Communications
Lawyer
Winter, 2001
PRIVACY AND LAW
ENFORCEMENT IN THE DIGITAL AGE
David L. Sobel [FNa1]
Copyright © 2001 by American Bar Association; David L.
Sobel
On
August 15, 2000, a three-judge panel of the U.S. Court of Appeals for the
District of Columbia Circuit reversed an FCC order implementing the
Communications Assistance for Law Enforcement Act (CALEA). [FN1] Based on the
grounds that the FCC exceeded its authority and unlawfully trod upon privacy
interests that Congress sought to protect, the ruling, United States
Telecommunications Ass'n v. Federal Communications Comm'n, [FN2] is a critical
one for privacy rights in the Internet and mobile communications age.
After a brief review of congressional action on communications and
privacy concerns, this article describes the problem that Congress sought to
solve with CALEA, analyzes the careful balance Congress struck in writing the law,
and summarizes the order adopted by the FCC.
It next describes the challenge to the FCC's order by privacy groups and the
telecommunications industry, and reports on the D.C. Circuit's decision in USTA
v. FCC, which reversed and remanded major portions of the order. The article
then discusses the decision's implications for other privacy cases involving
communications networks, primarily that privacy interests have equal standing
with the needs of law enforcement in assessing what steps telecommunications
carriers must take to provide technical assistance to the police.
Congress,
Communications, and Privacy
Congress has long recognized that the need to protect individual privacy
from government intrusion, the heart of the Fourth Amendment, becomes ever more
critical as the means and opportunities to invade privacy increase.
As
early as 1934, Congress delineated explicit rules protecting the privacy of
communications and limiting the government's ability to surreptitiously
intercept electronic communications. [FN3] In 1968, Congress established a
framework to allow electronic wiretapping only under the most limited
circumstances. Under Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, wiretapping clearly was meant to be an investigative means of
"last resort." The Electronic Communications Privacy Act in 1986
extended privacy protections to a new set of technologies such as e-mail,
cellular phones, and paging devices.
In
1994, Congress enacted CALEA, largely in response to the FBI's concern that new
technologies could be used to thwart criminal investigations. Still, even as it
attempted to accommodate the FBI's concerns, CALEA also extended privacy
protections to newer technologies and required that any new technical
surveillance standards must protect privacy. Congress recognized the
substantial privacy interests at stake when the police are given a key to a
trap door that is required to be built into the nation's telephone network--a
trap door that enables the police to see who is using the Internet and for what
purpose, who is calling whom, and to monitor those communications. With CALEA,
Congress codified this privacy concern in three ways:
.
It mandated in § 1002(b) that carriers
protect privacy interests;
.
It required the Federal Communications Commission (FCC), if it were asked to
adopt rules, to follow the mandate of §
1006(b) and "protect the privacy and security of communications not
authorized to be intercepted"; and
.
It made sure that law enforcement was not in charge of defining its own
capability, but instead placed a neutral entity in the form of the FCC in the
middle of any dispute.
These protections grew in importance as the Internet and digital
communications became more widespread. Between CALEA's adoption in 1994 and the
court challenge over FCC implementation in 1999, the use of e-mail and the Internet mushroomed, and cellular and PCS
telephones became ubiquitous. One side effect was that the FBI and other law enforcement
agencies became more committed to reach into the nation's communications
infrastructure to access information. However, the rapid change in the
communications networks made clear to privacy advocates, and eventually to the
telecommunications industry itself, that substantial privacy interests were at
stake in efforts to make these technologies "wiretap friendly."
The
government clashed with industry and privacy groups over which capabilities
telecommunications carriers should have to provide under CALEA: law enforcement
thought the list of capabilities that the industry adopted was inadequate, and
privacy groups thought the list exceeded the statutory mandate. Accordingly,
the FCC had to rule on the industry's proposed list of capabilities and determine
whether that list should be altered. In its CALEA order, the FCC generally
ruled in favor of law enforcement and required telecommunications carriers to
make even more extensive and expensive changes to their equipment to provide
additional access to telephone networks. Supported by equipment manufacturers
and service providers, privacy groups and major industry trade associations
claimed that these rules violated CALEA and faulted the FCC for unreasonable
decision making.
