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The FBI filed a letter with the FCC on January 28, 2004, giving notice that law enforcement would file a petition seeking comprehensive rules to CALEA. The letter confirmed that the petition would address a variety of issues including what broadband services and service providers should be subject to CALEA, as well as the procedures needed to bring those services and providers into compliance with CALEA.

On March 10, 2004, the DOJ, FBI, and DEA filed a Joint Petition for Expedited Rulemaking before the FCC. As stated in the joint petition, CALEA's purpose is to preserve law enforcement's ability to conduct lawful electronic surveillance despite changing telecommunications technologies. CALEA applies to all telecommunications carriers, and its application is technology neutral. Despite a clear statutory mandate, full CALEA implementation has not been achieved. Although the Commission has taken steps to implement CALEA, there remain several outstanding issues that are in need of immediate resolution.

To resolve the outstanding issues, law enforcement asks the Commission to:

(1) formally identify the types of services and entities that are subject to CALEA;
(2) formally identify the services that are considered "packet-mode services';
(3) initially issue a Declaratory Ruling or other formal Commission statement, and ultimately adopt final rules, finding that broadband access services and broadband telephony services are subject to CALEA;
(4) reaffirm, consistent with the Commission's finding in the CALEA Second Report and Order, that push-to-talk "dispatch" service is subject to CALEA;
(5) adopt rules that provide for the easy and rapid identification of future CALEA-covered services and entities;
(6) establish benchmarks and deadlines for CALEA packet-mode compliance;
(7) adopt rules that provide for the establishment of benchmarks and deadlines for CALEA compliance with future CALEA-covered technologies;
(8) outline the criteria for extensions of any benchmarks and deadlines for compliance with future CALEA-covered technologies established by the Commission;
(9) establish rules to permit it to request information regarding CALEA compliance generally;
(10) establish procedures for enforcement action against entities that do not comply with their CALEA obligations;
(11) confirm that carriers bear sole financial responsibility for CALEA implementation costs for post-January 1, 1995 communications equipment, facilities and services;
(12) permit carriers to recover their CALEA implementation costs from their customers; and
(13) clarify the cost methodology and financial responsibility associated with intercept provisioning.

The FCC noted in its IP-Enabled Services Notice of Proposed Rulemaking WC Docket No. 04-36, FCC 04-28, released March 10, 2004, that law enforcement would file this Petition, and that the Commission recognized the importance of ensuring law enforcement's requirements are fully addressed. The FCC stated that it took seriously the issues raised by the law enforcement community concerning lawfully-authorized wiretaps.

Accordingly, the FCC announced plans to initiate a rulemaking proceeding to address the matters that it anticipated law enforcement would raise in the Petition. The Commission also announced plans to closely coordinate its efforts in these two new proceedings. On March 12, 2004, the FCC released Public Notice DA 04-700 to request comments sought as a result of the rulemaking proceeding RM-10865 opened at law enforcement's request.

Department of Justice Joint Reply Comments

On April 27, 2004, the DOJ, FBI, and DEA filed joint reply comments before the FCC. In the joint reply comments, as stated in law enforcement's Petition - and as echoed by the law enforcement entities that submitted comments in the proceeding - court ordered electronic surveillance is an invaluable and necessary tool for federal, state, and local law enforcement in their fight to protect the American public against terrorists, spies, and other criminals. Congress enacted CALEA to preserve law enforcement's ability to conduct court ordered electronic surveillance despite rapidly emerging telecommunications technologies by further defining the telecommunications industry's existing obligation to provision court ordered electronic surveillance capabilities, and requiring industry to develop and deploy CALEA intercept solutions.

