DoJ Wants More Power Over In-Flight Calls

Consider this scenario: Somewhere in America a terrorist bomb rips through a building. It turns out the explosion was triggered or coordinated by a cell phone or wireless broadband signal from an airplane thousands of miles away.

That’s the latest worst-case scenario being painted by the Department of
Justice (DoJ) in its comments about the Federal Communications Commission’s
(FCC) proposal to allow in-flight use of cell phones and other wireless

“The proposal raises not only regulatory and technical/operational issues,
but also important public safety and national security issues,” the DoJ
stated in a filing last week to the FCC.

Led by the DoJ, law enforcement officials are urging the FCC to not only
impose traditional wiretap laws on airborne cell and Internet traffic but to
also expand those powers.

Under the current Communications Assistance for Law Enforcement Act (CALEA),
telecommunications carriers are required to develop and deploy CALEA
intercept solutions in their networks and are obligated to “promptly” respond to
a legal wiretap request.

CALEA does not, however, define “promptly.”

“There is a short window of opportunity in which action can be taken to
thwart a suicidal terrorist hijacking or remedy other crisis situations
onboard an aircraft, and law enforcement needs to maximize its ability to
respond to these potentially lethal situations,” the DoJ filing states.

The DoJ wants the FCC to require wireless carriers of airborne traffic to
have no more than 10 minutes from the moment of notification to the
telecommunications carrier of a lawful intercept order to the moment of
real-time transmission to law enforcement officials.

“There is no room for such uncertainty in the air-to-ground context where
delays of minutes and seconds could make the difference between life and
death for passengers and crew aloft and those on the ground below,” the DoJ

The DoJ is also seeking authority to require wireless carriers to create and
maintain the capability to record at land-based storage facilities
non-content call records relating to all calls or messages processed to and
from onboard wireless telephones or other devices.

In addition, the DoJ is requesting the FCC mandate carriers to expeditiously
identify to law enforcement officials the verified seat location of any user
of a personal electronic device that has a communication in progress.
Equally important, the DoJ says, is the ability to terminate any
communication in progress.

“The identification of both the destination of all communications originated
from wireless telephones…and the origin of communications directed or
terminated to a wireless telephone located on that aircraft becomes
critically important for law enforcement and can influence time-sensitive
decisions about how to respond to the threat,” the DoJ states.

In December, the FCC proposed
rules for auctioning 4MHz of spectrum in the 800MHz band for airline
broadband service while opening another proceeding to seek public comment on
airborne cell phone use.

The proposal created a national media flurry about airplane passengers using
cell phones, a fact not overlooked by the DoJ.

“The first and overriding priority of federal law enforcement onboard
aircraft is to ensure the safety of the aircraft and the flight,” the DoJ
states. “Affirmative measures should be adopted to diminish the probability
that law enforcement’s on-board mission will either be complicated or
compromised unnecessarily by disputes concerning in-flight cell phone use.”

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