WASHINGTON-A much ballyhooed victory by the telecommunications industry to get the dates for compliance with the digital wiretap act extended is less certain as both sides in the continuing debate argue over the significance of last week’s House vote.
The problem is the legislation containing the extension is not expected to be considered by the Senate before the 105th Congress adjourns and consequently not before the Oct. 25 compliance date arrives.
Lawmakers by voice vote approved a bill to reauthorize the Department of Justice, including provisions to extend the deadlines for compliance with, and grandfathering under, the Communications Assistance for Law Enforcement Act to Oct. 1, 2000.
Under current law, telecommunications carriers would have to comply with the act’s requirements by Oct. 25, but industry representatives say that is impossible because they have not been able to agree with the Justice Department and the FBI on necessary technical standards. And even when a standard is developed, industry said it still will need at least another 18 months to implement changes.
The Federal Communications Commission is considering whether the industry-developed standard is deficient. Privacy advocates, most notably the Center for Democracy and Technology, say the standard goes beyond the scope of CALEA. Law enforcement, led by DOJ and the FBI, said it does not go far enough. Law enforcement has been fighting for nine punch-list items that industry says go beyond the scope of CALEA.
Some in the telecommunications industry worried that prospects of congressional intervention into the dates might slow down FCC action. This does not appear to be the case. “DOJ has requested that [the FCC] resolve the [technical standard] issues before October,” said Ari Fitzgerald, FCC Chairman William Kennard’s legal adviser on wireless issues. The industry has agreed to “live with” whatever the FCC decides, said Steve Berry of the Cellular Telecommunications Industry Association.
The current grandfathering date is Jan. 1. The new date means government would have to reimburse industry for any upgrades industry makes before Oct. 1, 2000., and any changes that are not reimbursed would be deemed to be in compliance with CALEA.
Without a technical standard, wireless carriers argue, it is impossible to put in place CALEA-compliant equipment. The FBI has not been so generous, saying if wireless carriers had built their systems to FBI specifications, they would not have to worry.
The Personal Communications Industry Association, which represents personal communications services carriers, said it was pleased with the date extension. “We now have a reasonable date in which we have to deal. By extending the grandfathering date, it levels the playing field [between cellular and PCS]. It eliminates the unleveled playing field that existed before,” PCIA President Jay Kitchen said.
The House vote is seen as a first step in what continues to be a long and torturous process. Many on Capitol Hill believe the industry’s next step will be to take its case to congressional appropriators. Industry will make the case that House members have said the dates should be extended so it would not be usurping authority to include this language with DOJ funding, congressional sources say. The two subcommittees with jurisdiction over CALEA last week both marked up bills, but it is not believed that as of yet CALEA-related language has been attached.
Apparently, the appropriations committees are expecting industry to push for language to be attached because they have asked for law enforcement’s views on how to solve the CALEA situation “in a manner that does not impact adversely on public safety,” one law-enforcement official said.
The vote to attach the language to the DOJ Reauthorization bill caught some people off guard. Rep. Bill McCollum (R-Fla.), chairman of the crime subcommittee, has been working on comprehensive CALEA legislation but was not told of the move to attach the language before it happened. “McCollum was blind sided,” one congressional source said.
The language is essentially the same language that Rep. Zoe Lofgren (D-Calif.) attempted to include in the DOJ Reauthorization during Judiciary Committee markup. That effort was thwarted by McCollum, who promised to introduce a CALEA-comprehensive bill by July. A May 22 letter from Lofgren asking for a status report was not answered until the DOJ bill was considered on the House Floor June 22.
Reauthorization is a congressional procedure where Congress gives an agency priorities and approves of its existence. The reauthorization process gives members of Congress and the Senate not involved in appropriations the opportunity to set priorities and give views on congressional intent. Without authorization, agencies are forced to go to congressional appropriators hat in hand and ask for money for each and every program. DOJ has not been reauthorized for decades, Lofgren said.
CALEA contains a $500 million appropriation, but DOJ officials have been unsuccessful in convincing appropriators to give them that much money, and none of the money has yet to be spent. One of the deficiencies in the DOJ authorization language, according to one law-enforcement official, is that it does not authorize any additional funds for all of the added equipment put in place since 1995.
