So why are telecom companies agreeing to build it without a fight this time? According to Mike Altschul, general counsel for the Cellular Telecommunications and Internet Association, it is because the FBI found a way around the court order and has already gotten its standards built into 90 percent of the wireless and wired switches in the telecom network. Now all the FCC order does is instruct most companies to throw the switch.

"The reality is that these new capabilities have already been developed through the FBI and telecom switch vendors," Altschul said. "So these features are readily available to industry."

How did this happen? As part of CALEA, Congress set aside $500 million to defray costs the industry would incur to make the necessary upgrades to comply with the law. The FBI disburses this money. So, even though the court blocked four of the six items on its wish list in 2000, the bureau went ahead and cut deals with all the major telecom switch manufacturers. They agreed to build their equipment according to the FBI standards, and the FBI paid them millions to do it.

This is all backwards, according to Gidari. The upgrades preceded an FCC order for them, but the manufacturers (distinct from the telecom carriers) were afraid to build their equipment without the FBI standards, for fear they would have to add them in later. "When the court of appeals decision came down and remanded to the FCC, the manufacturers said, 'We can't wait. We have to have it ready to go,'" he explained. "The privacy groups should have been screaming, but they were asleep. They have limited resources."

After Sept. 11, resisting the FBI's overtures became even more difficult for his clients, Gidari said. "The FBI has said these changes are crucial for law enforcement, and no carrier wants to be named as the problem." He said that the bureau is currently working behind the scenes with other standards-making bodies to get the surveillance capabilities it wants built into Internet Protocol telephony, DSL, the wireless Web, and other communications platforms, even some that are exempt from CALEA. "The standards groups are caving in to the FBI," he said. "We are designing systems for surveillance."

The debate over the interpretation of CALEA centers on the same vexing ambiguity that plagues nearly all telecom regulation: How do rules written for the old analog phone system apply to a digital, wireless, networked world? The answer is always open to interpretation, and special interests pick the one that suits them best.

Understanding this is the key to understanding why civil liberties activists care so much about how many digits the FBI gets when it traces a call. CALEA was written with phones in mind, and the FCC order sounds as though it's about phone calls. But between the lines, the debate is all about the Internet. How should spying rules written for phones apply to digital communications like e-mail and Web browsing?

The FBI believes the CALEA guidelines apply to Internet and digital phone communications, and Congress gave that interpretation a huge boost in the Patriot Act. The new law makes it clear that an order for a pen register or trap and trace applies to e-mail and Internet communications as well. The huge problem with this from a privacy standpoint is that with digital communications, the destination of a message, the call-identifying information, and the content of the message come in the same digital packet. If law enforcement gets one, it gets the all the others.

The concern is that if the FBI is to get the digits dialed during a call sent over a digital network, for example, the telecom company will have to dig into all the packets of the call and either extract the digits or just send the whole stream of digital packets over to law enforcement and let them sort it out.

According to Gidari, who advises huge telecom companies of their obligations under CALEA, the packet issue is what makes the FCC order to implement digit-extraction capability so radical.

"That order basically says, If the voice goes over the network, you have to listen to it and pull out the digits," Gidari says. "Now we have to dig into the packet to extract the digits. The serving carrier should not be in the business of listening in to your calls. But now we will be a content invader on a simple trap-and-trace order."

Similarly, to find out the destination of an e-mail message -- the equivalent of call-identifying information for a phone call -- a telecom carrier or ISP will have to crack open packets that also contain the text of the message.

If the carrier does not do the extracting and just sends the whole packet, it will be up to law enforcement not to "peek" at the text. Leaving this job to the police makes civil liberties groups nervous, and it concerns Gidari too. "People have failed to recognize the impact this has on Internet communications," he said.

But in the post Sept. 11 world, does anyone care?

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