The Communications Assistance for Law Enforcement Act (CALEA) is a wiretapping law enacted by Congress in 1994. CALEA’s purpose is to enhance the ability of law enforcement and intelligence agencies to conduct electronic surveillance by requiring that telecommunications carriers and manufacturers of telecom equipment modify and design their equipment, facilities and services to ensure that they have built-in surveillance capabilities, allowing federal agencies to monitor all telephone, broadband internet and VoIP traffic in real time. More recently, carrier responsibilities under CALEA were expanded by the FCC (at the request of the U.S. DOJ) to include all VoIP and internet traffic. Most of this equipment and software is purchased from “Trusted Third Parties” such as Narus and Pen-Link and other vendors.
Further information on CALEA’s implications for broadband providers can be found on the FCC’s website at www.fcc.gov/calea/.
Questions have arisen as to whether a private cable operator providing high-speed internet access and/or VoIP services are required to comply with CALEA.
The FCC’s recent Second Report and Order (ET Docket No. 04-295 (rel. May 12, 2006)) extends CALEA’s scope beyond traditional telecommunications providers to include “facilities-based broadband Internet access providers,” as well as “interconnected VoIP providers.” Thus, virtually all ISPs and VoIP providers are required to comply with CALEA.
The next question is whether PCO (or an MDU) that do not own, but lease or otherwise utilize the facilities of specialized Internet Service Providers (ISPs) and/or contract with specialized VoIP providers, are “facilities based” providers within the meaning of CALEA.
The answer is: Yes; it should be presumed that any PCO, MDU or REIT that owns any equipment used in the transmission of voice or data signals to consumers is required to comply with CALEA, unless and until the FCC clarifies the meaning of “facilities-based” to exclude entities that subcontract with other entities to provide Internet access and/or VoIP.
This answer is based on the following:
The Commission has explained that “facilities-based” means entities that “provide transmission or switching over their own facilities between the end user and the Internet Service Provider.” “Switching” includes “routers, softswitches, and other equipment that may provide addressing and intelligence functions for packet-based communications to manage and direct the communications along to their intended destinations.” This implies that a broadband Internet access service is “facilities-based” if the provider of the service owns any portion of the transmission or switching facilities used in providing the service to end users.
A strict application of these definitions implies that most PCOs that offer broadband Internet access are “facilities-based,” to the extent that these companies own any equipment that is used in the “transmission” of digital signals to and from MDU residents, such as in-ground or in-building wiring infrastructure.
Thus, the fact that a PCO does not own but rather utilizes the facilities and services of an independent broadband ISP or VoIP provider does not exempt that PCO from CALEA’s coverage. As long as the PCO owns any of the facilities used in data transmission or switching, it must comply with CALEA’s surveillance requirements.
This interpretation has been confirmed by an FCC official, who stated that the Commission may at some future time clarify the meaning of “facilities-based” in order to lessen the burden on small companies and eliminate redundancy in CALEA compliance requirements. In the meantime, however, it must be presumed that all entities meeting the criteria described above are subject to CALEA.