From Communications Week October 28, 1996 Issue: 635 Section: Telepath -- Top Sories TIA TO ISSUE DRAFT WIRETAP SPECS By Peter Cassidy The Telecommunications Industries Association next month will issue draft standards allowing manufacturers to make equipment that complies with the most recent federal wiretapping law. If and when those draft standards are ultimately approved, however, equipment makers will still face a troubling dilemma: The U.S. Justice Department, which in large part wrote the new law, is also the agency that will enforce it. President Clinton signed the Communications Assistance for Law Enforcement Act in October 1994 after a last-ditch, sub-rosa lobbying effort by the National Security Agency and the Federal Bureau of Investigation pushed the bill through a Senate committee. In essence, the law says that the U.S. Attorney General will dictate how the law will carry out its job of tapping into switches. As of October 1998, manufacturers will have to build their switches to meet the industry specs, and carriers will have to maintain the switches accordingly. Switches in place before Jan. 1, 1995, are nominally exempted from compliance. Modifications intended to fulfill the capabilities the Justice Department mandates will be required only if companies are reimbursed for the changes-the exception being equipment that has been "substantially" modified. Despite these protections, concern persists: Because many of the technical features in place before the January 1995 cutoff will have been updated in some way, conflicts with the Justice Department may ensue over whether to consider them "pre-existing" technologies under the law. And companies on the losing end will suffer major penalties: The law specifies that the FBI can define which companies are not in compliance and bring civil actions against them, with fines of up to $10,000 per violation. Accordingly, the ambiguity in the legislative language could end up as costly both for modifications that are not reimbursed and for court challenges. "What is not really addressed is what 'a significant upgrade' really means," said Dan Bart, standards and technology vice president at the TIA. "Ultimately, some test case will come and some judge will make the final decision." Given the relationship between the industry and Justice over wiretapping capability thus far, a court challenge hardly seems far-fetched. In fact the act was proposed only after the FBI and telecom industry groups wrangled for years in consultative committees. The FBI had argued that advanced telephony technologies were making it difficult to wiretap and capture call data. Finally, the agency turned to a legislative solution. The TIA's draft standards, due to be issued next month by the group's TR 45.2 committee, will contain the technical specifications required to build-in the features for the Electronic Surveillance Interface that the act defines. Following a comment period of up to 90 days, the standards will be placed on a ballot for a vote by committee members, said committee chairwoman Cheryl Blum. If substantial changes are made to the draft during the comment period, the standards may have to go back to the committee, she noted. Cellular data removed At a standards meeting last month, the committee removed language that would have defined a standard for forwarding the location data of cellular phones when the instrument is powered up-but not actively transmitting and receiving-information the FBI indicated it should have if available. Ms. Blum said the committee decided such a capability exceeds the requirements of the the act. This point is important because, under the law, companies are reimbursed only for those modifications of existing technologies expressly spelled out in the act. Clearly, the FBI holds the whip, even in this standards-making process. Should the standards be found deficient under the law, the FCC can step in and replace those standards with its own. Justice is the most visible proponent, but the act is also of great interest to the NSA, which introduces a potentially troubling level of complexity as the industry attempts to comply with the law. Commerce Department memos obtained by Telepath show that the NSA was involved in sculpting the language of the act as far back as 1992. A Senate committee staff attorney, now in private industry, told Telepath that the NSA's interest was that the act introduce the opportunity to build wiretap access points into switches outside the United States. Equipment built to specifications in this country-and by offshore manufacturers for the U.S. market-would thus find its way into foreign telephone networks, allowing the NSA a simpler means to tap into targeted subjects. What liabilities this introduces to equipment makers remains unclear, as these are the early days of the act-the first law to give the government the power to demand design changes in telephony technologies. Peter Cassidy is a freelance writer. Send your reactions to this article to telepath@cmp.com.