The Implementation of the Communications Assistance for Law Enforcement Act
Audit Report 06-13
Office of the Inspector General
October 2, 1997
This notice of proposed rulemaking proposes and seeks comment on rules that the FCC should adopt to implement CALEA, and requested interested third parties to submit proposed rules to implement CALEA.
April 20, 1998
The purpose of this Public Notice was to solicit comments on six petitions:
September 10, 1998
The FCC grants a blanket extension for compliance with CALEA to June 30, 2000, based on the determination that compliance with the assistance capability requirements is not reasonable for telecommunications carriers because of the lack of equipment for meeting the requirements.
October 22, 1998
The FCC addresses deficiencies in industry-developed technical requirements for wireline, cellular, and broadband Personal Communications Services (PCS) carriers to comply with CALEA’s assistance capability requirements. The FCC is petitioned to establish the capability requirement by rule because of the differences between the industry’s interim standard and law enforcement’s punchlist. The FBI’s objections to the industry‑developed standards center on a list of technical capabilities that it contends are necessary to meet CALEA’s requirements, but that were not included in the industry interim standard. In this Further Notice of Proposed Rulemaking, the FCC tentatively concludes that six punchlist items are technical requirements that fall within the scope of terms defined under CALEA’s assistance capability requirements.
January 29, 1999
On October 10, 1997, the FCC releases an NPRM focusing on the specific responsibilities imposed upon the FCC to implement certain sections of CALEA. Since that time, the FCC has addressed two very significant CALEA implementation issues by granting a blanket extension of CALEA’s October 25, 1998, compliance deadline for all telecommunications carriers until June 30, 2000, and by initiating a Further NPRM to resolve the dispute regarding the industry’s interim standard. In this order, the FCC establishes the systems security and integrity regulations that telecommunications carriers must follow to comply with CALEA. The FCC concludes that telecommunications carriers must ensure that “any interception of communications or access to call-identifying information affected within its switching premises can be activated only in accordance with a court order or other lawful authorization and with the affirmative intervention of an individual officer or employee of the carrier.”
February 26, 1999
The FCC approves requests for confidential treatment of specific cost estimates filed by five telecommunications equipment manufacturers on December 14, 1998, in response to the Further NPRM. Manufacturers, Alcatel, Lucent, Motorola, Nortel Networks, and Siemens, previously had filed specific cost data with a request that the data be treated as confidential material.
In that Notice, the FCC strongly encourages commenters to provide it with information as detailed and specific as possible regarding the costs of adding a feature to a telecommunications carrier’s network and what, if any, impact such costs will have on residential ratepayers. Commenters are to consider the costs to manufacturers in developing the equipment or software needed to implement the technical requirement, as well as the cost to carriers to install and deploy such equipment. Commenters are to be specific as to which entities would incur the cost of adding particular features; e.g., manufacturers, local exchange carriers, interexchange carriers, or commercial mobile radio service providers. Commenters are also to be specific as to what costs would be incurred for hardware, as opposed to software upgrades to carriers’ networks, and whether some of these upgrades would have other uses in the networks. If costs are likely to be passed on to residential ratepayers, those costs are to be identified, as well as specific mechanisms that could be used to minimize such costs.
May 7, 1999
The FCC requests comment on aggregated revenue estimates prepared by the FCC from confidential carrier submissions for compliance with CALEA:
July 16, 1999
In the January 29, 1999, Report and Order, the FCC sets forth carrier recordkeeping requirements concerning interceptions, and establishes record retention periods of 10 years for call-identifying information and unauthorized interceptions, including the content of such interceptions, and a carrier-determined “reasonable” period for the call content of authorized interceptions.
After the release of the Order and prior to publication of the rules in the Federal Register, the FCC receives letters from CTIA and AirTouch stating that the new rules erroneously require carriers to retain records of call-identifying information and unauthorized interceptions, including the content of such interceptions, and also erroneously required carriers to retain records of content of authorized interceptions.
