Order Code RL30677
Digital Surveillance:
The Communications Assistance
for Law Enforcement Act
Updated January 29, 2008
Patricia Moloney Figliola
Specialist in Telecommunications and Internet Policy
Resources, Science, and Industry Division
Digital Surveillance: The Communications Assistance
for Law Enforcement Act
Summary
The Communications Assistance for Law Enforcement Act (CALEA, P.L. 103-
414, 47 U.S.C. 1001-1010), enacted October 25, 1994, is intended to preserve the
ability of law enforcement officials to conduct electronic surveillance effectively and
efficiently despite the deployment of new digital technologies and wireless services
that have altered the character of electronic surveillance. CALEA requires
telecommunications carriers to modify their equipment, facilities, and services,
wherever reasonably achievable, to ensure that they are able to comply with
authorized electronic surveillance actions.
Since 2004, the Federal Communications Commission (FCC) has been
considering a number of questions as to how to apply CALEA to new technologies,
such as Voice over Internet Protocol (VoIP). In August 2005, in response to a March
2004 petition by a group of law enforcement agencies, the FCC released a Notice of
Proposed Rulemaking and Declaratory Ruling which required providers of certain
broadband and interconnected VoIP services to accommodate law enforcement
wiretaps. The FCC found that these services could be considered replacements for
conventional telecommunications services already subject to wiretap rules, including
circuit-switched voice service and dial-up Internet access. The Order is limited to
facilities-based broadband Internet access service providers and VoIP providers that
offer services that use the public switched telephone network (“interconnected VoIP
providers).
In May 2006, the FCC addressed several outstanding issues regarding CALEA
implementation. Among other clarifications, the FCC (1) affirmed its May 14, 2007
compliance deadline for facilities-based broadband Internet access and
interconnected VoIP services, and clarified that the date applied to all such providers;
(2) explained that the FCC does not plan to intervene in the standards-setting process
in this matter; (3) permitted telecommunications carriers the option of using Trusted
Third Parties to assist in meeting their CALEA obligations; (4) restricted the
availability of compliance extensions to equipment, facilities, and services deployed
prior to October 25, 1998; (5) found that the FCC may enforce action under section
229(a) of the Communications Act against carriers that fail to comply with CALEA;
and (6) concluded that carriers are responsible for CALEA development and
implementation costs for post-January 1, 1995, equipment and facilities, and declined
to adopt a national surcharge to recover CALEA costs.
In June 2006, the United States Court of Appeals for the District of Columbia
Circuit affirmed the FCC’s decision concluding that VoIP and facilities-based
broadband Internet access providers have CALEA obligations similar to those of
telephone companies.
Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Some Technical Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
CALEA’s Main Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Major Events Following Enactment of CALEA . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Initial Delays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The FBI’s “Punch List” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Capacity Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Previous FCC Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Government Activity: 2004 - Present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
FBI Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Comments to the FCC’s Wireless Broadband Task Force Report . . . . . 9
Notice of Information Collection Under Review . . . . . . . . . . . . . . . . . 9
Petition for Declaratory Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Inspector General Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
FCC Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Declaratory Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
First Report and Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Second Report and Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Court Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Congressional Activity: 110th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Digital Surveillance: The Communications
Assistance for Law Enforcement Act
Background
In the early 1990s the Federal Bureau of Investigation (FBI) asked Congress for
legislation to assist law enforcement agencies to continue conducting electronic
surveillance. The FBI argued that the deployment of digital technologies in public
telephone systems was making it increasingly difficult for law enforcement agencies
to conduct electronic surveillance of communications over public telephone
networks. As a result of these arguments and concerns from the telecommunications
industry,1 as well as issues raised by groups advocating protection of privacy rights,2
the Communications Assistance for Law Enforcement Act (CALEA) was enacted on
October 25, 1994 (47 U.S.C. 1001-1021), in the final days of the 103rd Congress.
CALEA is intended to preserve the ability of law enforcement officials to
conduct electronic surveillance effectively and efficiently, despite the deployment of
new digital technologies and wireless services by the telecommunications industry.
