IP: CDT comments on FBI legislative proposal on CALEA

[Dave Farber <farber () cis upenn edu>]

Anyone who wants a fax of the FBI language, please call Danielle at 637-9800. 


Following is CDT's analysis of the proposal, which we are circulating widely.  


Bottom line: this as an FBI effort to renege on the deal it made in 1994. The FBI does not want to subject its 
surveillance demands to the type of public scruntiny and the type of privacy balancing test that CALEA is based on. 


The NYT focused on wireless tracking, but that is a byproduct of the journalist's need to personalize an issue like 
this.  Anybody not steeped in CALEA gets lost when you start talking punch-list and "reasonably achievable" and "deemed 
in compliance." 


Now that there is some controversy around the FBI language, we need to make clear that the proposal is unacceptable in 
both philosophy and detail, location information aside. 




CDT COMMENTS ON FBI LEGISLATIVE PROPOSAL 
TO EXPAND SURVEILLANCE CAPABILITIES 
AND AVOID CALEA'S CHECKS AND BALANCES 


"I think we have reached a remarkable compromise and achievement in preserving that tool [wiretapping] as it has 
existed since 1968 and yet balancing all the technology and privacy concerns which are so precious to all of us."  FBI 
Director Louis Freeh, Congressional testimony, August 1994. 


Four years ago, FBI Director Freeh hailed the Communications Assistance for Law Enforcement Act (CALEA) as achieving "a 
delicate but critical balance Š between public safety and privacy and constitutional rights." But ever since the law 
was enacted, the FBI has tried to use it not merely to preserve its surveillance capabilities as Congress intended, but 
to expand them, demanding that companies to build expensive new surveillance features.  Using the checks and balances 
in the law, privacy groups and industry have asked the FCC to reject the FBI's demands.  


Now the FBI is asking Congress for a major revision of the 1994 law, to impose the FBI's wish list and strike from the 
Act key provisions intended to ensure a balance between privacy and law enforcement.  The FBI is asking the Senate 
appropriations committee to attach to it funding bill an amendment that would: 


Codify the FBI's entire wish list of enhanced surveillance capabilities --  For over a year, industry and privacy 
groups have opposed the FBI's efforts to use CALEA to expand government surveillance capabilities.  The FBI's proposed 
expansions are now being challenged before the FCC.  The FBI amendment would terminate the FCC proceeding by ordering 
the Commission to adopt without revision the entire FBI wish list, including the capabilities to track wireless phone 
users without meeting constitutional standards and to continue monitoring all parties to a conference call after the 
suspect has dropped off the call. 


Eliminate public accountability - The proposed amendment states that the FCC shall enact the FBI wish list immediately 
and "without notice and comment."  This means that privacy groups would have no right to have their concerns heard. 
When Congress set up the CALEA process, it required the FCC to protect privacy and minimize cost.  The FBI amendment 
would render those considerations irrelevant. 


Require carriers to disclose "the exact physical location" of wireless phone users without any court approval - In 
1994, FBI Director Freeh testified that CALEA "does not include any information which might disclose the general 
location of a mobile [phone]. . .  There is no intent whatsoever Š to acquire anything that could properly be called 
'tracking' information."  Now the FBI is seeking "exact" physical location, going beyond even the cell site information 
industry has offered to provide law enforcement in its CALEA plan now under challenge by CDT on privacy grounds at the 
FCC.  


Furthermore, the FBI amendment, in a provision that purports to address privacy concerns, requires carriers to provide 
tracking information on any wireless phone user for up to two days without a court order, upon the mere request of any 
police officer.  This is less protection than current law. 


Establish a bogus standard for access to location information - In what the FBI will undoubtedly characterize as a 
concession to privacy, the amendment would require wireless carriers to provide location information whenever presented 
with a court order "based upon a finding that there is probable cause to believe that the location information is 
relevant to a legitimate law enforcement objective."  This is actually weaker than current law, which requires at least 
that the information be relevant and material to an ongoing investigation. "Legitimate law enforcement objective" 
doesn't even require that police have an ongoing case.  The use of the words "probable cause" do not make this 
acceptable.  The issue is "probable cause" to believe what?  It should be to believe that the individual using the 
phone is committing a felony, which is what Sens. Ashcroft and Leahy have proposed in their bill S. 2067. 


Write "reasonableness" out of the statute - In 1994, Director Freeh testified that CALEA "reflects reasonableness in 
every provision."  The statute specifically said that carriers could be required to modify their systems for law 
enforcement purposes only if the changes were reasonably achievable.  Now the FBI amendment would amend the Act to 
state that compliance with the FBI's wish list is "deemed reasonably achievable."  To "deem" something means that we 
pretend it is so even when it isn't.  This amendment deprives the FCC of jurisdiction to assess the feasibility and 
cost of CALEA compliance. 


Prohibit further extensions - One of the most important safety valves in CALEA was the provision allowing the FCC to 
grant extensions of time if compliance was not reasonably achievable.  The FBI amendment would grant carriers a one 
time extension and then deny the possibility of any further extensions. 


Packet networks - In another provision that will be characterized as a concession to privacy, the amendment states that 
carriers "to the extent possible" shall separate call-identifying information from content when transmitted as 
packet-mode data.  CDT has asked the FCC to determine how and when this can be done.  By depriving the Commission of 
authority over implementation of CALEA, the FBI amendment may be precluding privacy groups and others from having any 
input in deciding how surveillance is to be conducted in the packet networks that represent the future of telephony. 


Bottom line - The FBI is trying to rewrite CALEA to get what it failed to get from Congress four years ago, what it has 
failed to get since from industry and through the FCC.  The FBI's overreaching is under challenge at the FCC and in the 
courts, and this legislation is an effort to cut off those challenges.  The granting of a one-time extension to 
industry and the purported concessions to privacy do not come close to justifying a fundamental reneging on the CALEA 
bargain, which is what the FBI amendment would do. 


Further information:  Jim Dempsey (202) 637-9800.