IS RICH COMMUNICATION SERVICE SUBJECT TO THE CALEA LAWFUL SURVEILLANCE STATUTE?

The wireless communications industry is increasingly deploying a new service known as rich communication service, or “RCS.”  If RCS is subject to the Communications Assistance for Law Enforcement Act (CALEA), wireless carriers deploying RCS must equip the service with technical capabilities for lawful electronic surveillance.  Is RCS covered by CALEA?

RCS is a Next-Generation Form of SMS/MMS

RCS is the next generation of text messaging, formally known as short messaging service or SMS, and its more robust relative, multimedia messaging service or MMS.

By upgrading SMS/MMS with more interactivity, RCS lets subscribers start a group chat, share files of any type during a communication, set “read receipts,” and use “phonebook polling” (to see if the subscriber’s friends have RCS).

Criminals, terrorists and hostile nations can presumably use RCS in their nefarious activities.  Hence the question: do RCS providers have an obligation under CALEA to build technical capabilities into their networks for lawful surveillance?

Is SMS/MMS Subject to CALEA?

CALEA was enacted in 1994, long before the widespread adoption of SMS/MMS.  As those texting services gained popularity, neither law enforcement nor industry petitioned the Federal Communications Commission to determine whether the services were subject to CALEA.  They didn’t need to.  SMS/MMS providers found a low-cost, efficient way to build surveillance capabilities into their services, and the wireless industry decided to include the capabilities in its CALEA wireless “safe harbor” technical standard as an option for individual competitors to adopt as they saw fit.  Consequently, wireless carriers were generally able to deliver SMS/MMS lawful intercept capabilities to investigators in response to court surveillance orders.

That said, whether SMS/MMS is subject to CALEA remains unsettled.  Some lawyers argue that SMS/MMS falls within CALEA’s exemption for “electronic messaging services.” That exemption was meant for email.  Both SMS/MMS and email produce messages in the form of text.  But other legal experts cite fundamental architectural differences between the two services.  At any rate, the fact remains that some major wireless carriers, and perhaps many smaller players, provide SMS/MMS interception as part of their CALEA-compliant solutions.

Meanwhile, providers of texting services transmitted through the internet, as opposed to wireless networks, can sidestep the debate over the definition of electronic messaging services.  The online competitors avoid CALEA obligations due to the statute’s separate exemption for “information services.” 

RCS is Subject to CALEA

The FCC has not addressed whether CALEA covers RCS.  On first impression it may seem appropriate to group RCS in the same ambiguous CALEA category as SMS/MMS.  However, a close examination of the service compels a more decisive result.  RCS messages are transmitted through the same SIP signaling as current-generation voice calls, namely VoIP, and routed by the same network equipment as VoIP (e.g., session border controllers).  In fact, from the network’s point of view, RCS is a phone call.  Furthermore, during an RCS session, one can switch between voice and non-voice communications, or even share them simultaneously.  Thus, RCS is an extension of “two-way interconnected VoIP,” a service that is expressly under CALEA.

The following summarizes the relevant FCC analysis.

The FCC’s First Report and Order and Further Notice of Proposed Rulemaking in ET Docket No. 04-295, released September 23, 2005 (the “CALEA Broadband Coverage Order”), ruled that two-way interconnected VoiP is subject to CALEA.  At paragraph 39, the CALEA Broadband Coverage Order reasoned that:

is covered by CALEA for all VoIP communications, even those that do

not involve the PSTN. Furthermore, the offering is covered regardless of

how the interconnected VoIP provider facilitates access to and from the

PSTN, whether directly or by making arrangements with a third party.

By this logic, the CALEA coverage determination hinges on the “capability” of the given service, regardless of whether or how customers use that capability.

Because RCS operates using SIP signaling, RCS has just the kind of capability that the CALEA Broadband Coverage Order defined as two-way interconnected VoIP and subjected to CALEA.  Therefore, carriers offering RCS must apparently equip the service with CALEA capabilities, regardless of whether subscribers use RCS to make VoIP calls.

Note that in addition to passing messages as text, an RCS user can pass presence information, location information, audio files, video clips, pictures, and files of any type.  This information is considered part of the communication and therefore must be produced as part of a “full-content” interception.

Wireless RCS Providers Should Add CALEA Capabilities

Wireless and other VoIP providers would be wise to adopt the same pragmatic CALEA strategy for RCS as they chose for SMS/MMS.  Once an RCS service is equipped with intercept capabilities, the service provider can implement court surveillance orders without fear of penalties from the court or the FCC.

Industry could give its members even more legal safety by writing RCS capabilities into its safe harbor CALEA standard, just as they did for SMS/MMS. The safe harbor process helps ensure that a carrier’s surveillance work complies with CALEA, protects the communication privacy of non-suspects, and avoids harm to network evolution.