FCC Notice of Proposed Rulemaking and Declaratory Ruling

The FCC released its Notice of Proposed Rulemaking (NPRM) and Declaratory Ruling RM-10865, ET Docket No. 04-295, FCC 04-187, on August 9, 2004. The NPRM was published in the Federal Register at 69 Fed. Reg. 56976 (2004) on September 23, 2004. In its NPRM the FCC states that they were guided first by the Commission's primary policy goal to ensure that Law Enforcement Agencies (LEAs) have all of the resources that CALEA authorizes to combat crime and support Homeland Security. Second, the Commission recognizes that law enforcement’s needs must be balanced with the competing policies of avoiding impeding the development of new communications services and technologies and protecting customer privacy. Section 103 of CALEA explicitly precludes LEAs from prohibiting the adoption of any equipment, facility, service, or feature by any telecommunications provider, manufacturer, or support service; and also protects the privacy and security of communications and call-identifying information not authorized to be intercepted. Third, the Commission intends to remove to the extent possible any uncertainty that is impeding CALEA compliance, particularly for packet-mode technology.

Further, in the NPRM the Commission tentatively concludes that CALEA applies to facilities-based providers of any type of broadband Internet access service – including wireline, cable modem, satellite, wireless, and powerline – and to managed or mediated Voice over Internet Protocol (“VoIP”) services. These tentative conclusions are based on a Commission proposal that these services fall under CALEA as “a replacement for a substantial portion of the local telephone exchange service.” Additionally, the Commission tentatively concludes that it is unnecessary to identify future services and entities subject to CALEA. The Commission recognizes law enforcement’s need for certainty regarding the applicability of CALEA to new services and technologies, but anticipates that the Report and Order in this proceeding will provide substantial clarity sufficient to resolve law enforcement’s and industry’s uncertainty about future compliance obligations.

The Commission seeks comment on telecommunications carriers’ obligations under section 103 of CALEA and compliance solutions as they relate to broadband Internet access and VoIP. In particular, the Commission seeks comment on the feasibility of carriers relying on a trusted third party to manage their CALEA obligations and whether standards for packet-mode technologies are deficient and thus preclude carriers from relying on them as safe harbors for complying with CALEA. With regard to compliance, the Commission proposes mechanisms to ensure that telecommunications carriers comply with CALEA. Specifically, the Commission proposes to restrict the availability of compliance extensions under CALEA section 107(c) and clarifies the role and scope of CALEA section 109, under which carriers may be reimbursed for their CALEA compliance costs. The Commission proposes to afford all carriers with pending petitions a reasonable period of time (e.g., 90 days) in which to comply with, or seek relief from, any determinations that it eventually adopts in this proceeding.

Additionally, the Commission considers whether, in addition to the enforcement remedies through the courts available to LEAs under CALEA section 108, it may take separate enforcement action against carriers that fail to comply with CALEA and tentatively finds that it has general authority under the Communications Act to promulgate and enforce CALEA rules against carriers and non-common carriers. With regard to costs, the Commission tentatively concludes that carriers are responsible for CALEA development and implementation costs for post-January 1, 1995 equipment and facilities; seeks comment on cost recovery issues for wireline, wireless and other carriers; and refers to the Federal-State Separations Joint Board cost recovery issues for carriers subject to Title II of the Communications Act.

Finally, the Commission requests comment on what would be a reasonable amount of time for entities that heretofore have not been subject to CALEA to comply with its requirements, if the Commission ultimately decides that those entities are subject to CALEA. In the companion Declaratory Ruling, the Commission grants in part a law enforcement request in the Petition and clarifies that commercial wireless “push-to-talk” services are subject to CALEA, regardless of the technologies that Commercial Mobile Radio Service providers choose to apply in offering them.

As noted previously, law enforcement believes that despite a clear statutory mandate, full CALEA implementation has not been achieved, and there remain a number of outstanding implementation issues. These issues require immediate attention and resolution by the Commission, so that industry and law enforcement have clear guidance on the scope of CALEA's applicability. The comments filed in the proceeding only serve to reinforce the immediate need for the Commission to take the action requested in the Petition. Given the number of issues that remain unresolved, its is incumbent upon the Commission to immediately initiate an expedited rulemaking proceeding to further the meaningful implementation of CALEA by issuing a notice of proposed rulemaking with explicit proposals for resolving the issues raised in the Petition.

