FCC CALEA Order Challenges Continue

The Federal Communications Commission’s (FCC) decision to expand wiretap
accessibility requirements to broadband providers and Internet telephone
companies continued to come under legal fire today.

Fewer than 24 hours after the Center for Democracy and Technology announced it
plans to challenge the FCC’s ruling, the Electronic Frontier Foundation
(EFF) said it has similar intentions.

Both organizations question the FCC’s legal authority to extend the
Communications Assistance to Law Enforcement Act (CALEA) to the Internet.
CALEA requires all telephone companies to build surveillance backdoors into
their networks, but specifically exempts information services, such as cable
modem and DSL services.

Passed in 1994 before lawmakers anticipated telephone services delivered
over the Internet, the FCC used CALEA to satisfy new Department of Justice
concerns that terrorists and other criminals will use Voice over IP
networks to avoid detection.

“We conclude that [CALEA] applies to facilities-based broadband Internet
access providers and providers of [VoIP],” the FCC order states. “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 EFF has argued against the expansion of CALEA to the Internet since the
FCC began regulatory hearings on VoIP almost two years ago. According to the
privacy advocacy group, the FCC is making it “easier for law enforcement to
listen in on private communications.”

EFF attorney Lee Tien said in a statement, “The FCC’s overreach is an
attempt to overrule Congress’ decision to exclude ‘information services.’ By
mandating backdoors in any service that has the capability to replace
functions provided by a telephone, the FCC has stretched the statute to the
breaking point.”

According to the FCC, all VoIP communications on a given service must be
wiretap-ready within 18 months if the VoIP service offers the capability for
users to connect calls to the public switched telephone network (PSTN). This even applies to those communications that do not involve the PSTN.

The EFF said the practical effect of the new FCC rules means broadband
providers and companies that manufacture equipment for broadband
communications will be required to redesign their products to meet
government requirements.

“A tech mandate requiring backdoors in the Internet endangers the privacy of
innocent people, stifles innovation, and risks the Internet as a forum for
free and open expression,” Kurt Opsahl, an EFF staff attorney, said in a

In issuing its unanimous CALEA order last weekend, FCC Commissioners Kathleen
Abernathy and Michael Copps also anticipated the pending legal action.

“Because litigation is as inevitable as death and taxes, and because some
might not read the statute to permit the extension of CALEA to the broadband
Internet access and VoIP services at issue here, I have stated my concern
that an approach like the one we adopt today is not without legal risk,”
wrote Abernathy.

Democrat Michael Copps added, “Though I approve today’s decision, I continue
to note that it is built on very complicated legal ground. The statute is
undeniably stretched to recognize new service technologies and pushed very
hard to accommodate new and emerging telecommunications platforms.”

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