Appeals Court Partially Rejects FCC Wiretap Ruling

WASHINGTON (08/15/2000) - A U.S. federal appeals court Tuesday reversed a U.S.

Federal Communications Commission (FCC) decision ordering telecommunications companies to add surveillance features demanded by the Federal Bureau of Investigation, but the court also affirmed requirements pertaining to packet data and cellular phones.

The U.S. Court of Appeals for the District of Columbia issued the decision in a case brought by the United States Telephone Association (USTA) and privacy rights organizations that challenged portions of the FCC's order to implement the Communications Assistance for Law Enforcement Act (CALEA) of 1994.

CALEA was intended to preserve law enforcement wiretapping capabilities as new technologies are implemented in U.S. telecom networks. The act requires phone companies to ensure that their systems are technically capable of enabling a wiretap of individual telephone calls and of obtaining call-identifying information during criminal investigations.

But the USTA and Washington-based Center for Democracy and Technology (CDT), also a plaintiff in the case, say the FBI has tried to use CALEA to expand its capabilities. The government bureau has sought to turn wireless phones into tracking devices, require phone companies to collect signaling information for the convenience of the U.S. government and allow the interception of packet communications without privacy protections, according to CDT.

In its ruling Tuesday, the court concurred with CDT and USTA positions that the FCC exceeded its authority by requiring carriers to make available to law enforcement agencies signaling information from custom-calling features, such as call forwarding and call waiting. Among the added features sought by the FBI was the ability to extract from a call any "post-cut-through" dialed digits.

Post-cut-through dialed digit extraction requires carriers to use tone-detection equipment to generate a list of all digits dialed after a call has been connected, including long-distance numbers and bank account and credit card numbers. Such information can be valuable to investigators building a case against a drug dealer, terrorist or other criminal suspect.

"The commission spoke of law enforcement's need to obtain post-cut-through dialed digits and of the cost of providing them, but it never explained, as CALEA requires, how its rule will 'protect the privacy and security of communications not authorized to be intercepted,'" the unanimous opinion of the three-judge panel stated.

The judges found that the FCC's decision requiring carriers to build these additional surveillance features into their networks was "an entirely unsatisfactory response" to the privacy provisions of the 1994 act.

"The court told the FCC that it was wrong to give in to the FBI's surveillance demands at the cost of privacy," James Dempsey, CDT senior staff counsel, said in a statement. Dempsey did not return a call seeking further comment.

USTA was concerned that the additional surveillance features would only serve to impose extraordinary and unnecessary costs on carriers, Roy M. Neel, president and chief executive officer of the USTA said in a statement.

The opinion, however, tipped in favor of the FBI on two other issues by denying the challenges to the FCC's decision on digital packet communications and the location of antenna towers used in wireless telephone calls, letting those parts of the FCC's order stand.

The portion of the opinion dealing with packet technologies used on the Internet concluded that U.S. government agents would be required to meet the highest legal standards if they wanted to intercept data packets that mingled addressing information and the content of the message.

Even though the ruling did not reverse the FCC's order on packet data, requiring the higher standard gives a boost to privacy, especially on the Internet, Dempsey said in the statement. He added that the judges' ruling casts a shadow of doubt over the legality of the FBI's Carnivore system, which is set up at ISPs (Internet service providers) to monitor the e-mail of criminal suspects. The FBI has relied on a lesser standard when using Carnivore to discover with whom a suspect is communicating.

On the location of antenna towers, the court held that the commission correctly required carriers to build a location capability for wireless phones into their systems. However, the court noted that the requirement was limited only to the location of the antenna handling a call.

The FBI and the FCC did not return calls seeking comment.

The USTA, in Washington, can be reached at +1-202-326-7300 or found on the Web at http://www.usta.org/. The FCC, in Washington, can be reached at +1-202-418-2555 or found on the Web at http://www.fcc.gov/. CDT can be found on the Web at http://www.cdt.org/.

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