CALEA requires telecommunications carriers to modify their equipment, facilities,
and services to ensure that they are able to comply with authorized electronic
surveillance. These modifications were originally planned to be completed by
October 25, 1998. Since that time, the Federal Communications Commission (FCC)
issued two additional orders establishing June 30, 2002, as the date by which
telecommunications carries must have upgraded all their systems.3 Equipment
manufacturers have fulfilled their obligation to provide CALEA solutions and
carriers are implementing them. The FBI and FCC continue to monitor and review
the implementation of this program.
1 In this report, the telecommunications industry includes common carrier telephone
companies, mobile wireless telecommunications providers, telecommunications equipment
manufacturers, and other entities that provide telecommunications services to the public.
2 Privacy rights groups involved in the CALEA debate include the Electronic Privacy
Information Center, the Electronic Frontier Foundation, advocacy groups which both
support on-line privacy rights of individuals, the Center for Democracy and Technology,
which also advocates electronic privacy (and is funded primarily by the telecommunications,
computer, and media industries), and the American Civil Liberties Union (ACLU), which
represents a broad array of civil rights based on the First and Fourth Amendments.
3 United States Department of Justice, Federal Bureau of Investigation, Communications
Assistance for Law Enforcement Act, Eighth Annual Report to Congress, November 30,
2002 (Eighth Annual Report), pp. 7-9.
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Some Technical Terms
As a result of the revolution in digital technology in telecommunications, the
process of wiretapping and other electronic surveillance has become more complex,
and legal ambiguities have been introduced. As a background to understanding the
problems associated with CALEA implementation, the definitions of several terms
are necessary. Electronic surveillance refers to either the interception of
communications content (as in a conversation) also known as wiretapping, or the
acquisition of call-identifying information (the number dialed). The latter activity is
accomplished through the use of pen register devices, which capture call-identifying
information for numbers of outgoing calls from the location of lawful interception,
and traps and traces, which capture information for numbers received at the location
of lawful interception, much like consumer caller ID systems. Under current federal
law, law enforcement (i.e., police or the FBI) must obtain a court order before
conducting any of these activities. However, a wiretap requires a higher “evidentiary
burden” than a pen register or trap and trace, including showing that there is probable
cause for believing that a person is committing one of a list of specific crimes.4
Under traditional analog technology, it was easy to separate the above categories
of electronic surveillance. However, the advent of digital signal transmission
technologies has made that distinction less clear. Information signals (voice or data)
can be transmitted over telephone networks in one of two ways: circuit-switched and
packet-switched modes.5 In circuit-switched systems, a communications path is
established between the parties and dedicated exclusively to one conversation for the
duration of the call. In packet-switched systems, the information is broken down into
smaller pieces called “packets”using a digital process. Each packet contains a small
part of the message content along with call-identifying information called a “header”
that indicates the origination and destination points of the information. Each packet
is transmitted separately and is reassembled into the complete message at the
destination point.
The packet-switched mode is the signal transmission technology used in all
Internet communications. Packet switching is considered a more efficient use of a
network than circuit switching because the same line can be used for multiple
communications simultaneously. Although the circuit-switched mode was
historically used in all voice telephone calls, the packet-switched mode is
increasingly being used for voice and data transmissions over telephone networks.
4 See CRS Report 98-326, Privacy: An Overview of Federal Statutes Governing
Wiretapping and Electronic Eavesdropping, by Gina Stevens and Charles Doyle.
5 Switches are network devices that select a path or circuit for sending data to its next
destination over the telephone network. Switches may also include functions of the router,
a device also used in computer networks, that determines the route and adjacent network
point for data to be sent.
