Legal Bytes: What is CALEA and Will It Affect My Life?
      By John Brewer   November 2005

       In 1994, Congress passed a law known as the Communications Assistance for Law Enforcement Act of 1994. The purpose of CALEA is to define the existing statutory obligation of telecommunications carriers to assist law enforcement in executing electronic surveillance pursuant to court order or other lawful authorization and requires carriers to design or modify their systems to ensure that lawfully-authorized electronic surveillance can be performed. That is a mouthful
       In simple terms, the focus is electronic surveillance of telephone calls. A bit of history preceding the enactment of CALEA is helpful.
       Electronic surveillance consists of either the interception of call content (commonly referred to as wiretaps) and/or the interception of call-identifying information (commonly referred to as dialed-number extraction) through the use of pen registers and/or trap and trace devices. Lawfully-authorized electronic surveillance is considered to be an invaluable tool for law enforcement in its fight against crime and terrorism.
       In 1968, Congress passed the Omnibus Crime Control and Safe Streets Act, which laid out the meticulous procedures law enforcement must follow to obtain the necessary judicial authorization to conduct electronic surveillance. The law was enacted after Congress debated issues concerning law enforcement's need to effectively address serious criminal activity and an individual's right to privacy.
       In 1970, Congress amended the federal wiretap statute to make clear the duty of service providers and others to provide law enforcement with the technical and other assistance necessary to accomplish the intercept.
       In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA) to safeguard national security by authorizing select government agencies to conduct electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information.
      In 1986, as a result of developments in telecommunications and computer technologies, Congress enacted the Electronic Communications Privacy Act, which amended the Omnibus Crime Control and Safe Streets Act by broadening its coverage to include electronic communications (including email, data transmissions, faxes, and pagers).
      The provisions of Title III of the Omnibus Crime Control and Safe Streets Act, as amended, continue to govern the U.S. procedures for obtaining legal authority for initiating and conducting lawful interceptions of wire, oral, and electronic communications.
       CALEA seeks to expand the capabilities of law enforcement agencies to perform electronic surveillance and stay current with changes in technology. The issue that has become a current controversy is the cost of compliance by the private sector. A term that is attached to this sort of compliance issue is “unfunded mandate.”
       A recent article in the New York Times addresses CALEA and the cost of compliance. “The federal government, vastly extending the reach of an 11-year-old law, is requiring hundreds of universities, online communications companies and cities to overhaul their Internet computer networks to make it easier for law enforcement authorities to monitor e-mail and other online communications. The action, which the government says is intended to help catch terrorists and other criminals, has unleashed protests and the threat of lawsuits from universities, which argue that it will cost them at least $7 billion while doing little to apprehend lawbreakers. The order, issued by the Federal Communications Commission in August and first published in the Federal Register last week, extends the provisions of a 1994 wiretap law not only to universities, but also to libraries, airports providing wireless service and commercial Internet access providers. It also applies to municipalities that provide Internet access to residents, be they rural towns or cities like Philadelphia and San Francisco, which have plans to build their own Net access networks.”
       The technology that has created the sudden brouhaha is the ability to make telephone calls over the Internet. Internet traffic is sent in packets of data and they do not necessarily follow each other in a constant stream of traffic. In fact, they are often sent through different Internet routes and assembled at the receiving end.
       According to the New York Times article, “technology experts retained by the schools estimated that it could cost universities at least $7 billion just to buy the Internet switches and routers necessary for compliance. That figure does not include installation or the costs of hiring and training staff to oversee the sophisticated circuitry around the clock, as the law requires, the experts said.” Terry Hartle, a senior vice-president of the American Council on Education is quoted as stating, “This is the mother of all unfunded mandates. Even the lowest estimates of compliance costs would, on average, increase annual tuition at most American universities by some $450, at a time when rising education costs are already a sore point with parents and members of Congress.”
       On October 25, 2005, a coalition of public interest and business groups asked the federal appeals court for the District of Columbia to overturn the Federal Communications Commission (FCC) ruling requiring that broadband Internet and interconnected voice-over Internet Protocol (VOIP) services be designed to make government wiretapping easier.
       In the ruling finalized on October 13, the FCC ordered distributors of broadband and certain VOIP services to comply with the CALEA. CALEA requires telephone companies to design their systems to ensure a baseline level of government wiretapping capability. Some experts opine that when Congress passed CALEA in 1994 it specifically exempted the Internet from its reach.
      The civil liberties, privacy and high-tech industry advocates opposing the FCC ruling warn that it extends the wiretapping rules to technologies it was never intended to cover, imposes a burdensome government mandate on innovators and threatens the privacy rights of individuals who use the Internet and other new communications technologies.
      The appeal was filed by a number of parties that include the Center for Democracy and Technology, COMPTEL, the Electronic Frontier Foundation, the Electronic Privacy Information Center, Pulver.com and Sun Microsystems.
       The merger of the voice telephone system and the Internet has created new challenges that are yet to be resolved.

John Brewer practices law in Oklahoma City, is a member of the Governor’s and Legislative Task Force for E-Commerce, and enjoys issues relating to eBusiness and cyberspace. Comments and questions are welcome and can be emailed to johnb@jnbrewer.com.

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