[CWN-Summit] Some old CALEA Business (or, Somedays, the bear gets you)

[Harold Feld]

Back when the FCC had its rulemaking on the Katrina Report, I filed 
on behalf of CUWIN and others a request that the Commission declare 
that ad hoc networks set up for disaster relief are not subject to 
CALEA.  Last week, the Commission issued its Report and Order, 
denying this request (but leaving the door open).

I append the relevant langauge below.

Harold
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1.                  CALEA Exemption for Temporary Ad Hoc 
Networks.  Champaign Urbana Wireless Network et al asks that the 
Commission clarify that volunteers who build ad hoc networks in 
response to an emergency need not comply with CALEA.  They state 
that, in response to Hurricane Katrina, volunteers created numerous 
wireless networks to provide needed Internet connectivity for Red 
Cross shelters and others in areas where Katrina destroyed or 
substantially degraded existing infrastructure.  On completing 
construction of these ad hoc networks, the volunteers turned these 
networks over to local operators and move on to help others.

2.                  Champaign Urbana et al states that many of these 
ad hoc networks remained in operation for months and may still remain 
in operation today.  They state that volunteers who generally did not 
maintain contact or provide any services for these networks once they 
turn them over to local operators.  They state that these volunteers 
are not telecommunications carriers to whom CALEA generally applies 
and that these volunteers do not provide these services for hire.  In 
addition, they state that these volunteers do not fall under the 
"substantial replacement provision" of the Act.

3.                  They request that the Commission establish a 
blanket waiver for ad hoc wireless networks created in response to a 
state of emergency; and that any liability that might arise for 
failure to comply with CALEA if the networks remain in operation 
after the emergency would not lie with those who created the network 
so long as they turned control over the network to others.  To the 
extent the Commission determines that these volunteers are subject to 
CALEA, Champaign Urbana et al requests that the Commission provide a 
general waiver pursuant to its authority to exempt any "class or 
category of telecommunications carrier."

4.                  We do not have sufficient information in the 
record to justify grant of a blanket waiver as Champaign Urbana 
suggests.  First it is not clear whether Champaign Urbana's request 
is for a blanket waiver of ad hoc temporary networks in all cases of 
emergencies, including those involving terrorist attacks.  If so, 
such a waiver could actually impede law enforcement and thus hinder 
the purposes of CALEA.  Moreover, we note that CALEA exemptions may 
only be granted after formal consultation with the U.S. Attorney 
General and that the Federal Bureau of Investigation (which formally 
has been designated by the Attorney General to handle CALEA 
obligations) has previously opposed granting blanket CALEA 
exemptions.  For these reasons, we decline to issue a blanket waiver 
for these types of networks.  Rather, we think the appropriate 
approach would be to review requests for exemptions of these types of 
networks (and the volunteers who construct them) on a case-by-case basis.
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