Statutory
and Rulemaking Background of CALEA
Electronic
Surveillance
Congress enacted CALEA to expand upon Title III of the Omnibus Crime
Control and Safe Streets Act of 1968 [FN4] and the Electronic Communications
Privacy Act of 1986 (ECPA). [FN5] Motivated principally by concerns
over privacy rights of persons using modern communications devices, these
statutes established broad federal prohibitions against wiretapping and
eavesdropping without appropriate court orders. With a court order, however,
law enforcement officials can conduct electronic surveillance by intercepting
the contents of communications or, with a lesser standard of proof, can obtain
the telephone numbers of a surveillance target's incoming and outgoing calls.
Title III governs the interception of the contents of communications,
which the statute defines as "any information concerning the substance,
purport, or meaning of that communication." [FN6] The courts have
recognized that "[a] nimating the whole of Title III [was] 'an overriding
congressional concern' with the protection of individual privacy." [FN7] Title III
imposes strict limitations on the ability of law enforcement to obtain call
contents-- limitations that embody, and in some respects go beyond, the
protections guaranteed by the Fourth Amendment. Absent an emergency, a law
enforcement agency may intercept the content of a communication only under a
court order issued upon findings of probable cause to believe that a particular
crime is being committed, that communications
concerning the specified offense will be intercepted, and that the telephone
equipment to be tapped is commonly used by the alleged offender or in
connection with the offense. [FN8]
ECPA establishes a similar framework for a broader class of
communications beyond conventional telephone service. It sets rules for law
enforcement to gain access to a broad category of electronic communication and
permits the use of pen registers and trap and trace devices to detect whom a
surveillancetarget is calling and who is calling him or her. [FN9] ECPA contains
minimum standards for court-approved law enforcement access to "electronic
or other impulses" that identify "the numbers dialed" for
outgoing calls and "the originating number" for incoming calls. [FN10] This narrow
category of information is not protected by the Fourth Amendment. [FN11] ECPA
nevertheless requires law enforcement agencies to obtain court orders before
using pen registers. To obtain such an order, the government need merely
certify that "the information likely to be obtained ... is relevant to an
ongoing criminal investigation." [FN12]
Origins
and Purposes of CALEA
CALEA grew out of law enforcement agencies' concerns that
telecommunications advances had begun to outpace their ability to obtain the
types of information they previously could access under Title III and the ECPA.
As FBI Director Louis Freeh testified,
"The purpose of this legislation, quite simply, is to maintain
technological capabilities commensurate with existing statutory authority--that
is, to prevent advanced telecommunications technology from repealing, de facto,
statutory authority now existing and conferred to us by Congress." [FN13] Director Freeh
also stated emphatically that law enforcement was not seeking to expand its
wiretapping authority. [FN14]
Congress responded to the FBI's narrow request by enacting CALEA, with
its stated goal to "preserve the government's ability ... to intercept
communications involving advanced technologies such as digital or wireless
transmission." [FN15] Furthermore, Congress expressly
acknowledged the importance of privacy interests at stake when equipping law
enforcement with invasive surveillance tools. Under CALEA, law enforcement was
to receive "no more and no less access to information than it had in the
past" [FN16] because Congress
simply was preserving law enforcement's "narrowly focused capability"
to intercept communications. This limited grant of authority to law enforcement
was restrained by congressional intent "to protect privacy in the face of
increasingly powerful and personally revealing technologies." [FN17] To preserve the
delicate balance between privacy interests and law enforcement assistance
struck by CALEA, Congress admonished against "overbroad interpretation of
the [statutory] requirements" and explained that it "expect [ed]
industry, law enforcement, and the FCC to narrowly interpret the requirements." [FN18]
Statutory
Framework
Sections 2518 and 3124 of Title 18 provide that telecommunications
carriers must give assistance to law enforcement agencies when they seek to