Subsequently, the FBI sends the FCC a letter supporting the position taken by CTIA and AirTouch on this issue, stating that those requirements are not mandated by CALEA, and that, in some respects, compliance with the requirements could cause a carrier to violate federal electronic surveillance laws since those laws do not require or entitle carriers to acquire and retain such information, but merely direct them, according to lawful court orders and other authorizations, to provide the technical assistance necessary to aid law enforcement in making intercepts.
Therefore, the FCC rules that carriers should not retain the content or call-identifying information of any intercepts and that carriers only need retain a certification of the intercept for a reasonable period of time, rather than for 10 years.
August 26, 1999
The FCC addresses the definition of “telecommunications carrier” set forth in Section 102 of CALEA that determined which entities and services are subject to the assistance capability and other requirements of CALEA. After considering the definition set forth in CALEA and the relevant legislative history, the FCC discusses how the definition applies to various types of service providers. Further, the FCC provides guidance regarding the factors it will consider in making determinations under Section 109 of CALEA. The guidance looks at whether compliance with CALEA’s assistance capability requirements is reasonably achievable for particular carriers, and the showings it expects entities to make when filing petitions under Section 109.
August 26, 1999
The FCC adopts technical requirements for wireline, cellular, and broadband Personal Communications Services (PCS) carriers to comply with CALEA’s assistance capability requirements. Specifically, the FCC requires that all capabilities of J- STD -025 (interim standard) and six of the nine punchlist capabilities requested by DOJ and the FBI be implemented by wireline, cellular, and broadband PCS carriers. While the FCC also requires that a packet-mode capability be implemented by such carriers, it does not adopt technical requirements for packet-mode communications, but permits packet-mode data to be delivered to law enforcement under the interim standard pending further study of packet-mode communications by the telecommunications industry.
June 30, 2000
The FCC requests public comments on petitions from carriers seeking deadline extensions for complying with CALEA. According to the Public Notice, most of the petitioners satisfy the requirements set out in the CALEA Public Notices for a preliminary determination that their circumstances warrant an extension of the compliance deadline. Accordingly, those petitioners are deemed to have an extension of the deadline for complying with CALEA Section 103 until March 31, 2001.
November 20, 2000
The FCC requests public comments on petitions from additional carriers, who were not covered by the June 30, 2000, Public Notice, seeking deadline extensions for complying with CALEA. According to the Public Notice, the petitioners satisfy the requirements set out in the CALEA Public Notices for a preliminary determination that their circumstances warrant an extension of the compliance deadline. Accordingly, the petitioners are deemed to have an extension of the deadline for complying with CALEA Section 103 until March 31, 2001.
February 22, 2001
The FCC requests public comments on petitions from more carriers seeking deadline extensions for complying with CALEA. According to this Public Notice, on November 20, 2000, preliminary extensions for complying with CALEA are granted to about 1,000 carriers until March 31, 2001.
In this Public Notice, the FCC finds that additional carriers have satisfied the requirements warranting an extension of the compliance deadline. The FCC concludes that a carrier’s participation in the FBI’s Flexible Deployment Initiatives enables the FCC to satisfy its statutory obligation to consult with the FBI, and assists the FCC in determining whether an extension is warranted and the length of any extensions of the compliance deadline. Therefore, the March 31, 2001 deadline is further extended until June 30, 2001.
March 15, 2001
Pursuant to a recommendation from the FBI and a letter in support filed by the CITA, the FCC extends the preliminary determination period for wireless carriers seeking extensions of the deadline for complying with CALEA from March 31, 2001, to September 30, 2001.
April 9, 2001
This Order resolves two petitions for reconsideration of the January 29, 1999, Report and Order and the August 26, 1999, Second Report and Order. The FCC declines to make most of the proposed changes, but does adopt minor changes to its CALEA rules regarding recordkeeping and points of contact.
May 31, 2001
The FCC requests public comments on more petitions from wireline carriers seeking deadline extensions for complying with CALEA. The FCC has previously granted extensions from March 31, 2001, to June 30, 2001, for these wireline carriers and the carriers requesting extensions in the Public Notices from November 20, 2000, and February 22, 2001.
