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FCC Reinstates CALEA Surveillance Capabilities
This is a complex issue that we don't cover very often, so it requires some background. CALEA is the Communications Assistance for Law Enforcement Act. EPIC has a set of pages about CALEA, a law enacted in 1994 to require telephone companies to build "tap-ability" into their communications equipment. This is voice traffic, not data - don't get this confused with Carnivore, the FBI's tool for slurping down internet traffic. At the time, carriers were transitioning from analog networks to digital ones, and there was some concern that the new digital network would not permit the FBI to listen in easily. Due to the possible expenses incurred by the telephone companies in implementing this, Congress greased the skids with a $500,000,000 (yes, that's half a billion dollars) grant to the companies. Congress granted the FCC the power to decide exactly how to implement this, and the FCC asked for comments. The FBI suggested that the rules should make sure lots of information was available to the FBI, the civil liberties groups suggested that the rules should make sure little information (or at least no more than was available in the old analog system) was available to the FBI, and the phone companies suggested that the rules be inexpensive.
Let's go back in time a moment to look at the old, analog way of doing things. In a nutshell, there are two different ways to conduct a government search on someone's telephone calls: you can search to see who was calling who, or you can search to get the actual content of a telephone call. The first type of search is called a pen register or trap and trace. The pen register is the list of phone numbers you've called. Trap and trace gets the numbers of people who call you. These were (at one time) literal devices which would be physically attached to your phone line. Both of these have been seen by the courts and Congress as much less private (after all, you're "giving" the information to the phone company with every call) than the actual content of your calls, which can only be obtained with a wiretap. Under the old rules, getting pen register or trap and trace information requires only a simple warrant, issued by any judge. Under the law, the judge does not even have the discretion to refuse to issue the order! Nor should you get the impression that this is solely the FBI. Many states allow similar telecommunications searches, and in fact state law enforcement does the bulk of them.
The open question was, with many new digital phone services becoming available, what information would be obtainable with the (non-refusable) pen register or trap and trace-type order, and what would require a real search warrant where a judge is supposed to exercise his discretion in deciding whether to grant it or not? That is, in what cases would "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." be applied, and in what cases would the government be allowed to simply take the information without meeting those requirements?
Eventually the FCC released its interpretation of what the phone companies should do to implement CALEA. The FCC required several things that were "new" and expanded law enforcement's surveillance abilities. One requirement was that all the digits you dial after the call is put through be recorded and provided. So if you dial your bank to transfer funds to checking, or dial your voicemail to retrieve it, or send a message to someone's pager, your bank account number and PIN, your voicemail password, whatever you sent to the pager - all that can be retrieved without a search warrant by any law enforcement official. The FCC also required that if you were using a cell phone, that your physical location be provided as well. They required that if more than two people were on the line, complete information about who joined or dropped out of the conference call be made available. Similarly, data about call waiting or call forwarding was to be provided if these were used. And finally, if you were using VOIP, the government could get all the headers of all your packets sent during the call.
Cue the lawsuits. Civil liberties groups were concerned that the rules were too broad, the FBI was happy (the FCC had given them all they could want), and the telephone companies were concerned that the changes would be too expensive. The civil liberties groups and the telecom industry filed suits to force the FCC to revise its order.
In the case at hand, the telecom industry sued, claiming various things but attempting, in general, to reduce the cost of compliance. The lawsuit was partially successful. The court rejected certain aspects of the FCC's order, and accepted the cell-location and packet-headers parts. The reason for rejecting the other parts was basically that the FCC did not justify itself sufficiently - there are various requirements, created by previous courts, that when an agency creates rules like this that will have the force of law, that they do so in a reasonable and justified manner. The court felt that the stricken requirements did not meet this standard, and chucked the ball back into the FCC's court.
Fast-forward to today. The FCC has reinstated all of the four requirements that were stricken by the courts, and this time it took pains to justify itself. That's what the Reuters article linked above is talking about, and you can read the order yourself in text or in PDF.
There are other lawsuits filed against CALEA that have not yet concluded. Rulings in those may be expected this summer.
As a sidenote, a great many other laws have passed since then expanding other surveillance activities. Under them, the government can now record your internet-browsing activities in much the same way as they can can trace your phone calls - without judicial supervision. If you haven't already, you might wish to read more about the PATRIOT Act.
I know this off topic but I can hardly contain myself. Why is Microsoft advertising on Slashdot? By Slashdot's unwritten code, Microsoft stands for ALMOST everything that Slashdot doesn't want to be. Is Slashdot selling out?
What do you expect? Problem is, the Democrats aren't that much better! What we need in this country is a new political party that's tuned into the desires of the populace...as opposed to the desires of the 'special few'.....
No coverage on pigeons? Surprise!
--Mike--