China's Golden Shield

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As early as 1988, in a program known internally to the US Federal Bureau of Investigation (FBI) as "Operation Root Canal," (9) US law enforcement officials demanded that telephone companies alter their equipment to facilitate the interception of messages. All but one of the major global telecom companies refused to contemplate altering their equipment. The exception was a Canadian company, Nortel Networks, which agreed to work closely with the FBI. (10) More than 75% of North American Internet backbone traffic travels across Nortel Networks systems, and the company derives a significant proportion of its sales revenue from the US telecom market.

After several years of lobbying by the FBI, the US Congress enacted the Communications Assistance for Law Enforcement Act (CALEA) in 1994. (11) CALEA requires that terrestrial carriers, cellular phone services and other telecom equipment manufacturers ensure that all their "equipment, facilities or services" are capable of "expeditiously... enabling the government... to intercept... all wire and oral communications carried by the carrier... concurrently with their transmission." (12) Communications must be in such a form that they can be transmitted to a remote government facility.

CALEA redefines the telecommunications industry’s obligation to assist law enforcement in executing lawfully authorized electronic surveillance. The law directs the telecommunications industry to actively develop solutions to address law enforcement’s surveillance requirements. To facilitate compliance, CALEA authorized US$500 million to be appropriated for the purpose of reimbursing the telecommunications industry for certain costs. (13) Manufacturers must work with industry and law enforcement officials to ensure that their equipment meets federal standards. A court can fine a company US$10,000 per day for each product that does not comply. (14)

The passage of CALEA was controversial, not least because the FBI continuously sought to include more and more rigorous regulations under the law. These included requirements that cellular phones allow for location-tracking on demand and that telephone companies provide capacity for up to 50,000 simultaneous wiretaps. (15)

While the FBI lobbied Congress and pressured US companies into accepting CALEA, it also pressured US allies to adopt it as an international standard. The FBI began working with the Justice and Interior Ministers of the European Union (EU) towards creating international technical standards for wiretapping. (16) In 1991, the FBI held a series of secret meetings with EU member states to persuade them to incorporate CALEA into European law. In 1993, the FBI began hosting meetings at its research facility in Quantico, Virginia called "International Law Enforcement Telecommunications Seminars" (ILETS). The meetings included representatives from Canada, Hong Kong, Australia and the EU. At these meetings, an international technical standard for surveillance, based on the FBI’s CALEA demands, was adopted as the "International Requirements for Interception." (17)

The plan, according to an EU report, (18) was to call for the industrialized world to agree to norms and procedures and then sell their products to developing countries. Even if they did not agree to interception orders, they would find their telecommunications monitored by the UK-USA signals intelligence network "the minute they used the equipment." (19) The FBI’s efforts resulted in an EU Council of Ministers resolution that was quietly adopted in January 1995. The resolution’s text was almost word for word identical to the FBI’s domestic requirements. (20) The resolution was not formally debated, and was not made public until late 1996.

The ILETS group continued to meet. A number of committees were formed and developed a more detailed standard, which extended the scope of the interception standards. The new standards were designed to apply to a wide range of communication technologies, including the Internet and satellite communications. It also set more detailed criteria for surveillance across all technologies. The result was a 42-page document called ENFOPOL 98 (the EU designation for documents created by the EU Police Cooperation Working Group). (21) In 1998, the document entered the public domain and generated considerable criticism. The committees responded by removing most of the controversial details and producing a new document, called ENFOPOL 19, expanding the type of surveillance to include "IP address, credit card number and e-mail address." (22) In April 1999, the Council proposed the new draft council resolution to adopt the ENFOPOL 19 standards into law in the EU.

In May 1999, the European Parliament approved the ENFOPOL 19 resolution. The vote was taken late on a Friday evening with only 20% of the delegates present, and was subsequently reversed by the Council of Ministers. The rejection has not stopped the European Telecommunications Standards Institute (ETSI) from continuing its work on developing international wiretapping standards.