Communications Assistance for Law Enforcement Act (CALEA). (Focus on Technology).

Lawfully authorized electronic surveillance remains important to law enforcement as telecommunications systems become cornerstones of everyday life. Dependence on telecommunications for business and personal use has increased dramatically. Computers, data services, and mobile communications have become increasingly important to consumers.

The three primary techniques of lawfully authorized electronic surveillance available to law enforcement are pen registers, trap and trace devices, and content interceptions. Pen registers and trap and trace devices account for the vast majority of lawfully authorized surveillance attempts. These techniques record and decode various types of dialing and signaling information used in processing and routing the communication, such as the signals that identify the numbers dialed (i.e., outgoing) or the originating (i.e., incoming) number of a telephone communication. The third, and more comprehensive, form of lawfully authorized electronic surveillance includes not only the acquisition of call-identifying, or dialed-number, information but also the interception of communications content.

Lawfully authorized electronic surveillance is crucial to effective law enforcement, but it is used sparingly. This is particularly true with respect to the interception of communications content. The federal government, the District of Columbia, the U.S. Virgin Islands, and 45 states allow the use of this technique, but only in the investigation of felony offenses, such as kidnaping, extortion, murder, illegal drug trafficking, organized crime, terrorism, and national security matters, and only when other investigative techniques either cannot provide the needed information or would be too dangerous. A judge may not approve a call-content order for a "period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days." (1) Applicable federal and state laws and procedures also require continuous judicial oversight throughout the tenure of the intercept activity. This oversight is accomplished through the filing of regular reports with the authorizing judge "sho wing what progress has been made toward achievement of the authorized objective and the need for continued interception." (2)

CALEA Inception

In October 1994, at the request of the nation's law enforcement community, the U.S. Congress enacted the Communications Assistance for Law Enforcement Act (CALEA) to clarify the scope of a telecommunications carrier's duty in effecting lawfully authorized electronic surveillance. Although telecommunications carriers were required since 1970 to cooperate with law enforcement personnel in conducting lawfully authorized electronic surveillance, CALEA, for the first time, requires these carriers to modify the design of their equipment, facilities, and services to ensure that lawfully authorized electronic surveillance actually can be performed.

CALEA Implementation

On February 24, 1995, the attorney general delegated management and administrative responsibilities for CALEA to the FBI. The FBI, in turn, created the CALEA Implementation Section (CIS), which works with the telecommunications industry and the law enforcement community to facilitate effective and industrywide implementation of CALEA. Consistent with the Federal Communications Commission's (FCC) duty to regulate the use of wire and radio communications, Congress assigned specific CALEA responsibilities to the FCC. These include, but are not limited to--

* determining, in consultation with the attorney general, which entities should be considered telecommunications carriers for purposes of CALEA; and

* establishing technical requirements or standards for compliance with the assistance capability requirements of CALEA if industry associations or standard-setting organizations fail to issue technical requirements or if a government agency or any other person believes that industry-adopted standards are deficient.

* Telecommunications carriers must ensure that equipment, facilities, or services that provide customers the ability to originate, terminate, or direct communications meet certain assistance capability requirements. These include the--

* expeditious isolation and interception of communications content;

* expeditious isolation and access to call-identifying information;

* delivery of communications content and call-identifying information to law enforcement;

* unobtrusive delivery of this information while protecting the privacy and security of communications not authorized to be intercepted; and

* ensuring the capability to perform multiple simultaneous interceptions.

Congress also recognized that without the assistance of manufacturers of telecommunications equipment and support service providers, carriers would be unable to comply with CALEA. Therefore, it imposed an affirmative duty on manufacturers of telecommunications equipment and support service providers to make available all features or modifications necessary to meet the assistance capability requirements of CALEA.

Funding Issues

The FBI has implemented a reimbursement strategy that allows telecommunications carriers to receive CALEA software at no charge. Under nationwide right-to-use licenses, the FBI pays the switch manufacturers to develop CALEA software. These manufacturers then provide the telecommunications carriers with this software at no charge for installation onto the carriers' switching equipment.

Law enforcement is now at an important juncture of CALEA's implementation as CIS proceeds to reimburse certain eligible carriers for deploying switch software solutions. The deployment of the software solutions to carrier switches will require a certain level of engineering work and hardware to bring the software online. As CIS negotiates with carriers toward reasonable costs in this essential phase of CALEA implementation, CIS will need to obtain support for the required funding. Based upon current negotiations, CIS anticipates those reasonable costs to exceed the remaining balance in the Telecommunications Carrier Compliance Fund by approximately $200 million dollars. CIS also needs to combat various industry-initiated efforts through the courts, the FCC, and Congress to delay or limit the implementation of CALEA. These delays are impeding, and will continue to impede, the ability of law enforcement to effect lawfully authorized pen register and trap and trace orders.

Liaison Efforts

To ensure that law enforcement leaders remain cognizant of the progress CIS is making and the issues with which CIS is grappling, CIS formed a Law Enforcement Executive Forum (LEEF) in October 2001. Membership in this forum (which was attended by federal, state, and local law enforcement officials from around the country) was extended to law enforcement executives recommended by their national organizations, including the International Association of Chiefs of Police (IACP), the National Sheriffs' Association (NSA), the National Association of Attorneys General (NAAG), and the National District Attorneys Association (NDAA).

The CIS represents the interests of the entire law enforcement community in matters pertaining to CALEA. CIS has established a Web site, http://www.askcalea.net, to disseminate implementation details and provide an avenue for requesting additional information.

Conclusion

The technological advances of the past decade have affected every aspect of society, especially the criminal justice community. As new communications products arrive in the marketplace, new challenges arise for those in the law enforcement profession who must conduct lawfully authorized electronic surveillance.

To assist the law enforcement community, the U.S. Congress passed the Communications Assistance for Law Enforcement Act to ensure that manufacturers and carriers design equipment, facilities, and services that are compatible with lawfully authorized electronic surveillance needs. The FBI has management and administrative responsibilities for CALEA and created the CALEA Implementation Section to work with the telecommunications industry and the law enforcement community to effectively implement CALEA. This partnership can ensure that lawfully authorized electronic surveillance remains one of the most valuable tools in law enforcement's crime-fighting arsenal.

Endnotes

(1.) 18 U.S.C. [section] 2518 (5).

(2.) 18 U.S.C. [section] 2518 (6).

Special Agent Michael P. Clifford is the section chief of the FBI's CALEA Implementation Section in Chantilly, Virginia.