Appeals Courts Flooded with Petitions for Review of FCC CALEA Order

(November 24, 1999) The FCC's CALEA Order, released on August 31, has been challenged in at least four separate petitions for review filed with U.S. Appeals Courts. The Order pertains to "wiretaps" of new communications technologies.

The petitioners are telecom industry groups, privacy related interest groups, and the Center for Democracy and Technology. The respondent in all of the petitions is the Federal Communications Commission. The FCC issued its Third Report and Order, titled In the Matter of Communications Assistance for Law Enforcement Act, at the end of August.

Related Documents
CALEA Order, FCC Docket No. 97-213, FCC 99-230. (Link to huge WordPerfect file in FCC web site.)
CALEA Statute, 47 U.S.C. § 1001 et seq.
USTA Petition, 11/9/99.
EPIC/ACLU Petition, 11/18/99.
CTIA/CDT Petition, 11/22/99.

The Order purports to implement the Communications Assistance for Law Enforcement Act, a bill passed in 1994 to extend the FBI's and other law enforcement agencies' ability to conduct wiretaps in new technologies, especially cellular communications. However, the many critics of the FBI and FCC assert that the Order goes far beyond the statute.

On November 11 the United States Telecom Association (USTA) filed its Petition for Review with the U.S. Court of Appeals for the District of Columbia. On November 18 another Petition for Review was filed jointly by the Electronic Privacy Information Center (EPIC) and the American Civil Liberties Union (ACLU). Meanwhile, another petition was filed in San Francisco with the Ninth Circuit by another group.

On Monday, November 22, yet another Petition for Review was filed jointly by the Cellular Telecommunications Industry Association (CTIA) and the Center for Democracy and Technology (CDT).

CALEA, Section 103: "... 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".

Congress passed the Communications Assistance for Law Enforcement Act in 1994 for the purpose of allowing law enforcement authorities to maintain their existing wiretap capabilities in new telecommunications devices. It provides that wireline, cellular, and broadband Personal Communications Services carriers must make their equipment capable of certain surveillance functions.

The CALEA also provides that its provisions do not apply to "information services".

The USTA's Petition for Review alleges that:

"Relief from the CALEA Order is sought on the grounds that it is arbitrary, capricious, an abuse of discretion, and otherwise contrary to law; in excess of statutory jurisdiction, authority, or limitation, or short of statutory right; without observance of procedure required by law; and unsupported by substantial evidence."

While this, and the other, Petitions for Review do not elaborate legal arguments, the FCC's Order has been widely criticized for exceeding the requirements of the statute, placing unreasonable financial burdens on industry, and violating the privacy and Constitutional rights of Americans.

Related Story: FCC CALEA Decision Upsets Industry and Privacy Groups, 8/28/99.

The petitioners are being represented by many of the finest law firms and lawyers in Washington.

The USTA represents local exchange carriers, including the regional Bell companies. It is being represented by the Washington DC law firm of Wilmer Cutler and Pickering. The attorneys handling the case are John Harwood, Lynn Charytan, and Samir Jain. Harwood is co-leader of the firm's Communications Practice Group.

The CTIA is represented by the law firm of Gibson Dunn & Crutcher. The lead attorney is Ted Olsen, a partner in its Washington DC office, and a former Assistant Attorney General for the Office of Legal Counsel in the Reagan Administration. He is now the co-chair of the firm's Appellate and Constitutional Law Practice Group.

The EPIC and ACLU are represented by the law firm of Covington and Burling. The attorneys handling the case are Kurt Wimmer and Gerard Waldron. Wimmer is a partner concentrating in new media, information technology, telecommunications, international and intellectual property law. He is the coordinator of the firm's Information Technology and Internet Law Group.