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8/4. The Federal Communications
Commission (FCC) adopted, but did not release, a Notice of Proposed Rulemaking
and Declaratory Ruling (NPRM & DR) regarding imposing CALEA like obligations upon
broadband internet access services, including voice over internet protocol (VOIP), and
other information services.
The FCC issued a short
press release [PDF] describing this item, and four Commissioners wrote brief
separate statements, which they read, in whole or in part, at the FCC's meeting on
August 4, 2004.
After the meeting, FCC Chairman
Michael Powell spoke to reporters,
and the FCC's Ed Thomas and Julius Knapp spoke at a press conference. However, neither
the FCC's press releases, the written statements of its Commissioners, nor the oral comments,
constitute federal law. Nor are they binding upon the FCC. Nevertheless, this is the
information that the FCC has provided.
No one from the FCC stated when the FCC would release
to the public the text of this NPRM & DR. Nor did anyone state when the FCC might
ultimately issue its report and order.
On March 10, 2004, the Department of Justice
(DOJ) and two of its components, submitted a
petition for
rulemaking [83 pages in PDF] to the FCC regarding requiring broadband
service providers, voice over internet protocol (VOIP) service and application providers,
and others, to design and modify their networks, hardware, software, and
equipment in a manner that enables the DOJ to more easily intercept VOIP and
other internet based communications. See,
story
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 asserted that the FCC has authority to issue a declaratory ruling and
promulgate rules under the
1994
Communications Assistance for Law Enforcement Act (CALEA). The FCC
tentatively concluded that it has such authority. However, it did not provide
the DOJ everything that it requested in its petition.
The DOJ prevailed on many key items. The FCC "tentative concluded" in its
NPRM that broadband internet access services are subject to CALEA obligations.
The FCC also tentatively concluded that VOIP
services are subject to CALEA obligations, provided that they are managed or
mediated. The DOJ petition was not precise, but it contained no "managed or
mediated" qualification.
The DOJ also prevailed in convincing the FCC that it should create an
enforcement mechanism to be administered by the FCC. (The CALEA only gives
enforcement authority to the courts.)
The DOJ appears to have lost on its request that the FCC set up a procedure
under which new technologies must be submitted to, and approved by, the FCC.
Nothing in this NPRM & DR, or the CALEA, expands the authority of law
enforcements agencies to conduct surveillance. Wiretap authority, and pen
register and trap and trace authority (including internet addressing and routing
information), are addressed in Title 18 (criminal code) and Title 50 (foreign
intelligence surveillance).
The CALEA, which is codified in Title 47 (communications), imposes requirements upon
telecommunications carriers to design and modify their networks to facilitate
lawfully obtained surveillance orders.
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 government".
Tentative Conclusions Extending CALEA Obligations to Broadband and VOIP.
While the FCC states that it is only issuing a DR on one issue -- push to talk -- and
the rest of this item is a NPRM, much of the NPRM actually consists of
"tentative conclusions" that resolve some of the most fundamental issues raised
by the DOJ petition. In effect, much of the important content of the NPRM is not
in the nature of a NPRM. It resembles a DR.
The DOJ requested in its petition that the FCC issue a declaratory ruling that
broadband internet access services and broadband telephony services are subject
to CALEA.
The FCC release states that the FCC "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.´´" This is a
major victory for the DOJ.
The FCC has also tentatively concluded that VOIP services are subject to
CALEA, provided that they are "managed or mediated". The DOJ did not request
this "managed or mediated" qualification. Also, the FCC release does not
explain what it means by "managed or mediated"
Ed Thomas, Chief of the FCC's Office of
Engineering and Technology (OET), stated in
a press conference on August 4 that "non-managed is basically peer to peer; it
could be Skype". He also said that Vonage
is an example of a managed service. See also,
comment [PDF] submitted by Skype.
The DOJ's petition does reference the notions of managed VOIP services, and
mediated VOIP services, in a footnote. (See, DOJ petition, footnote 39,
at pages 16-17.)
Basically, the DOJ wrote that a mediated VOIP service is one that is provided
by "an entity that both provides the broadband access service that enables the
telecommunications ... and acts as a mediator that provides any connection
management". This might include a VOIP service offered as part of a cable company's
broadband internet access package.
The DOJ also wrote that "A stand-alone broadband telephony
service provider includes entities that do not offer broadband access but do
provide fully- or partially-managed broadband telephony service. Stand-alone
broadband telephony service providers own or lease transmission facilities in
order to manage quality of service and are thereby responsible to the customer
for the transport of packets." The DOJ argued that both of these types of
services, as well as others, should be subjected to CALEA obligations.
