The FCC voted to adopt an order that requires facilities-based broadband Internet access providers and interconnected VOIP providers to provide Law Enforcement Agencies (LEAs) with all of the resources of the Communications Assistance for Law Enforcement Act (CALEA), enacted in 1994.
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 law enforcement agencies had asked the FCC to address several issues so that industry and Law Enforcement would have clear guidance as CALEA implementation moves forward.
Key points of the new order include:
- 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.
- Eight, 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.
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- In August 2005, the FCC ruled that certain types of VoIP services must accommodate law enforcement wiretaps. The action was described as “the first critical step to apply CALEA obligations to new technologies and services that are increasingly used as a substitute for conventional services.”
The FCC reasoned that VoIP services which essentially replace conventional telecommunications services are subject to the Communications Assistance for Law Enforcement Act (CALEA), which gives law enforcement agencies the authority to conduct court-ordered wiretaps.
The first Order was 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 VoIP providers are called interconnected VoIP providers.
The Commission found that the definition of “telecommunications carrier” in CALEA is broader than the definition of that term in the Communications Act and can encompass providers of services that are not classified as telecommunications services under the Communications Act. CALEA contains a provision that authorizes the Commission to deem an entity a telecommunications carrier if the Commission “finds that such service is a replacement for a substantial portion of the local telephone exchange.”