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April 13, 2004, 9:00 AM ET, Alert No. 875.
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FCC Receives Comments Regarding DOJ Petition to Expand the CALEA to Cover Information Services

4/12. April 12 was the deadline to submit comment to the Federal Communications Commission (FCC) regarding the Department of Justice's (DOJ) March 10 petition for rulemaking [83 pages in PDF] 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 communications.

The DOJ asserts, among other things, that the Communications Assistance for Law Enforcement Act (CALEA), a 1994 statute that provides that a "telecommunications carrier" must design its network to facilitate wiretapping, also applies to information services, including broadband internet access and voice over internet protocol (VOIP) services and applications.

The DOJ petition, which is variously referred to as the CALEA petition, the joint petition, or as the petition in RM-10865, drew praise and support in comments submitted by other law enforcement agencies, groups that support or represent law enforcement agencies, and companies that sell surveillance and intercept products.

The petition was widely criticized by other commenters, including MCI WorldCom, AT&T, Sprint, Covad, ISPs (Earthlink and ISP CALEA Coalition), a VOIP application provider (Skype), an economist, and various Washington DC based groups that advocate various broad public interests -- EPIC (privacy), ACLU (civil liberties) and CDT (democracy and technology).

However, the FCC has yet to publish in its web site all of the comments submitted on April 12. Also, reply comments are not due until April 27.

As of April 12, the FCC had not yet published any comments from the Regional Bell Operating Companies, cable companies, consumer electronics companies, large software companies, or the groups that represent them.

Law Enforcement Entities. The DOJ petition, which is signed by representatives of the DOJ's Criminal Division, the DOJ's Federal Bureau of Investigation, and the DOJ's Drug Enforcement Administration, is summarized in a TLJ article titled "Summary of DOJ Petition for Rulemaking to Expand the CALEA to Cover Information Services" in TLJ Daily E-Mail Alert No. 873, April 9, 2004.

The DOJ petition has been supported by comments submitted by the Tennessee Bureau of Investigation, Texas Department of Public Safety, Police Executive Research Forum, Los Angeles County Regional Criminal Information Clearinghouse, International Association of Chiefs of Police, and the National Sheriffs' Association. Although, these comments reflect some copying or paraphrasing of each other's comments.

The Texas Department of Public Safety (TDPS) submitted a comment [2 pages in PDF] in support of the DOJ petition in which it argues that "law enforcement has been thwarted in its attempts to implement lawfully authorized surveillance intercepts." It also adds that companies, not law enforcement entities, should pay for the costs of making equipment and services more subject to surveillance.

The Tennessee Bureau of Investigation (TBI) submitted a comment [2 pages in PDF]. The TBI and the TDPS make identically worded points in their comments. Either one entity copied from the other, or they both copied from the same source.

The Police Executive Research Forum submitted a comment [2 pages in PDF] in support of the DOJ petition. (It also closely resembles the TDPS and TBI comments.) It states that "Since 1994, many new communications technologies have emerged, including broadband Internet access, voice over IP telephony (VoIP), push-to-talk digital dispatch services, and other packet mode services. These services, currently used by millions of individuals across the nation, pose a great challenge to state and local law enforcement. Many of the service providers have failed to voluntarily adopt currently available CALEA intercept solutions. This hampers law enforcement attempts to implement lawfully authorized surveillance intercepts. Voluntary industry compliance with CALEA is not a feasible option."

See also, brief comment [2 pages in PDF] of the International Association of Chiefs of Police, and brief comment [2 pages in PDF] of the National Sheriffs' Association, both in support of the DOJ.

The Los Angeles County Regional Criminal Information Clearinghouse submitted a comment [7 pages in PDF] in support of the DOJ petition. It reflects authorship separate from the other law enforcement comments. It stated that "Voluntary industry compliance with CALEA does not work." It elaborated that two providers of push-to-talk features are not CALEA compliant. In addition, "two broadband services providers in the greater Los Angles (sic) area market openly admit that their telephony infrastructure is not CALEA-compliant."

Sellers of Surveillance and Interception Products. Two sellers of surveillance and interception products, which stand to receive increased revenues if the relief sought by the DOJ is granted, wrote comments in support of the DOJ.

Top Layer Networks, Inc., which sells surveillance products to government, service providers and enterprise customers, submitted a comment [7 pages in PDF] in which it argued, on behalf of the surveillance products industry, that "unless the FCC acts immediately on the proposed petition, this industry will suffer".

