From: Declan McCullagh <declan@well.com>
Date: Sat, 13 Dec 1997 07:45:05 +0800
To: cypherpunks@toad.com
Subject: ACLU and EPIC comments on Digital Telephony/wiretapping
Message-ID: <v03007808b0b77ac77a74@[168.161.105.216]>
MIME-Version: 1.0
Content-Type: text/plain



Excerpt:

>	Before rushing to embrace any proposals to enlarge
>	the capability of government surveillance of its
>	citizens, the ACLU and EPIC urge the Commission to
>	take note of words written nearly 70 years ago --
>	that remain true even today. As Justice Louis
>	Brandeis so aptly stated in Olmstead v. United
>	States, 277 U.S. 438 (1928):
>
>       The evil incident to invasion of the privacy of the
>	telephone is far greater than that involved in
>	tampering with the mails.  Whenever a telephone line
>	is tapped, the privacy of the persons at both ends
>	of the line is invaded, and all conversations
>	between them upon any subject, and although proper,
>	confidential, and privileged, may be overheard.
>	Moreover, the tapping of man's telephone line
>	involves the tapping of the telephone of every other
>	person whom he may call, or who may call him.  As
>	a means of espionage, writs of assistance and
>	general warrants are but puny instruments of tyranny
>	and oppression when compared with wiretapping.

-Declan

-----------

Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of			)
					)		CC Docket No. 97-213
Communications Assistance for	)
Law Enforcement Act		)


Reply Comments of the
American Civil Liberties Union, Electronic Privacy Information Center and
Electronic Frontier Foundation

Introduction

	The American Civil Liberties Union ("ACLU") is a non-partisan
organization of more than 250,000 members dedicated to preserving the
freedoms embodied in the Bill of Rights.  The Electronic Privacy
Information Center ("EPIC") is a non-profit public interest research center
that examines the civil liberties and privacy implications of new
technologies.  The Electronic Frontier Foundation ("EFF") is also a public
interest organization devoted to protecting civil liberties in digital
media.

	The ACLU, EPIC and EFF respectfully submit comments in this Notice
of Proposed Rulemaking ("NPRM") on implementation of the Communications
Assistance for Law Enforcement Act ("CALEA")   to urge the Commission to
exercise its conferred authority by extending the deadline for compliance
with the Act to no earlier than October 24, 2000.

	Law enforcement has derailed the implementation process from the
statute's inception, and neither the public, nor the telecommunications
industry are in a position to comprehend the scope of the capacity and
surveillance requirements sought by the Federal Bureau of Investigation
("FBI").  We believe that the impasse in the enactment process alone makes
the implementation of CALEA impossible under the current statutory deadline
of October, 1998.

	Moreover, we believe that because the most pertinent issues, the
actual technical standards that may be adopted by industry, are not
addressed in this NPRM, the Commission must extend the deadline for
compliance to allow for the public scrutiny contemplated by CALEA.

In short, we base our conclusions on the foregoing:

I.	To date, the FBI has not met its public capacity notice
requirements under the Act which require law enforcement to quantify the
actual and maximum capacity technical needs, including projections with the
number of anticipated interceptions.  Industry, the public and the Congress
need an accurate assessment of the capacity requirements to provide
meaningful oversight and to ensure that they do not exceed the statutory
scope.  No implementation of CALEA should proceed without compliance with
this statutory requirement.

II.	Law enforcement was not permitted to dictate system design under
CALEA, but has placed a choke hold on the process by repeatedly preventing
the adoption of industry standards and creating a "wish list" of
technically infeasible and costly requirements.  In addition, it has become
abundantly clear that the FBI is seeking unprecedented surveillance
capabilities never envisioned by the Congress.  Simply put they have
consistently requested that industry provide numerous capabilities for
surveillance that go far beyond the current court-authorized electronic
surveillance under the provisions of Title III of the Omnibus Crime Control
and Safe Streets Act of 1968, the Electronic Communications Privacy Act of
1986 and CALEA. Thus, the Commission must engage in detailed review of this
process by extending the compliance date.

