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VoIP: FCC: CALEA Proceedings

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USTA Petition for Reconsideration ET DOCKET NO. 04-295

On November 14, 2005, the United States Telecom Association filed a petition for reconsideration and clarification of the Communications Assistance for Law Enforcement Act (CALEA) obligations established in the Commission’s First Report and Order in ET Docket No. 04-295. Notice of this petition was published in the Federal Register on January 4, 2006, triggering the cycle for oppositions to the petition and replies. See 71 Fed. Reg. 345 (Jan. 4, 2006).

FNPRM CALEA as applied to Facilities Based Broadband Internet and VoIP Docket 04-295

"News Release: Word | Acrobat FOR IMMEDIATE RELEASE     News Media Contact: May 3, 2006


Washington, DC – The Federal Communications Commission today adopted a Second Report and Order and Memorandum Opinion and Order (Order) that addresses several issues regarding implementation of the Communications Assistance for Law Enforcement Act (CALEA), enacted in 1994.  The primary goal of the Order is to ensure that Law Enforcement Agencies (LEAs) have all of the resources that CALEA authorizes to combat crime and support [] security, particularly with regard to facilities-based broadband Internet access providers and interconnected voice over Internet protocol (VOIP) providers.  The Order balances the needs of Law Enforcement with the competing aims of encouraging the development of new communications services and technologies and protecting customer privacy.

The current CALEA proceeding was initiated in response to a Joint Petition filed by the Department of Justice, Federal Bureau of Investigation, and Drug Enforcement Administration in March 2004.  These parties asked the Commission to address several issues so that industry and Law Enforcement would have clear guidance as CALEA implementation moves forward.  The First Report and Order in this proceeding concluded that facilities-based broadband Internet access and interconnected VOIP providers were covered by CALEA. This Order addresses remaining issues raised in this proceeding and provides certainty that will help achieve CALEA compliance, particularly for packet-mode technologies.

First, the Order affirms that the CALEA compliance deadline for facilities-based broadband Internet access and interconnected VoIP services will be May 14, 2007, as established by the First Report and Order in this proceeding.  The Order concludes that this deadline gives providers of these services sufficient time to develop compliance solutions, and notes that standards developments for these services are already well underway. 

Second, the Order clarifies that this May 14, 2007 compliance date will apply to all facilities-based broadband Internet access and interconnected VoIP providers.  Applying the same compliance date to all providers will eliminate any possible confusion about the applicability of the deadline, avoid any skewing effect on competition, and prevent migration of criminal activity onto networks with delayed compliance dates.

Third, the Order explains that, absent the filing of a petition that assistance capability standards are deficient, it would be premature for the Commission to intervene in the ongoing process by which telecommunications standards-setting bodies, acting in concert with LEAs and other interested persons, are developing assistance capability standards.  

Fourth, the Order permits telecommunications carriers the option of using Trusted Third Parties (TTPs) to assist in meeting their CALEA obligations and providing LEAs the electronic surveillance information those agencies require in an acceptable format.  The record indicates that TTPs are available to provide a variety of services for CALEA compliance to carriers, including processing requests for intercepts, conducting electronic surveillance, and delivering relevant information to LEAs.  The Order makes clear that, if a carrier chooses to use a TTP, the carrier remains responsible for ensuring the timely delivery of call-identifying information and call content information to a LEA and for protecting subscriber privacy, as required by CALEA.

Fifth, the Order restricts the availability of compliance extensions under CALEA section 107(c) to equipment, facilities and services deployed prior to October 25, 1998 and clarifies the role and scope of CALEA section 109(b), under which carriers may be reimbursed for their CALEA compliance costs.  More specifically, the Order find that sections 107(c) and 109(b) of CALEA provide only limited relief from compliance requirements.

Sixth, the Order 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. Seventh, the Order 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.  The Order finds that it would not serve the public interest to implement a national surcharge because such a mechanism would increase the administrative burden placed upon the carriers and provide little incentive for them to minimize their costs.

