WASHINGTON—The Federal Communications Commission Wednesday declined to set specific technological standards for how packet-mode technologies are to comply with the digital-wiretap act, but said those companies using such technologies, including Voice over Internet Protocol carriers, must comply in one year.
The FCC said it was premature for it to intervene in the standards-setting process—a process that has been ongoing in various iterations for more than a decade since passage of the Communications Assistance for Law Enforcement Act of 1994 (CALEA).
FCC Commissioner Deborah Taylor Tate argued that the commission was not over-reaching when it changed the scope of CALEA. Previously, telecommunications vendors had to comply with CALEA and information services vendors did not, but today any service that substantially replaces traditional phone service must be in compliance.
“We must read CALEA’s requirements in a technology-neutral manner,” said Tate. “Our action is not expanding the reach of the statute.”
Last August, the FCC said that facilities-based broadband and interconnected VoIP were subject to CALEA. With the increase of Internet-enabled services, the Department of Justice, the FBI and the Drug Enforcement Agency asked the FCC to rule that communications services—regardless of their FCC classification—be required to comply with CALEA and that new technologies be subject to law-enforcement review before being made publicly available. The FCC has yet to rule on this second request.
Many colleges and universities have argued that the decision would require them to completely overhaul their private on-campus networks.
The FCC tried to answer these criticisms by allowing providers to use trusted third parties to comply with CALEA. Tate said it could cost as little as one cent per month per subscriber using a trusted third party.
“It is not sound analysis to rely on assertions on cost-per-student when those analyses are not based on the use of trusted third parties,” said Tate.
This debate about the cost of complying with CALEA is expected to be presented before a federal appeals court Friday.
CALEA was passed as the use of mobile telephony was just taking off and law enforcement began having trouble wiretapping those using cellular phones. At that time, wiretapping a mobile phone was a rarity, but has since become the norm. According to the a report released Monday by the Administrative Office of the U.S. Courts, 91 percent of the wiretaps at both the federal and state level were for a “portable device, carried by/on individual.”
The annual wiretap report showed there was 4-percent increase in the number of completed wiretaps in 2005, but the number of federal wiretaps decreased 14 percent.
“While it appears that the number of federal wiretap-assisted investigations conducted declined last year, the numbers reported in the Administrative Office’s report do not reflect a number of investigations not reported to the Department of Justice by the reporting deadline, as well as a large number of complex and/or sensitive investigations that continued into 2006 and thus could not be reported at that time. We believe that if these matters could have been included in the report, the report would reflect an increase in the use of federal wiretap-assisted investigations during calendar year 2005,” said the Justice Department.