III.	Congressional limitations on information subject to interception
have been disregarded. CALEA required the strengthening of privacy
protections so that carriers do not intercept or disclose any information
they are not authorized to. The additional surveillance features sought by
the FBI contravene the Congress' intention to maintain current levels of
surveillance and not expand them.  We also address some incorrect
assumptions in the NPRM that would expand CALEA's application. We conclude
that these issues preclude "reasonably achievable" implementation of the
Act.


Background on Surveillance and CALEA

	Today, the revolutionary development of electronic infrastructures,
that make it possible to easily communicate in a variety of ways, also make
possible new forms of government intrusion and surveillance.  Additionally,
the actual use of government surveillance has grown faster in recent years
than ever before and
in past 10 years, the number of interceptions per year has more than doubled.

	According to statistics released by the Administrative Office of
the U.S. Courts and the Department of Justice:

	...the use of electronic surveillance for criminal and national
security 	investigations increased substantially in 1996;

	...court orders for electronic surveillance by state and federal
agencies for 	criminal purposes also increased, from 1058 in 1995 to 1150
in 1996 (a 	nine percent increase);

	...for the first time in eight years, a court denied a surveillance
application;

	...extensions of surveillance orders increased from 834 to 887.  In
all, 	interceptions were in effect  for a total of 43,635 days in 1996.

	The report also shows that the vast majority of interceptions
continued to occur in drug-related cases: 71.4 percent (821 total) for drug
investigations; 9.9 percent  (114) for gambling; 9.1 percent (105) for
racketeering; 3.5 percent  (41) for homicide and assault and a few each for
bribery, kidnapping, larceny and theft, and loan sharking.  No orders were
issued for "arson, explosives, and weapons" investigations.

	Moreover, the according to the report, electronic surveillance
continued to be relatively inefficient. Overall, 2.2 million conversations
were captured in 1996.  A total of 1.7 million intercepted conversations
were deemed not "incriminating" by prosecutors.  Each interception resulted
in the capture of an average of 1,969 conversations. Prosecutors reported
that on average, 422 (21.4 percent) of the conversations were
"incriminating."  Federal intercepts were particularly efficient, with only
15.6 percent of the intercepted conversations reported as "incriminating."

	Notwithstanding the increase in government surveillance, in 1994,
responding to FBI pressure and allegations that new technology hampers the
ability to conduct electronic interceptions,  the Congress enacted CALEA.
The law was enacted during the final days of the 103d Congress amidst
fervent opposition from the ACLU, EPIC, EFF and other concerned
organizations that believed that the FBI had not substantiated the need for
extraordinary government surveillance capabilities.  We adhere to those
views even today. Furthermore, the dramatic rise in the number of
interceptions conducted rebuts the government claim that new technologies
frustrate wiretapping abilities.

	CALEA requires telephone carriers to ensure continued government
interception capabilities despite changes in technologies by October, 1998.
The legislative history of CALEA makes clear that the Act was intended "to
balance three key policies: (1) to preserve a narrowly focused capability
for law enforcement agencies to carry out properly authorized intercepts;
(2) to protect privacy in the face of increasingly powerful and personally
revealing technologies; and (3) to avoid impeding the development of new
communications services and technologies."  To maintain that balance,
Congress established detailed guidelines on how industry standard setting
organizations would accomplish the costly mandate of CALEA and imposed
several obligations on law enforcement to facilitate the process as well.

	Section 107 of CALEA, in pertinent part, provides that an industry
association or a standards-setting organization will set the technical
standards; the Attorney General must consult with the standards-setting
organizations, with representatives of users of telecommunications
equipment, facilities, and services, and with State utility commissions,
"to ensure the efficient and industry-wide implementation of the assistance
capability requirements."