Finally, the Order requires all carriers providing facilities-based broadband Internet access and interconnected VoIP service to submit interim reports to the Commission to ensure that they will be CALEA-compliant by May 14, 2007, and also requires all facilities-based broadband Internet access and interconnected VoIP providers to whom 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 Order. 
Action by the Commission May 3, 2006, by Second Report and Order and Memorandum Opinion and Order (FCC 06-56).  Chairman Martin, Commissioners Copps, Adelstein, and Tate.
  Office of Engineering and Technology contacts: 
ET Docket No. 04-295

CALEA VoIP NPRMET Docket No. 04-295

"Federal Bureau of Investigation, and the United States Drug Enforcement Administration (collectively, “the DOJ”) filed a joint petition for expedited rulemaking before the FCC. The DOJ explained that “[t]he ability of federal, state, and local law enforcement to carry out critical electronic surveillance is being compromised today by providers who have failed to implement CALEA-compliant intercept capabilities.” In response, the Commission issued a notice of proposed rulemaking and invited comments on whether certain communications providers—including broadband and VoIP providers—must comply with CALEA. See Communications Assistance for Law Enforcement Act and Broadband Access and Services, Notice of Proposed Rulemaking and Declaratory Ruling, 19 FCCR. 15676, 15677 (2004).

"After receiving thousands of pages of comments from more than 40 interested parties, the Commission ruled that broadband and VoIP providers are covered (at least in part) by CALEA’s definition of “telecommunications carriers.” See Communications Assistance for Law Enforcement and Broadband Access and Services, 20 FCCR. 14989, ¶ 8 (2005) (“Order”). To avoid an “irreconcilable tension” between CALEA’s SRP and the information-services exclusion, the Commission concluded that the Act creates three categories of communications services: pure telecommunications (which plainly fall within CALEA), pure information (which plainly fall outside CALEA), and hybrid telecommunications-information services (which are only partially governed by CALEA). Id. ¶ 18.

"The FCC then concluded that broadband and VoIP are hybrid services that contain both “telecommunications” and “information” components.3 Id. at ¶¶ 24-45. The Commission explained that CALEA applies to providers of those hybrid services only to the extent they qualify as “telecommunications carriers” under the three prongs of the SRP. First, providers of both technologies must perform switching and transport functions. See id. ¶ 26; id. ¶ 41. Second, providers of both technologies serve as replacements for a substantial functionality of local telephone exchange service: Broadband replaces the transmission function previously used to reach dialup Internet service providers (“ISPs”), and VoIP replaces traditional telephone service’s voice capabilities. See id. ¶¶ 27- 31; id. ¶ 42. Third, the public interest requires application of CALEA to the “telecommunications” component of both technologies: The even-handed application of CALEA across technologies will not impede competition or innovation (id. ¶¶ 33-34; id. ¶ 43), and “[t]he overwhelming importance of CALEA’s assistance capability requirements to law enforcement efforts to safeguard homeland security and combat crime weighs heavily in favor” of applying CALEA broadly. Id. ¶ 35; see also id. ¶ 44.

"Notwithstanding CALEA’s breadth, the Commission clarified that the Act does not apply to “private networks.” See id. ¶ 36 n.100 (citing 47 U.S.C. § 1002(b)(2)(B)). The FCC noted that some broadband companies “provide access to private education, library and research networks.” Id. The Commission explained that these companies may or may not qualify for CALEA’s private-networks exclusion:

To the extent [the petitioners] are engaged in the provision of facilities-based private broadband networks or intranets that enable members to communicate with one another and/or retrieve information from shared data libraries not available to the general public, these networks appear to be private networks for purposes of CALEA. . . . We therefore make clear that providers of these networks are not included as “telecommunications carriers” under the SRP with respect to these networks. To the extent, however, that these private networks are interconnected with a public network, either the [public voice network] or the Internet, providers of the facilities that support the connection of the private network to a public network are subject to CALEA under the SRP.

"Id. Thus, private networks—like broadband and VoIP—are excluded from CALEA insofar as they meet one of the statute’s exclusions. See 47 U.S.C. § 1002(b)(2)(A) (excluding “information services”), (B) (excluding “private networks”). However, to the extent a service provider qualifies as a “telecommunications carrier,” it is subject to CALEA’s substantive requirements. See id. § 1001(8)." - American Council on Education v FCC, D.C. Circuit Sec. I.B. (June 6 2006) PDF

CDT: VoIP and Law Enforcement Surveillance

Public Notice March 12, 2004 

FBI Petition

Litigation: American Council on Education v. FCC (D.C. Cir. 2006)


