Government Tempers Electronic Surveillance Proposal; Critics Laud Changes But Are Not Satisfied

1997 B.C. Intell. Prop. & Tech. F. 013101
Government Tempers Electronic Surveillance Proposal; Critics Laud Changes But Are Not Satisfied

by Adam White Scoville, Staff Writer

On January 14, the Federal Bureau of Investigation revised its proposed requirements for wiretapping and electronic surveillance capacity, limiting them to a level which critics conceded was better than under previous capacity proposals.

Passed in late 1994 with little Congressional debate, the Communications Assistance for Law Enforcement Act (CALEA, commonly known as the Digital Telephony Act), was highly controversial in the online community and amidst the telecommunications industry. The measure grew out of Bush Administration proposals by the FBI and National Security Agency which recognized that, with the advent of digitally switched and transmitted telephone networks, nearly all conventional methods of wiretapping would become obsolete and ineffective. As passed, however, CALEA reflects a compromise brokered by members of Congress, including retired Representative Don Edwards, incorporating limits proposed by telephone and cellular companies and privacy rights groups, in particular the Electronic Frontier Foundation (EFF). While the final bill required communications carriers to provide means for electronic surveillance, it tempered the more advanced technological means with stricter legal safeguards against abuse. The measure remained controversial and the EFF came under heavy criticism for negotiating with the proposal's proponents; the policy analysts involved left the EFF shortly after the bill's passage to start another organization (the Center for Democracy and Technology or CDT).

As one of the legal safeguards incorporated in CALEA, the FBI's Telecommunications Industry Liaison Unit is required to publish its requirements for surveillance capacity (the minimum number of simultaneous electronic surveillance measures in a given area which could be technically accommodated) and solicit comments on them. An October 1995 capacity notice drew harsh criticism for its breadth and for being scientifically unsupported, and was eventually withdrawn. That proposal would have required phone companies in certain parts of the country to provide capacity for simultaneous surveillance of one percent of phone lines in service.

A new proposal, which is in a public comment stage until February 13, was supported with data on electronic surveillance not previously made public, gathered from 1993 through 1995, for each county in the nation. All told, where the original proposal would have required a capacity for roughly 50,000 simultaneous surveillances in Manhattan alone, the new proposal projects a capacity requirement of 57,749 simultaneous interceptions nationwide.

James X. Dempsey, a policy analyst at the CDT who worked on the drafting of CALEA as an aide to Congressman Edwards, its sponsor, said in a recent New York Times Article, "Compared with where we started, this is a far more precise, far more focused proposal.... It's based on real numbers.... It provides the kind of public disclosure of the decision-making process that the statute called for." Seth Schiesel, F.B.I. Reduces Scope of Proposal on Wiretapping Phone Networks, N.Y. Times, January 15, 1997, at A11. A briefing from the CDT also said that the new capacity notice "goes a long way towards satisfying some of CDT's objections to the first notice." FBI Issues Scaled Back Surveillance Capacity Notice, CDT Policy Post, vol. 3, no. 1 (January 17, 1997) <http://www.cdt.org/publications/pp_3.01.html>.

Privacy advocates, including CDT, maintain that the notice still does not go far enough, and are still concerned about the implementation of CALEA, including the FBI's position that cellular companies must be able to track their customers by the location of their phone. David L. Sobel, counsel for the Electronic Privacy Information Center, said in the New York Times, "We still maintain that the F.B.I. has still has [sic] not demonstrated that there is a problem with capacity." Privacy groups believe the FBI's view of the authority granted by CALEA is inappropriately broad, and that even the latest proposal would increase markedly the government's surveillance authority. FBI Assistant Director James K. Kallstrom disputes this: "Neither CALEA nor this notice expands in any way the authority of law enforcement to use [electronic surveillance] techniques. The same rigorous statutory requirements remain in place, unchanged.... Previous [analog] generations of telephone equipment and services had virtually a 100 percent capacity to accommodate all court-authorized electronic surveillance."