WASHINGTON-The telecommunications industry, while failing to get the digital wiretap grandfather date statutorily changed, appears to have been successful in getting written assurances included in the end-of-the-year spending bill that this date should be changed to correspond to the compliance date of June 30, 2000.
“That is pretty good language. I am not pleased we didn’t get the grandfather date changed statutorily, but in the long run, I think the FBI has overplayed its hand. When the Hill understands the facts [of the grandfather date], they will change it,” said Steven Berry, senior vice president of the Cellular Telecommunications Industry Association.
“If Congress includes report language extending the grandfather date, that would be an important step in forging a permanent fix to that problem. We will continue our efforts with the 106th Congress to have that extension enacted into law,” said Jeff Cohen, a spokesman for the Personal Communications Industry Association.
Cohen was reluctant to claim victory because at press time it still was unclear exactly when Congress finally would vote on the budget agreement announced on Thursday night. The vote could come as late as Tuesday.
CTIA and PCIA are part of a larger coalition, which includes the United States Telephone Association and the Telecommunications Industry Association, that pushed to have the grandfather date changed in the massive end-of-the-year spending bill. Instead, the telecom industry was forced to accept “report” language. Each piece of legislation is accompanied by a report explaining congressional intent. Report language does not carry the weight of a law change, but is used to clarify legislative meaning in regulatory and court proceedings.
The grandfather date refers to language in the Communications Assistance for Law Enforcement Act (CALEA) of 1994 that requires the government to reimburse telecommunications carriers for CALEA-related upgrades to equipment in place before Jan. 1, 1995. Any equipment in place that has not been significantly upgraded and that the government chooses not to pay to be upgraded would be considered in compliance.
Personal communications services carriers have argued this date needs to be extended because they didn’t even exist at that time. Without a technical standard, these carriers argue, it is impossible to put in place CALEA-compliant equipment. The FBI has not been so generous, saying carriers should have built out their systems to the FBI’s specifications so there would be nothing to worry about.
The grandfather date is the “fundamental agreement” of CALEA, said Stephen Colgate, assistant attorney general for the administration. “Our concern is that there was a fundamental agreement that government would reimburse for equipment in place before Jan. 1, 1995, and industry would bear the responsibility for anything after. We’re not interested in changing that balance.”
In addition, the FBI has said if telecommunications carriers, aside from PCS companies, have “significantly upgraded” their equipment since Jan. 1, 1995, then that equipment no longer qualifies for reimbursement. This line in the sand has brought the landline and manufacturing industries into this fight.
CALEA allowed for $500 million to be spent on retrofitting reimbursements, but only a portion of this money has been appropriated as law enforcement and the telecommunications industry have duked it out over the technical standard. The debate over the technical standard once again will escalate as the Federal Communications Commission is expected this week to release a notice of proposed rule making stating its intention to include at least some of the punch-list items-additional capabilities-in the technical standard.
Law enforcement has been fighting for the punch-list items, saying they are necessary to maintain electronic surveillance capabilities. The industry says the punch-list items go beyond the scope of CALEA.
The rule making is the result of petitions the FCC received from the Center for Democracy and Technology (CDT), the Department of Justice and the FBI. Both sides said the industry interim standard released last December was deficient. CDT and other privacy advocates claim the standard goes too far. Law enforcement, however, believes it does not go far enough. It appears the FCC is leaning in the direction of law enforcement.
At its core, the debate about CALEA is about money. While $500 million is authorized, law enforcement fears if the grandfather date is moved to the next millennium, it could cost as much as $2 billion to reimburse industry for embedded upgrades.
“Any change to the CALEA grandfather date would have significant negative public safety and national security ramifications for law enforcement by allowing the creation of an enormous embedded base of non-compliant telecommunications equipment throughout our nation. In excess of $2 billion would likely be needed by the government to reimburse telecommunications carriers to cover the cost of modifying this enhanced embedded base,” said Attorney General Janet Reno, FBI Director Louis J. Freeh and Thomas A. Constantine, administrator of the Drug Enforcement Administration, in a letter to Congress Oct. 6.
The telecommunications industry, for its part, says the $2 billion estimate is low, and it would cost many more billions to upgrade all of the equipment out there. Indeed, BellSouth Corp. has said it alone has more than 1,600 switches that would need to be upgraded.
Law enforcement could stay within the $500 million authorization cap if instead of requiring every switch that has been significantly upgraded to be refitted, it would determine those switches most important to law enforcement and reimburse for those only, according to the telecommunications industry.
“The process for deciding which carriers receive reimbursement for modifying their equipment should be based solely on law-enforcement priorities,” said CTIA President Thomas Wheeler, PCIA President Jay Kitchen, USTA President Roy Neel and TIA President Matthew Flanigan, in an Oct. 9 letter responding to the letter from law enforcement.
On the overall issue of wiretapping, the FBI also appears to have received additional authority to conduct roving wiretaps. Roving wiretaps are placed on people, not specific phone numbers. This means law enforcement can listen in on a suspect’s conversations regardless of what phone the suspect is talking on.
Roving wiretaps have been permitted since 1986, but the agency seeking the authorization previously had to show a person intentionally was evading surveillance by using multiple phones. The new law allows law enforcement to receive roving authority when they can show a pattern of evasion without knowing whether that evasion is intentional.
