CALEA Causing a Stir

While the Patriot Act has received extensive coverage in media, only a handful of articles in the past ten years have even mentioned the extensive additions and changes to the revamped Communications Assistance for Law Enforcement Act (CALEA) of 1994*. It's no wonder that these developments are largely ignored. Traditionally, public access been restricted. As well, the latest order, released by the FCC on September 23, 2005 is one of many complex, dense, if not convoluted documents by the executive, judicial and legislative branches that choreograph the complex laws aimed at achieving a *balance* of security and liberty in communications.

The latest release, called at once a "report", an "order", and "proposed rulemaking" by the FCC..."In the Matter of Communications Assistance for Law Enforcement Act and Broadband Access and Services", has no real authority, but does have a title that fits the ponderous and opaque nature of many of the documents. While these documents may be unwieldy their goals are intrusive and for this reason the thread is worth following as we continue to move all our personal and business interactions to the internet. Surveillance effects us all -- increasingly, all the time.

A more to the point title is used by one of the authors. In the appended statement, Commissioner Adelstein refers to the document as the "Broadband Reclassification Order". The New York Times article importantly focuses on the interpreted end affect of this order, which brazenly proposes widening the scope of the CALEA to include providers of VoIP and broadband providers and by extension, higher education institutions, K-12 schools, libraries, research organizations and service providers of interconnected Voice over Internet Protocol (VoIP).

September 11th and CALEA

CALEA ostensibly aims to; "preserve the ability of law enforcement agencies to conduct electronic surveillance", because "emerging technologies such as digital and wireless communications were making it increasingly difficult for law enforcememnt agencies to execute authorized surveillance." Naturally this has always been a contentious premise:

"The DOJ and other [Law Enforcement Agencies] LEAs argued that service providers are not providing capabilities, and evidence is being lost. On the other side, many carriers and services providers vehemently disputed these allegations in their comments."

Although CALEA is not new, the rhetoric of CALEA, along with the Patriot Act and many other measures now rotely summons *September 11, 2001* and asks us to trust that the actions are temporary, benevolent, for our own good. We are typically exhorted that September 11th revealed a ruthless shadowy enemy:

"There are people here in this world who still want to hurt us. See, they can't stand America. They can't stand us because we love certain things and we're not going to change. We love our freedom. We love the fact that we can worship freely any way we see fit. We love the fact that we can speak our minds freely. We love our free political process. We love every aspect of freedom and we refuse to change. These terrorists will not be stopped by their own conscience; they don't have a conscience."

But, as reasonable Freedom -Loving People, we WILL comply:

"We will come together to give law enforcement the additional tools it needs to track down terror here at home. (Applause.) We will come together to strengthen our intelligence capabilities to know the plans of terrorists before they act, and find them before they strike. (Applause.)"

The bald-faced truth is that the executive branch has been trying to wrest greater power for wiretapping and surveillance for decades. In the aftermath of September 11, 2001, many agencies grabbed for power, including the FCC. Newly appointed Commissioner Copp, after proclaiming that he wanted to turn somersaults on stage on October 15, 2001, stated that:

"If September 11 was about anything other than evil, it was about communications...The events of September 11 will move such public policy and regulatory questions front-and-center. The Commission needs to be there."

These FCC proposals certainly are not necessitated by September 11th. One would expect that such assertions are a flight of fancy of someone with oddly timed overexuberance, easily reigned in. But, as this FCC proposal for ALL conceivable "internet providers" to accomodate broad access by the Department of Justice and the FBI, we find ourselves waiting for some checks.

Expanded Power For the FBI and Law Enforcement

Tussles between branches are common - expected even, so it's no shock that the FBI has routinely attempted to usurp congressional checks to preserve civil liberties in the pursuit of more law enforcement rights. Eight years ago, in April, 1997, the Center for Democracy and Technology (CDT) along with telephone and communications associations, wrote in response to an "FBI Implementation Plan":

"CALEA was never intended to serve as an FBI surveillance 'wish list.' Both House and Senate reports on CALEA stressed that the requirements should be narrowly interpreted...However, law enforcement has attempted to broadly interpret the requirements of CALEA to mandate a nationwide surveillance capability in excess of traditional interception practices."

The FBI was thus focused on getting more surveillance power before September 11th. The FBI also used the idea that there were legal "walls" impeding their ability to do their job after 9-11. But we are reminded that this is the same FBI that had trouble keeping track its own agent's communications regarding potential terrorists - recall the infamous "Phoenix Memo", and whose former acting director (2001) Thomas Pickard stated about e-mail technology:

"my secretary used to kid me about it because she'd print it out each night and say, 'Here's your homework, do it tonight and bring it back tomorrow morning,' because I don't type."

By some accounts, the FBI is still floundering with basic technology that is "hopelessly out of date", the fact that the "walls" invoked as a defense against ineptitude have been removed with the Patriot Act and other Congressional measures.