	Section 107 further provides that if technical requirements are not
issued by industry standards-setting organization or if any person believes
any standards issued are deficient, the Federal Communications Commission
may establish such requirements or standards.   The Commission has
promulgated the current NPRM in response to an impasse in the
implementation process and the failure of law enforcement to effectively
cooperate and fulfill its statutory obligation in providing detailed notice
of its technical capacity requirements so that industry can promulgate
technical standards.

	Section 50 of the NPRM states that this proceeding is being
undertaken irrespective of the actual industry standard requirements to
determine whether it is "reasonably achievable" to enact CALEA within its
compliance period.  The NPRM section 50 specifically states:

Because it is not clear whether requests for extension of time of the
Section 103 compliance date will be forthcoming, we do not propose to
promulgate specific rules regarding requests at this time. We propose to
permit carriers to petition the Commission for an extension of time under
Section 107, on the basis of the criteria specified in Section 109 to
determine whether it is reasonably achievable for the petitioning carrier
"with respect to any equipment, facility, or service installed or deployed
after January 1, 1995" to comply with the assistance capability
requirements of Section 103 within the compliance time period.  We seek
comment on that proposal.  We also seek comment on what factors, other than
those specified in Section 109 of CALEA, the Commission should consider in
determining whether CALEA's assistance capability requirements are
reasonably achievable within the compliance period.

	The NPRM, section 45, sets out several statutory factors that the
Commission may consider in determining whether CALEA's capability
requirements are reasonably achievable within the compliance period.  The
legislative history of CALEA makes clear that the factors provided by
Congress were "designed to give the Commission direction so that the
following goals are realized: (1) Costs to consumers are kept low, so that
'gold-plating' by the industry is kept in check; (2) the legitimate needs
of law enforcement are met, but that law enforcement does not engage in
gold-plating of its demands; (3) privacy interests of all Americans are
protected; (4) the goal of encouraged competition in all forms of
telecommunications is not undermined, and the fact of wiretap compliance is
not used as either a sword or a shield in realization of that goal."

	Our comments address these and other factors in concluding that the
FCC should extend the compliance deadlines as permitted by Congress.

I. CALEA's Capacity Notice Requirements:

	Section 104 of CALEA directed the Attorney General to issue a
notice of capacity requirement to industry not later than one year after
the law's enactment.  Hence the deadline for the notice was October 25,
1995. Carriers were provided with a deadline of three years after
notification by the Attorney General to install capacity that meets the
notification requirements.  Under the timetable that Congress proposed,
industry's deadline would have been October 1998.

	Specifically, section 104(a)(2) requires the Attorney General to
identify capacity required at specific locations, and to base the notice on
the type of equipment or service involved, or by the type of carrier.  In
addition, it requires the Attorney General to provide a numerical estimate
of law enforcement's anticipated use of electronic surveillance for 1998.
The statute also defines the maximum capacity as the largest number of
intercepts that a particular switch or system must be capable of
implementing simultaneously. The initial capacity relates to the number of
intercepts the government will need to make on the date that is four years
after enactment.

	By mandating the publication of numerical estimates of law
enforcement surveillance activity, Congress intended CALEA's notice
requirements to serve as "mechanisms that will allow for Congressional and
public oversight. The bill requires the government to estimate its capacity
needs and publish them in the Federal Register."  Congress made it clear
that "[t]he purpose behind the provision is... to ensure that carriers
receive adequate and specific notice from the Attorney General about the
needs of law enforcement...".

a. The First FBI Notice

	In October, 1995, the FBI, operating under delegated authority by
the Attorney General, issued a first proposed capacity notice. The Notice
was criticized for; (1) failing to comply with the notification and public
accountability provisions mandated in CALEA; and (2) failing to
substantiate the proposed capacity requirements with adequate
documentation.   Ultimately, it was withdrawn by the Bureau for these
reasons.