implement a wiretap warrant or pen register order. Because the
telecommunications equipment used by common carriers has become increasingly
sophisticated, law enforcement asserts that it has not always been able to
implement wiretaps or pen registers with its own resources. Accordingly, CALEA
imposes carefully circumscribed duties on telecommunications carriers to
retrofit or design their networks so that law enforcement can conduct lawful
electronic surveillance. These include:
.Wiretaps. To allow interception of call contents under Title III,
carriers must "enabl[e] the government, pursuant to a court order or other
lawful authorization, to intercept ... all wire and electronic communications
carried by the carrier." [FN19]
.Pen registers. To permit monitoring of numbers dialed under ECPA,
carriers must "enabl[e] the government, pursuant to a court order or other
lawful authorization, to access call-identifying information that is reasonably
available to the carrier." [FN20]
.Privacy protection. Carriers must ensure that authorized interceptions
are conducted "unobtrusively and ... in
a manner that protects the privacy and security of communications and
call-identifying information not authorized to be intercepted." [FN21]
Congress recognized that these general capabilities on the wireline and
wireless telephone networks would have to be translated into specific technical
requirements. Thus, CALEA authorizes industry standard-setting associations to
formulate technical requirements for compliance. The effect of these industry
standards would be to create a "safe harbor" in which a carrier is
deemed in compliance with CALEA if it adheres to the adopted standards. [FN22] Law
enforcement's role in the process is limited to "consult[ation] with the
appropriate associations and standard-setting organizations." Congress was
explicit about the role of police in the communications network: law
enforcement may not require or prohibit "any specific design" of
equipment, facilities, services, features, or system configurations. [FN23]
The
entire structure of CALEA demonstrates congressional concern that telephone
networks should not become the handmaiden of law enforcement. Congress made
clear in the House Report for CALEA that it sought "to preserve a narrowly
focused capability for law enforcement agencies to carry out properly
authorized intercepts." [FN24] More fundamentally, Congress
circumscribed the role of law enforcement in the entire process. First,
industry was directed to develop a standard and to "consult" with the
FBI. Second, if a dispute arose between the
FBI and the telecommunications industry, a neutral third party, namely the FCC,
as an entity that cares about the functioning of the telecommunications network
but also would respect the views of law enforcement, would resolve any
differences.
As
noted, once an industry standard has been established, CALEA empowers the FCC
to modify the standard on petition by any agency or person claiming that the
standard is "deficient." The FCC may add or modify a requirement only
if the new requirement (1) meets the statutory capability requirements by
cost-effective methods, (2) protects the privacy and security of communications
not authorized to be intercepted, (3) minimizes the costs of such compliance on
residential consumers, (4) encourages the provision of new technologies and
services, and (5) provides reasonable time and conditions for compliance. It is
evident that Congress expected law enforcement to petition the FCC and wanted
law enforcement to have the burden of proof to change any industry-adopted
standard.
Development
of Industry Standards
Carriers and telecommunications equipment manufacturers began working to
develop a safe harbor standard in early 1995 through two standard-setting
committees accredited by the American National Standards Institute (ANSI). In
1996, the FBI set forth an expansive list of features it wanted carriers to implement and specific technical means by which
they should be provided. The industry published a standard that included all
the features mandated by the language of CALEA or addressed in the legislative
proceedings plus some concessions to the FBI's demands. The standard, known as
the Interim Standard/Trial Use Standard J-STD-025 or by its short form, "J-standard,"
was adopted by the industry association in December 1997. The J-standard
defines the services and features carriers must provide to support electronic
surveillance and the interfaces necessary to deliver intercepted information to
law enforcement.
