October 22, 1998

Re:	Further Notice of Proposed Rulemaking, Communications Assistance for Law Enforcement Act

By this Further Notice of Proposed Rulemaking, the Commission initiates a proceeding to resolve a dispute among industry, law enforcement, and privacy interests over what technical requirements are necessary for various carriers to meet the assistance capability requirements of the Communications Assistance for Law Enforcement Act, Pub. L. No. 103-414, 108 Stat. 4279 (1994) (codified as amended in Sections of 18 U.S.C. and 47 U.S.C.) ("CALEA"). I support the Further NPRM as a good first step to resolving this dispute. Herein, however, I express two concerns about our proposed approach and make a strong request for quantified cost, benefit, and timing information.

My first concern is general. While trying to ensure (at considerable expense to taxpayers, consumers, and industry) that law enforcement agencies are able to obtain access to communications among people using common wireline, cellular, and PCS telecommunications services, we may be disregarding inexpensive and fairly obvious ways for malefactors to thwart our efforts by using other communications technologies or techniques. Although I believe that, because CALEA requires us to do so, we must ensure appropriate access to the common telecommunications services, I also believe that the practical limits on law enforcement's reach should temper our willingness to burden consumers and industry with significant discretionary expenses.

My more specific concern goes to our tentative conclusion that location information about mobile wireless units is call-identifying information under CALEA. Section 102(2) of CALEA defines call-identifying information as "dialing or signaling information that identifies the origin, direction, destination, or termination" of each communication. 47 U.S.C. 1001(2). Because the words "origin," "destination," and "termination" usually denote, at least partly, location, I believe that call-identifying information, by the plain meaning of Section 102, includes location information about mobile wireless units.

Some parties, however, say there is good reason to believe Congress intended a more limited meaning. See Center for Democracy and Technology, Petition for Rulemaking Under Sections 107 and 109 of the Communications Assistance for Law Enforcement Act (March 26, 1998). Accordingly, although I support the Commission's tentative conclusion based on what I believe to be the plain meaning of the law, I would welcome additional comment on whether, and on what basis, the language of Section 102(2) should be read narrowly.

Finally, let me make a strong request for parties to submit quantified cost and timing information.

In several places, CALEA makes explicit or implicit reference to cost issues. In Section 107(b), for example, the Commission is directed to establish technical requirements or standards that meet assistance capability requirements by "cost-effective methods," and to "minimize the cost" of compliance on residential ratepayers. Id. at 107(b)(1) and (3). CALEA also directs us to determine whether compliance with the capability requirements is "reasonably achievable," id. at 109(b)(1), and, with respect to call-identifying information, to determine what is "reasonably available," id. at 103(a)(2).

In order to properly meet our responsibilities under these provisions of CALEA, I believe the Commission must understand the balance of costs and benefits -- including implementation timing issues -- of the choices before us. I have been disappointed by the level of specificity in the record to date. It does us little good to be told that the implementation of some technical feature would or would not be "difficult" or "expensive" or "take a long time." Reliance on such qualitative assessments make it nearly impossible for us to make reasoned decisions under CALEA. Thus, I request that all parties, when addressing issues of cost or what is "reasonably achievable" or "reasonably available," provide estimates, with as much specificity and quantitative information as possible, the costs, benefits, and the time necessary for industry to implement the technical requirements or standards in dispute.

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