	The FBI's Federal Register notice failed to identify the "actual
number of communications interceptions" that the Bureau estimates will be
needed by the end of 1998. Instead, the capacity requirements were
"presented as a percentage of the engineered capacity of the equipment,
facilities, and services that provide a customer or subscriber with the
ability to originate, terminate, or direct communications." 60 Fed. Reg.
53643.

	Furthermore, in EPIC's comments on the initial FBI notice, they
stated: "[t]he Bureau's "percentage" approach to capacity requirements
allows neither telecommunications carriers nor the public to 'know the
required level of capacity.'"   The percentages contained in the Federal
Register notice (e.g., maximum capacity of one percent of "engineered
capacity" for geographic areas falling within Category I) also engendered a
great deal of public confusion concerning the Bureau's proposed
requirements and their impact on the privacy of personal communications.

	The confusion became readily apparent after an article appearing on
the front page of November 2, 1995, New York Times interpreted the Bureau's
notice as requiring "the capacity to monitor simultaneously as many as one
out of every 100 phone lines." Asked about the issue at a press briefing
later that day, Deputy Attorney General Jamie S. Gorelick said "there
appears to be some misunderstanding or miscommunication as to the
implications of what is contained in [the Federal Register] notice." In a
letter to House Judiciary Committee Chairman Henry Hyde, Director Freeh
asserted that, "We have not and are not asking for the ability to monitor
one out of every 100 telephone lines or any other ridiculous number like
that. ... Information supplied by the FBI was simply applied in a manner
not intended to reach erroneous conclusions."

b. The Second FBI Notice

	The FBI offered a revised NPRM in January, 1997, but has yet to
publish rules as a result of the proceeding.    The second NPRM was also
rejected by industry and privacy groups alike for requiring greater
capacity for interceptions by carriers than actually required today.

          The second FBI notice called for substantial increases in
surveillance of both landline and wireless communications over the next ten
years, with a total maximum capacity of 57,749 simultaneous intercepts to
be conducted in the United States.  Calculating out the percentages
provided by the FBI, by 1998 the FBI anticipates an increase of 33 percent
of landline interceptions and 70 percent of wireless phones. By 2004, the
Bureau estimates a total increase of 74 percent in interceptions of
landline phones and 277 percent in wireless phones.

	The second notice also implied that every carrier serving a
particular region would have to install capacity sufficient to meet the
total surveillance needs for that area, even if the carrier only served a
portion of the customers in the area. Such a plan would not only be cost
prohibitive, but would provide for unauthorized and unnecessary
capabilities.

          Moreover, the second notice failed to make any distinction
between the interception of call content and call-identifying information,
even though this too was expressly required by Congress. From both
constitutional law and privacy perspectives, this distinction is critical
since the interception of call content is inherently more intrusive than
the interception of call-identifying information.  Any number of innocent
individuals, conveying private information could be subject to unwarranted
invasions by allowing call content information without court authorization.
It is for this reason that CALEA limits the type of information that may be
intercepted under pen register and trap and trace authority.




c. Law Enforcement is Actually Seeking Enhanced Surveillance Capabilities

	It is now three years since the CALEA's enactment and to date the
government has not promulgated final rules. The Bureau's refusal to provide
the actual capacity requirements in its Federal Register notice denies any
possibility of meaningful public oversight.  Recently, the FBI has stated
that it intends to promulgate a final notice January, 1998.  Even if final
regulations are promulgated at this late date, it will be impossible for
industry to adopt technical standards accordingly under the current
deadline of October 25, 1998.  If the Congressional mandate for "public
oversight" of the FBI's implementation of CALEA is to be realized, it is
incumbent upon the Bureau to make available additional information
concerning its proposed capacity requirements and then for the Commission
to require sufficient time for public review.

	Underscoring this point, on October 23, 1997, several
representatives from the telecommunications industry testified before the
Subcommittee on Crime of the Committee on the Judiciary of the House of
Representatives on the implementation of CALEA.   The consensus of each of
the industry speakers was that the Bureau's failure to provide rules in a
timely fashion has prevented CALEA's implementation.

