CALEA Culpa

It's two minutes to midnight for meeeting the CALEA J-standard deadline, and at least two major vendors won't have compliant software ready. Now what?

The saga started in October 1994, when Congress passed CALEA so that law-enforcement agencies could conduct electronic surveillance in the digital-telecommunications environment. The ensuing five years have seen heated debates between the wireless industry, the FBI, Department of Justice (DOJ) and the FCC over what wireless-service providers must do and when. So it's no surprise that as the June 30, 2000 deadline for complying with the J-STD-025 (the J-standard) looms, CALEA has flared up again.

CALEA requires service providers to ensure that their equipment and services can perform four functions:

• Allow the government to intercept call content

• Allow the government to access "call-identifying" information, such as the call's origination and destination

• Deliver intercepted communications and call-identifying information in a format that allows it to be transmitted to a government listening post

• Perform these functions in a manner that protects the confidentiality of the interception and the privacy and security of both the intercepted communications and any information not authorized to be intercepted.

To further CALEA's mandates, TIA developed the J-standard, a set of interim technical standards that the FCC adopted with changes as the basis for the technical standards that the wireless industry must follow to comply with CALEA.

In August 1999, the FCC set additional capability requirements sought by the FBI and set a compliance deadline of Sept. 30, 2001. These "Punch-List" capabilities include providing:

• The content of subject-initiated conference calls

• Information on whether a party is on hold or has joined or dropped a conference call

• Subject-initiated dialing and signaling information, including whether a subject uses services such as call forwarding, call waiting, call hold or 3-way calling

• Time stamp on the information sent to the government

• Dialed-digit extraction. For example, if a subject first dials an (800) number to access a long-distance service provider and then dials a telephone number, the provider must supply the latter number.

Crunch Time
Providers that anticipate being unable to meet the June 2000 J-standard deadline can petition the FCC for extensions of up to two years. However, the FCC wants them first to reach agreements with the FBI/DOJ on deployment schedules that would focus on making equipment that's a priority for the FBI CALEA-compliant in the near term. The FBI/DOJ has assured the industry that it would support petitions from providers with which they have agreements.

In January, the FBI/DOJ released Flexible Deployment Assistance Guide, which includes the "Flexible Deployment Assistance Guide Template." To win FBI/DOJ support for its FCC extension request, the provider must complete the template and send it to the FBI/DOJ's CALEA Implementation Section. The Guide "strongly encouraged" providers to file their templates by March 31, 2000.

The template requires information about the providers' switches, scheduling of previous generic equipment upgrades and the number of interceptions that the provider has been involved with each year since 1996. In the Guide, the FBI/DOJ said that it intends to review each template and consult with each provider, and if a deployment schedule was agreed upon, to support the service provider's petition at the FCC. All these steps would have to occur between March 31, 2000 and June 30, 2000.

One Small Problem
The Guide envisioned that equipment manufacturers would develop and release software that would allow providers to "implement some or all of the core J-STD-025 CALEA capabilities" in time to meet the June 30 deadline.

Unfortunately, this expectation isn't being met. Service providers recently have begun receiving letters from their vendors that software releases wouldn't be available until well after the deadline. Lucent Technologies, for example, now is targeting Feb. 28, 2001.

Other vendors are in similar situations. These changes would cause an unexpected flood of templates to crash at the FBI/DOJ's door. They also would place a concomitant burden on the FCC because each provider would have to file a Petition for Extension.

Like the Beatles' "Fool on the Hill" watching the sun going down, the wireless industry is powerless to change the speed at which equipment manufacturers provide J-standard-compliant software. The industry also can't unilaterally extend the deadline. It hardly takes a visionary to foretell that the current process, which was designed for extensions that were the exception rather than the rule, won't work if every provider files templates and petitions the FCC. There are simply too many providers with which the FBI/DOJ must reach agreements and too many petitions to be processed by June 30, 2000.

Something clearly should be done.

"Given the unavailability of the requisite software, a case-by-case review process will devour everyone's resources and is destined to malfunction," said Michael Altschul, CTIA vice president & general counsel. "This situation cries out for cooperative and innovative solutions."

A Little Help from Their Friends
If ever the time was ripe for pro-active governmental measures, it's now. Providers and industry organizations should inform the agencies that the June deadline isn't feasible because of unexpected delays in vendors' software releases and beseech them to extend the June deadline for the entire industry. Providers still could give the FBI their templates with the understanding that dates might again shift if the software releases were further delayed. By extending the June deadline, the FCC and the FBI/DOJ would save themselves and the industry thousands of unnecessary man-hours, tons of paper and millions of dollars.

An industrywide deadline extension also would reinforce a point that has tended to get lost in the CALEA travails: CALEA can't succeed without a joint effort between the wireless industry and the government. Everyone would be well served not to confuse the latest bend in CALEA's long and winding road with the end of the journey.

Peering around the latest curve, one can see the Sept. 30, 2001, punch-list deadline. Meeting that deadline could prove to be a far more daunting task because the capabilities are more complex and the technology still is evolving. Unless the industry and government can come together right now, the next deadline will be fraught with even more uncertainty and disharmony.

Sill (wsill@wbklaw.com) is a partner and Lin (clin@wbklaw.com) is an associate at Wilkinson Barker Knauer LLP.