Other Proceedings

The Department of Justice has informed the Commission that it plans to file a petition for rulemaking asking the Commission to initiate a comprehensive rulemaking to address law enforcement's needs relative to CALEA. The Commission recognizes the importance of ensuring that law enforcement's requirements are fully addressed. The Commission takes seriously the issues raised by law enforcement agencies concerning lawfully authorized wiretaps. Accordingly, the Commission plans to initiate a rulemaking proceeding in the near future to address the matters we anticipate will be raised by law enforcement, including the scope of services that are covered, who bears responsibility for compliance, the wiretap capabilities required by law enforcement, and acceptable compliance standards. Our decision in this Order does not prejudice the outcome of our proceeding on CALEA. See Letter from John G. Malcolm, Deputy Assistant Attorney General, Department of Justice, to Marlene H. Dortch, Secretary, Federal Communications Commission, CC Docket Nos. 02-33, 95-20, & 98-10; CS Docket No. 02-52; WC Docket Nos. 03-45, 03-211, & 02-361 (filed Feb. 6, 2004); see also Letter from Patrick W. Kelley, Deputy General Counsel, FBI, to John Rogovin, General Counsel, Federal Communications Commission, CC Docket Nos. 97-213, 02-33, 95-20, & 98-10; CS Docket No. 02-52; WC Docket Nos. 02-361, 03-45, 03-211, 03-251 & 03-266 (filed Jan. 28, 2004); DOJ/FBI Comments at 2-3.
-- In re Petition for Declaratory Ruling that's Free World Dialup is Neither Telecommunications Nor a Telecommunications Service, WC Docket No. 03-45, Memorandum Opinion And Order  n. 24 (FCC February 19, 2004)

Impact of IP Telephony on Public Safety: In California, years of state funded improvements have been made to 911 service to enable telecommunications providers and first responders to ensure the safety of California customers. In addition, law enforcement utilizes its right under federal law to monitor telecommunications services to combat criminal activity. Exempting VoIP providers from regulation raises concerns about public safety and law enforcement activities in local communities. On the other hand, VoIP technologies offer the possibility to provide more detailed emergency information about some user locations, e.g. PBX users, than available with current technology.
-- Order instituting investigation on the Commission's own motion to determine the extent to which the public utility telephone service known as Voice over Internet Protocol should be exempted from regulatory requirements, CA PUC February 11, 2004

The Commission is obligated by Section 229(a) of the Communications Act to adopt all rules necessary to fulfill the goals of CALEA, including the goal of adapting lawful electronic surveillance to advanced technologies such as VoIP.11 The Commission must therefore require VoIP providers to comply with CALEA through formal rules regardless of whether some providers would comply voluntarily.12
. . . . .
CALEA implementation is hardly ripe for deregulation, given the current state of CALEA readiness in the VoIP industry. Industry suffers from widespread confusion over which VoIP entities and services are subject to CALEA, which Section 10313 capabilities are required, and just as importantly, by what deadlines. Industry and Law Enforcement have debated many of these issues in certain standard-setting proceedings, but the ultimate arbiters of such matters are the Commission and the courts.14
    Without firm Commission guidance, industry could unilaterally impose its own concept of appropriate assistance capabilities, leaving law enforcement shortchanged. Equally disturbing is the risk that industry cooperation may arrive too late for many
criminal investigations. CALEA solutions for VoIP are needed upon initiation of service, not at some unknown future date.
--- In re The Commission's December 1, 2003, Voice Over  IP Forum, WC Docket Nos. 03-211, 02-361, and 03-35, Joint Comments Of The United States Department Of Justice, The United States Drug Enforcement Administration, And The Federal Bureau Of Investigation (Dec. 15, 2003)

"12. . . . Section 102(8)(C) of the definition specifically excludes information services, and the legislative history makes clear that CALEA does not apply to private network services:

"Telecommunications Services that support the transport or switching of communications for private networks or for the sole purpose of interconnecting telecommunications carriers . . . need not meet any wiretap standards. PBXs are excluded. So are automated teller machine (ATM) networks and other closed networks. Also excluded from coverage are all information services, such as Internet service providers or services such as prodigy or America Online."

13. We also conclude that CALEA's definitions of "telecommunications carriers" and "information services" were not modified by the 1996 Act, and that the CALEA definitions therefore remain in force for purposes of CALEA.

. . .