Statutory Basis for Tentative Conclusions. The FCC release provides that
information services can be subjected to CALEA requirements as "telecommunications
services", as the DOJ argued in its
petition. Although, the FCC has not adopted the primary basis advanced by the
DOJ. The FCC release states that the tentative conclusions are
based on the clause in the CALEA regarding "a replacement for a
substantial portion of the local telephone exchange service." This clause is
found in Subsection 102(8)(B)(ii) of the CALEA, which clarifies the definition
of the term "telecommunications carrier".
The DOJ petition contains a long and tortured argument that the FCC
should, in effect, simply declare providers of information services are really
telecommunications carriers, notwithstanding the plain definitions of the terms
found in the CALEA, and elsewhere in the Communications Act.
Tentative Conclusion Regarding Creation of FCC Enforcement Authority.
The DOJ requested that the FCC adopt rules that provide that "the Commission is
the appropriate agency to enforce any CALEA compliance benchmarks and/or deadlines, as
well as CALEA compliance generally." (See, DOJ Petition at pages 58-63.)
The FCC release states that, in the NPRM, "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."
If the FCC actually promulgates rules that create such enforcement authority,
this will be a major victory for the DOJ, because the FCC is far more likely to
grant the DOJ the remedies that it seeks than is the federal judiciary. The FCC,
as demonstrated by its previous CALEA related R&Os, and by this NPRM, is willing
to grant DOJ requests not provided for by statute. In contrast, the courts
would likely apply the statute.
Tentative Conclusion Regarding Request for FCC Licensing of Information
Technologies. The DOJ petition requested that the FCC "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." (See, DOJ petition, at page 34. It should also
be noted that the DOJ used the term "carrier" here not to refer to
"telecommunications carrier" or "common carrier", but rather to
entities that it argues are subject to CALEA obligations.)
A review of the comments submitted to the FCC in response to the DOJ's
petition reveals that this DOJ proposal was one of the most opposed, and
vehemently opposed, items in the DOJ petition.
The FCC appears not to be prepared to grant to the DOJ its request. The
FCC release states that the FCC "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."
Declaratory Ruling Extending CALEA Obligations to Push to Talk.
The FCC release states that in the declaratory ruling (DR) portion of this item "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."
At a press conference after the meeting, Ed Thomas (Chief of FCC's OET)
and Julius Knapp (Deputy Chief of the OET) stated that the DR only
addresses the push to talk issue.
This DR, however, is not a controversial item. A review of the comments submitted
to the FCC, ex parte communications, and relevant public speeches of interested
parties reflects that of all of the significant proposals in the DOJ petition,
this was the only one without significant opposition. See also, TLJ
web page
titled "Summary of Comments
Submitted to the FCC in Response to the DOJ's CALEA Petition"
Steve Largent, P/CEO of the Cellular
Telecommunications & Internet Association (CTIA) stated in a
release
that "The mobile wireless industry has always worked closely with law enforcement.
Wireless carriers and their vendors are committed to working with the law enforcement
agencies and the FCC to ensure that push-to-talk wireless services are CALEA compliant
and to find the most effective way to meet law enforcements' needs". He added
that " Consistent with the CALEA statute, we expect that the FCC will provide a
reasonable timeframe for push-to-talk services to become CALEA compliant."
Other Items in the NPRM. The FCC release
states that the NPRM "seeks comment on the feasibility of carriers relying on a
trusted third party to manage their CALEA obligations". This would involve the
use of technologies that allow private sector intercept providers, such as
VeriSign, to conduct surveillance. Currently, wiretaps are conducted by law
enforcement agencies.
The NPRM also seeks comments on "whether standards for
packet-mode technologies are deficient and thus preclude carriers from relying
on them as safe harbors for complying with CALEA."
The NPRM also tentatively concludes that "that
carriers are responsible for CALEA development and implementation costs". That
is, the carriers and service providers will not be able to receive reimbursement
from the federal government for their costs of modifying their networks,
equipment, and software to facilitate surveillance. This is consistent with the
DOJ petition.
Are Competitors of Entities Covered by CALEA Also Covered CALEA? The
DOJ petition argued that the FCC should issue a rule that a service that
directly competes against a service already deemed to be covered by CALEA is
presumptively covered by CALEA. (See, DOJ Petition, at page 33.)
There is nothing in the FCC release on this question. The Commissioners said
nothing about this.
Items Not Mentioned in the FCC Release. Neither the FCC release, nor
the Commissioners' statements, state that the NPRM seeks comments on whether the
internet and other information technologies are hindering law enforcement. There
exists the argument that, contrary to the assertions of the DOJ, new
technologies now enable law enforcement to obtain more stored communications and
data, to intercept communications that were previously transmitted on paper, and
to electronically store, analyze and access the data that it obtains.
Also, Neither the FCC release, nor the Commissioners' statements state that
the FCC seeks comments on the extent to which carriers and service providers are
complying with their existing wiretap and CALEA obligations, or whether they
are, and if so, to what extent, providing law enforcement access to communications
over broadband internet access services, VOIP, and other information services.
