The Communications Assistance for Law Enforcement Act of 1994: A Surprising Sequel to the Break Up of AT&T

By BeVier, Lillian R. | Stanford Law Review, May 1999 | Go to article overview

The Communications Assistance for Law Enforcement Act of 1994: A Surprising Sequel to the Break Up of AT&T


BeVier, Lillian R., Stanford Law Review


Professor Lillian R. BeVier examines the Communications Assistance for Law Enforcement Act (CALEA) that Congress passed in 1994 as a framework for inquiring into the array of privacy issues raised by technological advances. The law essentially required that telecommunications carriers provide equipment capable of isolating and intercepting the content of electronic communications and of delivering the information to law enforcement. Through the lens of public choice theory, Professor BeVier develops the implications of CALEA as a policy approach to resolving the contradictions posed by privacy protection and law enforcement. After setting forth the content and context of the legislation, the article applies the principles of public choice theory, which views legislation as the outcome of a process in which actual political choices are the product of interest groups pursuing their own interests, to CALEA. These interested parties included law enforcement, the telecommunications industry, and explicit privacy advocates. The legislation's goals are analyzed first from the point of view of a hypothetical Credulous Observer who imagines a world in which policy goals are embodied in clear statutory directives with which affected parties unequivocally comply. Next, they are judged by a Skeptical Analyst. This exercise reveals many flaws in CALEA's conception. They include excessive sacrifices to privacy principles, mistaken conceptions of law enforcement, imperfect considerations of the incompatible incentives of industry and government, and wasted resources of both industry and law enforcement. The article reviews CALEA's rocky implementation to date, focusing on conflicts surrounding the development of capacity requirements and capability standards which the Federal Communications Commission may finally be bringing to a resolution. Professor BeVier concludes, though, that this close could augur a new phase of controversy.

The break up of the AT&T monopoly master-minded by then Assistant Attorney General Bill Baxter in 1984 unleashed a burst of technological progress and entrepreneurial activity in telecommunications. These developments, in tandem with the pace of progress in the computer industry and the remarkably swift emergence of the Internet as a mainstream tool of commerce, information dissemination, and all manner of human conversation, have triggered a communications revolution whose scope and magnitude could not possibly have been foreseen--even by Baxter himself. In its Interim Report on Communications Privacy in the Digital Age, the Electronic Surveillance Task Force of the Digital Privacy and Security Working Group succinctly summarized the emerging environment. Readers will recognize that the summary describes a sea change from the reality that prevailed fifteen years ago:

   [D]igital communications technologies combine wireless and wireline systems
   seamlessly. They merge voice, data, and images. They are flexible and
   decentralized; networked and global; open and interactive. They place
   choices and control in the hands of users. They eliminate distinctions
   between what is kept in the home and what is stored with third parties.
   Their economics are characterized by competition and innovations. The
   explosion in the amount of information transmitted and stored
   electronically and the emergence of a form of online existence for both
   businesses and individuals have produced a qualitative change in the nature
   of communications and, accordingly, in the amount and nature of the
   information that is exposed to intrusion, interception and misuse.(1)

Prodded by competitive pressure, if not by convenience and curiosity, most educated Americans have accommodated themselves to the facts of these technological advances and to the transformations of business practice and personal interaction they have necessitated. Because the changes have come so fast and been so profound, however, no one can claim to grasp their full implications. …

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The Communications Assistance for Law Enforcement Act of 1994: A Surprising Sequel to the Break Up of AT&T
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