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FCC Adopts New Rules to Improve Government Wiretapping Abilities

By Shu Shin Luh

The Federal Communications Commission Friday approved a series of telephone industry standards aimed at bringing law-enforcement wiretaps into the digital age, to the displeasure of groups that see a threat to privacy rights.

The FCC order will require telecommunications companies to provide six of nine new surveillance capabilities that have been on the “wish list” of the Justice Department and the Federal Bureau of Investigation.

The new surveillance standards will affect a range of companies, including long-distance providers, local service carriers and wireless phone companies, because of the alterations the carriers need to make to meet the requirements.

With the new rules in place, for example, phone companies will have to equip their cellular towers to allow court-authorized traces of cellular phone calls. They also will have to equip their services so that wiretaps can be made of conference calls.

Companies also must put equipment in place to enable law enforcement officials to learn the phone number that a person calls after dialing a 1-800 number to connect to a long-distance carrier.

The FCC rejected the idea of requiring telephone firms to inform law enforcement agents whether a wire tap is working or when a customer whose phone is being tapped changes features such as call-waiting or voice mail.

The FCC will require telecom providers to meet the rules by next June 30. However, the FCC asked for more time to study wiretaps of so-called packet-mode communications, used on the Internet and increasingly for voice communications. The FCC said if the standards were applied to those areas, investigators could gain access to the content of a call at times when they were legally allowed only to trace the call’s source. The agency asked the industry to come up with a solution by September of next year.

The FCC order implements the 1994 Communications Assistance for Law Enforcement Act, which was a response to complaints by law enforcement agencies that they were losing their ability to conduct wiretaps and other forms of electronic surveillance because of rapid new digital technologies.

The Center for Democracy and Technology, a civil liberties advocacy group, said it is outraged by the FCC’s decision.

“The FCC basically sided with the FBI, putting aside any privacy concerns,” said James X. Dempsey, senior staff counsel at the center. He said the center is considering appealing to the courts.

The FBI and the Justice Department applauded the FCC’s action, while industry reaction was mixed, with some companies complaining about the cost.