CALEA Grinds On

In an ironic move, the FCC has issued a Further Notice of Proposed Rulemaking (FNPRM) to police the ongoing dispute over CALEA in response to pleas from both federal law enforcement agencies (LEAs), wireless industry groups and First Amendment advocates. In the current debate, industry leaders have come to realize that the FBI position will lead to significant tectonic and fiscal burdens, notably the cost of upgrade now being shifted to the industry.

MIDDLEMANCALEA envisioned that law enforcement agencies, carriers and equipment manufacturers would work together to hammer out CALEA standards. Because this hasn't happened, the FCC has entered the fray. Once it was called in to referee, the FCC adopted the philosophy that it is best to leave settled matters settled and to involve the federal government only when consensus does not exist. Thus, the FNPRM does not re-examine the J-STD-025 standard but focuses instead on the large remaining stumbling blocks to a resolution. First, the FCC dealt with the two key discrete issues that the parties have been unable to resolve: location information and the treatment of packet-mode communications.

The FCC sided with law-enforcement officials on the provision of location information, tentatively concluding that carriers must provide such information. On packet-mode communications, the FCC requested comment and analysis focusing on the difference between connection-oriented and connectionless packet-mode services, and also between permanent virtual circuits and switched virtual circuits. The FCC requested comment on when and how Section 103(a) of CALEA should apply to packet communications.

Second, the FCC turned its attention to the FBI punchlist, which has coalesced opposition from both the wireless industry and First Amendment advocates.

The FCC backed law enforcement by making the following tentative conclusions concerning punchlist items:

* Content of subject-initiated conference calls. The FCC said that subject-initiated conference calls do fall within Section 103 of CALEA. This capability will permit the LEA to intercept -- to the exclusion of any other communications -- the content of conversations connected via conference call set up by the facilities under surveillance.

* Party hold, join, drop on conference calls. This information falls within the definition of "call-identifying information" because the information is signaling information that identifies origin, direction, destination or termination of each communication generated or received by the subject. Party hold, join and drop information will permit the LEA to receive messages indicating whether a party is on hold, has joined or has been dropped from the conference call.

* Subject-initiated dialing and signaling information. As with the two issues above, the FCC concluded dialing and signaling information to fall within the ambit of CALEA, notably Section 102(2) of the act. This capability will permit the LEA to be informed when a subject using the facilities under surveillance uses services such as call forwarding, call waiting, call hold and 3-way calling.

* Timing information. Under Sections 103(a)(2) and 102(2) of CALEA, the FCC said that timing information, such as a time stamp, fits within the definition of call-identifying information. In situations where the LEA has authority to intercept both content and call-identifying information, this requires the carrier to send call-timing information to the LEA so that the LEA can associate the call-identifying information with the actual call.

* Dialed-digit extraction. In the memorandum opinion and order (MO&O), the FCC found that post-cut-through digits representing all telephone numbers necessary for call routing were included in the definition of call identifying, so they are subject to CALEA. But the commission left open for discussion the question of whether such call-identifying information is reasonably available to the carrier originating the call.

The industry did prevail on a few punchlist items when the FCC tentatively concluded that they were outside the scope of CALEA:

* Continuity check tone. This would require that a C-tone or dial tone be placed on the call-content channel received by the LEA from the telecommunications carrier until a user of the facilities under surveillance initiates or receives a call.

* Feature Status. This would require a carrier to notify the LEA when specific subscription-based calling services are added to or deleted from the facilities under surveillance, including when the subject modifies capabilities remotely through another phone or an operator.

* Surveillance Status. The telecommunications carrier would have to send information to the LEA to verify that a wiretap was established and still was functioning correctly.

CIRCUITOUS ROUTEFinal resolution of CALEA issues likely will be a long and winding road with possible detours to the courts and Congress. Comments were due at the FCC by mid-December, and reply comments were due Jan. 13. The FCC will have to digest the comments and reply comments, draft an MO&O reaching final conclusions and obtain the commissioners' approval of the memorandum opinion and order before its decision is released and becomes effective.

A decision is not expected, at the earliest, until the first quarter of this year. Unless the FCC is able to decide the issues with Solomon-like wisdom, industry, LEAs or First Amendment advocacy groups may appeal the decision to the federal courts. CTIA and PCIA already are challenging the FBI's system-capacity requirements and the overall cost of CALEA compliance to the industry in the courts. Although some look to the FCC or the courts for resolution of CALEA issues, it is possible that Congress will, at some point, attempt to develop a legislative remedy.