Subject: [NEXTEL-1] FBI OFFICIAL: TECHNOLOGY PRE-CLEARANCE NOT EXPECTED BY LAW ENFORCEMENT

From: Marcelrf <[email-masked]>
Date: Wed, 31 Mar 2004 23:01:36 -0500

FBI OFFICIAL: TECHNOLOGY PRE-CLEARANCE  NOT EXPECTED BY LAW ENFORCEMENT

SANTA CLARA, Calif. - Rich Thompson, supervisory special agent
with the Federal Bureau of Investigation and a lead agent in
developing federal law enforcement's recent filing with the FCC on
the Communications Assistance for Law Enforcement Act (CALEA)
as it pertains to Internet protocol services, offered an olive branch
of
sorts to the telecom industry during a speech to the Voice on the Net
conference here this week clarifying that the FBI does expect pre-
clearance of new communications technologies.

Sources at the VON conference viewed the comments as an important
change from the law enforcement group's petition filed with the FCC
earlier this month.  But Mr. Thompson told TRDaily this morning his
remarks were consistent with the government's longstanding position.

"What we were trying to do is dispel some of the rumors," he said.
"There's never been a pre-clearance [demand].  If you take a look at
pre-clearance why do we let push-to-talk go out there without a
solution?  Do they have to come through us?  Would we have
approved that?"

Mr. Thompson said the "law has always been very clear" that any new
technology offered to the public "should have a CALEA solution on
there."

He added, "There has always been this voluntary compliance issue.
Industry hasn't come through with it too much.  Obviously, we've had
some gaps and there's some vulnerabilities because of those gaps, but
there has never been where they have come to us and we've had to say
we'll approve it or not approve it and stifle innovation or let
innovation go."

During a speech to the conference late yesterday, Mr. Thompson noted
that the number of wire intercepts each year in the U.S. was very low
and that figure was declining further.  He also warned that new
telecom technologies, including push-to-talk phones, are all but
impossible to tap.

"Those that would do our nation harm will migrate to the new
technology if they have any idea or any regard that these cannot be
surveilled," he said.  "The law itself, based on 1994 technology, could
not foresee where technology was going to be four years later."

Mr. Thompson argued that the authors of CALEA, working nearly ten
years ago, meant for the law to be adaptable.  "It's completely neutral
to the technology," he said.  "Remember that the scope of CALEA
coverage depends on the definition of CALEA and not on the
definitions of the Communications Act."

CALEA requirements represent some of the most perplexing questions
that must be addressed as the telecom industry rolls out voice-over-
Internet protocol services and will be the subject of an upcoming FCC
summit meeting.  The FBI, Department of Justice and the Drug
Enforcement Administration made a 72-page filing with the FCC this
month staking out its position on what the Commission must do to
help the government catch up with a broadband world.

Mr. Thompson said he was surprised at the warnings of threats to
privacy trumpeted in many national publications when the filing
surfaced.

"There's a lot of myths that we saw that are put out there that we'd
like to dispel," Mr. Thompson said.  For example , he said many
believe there are tens of thousands or even hundreds of thousands of
wire intercepts in the U.S. each year and that wiretaps will be a
burden
to carriers.

"I'd think you'd be shocked to find out it was less than 1,500 in the
entire United States," he said.  "It's a long, drawn-out process.
There's a lot of things to be accomplished before you can even get the
contents of a call. . . . There's a lot of work that goes on behind it.
Not
only that but it's restricted on the number of felonies you can use it
on.
There's very few felonies that you can use electronic surveillance on.
And you have to show that there's reason to believe that there's no
other means to get the information."

Mr. Thompson said another common myth was that carriers will face
significant costs to comply with new mandates for CALEA in a VoIP
world.

"Law enforcement has not seen any evidence of this," he said.  "On
the contrary, vendors have verbally advised that the industry will find
it much cheaper to bring its packet-mode networks into compliance
than it was to bring the circuit-mode network into compliance.  Again,
these costs can be avoided if we try to put these costs at the front
end
rather than the back end."

Mr. Thompson also warned against arguments that law enforcement
"doesn't really need CALEA" because it has already developed a
packet-loading technology as a substitute.

"I think unfortunately we do ourselves great harm when we look at
these television shows like the Matrix and X-Files and all these others
where with a simple flip of the switch you've got instant access and
you've got surveillance on the guy with a camera and as microphone,"
he said.  "Given the rapid evolution of technology, surveillance tasks
will only become more difficult over time and I think everyone can see
that right now.  There's so much technology out there right now that
we're barely holding on."

Mr. Thompson conceded that privacy concerns raised in many articles
about CALEA were a "big issue" and even the "main issue" in the
eyes of some.

"Actually a packet-mode provider that is covered by CALEA is
subject to more privacy requirements than a noncovered provider
because CALEA contains built-in privacy protections," he said.

John B. Morris, Jr., director-Internet standards at the Center for
Democracy & Technology, who shared a podium with Mr. Thompson
during his presentation, called on the federal law enforcement agencies
to amend their filing at the FCC if they were not now seeking pre-
clearance of technologies.

"What we have here is what the FBI calls myths, but they come
straight from the text of their filing," Mr. Morris said today in a
separate interview.  "If they really want to say they're not going for
pre-clearance they ought to make that clear on paper."

Mr. Morris argued that the FBI has a poor track record on CALEA
investigations.  "In the first round industry negotiated and negotiated
in good faith for months and months," he said.  "The FBI took it all
then at the end of the process the FBI went to the Commission and said
industry hasn't given us these last four items, these last none items.
The FBI didn't negotiate.  They wanted it all."

Mr. Morris added, "At this point, their filing makes it crystal clear
they
want it all." - Howard Buskirk, [email-masked]

http://www.tr.com/online/trd/2004/td033004/index.htm

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