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CALEA’s Main Provisions
CALEA requires telecommunications carriers to assist law enforcement in
performing electronic surveillance on their digital networks pursuant to court order
or other lawful authorization. The telecommunications industry, privacy rights
groups, and law enforcement agencies agree that CALEA was not intended to expand
law enforcement’s authority to conduct electronic surveillance. On the contrary,
CALEA was intended only to ensure that after law enforcement obtains the
appropriate legal authority, carriers will have the necessary capabilities and sufficient
capacity to assist law enforcement in conducting digital electronic surveillance
regardless of the specific telecommunications systems or services deployed.
CALEA (47 U.S.C. 1002) directs the telecommunications industry to design,
develop, and deploy solutions that meet certain assistance capability requirements for
telecommunications carriers to support law enforcement in the conduct of
lawfully-authorized electronic surveillance. Pursuant to a court order or other lawful
authorization, carriers must be able, within certain limitations, to: (1) expeditiously
isolate all wire and electronic communications of a target transmitted by the carrier
within its service area; (2) expeditiously isolate call-identifying information that is
reasonably available on a target; (3) provide intercepted communications and
call-identifying information to law enforcement; and (4) carry out intercepts
unobtrusively, so targets are not made aware of the electronic surveillance, and in a
manner that does not compromise the privacy and security of other communications.
To allow carriers to give law enforcement the means to conduct its wiretaps,
CALEA (47 U.S.C. 1003) requires the Attorney General to determine the number of
simultaneous interceptions (law enforcement agencies’ estimate of their maximum
capacity requirements) that telecommunications carriers must be able to support.
To maintain privacy rights of individuals, CALEA (47 U.S.C. 1004) requires
telecommunications carriers to ensure that any interception of communications or
access to call-identifying information that is conducted within their premises can only
be done with a court order. It also requires the specific intervention of an officer or
employee of the carrier acting in accordance with regulations prescribed by the
Federal Communications Commission (FCC).
CALEA (47 U.S.C. 1005) directs telecommunications carriers to consult with
telecommunications equipment manufacturers to develop equipment necessary to
comply with the capability and capacity requirements identified by the FBI. For
efficient industry-wide implementation of the above requirements, CALEA (47
U.S.C. 1006) directs the law enforcement community to coordinate with the
telecommunications industry and state utility commissions to develop suitable
technical standards and establish compliance dates for equipment. In its Eighth
Annual Report, the FBI stated that, “to date, most manufacturers have either
complete, or nearly complete, CALEA solutions available for their carrier
customers.”6
6 Eighth Annual Report, p. 5.
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CALEA (47 U.S.C. 1008) gives the Attorney General, subject to the availability
of appropriations, authority to pay telecommunications carriers for all reasonable
costs directly associated with the modifications performed by carriers in connection
with equipment, facilities, and services installed or deployed on or before January 1,
1995 (known as the “grandfather” date).
Major Events Following Enactment of CALEA
Initial Delays
CALEA gave implementation responsibility to the Attorney General, who, in
turn, delegated the responsibility to the FBI. The FBI leads that nationwide effort on
behalf of federal, state, and local law enforcement agencies. FBI officials initially
anticipated that it would take a year for a standard to be developed and agreed upon
by law enforcement, the telecommunications carriers, and the equipment
manufacturers. Telecommunications consultants estimated that it would take the
industry another three years to design, build and deploy new systems to comply with
CALEA. Instead, industry and law enforcement became involved in a protracted
dispute over what should be required for law enforcement’s wiretapping capabilities.
By March 1997, the completion of the capability standard was overdue by 16
months. The FBI attempted to expedite the industry’s implementation of CALEA by
releasing regulations that included a cost recovery plan for the federal government’s
payment of costs associated with CALEA, as well as capability and capacity
requirements for the industry to meet. The plan required more extensive upgrades
to networks than the telecommunications industry believed were necessary for law
enforcement to preserve its wiretapping capabilities. Industry groups and privacy
advocates disputed the FBI’s plan. They argued that the FBI was attempting to
expand its surveillance capabilities beyond the congressional intention of CALEA,
and was attempting to unfairly shift costs and accountability away from the federal
government onto private industry. Furthermore, the industry argued that, without an
adopted capability standard, it could not begin designing, manufacturing, and
purchasing the equipment to achieve CALEA compliance.
