WASHINGTON-As the calendar nears Sept. 11, various issues at the intersection of law enforcement and the telecom industry are heating up.
Foremost is the Federal Communications Commission’s decision that Voice over Internet Protocol providers are subject to the digital wiretap act, along with whether law enforcement should have real-time access to airborne wireless communications and the renewal of key portions of the Patriot Act.
Civil libertarians and the telecom industry, including VoIP providers, are still waiting to see exactly what the FCC meant Aug. 5 when it said that interconnected VoIP was subject to the Communications Assistance for Law Enforcement Act.
“Responding to the needs of law enforcement is of paramount importance. New technologies present challenges to executing authorized electronic surveillance,” said FCC Chairman Kevin Martin at the time. The FCC said its decision did not deal with how VoIP should comply with CALEA, just that it should.
“The order doesn’t address what providers have to do. It just addresses who is covered,” said Julie Veach, acting chief of the competition policy division of the FCC’s Wireline Competition Bureau.
This is a potential problem, said one civil libertarian, because it could stall changes that network designers want to make to the network.
“Unfortunately even the press release could be having an impact on systems designers-they have been told they have to comply, but not how,” said James Dempsey, executive director of the Center for Democracy & Technology. “The Internet is not the phone network. The FCC had a hard enough time figuring out CALEA for the phone network.”
Dempsey said CDT is preparing to challenge the commission’s VoIP rules but can’t do anything until the document is released.
The FCC said the rules are still being edited and could give no other indication as to when they might be released.
Notwithstanding the little information available to date, one former FBI agent said the FCC made the right decision by not delving into the information services vs. telecommunications services debate, sticking instead to the belief that VoIP “substantially replaces” a telecom service so it is covered. Many, including Dempsey, believe that because VoIP and other IP-based services are information services, they are not subject to CALEA.
“If `substantial replacement’ is to have any meaning, this is the right outcome,” said Les Szwajkowski, former FBI agent now with Raytheon Co. “There had been some concern on the law-enforcement side about Brand X and the information services definition, but that was successfully trumped by substantial replacement.”
Dempsey said Szwajkowski is wrong because even if VoIP substantially replaces a telecom service, it is exempt if it is an information service.
Airborne surveillance
Arguing that wireless carriers are already subject to CALEA, the Departments of Justice and Homeland Security told the FCC that it should make special concessions to public safety and national security if the commission decides to lift the ban on talking on a cell phone while airborne.
The departments said that special rules-some related to CALEA, some not-would be required to ensure that the use of cell phones while airborne did not become a public-safety and national-security hazard.
“Having the ability to immediately provision an intercept is most critical in the air-to-ground context, where every moment matters. As history has shown, crisis situations typically strike without advance warning, and there is often little or no lead or `ramp up’ time. For this reason, a carrier’s system must be in `pre-ready’ condition so that carriers are in a position to react in an immediate and effective manner in such situations,” said the departments.
Patriot Act renewal
Amid those issues, civil libertarians and law enforcement also are watching how the Patriot Act will be renewed.
In the wake of the Sept. 11, 2001, terrorist attacks, Congress quickly passed the Patriot Act, giving law enforcement increased powers including the capability to have roving wiretaps.
Roving wiretaps give law enforcement the ability to listen into a person’s conversations regardless of which phone he or she might be using.
This and some other controversial changes to wiretap law were to be reviewed after four years. Congress has been in a heated debate about whether to renew the provisions with or without the sunsets. There does not seem to be a debate about whether they will be renewed. It is still unclear what will happen if Congress returns this week and doesn’t finish dealing with CALEA. Civil libertarians believe the sunsetted portions no longer will be valid at the end of the year; law enforcement is not willing to concede that.