In
March 1998, the Justice Department and the FBI petitioned the FCC to add a
"punch list" of nine capabilities to the J-standard. [FN25] The Center for
Democracy and Technology (CDT) also challenged the J-standard for exceeding
CALEA's capability requirements and violating the statute's mandate to protect
the privacy of communications that are not authorized to be intercepted. The
Telecommunications Industry Association (TIA) and the Cellular
Telecommunications Industry Association (CTIA) separately petitioned for a
rulemaking. The FCC sought comment on all the petitions and asked for
additional information in a further notice of proposed rulemaking. On August
31, 1999, the FCC released its CALEA order. [FN26]
Privacy
and Industry Groups and the CALEA Order
The United States Telecom Association
(USTA), the Electronic Privacy Information Center (EPIC), the American Civil
Liberties Union (ACLU), the Electronic Frontier Foundation (EFF), CTIA, and CDT
appealed the FCC order to the U.S. Court of Appeals for the District of
Columbia Circuit. The court consolidated the appeals in USTA v. FCC and
provided for copetitioners: public interest petitioners (EPIC, ACLU, and EFF)
and telecommunications petitioners (USTA, CTIA, and CDT).
The
public interest petitioners argued that the FCC's interpretation of CALEA, a
statute intended simply to replicate law enforcement's existing wiretapping
capabilities in the digital age, endangered the public's right to privacy by
permitting law enforcement to obtain the actual contents of communications
without complying with Title III or the Fourth Amendment. They emphasized that
the challenge to the order would not deny law enforcement any information to
which it is lawfully entitled. The issue raised by the public interest
petitioners focused on crucial procedural protections: whether law enforcement
would be required to comply with long-standing Title III and Fourth Amendment
requirements (obtaining a court order) before gaining access to the contents of
conversations.
The
plaintiffs challenged the following elements of the order:
Packet-Mode
Communication
Packet-mode communication is the
transmission technology used to send data over the Internet and for voice
traffic via next-generation telecommunications systems. In traditional
telecommunications, a call establishes a continuously open circuit between two
parties. In packet-mode communication, information (voice or data) is broken
down into small pieces of digital electronic information called packets. Each
packet is like an envelope, containing both message contents and a header with
addressing information. Packets travel various routes over a complex network to
their destination where they are reassembled into a coherent message. Because
each packet contains both a header and message content, the technology creates
unique privacy concerns.
In
the CALEA order, the FCC recognized that packet-mode communication presents
"significant technical and privacy concerns." [FN27] Specifically,
the call-identifying information (whom the target is e-mailing or calling) and
call content (what the target is saying or writing) are found in the same
envelope. The FCC recognized that the J-standard's approach to packet-mode
communication would allow law enforcement to receive "both
call-identifying information and call content even in cases where a [law
enforcement agency] is authorized only to receive call-identifying information
(i.e., under a pen register)." [FN28] In light of the concerns raised by
packet-mode communications, the FCC asked the industry to study the problem
further and make recommendations on amending the J-standard to protect privacy
more effectively. [FN29] Nonetheless, the
FCC imposed an interim standard that required carriers to deliver all
packet-mode communications to a law enforcement agency, even though the agency
had authority to receive call- identifying information only. [FN30]
The
petitioners contended that, as a threshold matter, the FCC's conclusion was the
result of flawed rulemaking. The FCC itself recognized that the record on
packet-mode communication was incomplete. Even more fundamental, the statutory
language giving the FCC authority to act did not support the FCC's packet-mode
conclusion.
CALEA imposes four requirements on the telecommunications industry.
Three of the requirements are intended to preserve, not expand or enhance, law
enforcement's surveillance capabilities, and the fourth is intended to uphold
the privacy interests of the American public. [FN31] Although the FCC asserted that the law
enforcement agency itself would protect the privacy interests threatened by the
interim standard, [FN32] that rationale was not embraced by
Congress, which required carriers to protect communications not authorized to
be intercepted. Finally, the FCC order appeared to violate Title III and
well-settled law by requiring carriers to deliver call contents to law
enforcement agencies that did not have a proper court order.