In December 1997, the Telecommunications Industry Association (TIA,
representing telecommunications equipment manufacturers) adopted, over the
objections of the law enforcement community, a technical standard, J-STD-025, also
known as the “J-standard.” This standard prescribes upgrades to network devices to
meet CALEA’s assistance capability requirements for local exchange, cellular, and
broadband personal communications services (PCS). Although the FBI claimed that
the J-standard did not provide all of the capabilities needed, the industry asserted that
CALEA’s language stated that telecommunications carriers would be compliant if
they met publicly available standards adopted by the industry.
Privacy rights groups, on the other hand, protested two aspects of the J-standard
that they asserted would make information beyond what is legally required available
to law enforcement. One was a feature enabling the telecommunications network to
provide location information for users of mobile wireless telecommunications
CRS-5
services. The location information protocols in J-STD-025 allow law enforcement
agencies to obtain information on the physical location of the nearest cell site (i.e.,
the receiver/transmitter antenna and base station) of mobile phone handsets at the
beginning and end of each call. Wireless carriers are now deploying another
technology (called triangulation) that will enable the carriers, and law enforcement,
to track wireless telephone users more precisely, potentially within a few meters. The
other was a feature enabling the network to access packet-mode data from telephone
calls using more advanced systems. Privacy rights groups argued that these
capabilities would violate the Fourth Amendment rights of individuals against
unreasonable searches and seizures. Despite these objections, telecommunications
manufacturers began designing new switches and upgrades to existing switches
according to the J-standard.
Currently, equipment manufacturers have successfully incorporated the J-
standard into their new equipment and carriers are now well underway with their
efforts to upgrade their systems.
The FBI’s “Punch List”
In the negotiations to develop the J-standard, TIA had refused to include some
of the capabilities that law enforcement officials claimed they needed to facilitate
digital wiretapping. As a result, in March 1998, the FBI petitioned the FCC to
require the telecommunications industry to adopt eleven additional capabilities.
Industry and privacy rights groups protested that the FBI’s plan would unlawfully
expand enforcement capabilities. Eventually, the “punch-list”7 included the
following six8 items:
! Content of subject-initiated conference calls — Would enable law
enforcement to access the content of conference calls supported by
the subject’s service (including the call content of parties on hold).
! Party hold, join, drop — Messages would be sent to law enforcement
that identify the active parties of a call. Specifically, on a conference
call, these messages would indicate whether a party is on hold, has
joined or has been dropped from the conference call.
! Subject-initiated dialing and signaling information — Access to all
dialing and signaling information available from the subject would
inform law enforcement of a subject’s use of features (such as the
use of flash-hook and other feature keys).
! In-band and out-of-band signaling (notification message) — A
message would be sent to law enforcement whenever a subject’s
7 The “punch list” was named as such by the telecommunications industry, which believed
the FBI was improperly forcing industry to comply with the FBI’s requirements.
8 The additional capabilities originally requested by the FBI that were not included were:
standardized delivery interface; separated delivery, surveillance status; continuity check tone
(c-tone); and feature status.
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service sends a tone or other network message to the subject or
associate (e.g., notification that a line is ringing or busy).
! Timing information — Information necessary to correlate call-
identifying information with the call content of a communications
interception.
! Dialed digit extraction — Information would include those digits
dialed by a subject after the initial call setup is completed.9
Capacity Requirements
The FBI’s subsequent implementation actions were also opposed by the
telecommunications industry. In March 1998, the FBI announced its estimated
capacity requirements for local exchange, cellular, and broadband PCS.10 The
industry protested the FBI’s estimates, arguing that it would require telephone
carriers to accommodate thousands of wiretaps simultaneously, an impractical and
unnecessary burden. In July 1998, the FBI developed guidelines and procedures to
facilitate small carrier compliance with its capacity requirements, and asked carriers
to identify any systems or services that did not have the capacity to accommodate
those requirements. In December 1998, the FBI began a proceeding to develop
capacity requirements for services other than local exchange, cellular, and broadband
PCS, asked additional questions of interested parties in June 2000.11 These
technologies and services included paging, mobile satellite services, specialized
mobile radio, and enhanced specialized mobile radio. To date, the proceeding is still
pending.
