WASHINGTON - The FBI may be overstepping a 1994 law meant to update its wiretapping capabilities to account for advances in communications technology, members of a House panel said today.
"I don't think we have a proper balance of law-enforcement authority and civil rights, privacy rights," said Representative Bob Barr (R-Georgia), at a hearing before the House Judiciary subcommittee on Crime. "Obviously, Congress will have to be involved in this."
At issue is the Communications Assistance for Law Enforcement Act, or CALEA. The law was designed to preserve surveillance capabilities in the face of new technology like call forwarding, conference calling, and wireless and cellular phones. In 1994, when the law was passed, Congress created a US$500 million fund for phone companies to update their systems to provide law enforcement wiretapping access. At the same time, the FBI was supposed to come up with specifications for a digital wiretapping system.
Three years later, not a dime in the fund has been spent on updating the systems, and the FBI still has not come up with final rules for digital monitoring. Privacy advocates have protested that proposals the bureau has put forth - including the ability to monitor tens of thousands of calls simultaneously - overstep the law's intent and would violate individual rights. Phone companies complain that if enacted, the proposals could be prohibitively expensive, and that even if all the specs were in place today, they might not be able to meet the October 1998 deadline the law sets for implementing new systems.
"All we wanted was to move from a propeller-driven airplane to a jet airplane, but the FBI wants to build the Apollo program," said Thomas Wheeler, president of the Cellular Telecommunications Industry Association. "CALEA needs to be rescued from the trap it's in."
"We are stuck in a ditch here," said Roy Neel, president of the United States Telephone Association.
Neel said that phone companies cannot start updating their switches, software used to access phone lines, with no idea whether those updates will comply with FBI needs. And, even if they started updates today, they could not get the systems in order within a year. In addition, the phone companies estimate that the updates could cost double what Congress allocated.
Personal communication service firms, which did not even exist when Congress passed CALEA, fear that they will have to pay for the upgrades themselves, saying that because the way the law was written, they do not currently have access to the $500 million fund.
"We really want to help law enforcement do its job, but personal communication services compliance cannot happen unless Congress makes changes to CALEA," said Jay Kitchen, president of the Personal Communications Industry Association.
Beyond the issues of time and money is privacy. On a list of surveillance tools law enforcement says it can use under CALEA is the ability to listen in on a conference call after the person being investigated is no longer on the line.
Privacy groups say this clearly oversteps the bounds of wiretapping law, not to mention the Fourth Amendment. In addition, privacy groups say, CALEA has not kept pace with new technologies such as packet switching, in which the FBI is not forced to separate between dialing information and call content.
"These add-ons go beyond the intended scope of the legislation," said Jim Dempsey, senior staff counsel for the Center for Democracy and Technology.
FBI officials said the bureau's Office of Enforcement Operations is currently reviewing the list of FBI wishes and hopes to prepare a revised list by January.
"I think the next step is to see the technical feasibility of these items," said Edward Allen, chief of the FBI's electronic surveillance technology section.
Outside of congressional action to get CALEA back on track, the phone companies may appeal to the Federal Communications Commission to resolve the current impasse between industry and law enforcement. Then, as Neel of the United States Telephone Association said, there is always the possibility of litigation.
There is one thing, however, that all players can agree on.
"I think it is fair to say that when CALEA was enacted in 1994, no one expected that today, three years later, CALEA would still not be implemented," said subcommittee chairman Bill McCollum (R-Florida).