Brand-X and CALEA - Reclassification- Executive/Judicial Collaboration?

We imagine that the balance of power is artfully wrought by congress, the judiciary and executive branches to attain the desired mix of federal oversight, regulation and freedom to use and innovate internet technologies. However recent actions around CALEA are more consistent with a carefully choreographed collaboration between branches. The executive branch is drafting apparently influential orders such as the one that universities are currently grappling with with a nod from the judiciary. The orders dictate technology upgrades that enable the government to have unfettered access to networks, then propose that the public finance them.

The history that led to this juncture is interesting- we'll skip much of it but pick up the thread with the Brand X case. There was ample media coverage of the case and the final Supreme Court decision to overturn the Ninth Circuit Court's ruling for Brand X. The Ninth Circuit Court decision in effect enabled the company to use incumbant companies' cable networks under Title II of the Telecommunications Act of 1996. The decision revolved around the definition of Brand X as a "telecommunications service", which made it subject to federal deregulation under Title II.

The Supreme Court overuled the Ninth Circuit Court decision and wrote that cable provided internet was an "information service", therefore would not fall under Title II purview but under the federally regulated Title I section of the Telecommunications Act. The ruling concerned consumer action groups who feared that since cable companies couldn't be forced by law to open their networks to smaller companies under deregulation, prices would rise. As well, they feared cable companies could then closely control what was available to subscribers. So although the case was covered fairly extensively it was inevitably reduced by the media to a monopoly or consumer issue of affordable internet access. However there were larger concerns for those following the industry closely. Some anticipated over a year ago that the reclassification could affect law enforcement regulation. TechlawJournal responded to the March 10, 2004 DOJ "Petition for Rulemaking", writing that DOJ had been working on attaining the reclassification for years:

...on April 15, 2002, the DOJ's FBI submitted a comment...in the wireline broadband proceeding...in which it argued that the FCC should require in its rules that the CALEA applies to "DSL and other forms of wireline broadband Internet access". Also, on June 17, 2002, the FBI submitted a comment...in the cable broadband proceeding...in which it argued that the FCC should require in its rules that the CALEA applies to "cable modem service".

Overwhelmingly, the public and media missed the implications of the Brand X, although LawTechJournal.com noted not only the connection, but the fact that the connection was being underplayed in lead up documents to the September 23, 2005 order. It was also apparently obvious to FCC Commissioner Adelstein who wrote in the appendix of the September 23rd "Broadband Reclassification Order": "In the wake of the Supreme Court decision, however, this reclassification was inevitable." Commissioner Adelstein also weighs in with her opinion of the FCC's conclusions after the Supreme Court's Brand X ruling and the implications of the reclassification:

"We undertake these proceedings against the backdrop of the Brand X decision [by] the Supreme Court". By "reclassifying broadband service outside of the existing Title II framework" [we move] "away from some of the core legal protections and grounding afforded by Congress."

The Commissioner is not without reservations for both current and past actions: "It remains unclear whether the approach we have taken thus far has been a success." But asks:

"Although we adopt this new regulatory approach with the blessing of the Supreme Court, many of the implications for consumers are largely yet undefined. To some degree, we as consumers to take a leap of faith based on our predictive judgement..."

I'm not sure all consumers are keen on taking more leaps of faith. In Congress the apparent justicial/executive effort has attracted attention. On September, 2004 Senator Pickering (R-S), questioned the relationship between the DOJ and the FCC on the outcome of the Brand X case:

"He suggested at a hearing held by the Subcommittee on Telecommunications and the Internet on September 8 that the DOJ leveraged its power in the Supreme Court certiorari process to obtain from the FCC the [Notice of Proposed Rule Making and Order] NPRM pertaining to CALEA. In this arrangement, the DOJ got the CALEA interpretation and rule making proceeding that it wanted, while the FCC majority got the petition for writ of certiorari in the Brand X case that it wanted..."

"A witness from the Federal Bureau of Investigation (FBI) denied at the hearing that there was a quid pro quo."

There is more comprehensive information available in the links above and here: TechLawJournal.com, at Educause, and at CDT, Electronic Frontier Foundation, FCC. Senator Leahy's ongoing issues with technology and management at the FBI are here. The site "ASK CALEA", pertains to the law, whereas The CALEA site at www.calea.org is a association of law enforcement associations, which is not connected to the ACT, but will also welcome you - "GOOD MORNING!" - flags waving, links blinking, and tickers marching around the page. You can learn about their rulings, comment, become a CALEA assessor, or buy a coffee mug.

*[Note: The original version of this essay incorrectly identified CALEA with the website www.calea.org, which is an organization that is not associated with the Communications Assistance for Law Enforcement Act of 1994 associated with the www.askcalea.net website.]