Dialed
Digit Extraction
The FCC's decision to include a "dialed
digit extraction" capability in the J-standard also gave law enforcement
officers access to call contents without a court order. Dialed digit extraction
enables a law enforcement agency to obtain the touch-tone digits that a caller
enters after having dialed to make the original connection. These are called
"post-cut-through digits." In some cases, post-cut-through digits are
the destination telephone number that is dialed after using a calling card
number to reach a long distance or interexchange carrier. In other cases, the
digits are the equivalent of call contents-- personal identification numbers,
bank account numbers, paging information, credit card numbers, prescription
drug codes, and the like. The FCC recognized in the CALEA order that some
post-cut-through digits were call contents. [FN33] But because the call-identifying
post-cut-though digits could not be separated from the contents digits, the FCC
required carriers to provide all post-cut-through digits to a law enforcement
agency with only a pen register order. [FN34]
The
petitioners asserted that, in adding the dialed digit extraction capability to
the J-standard, the FCC ignored CALEA's mandate that it consider "[t]he
need to protect the privacy and security of communications not authorized to be
intercepted." [FN35] The CALEA order wholly abrogated
the privacy protection for call contents afforded by the warrant standards in
Title III. The FCC correctly stated that "[it did] not believe that CALEA contemplates changing the standard of proof in
obtaining a warrant in order to avoid implementing a particular CALEA
feature." [FN36] Yet the FCC,
acting far outside its area of competence and thus deprived of any Chevron
deference, changed the standard of proof necessary to access dialed digits that
constitute content. [FN37] If technology currently does not allow
telecommunications services to separate post-cut-through digits used to dial a
second telephone from the remainder of the call's contents, the petitioners
argued that law enforcement should have no authority to obtain access to those
digits on a pen register order. [FN38]
Finally, the petitioners claimed that, as with packet-mode
communication, the FCC's dialed digit extraction conclusion was the result of
faulty rulemaking. Based on its erroneous assumptions about congressional goals
for CALEA, the FCC rejected alternatives such as serving the originating
carrier with a Title III warrant to obtain all dialed digits or having the
originating carrier identify the long distance carrier in question and serving
that carrier with a pen register order. Moreover, by giving law enforcement
access to call contents without Title III authorization, the CALEA order
clearly was unlawful.
Constitutional
Concerns
The
FCC's conclusions about packet-mode communication and dialed digit extraction, according to the public interest
petitioners, abrogated constitutional privacy protections. By ordering carriers
to provide law enforcement with access to electronic communication contents
without requiring law enforcement to obtain the constitutionally required
warrant, the CALEA order compelled carriers to engage in illegal searches and
seizures. The Fourth Amendment protects "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures." [FN39] A search or seizure, within the
meaning of the Fourth Amendment, occurs when the government infringes an
individual's legitimate expectation of privacy. [FN40] Courts
consistently have held that an individual has a reasonable and legitimate
expectation of privacy in the contents of telephone communications. [FN41]
The
CALEA order allowed communication contents to be funneled to law enforcement
upon only the most minimal showing of need, and it permitted law enforcement to
obtain call contents while avoiding the constitutional requirements
constraining such collection. Moreover, the exclusionary rule--the rule that
unconstitutionally obtained evidence cannot be used in court--is a limited
remedy that would have been insufficient to compensate for the CALEA order's
constitutional shortcomings. An individual's Fourth Amendment rights are
violated not when government uses the fruits of an illegal search but rather
when the illegal search occurs. [FN42] Thus, the deterrence value of the exclusionary rule in no way legitimizes the
assault on individual privacy found in the CALEA order.
Location
Information
The
public interest petitioners also argued that CALEA does not authorize the FCC's
finding that the location of a subscriber's nearest cell site at the beginning
and end of each call is call-identifying information that must be made available
to law enforcement. CALEA contains language that expressly prohibits carriers
from delivering location information to government officials based solely on a
pen register order. [FN43] Furthermore, FBI Director Freeh, in
hearings on CALEA, rejected the argument that CALEA would require disclosure of
location information. [FN44] The FCC plainly acted beyond the
terms of CALEA in requiring carriers to provide law enforcement with information
it never sought before Congress.
