[CWN-Summit] Upcoming CALEA Order from FCC tomorrow, Court fight on Friday

[Harold Feld]

Tomorrow, the FCC will adopt its Second Report and Order on the 
Communications Assitance to Law Enforcement Act (CALEA).  CALEA 
requires all providers of communications services to construct their 
networks in a way that allows law enforcement agencies to monitor 
individual converssations/messages (they still need a warrant, but 
you have to build the network in such a way that it is possible to 
perform the wiretap).

Last summer, the FCC issued an order applying CALEA to all providers 
of broadband access, on the grounds that broadband access constituted 
a "substantial replacement" of traditional phone services because it 
enabled communications in a way that allowed one to dispense with 
traditional phone services.

The legality of the FCC's First Order is pending before the DC 
Cir.  Media Access Project (my employer) has been "of counsel" to the 
Center for Democracy and Technology which, with a coalition of 
others, has challenged the authority of the FCC to apply CALEA to 
information services (as it classes broadband).  That case has been 
briefed on accelerated schedule and will be argued before a panel of 
the D.C. Cir. on Friday morning, May 5.

The legal challenge in court, however, does not stay the FCC's 
Order.  ISPs have 18 months from the release of the Order (last 
August) to become "CALEA compliant," which is a neat trick because no 
one knows what the heck that means until the FCC issues its Second Order.

The Second Order will address several issues left hanging in the 
First Order.  1) What does "CALEA compliant" mean? 2) Should certain 
classes of ISP be exempt from CALEA, or subject to a less burdensome 
"CALEA-lite" regime? and 3) Does CALEA apply to "private networks," 
networks that are designed primarily for internal intranet 
communication.  Further, if users of private networks can reach the 
internet, should responsibility for CALEA compliance fall on the 
private network operator or on the ISP selling the bachaul?

I have argued that community mesh networks constitute "private 
networks" within any rational meaning of the statute.  EDUCAUSE and 
other organizations representing institutions of higher education 
have made similar arguments with regard to campus-wide systems.  The 
Department of Justice has vigorously opposed exempting private 
networks or providing relief to any class of broadband access providers.

I will keep folks here apprised of what happens and what possible 
next steps the community (either collectively or as individuals) may 
wish to consider based on what happens this week.

Harold