WASHINGTON-The Clinton administration and the wireless telecommunications industry are in a standoff over the implementation of the 1994 digital wiretap law, also known as the Communications Assistance for Law Enforcement Act.
In a reported 17-0 vote, members of a Telecommunications Industry Association ad hoc engineering committee-including representatives of cellular carriers and manufacturers-rejected a Sept. 19 attempt by the Federal Bureau of Investigation to broaden tenets of the law beyond its actual scope.
The FBI had been lobbying to include its Electronic Surveillance Interface into a standards document being crafted by the committee as part of CALEA, but members opposed it on the grounds that the bureau was supposed to be held to current wiretap restrictions, which do not allow such monitoring.
Despite the possibility of being slapped with a $10,000-per-day fine for noncompliance with the law, cellular carriers want clarification from Congress regarding the intent of the act and whether the FBI has grounds for its proposed amendments.
According to Jerry Berman, executive director of the Washington, D.C.-based Center for Democracy and Technology, the FBI wants TIA’s standards-setting committee to mandate changes in wireless network design to facilitate:
tracking the physical location of a wireless subscriber any time the phone is turned on, even if no call is in progress,
tracking a wireless subscriber as he or she moves from one carrier’s area to another carrier’s area,
tracking the physical location of a caller when a call is made or received and
delivery of this information to a law-enforcement agency in real time.
Berman’s group currently is working on a review of electronic surveillance issues at the request of Sens. Patrick Leahy (D-Vt.) and Arlen Specter (R-Pa.), and it plans to urge Congress not to authorize any CALEA implementation spending “until the FBI can justify its demands.”
“The FBI is demanding that every cell phone double as a tracking device, providing instant location information, not just when a person is talking but whenever a cellular phone is turned on,” Berman said. “The FBI is demanding real-time tracking of anyone suspected of committing a crime. This is a clear violation of the statute and of the Fourth Amendment.”
Although the Cellular Telecommunications Industry Association is not a member of the TIA committee, it did have a representative at the meeting. “The industry is getting one set of instructions from Congress and one set from the FBI, and they are not in sync,” said CTIA spokesman Tim Ayers. “We are big supporters of CALEA, wiretaps and the FBI but location goes well-beyond what Congress said in the act.”
Echoing Ayers was Ron Nessen, CTIA’s senior vice president of public affairs and communications. “Our problem is that we are caught between conflicting instructions. The law clearly doesn’t require us to turn cellular phones into locator beacons. Money [for implementation] is not the issue here; it’s really a trying-to-get-clear-instructions issue. We’ve got to find a solution to this.”
Yet one law enforcement source said money is at the heart of the dispute, saying AT&T Wireless Services Inc.-the nation’s largest cellular operator-resists making modifications because of the added expense.
Indeed, the cellular industry was reluctant initially to embrace enhanced 911 wireless service, saying it was a local issue that required more time to sort out technologically. Still, hundreds of thousands of wireless 911 calls are made each year, making pocket phones arguably the most popular public-safety tool in America. The wireless industry is now more pro-active in promoting E911 services.
“The law was designed to freeze the FBI in time, not as a blank check to design the telecommunications network any way it pleased,” Berman said. Berman also cited House Judiciary Committee testimony given by FBI Director Louis Freeh-and included in its final report-that “the legislation was intended to preserve the status quo, that it was intended to provide law enforcement no more and no less access to information than it had in the past.”