Department of Justice Comments

The Department of Justice filed its comments in the FCC rulemaking proceeding ET Docket No. 04-295 on November 8, 2004. In its comments the Department stated that the Commission undertook a timely review of legal and policy issues relating to CALEA implementation resulting from significant changes in communications technology, as well as post-9/11 national security concerns, that have surfaced since CALEA’s enactment in 1994. Two monumental technological changes include the explosive growth of broadband Internet access services and the rapid emergence of VoIP services. Notwithstanding these changes, the mission of law enforcement remains the same - i.e., to protect America from terrorist and criminals. One of law enforcement's long-standing and most powerful tools has been its ability to conduct lawful court-authorized electronic surveillance of criminals and terrorists.

In enacting CALEA, Congress intended it to have a broad reach — one that would include new technology not envisioned in 1994. Additionally, Congress gave the Commission significant authority to implement CALEA’s mandate. DOJ supports the Commission’s tentative conclusions that providers of broadband Internet access and managed or mediated VoIP are subject to CALEA under CALEA’s Substantial Replacement Clause. DOJ also supports the Commission’s proposal to require carriers to comply with any CALEA coverage determinations within 90 days, and even suggests that an additional nine months to be allowed for carriers to design, build, and test their intercept solutions. In order to ensure timely and complete CALEA compliance by carriers, the Commission needs to adopt and enforce CALEA under CALEA section 229. The Commission’s enforcement power, which is complementary to the separate CALEA section 108 enforcement authority, was authorized by Congress in CALEA sections 229(a), (c), and (d).

On the issue of standards, DOJ generally believes these important issues should be resolved though the deficiency petition process of CALEA section 107(b), as has occurred in the past, as opposed to addressing them in this proceeding. However, DOJ agrees with the Commission that certain broad guidelines should be resolved now in preparation for future deficiency proceedings.

Finally, as the Commission recognized in the Notice, there are numerous outstanding issues relating to CALEA cost and cost recovery that need to be addressed in this proceeding. DOJ agrees with the Commission’s tentative conclusion that carriers bear financial responsibility for CALEA development and implementation costs for post-January 1, 1995 equipment and facilities; this conclusion is supported by the plain language of CALEA section 109, and the Commission should adopt rules that reflect this conclusion. In addition, in order to prevent carriers from improperly shifting post-January 1, 1995 CALEA-incurred capital costs to law enforcement, the Commission should clarify that such costs may not be included in carriers' intercept provisioning charges billed to law enforcement.

On November 22, 2004, DOJ filed a motion for extension of time of the reply comments due date.

Department of Justice Reply Comments

On December 21, 2004, the DOJ filed its reply comments in the FCC rulemaking proceeding ET Docket No. 04-295. As stated in its reply comments, DOJ stressed that there have been significant changes in telecommunications technology since CALEA was enacted over ten years ago. Yet law enforcement’s mission - to protect America and its citizens from terrorists and other criminals - has not changed.

What has changed is law enforcement's ability to accomplish its mission in the face of rapidly advancing technology. CALEA was intended to enable law enforcement to keep up with these advancements, and the Commission should ensure that its implementation of CALEA continues to serve the interests of law enforcement and national security. In particular, the Commission should adopt rules and policies that keep CALEA viable in the face of the monumental shift of the telecommunications industry from circuit-switched to IP-based broadband technologies.

DOJ reiterates its support for the tentative conclusions reached by the Commission in the Notice regarding CALEA coverage of broadband Internet access and certain types of VoIP, compliance deadlines, section 107(c) and 109(b) petitions, and financial responsibility for CALEA development and implementation costs for post-January 1, 1995 equipment and facilities. As shown in DOJ’s comments, there is strong statutory and public-interest support for these tentative conclusions, and the commenting parties have offered no meaningful basis for the Commission to reconsider or depart from them.

FCC Requires Certain Broadband and VOIP Providers to Accommodate Wiretaps

In a news release on August 5, 2005, the FCC determined that providers of certain broadband and interconnected VOIP services must be prepared to accommodate law enforcement wiretaps. The Commission found that these services can essentially replace conventional telecommunications services currently subject to wiretap rules, including circuit-switched voice service and dial-up Internet access. As replacements, the new services are covered by CALEA, which requires the Commission to preserve the ability of law enforcement agencies to conduct court-ordered wiretaps in the face of technological change.

