FCC ORDER ON CALEA REMAND KEEPS SURVEILLANCE REQUIREMENTS INTACT

“USTA is disappointed that the FCC, in its order on remand released today, has simply reimposed the 4 punchlist capabilities required by its 3rd Report and Order that were vacated by the D.C. Circuit,” USTA Pres. Walter McCormick said. Assn. said it remained committed to working with law enforcement but would study order “to determine if the deficiencies identified by the Court of Appeals have been cured.”

CTIA said order “dodged” chance to define how next- generation wireless services such as short-message services were covered by CALEA. “The Commission said it would address such requirements in this order, but by avoiding the issue it leaves the industry guessing about future standards for surveillance,” CTIA Pres. Tom Wheeler said. CTIA said order failed to address whether several wireless data functions were information services, which would be exempt from CALEA mandates, or fell under telecom services, which were included. Last year, carriers such as AT&T Wireless had stressed to FCC that absence of clear decision on whether services such as short-messaging service (SMS) were information or telecom service had complicated development of CALEA solutions in that area. CTIA said it would continue to work closely with law enforcement industry on CALEA compliance. Wheeler said: “The Commission missed an opportunity to address a vital security issue at a critical time.”

D.C. Circuit ruling had centered on consolidated CALEA challenges brought by privacy groups such as ACLU and Center for Democracy & Technology and industry groups such as CTIA and USTA. Telecom industry challenged 4 punch-list items in order on so-called J-Standard, which itself was developed jointly by law enforcement and industry groups. J-Standard covers requirements that must be met by wireline and wireless carriers when responding to electronic surveillance requests by law enforcement agencies. Order, approved April 5 but not released until Wed., said CALEA capabilities it covered must be provided by wireline, cellular and PCS carriers by June 30, as well as 2 additional punch-list capabilities not reviewed by D.C. Circuit. Vacated punch-list items cited in remand were post-cut-through dialed digit extraction, party hold-join-drop information, dialing initiated by subject of investigation, signaling information.

Several wireless carriers, including Cingular Wireless, contended in comments last year that FCC shouldn’t impose any of 4 punch-list capabilities because they didn’t constitute call-identifying information, argument backed by BellSouth, Verizon, WorldCom, PCIA. But Dept. of Justice and FBI disagreed, saying types of information covered did constitute call-identifying information. DoJ and FBI cited part of D.C. Circuit ruling that backed arguments by law enforcement that call-identifying information could represent more than phone numbers. Law enforcement agencies said that because call- identifying information was broader than just phone numbers, narrower J-Standard wasn’t sufficient and Commission should use definition that included all dialing and signaling information that pinpointed origin, direction, destination or termination of communications. FCC said: “We believe that commenters’ suggestions for a narrow definition are unconvincing and we identify additional situations where ‘call-identifying information’ necessarily includes more than telephone numbers.” To adopt only J-Standard definitions would mean FCC couldn’t “give all portions of CALEA full effect,” order said. Citing D.C. Circuit decision, it said: “We are disinclined to interpret a statute in a manner that will render portions of its superfluous.”

FCC said “call-identifying” information consisted of both dialing and signaling information that might or might not include phone numbers, but not all of that kind of data fell into that category. It cited examples such as prescription numbers or bank account numbers that could be punched into phone key pad but didn’t affect how network processed outgoing call. FCC said it relied on definition of call-identifying information that involved origin, direction, destination or termination of each communication generated or received by subscriber. But order spelled out that J- Standard by itself wasn’t broad enough: “The J-Standard’s definitions are deficient to the extent that they confuse origin, direction, destination and termination with phone numbers or other information that may be used to identify the origin, direction, destination and termination of each call or communication.” Commission said its broader definition would allow multiple call origins, destinations and directions.

On cost consideration issues that D.C. Circuit said Commission didn’t explain adequately, FCC reiterated that standards for punch-list capabilities were cost-effective. “We think those comments that would have us reject the punch- list capabilities solely because they would be costly to implement are incorrect,” order said. Congress anticipated carriers would bear some costs associated with CALEA, it said. FCC said it had considered financial burden on carriers when examining whether technical standards mandated under CALEA were cost effective. “In the case of the punch- list capabilities, we note that several aspects of the implementation program significantly mitigate this burden, which serves to make implementation of the punch-list capabilities ‘cost effective’ for carriers,” agency said.

In separate statement, Copps said he supported FCC actions, which he said would help law enforcement agencies (LEAs) and wireless carriers make progress in better equipping law enforcers to collect call-identifying information. But he said: “I remain concerned, however, that CALEA-related costs for these government mandates will be high for residential customers and wireless providers, especially for rural providers.” Only recourse that carriers and consumers have when faced with costs is petitioning FCC and demonstrating that compliance with new assistance capabilities isn’t “reasonably achievable,” Copps said. In such cases, FCC must then consider impact on rates for basic residential phone service as part of determining whether those capabilities were reasonably achievable for carrier, he said.

Copps said he also had concerns about privacy. In remand order, D.C. Circuit said FCC’s previous rejection of alternatives to post-cut-through dialed digits requirements wasn’t based on technological infeasibility. Court said Commission had noted that alternatives would shift cost to law enforcement agency from originating carrier, reasoning that court didn’t accept as satisfactory. “Congress insisted that we protect individual privacy in CALEA,” Copps said, which he said was “extremely difficult task” for FCC. “I would be more satisfied if we had a post-cut-through dialed digit technology available to us that provides LEA’s with call-identifying information while protecting other information,” he said, noting that such technology isn’t available. But technology chosen by FCC ensures that LEAs will receive information they need and relies on judgment of court on whether pen register warrant or Title III warrant is appropriate legal authority, he said. “Given our options at this time, I believe that is the best choice available to us,” Copps said.