Joint Petition for Expedited Rulemaking

May 3, 2006

The Federal Communications Commission released Second Report and Order and Memorandum Opinion and Order which addressed the assistance capabilities required for facilities-based broadband Internet access providers and providers of interconnected Voice over Internet Protocol (VoIP). The primary goal of the Order is to ensure that Law Enforcement Agencies (LEAs) have all of the resources that CALEA authorizes particularly with regard to facilities-based broadband ISP and interconnected VOIP providers. The Order balances the needs of Law Enforcement with the competing aims of encouraging the development of new communications services and technologies and protecting customer privacy.

August 5, 2005

The First Report and Order and Further Notice of Proposed Rulemaking, FCC 05-153 - referred to in the FCC's news release noted above - was released by the FCC on September 23, 2005. In the order, the Commission concluded that CALEA applies to facilities-based broadband Internet access providers and providers of interconnected voice over Internet Protocol (VoIP) service. This Order is the first critical step to apply CALEA obligations to new technologies and services that are increasingly relied upon by the American public to meet their communications needs. The Commission went on to note that they will release another order that will address separate questions regarding the assistance capabilities required of the providers covered by the FCC 05-153 order pursuant to section 103 of CALEA. This subsequent order will include other important issues under CALEA, such as compliance extensions and exemptions, cost recovery, identification of future services and entities subject to CALEA, and enforcement.

August 5, 2005

In a news release the FCC determined that providers of certain broadband and interconnected VOIP services must be prepared to accommodate law enforcement wiretaps. The Commission found that these services can essentially replace conventional telecommunications services currently subject to wiretap rules, including circuit-switched voice service and dial-up Internet access. As replacements, the new services are covered by CALEA, which requires the Commission to preserve the ability of law enforcement agencies to conduct court-ordered wiretaps in the face of technological change.

December 21, 2004

Department of Justice Reply Comments

The DOJ filed its reply comments in the FCC rulemaking proceeding ET Docket No. 04-295. As stated in its reply comments, DOJ stressed that there have been significant changes in telecommunications technology since CALEA was enacted over ten years ago. Yet law enforcement’s mission — to protect America and its citizens from terrorists and other criminals — has not changed.

On November 22, 2004

DOJ filed a motion for extension of time of the reply comments due date.

November 8, 2004

Department of Justice Comments

The Department of Justice filed its comments in the FCC rulemaking proceeding ET Docket No. 04-295. In its comments the Department stated that the Commission undertook a timely review of legal and policy issues relating to CALEA implementation resulting from significant changes in communications technology, as well as post-9/11 national security concerns, that have surfaced since CALEA’s enactment in 1994. Two monumental technological changes include the explosive growth of broadband Internet access services and the rapid emergence of VoIP services. Notwithstanding these changes, the mission of law enforcement remains the same — i.e., to protect America from terrorist and criminals. One of law enforcement’s long-standing and most powerful tools has been its ability to conduct lawful court-authorized electronic surveillance of criminals and terrorists.

November 8, 2004

Applicability of CALEA to Broadband Services

DOJ reiterates its support for the tentative conclusions reached by the Commission in the Notice regarding CALEA coverage of broadband Internet access and certain types of VoIP, compliance deadlines, section 107(c) and 109(b) petitions, and financial responsibility for CALEA development and implementation costs for post-January 1, 1995 equipment and facilities. As shown in DOJ’s comments , there is strong statutory and public-interest support for these tentative conclusions, and the commenting parties have offered no meaningful basis for the Commission to reconsider or depart from them.

August 9, 2004

FCC Notice of Proposed Rulemaking and Declaratory Ruling

The FCC released its Notice of Proposed Rulemaking (NPRM) and Declaratory Ruling RM-10865, ET Docket No. 04-295, FCC 04-187 , on August 9, 2004. The NPRM was published in the Federal Register at 69 Fed. Reg. 56976 (2004) on September 23, 2004. In its NPRM the FCC states that they were guided first by the Commission’s primary policy goal to ensure that Law Enforcement Agencies (LEAs) have all of the resources that CALEA authorizes to combat crime and support Homeland Security. Second, the Commission recognizes that law enforcement’s needs must be balanced with the competing policies of avoiding impeding the development of new communications services and technologies and protecting customer privacy. Section 103 of CALEA explicitly precludes LEAs from prohibiting the adoption of any equipment, facility, service, or feature by any telecommunications provider, manufacturer, or support service; and also protects the privacy and security of communications and call-identifying information not authorized to be intercepted. Third, the Commission intends to remove to the extent possible any uncertainty that is impeding CALEA compliance, particularly for packet-mode technology.

April 27, 2004

On April 27, 2004, the DOJ, FBI, and DEA filed joint reply comments before the FCC. In the joint reply comments, as stated in law enforcement's Petition - and as echoed by the law enforcement entities that submitted comments in the proceeding - court ordered electronic surveillance is an invaluable and necessary tool for federal, state, and local law enforcement in their fight to protect the American public against terrorists, spies, and other criminals. Congress enacted CALEA to preserve law enforcement's ability to conduct court ordered electronic surveillance despite rapidly emerging telecommunications technologies by further defining the telecommunications industry's existing obligation to provision court ordered electronic surveillance capabilities, and requiring industry to develop and deploy CALEA intercept solutions.

March 10, 2004

The DOJ, FBI, and DEA filed a Joint Petition for Expedited Rulemaking before the FCC. As stated in the joint petition, CALEA’s purpose is to preserve law enforcement’s ability to conduct lawful electronic surveillance despite changing telecommunications technologies. CALEA applies to all telecommunications carriers, and its application is technology neutral. Despite a clear statutory mandate, full CALEA implementation has not been achieved. Although the Commission has taken steps to implement CALEA, there remain several outstanding issues that are in need of immediate resolution.

March 10, 2004

The FCC noted in its IP-Enabled Services Notice of Proposed Rulemaking WC Docket No. 04-36, FCC 04-28 , released that law enforcement would file this Petition, and that the Commission recognized the importance of ensuring law enforcement's requirements are fully addressed. The FCC stated that it took seriously the issues raised by the law enforcement community concerning lawfully-authorized wiretaps.

Accordingly, the FCC announced plans to initiate a rulemaking proceeding to address the matters that it anticipated law enforcement would raise in the Petition. The Commission also announced plans to closely coordinate its efforts in these two new proceedings. On March 12, 2004, the FCC released Public Notice DA 04-700 to request comments sought as a result of the rulemaking proceeding RM-10865 opened at law enforcement's request.

January 28, 2004

The FBI filed a letter with the FCC giving notice that law enforcement would file a petition seeking comprehensive rules to CALEA. The letter confirmed that the petition would address a variety of issues including what broadband services and service providers should be subject to CALEA, as well as the procedures needed to bring those services and providers into compliance with CALEA.