At issue is a 1994 law, the Communications Assistance for Law Enforcement Act (CALEA), designed to make the nation’s phone system wiretap friendly. Its genesis lies in the early 1990s, when the nation’s phone companies began to replace old‐fashioned copper wire systems with digital and wireless systems. The FBI began to complain that wiretaps were impossible to perform on some of the new systems. So Congress passed CALEA to preserve the law enforcement status quo.
The FBI now demands powers far beyond those CALEA gave it. Far from maintaining the status quo, the FBI is using CALEA as a wedge to make Americans subject to a degree of electronic surveillance that would have astonished the KGB.
The technology the FBI demands would let them evade the requirement that police get a warrant to listen to the content of a call. Before CALEA, the police could use a device called a “pen register” to track the phone numbers of outgoing and incoming calls to a particular telephone. In 1979 five members of the U.S. Supreme Court ruled in Smith v. Maryland that the federal Constitution does not require the police to get a warrant for a pen register. (In dissent, Justice Potter Stewart noted that pen registers “reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person’s life.” Justice Thurgood Marshall agreed, saying, “Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts.”) Given the absence of court supervision, unsurprisingly, pen register use far exceeds wiretap use.