4/9. On March 10, 2004, the
Department of Justice (DOJ) submitted a
rulemaking [83 pages in PDF] to the Federal
Communications Commission (FCC) regarding requiring broadband service
providers, voice over
internet protocol (VOIP) application providers, and others, to design and modify their
networks, hardware, software, and equipment in a manner that enables the DOJ to
intercept VOIP and other internet based communications.
Introduction. The petition is long. Some of its legal arguments are lengthy
displays of complex interpretative acrobatics. The list of requested relief is
long. Yet, on many important points, the petition is silent or vague.
The DOJ wants to be able to access internet based communications
the way it has long been able to wiretap the old public switched telephone
network (PSTN). The DOJ has authority, which it regularly uses, to intercept
internet communications. The USA PATRIOT expanded and clarified this authority.
But, the DOJ now faces two substantial obstacles with new technologies. First, it lacks
legal authority to compel providers of information services, as well as equipment
manufacturers and software producers, to design their products and services in a
way that facilitates government interception and access. Second, accessing
internet based communications is more complex than wiretapping circuit
switching analog voice communications.
In this petition, the DOJ seeks from the FCC, first, a declaratory ruling, and
second, a rulemaking proceeding, that start to address these two obstacles.
The DOJ strategy is to use the FCC rulemaking process to obtain
an interpretation that the
Communications Assistance for Law Enforcement Act (CALEA). The CALEA is a
1994 statute that provides that a "telecommunications carrier" must design its
network to facilitate wiretapping. This had not been a problem for the government
until the widespread use of cell phones. The focus of the CALEA was these new
cell phone technologies.
The DOJ's threshold problem with this strategy is that the CALEA, which is codified
at 47 U.S.C. § 1001, et seq., only applies to a
"telecommunications carrier". Moreover, it expressly exempts "persons or
entities insofar as they are engaged in providing information services".
Broadband internet access services, and VOIP applications that use broadband internet
connections, are both, quite arguably, information services.
Hence, the DOJ argues in this petition that providers of information services
are really telecommunications carriers. At bottom, the DOJ seeks, not
implementation of the CALEA, but a redrafting of the CALEA by regulation. The
DOJ asks a regulatory agency to perform a legislative function.
Two bills have recently been introduced that address regulation of VOIP
services generally, and include provisions relating to law enforcement
surveillance. For example, on April 2
Rep. Chip Pickering (R-MS)
the "VOIP Regulatory Freedom Act of 2004".
This bill would not expand the CALEA to include connected VOIP
applications. Rather, it creates a new statutory requirement, with a separate statutory
basis. But, in the end, it makes the requirements imposed on providers of
connected VOIP applications similar to the requirements imposed by the CALEA
upon telecommunications carriers. It would require providers of "connected VOIP
applications" to "ensure that its equipment, facilities, or services are capable
of ... enabling the government to intercept communications transmitted using
such application ... delivering such intercepted communications and
call-identifying information to the government".
DOJ's Description of the Proceeding. The DOJ has captioned this
petition, in part, "Joint Petition for Rulemaking to Resolve Various Outstanding
Issues Concerning the Implementation of the Communications Assistance for Law Enforcement
Act". The opening sentence of the petition states, in part, that the petitioners
"bring this joint petition for expedited rulemaking pursuant to their authority to
implement the Communications Assistance for Law Enforcement Act".
These statements are not descriptive of this proceeding in three respects.
First, the petition is signed by three persons -- John Malcolm of the DOJ's
Criminal Division, Patrick Kelley of the DOJ's Federal Bureau of Investigation (FBI), and
Robert Richardson of the DOJ's Drug Enforcement Administration (DEA). These people are all
employed by one entity -- the DOJ. No other
executive branch departments or agencies (such as the Treasury Department, CIA,
NSA or DHS), and no states
or state law enforcement agencies, have joined in this petition. In this sense,
this petition is not "joint".
Moreover, throughout the petition, the petitioners refer to themselves, not
as petitioners, but rather as "law enforcement". Again, the DOJ is just one
element of the law enforcement system in the U.S. federal system.