Previous FCC Actions
As a result of petitions from the industry and the FBI, the FCC became involved
in the implementation of CALEA. In October 1997, the FCC released its first Notice
of Proposed Rule Making (NPRM) on CALEA implementation.12 The NPRM sought
comments from interested parties regarding a set of policies and procedures proposed
by the FCC for telecommunications carriers to follow. The proposed procedures
would (1) preclude the unlawful interception of communications, (2) ensure that
authorized interceptions are performed, (3) maintain secure and adequate records of
any interceptions, and (4) determine what entities should be subject to these
requirements, whether the requirements are reasonable, and whether to grant
extensions of time for compliance with the requirements.
9 Federal Register 63 page 63639, FCC, Further Notice of Proposed Rulemaking,
November 16, 1998.
10 Federal Register 63, page 12217, FBI, Final Notice of Capacity, March 12, 1998.
11 Federal Register 63, page 70160, FBI Notice of Inquiry, December 18, 1998, and Federal
Register 65, page 40694, FBI Further Notice of Inquiry, June 30, 2000.
12 FCC NPRM CC Docket No. 97-213, FCC Record 97-356, released October 10, 1997.
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In response to the NPRM, telecommunications carriers, privacy rights groups,
and the FBI submitted comments to the FCC to attempt to influence the final
decision. Then, in April 1998, the FCC released a Public Notice requesting
comments on issues raised in those petitions concerning the dates that carriers were
required to comply with CALEA and the dispute over the J-standard. Based on
comments it received, the FCC extended the implementation deadline until June 30,
2000, stating that without a standard, the necessary equipment would not be available
in time.13
In October 1998, the FCC initiated a proceeding to review the technical
capabilities prescribed by the J-standard.14 The goal of that proceeding was to
determine whether telecommunications carriers should be required under CALEA to
meet the FBI’s “punch list” items. The FCC addressed these issues in several
documents released over the following year. In March 1999, the FCC’s First Report
and Order established the minimum capability requirements for telecommunications
carriers to comply with CALEA.15 Telecommunications carriers were required to
ensure that only lawful wiretaps occur on their premises and that the occurrence of
wiretaps is not divulged to anyone other than authorized law enforcement personnel.
On August 2, 1999, the FCC decided to allow carriers to decide how long they would
maintain their records of law enforcement’s wiretap, pen register, and trap and trace
interceptions.16 On August 31, 1999, the Second Report and Order established a
definition for “telecommunications carrier” to include all common carriers, cable
operators, electric and other utilities that offer telecommunications services to the
public, commercial mobile radio services, and service resellers.17 The definition did
not include Internet service providers (ISPs), which were explicitly excluded under
the CALEA statute.
The FCC’s Third Report and Order, released August 31, 1999, adopted technical
requirements for wireline, cellular, and broadband PCS carriers to comply with
CALEA requirements.18 The ruling adopted the J-standard, including the two
capabilities that were opposed by the privacy rights groups (i.e., the ability to provide
location information and packet-mode data to law enforcement). As described above,
the FCC also adopted six of the punch list capabilities requested by the FBI to be
implemented by telecommunications carriers. The Order required all aspects of the
J-standard except for the packet-mode data collection capability to be implemented
by June 30, 2000. The Order required carriers to comply with the packet-mode data
13 FCC Memorandum Opinion and Order in the Matter of Petition for the Extension of the
Compliance Date under Section 107 of CALEA, released September 11, 1998.
14 FCC Proposes Rules to Meet Technical Requirements of CALEA. Report No. ET 98-8.
FCC News, October 22, 1998.