	Roy Neel, President and CEO of the United States Telephone
Association stated, "[t]he FBI's delay in announcing its final capacity
notice has been a significant obstacle for industry standard setting
organizations. Throughout 1995 and early 1996, industry participants often
postponed resolving certain issues pending the release of the capacity
regulations and the equally anticipated Electronic Surveillance Interface."


	Furthermore, it has become clear that the actual requirements that
the FBI seeks go well beyond that authorized under CALEA.   As we discuss
below, we believe that the standards and the petitions submitted by
industry and CDT/EFF make clear that the FBI has asked for capabilities not
provided for by CALEA.

	The expanded capabilities sought by the FBI, along with their
non-compliance with CALEA's capacity notice requirements warrant a
Commission order delaying implementation.  Additionally, since this NPRM
does not address the actual technical standards being considered for
industry adoption, the Commission must extend the deadline for compliance
pending public review.

	It is entirely possible that industry and the FBI may achieve a
compromise on the standards, but even if industry is strong-armed by the
FBI into complying with their requests, we intend to petition the FCC to
engage in through review of the issues not included in this proceeding.

II. Law Enforcement Has Prevented Industry Adoption of Authorized Standards
By "Gold Plating" its Stated Needs

 	Congress expressly denied law enforcement agencies the authority to
dictate the design of telecommunications networks under CALEA by conferring
this authority to industry associations.   Industry has proposed several
standards proposals which may be adopted in the near future.  However,
industry organizations have publicly acknowledged that law enforcement
agencies have played an extensive role in the process and have thwarted the
opportunity to adopt reasonable standards.

	Realizing that industry could not promulgate standards in light of
the FBI resistance, on July 16, Cellular Telecommunications Industry
Association petitioned the FCC to assume the authority over standards
adoption.  The petition indicates, the organizations were compelled to
adopt FBI requests.  More recently, in hearings on the implementation of
CALEA before the House Judiciary Subcommittee on Crime, October 23,
industry groups explained how the FBI has prevented adoption of reasonable
standards.  Many members of the Committee were critical of both the Act and
the FBI.  Rep. Bob Barr (R-GA), who chaired part of the hearing, bluntly
stated that the legislation would not have passed in the
Republican 104th or 105th Congresses.

	A major area of contention was the FBI's demand for added features
not required by the 1994 law.  These include an enhanced ability to track
geographical locations of cell phones, the ability to monitor conference
calls when the targeted party has left, and the ability to separate out
content from signaling data of packet-based communications.

	The FBI's efforts to lobby against the industry designed standards
during a vote on the specifications also came under fire.  The Bureau
organized a campaign to vote down the industry-developed standards, which
was described in the hearing as "ballot stuffing."  Twenty-eight police
agencies filed the same 74-page ballot comments, including a sheriff in
Florida who included the FBI's letter requesting that he file the comments.
CTIA's Wheeler described the FBI's actions as "rolling a hand grenade under
the table."

	Another controversial issue was the FBI's effort, during its
negotiations with the Telecommunications Industry Association (TIA) over
the wiretap standard, to petition the American National Standards Institute
(ANSI) to revoke the standards-settings authority of TIA after 50 years.
The FBI apparently withdrew the request after several months.

	Jay Kitchen, President of the Personal Communications Industry
Association explained that the impasse in the CALEA process was due in
large part to FBI interference.  He stated:

"Unfortunately, a breakdown of monumental proportions has occurred. As of
today, final standards have not been set, in large measure due to the
actions of law enforcement officials. Initially, the FBI waited almost one
and one-half years after the enactment of CALEA to submit its
recommendations to standards setting bodies. After the submission of this
list, industry representatives and the FBI were able to reach consensus on
standards that provided, by PCIA's estimates, 90 percent of the
capabilities that the FBI had requested. Since then, however, the FBI has
held up the entire standards setting process in order to ensure that every
capability on its "wish list" is made part of the standards."

