The mobile-phone industry suddenly finds itself on opposite sides of Bush administration wiretapping efforts, as the White House attempts to overcome congressional opposition to immunizing telecom companies from post-9/11 eavesdropping suits and wireless carriers battle the Department of Justice over efforts to force carriers to make additional wiretap capabilities available.
The DoJ in May asked the Federal Communications Commission to initiate a rulemaking to require carriers to provide detailed information about every packet that flows through a mobile-phone operator’s network and to provide precise location and tracking information, even though the commission itself and a federal appeals court have limited location reporting to the beginning and end of calls. Moreover, carriers claim the DoJ’s request will shift the implementation costs of broader wiretap capabilities to carriers, despite the Communications Assistance for Law Enforcement Act’s requirement that law enforcement secure funding to receive intercepted information.
“DoJ now seeks to mandate capabilities that are not required under CALEA and not achievable through reasonable measures,” cellular association CTIA told the FCC. “Extending CALEA to new and emerging wireless services that the FCC otherwise treats as information services is at the heart of the DoJ petition.”
CTIA, noting the cellphone industry supports 80% of all wiretaps, has been meeting regularly with FCC officials to make its case.
The DoJ said action is necessary because the industry standard required by CALEA is inadequate. The department also asserted the wireless industry is exaggerating cost concerns associated with rolling out expanded wiretap capabilities.
“This claim of high or cost-prohibitive expense is a frequent theme in CALEA implementation, with carriers regularly alleging that compliance is too expensive. In the [FCC’s] 2004 CALEA rulemaking proceeding, the commission did not credit carriers’ claims of high expense without evidence to support such claims. The commission should adopt that same approach here, and require carriers to demonstrate the extent of the financial burden with cost figures and other evidence. Moreover, the claim of expense alone is not enough to justify not requiring a capability.”
Location, location, location
Government officials, taking a page from the real estate industry, appear to be putting a premium on location. It recently surfaced that some federal judges-but not all- are approving wireless location wiretaps under a less stringent standard than normal.
“Law enforcement has absolutely no interest in tracking the locations of law-abiding citizens. What we’re doing is going through the courts to lawfully obtain data that will help us locate criminal suspects, sometimes in cases where lives are literally hanging in the balance, such as a child abduction case or a serial murderer on the loose,” said Dean Boyd, a Justice Department spokesman, providing examples of cases where location wiretaps proved critical in investigations. “Ultimately, the courts determine whether or not this data can be turned over to law enforcement.”
The DoJ’s Boyd said CALEA was designed to help law enforcement keep pace with technological advances in communications.
“With the growth of mobile technologies, we no longer live in a world where law enforcement can find out where a kidnapper is located simply by tracing his landline phone number,” said Boyd. “Under this federal law, therefore, where handset location data is reasonably available in a carrier’s network, we believe that carriers are likewise required to have the technical ability to provide that information to law enforcement, so that when a court authorizes law enforcement to obtain this information, they can get it.”
