EPIC Letter on FBI Wiretap Report 12/95

EPIC Letter on FBI Wiretap Report 12/95

December 12, 1995

Hon. Orrin Hatch
Chairman, Senate Judiciary Committee
United States Senate
Washington, DC 20510

Hon. Henry Hyde
Chairman, House Judiciary Committee
U.S. House of Representatives
Washington, DC 20515

Dear Sen. Hatch and Rep. Hyde:

I am writing with regard to the Communications Assistance for Law Enforcement Act (“CALEA”), Public Law 103-414; 47 U.S.C. Secs. 1001-1010. I believe that the Federal Bureau of Investigation has failed to comply with the statutory requirements of the Act and that Congressional action may therefore be necessary.

CALEA was enacted in the closing days of the 103d Congress in response to the FBI’s assertions that newly-emerging digital communications technology was hampering law enforcement’s conduct of court-authorized electronic surveillance. The statute requires telecommunications carriers to ensure, under threat of criminal penalty, that their systems are designed to facilitate theinterception of targeted communications. It further provides for federal reimbursement of the costs incurred by carriers as a result of those requirements.

The digital telephony legislation was controversial, due to its obvious privacy implications. As a result, Congress included several reporting requirements in the final legislation to foster public oversight of CALEA’s implementation. One of those provisions is 47 U.S.C. Sec. 1010, which states, in pertinent part:

(a) Reports by the Attorney General.

(1) In general. On or before November 30, 1995, and on or before November 30 of each year thereafter, the Attorney General shall submit to Congress and make available to the public a report on the amounts paid during the preceding fiscal year to telecommunications carriers under sections 104(e) and 109 [47 U.S.C. Secs. 1003(e) and 1008].

(2) Contents. A report under paragraph (1) shall include —

(A) a detailed accounting of the amounts paid to each carrier and the equipment, facility, or service for which the amounts were paid; and

(B) projections of the amounts expected to be paid in the current fiscal year, the carriers to which payment is expected to be made, and the equipment, facilities, or services for which payment is expected to be made.

By order of the Attorney General, as codified in 28 CFR 0.85(o), government implementation responsibilities under the CALEA were delegated to the FBI. The Bureau, in turn, established the Telecommunications Industry Liaison Unit (“TILU”) to carry out the government’s implementation responsibilities. See generally, 60 Fed. Reg. 53643 (October 16, 1995) (“Implementation of the Communications Assistance for Law Enforcement Act”).

I recently contacted TILU in order to obtain a copy of the above-referenced report and was surprised to learn that it has not been produced. I was advised that the report will not be available until sometime after the public comment period for the FBI’s proposed “capacity requirements” under CALEA closes on January 16, 1996. As you may know, the Bureau’s capacity proposal generated a great deal of public concern when it was unveiled in October. The public reaction to that proposal underscores the importance of accountability and openness in the implementation of CALEA.

The FBI’s failure to produce and make available the mandated report on CALEA expenditures constitutes a clear violation of the statute. The significance of the statute’s reporting requirements is apparent. As the House Report on the legislation noted,

the bill has a number of mechanisms that will allow for Congressional and public oversight. … The bill requires the government, with funds appropriated by Congress through the normal appropriations process, to pay all reasonable costs incurred by industry in retrofitting facilities to correct existing problems. *It requires the Attorney General to file yearly reports on these expenditures for the first six years after date of enactment* ….

H. Rpt. No. 827 Part I, 103d Cong., 2d Sess., 19-20 (1994) (emphasis added).

I urge you, as the Chairmen of the Congressional bodies with oversight responsibilities for CALEA, to examine the FBI’s compliance with the statute. As Congress recognized when it enacted the CALEA reporting requirements, the privacy of the nation’s communications infrastructure is a matter of great public concern. Only through effective Congressional and public oversight can we ensure that it is not violated.



David L. Sobel
Legal Counsel