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Attorney General Eliot Spitzer is urging the federal government to strictly enforce the Communications Assistance to Law Enforcement Act, claiming that lax enforcement is undermining efforts to combat crime and terrorism in New York state. Spitzer on Monday filed a detailed report with the Federal Communications Commission, which is considering whether the Communications Assistance to Law Enforcement Act (CALEA) applies to recent telecommunications technologies. He wants the FCC, which is charged with enforcing the act, to require private telecommunication companies to provide enhanced wire-tapping capability. The act was passed in 1994 to ensure that wire-tapping technologies keep pace with other advances in the telecom industry. But law enforcement experts complain that their eavesdropping capacity falls short. Spitzer, who joins both the FBI and the U.S. Department of Justice in calling for stronger enforcement of the act, said the FCC has failed to respond to technological advances, especially those involving packet-mode and Internet protocol services. He said his office conducted an experiment to see if it could design a communication system that was impossible to monitor. Spitzer said it took only a few days and a few hundred dollars to set up a system that could not be tapped or traced. The filing submitted to the FCC this week expresses the frustration of the state’s Organized Crime Task Force, which investigates mob and terrorist activity, and its inability to remain on equal technological footing with the targets of its probes. It resulted from a study by the head of the task force, J. Christopher Prather, Assistant Attorney General Carrie Cohen and Susanna Zwerling, chief of the attorney general’s Telecommunications and Energy Bureau. Prather, in an affidavit submitted with the attorney general’s filing, said the most dangerous category of criminals, terrorists, are most likely to possess the technological savvy to avoid electronic surveillance. He said the state has spent more than $4 million in the past three years to upgrade its eavesdropping capacity but continues to fall behind. “Each of the major wireless carriers currently offers wireless communication services that cannot be tapped, and which can be purchased for only a few hundred dollars,” Prather said in the affidavit. “This is not lost on the criminals.” Spitzer is attempting to persuade the FCC to issue an opinion that newer technologies such as Voice-over-Internet-Protocol constitute telecommunications services within the Communications Assistance to Law Enforcement Act. If so, law enforcement is entitled to access those for wire-tapping purposes. Telecommunications companies argue that the eavesdropping capacity demanded by law enforcement is beyond the scope of the act. Civil rights activists also express concern over the erosion of personal privacy. In an interview, Spitzer said Tuesday the federal government’s failure to take action has “created a gaping hole in law enforcement’s access” to intelligence and evidence, opening a “tap-free zone for the bad guys.” Spitzer called the civil liberties concerns a “red herring” since the access he seeks would in no way lessen probable cause requirements or dilute traditional evidentiary showings. “We know that bad guys, whether drug dealers or others, are buying and disposing of cell phones with a frequency that is designed to avoid our capacity to intercept,” Spitzer said. “The FCC is doing what it has been doing for years on this — sitting on it. It is mystifying to me that they are succumbing to the requests and importuning of the telecom companies on an issue of this importance.” There was no immediate reaction Tuesday from the FCC. INDUSTRY REACTION Several telecommunications companies on Monday filed statements with the FCC insisting that the technological capacity Spitzer seeks is beyond what they are required to provide under the act. In a report by the U.S. Telecom Association, the industry argued that forcing telecommunications companies to provide the oversight capacity urged by law enforcement would unfairly burden companies and hinder their ability to develop new, cutting-edge technologies. It also said that if the government wants more services, it should pay for them, and not burden industry with the entire cost. “Obviously, carriers that provide services that come under the CALEA umbrella and have an industry standard allowing lawful electronic surveillance should comply with CALEA,” the Telecom Association said in its filing. “However, what law enforcement seeks for new technologies or technologies that do not have an industry standard to provide the CALEA capability is financially, administratively and technologically burdensome.”

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