Statements by Commissioners. FCC Chairman
Michael Powell wrote in a
separate
statement [PDF] that "We are entering a dynamic space in the evolution of
Internet voice services and applications. As
technologies re-shape communications, this Commission must continually assess
the needs of the law enforcement community under the" CALEA."
FCC Commissioner
Kathleen Abernathy voted for this item, and praised it in her oral statement
at the August 4 meeting. She wrote in a
separate
statement [PDF] that she partially read at the meeting. However, in
the portions of the statement that she did not read at the meeting, she questioned
the authority of the FCC to do many of the things that are proposed or
tentatively concluded in the NPRM.
She wrote that "at the end of the day, the federal courts -- rather than this
Commission -- will be the arbiter of whether we are authorized to take the
actions proposed in this rulemaking, and we must remain mindful of that fact as
we consider final rules."
FCC Commissioner
Jonathan Adelstein wrote in a
separate
statement [PDF] that "This Notice facially accedes to law enforcement's request, but
stops short of developing fully the most defensible basis for these proposed
outcomes, which are at the heart of the federal law enforcement agencies’
petition."
 Adelstein (at right)
continued that "Rather than seeking comment on the most stable footing for law
enforcement’s request, the item seizes upon notable but thin distinctions
between definitions in CALEA and the Communications Act. Moreover, the item does
not acknowledge fully and seek comment on existing precedent that is in tension
with the tentative conclusions here. For example, whether or not the Commission
ultimately appeals the decision in the Ninth Circuit’s
Brand X case, which concluded that broadband access via cable
modem includes a “telecommunications service,” this Notice’s failure to seek
comment on a legal analysis that would comport with the Circuit’s holding is an
unnecessary failing. For these reasons, I concur in the result, if not the full
legal analysis behind the Commission’s tentative conclusions.
FCC Commissioner Michael
Copps also wrote in a
separate
statement [PDF] that the FCC should not ignore the BrandX case.
FCC Commissioner Kevin Martin did not write a separate statement.
Michael Gallagher, the head of the National
Telecommunications and Information Administration (NTIA), issued a
statement. "I commend the Commission for acting quickly on the Petition for
Rulemaking filed by the DoJ, DEA and FBI. By issuing this notice, the
Commission takes an important first step to ensure that law enforcement has
access to the advanced tools needed to pursue those who would threaten us using
advanced technologies." The head of the NTIA generally represents the
position of the administration on communications issues.
More Information. See, related stories: "FBI Now Seeks a Rulemaking to
Expand CALEA to Cover VOIP Services" in
TLJ Daily E-Mail
Alert No. 834, February 11, 2004; "FBI Publishes CALEA Final Notice of
Capacity" in TLJ
Daily E-Mail Alert No. 797, December 11, 2004; and "FBI Wants Broadband
Internet Access Classified As A Telecommunications Service So That CALEA Will
Apply" in TLJ Daily
E-Mail Alert No. 707, July 30, 2003.
The CALEA is codified in Title 47, along with the Communications
Act of 1934, and amendments thereto. However, the original bill, HR 4922 in the
103rd Congress (which became Public Law No. (103-414), stated in its preamble
that the bill amends Title 18, which is the Criminal Code.
This item is FCC 04-187 in ET Docket No. 04-295 and RM-10865.
Geraldine Matise presented this item at the Commission meeting. She can be
contacted at 202 418-2322 or gmatise@fcc.gov.
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Copps
(at right) elaborated that "it strains credibility to suggest that Congress intended
``a replacement for a substantial portion of the local telephone exchange´´ to
mean the replacement of any portion of any individual subscriber’s
functionality. Capturing VoIP under the rubric of substantial replacement,
ignoring the Ninth Circuit's decision in Brand X, and trying to slice and
dice managed and non-managed services is not the way to proceed here."
Powell
(at left) continued that "our tentative conclusion is expressly
limited to the requirements of the CALEA statute and does not indicate a
willingness on my part to regulate VoIP services as telecommunications services.
We have before us a pending rulemaking and several petitions for declaratory
ruling that address themselves to the classification of VoIP services and
nothing in this item prejudices the outcome of those proceedings."
Abernathy (at right)
continued that "The NPRM we are issuing proposes a plausible
interpretation of the ``substantial replacement´´ provision in CALEA that would
extend the assistance-capability requirements to broadband access services and
IP telephony. But such an extension clearly would be fraught with legal risk.
The Commission thus would benefit greatly from further congressional guidance in
this area. While the text and legislative history of CALEA make clear that the
march of technological progress should not hamper law enforcement’s ability to
conduct lawful wiretaps, the statute also explicitly exempts information
services from its reach. The Commission has proposed a means of resolving this
tension, but it remains to be seen whether our attempts to do so would pass
judicial muster."