Carriers & CALEA: Precarious Positioning

With CALEA, carriers are between the dog and the hydrant, according to Michael Altschul, CTIA senior vice president, regulatory affairs & general counsel.

In other words, carriers are wedged between their obligation to assist law-enforcement officials and their obligation to protect subscribers' privacy. Caught in that spot, carriers have been silent. (Four of eight carriers contacted for this article declined to comment. The others didn't respond before press time.)

Altschul said he hasn't seen any changes in carriers' views of CALEA since Sept. 11. He did note, however, anecdotal evidence that wiretap requests have grown significantly. He also discussed recent regulatory developments that might affect carriers' CALEA obligations.

First, the USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act of 2001 being discussed in Congress might ease some of CALEA's paper burdens, Altschul said. He used the bill's roaming wiretap provision as an example.

Currently, certain types of wiretap orders are valid only within the jurisdiction of the issuing court, Altschul explained. That means officers might need additional orders to wiretap roaming criminals. The new provision changes that.

“Multiple orders just impose multiple bookkeeping and record-keeping obligations on carriers,” Altschul said. “So the roaming wiretap, administratively, is going to be less burdensome on carriers.”

The FBI's recent Notice of Proposed Rulemaking (NPRM) seeks clarity on CALEA cost-recovery regulations. The NPRM, released Oct. 5, attempts to make clear when carriers can get reimbursed for modifying legacy equipment to comply with CALEA requirements.

The NPRM mostly provides definitions and clarifications of terms used in the previous CALEA cost-recovery NPRM. However, the document's test will come Dec. 4, the deadline for forwarding comments to the FBI's Telecommunications and Audit Unit.

Attorneys for the Rural Cellular Association (RCA) have reviewed definitions and identified possible problems for their constituents. One example is the FBI's attempt to clarify the term “significant upgrade,” a network upgrade for which the carrier would be financially liable.

In the NPRM, the FBI said parties originally wanted to limit the term to network changes that prevent electronic surveillance. The FBI now wants to include changes that “hamper” surveillance by, for instance, lowering sound quality.

“They talk about whether the upgrade hampers an investigation — hampers vs. impedes,” said Steve Kraskin, RCA general counsel. “None of these terms are in the act. We think what the law talks about is impediments, not hampering.”

However, RCA's attorneys are surveying members to find out whether “hamper” and some of the other proposed definitions will present problems for them before responding to the FBI's proposal.

The real issue is whether the rule is going to clarify when carriers are entitled to negotiate for the recovery of expenses for upgrades to maintain CALEA compliance, Kraskin said.

“The legislative intent is to provide system reimbursement when there's a requirement to make upgrades to comply (with CALEA) that otherwise wouldn't have been made.”