D.C.
Circuit Upholds the Public's Privacy Interests
In
August, a three-judge panel (Circuit Judges Douglas Ginsburg, A. Raymond
Randolph, and David Tatel) of the D.C. Circuit issued its opinion in USTA v.
FCC, [FN45] reversing and
remanding the CALEA order on the grounds that the FCC exceeded the authority
granted to it by Congress. The opinion, written by Judge Tatel, found that the
FCC wholly and fatally failed to consider
privacy interests in its requirements for a dialed digit extraction capability.
Furthermore, the court ruled that the FCC misapprehended its ability to require
carriers to deliver packet contents along with header information on the
authority of only a pen register order. However, the court held that the FCC
correctly determined that location information associated with a cellular or
wireless telephone should remain a J-standard capability.
Packet-Mode
Communication
Although the court found that the FCC properly denied petitions to
remove packet-mode data from the J-standard, it provided a strongly worded
clarification that a law enforcement agency is entitled to the contents of
packets only if it obtains a Title III warrant. The FCC "was simply
mistaken" when it "interpreted the J-standard as expanding the
authority of law enforcement agencies to obtain the contents of
communications." The FCC could not require that carriers provide packet
header and content information to a law enforcement agency only on the basis of
a pen register order. "CALEA authorizes neither the [FCC] nor the
telecommunications industry to modify either the evidentiary standards or
procedural safeguards for securing legal authorization to obtain packets from
which call content has not been stripped, nor may the [FCC] require carriers to
provide the government with information that
is 'not authorized to be intercepted."'
Dialed
Digit Extraction
At
the heart of whether the FCC could require telecommunications carriers to
provide post-cut-through digits and other punch list data was the question of
how to define "call-identifying information." In order to add dialed
digit extraction and other capabilities to the J-standard, the FCC first would
have to have found a deficiency in the J-standard's definition of
"call-identifying information" and related terms. The court found
that the FCC utterly failed to do so. "Although the [FCC] used its
rulemaking power to alter the J-standard, it identified no deficiencies in the
standard's definitions of the terms 'origin,' 'destination,' 'direction,' and
'termination,' which describe 'call- identifying information' in terms of
telephone numbers." Consequently, the court found that the FCC had not
performed its statutorily mandated role in modifying the J-standard and had
improperly added dialed digit extraction and other capabilities.
Moreover, the court found that the FCC failed to consider privacy
protection as required by CALEA when it added the dialed digit extraction
capability. The FCC "had a statutory obligation to address how its Order,
which requires the capability to provide all dialed digits pursuant to a pen
register order, would 'protect the privacy and security of communications not
authorized to be intercepted."'
However, the FCC only considered the costs to law enforcement and the
time-consuming nature of proposed alternatives. When asked at oral argument
about the FCC's decision-making process, FCC counsel admitted that "[w]e
addressed ourselves to the privacy questions with a little bit of hand wringing
and worrying." The court tartly replied in its opinion that
"[n]either hand wringing nor worrying can substitute for reasoned decision
making." The court vacated the FCC's addition of dialed digit extraction
and the other challenged punch list capabilities.
Location
Information
Although the court upheld the FCC's decision to retain a location
requirement in the J-standard under which carriers will have to be able to
provide a wireless subscriber's nearest cell site at the beginning and end of a
call, it reiterated that the information does have privacy protections. The
court found that the FCC "demonstrated its understanding that antenna
location information could only be obtained with something more than a pen
register order."
