Federal Internet Law & Policy
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VoIP: FCC: CALEA Proceedings Dont be a FOOL; The Law is Not DIY

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).

  • FCC Notice
  • Fed Reg Notice
  • FCC Adopts Order to Enable Law Enforcement to Access Certain Broadband and VoIP Providers. News Release: Word | Acrobat
  • 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
  • FCC Adopts Order to Enable Law Enforcement to Access Certain Broadband and VoIP Providers., ORDER, FCC 5/16/2006
  • FCC Adopts Order to Enable Law Enforcement to Access Certain Broadband and VoIP Providers, FCC 5/5/2006
  • Public Notice Oct. 14
  • Fed. Reg. Notice Oct. 13
  • Communications Assistance for Law Enforcement Act— Broadband access and services compliance,, Fed Reg 10/14/2005
  • 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

  • Communications Assistance for Law Enforcement Act and Broadband Access and Services, ET Docket No. 04-295, RM-10865, First Report and Order and Further Notice of Proposed Rulemaking, 20 FCC Rcd 14989 (2005), aff'd, Am. Council on Educ. v. FCC, 451 F.3d 226 (D.C. Cir. 2006).
  • Press Release August 5, 2005
  • NPRM
  • 8/9/04 FCC Adopts Notice of Proposed Rulemaking and Declaratory Ruling Regarding Communications Assistance for Law Enforcement Act.
    NPRM: Word | Acrobat
    News Release (8/4/04): Word | Acrobat
    Powell Statement: Word | Acrobat
    Abernathy Statement: Word | Acrobat
    Copps Statement: Word | Acrobat
    Adelstein Statement: Word | Acrobat
  • Deadline Extended
  • Feds invite comment on VoIP wiretaps, Register 9/29/2004
  • Footing the Big Brother webtap bill, Register 8/18/2004
  • FCC Notice of Proposed Rulemaking, FCC 8/9/2004
  • Feds back wiretap rules for Internet, CNET 8/9/2004
  • FCC Supports Surveillance Rules on Internet Calls, NYTimes 8/9/2004
  • CDT: VoIP and Law Enforcement Surveillance

    Public Notice March 12, 2004 

    FBI Petition

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