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Sunday, Nov 8, 2009
The FBI is asking for more information about what you do on the phone, and no one is saying no.
Jun 18, 2002 | On April 11, the Federal Communications Commission ordered the telecom industry to upgrade their systems to meet a list of FBI specifications by June 30. The upgrades give the FBI expanded wiretapping capabilities, including the ability to extract specific information about phone calls without a warrant.
The FCC order comes after years of wrangling among the FCC, the FBI, civil liberties groups, and telecom companies over exactly what telecom companies have to do to comply with the Communications Assistance for Law Enforcement Act (CALEA) of 1994. When the FCC issued a nearly identical order three years ago, an industry-advocate alliance fought it to a standstill in the courts. But this time around, the same groups have not so much as issued a press release in protest.
"It's awful, the fact no one is willing to challenge this," says Al Gidari, a lawyer who advises telecom firms on compliance with government surveillance issues. "It's a sign of the times after 9/11. No one wants to be perceived as anti-government or anti-law enforcement."
CALEA requires telecom companies to be able to provide police and federal agents with two kinds of surveillance: a full wiretap, which reveals the content of a communication, and a more limited tap that provides "call-identifying information." Call-identifying information has traditionally been gathered via two kinds of taps: a "pen register," named after an old-fashioned device that when hooked up to a phone can pick up the numbers dialed, and a "trap and trace," which reveals the number of an incoming call, just like a caller I.D. box.
The controversy over CALEA and the upgrades sought by the FBI centers on the kind of information that will be provided to police with a pen register or a trap and trace. For a full wiretap, police must demonstrate to a judge that there is probable cause to believe the subject of the surveillance has committed a crime, the same standard for search warrants. But to gather call-identifying information -- by pen register or trap and trace -- police need only file a certificate with the court that asserts the information is "relevant to an ongoing criminal investigation."
A judge cannot reject the request; the court merely certifies and files it. Because of this low legal standard, privacy advocates are very skittish about any blurring of the lines between call-identifying information and the actual content of calls, which is supposed to be accessible only with a wiretap warrant.
Civil liberties groups argue that "call-identifying information" is just an awkward term Congress used in reference to phone numbers of calls dialed and received. But the FBI has long sought a much broader definition, arguing that it should comprise much more than just telephone numbers. The FBI wants call-identifying information to include whether the "flash" button is hit to access call waiting, whether the caller gets a busy signal, and what parties are in on a conference call; and it wants all the digits dialed during a phone call -- obtained through a process known as "dialed-digit extraction."
What most concerns civil liberties watchdogs is dialed-digit extraction. Once activated, this handy feature enables police to detect what numbers are dialed during a call. Critics worry that police could use this capability to get bank information, voice-mail passwords, and the like with nothing more than a rubber-stamped order for a trap and trace or pen register.
The deadline for filing an objection to the FCC order has already passed, and the only complaint filed was from a group of rural telecom carriers worried that the upgrades will cost too much. In the post-9/11 era, denying the FBI anything it says it needs is a far more daunting proposition than it was 10 months ago. What was once a bitter battle for the FBI has become an uncontested jog into the end zone. And, some observers fear, the real issues at stake aren't limited to phone calls. The big game being targeted by the FBI is communication via the Internet.
