WASHINGTON-New revelations surfaced last week of a rift in law enforcement over balancing commercial, privacy and crime-fighting interests in the new age of digita l wiretaps.
Until recently, law enforcement presented a united front in fighting wireless telecom carriers and privacy advocates over the implementation of the 1994 digital wiretap law known as the Communications Assistance for Law Enforcement Act.
Now, there are signs of a crack in law enforcement’s armor. There is internal warring, and it goes beyond CALEA.
The schism came into full light last week when it became public that the Justice Department weighed in against a bill pending before Chairman Henry Hyde (R-Ill.) and House Judiciary Committee members that would lower the legal standard to obtain a search warrant for numeric clone pagers.
A lead Washington Post editorial last week applauded Justice’s move.
“As an agency that frequently faces problems from legal standards that distinguish among functionally similar technologies, we are very concerned about proposals, such as this one, that would subject some cl asses of wireless electronic communications to a lower standard than other electronic communications,” said Acting Assistant Attorney General Ann M. Harkins, in the May 20 letter to Hyde.
Harkins added, “We are unaware of any law enforcement need for such authorization and believe that the proposal is unwise as a policy matter … and raises significant constitutional concerns under the Fourth Amendment.”
Hyde subsequently tabled the clone pager bill, which late last year passed the Senate without much trouble.
Charles Boesel, spokesman for Sen. Mike DeWine (R-Ohio), said the FBI and the Drug Enforcement Administration helped craft the clone pager provision in the Violent and Repeat J uvenile Offender Act of 1997.
Justice and the FBI also have differed over the handling of alleged campaign finance violations by the Clinton administration, with FBI taking the harder line.
“The FBI defers to the Department of Just ice with regard to their letter,” said Barry Smith, an FBI lobbyist.
DEA declined to comment.Rob Hoggarth, senior vice president for paging and messaging for the Personal Communications Industry Association, welcomed the Justice le tter.
“The one concern that the industry has is being put between a rock and a hard place,” said Hoggarth. He said paging carriers are committed to working with law enforcement, but “the last thing we want is to be at the mercy o f lawsuits from persons subject to unlawful searches.”
Earlier this year, prospects for resolution of differences between the FBI and the telecom industry over CALEA implementation were heightened when Attorney General Janet Reno intervened to arbitrate.
In a March 18 letter to telecom trade associations, Reno apologized for the FBI overstating CALEA “punch list” requirements and offered in a generous tone to work with industry to clear up “confusion abou t law enforcement’s overall requirements.”
As soon as she personally disengaged from the conflict, however, negotiations broke down and the issue was kicked over to the Federal Communications Commission.
The Cellular Telecommunicati ons Industry Association and the Personal Communications Industry Association have since challenged law enforcement on CALEA in court.
“The DOJ has certainly seemed to be more open in listening to the position of the industry and a rguments from the industry as opposed to the FBI,” said Tim Ayers, spokesman for CTIA.