15 FCC 99-11, Report and Order CC Docket No. 97-213, released March 15, 1999.
16 FCC 99-184, Order on Reconsideration, CC Docket No. 97-213, released August 2, 1999.
17 FCC 99-229, Second Report and Order, CC Docket No. 97-213, released August 31,
1999.
18 FCC 99-230, Third Report and Order, CC Docket No. 97-213, released August 31, 1999.
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capability and the six punch list capabilities by September 30, 2001.19 (The FCC
ultimately extended the date by which all telecommunications carriers must have
upgraded their systems to June 30, 2002.20)
On April 9, 2001, the FCC adopted its Second Order on Reconsideration,21
which clarified the arrangements telecommunications carriers must make to ensure
that law enforcement agencies can contact them when necessary, and the interception
activity that triggers a record-keeping requirement.
In September 2001, FCC released a tandem Order22 and Public Notice23 on
CALEA implementation. In the Order, the Commission extended until November
19, 2001, the deadline by which wireline, cellular, and broadband personal
communications services (PCS) carriers must implement a packet-mode
communications electronic surveillance capability, or to seek individual relief under
section 107(c) of CALEA. The notice explained the petitioning process for
telecommunications carriers seeking relief under section 107(c) for an extension of
the new compliance deadline with respect to packet-mode communications, as well
as other safe harbor standards.
Finally, on April 11, 2002, the FCC released an Order on Remand,24 which
responded to a decision issued by the United States Court of Appeals for the District
of Columbia Circuit25 vacating four of the punch list electronic surveillance
capabilities mandated by the Third Report and Order in this proceeding. The FCC
found that all of the capabilities were necessary and authorized by CALEA and had
to be provided by wireline, cellular, and broadband PCS telecommunications carriers
by June 30, 2002. The FCC also required that two additional punch list capabilities
that were mandated by the Third Report and Order, but not reviewed by the Court of
Appeals be provided by that same date.
The FCC granted preliminary extensions to requesting carriers with respect to
punch list implementation that will expire on June 30, 2004. It granted preliminary
extensions in connection with “packet” services that had been scheduled to expire on
November 19, 2003, but that date was further extended to January 30, 2004. No
further action with respect to that extension has been taken.
19 FCC Sides with FBI on Tapping, Wired News, August 27, 1999,
[http://www.wired.com/news].
20 FCC Pubic Notice DA 02-270, released March 26, 2002.
21 Federal Register 66, page 22446, FCC, Second Order on Reconsideration, CC Docket
No. 97-213, May 4, 2001.
22 Federal Register 66, page 50841, FCC, Order, CC Docket No. 97-213, October 5, 2001.
23 FCC Pubic Notice DA 01-2243, released September 28, 2001.
24 Federal Register 67, page 21999, Order on Remand, CC Docket No. 97-213, May 2,
2002.
25 See United States Telecom. Association v. FCC, 227 F.3d 450 (D.C. Cir. 2000), available
at [http://www.fcc.gov/ogc/documents/opinions/2000/99-1442.html].
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Government Activity: 2004 - Present
The FBI and other law enforcement agencies, the FCC, and Congress are all
concerned with CALEA-related issues, particularly with respect to packet-based
services (i.e., voice over Internet Protocol [VoIP]) and “push-to-talk” services offered
by wireless providers.
FBI Activity
The FBI has remained active in promoting its positions related to its CALEA
powers.
Comments to the FCC’s Wireless Broadband Task Force Report.
On April 22, 2005, the Department of Justice (DOJ) filed comments on the FCC’s
Wireless Broadband Task Force Report,26 requesting that the FCC “continue to
preserve the vital national security and criminal law enforcement capabilities of
CALEA as it develops a deregulatory framework for wireless broadband Internet
access services.” Reply comments in the proceeding were due May 23, 2005.
