Fcc Urged To Close Loophole That Allows Criminals To Avoid Wiretaps

Attorney General Spitzer today urged the Federal Communications Commission (FCC) to take immediate steps to ensure that new communications products cannot be used by criminals to escape detection by law enforcement.

"The rapid development of communications technology is creating major problems for law enforcement," Spitzer said. "Agencies such as the state's Organized Crime Task Force are experiencing increasing difficulty in conducting basic surveillance authorized by the courts. As a result, a mobster or a terrorist might get away."

Spitzer's comments came in an official filing with the FCC on Monday. Spitzer joined the Department of Justice and FBI in arguing for stronger enforcement of the Communications Assistance to Law Enforcement Act (CALEA), which was enacted in 1994. The law was designed to ensure that new digital technology would be tappable under exactly the same conditions as old analog technology. However, the telecom industry has taken advantage of loopholes and regulatory gridlock for the past 10 years and failed to make certain new technologies tappable. As a result, sophisticated criminals are now able to obtain untappable communications equipment.

To prove this point, investigators from Spitzer's office recently conducted an experiment to see whether they could set up a communications system that was impossible for law enforcement to monitor. In a matter of days, and for a few hundred dollars, they were able to buy wireless telephones and set up a system that was both untappable and untraceable.

Spitzer criticized the FCC for failing to respond to the situation. He urged the FCC to compel communications companies to make existing technology accessible to law enforcement and to install surveillance capability prior to deployment of new technology.

Spitzer also called upon the telecom companies to cooperate with law enforcement. In comments filed yesterday, telecommunications companies argued that these new technologies were not intended to fall within the purview of CALEA and objected to the proposal that the FCC establish deadlines for compliance with CALEA.

"The companies are misinterpreting CALEA's intent and their position puts all of us in jeopardy," Spitzer said.

Spitzer oversees the state's Organized Crime Task Force (OCTF), which is regarded as one of the leading agencies of its kind in the nation. Using wiretaps and other surveillance techniques, OCTF has obtained major organized crime convictions in recent years and provided assistance on dozens of other cases, including some terrorism-related matters.

The review of the CALEA matter was handled by J. Christopher Prather, head of OCTF, Assistant Attorney General Carrie Cohen and Susanna Zwerling, Chief of the Attorney General's Telecommunications and Energy Bureau.

Attachments:

• Brief and Affidavit - PDF Format