The First Report and Order and Further Notice of Proposed Rulemaking, FCC 05-153 - referred to in the FCC's August 5, 2005, news release noted above - was released by the FCC on September 23, 2005. In the order, the Commission concluded that CALEA applies to facilities-based broadband Internet access providers and providers of interconnected voice over Internet Protocol (VoIP) service. This Order is the first critical step to apply CALEA obligations to new technologies and services that are increasingly relied upon by the American public to meet their communications needs. The Commission went on to note that they will release another order that will address separate questions regarding the assistance capabilities required of the providers covered by the FCC 05-153 order pursuant to section 103 of CALEA. This subsequent order will include other important issues under CALEA, such as compliance extensions and exemptions, cost recovery, identification of future services and entities subject to CALEA, and enforcement.

Frequently Misunderstood Questions

On March 17, 2004, we published a press release regarding our joint petition.

Q: Does the petition for CALEA rulemaking propose to apply CALEA to all types of online communication, including instant messaging and visits to websites?

A: No. The petition proposes CALEA coverage of only broadband Internet access service and broadband telephony service. Other Internet-based services, including those classified as "information services" such as email and visits to websites, would not be covered.

Q: Does the petition propose extensive retooling of existing broadband networks that could impose significant costs?

A: No. The petition contends that CALEA should apply to certain broadband services but does not address the issue of what technical capabilities those broadband providers should deliver to law enforcement. CALEA already permits those service providers to fashion their own technical standards as they see fit. If law enforcement considers an industry technical standard deficient, it can seek to change the standard only by filing a special "deficiency" petition before the Commission. It is the FCC, not law enforcement, that decides whether any capabilities should be added to the standard. The FCC may refuse to order a change in a standard on many different grounds. For example, a capability may be rejected because it is too costly. Therefore CALEA already contains protections for industry against paying undue compliance costs.

Q: Did law enforcement ask the FCC to curtail its usual review process to implement the petition?

A: No. Law enforcement asked the FCC to give the proposed rulemaking expedited treatment. Such treatment is often requested and granted when urgent matters are brought to the FCC's attention. Some FCC rulemaking proceedings can take years to complete. Law enforcement believes expedited treatment is warranted in this case based on evidence that terrorists, criminals, and/or spies are already exploiting the networks of broadband communication providers to evade lawful electronic surveillance.

Q: Is Law enforcement trying to dictate how the Internet should be engineered to permit whatever level of surveillance law enforcement deems necessary?

A: No. Law enforcement does not seek the power to dictate how the Internet should be engineered or even to decide how broadband communications networks should be engineered. As explained above, CALEA already allocates those decisions to industry and any resulting capability disputes between industry and law enforcement are decided by the FCC. Moreover, the level of surveillance is not an issue raised in the petition, is not within the scope of CALEA, and is not decided by law enforcement. Based on a statute known as "Title III," before a law enforcement agent or officer is permitted to engage in lawful electronic surveillance, he or she must seek an appropriate court order from a judge or magistrate. Only if a judicial order is issued can the lawful surveillance take place, and the level of surveillance is prescribed by the order.

Q: Does the petition ignore the letter or spirit of CALEA's "information services" exemption by seeking to apply CALEA to such services?

A: No. The petition notes that CALEA contains a definition of "telecommunications carrier" that is different from and broader than the definition of that term in the Communications Act, which governs most FCC actions. The petition therefore asks the FCC to decide the scope of CALEA coverage based on the CALEA definition, not the Communications Act definition. As a result, some carriers classified as "information service" providers for purposes of the Communications Act would be simultaneously deemed "telecommunications carriers" for purposes of CALEA.

Q: Would the petition force carriers to decode data that might be encrypted?

A: No. The petition does not raise the issue of encryption. That issue is already addressed by CALEA. The statute states that if encryption is provided by a telecommunications carrier and the carrier possesses the information necessary to decrypt the communication, it must decrypt the communications subject to an order for lawful interception. But if the encryption is provided by a subscriber or customer, the carrier is not responsible for decrypting the targeted communications.