WASHINGTON-Federal Communications Commission Chairman William Kennard and FBI Director Louis Freeh met June 21 to discuss implementation of the digital wiretap act, a meeting at which industry sources believed the two men cut a deal that would allow the technical standards to be voted on in secret rather than at a public meeting.
Not so, says an FBI official. The FCC said the item would be done on “circulation” but not because the FBI asked this to be the case.
After the FCC issued the notice of proposed rule making in October, it was expected the commission would issue the final technical standard to implement the Communications Assistance for Law Enforcement Act of 1994 at a public meeting next month.
Putting the item on circulation-in which the various commissioners edit and vote on an item by passing it around rather than in a formal meeting setting-could delay action on it. Circulation also precludes more than two commissioners discussing it at one time. There have been public displays and private grumblings that unless an item is put on a public meeting agenda, it is not acted on by offices.
This prospect concerns the telecommunications industry and the FBI, which has been working with CALEA implementation issues since the law passed.
“Our biggest concern is that this is a sign that there will be further delay. We have been waiting for five years,” said Grant Seiffert, vice president for government relations of the Telecommunications Industry Association.
“[The FCC] has taken [CALEA] off the public meeting agenda. I assume they want to get it out faster, but we are concerned as well. It may actually slow the process, but I am not sure,” said the FBI official.
The FCC got tangled up in the CALEA technical standards process after the telecommunications industry and law enforcement, represented by the FBI, could not agree on a standard. Privacy advocates claim the industry interim standard-which the FBI believes is too weak-is too strong. All three entities agreed to let the FCC determine what the proper standard should look like. The FCC sees its job as giving “law enforcement the tools it needs to fight crime and protect the public while at the same time safeguarding the public’s right to privacy,” said the FCC’s Meribeth McCarrick.
The FBI believes the industry interim standard would be sufficient if nine additional capabilities, known as the punch list, were added. These are beyond the scope of CALEA, according to the industry and privacy advocates.
When the FCC released its NPRM last fall, it tentatively concluded five of the items fell within the scope of CALEA, three went beyond the scope of CALEA and it did not rule on the final item.
The FBI believes the FCC is holding the line on the five items, and progress is being made on the final item-in-band and out-of-band signalling. “We are not asking for any or all signals [just] those tones heard by the subscriber … [The FCC] interpreted that we were asking for a whole lot more than we were,” said the FBI official.
The industry hopes the FCC will remain cautious on packet switching, which was included in the industry interim standard, but the FCC wants to examine the issue further. “Packet switching is something we haven’t been doing very long. We are very nervous about that one … we don’t know enough about it,” Seiffert said.
Once the FCC releases the final rules, the industry will need time to implement them, Seiffert said. “We hope the FCC will recognize … manufacturers still need sufficient time to standardize the punch list … No one should assume manufacturers have been developing the punch list.” The industry has said in filings this time frame would be at least 18 months.
The two agency chiefs discussed implementation, according to an ex parte letter filed June 22. “The parties discussed the efforts [the FBI] has made, and continues to make, to be flexible in its approach to the implementation of [CALEA’s] requirements, including by supporting an implementation schedule that proceeds in `phases,’ “said the letter.
