Responses to Recommendations
The following paragraphs provide initial responses to each of the recommendations contained within the OIG Draft Report.
OIG Recommendation: Coordinate with the DOJ and the telecommunications industry to determine the legality and feasibility of FBI-sponsored development and testing of manufacturers’ CALEA solutions prior to their dissemination to carriers.
The FBI will coordinate with DOJ to determine the legality of FBI-sponsored testing of CALEA solutions. The FBI believes it is well suited to test technical solutions from a law enforcement perspective. In fact, the FBI regularly tests solutions with manufacturers (including third-party solution providers) to ensure developed solutions meet the needs of law enforcement and provide all applicable call-identifying information and call content. The FBI established a testing program in conjunction with the reimbursement of the industry for nationwide Right-to-Use (RTU) software licenses and continues to dedicate those resources to the testing of industry-developed solutions. With respect to testing associated with the reimbursement of technical solutions, the FBI’s testing program worked with carrier partners of sufficient size to be representative of networks adopting broad usage of those technical solutions.
As stated in the Draft Report, the FBI has concerns regarding carriers’ suggestion that it oversee testing (from perspectives other than law enforcement’s). Testing for all permutations of the effects of manufacturers' solutions within all providers’ networks would impose an enormous burden on any organization. Further, the FBI neither believes it is well suited to conduct this type of testing, nor that the industry would agree to have the results of such FBI testing validate the efficacy of any manufacturer’s solution and provide any level of indemnification regarding those solutions.
Finally, as also stated in the Draft Report, the FBI believes it is important to consider how testing is conducted for other services and features made available by equipment manufacturers. The FBI understands the industry makes use of a number of different testing models and will consult with DOJ regarding the appropriateness of using any of these industry models for future testing.
2. Expand State and Local Law Enforcement Participation
OIG Recommendation: Expand the audience of state and local law enforcement representatives participating in its Law Enforcement Technical Forums and the FBI Threat Assessment Surveys. This would allow for a more comprehensive understanding of the electronic surveillance threats to law enforcement.
The FBI generally agrees that more expansive participation by all levels of the law enforcement community would assist in the implementation of CALEA with respect to the development of a more comprehensive understanding of the electronic surveillance threats to law enforcement. The FBI remains dedicated to the continued involvement of law enforcement in the implementation of CALEA and has allocated significant resources since the enactment of CALEA to ensure the participation of the law enforcement community.
The FBI agrees with this recommendation and will, in the coming months, reach out to more law enforcement agencies using the same source material cited in the OIG Draft Report (i.e., National Law Enforcement Administrators Directory); its Internet website, www.AskCALEA.net; and other sources.
3. Methodology Assessing Impact of Non-Compliance with CALEA
OIG Recommendation: Improve the methodology used to gather accurate and current data regarding the adverse impact on criminal investigations arising from carriers’ inability to provide CALEA-compliant wiretaps or access to call-identifying information. This can be accomplished by soliciting detailed information on adverse responses to the Threat Assessment Survey, and through the CALEA helpdesk.
The FBI believes the FBI’s Threat Assessment Survey and CALEA Helpdesk are effective data collection tools that have been used in the past to gather data and will continue to be used for that purpose. The FBI regularly examines its survey forms and questions to ensure the most effective collection of data and is currently revising the Threat Assessment Survey to allow for the collection of specific data regarding the adverse impact from carriers’ non-compliance with CALEA. In response to this recommendation, the FBI will re-assess its current Threat Assessment Survey in recognition of the need to collect more detailed information for adverse responses. The FBI will also correlate Threat Assessment Survey and Helpdesk information to provide a more comprehensive view of the technological impacts affecting law enforcement.
However, as the Draft Report acknowledged, there are a number of factors that limit the FBI’s ability to collect valuable information from law enforcement regarding impacts on investigations. However, despite these limiting factors, the FBI will continue its efforts to improve the methods it uses to collect this valuable information.
4. Remaining TCCF Funding
OIG Recommendation: Reexamine the benefits of activating CALEA solutions on wireline systems prior to the expenditure of the remaining $45 million in CALEA funding.
The FBI agrees with this recommendation and will continue to periodically (e.g., bi-annually) assess its prioritization of funds associated the CALEA (i.e., the Telecommunications Carrier Compliance Fund [TCCF]) and strive to make the best use of available funds. The FBI has already utilized approximately 90 percent ($450 million of the available $499.5 million) of the funds appropriated to reimburse the telecommunications industry for technical solutions (i.e., RTU software licenses, dial-out delivery mechanisms, and deployment of solutions for two large carriers). The FBI’s considerations with respect to the funds already expended and plans for future expenditures include:
- The recognition that the effectiveness of RTU software licenses, dial-out solutions, and deployment agreements are cumulative. The FBI will assess the benefit of pursuing reimbursement agreements to deploy technical solutions with wireline carriers which would maximize the effectiveness of the funds already expended.
