-Caveat Lector- FCC MANDATES NEW TELEPHONE SURVEILLANCE FEATURES On Friday, August 27, the Federal Communications Commission (FCC) ordered the nation's telephone companies to modify their switching equipment to provide more information to government agencies conducting electronic surveillance. The Commission largely rejected privacy concerns and aligned with the Federal Bureau of Investigation, which had sought the enhanced monitoring capabilities under the 1994 Communications Assistance for Law Enforcement Act (CALEA). The decision was the latest step in a long-running struggle over the surveillance potential of communications technology. CALEA was enacted in 1994 after the FBI complained to Congress that new digital technology and other advanced services would soon make it impossible to carry out wiretaps and other electronic surveillance. The FBI originally sought direct control over phone system design. Congress refused to grant the Bureau that kind of power, but adopted CALEA with the intent of balancing law enforcement, privacy and industry interests. Congress made it clear that CALEA was intended to preserve but not enhance government monitoring capabilities. The Act left design decisions to the telephone industry, subject to FCC review. However, soon after CALEA was enacted, the FBI began insisting on very specific surveillance features, including some never before available to the government. After industry worked with law enforcement agencies to draft technical standards to put CALEA into effect, the FBI claimed the industry plans did not go far enough and petitioned the FCC to order additional, specific surveillance features. CDT claimed that the industry plan failed to protect privacy and opposed the FBI's add-ons. _________________________________________________________________ (2) TURNING CELL PHONES INTO TRACKING DEVICES; OTHER FEATURES The most immediately disturbing element of the FCC's ruling was its requirement that cellular and other wireless phone companies provide the capability to identify where their customers are at the beginning and end of every call, effectively turning wireless phones into tracking devices. In 1994, FBI Director Louis Freeh testified twice before Congress that CALEA did not cover this kind of location information. While many cellular systems already have some ability to locate callers, CDT argued to the FCC that this should not be a mandatory element of system design. CDT was concerned that, as the technology evolves, the FBI is likely to seek more and more precise location information. The FCC ignored the legislative history and rejected CDT's concerns In addition, for both wireline and wireless systems, the FCC ruled that six other specific surveillance features sought by the FBI were required by CALEA. One of the six requires carriers to ensure that the government will be able to continue listening to those on a conference call after the criminal suspect has dropped off the call. Another add-on guarantees the government access to credit card numbers and bank account data generated when a user punches numbers on a telephone. Other add-ons ensure government access to the detailed signaling information generated in connection with calls, information that law enforcement would obtain under a legal standard lower than the one required to conduct a wiretap. CDT and the telephone industry had argued that none of these items was required by CALEA. Carriers are currently required to comply with most aspects of CALEA, including the location mandate, by June 30, 2000. The other features required by the FCC last week must be available to the government by September 30, 2001. _________________________________________________________________ (3) PACKET SWITCHING - CALEA'S SLEEPER ISSUE One CALEA issue of immense importance has received little press attention: how to conduct electronic surveillance in packet environments. Packet technology, until recently used mainly on the Internet, breaks communication into many small packets, each consisting of some addressing information and some content. For efficiency's sake, the packets may be transported by various routes, and are reassembled at their intended destination to create a coherent communication. Packet technology is becoming increasingly important for voice communications, posing the risk that the government will obtain access to the content portion of packets when it has only satisfied the lower legal standard for intercepting the call routing or addressing information. CDT argued that CALEA imposes on carriers an affirmative obligation to design their equipment, to the extent technically reasonable, to withhold content from the government when the government has not met the legal standard to intercept it. Industry responded that carriers should be allowed to disclose everything to law enforcement, including content, and rely on the government not to read (or listen to) what it is has no authority to intercept. The FCC declined to require carriers to protect the privacy of packet communications that the government is not authorized to intercept. Instead, the FCC requested the industry to report on what steps can be taken to protect the privacy of packet communications. Last Fall, the Commission asked the same question and industry said that protecting privacy was too hard. This leaves it to CDT to prove to the industry that the technology can be designed to protect privacy. ______________________________________________________________ (4) CDT EXAMINES APPEAL CDT had believed that CALEA was a balanced statute. We had accepted the FBI Director's assurances that the statute would not be used as a mandate for cell phone tracking, and we had believed that the FCC would resist any FBI efforts to dictate surveillance enhancements. Yet on all the issues that mattered, the Commission ruled against privacy and in favor of expanded law enforcement surveillance. The ability of the FBI to turn CALEA on its head does not generate confidence in government claims to be seeking balanced solutions on other issues such as encryption. CDT is deciding whether to appeal the decision of the FCC to the federal Court of Appeals in the District of Columbia. As of August 31, the full text of the FCC's order has not been released. The only official description of the FCC's action comes in the form of FCC press releases, which are available at http://www.cdt.org/digi_tele/fccpress0899.shtml For background on CALEA, go to http://www.cdt.org/digi_tele/. _______________________________________________________________________ (5) SUBSCRIPTION INFORMATION Be sure you are up to date on the latest public policy issues affecting civil liberties online and how they will affect you! Subscribe to the CDT Policy Post news distribution list. CDT Policy Posts, the regular news publication of the Center for Democracy and Technology, are received by Internet users, industry leaders, policymakers, the news media and activists, and have become the leading source for information about critical free speech and privacy issues affecting the Internet and other interactive communications media. 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