	Similarly, Matthew J. Flanagan, President of the Telecommunications
Industry Association, stated that industry concessions to FBI demands have
been rejected by law enforcement and they have been pressured to concede
even more:

"During these meetings, industry made several concessions to law
enforcement, agreeing to include features in the standard that many in
industry were convinced were not required under CALEA. For example, law
enforcement requested that it be provided with continuous information about
the location of an intercept subject's cellular phone, irrespective of
whether the phone was being used or not. Industry refused to provide this
feature, finding that it greatly exceeded what CALEA permitted. In a
compromise, however, industry agreed to provide law enforcement with the
location of a cell phone at the beginning and end of each call -- even
though many industry participants felt that even this compromise exceeded
the scope of CALEA."

	As a result of all of the concessions, the proposed industry
standard goes well beyond a fair reading of CALEA and incorporates several
of the additional features and capabilities requested by law enforcement
prior to CALEA's passage but which were rejected by the Congress.

III Congressional Limitations on Information Subject to Interception Have
Been Disregarded

	Congress stated that CALEA was meant to preserve and not expand
government surveillance capabilities.  To guarantee that surveillance is
not expanded, CALEA requires telecommunications carriers to protect user
privacy and security of information they are not authorized to intercept.

	Section 103 of CALEA, Assistance Capability Requirements,
specifically imposes four industry requirements to protect privacy while
assisting with law enforcement interceptions. Carriers are required to
ensure that their systems are capable of:

 (1) expeditiously isolating and enabling the government, pursuant to a
court order or other lawful authorization, to intercept, to the exclusion
of any other communications, all wire and electronic communications carried
by the carrier within a service area...;
(2) expeditiously isolating and enabling the government, pursuant to a
court order or other lawful authorization, to access call-identifying
information that is reasonably available to the carrier--
(A) before, during, or immediately after the transmission of a wire or
electronic communication...; and
 (B) in a manner that allows it to be associated with the communication to
which it pertains, except that, with regard to information acquired solely
pursuant to the authority for pen registers and trap and trace devices (as
defined in section 3127 of title 18, United States Code), such
call-identifying information shall not include any information that may
disclose the physical location of the subscriber (except to the extent that
the location may be determined from the telephone number);
 (3) delivering intercepted communications and call-identifying information
to the government, pursuant to a court order or other lawful authorization,
in a format such that they may be transmitted by means of equipment,
facilities, or services procured by the government to a location other than
the premises of the carrier; and
 (4) facilitating authorized communications interceptions and access to
call-identifying information unobtrusively and with a minimum of
interference with any subscriber's telecommunications service and in a
manner that protects--
 (A) the privacy and security of communications and call-identifying
information not authorized to be intercepted; and
 (B) information regarding the government's interception of communications
and access to call-identifying information.   (emphasis added)

	This section makes clear that Congress specifically limited the
type of information that could be permissibly provided by industry to the
FBI under CALEA by distinguishing between call content and call identifying
information. Thus, we disagree with assumptions made in the NPRM that
broaden the scope of communications information that may be intercepted.
Section 20 states:

"We tentatively conclude that providers of exclusively information
services, such as electronic mail providers and on-line services providers,
are excluded from CALEA's requirements and are therefore not required to
modify or design their systems to comply with CALEA....[W]e seek comment on
the applicability of CALEA's requirements to information services provided
by common carriers.  We also note, however, that Congress anticipated that
calling features such as call forwarding, call waiting, three-way calling,
speed dialing, and the "call redirection portion of voice mail" would be
subject to CALEA's requirements.  We tentatively conclude that calling
features associated with telephone service are classified as
telecommunications services for the purposes of CALEA, and carriers
offering these services are therefore required to make all necessary
network modifications to comply with CALEA." (emphasis added)

	Congress explicitly rejected any application of CALEA to
information services including electronic mail and on-line services
recognizing that interception of those communications is the equivalent of
"call content" and is therefore, subject to a much higher degree of
protection under the Constitution.  The NPRM, however, incorrectly assumes
there is a distinction between carriers that exclusively provide
information services and common carriers that provide information services.
There is absolutely no basis for such a distinction under CALEA.  Congress
did not exclude such services based on the carrier offering the services,
but on the nature of the services and a recognition that content of
communications has always been accorded greater protections.