27. Where facilities are used solely to provide an information service, whether offered by an exclusively-IS provider or a common carrier that has established a dedicated IS-system apart from the telecommunications system, we find that such facilities are not subject to CALEA. Where facilities are used to provide both telecommunications and information services, however, such joint-use facilities are subject to CALEA in order to ensure the ability to surveil the telecommunications services.

-- In the matter of Communications Assistance for Law Enforcement Act, CC Docket 97-213, Second Report and Order, (August 31, 1999)

See also In the matter of Communications Assistance for Law Enforcement Act, CC Docket 97-213, Third Report and Order, ¶¶ 47 - 54 (August 31, 1999) (discussing CALEA obligations for packet-mode communications)

In order to formulate an informed, consistent regulatory policy, the Commission would like to obtain information about VOIP activity in Michigan . The Commission, therefore, requests comments on VOIP activity in Michigan on the following topics that may be affected by both state and federal law:
h. Other technical issues, such as internet virus potential, power outage risks, consumer protections including privacy, quality of service, and accessibility by local, state and federal law enforcement.
-- -- U-14073 - Commission's Own Motion (investigation of VOIP) - (MI PUC 3/16/2004 ) HTML | PDF

C. State and Federal Law Enforcement Needs Must Be Safeguarded
The implications of Vonage’s and other VoIP offerings for federal agencies’ law enforcement and national security activities were well presented in the DOJ-FBI joint filing. Carrier compliance with statutory requirements for telecommunications providers to cooperate
with lawful governmental investigatory efforts to monitor calls and capture relevant call routing and other data is also critically important to investigations conducted by state and local prosecutors and police. For example, the NYSAG’s Organized Crime Task Force has devoted
substantial effort and capital to access facilities of numerous local exchange carriers and wireless carriers to effect its investigations of major crimes. State and local law enforcement activities would be compromised if the FCC does not require Vonage and other VoIP providers to comply with the Communications Assistance for Law Enforcement Act.
--In Re Vonage Holding Company Petition for a Declaratory Ruling Concerning the Order of the Minnesota PUC, WC Docket No. 03-211, Comments of the NY AG (Nov. 21, 2003)

 Voluntary CALEA

A Commission Decision to Implement CALEA Based on Voluntary Efforts Would Harm the Public Interest

As a matter of public policy, CALEA is vital to national security, law enforcement, and public safety. Such a critically important statute should not be left to mere voluntary efforts. Of course, some VoIP providers may have already installed CALEA solutions, in which case their cooperation is greatly appreciated, but others may not be such good corporate citizens. The success of CALEA depends on consistent implementation, and in any event, leaving CALEA to voluntary efforts would effectively punish the good corporate citizens by placing them at a competitive disadvantage to those who choose not to cooperate. Furthermore, under a voluntary CALEA compliance scheme, law enforcement would have no enforcement mechanism against those VoIP providers who do not cooperate.
. . . .

D. VoIP Providers Lack Commercial Incentives to Assist Law Enforcement In the past, telecommunications carriers have complied with certain federal mandates in a manner that creates commercial opportunities. 15 However, the VoIP industry has yet to announce any initiatives that might spark commercial incentives to assist law enforcement, let alone reduce the need for CALEA regulation. If anything, VoIP providers may unintentionally benefit from half-hearted CALEA implementation because terrorists, spies, and criminals typically flock to the modes of communication most likely to evade lawful electronic surveillance. Therefore, the Commission must adopt VoIP-specific CALEA rules that are rigorous enough to ensure that this does not occur.

E. CALEA Already Contains Provisions that Accommodate the Business
Needs of Emerging Services Such as VoIP Some VoIP providers claim traditional regulation may frustrate the growth of their nascent industry. In the case of CALEA, however, this concern has already been addressed. Specifically, under CALEA, law enforcement may not "prohibit the adoption of any equipment, facility, service, or feature by any provider of a wire or electronic communications service . . . . "16 Moreover, CALEA grants industry broad discretion to design surveillance solutions as it sees fit.17 Even after the solution design stage, if a carrier still finds CALEA compliance is not "reasonably achievable," it may seek special regulatory relief.18 For these reasons, the Commission need not make the CALEA mandate any more flexible than already provided under the statute.
--- In re The Commission's December 1, 2003, Voice Over  IP Forum, WC Docket Nos. 03-211, 02-361, and 03-35, Joint Comments Of The United States Department Of Justice, The United States Drug Enforcement Administration, And The Federal Bureau Of InvestigationPDF (Dec. 15, 2003)