Implications
of the Decision
USTA v. FCC confirms several aspects of how CALEA is to be implemented
that perhaps should have been apparent to the FCC from the statute's text and legislative history. First, the decision
confirms that CALEA is meant to preserve law enforcement's abilities to conduct
telecommunications surveillance, but not to enhance them. Title III and ECPA
remain sources for and constraints on law enforcement's authority. Second,
Congress intended for privacy interests to carry substantial weight as CALEA is
implemented. The FCC is not free to ignore congressional concern for privacy
protection. Third, CALEA does not permit the FCC to allow law enforcement
agencies to bootstrap access to the contents of packet-mode communications onto
authorizations for only call-identifying information. If available technology
does not allow packet contents to be separated from addresses or
post-cut-through digits denoting telephone numbers from those constituting
contents, then law enforcement needs to comply with the more stringent
requirements for obtaining a Title III warrant. Finally, the court ignored the
government's argument that a law enforcement agency could obtain access to call
contents with a mere pen register order when contents could not be separated
from call-identifying information as long as the agency ignored the contents
information and "minimized" its interception. The argument was of no
avail to the government, which confirms that privacy protections are violated
at the time of unauthorized government access, not just if and when the
government attempts to use the information that it unlawfully obtained.
Currently, the FCC is again compiling comments from industry
representatives, law enforcement agencies,
and privacy groups as it seeks to refashion its implementation of CALEA in line
with the D.C. Circuit's opinion.
[FNa1]. David L. Sobel (sobel@epic.org) is
General Counsel of the Electronic Privacy Information Center (EPIC). He is
grateful for the assistance of Gerard J. Waldron and Russell J. Jessee of
Covington & Burling, Washington, D.C., in the drafting of this article and
for their representation of EPIC, the Electronic Frontier Foundation, and the
American Civil Liberties Union in challenging the implementation of CALEA
before the FCC and in the D.C. Circuit in USTA v. FCC.
[FN1]. 47 U.S.C. § §
1001 et seq.
[FN2]. 227 F.3d 450 (D.C. Cir. 2000).
[FN3]. Communications Act of 1934, 47 U.S.C. §
605, § 705 (1934).
[FN4]. 18 U.S.C. § §
2510 et seq.
[FN5]. 18 U.S.C. § §
3121 et seq.
[FN7]. Chong v. DEA, 929 F.2d 729, 732 (D.C. Cir. 1991) (quoting Gelbard v. United States, 408 U.S. 41, 48 (1972)).
[FN9]. Pen registers record the telephone
numbers of outgoing calls and trap and trace devices, much like caller-ID
systems record the telephone numbers of incoming calls. Both devices are
referred to collectively as pen registers.
[FN10]. 18 U.S.C. § § 3127(3)-(4).
[FN11]. Smith v. Maryland, 442 U.S. 735, 742 (1979).
[FN12]. 18 U.S.C. § §
3122-23.
[FN13]. Digital Telephony and Law
Enforcement Access to Advanced Telecommunications Technologies and Services:
Joint Hearings on H.R. 4922 and S. 2375, 103d Cong. 7 (1994).
[FN14]. See id. at 6.
[FN15]. H.R. Rep. No. 103-827, at 9
(1994), reprinted in 1994 U.S.C.C.A.N. 3489.
[FN16]. Id. at 22, reprinted in 1994
U.S.C.C.A.N. 3502.
[FN17]. Id. at 13, reprinted in 1994
U.S.C.C.A.N. 3493.
[FN18]. Id. at 22-23, reprinted in 1994
U.S.C.C.A.N. 3502-03.
[FN19]. 47 U.S.C. §
1002(a)(1).
[FN20]. 47 U.S.C. §
1002(a)(2) (emphasis added).
[FN21]. 47 U.S.C. §
1002(a)(4). CALEA also establishes requirements for delivery of
information to the government (47 U.S.C. §
1002(a)(3)) although this provision was not at issue in
the appeal of the FCC's implementation of the Act.
[FN22]. 47 U.S.C. §
1006(a). Carriers that do not comply with the safe harbor and do not otherwise meet CALEA's
requirements may incur civil fines of up to $10,000 per day. See 18 U.S.C. §
2522(c).
