The last time the FCC ordered the telecom industry to build the expanded wiretapping capabilities the FBI wanted, in August 1999, the American Civil Liberties Union, the Electronic Frontier Foundation, the Electronic Privacy Information Center and the Center for Democracy and Technology promptly filed suit to block the FBI's attempt, arguing that the changes expanded CALEA far beyond what Congress intended and that it set a dangerous precedent of designing telecommunications networks for new spy capabilities.

The United States Telecom Association filed a separate suit, saying that the industry's existing standards for filling surveillance requests were adequate and should not have to be changed. The two groups then joined forces and took the FCC to court, hiring Theodore B. Olson, now the solicitor general of the United States (the man who represents the federal government before the Supreme Court), to plead their case.

The industry-advocate coalition won a key victory in August 2000. The U.S. Court of Appeals in Washington blocked four of the six changes the FBI sought and the FCC had ordered, sending them back to the FCC with instructions to better explain why the changes were necessary and how they would balance the needs of law enforcement, the public's right to privacy, and industry's right to a cost-effective way to enforce the law. The FBI took no further action for over a year, and it seemed possible the agency would admit defeat and let the issue die.

Then terrorists attacked the United States, and the picture changed overnight. Responding to frantic calls for improved domestic security, Congress hastily passed the USA Patriot Act. The act expands the kinds of information that law enforcement can collect without a warrant for a full wiretap, undermining a key argument the coalition used to beat back the FCC order in 2000. The attacks also skewed public opinion on the proper balance between privacy and security, making the public relations cost of fighting increased surveillance a dicey proposition for any company or organization. The FCC brushed off the old order, tacked on the additional explaining the court had asked for, and reissued its demands in April.

David Sobel, lead counsel for the Electronic and Privacy Information Center, was among the attorneys that successfully held back the FBI in court two years ago. He denied that 9/11 or the Patriot Act had influenced EPIC's decision not to contest the FCC order this time around. Although he remains concerned about the expansion of FBI power, Sobel argued that the earlier court decision had addressed his key concerns. "We thought the big issues were resolved in 2000," Sobel said. He cited, for example, the court's rejection of the FCC request that call-identifying information include a cellphone caller's location, something that is not back on the table this time. The court also made clear that FCC requirements cannot be construed as a legal definition for what qualifies as "call-identifying information," leaving open the opportunity to challenge any abuse of the new surveillance capabilities being built into the telecommunications system.

But Gidari, who has consulted closely with privacy groups on the issue for years, doesn't buy Sobel's explanation. He argues the issues are just as pressing as ever, if not more so, but privacy and industry groups have given in to pressure. "The government has effectively cowed all of them," Gidari said. "The order significantly alters the landscape of what surveillance has meant up to now. It is a huge expansion of the law, rewriting the rules of the game, and David knows that."

Jerry Berman, executive directive of the Center for Democracy and Technology, agreed that the issue is still of deep concern to his organization, and conceded that the changes the country has seen since 9/11 made it difficult to mount a fight this time, primarily because of limited resources and a growing number of urgent battles.

"We're essentially under siege," Berman said, ticking off issues that had recently come up: the new Homeland Defense Department, new FBI data-mining rules, the Patriot Act. "Would we be challenging this if it were September 10th? Absolutely. The problem is priorities and resources, but don't count us out yet."

Berman and his CDT colleague Jim Dempsey actually helped draft the CALEA legislation, but they now fear the FBI has burst through the limits they tried so hard to write into the law. "It is essential we find away to draw a line around the original CALEA," Berman said.

Dempsey, who helped put together the case against the FCC in 1999, agrees. "We opposed the [FBI] add-ons, and we still oppose them," he said. "We have been very disappointed that the [FCC] did not do its job under CALEA; it was supposed to be a break on the FBI demands. The FBI used CALEA to get a lot of bells and whistles built into the system it never had before. This sets an unfortunate precedent for designing information systems for surveillance at the behest of the government. That is not what Congress intended."

The FBI argues that the proliferation of calling cards requires the bureau to have access to numbers dialed after a connection is first made to a phone company via a toll-free number. The FCC order does not stipulate what kind of court order collecting those digits will require and also mandates that a "toggle" be built into the digit-extraction service so it can be turned off. But the concern is that once the system is rigged to collect them, those digits will be tossed in automatically when filling a trap-and-trace or pen-register order. The logic is, if you build it, they will spy.

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