Top Layer also wrote that "The technology to intercept IP (or packet) based communications has advanced significantly in the last 5 years, (because of demand in other countries outside the U.S) and mature products and solutions are widely available today. These solutions have the ability to access and intercept the specific needed call identifying or content information for an IP application such as VoIP. At the same time the Collector systems (Monitoring Centers) that Law Enforcement agencies have been using for decoding intercepted voice calls, now have the capability to decode VoIP calls and other IP applications such as email, and web browsing." (Parentheses in original.)

Top Layer also pointed out that "The capabilities sought by the Joint Petitioners are in large measure extensively used in many other countries worldwide." Russia is one of the seven foreign countries listed in a table provided by Top Layer. Top Layer's table also lists VeriSign as an "Interception Vendor".

VeriSign submitted a comment [15 pages in PDF] in support of the DOJ petition. It stated that "VeriSign provides lawfully authorized electronic surveillance (lawful interception) capability requirements to communication providers globally". It further stated that "VeriSign already provides CALEA services for precisely this kind of broadband telephony" addressed in the DOJ petition.

VeriSign also argued that "dramatic changes in electronic communication network platforms have occurred over the past several years. Indeed, it is not just the emergence of large-scale IP-enabled Services that are involved here. There are a host of other factors. The technologies and market demand for an always-on world of nomadic users and agile access is supported by a complex network self-configuring terminal devices with globally distributed applications and service providers. Criminals and terrorists who are typically rather nomadic themselves, have gravitated to these technologies on a significant scale."

Equipment Manufacturers. The FCC has not yet published comments from any manufacturers of telecommunications, networking, or information technology equipment. It has, however, received a lengthy comment from the Telecommunications Industry Association (TIA). The TIA comment [39 pages in PDF] takes an intermediate position. It criticizes the DOJ petition on many points. However, it does not oppose other parts of the DOJ request.

The TIA is both an industry standards development group, and a group that represents manufacturers of telecommunication and information technology equipment in policy debates. Its members want to sell more equipment. The DOJ would like to compel service providers to buy more equipment. However, the TIA members also do not want regulation that is so onerous that it would impede industry development. This would decrease equipment sales.

Hence, the TIA does not oppose the DOJ petition. Nor does it oppose the DOJ request that broadband internet access and VOIP be subjected to the CALEA. It states, however, that these are questions that should be addressed as part of a notice of proposed rule making, rather than in an initial declaratory ruling.

But, the TIA argues that the DOJ proposal to require government pre-approval of new technologies should be rejected. "If adopted, these proposals would have a devastating impact on industry, particularly on equipment suppliers who would face the cost of building wiretap capabilities for new technologies even before it is clear whether they will succeed. The Commission should reject the proposed rules out of hand, as directly inconsistent with CALEA."

Local Exchange Carriers. The FCC has not published in its web site much in the way of comments from local exchange carriers. There are no comments from any of the Regional Bell Operating Companies (Verizon, BellSouth, SBC or Qwest), or groups, such as the USTA, that represent them.

The FCC has published a comment [8 pages in PDF] from the National Telecommunications Cooperative Association (NTCA), a group that represents rural telecommunications providers . It makes just two arguments that are critical of the DOJ petition.

First, it argues that "forcing carriers to comply with arbitrary deadlines and benchmarks, as proposed by petitioners, may not result in CALEA compliance." Second, it addresses cost recovery. The DOJ wants companies and their customers to bear all of the costs.

The NTCA wrote that "an end user surcharge will disproportionately affect the consumers living and working in rural America and the carriers that serve them. Many of the costs associated with governmental mandates are the same irrespective of the size of the company implementing them. The cost of many switch and software upgrades do not vary no matter how many customers are served by that switch or software." It added that "While the Commission may conclude that an end user charge is appropriate for large carriers, it would be more appropriate for rural carriers to recover their costs in the interstate jurisdiction."

The NTCA comment "does not agree that an end-user charge is appropriate for rural carriers".

Finally, the FCC has published a comment [6 pages in PDF] from Warinner, Gesinger & Associates. It describes itself as "a certified public accounting firm specializing in the provision of accounting and consulting services to local exchange telecommunications carriers". It is highly supportive of the DOJ petition.

It requests that the FCC "find that broadband telephone providers qualify as ``telecommunications carriers创 under CALEA and subject them to the regulations required under CALEA". It states that there is a problem with two "broadband telephone providers" -- Pulver.com and Skype. Moroever, it argues that one of the problems that these services present is encryption of communications.

It argues that failure by the FCC to apply the CALEA to these "broadband telephone providers" would lead to "regulatory arbitrage".