Second, the DOJ has long been communicating with the FCC both through public
comments, and through closed meetings, regarding the issues raised in the present
petition. In this sense, the DOJ has not sought "expedited" treatment of
For example, almost two years ago, on April 15, 2002, the DOJ's FBI submitted a
comment [15 pages in PDF] in the wireline broadband proceeding (Nos. 02-33,
95-20, and 98-10) in which it argued that the FCC should require in its rules
that the CALEA applies to "DSL and other forms of wireline broadband Internet
access". Also, on June 17, 2002, the FBI submitted a
comment [16 pages in PDF] in the cable broadband proceeding (No. 02-52) in
which it argued that the FCC should require in its rules that the CALEA applies
to "cable modem service". The DOJ has long been active on this issue, but has
declined, until March 10 of this year, to ask for a rule making proceeding.
Third, the statement that this petition concerns implementation of the CALEA
begs the threshold question. The threshold question of whether the CALEA gives
the FCC authority to regulate internet services, and to promulgate the regulations
requested by the DOJ, must first be decided by the FCC.
CALEA Statute. The
Communications Assistance for Law Enforcement Act (CALEA) is codified at 47
U.S.C. §§ 1001-1010. (The section numbers of the statute and the codification in
the U.S. Code do not match.) Congress passed the CALEA in 1994 for the purpose of
allowing law enforcement authorities (LEAs) to maintain their existing wiretap
capabilities in new telecommunications devices. The wireline phone network had
been relatively easy to tap. Cell phones presented problems for the LEAs. The
CALEA addressed these problems. It required that "telecommunications carriers"
must make communications over their equipment, facilities, or services capable
of interception by the LEAs. And, it expressly included "commercial mobile
Section 103(a) of the CALEA, which is codified at 47 U.S.C. § 1002(a), provides, in
part, that "a telecommunications
carrier shall ensure that its equipment, facilities, or services that provide a
customer or subscriber with the ability to originate, terminate, or direct
communications are capable of expeditiously isolating and enabling the
government ... intercept, to the exclusion of any other communications, all wire
and electronic communications carried by the carrier within a service area to or
from equipment, facilities, or services of a subscriber of such carrier
concurrently with their transmission to or from the subscriber's equipment,
facility, or service, or at such later time as may be acceptable to the
Section 103(a) of the CALEA also requires telecommunications carriers to ensure that its
facilities are capable of enabling the LEAs "to access call-identifying
Thus, the CALEA is a statute that imposes requirements upon
"telecommunications carrier"s. These requirements pertain to modifying their
networks to make communications susceptible to government surveillance.
Section 102 of the CALEA, which is codified at 47 U.S.C. § 1001, provides
definitions. Subsection 102(8) defines "telecommunication carrier" as "a person
or entity engaged in the transmission or switching of wire or electronic
communications as a common carrier for hire". And, it provides that this
includes "a person or entity engaged in providing commercial mobile service",
which in turn is addressed in
47 U.S.C. § 332.
However, this CALEA definition of "telecommunications carrier" also provides that its
"does not include ... persons or entities insofar as they are engaged in
providing information services".
Subsection 102(6) provides that "The term ``information
(A) means the offering of a capability for generating, acquiring, storing,
transforming, processing, retrieving, utilizing, or making available information
via telecommunications; and
(B) includes -- (i) a service that permits a customer to retrieve stored
information from, or file information for storage in, information storage
facilities; (ii) electronic publishing; and (iii) electronic messaging services;
(C) does not include any capability for a telecommunications carrier's
internal management, control, or operation of its telecommunications network."
Moreover, Subsection 103(b) provides that the requirements of Subsection
103(a) "do not apply to ... information services".
