The Communications Assistance for Law Enforcement Act of 1994 (“CALEA”)
CALEA is an act of Congress that requires telecommunications carriers to install technical capabilities in their networks so they can implement court orders for lawful electronic surveillance. CALEA also requires that the public safety goal of the statute must be achieved in a manner that protects the privacy of telecommunications customers and leaves carriers free to launch commercial technologies and services. The following summarizes the sections of CALEA.
Section 102, Definitions: This section defines key terms such as “telecommunications carrier,” “call-identifying information” and “information services,” which guide the implementation of the statute.
Section 103, Assistance Capability Requirements: These provisions describe the technical capabilities that CALEA-covered telecommunications carriers must deliver to law enforcement when served with court orders for electronic surveillance.
Section 104, Notice of Capacity Requirements: The Attorney General, pursuant to this section, notified the communications industry of the number of intercepts law enforcement may need to implement simultaneously on different types of networks in different geographic markets.
Section 105, System Security and Integrity: The privacy-protection measures required by this section ensure that each interception is authorized by a court (or other lawful authorization) and further authorized by a designated officer or employee of the CALEA-covered entity.
Section 106, Cooperation of Equipment Manufacturers and Providers of Telecommunications Support Services: This part of the statute requires telecommunications equipment manufacturers to help their service provider customers bring their networks into compliance with CALEA. The vendors must make CALEA solutions available to the customers in a reasonable time and at reasonable cost.
Section 107, Technical Requirements and Standards; Extension of Compliance Date. Service providers may craft their own CALEA solutions or conform to the technical standards of industry standard-setting bodies. Following the specifications of a standard-setting body gives the provider a legal “safe harbor” defense if its CALEA compliance is challenged. However, the lack of an industry standard does not relive a provider of its obligation to comply.
Section 108, Enforcement Orders: This section gives a criminal court the power to enforce CALEA against non-compliant service providers. The enforcement could take the form of monetary fines or an order to achieve CALEA compliance within a certain time. However, these penalties may not be imposed where “alternative technologies” are reasonably available to law enforcement to conduct the needed lawful surveillance or where compliance is “not reasonably achievable.”
Section 109, Payment of Costs of Telecommunications Carriers to Comply with Capability Requirements: Under this section, if a service provider demonstrates to the Federal Communications Commission that CALEA compliance is “not reasonably achievable,” the Attorney General must pay the provider the reasonable costs of the needed compliance upgrade or the provider is deemed to be in compliance without the upgrade.
Section 110, Authorization of Appropriations: Congress appropriated $500,000,000 to reimburse industry for the cost of bringing all network equipment installed and deployed before January 1, 1995 into compliance with the statute.
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Communications Assistance for Law Enforcement Act and Broadband Access and Services, First Report and Order and Further Notice of Proposed Rulemaking in ET Docket 04-295, released September 23, 2005 (“CALEA Broadband Coverage Order”)
The CALEA Broadband Coverage Order is a ruling of the Federal Communications Commission (the “FCC”) establishing that the CALEA statute governs not only traditional telecommunications carriers but facilities-based broadband Internet access providers and two-way interconnected VoIP providers. Facilities-based broadband Internet access is defined to cover all broadband platforms, including cable-modem, wireline (“DSL”), wireless, and satellite. Two-way interconnected VoIP is a VoIP service that has the capability of transporting calls both to and from the public switched telephone network.
The FCC determined that the above services were subject to CALEA based on its analysis of CALEA’s unique definition of “telecommunications carrier.” For purposes of FCC mandates other than CALEA, the term “telecommunications carrier” is defined by the Communications Act of 1934, as amended. CALEA sets forth a different definition of “telecommunications carrier” because the CALEA definition contains a “substantial replacement provision.” Under the substantial replacement provision, if the FCC finds that a new communications service is a “replacement for a substantial portion of the local exchange service,” the agency may deem the service provider subject to CALEA. The FCC ruled that providers of facilities-based broadband Internet access and two-way interconnected VoIP provide replacements for a substantial portion of the local exchange service. Accordingly, it subjected both types of provider to CALEA.
The CALEA Broadband Coverage Order also initiated a spin-off proceeding called the Further Notice of Proposed Rulemaking to solicit public comment on whether the FCC should adopt certain additional CALEA rules. One question raised in the Further Notice was whether the FCC should extend CALEA obligations to one-way interconnected VoIP providers. Another issue was whether to create a streamlined set of CALEA requirements for small or rural telecommunications providers. The FCC never followed up the Further Notice with a report and order to decide the above issues. As a result, the issues remain unresolved.
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Communications Assistance for Law Enforcement Act and Broadband Access and Services, Second Report and Order in ET Docket 04-295, released May 12, 2006 (“CALEA Capability Order”)
The CALEA Broadband Capability Order was a ruling of the Federal Communications Commission (“FCC”) that clarified the technical capabilities required of all CALEA-covered entities, including providers of broadband Internet access and VoIP. The Order:
- permitted CALEA-covered carriers to meet their compliance obligations by developing technical solutions with their equipment vendors or by contracting with a “trusted third party” provider of CALEA technical solutions;
- raised the bar for carriers seeking FCC relief under a claim that CALEA compliance is “not reasonably achievable;”
- announced that covered broadband and VoIP providers must file FCC “monitoring reports” declaring their compliance strategies and timeframes;
- set a compliance deadline of May 14, 2007 for covered broadband and VoIP providers;
- determined that the FCC has authority to take enforcement action against non-compliant carriers;
- found that for all compliance costs not eligible for cost recovery under the Congressionally appropriated compliance fund carriers must either absorb the amounts as the cost of doing business or recover the amounts from their subscribers but may not shift the amounts to law enforcement agencies in the form of the rates they charge such agencies for lawful intercept assistance; and
- gave carriers 90 days from the date of the Order to file their FCC “system security and integrity reports,” which summarize their CALEA compliance programs and provide law enforcement with the carrier points of contact responsible for implementing lawful surveillance orders.
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