WASHINGTON-A proposed amendment to rewrite the digital wiretap act that amounted to a wish list for law enforcement has been withdrawn by the Department of Justice after certain aspects were criticized soundly by privacy advocates. Additionally, it appears that the FBI was unable to find a member of either the House or Senate Appropriations Committees to offer the amendment. “The FBI couldn’t find a sponsor,” said Brenda Maxfield, a spokesperson for the Personal Communications Industry Association.
The events of last week are further proof the telecommunications industry, privacy advocates, the FBI and the Justice Department continue to battle over implementation of the Communications Assistance for Law Enforcement Act of 1994. Since 1994, the entities have had public spats in Congress, at an industry standards-setting body, during comments on the FBI capacity requirements, and most recently, at the Federal Communications Commission. Indeed, last week’s amendment was seen by some as an attempt by law enforcement to go around the FCC.
The wireless industry jumped at the chance to marginalize the FBI as being tantamount to Big Brother in George Orwell’s 1984. “The FBI appears to be standing alone not only in Washington but in the law enforcement community generally, said Jeffrey Nelson, spokesman for the Cellular Telecommunications Industry Association.
It appears, however, the FBI may not have been overreaching as much as the industry would like to portray. While the proposed amendment has been withdrawn and there is little expectation of a CALEA-related amendment this year, DOJ still would like to have Congress accept the punch list. “DOJ is opposed to any amendments to CALEA [but] if we are going to have give on the dates then it is going to be a horse trade,” said Stephen Colgate, assistant attorney general for administration.
Where the FBI apparently got in trouble was in the details of the amendment, specifically the language dealing with location tracking. Colgate said the amendment did not reflect “conceptually” the discussions that had occurred between DOJ, senior members of the FBI and congressional staff. “Unfortunately, you had a situation where DOJ and senior members of the [FBI] were proposing conceptually [amendments to CALEA] and the staff document [that was circulated] was inconsistent with that concept,” Colgate said.
When pressed, Colgate said the “emergency clause on location is not an acceptable level [of privacy protection].” The proposal would have allowed law enforcement access to location technology without a court order in emergency situations such as the location of a fugitive and the immediate danger or death of a person. Law enforcement would have had 48 hours to get a court order authorizing the location tracking. If a court order was not approved, the information could not be used against the target.
The proposal greatly alarmed privacy advocates, some of whom were expected to meet with Attorney General Janet Reno on Friday. Reno was expected to tell the advocates DOJ did not support the location-tracking proposal.
Location tracking will become possible as wireless carriers implement E911 service across the nation. This implementation requires wireless carriers to give public safety answering points the location of a wireless caller in 2001. Today this information is available to PSAPs in the wireline environment. Government officials believe wireless carriers should give them access to this information regardless of whether a target has dialed 911. “Location technology is being dictated by the FCC. When it becomes part of the network, we are going to get it one way or another,” said a government source.
Government sources believe this type of technology, had it been available, would have been useful in the manhunt last year for Andrew Cunanan possibly before he was able to murder the fashion designer Gianni Versace because one of his earlier victims had a cell phone in the vehicle Cunanan stole.
In addition to the location-tracking language, the amendment would have eliminated the embedded base date of Jan. 1, 1995, which would have helped personal communications services carriers, which argued they did not even exist then. All telecom carriers would have been required to comply with CALEA by Oct. 25, 2000.
Colgate admitted the telecom industry was winning the public-relations battle. DOJ appears to be trying to combat industry in the public-relations sector by taking over the lead on the CALEA issue.
The FCC is also expected to engage in this battle shortly by extending the compliance date currently set for Oct. 25. An order extending the date is being circulated among the FCC commissioners. FCC Chairman William Kennard has voted on the item, according to his wireless legal adviser Ari Fitzgerald, but it is unclear what action has been taken by the other offices. Fitzgerald would not give specifics of the document, but there has been talk that while the FCC will extend the date it will not extend it for two years as the industry had requested.
Unless the date is extended, carriers could be subject to fines of up to $10,000 per day for non-compliance with CALEA.
Jeffrey Silva contributed to this report.