But, Subsection 102(8)(B)(ii) provides that "telecommunications carrier"
includes "a person or entity engaged in providing wire or electronic
communication switching or transmission service to the extent that the
Commission finds that such service is a replacement for a substantial portion of
the local telephone exchange service and that it is in the public interest to
deem such a person or entity to be a telecommunications carrier for purposes of
Thus, the DOJ wants to force entities such as broadband service
providers and VOIP application providers, as well as their equipment suppliers,
and software developers, to make
communications over their networks, equipment and services capable of government
interception. But, it wants to rely on a statute that only imposes requirements
on "telecommunications carrier"s.
The DOJ's problem is compounded, first, by the definition which
excludes "information services" from the meaning of "telecommunications
carrier", and second, by the exemption of "information services" from the basic
requirement of the CALEA.
But, the Subsection 102(8)(B)(ii) does provide the DOJ an
opening to argue for an expansive application of the CALEA, to VOIP and similar
things, but not other internet services. Not surprisingly,
the DOJ petition relies heavily upon this subsection, and all but ignores the provisions
of the CALEA that exempt "information
Moreover, the DOJ petition argues that while
many of the entities upon which it seeks to impose CALEA burdens are
providers of information services within the definition of the CALEA, and have been
declared to be information services under the Communications Act by the FCC,
these entities are still, somehow, "telecommunications carrier"s for
the purpose of imposing CALEA burdens.
DOJ Arguments Regarding Its Inability to Conduct Necessary Surveillance.
The DOJ petition argues that "The importance and the urgency of this task
cannot be overstated. The 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." (Page 8. Emphasis in original.)
The petition adds that "Communications among surveillance
targets are being lost, and associated
call-identifying information is not being provided in the timely manner required
by CALEA. These problems are real, not hypothetical, and their impact on the
ability of federal, state, and local law enforcement to protect the public is
growing with each passing day."
The DOJ petition also complains that some entities claim that
they are not subject to the requirements of the CALEA. However, the petition is
silent as to who these entities are. Nor does the petition enumerate the types
of entities that cause it concern. The DOJ wrote the key sentence quoted above
in the passive mood -- "surveillance is being compromised" -- thereby evading
the revelation of who is compromising surveillance.
"Yet when the current trend of IP
convergence is complete, and most if not all forms of electronic communications
are transmitted over a common IP core, CALEA will be of little value if it is
applied only to legacy circuit-mode networks" the DOJ petition states.
DOJ Arguments Regarding the Meaning of "Telecommunications
Carrier". The petition then launches into a long discourse regarding why,
notwithstanding the language of the statute imposing requirements upon
"telecommunications carrier"s, but not providers of "information
services", the FCC should
nevertheless declare that some providers of information services are telecommunications
carriers for the purpose of imposing the requirements of the CALEA upon these
The petition argues that the CALEA definition of
"telecommunications carrier"s is different, and broader than the definition in
the Communications Act. (47 U.S.C. § 153
contains relevant definitions in the Communications Act.) The petition compares
and contrasts the definitions at length.
This argument, if meritorious, might provide the FCC a basis for not
automatically following the precedents of its rulings that DSL service and cable
modem service are information services (which construed the definitions in the
Communications Act). It would not, however, get around the definitions that are
contained in the CALEA.
The petition then asks that the FCC "initially issue a
Declaratory Ruling or other formal Commission statement, and ultimately adopt
final rules, finding that, because the CALEA definitions of ``telecommunications
carrier´´ is different from and broader than the Communications Act definition of
the term, CALEA applies to two closely related packet-mode services that are of
rapidly growing significance for law enforcement: broadband access service and
broadband telephony service." (Page 15.)
It is not until much later that the petition offers its interpretation
of the CALEA's "information services" language. It asserts that "We
note that CALEA's definition of
``telecommunications carrier´´ does not include ``persons or entities insofar as
they are engaged in providing information services.´´ This provision, however, does not
place broadband access itself outside the scope of CALEA. When Congress enacted
CALEA, it thought of information services simply as the basic retrieval of
stored data files and certain electronic messaging functions. Congress did not intend
the phrase ``information services´´ in CALEA to
include Internet access service or electronic voice services such as broadband
telephony services." (Pages 26-7.) The petition does not cite any statements,
speeches or correspondence by any Senators or Representatives, any Committee
reports, or any Presidential signing statement to substantiate this assertion.