[FN23]. 47 U.S.C. § §
1002(b)(1)(A), 1006(a).
[FN24]. House Rep., supra note 13, at 13,
reprinted in 1994 U.S.C.C.A.N. 3493 (emphasis added).
[FN25]. Department of Justice/FBI Joint
Petition for Expedited Rulemaking (Mar.
27, 1998).
[FN26]. Third Report and Order, In re
Communications Assistance for Law Enforcement Act, CC Docket No. 97-213, 14 FCC
Red 16794 (1999) (CALEA order). The FCC originally sought comments on April 20,
1998, and issued its further notice of proposed rulemaking for CALEA on
November 5, 1998.
[FN27]. Id. ¶ 55.
[FN28]. Id.
[FN29]. Id.
[FN30]. Id.
[FN31]. Specifically, carriers must ensure
that their facilities are capable of (1) expeditiously isolating and enabling law
enforcement to intercept call content; (2) expeditiously isolating and enabling
the government to access reasonably available call-identifying information; (3)
delivering intercepted communications and call-identifying information to the
government in a format that allows them to be transmitted to a law enforcement
listening facility; and (4) doing all of the above three functions "in a
manner that protects ... the privacy and security of communications and
call-identifying information not authorized to be intercepted" and the
confidentiality of the interception. See 47 U.S.C. §
1002(a)(1)-(4).
[FN32]. See CALEA order ¶ 56.
[FN33]. See id. ¶ 119.
[FN34]. See id. ¶ 123. In addition to dialed digit extraction,
the FCC added party hold/join/drop information, id. ¶ ¶ 74-75, subject-initiated dialing and
signaling information, id. ¶ 82, and
in-band and out-of-band signaling
capabilities to the J-standard, id. ¶
89, all of which were subsequently challenged. The FCC also added
partial capabilities regarding the content of conference calls, id. ¶ ¶ 64-67, and timing parameters, id. ¶ 96. It declined to add surveillance status
messages, id. at 101, continuity tones, id. at 106, and feature status
messages, id. at 111, to the J- standard from the FBI's punch list. None of the
latter decisions was challenged.
[FN35]. 47 U.S.C. §
1008(1)(C).
[FN36]. CALEA order ¶ 120.
[FN37]. See Professional Airways Sys. Specialists v. Federal
Labor Relations Auth., 809 F.2d 855, 857 n.6 (D.C. Cir. 1987) (finding that
when agency interprets a general statute, courts "engage in a de novo
interpretation of the statute, guided, of course, by congressional
intent").
[FN38]. See Brown v. Waddell, 50 F.3d 285, 294 (4th Cir. 1995) (holding that
duplicate digital display pager used to intercept numeric transmissions is not
"pen register" under ECPA and its use by law enforcement without was
"unauthorized interception of 'electronic communication"' as matter
of law).
[FN39]. U.S. Const. amend. IV.
[FN40]. See Katz v. United States, 389 U.S. 347, 353 (1967).
[FN41]. See Smith v. Maryland, 442 U.S. 735, 741 (1979); Katz, 389 U.S. at 353.
[FN42]. See United States v. Balsys, 524 U.S. 666, 692 (1998) ("[B]
reaches of privacy are complete at the moment of illicit intrusion, whatever
use may or may not be made of their fruits."); United States v. Verdugo- Urquidez, 494 U.S. 259,
264 (1990) (explaining that Fourth Amendment prohibits
unreasonable searches and seizures whether or not evidence is excluded from
criminal trial because Fourth Amendment violation is "'fully accomplished'
at the time of an unreasonable governmental intrusion").
[FN43]. See 47 U.S.C. §
1002(a)(2).
[FN44]. See Joint Hearings, supra note 11,
at 33.
[FN45]. United States Telecom Ass'n v. FCC, 227 F.3d 450
(D.C. Cir. 2000).
END OF DOCUMENT