June 22, 2001
The FCC requests public comments on wireline carriers’s petitions seeking extensions for complying with CALEA. The FCC has previously granted extensions from June 30, 2001, to September 30, 2001, for the wireline carriers requesting extensions in the Public Notices from November 20, 2001, February 22, 2001, and March 15, 2001.
August 14, 2001
Approximately 700 wireline carriers are granted extensions of the deadline for complying with the CALEA assistance capability requirements. The FCC finds that compliance with the assistance capability requirements is not reasonably achievable.
In January 2000, the FBI establishes a Flexible Deployment Initiative to assist telecommunications carriers in meeting certain requirements of CALEA. In its Flexible Deployment Assistance Guide, the FBI requests that carriers voluntarily submit certain information, and explains under what circumstances, based on a review of that information, the FBI might support a carrier’s petition for an extension filed with the FCC.
A carrier’s participation in the FBI’s Flexible Deployment Initiative enables the FCC to satisfy its statutory obligation to consult with the FBI, and assists the FCC, both in determining whether an extension of the compliance deadline and the length of any extension are warranted. Under the initiative’s procedures, the FBI, among other things, independently reviews each carrier’s extension request in light of the CALEA priorities of law enforcement agencies. If, after reviewing the information, the carrier and the FBI are able to arrive at a mutually agreeable CALEA deployment schedule, the FBI issues a letter of support stating whether the FBI supports an extension request and, if so, the length of such extension. Each carrier covered by this order participates in the FBI’s Flexible Deployment Initiative and receives a letter of support.
September 18, 2001
The FCC temporarily suspends the September 30, 2001, compliance date for wireline, cellular, and broadband PCS carriers to implement two punchlist electronic surveillance capabilities mandated by the Third Report and Order dated August 26, 1999. In that Order, the FCC required that wireline, cellular, and broadband PCS carriers implement all electronic surveillance capabilities of the industry interim standard, J- STD -025 – including two contested features of the interim standard, i.e., a packet-mode communications capability and a location information requirement – and six of nine additional capabilities requested by the FBI, known as the punchlist capabilities.
The FCC notes that the U.S. Court of Appeals for the District of Columbia Circuit has vacated and remanded four of the six punchlist capabilities because the FCC failed to explain its decision-making process in the Order. In addition, it states that there is broad agreement among industry and law enforcement to suspend the September 30, 2001, compliance deadline for two unchallenged punchlist capabilities, pending final action by the FCC on what punchlist capabilities will be required. The FCC agrees with the majority of commenters that retaining the deadline for two of the punchlist capabilities prior to determining the disposition of the four punchlist capabilities vacated by the court could result in major inefficiencies for carriers. The FCC states that it will establish a new compliance date for all required punchlist capabilities of no later than June 30, 2002.
The FCC also states that it found no need to extend the September 30, 2001, compliance deadline for packet-mode communications in a blanket manner. The FCC finds that implementation of this capability is unrelated to the implementation of the punchlist capabilities, and that only a small percentage of telecommunications carriers use packet-mode technology. Nonetheless, the FCC decides, due to the imminence of the September 30, 2001 deadline, to give carriers a brief period of time to upgrade their systems to incorporate the packet-mode capability or to avail themselves of established petition procedures for individual relief under Section 107 of CALEA.
September 27, 2001
This Order provides an extension of the deadline date, or the preliminary extension period, as applicable, to December 31, 2001, for the carriers listed in the August 14, 2001, Order to comply with the assistance capability requirements based on the FCC’s determination that compliance was not reasonably achievable through application of technology available.
September 28, 2001
This Public Notice provides an explanation of the petitioning process for carriers seeking an extension of the CALEA compliance deadline with respect to packet-mode communications by the November 19, 2001, deadline.
February 28, 2002
This Order provides an extension of the deadline date, or the preliminary extension period, as applicable, to March 31, 2002, for the carriers listed in the Appendices of the Order to comply with the assistance capability requirements. The FCC determines that compliance was not reasonably achievable through application of available technology.
