The goddess CALEA
Schwaninger, MRT’s regulatory consultant, is the principal in the law firm of
“And it came to pass that the centurions of the Federal Bureau of Investigation and the United States Department of Justice looked across the sea of change in telecommunications and declared “WE CAN’T HEAR YOU!” And, yea, they prayed to the gods and asked for help to defeat the barbarians who would employ telecommunications for evil. And the gods sent them CALEA.”
Okay, it didn’t happen exactly that way. What really happened was that the FBI noticed that it was having trouble doing wire taps. It seemed that the G-men were falling behind because of digital technology in wireless and wired communications; new interconnections/information retrieval systems, like SS7; the introduction of competitive local exchange carriage; and a host of other really technical stuff.
The FBI also noted that although carriers evinced some level of cooperation in the feds’ wiretapping effort to gather dirt on do-badders, the cooperation required to effectively keep up in the battle against crime was just not there. So, the FBI asked Congress, via the Executive Branch, to pass a law to “clarify” carriers’ responsibilities to make facilities available for wiretaps.
The idea was simple. The FBI needed Congress to tell the carriers that the FBI didn’t have to say “pretty please” every time it wanted to perform a wiretap. Congress agreed that the ends of justice required this cooperation, so it passed the Communications Assistance for Law Enforcement Act (CALEA) about a year ago. In essence, CALEA states that common carriers will make available the means by which the feds can engage in wiretapping activity, employing the carriers’ terminal or switch capacity for the purpose of authorized interception of customer communications.
Competing interest While law enforcement has its agenda in ensuring its ability to listen to the nefarious goings-on of crooks, smugglers and former Speakers of the House, carriers have competing interests-the cost of cooperation and the need to ensure that their customers receive all expected privacy in the content of communications.
Carrier organizations like CTIA and PCIA continue to debate the issue of cost as they try to get the cops to accept certain standard equipment for installation by carriers to meet the requirements of CALEA. The issue of customer privacy will be an ongoing problem.
Under the Communications Act, and in accordance with many local laws, customers are entitled to privacy in the making and receiving of electronic communications. Interception of, and/or publication of the content of communications is prohibited. Fines, imprisonment and guest spots on talk shows can be imposed on people that repeat communications made or received from celebrities or elected officials or private citizens.
The obligation to keep customer communications private falls on carriers, which must ensure that all interceptions are “authorized.” Authorized interceptions are those that proceed from a valid warrant, court order or other legal mechanism that entitles a law enforcement agency to perform wiretaps or employ pen registers or trap-and-trace devices.
The tenets of CALEA are incorporated within Section 229 of the Communications Act, and the FCC has recently adopted rules for all common carriers’ future compliance with CALEA obligations. On March 15, the FCC adopted new Part 64 rules (Miscellaneous Rules Relating to Common Carriers), sections 64.2100-64.2106, which require common carriers to file what amounts to an employee manual. The filing demonstrates that the common carrier has adopted internal policies and procedures for dealing with unauthorized and authorized interceptions of customer communications.
In balancing the interests of carriers and law enforcement agencies, the FCC decided that the goddess CALEA is not all-powerful. The FCC did not mandate many changes in carriers’ systems, nor did it provide any obligation that specific equipment would be provided by carriers for compliance with statute. What the FCC did require, however, was that each carrier provide a comprehensive plan, subject to FCC review and approval, that demonstrated that the carrier had created the necessary internal capacity to respond promptly to requests by law enforcement agencies.
What you should do Meeting the new CALEA guidelines is something that looks far simpler than it is. By the time one designs a manual that demonstrates compliance with each of the general guidelines set out in the new FCC rules and policies, the Communications Act and the practical environment of the marketplace, the document could become quite complex. I therefore suggest that common carriers get professional help from a scaly creature known as a “lawyer.”
The manual should include:
1. The name of a senior officer or employee who will serve as a contact for law enforcement agencies.
2. A job description of the contact person, including a way for the police to contact that person.
3. The manner in which an interception can be performed promptly.
4. A definition of standards for determining whether the requested interception includes “appropriate authorization.”
5. A statement of policies for employees in determining whether an interception is lawful and will be allowed by the carrier.
6. A method of informing a contact officer regarding lawful interceptions in accordance with federal or state statutes.
7. The creation of a method of reporting unlawful or unauthorized interception.
8. The manner of maintenance of records in accordance with guidelines.
See how simple this is? The reporting requirement for demonstrating compliance with CALEA is not simple, despite the FCC’s rare best efforts in attempting to reduce the burden for carriers. What is burdensome is creating the manual prior to the 90 day deadline following publication of the Report and Order that was released on March 15.
So, what you should do is contact a lawyer to assist you in putting together the filing before July 1. If you don’t-consider this: It would take only one computer run of all Commercial Mobile Radio Service (CMRS) licensees compared to all filers of a CALEA manual to determine who did or did not comply with the new rules. Then, it only takes one more computer file merge function to send forfeiture letters to all non-filers. The wrath of the goddess CALEA would then befall all CMRS fish in a barrel.
Some final thoughts The design of the CALEA manual should allow it to be easily updated. Although you will have to suffer the initial burden of having to assemble and file this monster, you should not have to reinvent the wheel every time your company makes a small change. So, in designing the CALEA manual, have it organized so one small change won’t require refiling a completely updated manual with the FCC.
If you are a small carrier and the FBI or local law enforcement guys come a-knockin’, you may wish to direct them to the LEC switch for intercepting customer communications from your system. Although you will probably still need to record this activity, the law enforcement agents will probably have an easier time installing interception devices at the LEC’s switching equipment than in your shop.
Finally, you may resent having to go through this exercise, and you may wish to rail against this assault on the Paperwork Reduction Act, but there will be little you can do to avoid performing this task. So, just think of me as Hermes, the messenger of the gods, and remember-don’t kill the messenger.
