Listening In

Once again, emerging technologies have placed the interests of law enforcers and privacy-loving individuals at loggerheads. In 1994 Congress passed the Communications Assistance for Law Enforcement Act (CALEA), requiring telecommunication companies to work with the FBI to ensure that digital telephones neither eroded nor expanded law enforcement's ability to wiretap America's calls. It didn't take long, however, for the FBI to use this new law to expand its eavesdropping capabilities.

Traditionally, the law has distinguished between call identifying information (the number someone is calling), and the content of the call. For law enforcement officials to obtain the number being called, they must meet only the "relevance standard," convincing a judge that the information they seek is relevant to an ongoing investigation. Any actual conversations, however, are fully protected by the Fourth Amendment; before legally listening in, law enforcers must obtain a warrant based on a "probable cause" belief that the target is engaged in criminal activity.

New technology blurs this distinction, delivering packets of information in which identifying information and content are intertwined. Congress intended to preserve the traditional distinction with technology that would continue to separate telephone numbers from actual conversations. But industry representatives have decided to deliver both the identifier and content based on the relevance standard, trusting the FBI to sort out the content.

The FBI is also seeking new powers, such as the ability to track the location of cellular phone users, eavesdrop on conference calls even after the suspect under surveillance has hung up, and monitor the content of a suspect's voicemail box.

The deadline for CALEA's implementation, October 1998, clearly can't be met because the technology to deliver numbers and content isn't yet available and may take as long as 18 months to develop and deploy.

With negotiations between the FBI, industry representatives, and privacy groups at a standstill, the parties have asked the Federal Communications Commission to settle the dispute. The FCC now plans to start a "rule making" proceeding that will develop regulatory standards for digital telephones and establish a timeline for compliance with the law. The FBI wants the FCC to issue the final regulations by the original deadline this October. But a source close to the negotiations says this won't happen, since the feds and technology firms have been at an impasse for more than four years and neither side appears likely to give in.