WASHINGTON-Members of the House Subcommittee on Crime now know what the wireless industry has recognized but the public-safety community refuses to admit: that the two parties are no closer to an agreement on the Communications Assistance for Law Enforcement Act than they were when the bill was signed into law three years ago.
A marathon hearing Oct. 23 that included testimony from wireless, wireline and privacy association heads and employees of the FBI revealed to Congress that CALEA standards are at an impasse and that there is virtually no chance the communications industry will be prepared to comply with CALEA strictures by Oct. 25, 1998. Two industry-written standards proposals have been rejected by the FBI and other law-enforcement concerns, and a third currently is being voted, although the FBI has said it will reject this latest incarnation as well because it does not include all of the far-reaching list of demands made by the agency.
The FBI would like to solve the dispute piecemeal, while industry representatives say the four parts of the issue-capability, capacity, cost reimbursement and compliance dates-need to be addressed simultaneously.
“This hearing concerns the implementation of CALEA,” said subcommittee chairman Bill McCollum (R-Fla.). “It appears now that this may not occur, and a primary purpose of this hearing is to find out why… The stalemate must be broken, and soon. I hope that it will be resolved through cooperation and compromise of all parties in the near future. If this is not the case, however, I intend to involve this subcommittee-the authorizing subcommittee for this legislation-to end this impasse.”
It appeared that the congressional panel leaned more toward the industry’s point of view on the problems than it did on the FBI’s explanation, with Rep. Steve Chabot (R-Ohio) saying that the industry “has made a good-faith effort since the beginning,” and questioning the FBI’s commitment to negotiation.
The communications industry panel included Tom Wheeler, president of the Cellular Telecommunications Industry Association; Jay Kitchen, president of the Personal Communications Industry Association; Matthew Flanigan, president of the Telecommunications Industry Association; Roy Neel, president of the U.S. Telephone Association; and James Dempsey, senior staff counsel for the Center for Democracy and Technology.
Much of their testimony had been given previously in different venues, but the conclusions are the same-wireless and wireline operators cannot implement the switching changes needed for CALEA before a standard is adopted, and a standard cannot be adopted that includes FBI wants and needs that specifically were not addressed in the original bill.
“Wireless wiretaps accounted for less than 25 percent of all wiretaps conducted in 1993. The wireless share of wiretaps has grown, according to the government’s 1996 Wiretap Report, to exceed 32 percent of all wiretaps conducted,” said Wheeler. While the wireless industry has an incentive to move forward to stem this tide, “unfortunately, the FBI has not managed the implementation process well,” Wheeler added.
Ticking down the list of contributing factors to the stalemate, Wheeler noted that the FBI has promoted its own standard instead of those forwarded by the industry, a move prohibited by CALEA; that even after nearly three years, law enforcement entities have not published a final notice of capacity requirements, even though it was supposed to do so in 1985; that the FBI’s cost-recovery rules are completely opposite those of CALEA; and that these factors make an October 1998 compliance date impossible.
What Wheeler wants is FBI adoption of industry standard SP-3580; that it file a capacity report that includes historical wiretap experience, reasonable future projections, and FBI-borne changeout reimbursement; that the Jan. 1, 1995, reimbursement date be revised to the date when a standard is adopted; and that the October 1998 compliance date be moved back two years following adoption of a standard.
“Until those standards have been set by law enforcement and industry, and equipment and software have been produced by manufacturers and provided to carriers, [the personal communications services industry] simply won’t have the means to meet the compliance requirements. It’s like building a house without blueprints,” said PCIA’s Kitchen. “What makes that all the more disturbing is that, under CALEA, it’s the carriers-many of which are small, start-up companies struggling to survive-that face penalties of $10,000 each and every day until compliance is reached.”
Kitchen added that, under CALEA, PCS carriers, unlike their cellular and wireline counterparts, can’t ask for reimbursement when their switches are made compliant because of a clause that says any companies that deploy systems after Jan. 1, 1995-less than three months after the bill became law-cannot bill the government for replacement and retooling costs.
What Kitchen would like to see is a change in the reimbursement and compliance dates of 18 to 24 months after a standard is approved and that the FBI use the $500,000 that already has been allocated to pay switch manufacturers for software upgrades that make pre- and post-1995 equipment compliant.
Jim Dempsey, who presented a more privacy and civil rights aspect of CALEA and what the FBI wants to do with it, feared that if that agency is allowed to strong-arm its set of demands through the standards process now, the same thing will happen again. “If the FBI can drive people to the wall now, when technology changes, will it come up with a whole new list?” he asked.
“It sounds like the FBI used the system legitimately to stuff the ballot box,” McCollum commented following industry testimony. His colleague, Steve Buyer (R-Ind.), added, “This gives good-faith negotiations a bad name. We know that the dialogue has got to continue, and that this is a marriage that will be difficult for some time.”
Michael Warren, chief of the FBI’s CALEA implementation section, denied that the agency had derailed the standards process, saying that he had liked the first standards, but that when “critical requirements” were pulled from it, the FBI removed its support. If the third standard, now being voted, were to pass, the FBI would challenge it in court, he admitted.
Warren also testified that discussions held with “five or six manufacturers” indicated that at least three of them would be able to have CALEA-compliant equipment ready by the deadline. Due to nondisclosure agreements, he would not reveal the names of these suppliers in public, but he assured the subcommittee that he would submit the names in writing. According to Mary Brooner, an attorney in Motorola Inc.’s Washington, D.C., office, her company was not one that signaled any kind of CALEA readiness.
Warren and his colleague, Edward Allen, chief of the FBI’s electronic surveillance technology section, also admitted that their reluctance to reimburse industry costs for equipment deployed after Jan. 1, 1995, was not based on CALEA, which said that under some circumstances, such costs could be repaid. They also said that the noncompliance fines contained in the FBI’s proposed standard were not a threat to the industry.
Warren also could not quantify the costs of what the FBI wants from the communications industry, saying that its report would be ready next January. Rep. Robert Wexler (D-Fla.) questioned him as to how the industry could install equipment if manufacturers don’t know what the FBI needs or wants and if carriers don’t know either if they’ll be reimbursed for new equipment or if they even will be in compliance.
Following the FBI’s discussion, CTIA’s Wheeler wondered if anyone thought there were “two separate hearings going on,” calling the FBI’s testimony “a smoke screen.”
Like Dempsey, PCIA’s Kitchen said his group is concerned with not only pending standard
s but what could happen in 1999 with changing technology. Privacy infringement als
o is an issue along with the costs of new equipment.
“Manufacturers always are willing to talk price, but they don’t want to discuss cost,” he said.
Chairman McCollum told the government officials that while his committee did not really want to move back CALEA’s compliance date, the lack of standards could force them to do so. Rep. Bob Barr (R-Ga.) added that Congress “obviously had to get involved with this … government has too much power and it breaks its promises.”
