Mark,
CALEA IS LAW. There are interpretations of that law, but they have been upheld
by courts.
CALEA is not the opinion of the DOJ or FCC. It is not far-reaching (like say the Patriot Act) or secret and possibly illegal like the NSA-AT&T wiretapping / surveillance.
It is part of the 2 biggest communications laws - TA96 and the Comm. Act of 19
Begun and held at the City of Washington on Tuesday,
the twenty-fifth day of January, one thousand nine hundred and
ninety-four
An Act
To amend title 18, United States Code, to make clear a
telecommunications carrier's duty to cooperate in the interception
of communications for law enforcement purposes, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
TITLE I--INTERCEPTION OF DIGITAL AND OTHER COMMUNICATIONS
SEC. 101. SHORT TITLE.
This title may be cited as the `Communications Assistance for Law
Enforcement Act'.
Communications Act of 1934
(amended by the Telecommunications Act of 1996)
Pub. L. No. 104-104, 110 Stat. 5647 (1996); 47 U.S.C. § 151 <http://www4.law.cornell.edu/uscode/47/ch5schI.html>
/et seq/.; 47 U.S.C. §§ 153 <http://www4.law.cornell.edu/uscode/47/153.html>, 251
<http://www4.law.cornell.edu/uscode/47/251.html>, 252 <http://www4.law.cornell.edu/uscode/47/252.html>, 253
<http://www4.law.cornell.edu/uscode/47/253.html>, and 255 <http://www4.law.cornell.edu/uscode/47/255.html>
and amended by the Communications Assistance for Law Enforcement Act, (CALEA) 47 USC §§ 1001-1010
<http://www.law.cornell.edu/uscode/html/uscode47/usc_sup_01_47_10_9_20_I.html>
The
Communications Act of 1934 created the FCC and gave this new agency the
power to regulate telephones and radio. The 1996 Act amends the 1934,
but is actually much longer. The purpose of the law was to encourage
competition, but it also has a vast regulatory scheme.
//*ACE v. CALEA*/
<http://pacer.cadc.uscourts.gov/docs/common/opinions/200606/05-1404a.pdf>/*,
No. 05-1404*, U.S. Court of Appeals for the D.C. Circuit, Decided June 9, 2006
This case involves a statutory interpretation of 47 USC § 1002
<http://www.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00001002----000-.html>.
This law provides 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 being expeditiously isolated and accessed
by the government pursuant to a court order or other lawful
authorization. The communication must be able to be accessed before,
during, or immediately after the transmission of a wire or electronic
communication. An exception in section 1002 excludes from this
requirement information services; or equipment,
facilities, or services that support the transport or switching of
communications for private networks or for the sole purpose of
interconnecting telecommunications carriers.
In
September of 2005, the FCC issued an Order (FCC 05-153) that stated
that broadband and VoIP (Voice over Internet Protocol) providers were
covered (at least in part) by CALEA's definition of "telecommunications
carriers". Implementation of this Order (required by May 14, 2007)
would necessitate colleges and universities that are broadband or VoIP
providers to redesign their networks at a cost estimated to be over
$450* per student in tuition fees. Given these high stakes, the America
Council on Education (ACE) challenged the order, and this decision,
which upheld the FCC Order is the result of the litigation.
In
a 2-1 decision, the Court of Appeals for the DC Circuit agreed with the
FCC that providers of both broadband and VoIP serve as replacements
for a substantial functionality of local telephone exchange service.
This is key, as the definition of a telecommunications carrier in 47
USC § 1001(8) includes those providers that substantially replaces
traditional transmission or switching. The court also found CALEA
differed from the Telecom Act by not using the phrases
"telecommunications carrier" and "information services" as mutually
exclusive terms. The court found the FCC interpretation of the law
reasonable. The court did state that if the case had been reviewed /de novo/,
the ACE argument might have been found to be the more persuasive one.
The U.S. Court of Appeals for the District of
Columbia Circuit issued a decision on June 9, 2006 in the lawsuit
brought by the American Council on Education (ACE) challenging the
FCC's CALEA rules.
Nor does our interpretation of section 332 of the Communications Act and its
implementing regulations here alter either our decision in the CALEA proceeding to
apply CALEA obligations to all wireless broadband Internet access providers,
including mobile wireless providers, or our interpretations of the provisions of
CALEA itself. As the Commission found, and the U.S. Court of Appeals for the D.C.
Circuit affirmed, the purposes and intent of CALEA are strikingly different than
those of the 1996 Telecommunications Act, which is embedded in the Communications
Act. As the Court noted, “CALEA--unlike the 1996 Act--is a law-enforcement statute .
. . (requiring telecommunications carriers to enable ‘the government’ to conduct
electronic surveillance) . . . . The Communications Act (of which the Telecom Act is
part), by contrast, was enacted ‘[f]or the purpose of regulating interstate and
foreign commerce in communication by wire and radio’ . . . . The Commission's
interpretation of CALEA reasonably differs from its interpretation of the 1996 Act,
given the differences between the two statutes.”121 Thus, our interpretation of the
separate statutory provisions in section 332 of the Communications Act, whose
purposes closely track those of the Telecommunications Act of 1996 and the
Communications Act generally, in no way affects our determination that mobile
wireless broadband Internet access service providers are subject to the CALEA
statute.122"
Regards,
Peter @ RAD-INFO, Inc.
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