Forwarded From: bluesky@rcia.com
>From RCR
July 20, 1998
FBI seeks CALEA rewrite amendment
By Heather Weaver
WASHINGTON-The FBI and the Department of Justice are shopping an amendment
to congressional appropriators to change the Justice Department budget in
a way that would re-write the controversial digital wiretap act.
The amendment not only addresses the date issue, but would have Congress
order the Federal Communications Commission to deem the industry standard
deficient.
The Communications Assistance for Law Enforcement Act of 1994 (CALEA) was
passed by Congress to preserve law enforcement^'s wiretapping capabilities
in the digital age. Since then, the telecommunications industry, the FBI
and privacy advocates have been battled over CALEA's implementation.
The FBI's amendment has been criticized soundly by industry and privacy
advocates. The FBI "is trying to re-write the Bill of Rights through the
appropriations process," said Thomas Wheeler, president of the Cellular
Telecommunications Industry Association.
"The FBI is trying to re-write [the digital wiretap act] to get what it
failed to get from Congress four years ago," echoed the Center for
Democracy and Technology.
The amendment would eliminate the embedded base date of Jan. 1, 1995,
which would help personal communications services carriers, which argued
they did not exist then. All telecom carriers would be required to comply
with CALEA by Oct. 25, 2000. This is the same change telecom carriers
hailed last month.
That's the good news for the telecom industry. The bad news for industry
is compliance now would include the so-called punch-list items. The FBI
and DOJ have said nine additional capabilities beyond the industry
standard are necessary to completely implement CALEA.
Industry and privacy advocates believe these capabilities go too far.
"This [amendment] is a clear admission that the FBI has lacked the
authority [for the punch list]," said Tim Ayers, CTIA vice president for
communications.
Indeed, a government official admitted the amendment was an attempt by the
FBI to thwart the impact of the so-called Lofgren amendment^×named for its
author, Rep. Zoe Lofgren (D-Calif. attached to the DOJ authorization bill
passed last month by the House of Representatives. The Lofgren amendment
"would do irreparable harm and change the intent of CALEA ... if Congress
is compelled to changing CALEA" then the FBI wanted its views known, the
official said. The official, however, stressed that law enforcement is
opposed to any change in CALEA.
The DOJ authorization bill was not expected to be considered by the Senate
this year, but a letter from Rep. Henry Hyde (R-Ill.), chairman of the
House Judiciary Committee, could change that. Hyde sent a letter to Senate
Judiciary Committee Chairman Orrin Hatch (R-Utah) July 16 urging adoption
of the DOJ authorization bill, including the Lofgren amendment. Hyde said
the Lofgren amendment "does not alter the underlying substance of CALEA."
Hyde also said the Lofgren amendment was "necessary because of the
unfortunate delays that have prevented both law enforcement and the
telecommunications industry from fully implementing the provisions of
CALEA."
The FBI-proposed amendment requires the FCC to deem the punch list part of
the standard and to say the new standard is "reasonably achievable" within
30 days "without notice or comment."
In essence, Congress would define for the FCC what should be included in
the technical standard to implement CALEA. This upset Jay Kitchen,
president of the Personal Communications Industry Association, who said,
"It is no surprise that the DOJ continues to push its own agenda ... PCIA
firmly believes that the [FCC] is the proper venue for determining whether
or not the punch list goes beyond the bounds of CALEA."
Attorney General Janet Reno and FCC Chairman William Kennard were expected
to discuss the attempt to usurp FCC authority in a Friday afternoon
meeting last week. Kennard said the meeting was "productive and quite
helpful."
It is unclear which side^×between the DOJ and the FCC^×the White House
would favor. Vice President Al Gore, who has taken the lead on telecom
issues, could not be reached for comment at RCR press time.
The reimbursement issue also would be resolved in the FBI amendment. The
telecom industry long has said the $500 million originally authorized for
CALEA reimbursements was not enough, but Congress consistently has said no
more than $500 million would be authorized. Indeed, Rep. Harold Rogers
(R-Ky.), chairman of the House Appropriations subcommittee on commerce,
justice, state and the judiciary, told Reno earlier this year he would not
allow for more than $500 million to be appropriated for CALEA
reimbursement.
The FBI amendment would authorize $420 million for direct reimbursement to
all telecom carriers in existence before Oct. 25, 1998. The money would be
distributed by a formula based on the number of exchanges assigned to each
carrier on that date. The remaining $80 million would be used to reimburse
carriers for capacity upgrades.
In short, the amendment would implement CALEA in a manner favorable to law
enforcement. This would break the implementation logjam, which has sparked
frustration among lawmakers, one of whom vented at Reno at a hearing last
week.
"Problems ... persist in implementation of [CALEA] ... To date, this law
has generated litigation in the courts and before federal regulatory
agencies, and provoked additional legislative action, but has not been
implemented in the manner it should," said Sen. Patrick Leahy (D-Vt.),
ranking member of the Senate Judiciary Committee and a member of the
Senate Appropriations Committee.
On another front, the FBI recently released the Small Entity Compliance
Guide for CALEA, which says all carriers must admit their current
equipment is not CALEA-compliant by Sept. 8.
-o-
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Received on Sat Jul 25 18:03:11 1998