Statement of Congressman John D. Dingell, Ranking Member
Committee on Energy and Commerce

SUBCOMMITTEE ON TELECOMMUNICATIONS AND THE INTERNET
HEARING ON "LAW ENFORCEMENT ACCESS TO
COMMUNICATIONS SYSTEMS IN A DIGITAL AGE"

September 8, 2004

Mr. Chairman, thank you for holding this hearing today on the Communications Assistance for Law Enforcement Act, known as CALEA. CALEA is a critical tool for law enforcement agencies in maintaining the access communications of terrorists, drug traffickers, organized crime syndicates, and other criminals. CALEA is vital to our nation’s security.

Although CALEA was written ten years ago in a mostly analog world, Congress understood that new digital communications technologies were on the horizon. Accordingly, CALEA was written with sufficient flexibility to preserve the government’s ability to access many communications among users of advanced digital networks.

Both the world and technology have changed significantly since 1994. The spread of terrorism has in many respects made the world a much more dangerous place. Moreover, new technologies have spread -- new digital broadband networks have come on line and new digital applications, such as Voice over Internet Protocol telephone service, are riding over these networks.

While providing tremendous opportunities for consumers, these technologies may unintentionally provide terrorists, drug traffickers, and other criminals new ways to evade detection by law enforcement. Not only are criminals adept at exploiting new technologies for illegal purposes, but the uncertainty surrounding CALEA’s application to new technologies is only exacerbating the situation. In fact, it has gotten to the point where Deputy Assistant Attorney General John G. Malcolm was quoted earlier this year in a New York Times article as saying that he was "aware of instances in which law enforcement authorities have not been able to execute intercept orders because of this uncertainty." It is imperative that the Bush Administration and the Federal Communications Commission (FCC) fully implement CALEA.

Under CALEA, law enforcement agencies have the authority to gain access to communications information being transmitted by telecommunications carriers, the definition of which is much broader than the definition of such carriers in the Communications Act. Moreover, CALEA provides the Commission authority to bring within the scope of CALEA new services that act as a replacement for a substantial portion of local exchange service. The CALEA statute is clear.

Last month the FCC finally issued a notice of proposed rulemaking that made several tentative conclusions, including that both facilities-based providers of broadband service and "managed" VoIP services are subject to CALEA. I would note, however, that it has been ten years since CALEA became law and three years since terrorists attacked the World Trade Center and Pentagon. Lives are at stake. Why has it taken the Commission so long to act on such an important issue?

Similarly, since September 11th, neither the Commission nor the Bush Administration has developed a comprehensive nationwide plan to ensure the reliability, redundancy and interoperability for communications systems, especially those of public safety.

Despite the delay in issuing its proposed rule, I am pleased that the Commission has been mindful of Congress’ three underlying goals in CALEA: First, that government maintains the ability to intercept communications involving new technologies; second, that the privacy of individuals is protected; and third, that unnecessary burdens on the development of new technologies and services are avoided. In this dangerous new world, it is important that undue delays also be avoided in the implementation of CALEA so that the government maintains the ability to protect its people from those who seek to do them harm.

- 30 -

(Contact: Jodi Seth, 202-225-3641)