The DOJ petition concludes that it wants the FCC to act "decisively today to
bring CALEA into the broadband age. Preserving law enforcement's ability to conduct
lawfully-authorized electronic surveillance in the face of the increasing
migration to new technologies -- namely, broadband access services and broadband
telephony services -- is exactly the situation that CALEA is intended to
The petition goes on to argue that providers of broadband
access, VOIP, and push to talk are all "telecommunications carrier"s for the
purposes of imposing CALEA requirements.
On the subject of VOIP, the petition argues at length that
Subsection 102(8)(B)(ii) requires imposition of CALEA obligations.
One point that the petition makes here is that even if VOIP
service is not provided on a common carrier basis, it is nevertheless
"telecommunications carrier" under the CALEA "as long as the service is a
replacement for a substantial portion of the local telephone exchange service".
Perhaps the petition is arguing that even the provision of a free VOIP service
is a "telecommunications carrier".
The petition also argues that "the fact that a broadband access
provider may also be engaged in the provision of ``information services´´ does not
place the provider beyond the reach of CALEA."
Finally, the petition makes an argument in the alternative. It
states that "if the Commission were to conclude that broadband
telephony cannot be brought within the ambit of CALEA without simultaneously
categorizing broadband telephony providers as ``telecommunications carriers´´ for
purposes of the Communications Act, Law Enforcement would urge the Commission to
strongly consider classifying such entities as telecommunications carriers for
purposes of both the Communications Act and CALEA."
It adds that "if the Commission concludes that the
definitional outcomes under CALEA and the Communications Act cannot be
disengaged from each other, the Commission may find it appropriate to resort to
other mechanisms, such as regulatory forbearances, to avoid undue regulation of
broadband telephony without compromising critical law enforcement needs."
Proposed Rules for Bringing Other Information Services Under
the CALEA Regime. The petition states that the FCC should adopt rules that
will make it easy to place other, and yet to be invented, services under the
regulatory requirements of the CALEA.
The petition states that "Such rules, at a minimum, should provide
that (1) a service that directly competes against a service already deemed to be
covered by CALEA is presumptively covered by CALEA pursuant to Section 102(8)(A) of CALEA;
(2) if an entity is engaged in providing wire or electronic communication
switching or transmission service to the public for a fee, the entity is also
presumptively covered by CALEA pursuant to Section 102(8)(A) of CALEA; and (3) a
service currently provided using any packet-mode technology and covered by CALEA
that subsequently is provided using a different technology will presumptively
continue to be covered by CALEA." (Page 33.)
The petition does not cite any statutory authority for these
rules. These proposal are inconsistent with the CALEA statute. The DOJ petition
here essentially asks that for other services, that the FCC amend the
Congressional statute by regulatory rulemaking.
Proposal to Institute Government Planning and Licensing of
Information Technologies. The DOJ petition then states, "In addition, the
Commission should require any carrier that believes that any of its current or
planned equipment, facilities, or services are not subject to CALEA to
immediately file a petition for clarification with the Commission to determine
its CALEA obligations."
This rule would require prior approval by the government for a wide range of new
information technologies. That is, one would no longer be allowed to invent and
deploy. One would need to take inventions to a government planning body for
The petition says that this should be the FCC acting in consultation with the
FBI. This would institute a form of industrial planning for the
information and communications technology sectors. It is also a de facto licensing
Carriers. The quotation in the first paragraph of the
preceding section (".. the Commission should require a carrier ...) marks a
shift in the DOJ's petition. Up until this point the petition has used the term
"carrier" frequently, but mostly in the definition "telecommunications
carrier", or in the definition "common carrier".
In other contexts the use of the word "carrier" might be taken
to mean "telecommunications carrier", "common carrier", CLEC, or
ILEC. But, in this petition, the DOJ now begins to use the "carrier" to mean
those entities that are subject to the CALEA. Moreover, "carrier" cannot mean
"telecommunications carrier" or "common carrier", because, under the
DOJ's deconstruction of the statute and its definitions, an entity need not be either to
be subjected to the requirements of the CALEA.