	Furthermore, the tentative conclusion that calling features
associated with telephone services are subject to CALEA as "call
identifying" information is incorrect.  CALEA restricts recording or
decoding of electronic impulses to dialing and signaling information that
relates to call processing only.  Congress explicitly rejected the
inclusion of "other dialing tones that may be generated by the sender that
are used to signal customer premises equipment of the recipient are not to
be treated as call-identifying information."   Thus, the addition of these
features is an expansion of current surveillance abilities and not
permitted.

	Not addressed in the NPRM are nearly a half-dozen other features
that Bureau contends are "call identifying" features and thus subject to
CALEA. As the Response Comments on the Petition for Rulemaking of the
Center for Democracy and Technology and the Electronic Frontier Foundation,
August 11, 1997, correctly point out, the FBI has sought the addition of
the following features not considered by Congress:

	(1) packet switching information
	(2) wireless telephone call location information
	(3) packet data content delivery information
	(4) multi-party monitoring information
	(5) an expanded definition of call identifying information
	(6) pen register information
	(7) feature status messages

	Instead of addressing these threats to privacy, Section B of the
NPRM frames the discussion of privacy protection in solely in terms of the
type of record keeping procedures to be used by telecommunications carriers
that conduct interceptions on behalf of law enforcement.  However, Congress
made clear that protecting the privacy of innocent individuals from
surreptitious surveillance was of paramount importance and charged the
Commission with the task of seeing to the necessary safeguards.  The
additional surveillance features sought by the FBI contravene Congress'
intention that the law would maintain current levels of surveillance and
not expand them.   These issues must be addressed by the Commission before
the implementation of CALEA can be accomplished and before record keeping
and industry security procedures are determined.



Conclusion

	Before rushing to embrace any proposals to enlarge the capability
of government surveillance of its citizens, the ACLU and EPIC urge the
Commission to take note of words written nearly 70 years ago -- that remain
true even today. As Justice Louis Brandeis so aptly stated in Olmstead v.
United States, 277 U.S. 438 (1928):

The evil incident to invasion of the privacy of the telephone is far
greater than that involved in tampering with the mails.  Whenever a
telephone line is tapped, the privacy of the persons at both ends of the
line is invaded, and all conversations between them upon any subject, and
although proper, confidential, and privileged, may be overheard.  Moreover,
the tapping of man's telephone line involves the tapping of the telephone
of every other person whom he may call, or who may call him.  As a means of
espionage, writs of assistance and general warrants are but puny
instruments of tyranny and oppression when compared with wiretapping.

	The expanded capabilities sought by the FBI, along with their
non-compliance with CALEA's capacity notice requirements warrant serious
Commission response.  Congress envisioned the implementation process as an
open process to ensure that law enforcement did not surreptitiously gain
unprecedented surveillance capabilities.  Thus, before the adoption of
industry standards, there must be careful scrutinization of law
enforcement's capability requirements.  We believe the only way to
accomplish this task is for the Commission to extend the compliance
deadline to October 24, 2000 under the authority provided by the Congress.

Respectfully Submitted,

Barry Steinhardt, Associate Director
A. Cassidy Sehgal, William J. Brennan Fellow
American Civil Liberties Union
125 Broad Street, 18th Floor
New York, N.Y. 10004
(212) 549-2500

Electronic Privacy Information Center
666 Pennsylvania Ave., SE, Suite 301
Washington, D.C. 20003
(202) 544-9240

Electronic Frontier Foundation
1550 Bryant Street, Suite 725
San Francisco CA 94103-4832 USA
(415) 436-9333