Notice of Information Collection Under Review . On April 13, 2005, the
FBI published a 60-day Notice of Information Collection Under Review.27 The
notice announced a CALEA Readiness Survey program, which seeks to evaluate the
effectiveness of CIU programs for implementing CALEA solutions in the Public
Switched Telephone Network. Comments in this proceeding were accepted until
June 13, 2005.
Petition for Declaratory Ruling. On March 10, 2004, the FBI, the DOJ, and
the Drug Enforcement Administration petitioned the FCC to identify additional
telecommunications services not identified specifically within CALEA that should
be subject to it.28 The services named in the FBI petition include some now
considered beyond the scope of CALEA by many observers, including services that
fall under the FCC’s definition of “information services” under the Communications
Act of 1934. However, CALEA provides the FCC a broader framework to determine
that a service is a “telecommunications service.” Comments and replies to the
petition were due April 12 and April 27, 2004, respectively. The FCC ruled on this
Petition on August 5, 2005, discussed below (See “FCC Action,” page 10).
26 GN Docket No. 04-163. Additional information on this topic can be found online at the
FCC’s website at [http://www.fcc.gov/wbatf].
27 70 Fed. Reg. 19,503 (2005). This document is available online at
[http://www.askcalea.net/docs/20050413_70fr19503.pdf].
28 Joint Petition for Expedited Rulemaking of United States Department of Justice, Federal
Bureau of Investigation, and Drug Enforcement Administration, RM-10865, March 10,
2004.
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Inspector General Report. The FBI’s Inspector General issued a report in
April 2004 on CALEA implementation.29 In its report, the IG expressed concern
over the cost estimates for obtaining CALEA compliance, which have varied widely.
Industry has stated it believes estimates full compliance will cost approximately $1.3
billion; the FBI has estimated costs in the range of $500 million to $1 billion.
Further, in December 2003, the FBI estimated that an additional $204 million would
be necessary to complete deployment of CALEA. The IG stated in its report that it
did not believe implementation costs could be determined with any degree of
specificity, but that it was unlikely CALEA could be implemented with the $49.5
million that remains unobligated from current funding.
FCC Activity
In response to law enforcement’s petition and after considering the comments
and replies from interested parties, the FCC released an NPRM and Declaratory
Ruling on August 4, 2004.30 Additionally, the FCC has issued two Orders in this
matter.
Declaratory Ruling. In the Declaratory Ruling accompanying the NPRM, the
FCC clarified that commercial wireless “push-to-talk” services are subject to
CALEA, regardless of the technologies that wireless providers choose to apply in
offering them.
First Report and Order. On August 5, 2005, the FCC ruled that providers
of certain broadband and interconnected VoIP services must accommodate law
enforcement wiretaps.31 The FCC found that these services can be considered
replacements for conventional telecommunications services currently subject to
wiretap rules, including circuit-switched voice service and dial-up Internet access.
As such, the new services are covered by CALEA, which requires the FCC to
preserve the ability of law enforcement to conduct wiretaps as technology evolves.
The rules are limited to facilities-based broadband Internet access service providers
and VoIP providers that offer services permitting users to receive calls from, and
place calls to, the public switched telephone network — these providers are called
interconnected VoIP providers.
29 U.S. Department of Justice, Office of the Inspector General of the, entitled
“Implementation of the Communications Assistance for Law Enforcement Act by the
Federal Bureau of Investigation,” available at [http://www.usdoj.gov/oig/reports/FBI/
a0419/index.htm], April 7, 2004.
30 In the Matter of Communications Assistance for Law Enforcement Act and Broadband
Access and Services, Notice of Proposed Rulemaking and Declaratory Ruling, FCC 04-187,
ET Docket 04-295, RM-10865, adopted August 4, 2004, released August 9, 2004. Available
online at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-187A1.pdf]. See also
Federal Register 69, page 56976.
31 In the Matter of Communications Assistance for Law Enforcement Act and Broadband
Access and Services, First Report and Order and Further Notice of Proposed Rulemaking,
FCC 05-153, ET Docket 04-295, RM-10865, adopted August 5, 2005, released September
23, 2005. Available online at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/
FCC-05-153A1.pdf].
