DOJ and FBI Plan to Seek Sweeping Changes to CALEA in 2011

Published On September 27, 2010 | By Elizabeth Banker | General
TwitterLinkedInFacebookRedditCopy LinkEmailPrint

This morning the New York Times ran a story about the Department of Justice and Federal Bureau of Investigation plans to seek sweeping changes to the Communications Assistance to Law Enforcement Act (“CALEA”) in Congress in 2011.  This effort is the natural next step in the Administration’s “Going Dark” program, which is hoping to address technology changes that the FBI claims are preventing law enforcement from maintaining the existing level of lawful access to communications via intercept in the face of new technologies.   According to the Times, the government’s focus seems to be on three specific areas: (1)  requiring foreign companies to maintain a U.S. presence where lawful intercept orders can be served and complied with; (2) requiring communications providers who enable encryption to be able to decrypt; and (3)  requiring developers of peer-to-peer software programs to build in capability for the intercepts to be enabled.  However, the article also discusses problems the FBI has faced with communications providers, not subject to CALEA today, who are not able to provide technical assistance necessary to accomplish a wiretap at the time they are served with an order.  The FBI is voicing concerns about the national security implications that the delay in developing such capabilities can have in critical investigations.  Clearly, any government proposal to amend CALEA is going to attempt to significantly broaden the types of communications services that fall within CALEA’s requirements.  This may be the greatest concern for smaller providers who are not yet subject to frequent intercept requests, as new CALEA requirements could nonetheless require expensive engineering efforts to create the capacity for wiretaps orders that may never come.   And one largely agreed failure of CALEA as it exists today is the failure of the reimbursement provisions to actually compensate providers for their compliance with CALEA’s requirements.

The timing of this proposal is also a concern.  Last week’s Congressional hearings on ECPA reform were joined by representatives of state and local law enforcement who raised limits on CALEA, growth in use of encryption technology, and lack of mandated data retention as concerns to be considered alongside ECPA reform.  If November’s elections put Congress under Republican control in 2011, “ECPA reform” could ultimately bear little resemblance to what is currently being advocated by its civil liberties proponents.

About The Author

Elizabeth Banker has developed a practice that includes advising clients on interactions with foreign and domestic law enforcement, strategic issues related to data storage and transfers, providing advice on surveillance and employee monitoring laws inside and outside the U.S., as well as data protection, security and consumer protection issues.

One Response to DOJ and FBI Plan to Seek Sweeping Changes to CALEA in 2011

  1. Ben Levitan says:

    I was one of the developers of the CALEA technical standard negotiating the requirements on the behalf of Verizon and Sprint over 10 years. I later worked for the FBI’s CALEA implementation team run by Tridea.

    Now I act as an expert witness in cases involving cell phones. Many of cases involve my evaluation of wiretap evidence.

    I see both sides of this issue. I see that law enforcement is handcuffed by those using prepaid phones who change them frequently. Sometimes, phone numbers change before court ordered wiretap requests are approved.

    I see that law enforcement does “cheat” on wiretaps by using non-CALEA system to gather Title III evidence.

    While at Nextel (now Sprint) I developed a patent that would allow law enforcement to order immediate wiretap that would be stored in a digital vault. This would preserve valuable data immediately (see Patent No. 7,155,207). This is owned by Sprint (so I gain nothing here.)

    My purpose in writing to you is to let you know I am very interested in this topic and if I can be of assistance in this matter please let me know. Meantime, I will be monitoring development.

    Best Regards,

    Ben Levitan

Leave a Reply

Your email address will not be published. Required fields are marked *