The DOJ uses "carrier" in a far broader sense than it has
heretofore been used in law. But just how broad, it does not specify.
Enforcement. The DOJ petition then proceeds to propose a
complex set of procedural and enforcement rules.
The proposals reveal several features. First, the process would be complex
and expensive. Compliance would be beyond the capacity of some small businesses.
Second, while the FCC nominally would review and approve new technologies,
issues benchmarks, set deadlines, and conduct enforcement proceedings, the FBI
would also play a significant, though undefined, role. The petition proposes
numerous requirements for information sharing and consultations between the FCC
Third, the petition makes clear that not only "carriers",
whoever they are, would be subject to pre-approvals, rules, requirements, and enforcement
proceedings. Their various equipment manufacturers and others would also be
brought into the process. A range of equipment makers, software developers,
service providers and others that are not now subject to FCC regulation, would
be subjected to FCC regulation, and their equipment and software to FCC
The petition is vague about the information services that ought to be
subject to CALEA regulation, and how they are to be regulated. The gist of this
petition is to bring providers of information services within the regulatory framework
of the CALEA. Even though the target of this expanded regulatory scheme will include
computers, servers, routers, microprocessors, software, applications and code,
these items are hardly mentioned in the petition.
Cost Accounting and Price Regulation. The petition asks that the
government not have to pay for any of the costs of coming into compliance with the
requirements imposed by the proposed expansion of the CALEA regulatory framework. This
was to be expected.
However, the petition goes on to ask that the FCC "exercise its
authority under Section 229(a) of the Communications Act to establish rules that
permit carriers to have the option to recover some or all of their CALEA
implementation costs from their customers."
The DOJ petition adds that the "CALEA requires that the
Commission minimize the cost of CALEA compliance on residential ratepayers."
If the FCC were to establish rules allowing these "carriers" to
recover some of their CALEA implementation costs, then the FCC would have to
establish a complex, and certain to be controversial, accounting methodology. If
the FCC were to allow recovery of only some costs, as the DOJ suggests, this
would constitute price regulation.
Thus, the DOJ is inviting the FCC to create a cost accounting
and price regulation regime reminiscent of regulation of monopoly
telecommunications carriers, but apply it to many new, small, start up, thinly
financed competitors, with new innovative information technologies. The DOJ not
only wants to subject new technologies to legacy phone industry wiretap rules,
it wants to subject them to legacy monopoly price regulation.
But then, it is these new and innovative information technologies that
are making it harder for the DOJ to maintain universal surveillance.
Moreover, this proposal, like many other proposals in the DOJ petition, would
favor legacy service providers and incumbents over new technologies and new
competitors. It would also encourage legacy providers to compete at the FCC, and
the FBI, rather than in the marketplace.
Signatures. The petition is signed by three persons: John
Malcolm of the DOJ's Criminal Division, Patrick Kelley of the DOJ's FBI, and
Robert Richardson of the DOJ's DEA. None are senior DOJ officials.
Malcolm, the lead signer on the petition, is a Deputy Assistant
Attorney General in the Criminal Division. He is subordinate to Christopher
Wray, the Assistant Attorney General for the Criminal Division. Wray reports to
James Comey, the Deputy Attorney General, who reports to John Ashcroft, the
Attorney General. Neither Wray, Comey nor Ashcroft signed the petition, or had
their names placed on the petition. Similarly, Patrick Kelley is Deputy General
Counsel of the FBI. He is several steps below the FBI Director, Robert Mueller.
Robert Richardson is Deputy Chief Counsel at the DEA.
This is in contrast to earlier filings in the FCC's rule making
proceedings to implement the CALEA. The proceeding is Common Carrier Docket No.
97-213. See for example, the May 8, 1998 filing of the DOJ. Both former Attorney
General Janet Reno and former FBI Director Louis Freeh lent their names to that