July 17, 1998

The Honorable Ted Stevens
Chairman
Committee on Appropriations
United States Senate
Washington, D.C. 20510

Dear Mr. Chairman:

We are writing to urge you to reject any efforts by the Federal Bureau of Investigation to use the appropriations process to expand its electronic surveillance powers through amendments to the Communications Assistance for Law Enforcement Act (CALEA). Four years ago, FBI Director Freeh hailed CALEA as achieving "a delicate but critical balance... between public safety and privacy and constitutional rights." Director Freeh praised CALEA:

"I think we have reached a remarkable compromise and achievement in preserving that tool [wiretapping] as it has existed since 1968 and yet balancing all the technology and privacy concerns which are so precious to all of us."

- FBI Director Louis Freeh, Congressional testimony, August 1994.

But ever since the law was enacted, the FBI has tried to use it not merely to preserve its surveillance capabilities as Congress intended, but to expand them, demanding that companies build expensive new surveillance features. Using the checks and balances in the law, the undersigned privacy groups have asked the FCC to reject the FBI's demands.

We understand that the FBI is now asking Congress for major revisions of the 1994 law, to mandate the FBI's requests for expanded surveillance capabilities and strike from the Act key provisions intended to ensure a balance between privacy and law enforcement. We understand that the FBI has asked that there be attached to the CJS appropriations bill an amendment that would:

• Codify the FBI's entire list of enhanced surveillance capabilities -- For over a year, industry and privacy groups have opposed the FBI's efforts to use CALEA to expand government surveillance capabilities. The FBI's proposed expansions are now being challenged before the FCC. The FBI amendment would terminate the FCC proceeding by ordering the Commission to adopt without revision the entire FBI wish list, including the capabilities to track wireless phone users without meeting constitutional standards and to continue monitoring all parties to a conference call after the suspect has dropped off the call.

• Eliminate public accountability - The proposed amendment states that the FCC shall enact the FBI wish list immediately and "without notice and comment." This means that privacy groups would have no right to have their concerns heard. When Congress set up the CALEA process, it required the FCC to protect privacy and minimize cost. The FBI amendment would render those considerations irrelevant.

• Require carriers to disclose "the exact physical location" of wireless phone users without any court approval - In 1994, FBI Director Freeh testified that CALEA "does not include any information which might disclose the general location of a mobile [phone]... There is no intent whatsoever...to acquire anything that could properly be called 'tracking' information." Now the FBI is seeking "exact" physical location, going beyond even the cell site information industry has offered to provide law enforcement in its CALEA plan now under challenge on privacy grounds at the FCC.

  Furthermore, the FBI amendment, in a provision that purports to address privacy concerns, requires carriers to provide tracking information on any wireless phone user for up to two days without a court order, upon the mere request of any police officer. This is less protection than current law.

• Establish a bogus standard for access to location information - In what the FBI will undoubtedly characterize as a concession to privacy, the amendment would require wireless carriers to provide location information whenever presented with a court order "based upon a finding that there is probable cause to believe that the location information is relevant to a legitimate law enforcement objective." This is actually weaker than current law, which requires at least that the information be relevant and material to an ongoing investigation. "Legitimate law enforcement objective" doesn't even require that police have an ongoing case. The use of the words "probable cause" do not make this provision acceptable. The issue is "probable cause" to believe what?

• Write "reasonableness" out of the statute - In 1994, Director Freeh testified that CALEA "reflects reasonableness in every provision." The statute specifically said that carriers could be required to modify their systems for law enforcement purposes only if the changes were "reasonably achievable." Now the FBI amendment would amend the Act to state that compliance with the FBI's wish list is "deemed reasonably achievable." To "deem" something means that we pretend it is so even when it isn't. This amendment deprives the FCC of jurisdiction to assess the feasibility and cost of CALEA compliance.

• Packet networks - In another provision that will be characterized as a concession to privacy, the amendment states that carriers "to the extent possible" shall separate call-identifying information from content when transmitted as packet-mode data. Privacy groups have asked the FCC to determine how and when this can be done. By depriving the Commission of authority over implementation of CALEA, the FBI amendment may be precluding privacy groups and others from having any input in deciding how surveillance is to be conducted in the packet networks that represent the future of telephony.

In short, the FBI is trying to rewrite CALEA to get what it failed to get from Congress four years ago, and what it has failed to get since from industry and through the FCC. The FBI's efforts are under challenge at the FCC and in the courts. The FBI's proposed amendment is an effort to cut off those challenges.

It is appropriate for Congress at this time to extend the CALEA compliance and "grandfather" dates, in order to allow resolution of the substantive issues pending before the FCC. It would be inappropriate for Congress to grant FBI the authority that it was denied four years ago after a lengthy hearing and negotiation process.

The FBI may try to characterize its proposal as a compromise. It is not. The granting of a one-time extension to industry and the purported concessions to privacy do not come close to justifying a fundamental rewriting of CALEA, which is what the FBI amendment would do.

We would be happy to meet with you or your staff to discuss our concerns more fully.

Sincerely,

Laura W. Murphy
American Civil Liberties Union

James P. Lucier, Jr.
Americans for Tax Reform

Jerry Berman
Center for Democracy and Technology

Barry Steinhardt
Electronic Frontier Foundation

Marc Rotenberg
Electronic Privacy Information Center

Lisa S. Dean
Free Congress Foundation

Cc: The Honorable Robert C. Byrd
    The Honorable Judd Gregg
    The Honorable Ernest F. Hollings
    The Honorable Patrick J. Leahy

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