Scalia Asserts That There Is a First Amendment Right Not to Speak on Radio or Television

4/9. Supreme Court Justice Antonin Scalia wrote letters to the Reporters Committee for Freedom of the Press (RCFP) and two reporters whose audio recorders were seized and erased by U.S. Marshals at a public event at which Justice Scalia spoke. See, letter to RCFP and RCFP release.

Scalia wrote that "I was as upset as you were." Nevertheless, he asserted a "First Amendment right not to speak on radio or television".

The Department of Justice's (DOJ) U.S. Marshals Service is a law enforcement agency tasked with protecting federal courts and ensuring the effective operation of the federal judicial system. This includes providing security for the Supreme Court Justices when they travel. The Federal Communications Commission (FCC) is the federal agency that abridges the speech of radio and television broadcasters.

The two reporters whose recordings were erased work for the Associated Press and a local newspaper. Both are entities that publish information primarily through written words.

Microsoft and InterTrust Settle DRM Patent Dispute

4/12. Microsoft and InterTrust announced that they have settled all pending patent litigation between the two companies. The dispute involves digital rights management. See, Microsoft release and InterTrust release.

Microsoft stated that it will license "InterTrust's patent portfolio for a one-time payment of $440 million", and that "InterTrust receives rights under Microsoft patents to design and publish InterTrust reference technology specifications related to digital rights management (DRM) and security".

On April 27, 2001, InterTrust filed a complaint in U.S. District Court (NDCal) against Microsoft alleging patent infringement. InterTrust's U.S. Patent No. 6,185,683 discloses systems and techniques for the secure delivery of electronic documents, execution of legal documents, and electronic data interchange. InterTrust alleged that Microsoft's Windows Media Player and other products implementing rights management functions directly and contributorily infringe this patent.

In June of 2001, InterTrust filed its first amended complaint, adding a claim for infringement of its U.S. Patent No. 6,253,193.

In July of 2001, InterTrust filed a second amended complaint in the District Court adding a claim for infringement of InterTrust's U.S. Patent No. 5,920,861, which discloses techniques for defining, using, and manipulating rights management data structures. InterTrust alleged that the infringing products include Microsoft's Reader (application for reading electronic books) and Digital Asset Server.

This case is InterTrust v. Microsoft, U.S. District Court for the Northern District of California, D.C. No. C 01 1640 JL.

People and Appointments

4/12. James Carroll was named Deputy General Counsel of the Treasury Department. He was previously Special Assistant and Associate Counsel to the President for Clearance at the White House. He vetted people under consideration for appointment by the President. See, Treasury release.

Internet Companies Oppose DOJ CALEA Petition

4/12. Earthlink, the ISP CALEA Coalition, and VOIP application provider Skype submitted comments to the Federal Communications Commission (FCC) that are critical of many parts of the Department of Justice's (DOJ) March 10 petition for rulemaking [83 pages in PDF].

Earthlink. Internet service provider (ISP) Earthlink, and its attorneys, Sher & Blackwell, submitted a comment [20 pages in PDF] that argues that the FCC should deny the DOJ's request for a declaratory order that broadband internet access and VOIP are subject to the CALEA. Its argument is based upon the CALEA's distinction between "telecommunications carrier" and "information services".

However, Earthlink's argument is nuanced. As an ISP without its own broadband facilities, Earthlink seeks access to the broadband facilities of ILECs and cable companies. But, this requires a finding that there is a telecommunications component. Earthlink cannot obtain forced access, or open access, to an information service under the Communications Act. On the other hand, Earthlink also seeks to avoid burdensome regulation and mandates from the DOJ. Only "telecommunications carriers" are subject to the mandates of CALEA. Hence, Earthlink crafts arguments that it can both obtain access to broadband DSL and cable modem facilities, but still not itself be subject to CALEA burdens.

Earthlink provided this analysis. "At the heart of the Joint Petition, however, is one key legal question: Where does CALEA draw the line between the "telecommunications carrier" transmission and switching services that are subject to CALEA and the ``information services创 that are not? Contrary to the suggestion made by Law Enforcement in the Joint Petition, the Commission cannot decide where to draw that line by looking solely at the definition of ``telecommunications carrier创. Any determination by the Commission based only on the statutory construction of ``telecommunications carrier创 is legally unsupportable because Congress affirmatively excluded from the definition of ``telecommunications carrier创 any person or entity ``insofar as they are engaged in providing information services.创 Thus, in order to determine whether a person or entity must comply with the assistance requirements of section 103(a) of CALEA, the Commission must first determine to what extent that person or entity is engaged in providing "information services".