- The FBI will assess the benefit to Federal, State, and local law enforcement of lowering wireline delivery costs while simultaneously decreasing the amount of time needed to provision an intercept by deploying the dial-out solution. As stated in the Draft Report, delivery methods of the industry greatly influence the costs of electronic surveillance to law enforcement. Reimbursing the deployment of dial-out solutions will greatly reduce those costs.
- The total amount of TCCF funds expended on two large wireline carriers for deployment of technical solutions (i.e., software activation) was $4.5 million. If the FBI pursues these solutions it expects to negotiate similar agreements with the remaining two large carriers and estimates that entering into software activation agreements with these carriers would make about 90 percent of the wireline switches CALEA-compliant.
- CALEA itself limits reimbursement to equipment, facilities, and services deployed on or before January 1, 1995. For equipment, facilities, and services deployed after January 1, 1995, a carrier must petition the FCC for a determination of whether compliance with the assistance capability requirements is reasonably achievable. To date, no such determination has been made by the FCC.
In the event petitions are filed before the FCC and determinations are made so that reimbursement may be made to telecommunications carrier for any additional, reasonable costs of making compliance with CALEA’s assistance capability requirements, the FBI will assess the effectiveness of utilizing available funds for those purposes.
5. Training of State and Local Law Enforcement
OIG Recommendation: Provide training for state and local law enforcement agents and technical personnel on how to conduct CALEA intercepts. In conjunction with this recommendation, the FBI should pursue legal clarification of Attorney General Order 1945-95 from the DOJ.
The FBI agrees with this recommendation. The FBI’s Operational [Investigative] Technology Division (OTD) routinely provides training to federal, state, and local law enforcement agents and technical personnel – it has a Unit specifically dedicated to the training of the FBI’s technical agents as well as those of state and local law enforcement. Training includes CALEA intercepts and ad-hoc solutions developed by the FBI. The FBI conducted numerous training sessions in 2005, educating members of the federal, state, and local law enforcement community. Additionally, OTD makes available the results of its testing program to members of the law enforcement community and periodically makes available to the law enforcement community information on: new and converging technologies; the rapid introduction of new products and services; the expanding numbers of service providers; and global third party application providers - to facilitate better understanding of emerging technologies and their impact on law enforcement.
In prior years the FBI provided training to its Law Enforcement Technical Forum (LETF) membership through meetings. This training was funded with FBI resources dedicated to the implementation of CALEA. However, due to a lack of funding the FBI can no longer afford to provide as much training as in the past. The FBI believes training of federal, state, and local law enforcement can be more effectively addressed through a Congressionally mandated and funded Lawful Access Policy Office – an office with the specific responsibility to address electronic surveillance matters on behalf of the entire law enforcement community. In the absence of such a mandate and associated funding, the FBI will continue its policy of providing overarching support to the training and intercept needs of law enforcement to the extent its resources allow.
The FBI will, in conjunction with this recommendation, pursue legal clarification of Attorney General Order 1945-95 from the DOJ to permit the FBI to loan electronic surveillance equipment to state and local law enforcement agencies while ensuring appropriate safeguards exist to minimize the risk of disclosing sensitive intercept techniques.
6. Law Enforcement/Industry Liaison
OIG Recommendation: Improve liaison between law enforcement officials and carrier and manufacturer representatives by providing a forum to address electronic surveillance issues. This would enhance carrier customer service and law enforcement officials’ technical knowledge.
The FBI agrees with this recommendation in that the FBI can facilitate liaison between law enforcement officials and carrier and manufacturer representatives by providing a forum to address electronic surveillance issues. However, as stated in the Draft Report, over the last decade, various forums have been held regarding the CALEA required capabilities such as telecommunications industry-sponsored legal summits, the FBI-sponsored Service Specific Document Summits, and conferences and summits held by various organizations (industry and privacy groups). These meetings have historically allowed participants to express their views – often contentious and contradictory to each other. However, more recently there appears to be a willingness in some segments of industry to work more cooperatively with law enforcement. The FBI will re-examine its duties and capabilities within the scope of CALEA to assist in improving law enforcement’s liaison with the industry.