of Congress were beginning to question whether the FBI had overstepped the provisions of the CALEA legislation.
Three years after CALEA, not one dime had been spent on updating the nation’s telephone switches and the FBI still hadn’t provided specifications for the digital wiretapping system. The deadline of October 1998 was fast approaching. The FBI’s CALEA implementation proposals had been strongly opposed by privacy advocates and the telephone companies. The privacy advocates were concerned about the increased wiretap capabilities. The telephone companies were concerned about the cost of implementation. The phone companies argued that they couldn’t begin their upgrades until the FBI’s specifications were approved. As of early July 1998, the stalemate continued.
The FBI plan would, for example, enable Los Angeles County, California law enforcement officials to expand surveillance capabilities by a factor of more than 100 times the current capacity of 1,360 simultaneous wiretaps. Additionally, it would be legal for law enforcement agencies to wiretap conference calls and continue to eavesdrop on the call even after the subject of the investigation had hung up.
The Cellular Telephone Industry Association calculated that the FBI’s historical data shows that the highest number of simultaneous cellular telephone taps ever conducted—local, state, and federal combined—was 6,070. Now the FBI was proposing that it be given the ability to monitor a total of 103,190 simultaneous cellular calls. At the same time, most reported statistics tend to indicate that the crime rate is actually falling.
By February 1998, the FBI was riding the expansion of power hobbyhorse yet again; this time proposing that its wiretapping authority be expanded to include communications sent over Internet backbones and wireless devices. Civil liberties groups and privacy advocates responded swiftly by calling for a cut off in future funding and a Congressional investigation.
The FBI, as it had in the past, continued to deny any and all accusations that it was seeking to expand its wiretapping powers and specifically pledged it would not take advantage of packet-switching networks (like the networks that comprise the Internet) to secretly eavesdrop on or intercept communications.
Opponents of the FBI plan contend that the convergence of voice and data on packet-switched networks, including the Internet, would be included under CALEA as it is currently written and asked for changes to the statute.
In a packet-switched network, such as those that interconnect to form the Internet, data from multiple users are combined and sent along in packets across the network. Potentially, any information contained within the packets of a court-authorized wiretap target would be subject to interception. In effect, the conversations of many different, unrelated people could be simultaneously surveilled with a single wiretap order.
“It is our belief that CALEA has created an unworkable, impractical, and potentially unconstitutional surveillance scheme that threatens the privacy of citizens and the security of our nation’s telecommunications infrastructure,“ wrote a consortium of advocacy groups in a letter to Congress. Among those groups were the Electronic Frontier Foundation, the Electronic Privacy Information Center, and the American Civil Liberties Union.
In late April 1998, just as this book was being finalized, the Cellular Telecommunications Industry Association together with the Personal Communications Industry Association filed suit in a Washington, DC federal court against the FBI and Justice Department. The suit alleged that the FBI and Justice Department are asking for a wiretapping system that is much more intrusive and significantly more expensive than the one provided for under CALEA.
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