Earthlink, which is a party in Brand X v. FCC, argued in it comment that the FCC should follow the opinion of the U.S. Court of Appeals that "broadband Internet access services offered over cable facilities constitute a bundled offering of legally separate "information service" and common carrier transmission service components." (Quotation from Earthlink comment.)

See, October 6, 2003, opinion [39 pages in PDF] of the U.S. Court of Appeals (9thCir) (also published at 345 F.3d 1120), and story titled "9th Circuit Vacates FCC Declaratory Ruling That Cable Modem Service is an Information Service Without a Separate Offering of a Telecommunications Service" in TLJ Daily E-Mail Alert No. 754, October 7, 2003.

Earthlink also argued that the FCC should abandon any efforts to seek a writ of certiorari from the Supreme Court. Earthlink also argued, in passing, that "no meaningful action can be taken on the Joint Petition until the point addressed above is decided ..."

And consequently, Earthlink argued that the FCC should adopt the approach that "broadband transmission used to support Internet service is covered by CALEA", but "Internet access service" is not. Then, Earthlink urged "Leaving broadband telephony for another day ..."

Earthlink further argued that it is "clear that the CALEA requirements with respect to Internet traffic are to be implemented as close to the edges of the network as is operationally feasible. That is, the appropriate intercept point for packet mode Internet traffic is at the first switching facility that the traffic reaches after it leaves the user's premises. In the case of DSL and dial-up services, this typically will be at the first central office of the local exchange carrier that provides the physical connection to the end user's premises. For cable-based communications, this first intercept point typically will be at the Cable Modem Termination System (``CMTS创) located at the cable headend."

Earthlink therefore opposed the DOJ's argument that the intercept capability requirements extend to all "servers and routers".

In conclusion, Earthlink argued that "Congress did not intend for CALEA to cover ISPs as such. Thus, to the extent that the Joint Petition can be read as an attempt to sweep ISPs lock, stock, and barrel into the definition of "telecommunications carrier" under CALEA, Earthlink object to that approach ..."

ISP CALEA Coalition. The ISP CALEA Coalition submitted a comment [44 pages in PDF] that argued that "CALEA does not apply to ``information services,创 and that exclusion should be interpreted broadly. The core services provided by the companies in the ISP CALEA Coalition -- including online services; e-mail; and text, voice and video messaging -- are all classic information services. The Commission should reaffirm the scope of the information services exception."

This comment concluded that "the Petition fails to establish a legal basis for regulating broadband access and broadband telephony services under CALEA."

This comment also argued that the DOJ petition "requests the Commission to establish rules and procedures for application of CALEA to future services, and goes so far as to suggest a pre-approval process for new services. This astonishing proposal would cripple innovation on the Internet, quite probably ensuring that new services would always be implemented outside the United States and well beyond the reach of this new regulatory regime. The proposal contradicts Congress's plain intent and should be rejected. No rulemaking on these issues is appropriate."

The ISP CALEA Coalition comment, and the TIA comment, which advance different arguments, were both signed by Stewart Baker of the law firm of Steptoe & Johnson.

Skype. As of April 12, the FCC had published only one comment from a VOIP application provider. Skype Technologies submitted a comment [5 pages in PDF] asking that the FCC rule that the CALEA applies to "underlying transmission networks", but not to applications, such as Skype's, that run on that network.

As of April 12, the FCC had not published comments from Pulver.com (which offers Free World Dialup), SIPphone, or other VOIP application providers.

Skype stated that it is "a Luxembourg company offering peer-to-peer software to consumers throughout the world. By installing this software, users are able to communicate to any other Skype user. At present, 4.5 million people have downloaded Skype抯 free software. Though Skype users are currently unable to use Skype to connect to the PSTN, Skype shortly will offer its users a means to make communications to and receive communications from the PSTN."

"Skype is software, not a network", it wrote. "Skype does not provide servers, routers, switches or other transmission facilities that carry, route, or process communications among Skype users. Skype does not ``track创 users with a central directory. All of these functions are performed, instead, by end-users computers, using end-users' Internet access. Because Skype does not carry its users' communications, it is not technically feasible for Skype to offer public safety agencies access to those communications.

It added that "A requirement that Skype and similar application-providers make peer-to-peer communications accessible to the worlds' public safety and law enforcement agencies would effectively eliminate true peer-to-peer networks, which are defined by their decentralization, as well as variants of such networks, such as Skype抯 next generation ``one-sided创 PSTN service."

Consequently, Skype argued that "whenever possible, the Commission should place responsibility for CALEA compliance on PSTN network providers. When reliance on PSTN network providers alone is insufficient, compliance responsibility may also be placed upon broadband transmission providers, as these entities will necessarily have access to the relevant data streams."


