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Before the
FCC Washington, D.C. 20554 FOOTNOTES OF THE REPLY COMMENTS OF THE CENTER FOR DEMOCRACY AND TECHNOLOGY January 27, 1999 |
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1 See H.R. Rep. No. 103-827, pt.1 (1994)( House Judiciary Committee Report, hereinafter "House Report"). Unlike in many cases where there are competing House and Senate reports, a conference report, and lengthy Floor statements in both chambers, the legislative history in this case is exceptionally clear. As we have previously explained, the Senate Judiciary Committee report is identical to the House Report being cited, reflecting the close cooperation between the two Committees in drafting the legislation. S. Rep. No. 103-402 (1994). No other committees filed reports, and there was no conference, since the Senate passed the very same bill that the House passed. Thus, although some sections of the legislation changed after the Judiciary Committees acted, the Judiciary Committee reports remain the best legislative history. Many provisions ultimately enacted were unchanged from the version reported by these Committees.
2 Indeed, in the case of a suspect using a calling card and multiple phones, law enforcement may find it easier to go to the long distance carrier to obtain the most useful call-identifying information.
3 The DOJ/FBI argue that, if the Commission deems a capability not reasonably achievable under Section 103 because of cost, the carrier could not be obligated to provide it even if law enforcement were willing to pay the cost. This is wrong. The government can buy any capability it wants from any carrier or manufacturer under pre-existing procurement authority. Indeed, while the dispute over the adoption and implementation of CALEA has dragged on, the FBI and other law enforcement agencies have undoubtedly purchased individual capabilities for individual cases or jurisdictions.
4 Similarly, Congress applied the same factors to courts’ determinations of compliance under Section 109. Congress would not have intended carriers to ignore these factors in interpreting the requirements of 103, for that would mean that industry would be adopting a standard under 103 that no one could meet and that everyone would be entitled to be excused from under Section 109.
5 First, it is clear that pen registers and trap and trace devices evolved over time. Secondly, traditionally, a law enforcement agency conducting a pen register surveillance actually obtained delivery of everything on the surveilled line, including call content. If the pen register was operated by law enforcement, the carrier simply provided a leased line from a bridge on the surveilled line - this delivered the full contents of the line to law enforcement. This was not very desirable from a privacy perspective, but there was no alternative (except placing the pen register inside company premises). Out of band signaling changed that, however, in a way that enhanced privacy. No one is arguing that pen registers should be conducted as they traditionally were. Third, a traditional pen register never captured speed dialing information, while CALEA is clearly intended to ensure that law enforcement is provided the full seven or ten digit number to which a speed dial code relates.
6 In our prior comments, we cited the language of the1986 Senate Report on the law authorizing pen registers and trap and trace devices, the 1986 testimony of a leading expert on wiretapping, and the 1976 report of the National Wiretap Commission. CDT, 6/12/98, p. 9, all of which consistently state that pen registers record only dialed numbers and trap and trace devices identify the originating number of incoming calls. According to Professor Clifford Fishman, the pen register "does not reveal who place the call, nor who received the call, nor even whether the call was completed." Id.
7 See Digital Telephony and Law Enforcement Access to Advanced Telecommunications Technologies and Services: Joint Hearings on H.R. 4922 and S. 2375 Before the Subcomm. on Tech. and the Law of the Senate Comm. on the Judiciary and the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong., S. Hrg. 103-1022 (1994) ("Hearings").
8 Congress was aware of this case, for it is cited in the Committee reports on CALEA. House Report, p. 21.
9 We fully agree with manufacturers that packet technologies are subject to CALEA only when used for telecommunications, and not when they are used for "information services." TIA, 12/14/98, p. 43, n. 105. The DOJ/FBI also seem to agree with this proposition. DOJ/FBI, 12/14/98, pp. 81 — 82. In addition, we urge the Commission to recall that interexchange carriers and private networks, two of the places where packet technologies are finding their most significant applications, are not covered by CALEA. CDT, 12/14/98, p. 20.
10 House Report at 23.
11 The DOJ/FBI claim that this information is necessary for law enforcement to know who is hearing what in the course of a conversation. A search of the legislative record does not uncover any instance in which they ever mentioned this in the hearings on CALEA. Not too long ago, the government claimed with equal certainty that it was necessary and required under CALEA for carriers to separate onto a distinct delivery channel the content for each speaker, so that the government could tell who was saying what.
12 Under the J-STD, the government will actually get the dialed numbers identifying call attempts. This is not covered by CALEA, but we do not suggest here that it is prohibited either.
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