EPIC Urges FCC to Reject Expansion of CALEA

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EPIC has filed comments urging the Federal Communications Commission
to reject the request of federal law enforcement agencies to expand
the Communications Assistance for Law Enforcement Act of 1994 (CALEA)
to cover Internet Service Providers and "Voice over IP" services.
CALEA currently requires telecommunications service providers to
provide wiretapping access to law enforcement, but does not apply to
Voice over IP (VoIP) or Internet Service Providers. The Department of
Justice, Federal Bureau of Investigation, and Drug Enforcement
Administration have petitioned the FCC to regulate Internet telephony
in such a way that CALEA can be legally and technically applied. VoIP
providers would have to rewire their networks to government
specifications so that law enforcement officials could more easily
listen in to VoIP calls. In its comments, EPIC brought to the
Commission's attention the limitations in the language of CALEA,
information obtained by EPIC under the Freedom of Information Act
demonstrating likelihood of capturing information on non-suspects, and
statements by the Department of Justice that show there is no
demonstrable need for the request to expand CALEA.

EPIC pointed out that Congress intentionally limited the scope of
CALEA. The language of CALEA unambiguously excludes information
services such as e-mail and Internet access. The legislative history
of CALEA unequivocally states that "[t]he only entities required to
comply with the functional requirements are telecommunications common
carriers, the components of the public-switched network where law
enforcement agencies have always served most of their surveillance
orders." The legislative history is equally clear that "excluded from
[CALEA's] coverage are "all information services, such as Internet
service providers or services such as Prodigy and America-On-Line."
The narrow scope of CALEA's mandate is best summarized by the
legislative history's explanation that "the bill does not require
reengineering of the Internet, nor does it impose prospectively
functional requirements on the Internet[.]" In light of the clear
Congressional intent that information services be excluded from the
CALEA requirements, an extension of surveillance requirements to such
networks could only occur if Congress revisited CALEA and addressed
the Justice Department's concerns. EPIC argued that it is not for the
Commission to extend the statutory mandate to networks and
technologies that Congress clearly sought to exclude.

Second, EPIC stated, law enforcement access to network traffic can
result in the interception of communications of third parties not
named or identified in court surveillance orders -- a phenomenon that
never occurred in the traditional, circuit-switched telephone
environment. As such, the expansion of CALEA's technical requirements
urged by the Justice Department would make it difficult, if not
impossible, for carriers to comply with the statutory command that
they protect "the privacy and security of communications and
call-identifying information not authorized to be intercepted."
Internal FBI documents obtained by EPIC through Freedom of Information
Act litigation show, beyond question, that surveillance conducted in
packet-mode environments can result -- and indeed has resulted -- in
the unauthorized capture of third-party communications. As the
comments state, "the Commission would abdicate its responsibility to
'protect the privacy and security of communications not authorized to
be intercepted' were it to expand CALEA's reach in the manner [the
Justice Department] suggests."

Finally, EPIC argued that the Department of Justice has not met its
burden of demonstrating the need for the proceeding it requests or the
remedy it seeks. In its "field guidance" discussing the USA PATRIOT
Act amendments relating to electronic surveillance, the Justice
Department acknowledged that it is only in "infrequent cases" that
Internet Service Providers are not able to provide law enforcement
with requested information. The Justice Department admits that even
in the "rare" and "infrequent" cases where service providers cannot
fully comply with a court order, law enforcement has, through the use
of its own technology, been able to obtain the information it seeks
(and, as EPIC has shown, sometimes more than that).

EPIC comments on CALEA:

http://www.epic.org/privacy/wiretap/cal....12.04.pdf

For more information about CALEA, see EPIC's Wiretapping Page:

http://www.epic.org/privacy/wiretap/#DT

Pete


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