April 5, 2002
The FCC responds to a decision issued by the U.S. Court of Appeals for the D.C. Circuit that vacated four punchlist electronic surveillance capabilities mandated by the Third Report and Order. The FCC determines that the four punchlist capabilities were authorized by CALEA and must be provided by wireline, cellular, and broadband PCS telecommunications carriers, along with the two non-disputed punchlist capabilities by June 30, 2002.
February 12, 2004
The FCC rules, based on a petition of Pulver.com, that Pulver.com’s Free World Dialup (FWD) (a broadband Internet service allowing worldwide users to communicate with one another through video or text), is an information service under CALEA, rather than a telecommunications carrier. Through FWD, Pulver offers users of broadband Internet access services the opportunity to join other such users in becoming members of the FWD community in order to communicate directly with one another over the Internet.
August 4, 2004
In response to DOJ’s Joint Petition, the FCC tentatively concludes that: (1) Congress intended the scope of CALEA’s definition of “telecommunications carrier” to be more inclusive than that of the Communications Act; (2) facilities-based providers of any type of broadband Internet access service, whether provided on a wholesale or retail basis, are subject to CALEA; (3) “managed” VoIP services are subject to CALEA; (4) the phrase in CALEA stating “a replacement for a substantial portion of the local telephone exchange service” calls for assessing the replacement of any portion of an individual subscriber’s functionality previously provided via “plain old telephone service;” and (5) call-identifying information in packet networks is “reasonably available” under CALEA if the information is accessible without “significantly modifying a network.” The FCC requests comments on: (1) the feasibility of carriers relying on a trusted third party to manage their CALEA obligations and to provide law enforcement agencies the electronic surveillance information they require in an acceptable format; and (2) whether standards for packet technologies are deficient and should not serve as safe harbors for complying with Section 103 capability requirements.
The FCC also proposes mechanisms to ensure that telecommunications carriers comply with CALEA by restricting the availability of compliance extensions under CALEA Section 107 and clarifying the scope of CALEA Section 109, which addressed the cost payments to carriers to comply with CALEA capability requirements.
The FCC also discusses whether, in addition to the enforcement remedies made through the courts that are available to law enforcement agencies under CALEA Section 108, the FCC may take separate enforcement action against carriers that fail to comply with CALEA. The FCC tentatively concludes that carriers are responsible for CALEA development and implementation costs for post-January 1, 1995, equipment and facilities; seeks comment on cost‑recovery issues for wireline, wireless and other carriers; and refers to the Federal‑State Separations Joint Board cost‑recovery issues for carriers subject to Title III of the Communications Act. In the Declaratory Ruling, the FCC clarifies that commercial wireless “push-to-talk” service continues to be subject to CALEA, regardless of the technologies that Commercial Mobile Radio Service providers choose to apply in offering them.
August 5, 2005
In response to the DOJ’s March 2004 Joint Petition, the FCC concludes that CALEA applies to facilities-based broadband Internet access providers and providers of interconnected VoIP service. The FCC will release another Order that addresses the assistance capabilities required of the providers covered by this Order, compliance extensions and exemptions, cost recovery, identification of future services and entities subject to CALEA, and enforcement. The FCC states that it is taking a two-step approach to focus debate on the implementation rather than the applicability of CALEA to providers of broadband Internet access services and VoIP services. By clarifying the applicability of CALEA to these providers now, the FCC can enable them to begin planning to incorporate CALEA compliance into their operations. This will also ensure that the appropriate parties become involved in ongoing discussions among the FCC, law enforcement, and telecommunications industry representatives to develop standards for CALEA capabilities and compliance.
In this Further Notice, the FCC seeks comment on two aspects of the conclusions it reached in the Order. First, with respect to interconnected VoIP, the FCC seeks comment on whether it should extend CALEA obligations to providers of other types of VoIP services. Second, some commenters argued that certain classes of facilities-based broadband Internet access providers – notably small and rural providers and providers of broadband networks for educational and research institutions – should be exempt from CALEA. The FCC does not reach conclusion in this Order on these issues because it believes that additional information is necessary. In this Further Notice, the FCC seeks comment on the appropriateness of requiring something less than full CALEA compliance for certain classes or categories of providers, as well as the best way to impose different compliance standards.
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