The Implementation of the Communications Assistance for Law Enforcement Act
Audit Report 06-13
Office of the Inspector General
This measure, in its original form, would have drastically altered CALEA by expanding the reimbursement pool of eligible equipment, facilities, and services by changing the January 1, 1995, cut-off date to October 1, 2000, and by defining “deployed” as “available anywhere in the telecommunications industry.” The legislation would have also extended reimbursement eligibility indefinitely for some equipment, facilities, and services by defining the term “significantly upgraded or otherwise undergoes major modification” so narrowly that many carriers would not perform modifications that qualify for years to come.
In April 1998, an amendment was proposed to the House Judiciary Committee to change certain aspects of CALEA. The amendment, very similar in language to H.R. 3321, was withdrawn following dialogue with the Chair of the House Judiciary Committee’s Subcommittee on Crime. According to the FBI, the dialogue led to the committee agreeing that they needed to do more than change CALEA dates. The committee agreed to a “comprehensive reform of CALEA.”
In June 1998, the Chairman of the House Judiciary Committee introduced an amendment to change the two dates specified in CALEA. The amendment was passed by the Full House of Representatives. As part of the Department of Justice’s Appropriations Authorization Bill, H.R. 3303 would have extended the October 25, 1998, capability compliance deadline to October 1, 2000. It would also have extended the January 1, 1995, financial demarcation date to October 1, 2000.
In July 1999, the House of Representatives passed H.R. 916. The bill would have drastically altered many of the provisions of CALEA under the guise that it was introduced to make technical amendments to Section 10 of Title 9 of the U.S. Code and “for other purposes.” H.R. 916 would have amended CALEA by adding separate definitions of the terms “installed” and “deployed” that incorporate the phrase “commercially available anywhere” with no consideration to whether a specific piece of equipment is in use and providing service. H.R. 916 also added a definition of the term “significantly upgraded or otherwise undergoes a major modification” to apply to a carrier’s entire network and not to specific pieces of equipment such as switches. H.R. 916 eliminated CALEA’s Section 107 (a)(3) in its entirety. Section 107(a)(3) is the only provision within CALEA that mandates industry comply with the obligations of CALEA “in the absence of technical standards.” Absent this provision, industry has no incentive to develop technical standards. H.R. 916 would have moved the reimbursement eligibility date from January 1, 1995, forward to June 30, 2000.
The overarching aim of S. 2281 was to significantly reduce the regulatory burden that may otherwise have been imposed on voice communications employing this technology. The bill preempted the states from regulating the service. Importantly, S. 2281 addressed law enforcement access to VoIP applications. However, the bill only mandated law enforcement’s access to information be “not less than that required of information service providers.” The bill also stated that information service providers are explicitly exempt from the requirements of CALEA, and therefore do not have any affirmative obligation to design into their services the capabilities law enforcement needs to conduct electronic surveillance. According to the FBI, with no inherent electronic surveillance capability, all levels of law enforcement would have been placed in the position of expending incalculable resources, or foregoing the use of electronic surveillance, in any investigation involving VoIP services.
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