The FCC has also received lengthy comments from MCI WorldCom, AT&T, Sprint, Covad, and others that oppose and criticize substantial parts of the DOJ petition. Similarly, the FCC has received lengthy comments in opposition to the DOJ petition from groups that advocate various aspects of the public interest. These comments will be the subject of stories in the next issue of the TLJ Daily E-Mail Alert.

Washington Tech Calendar
New items are highlighted in red.
Tuesday, April 13

The House is in recess until Monday, April 19, 2004.

The Senate is in recess until April 19, 2004.

The Supreme Court is in recess until April 19, 2004.

Day two of a three day conference hosted by the National Institute of Standards and Technology (NIST), National Institutes of Health (NIH), Internet2, USENIX, and OASIS titled "Public Key Technology R&D Workshop". See, notice and conference website. The price to attend is $105. Location: NIST, Gaithersburg, MD.

Wednesday, April 14

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The speaker will be Ken Ferree, Chief of the Federal Communications Commission's (FCC) Media Bureau. RSVP to Quyen Truong at ttruong@dowlohnes.com. Location: Dow Lohnes & Albertson, 1200 New Hampshire Ave., NW, Eighth Floor.

Day three of a three day conference hosted by the National Institute of Standards and Technology (NIST), National Institutes of Health (NIH), Internet2, USENIX, and OASIS titled "Public Key Technology R&D Workshop". See, notice and conference website. The price to attend is $105. Location: NIST, Gaithersburg, MD.

Thursday, April 15

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda [PDF]. The event will be webcast. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 AM - 12:00 NOON. The WRC-07 Advisory Committee's Informal Working Group 4: Broadcasting and Amateur Issues will meet. See, FCC notice [PDF]. Location: Shaw Pittman, 2300 N Street, NW.

9:30 AM. The U.S. Court Appeals (DCCir) will hear oral argument in AT&T v. FCC, No. 03-1035. Judges Edwards, Tatel and Sentele will preside. Location: Prettyman Courthouse, 333 Constitution Ave.

12:00 NOON. The Progress & Freedom Foundation (PFF) will host a luncheon titled "Should Spectrum Be Public or Private?". The speakers will be Stuart Benjamin (Duke University Law School), Randolph May (PFF), Peter Pitsch (Intel), and Stuart Buck (Kellogg Huber). See, notice and registration page. Location: Room 192, Dirksen Building, Capitol Hill.

12:00 NOON - 1:30 PM. The Open Source and Industry Alliance (OSAIA) will host a luncheon briefing on open source software. The speakers will be representatives of IBM, Novell, OSAIA, the Open Source Development Lab, and Red Hat. RSVP to Pat Steckler (OSAIA) at 202 783-2942. Location: Room B-354, Rayburn Building, Capitol Hill.

12:30 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee will hold a brown bag lunch. Natalie Ludaway will speak on "the benefits of launching a legal career at a small law firm and establishing and maintaining a diverse client base". For more information, contact Joy Ragsdale at 202 261-1427 or jragsdale@opc-dc.gov. RSVP by April 12, 2004 to Angela Bushnell at at 202 434-9121 or abushnell@leftwichlaw.com. Location: Leftwich & Ludaway, 1401 New York Ave., NW.

2:00 - 4:00 PM. The WRC-07 Advisory Committee's Informal Working Group 2: IMT-2000 and 2.5 GHz Sharing Issues will meet. See, notice [PDF]. Location: FCC, 445 12th Street, SW, South Conference Room (6th Floor, Room 6-B516).

Friday, April 16

8:30 AM - 4:30 PM. The New America Foundation will host a conference titled "Pervasive Connectivity: How Unlicensed Spectrum Will Help The World Go Wireless". The event is free. RSVP to Matt Barranca at barranca@newamerica.net or 202 986-2700. See, notice. Location: National Guard Association of the United States, One Massachusetts Ave, NW.

Monday, April 19

The House will return from its Spring/Easter recess.

The Senate will return from its Spring/Easter recess.

The Supreme Court will return from the recess that it began on April 5.

The Intellectual Property Owners Association (IPO) will host an event titled "Patent Quality Conference". For more information, contact 202 466-2396 or info@ipo.org. Location: Ronald Reagan Building and International Trade Center.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding whether certain rules should be repealed or modified because they are no longer necessary in the public interest. The FCC released this NPRM on January 12, 2004. This item is FCC 03-337 in WC Docket No. 02-313. See, notice in the Federal Register, March 18, 2004, Vol. 69, No. 53, at Pages 12814-12826.

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