CRS-11
In making its ruling, the FCC found that the definition of “telecommunications
carrier” in CALEA is broader than the definition of that term in the Communications
Act and can, therefore, include providers of services that are not classified as
telecommunications services under the Communications Act. CALEA contains a
broader definition of telecommunications provider that authorizes the FCC to classify
an entity a telecommunications carrier if it finds that such service is a replacement
for a substantial portion of the local telephone exchange.
The FCC established a deadline of 18 months from the effective date of the
Order for providers to achieve full compliance and adopted a Further Notice of
Proposed Rulemaking to seek more information about whether specific classes of
facilities-based broadband Internet access providers should be exempt from CALEA
(i.e., small and rural providers and providers of broadband networks for educational
and research institutions).
A coalition of organizations filed a Petition for Review with the United States
Court of Appeals for the District of Columbia Circuit on October 25, 2005.32
Specifically, the “petitioners seek relief from the Order on the grounds that it exceeds
the Commission’s statutory authority and is arbitrary, capricious, unsupported by
substantial evidence, and contrary to law. Petitioners request that this Court vacate
the Order and the Final Rules adopted therein and grant such other relief as may be
appropriate.”33
Second Report and Order. On May 3, 2006,34 the FCC addressed several
issues regarding CALEA implementation, specifically, the Order:
! Affirms the May 14, 2007, CALEA compliance deadline for
facilities-based broadband Internet access and interconnected VoIP
services (as established by the First Report and Order) and clarifies
that the date will apply to all such providers.
! Explains that the FCC does not plan, at this time, to intervene in the
standards-setting process in this matter.
! Permits telecommunications carriers the option of using Trusted
Third Parties (TTPs) to assist in meeting their CALEA obligations.
32 The coalition is composed of CompTel, American Library Association, Association of
Research Libraries, Center for Democracy & Technology, Electronic Frontier Foundation,
Electronic Privacy Information Center, Pulver.com, and Sun Microsystems.
33 A copy of the Petition, No. 05-1408, is available online at [http://www.cdt.org/
digi_tele/20051025caleapetition.pdf].
34 In the Matter of Communications Assistance for Law Enforcement Act and Broadband
Access and Services, Second Report and Order and Memorandum Opinion and Order, FCC
06-56, ET Docket 04-295, adopted May 3, 2006. This Order has not yet been released, but
the news release is available online at [http://hraunfoss.fcc.gov/edocs_public/
attachmatch/DOC-265221A1.pdf].
CRS-12
! Restricts the availability of compliance extensions to equipment,
facilities, and services deployed prior to October 25, 1998.
! Finds that the commission may, in addition to law enforcement
remedies available through the courts, take separate enforcement
action under section 229(a) of the Communications Act against
carriers that fail to comply with CALEA.
! Concludes that carriers are responsible for CALEA development and
implementation costs for post-January 1, 1995, equipment and
facilities, and declines to adopt a national surcharge to recover
CALEA costs.
! Requires all carriers providing facilities-based broadband Internet
access and interconnected VoIP service to submit interim reports to
the FCC to ensure that they will be CALEA-compliant by May 14,
2007, and also requires all such providers to which CALEA
obligations were applied in the First Report and Order to come into
compliance with the system security requirements in the
commission’s rules within 90 days of the effective date of this
Second Report and Order.
Court Challenge. In June 2006, the United States Court of Appeals for the
District of Columbia Circuit affirmed the FCC’s decision concluding that VoIP and
facilities-based broadband Internet access providers have CALEA obligations similar
to those of telephone companies.35
Congressional Activity: 110th Congress
No bills have been introduced in the 110th Congress that would amend the
CALEA statute.
35 American Council on Education v. FCC, No. 05-1404 (Consolidated with 05-1408,
05-1438, 05-1451, 05-1453). Argued May 5, 2006; decided June 9, 2006. Available online
at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-266204A1.pdf].