TPRC-2004- 5255
DRAFT: PLEASE DO NOT QUOTE OR
CITE
WITHOUT AUTHOR’S PERMISSION
by
Associate Professor of Law
Salmon P. Chase
Northern
(859) 572-5861 office
(513) 271-3846 home
&
Jessica Marie Matthews
Working Council for Chief
Information Officers
The Corporate Executive Board
(202) 777-5364 phone
MatthewsJ@executiveboard.com
To be presented at
The 32d Research Conference on Communication, Information and Internet Policy (TPRC2004)
Session on “The Effects of
VoIP”
Sunday, October 3, 2004
8:30 a.m. – 10:10 a.m.
INTRODUCTION AND SUMMARY
In
1968, Congress empowered judges to issue “wiretapping warrants” which authorize
governmental eavesdropping on private telephone conversations, in instances
where such eavesdropping is necessary to investigate certain serious
crimes. Omnibus Crime Control and Safe
Streets Act of 1968, Title III, Pub. L. No. 90-351, Title III, 82 Stat. 212
(1968). In 1986, Congress further authorized
interception of emails, faxes, cellular telephone calls, and pages, none of
which were covered by the 1968 statute. Electronic
Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986).
Although
the 1968 statute did not specify whether telecommunications carriers were
required to assist the government in intercepting covered communications,
Congress in 1970 provided that telecommunications carriers must furnish the
government with “all information, facilities, and technical assistance
necessary to accomplish [an authorized] interception
unobtrusively. . . .” Pub.
L. No. 91-644, 84 Stat. 1880 (1970), codified at18 U.S.C.
§ 2518(4). In the Communications
Assistance for Law Enforcement Act of 1994, Pub. L. No. 103-414, 108 Stat. 4279
(1994) (“CALEA”), Congress additionally required telecommunications carriers
and service providers to keep law enforcement's electronic surveillance needs
in mind when designing new communications systems. 47 U.S.C. § 1002.
When
it enacted CALEA in 1994, Congress primarily sought to ensure that the
government’s ability to conduct electronic surveillance would not be impaired
as telecommunications carriers began to replace analog telephone networks with
digital infrastructure, particularly fiber optic technology and wireless
digital PCS telephony. In so doing,
Congress did not want to stifle technological innovation, especially within the
then-emerging information services sector.
Accordingly, CALEA’s requirements apply only to “telecommunications
carriers.” In contrast, entities that
are not “telecommunications carriers” are not subject to CALEA unless: (1) they
provide sufficient electronic communication switching or transmission services
to effectively replace a substantial portion of the local telephone exchange
service; and (2) the public interest would be served by subjecting them to CALEA.
In
the late 1990s, a new software protocol called Voice over Internet Protocol
(VoIP) made it possible for voice telephone calls to be transmitted entirely
via the Internet, without traveling at any time through the Public Switched
Telephone Network (PSTN). VoIP calls
employ a “packet-mode technology” in which a single piece of information (such
as a spoken word) is divided into millions of tiny packets that are transmitted
separately from one another, then recompiled at the other end.
To
date, CALEA’s requirements have not been applied to VoIP service
providers. Moreover, on February 12,
2004, the FCC formally classified VoIP service as an information service for
most purposes, thereby generally exempting VoIP service providers from regulation
as telecommunications carriers under the Communications Act. In response to this FCC ruling, in March
2004, the Department of Justice and the FBI jointly petitioned the FCC to
characterize VoIP service providers as “telecommunications carriers” for CALEA
purposes only. See RM-10865
(filed March 10, 2004), <http://www.askcalea.com/docs/20040310.calea.jper.pdf>. In August 2004, the FCC issued a Notice of Proposed Rulemaking to solicit
public comment on the DOJ/FBI petition. In
re Communications Assistance for Law Enforcement Act and Broadband Access and
Services, Notice of Proposed
Rulemaking and Declaratory Ruling, FCC 04-187, ET Docket No. 04-295 (rel.
Aug. 9, 2004). In that Notice, the FCC tentatively concluded that CALEA should be applied to all facilities-based providers of any
type of broadband Internet access service—including wireline, cable modem,
satellite, wireless, and powerline—and also to managed or mediated VoIP
services. The FCC’s tentative conclusion
to apply CALEA requirements to VoIP service is predicated on the Commission’s
tentative characterization of VoIP services as “a replacement for a substantial
portion of the local telephone exchange service.” While every FCC Commissioner voted tentatively
in favor of applying CALEA requirements to VoIP service, three of the five
Commissioners individually expressed concerns that the text and legislative
history of CALEA might preclude the Commission from subjecting VoIP services to
CALEA while simultaneously characterizing such services as “information
services” for other purposes. See id.
(Separate Statement of Comm’r Abernathy) (“While the text and legislative
history of CALEA make clear that the march of technological progress should not
hamper law enforcement’s ability to conduct lawful wiretaps, the statute also
explicitly exempts information services from its reach. The Commission has proposed a means of
resolving this tension, but it remains to be seen whether our attempts to do so
would pass judicial muster.”); accord id. (Separate Statement of Comm’r
Copps); id. (Separate Statement of Comm’r Adelstein).
In
this paper, we closely review the legislative history of CALEA, to attempt to
determine whether the 103d Congress, which enacted CALEA in 1994, would have
intended for VoIP service providers to be classified as “telecommunications
carriers” under CALEA. We tentatively
conclude that the 103d Congress would have intended to provide law enforcement
with the capability to eavesdrop on VoIP voice calls if such capability could
be provided without unduly stifling technological innovation. However, because the public interest would
not be served by preventing VoIP service from being deployed in the
PRE-CALEA
LEGAL BACKGROUND
In
Olmstead v. United States, 277 U.S. 438 (1928), the U.S. Supreme Court
first examined the constitutional status of telephone wiretapping[1] by
law enforcement agents. Over vigorous
dissents by Justices Brandeis and Holmes, the
Four
decades later, the Supreme Court overruled Olmstead, essentially
adopting the reasoning of Justice Brandeis's dissent. Katz v.
Congress
responded quickly to the Katz decision by enacting Title III of the
Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"),
authorizing judges to issue warrants for electronic surveillance in certain
situations. Pub. L. No.
90-351 (1968). This Act outlawed the use of electronic
surveillance by private parties, while simultaneously authorizing its use pursuant
to a court order by law enforcement officials engaged in the investigation of
specified types of major crimes. The
Senate Judiciary Committee Report on Title III stated explicitly that the
legislation had "as its dual purpose (1) protecting the privacy of wire
and oral communications and (2) delineating on a uniform basis the
circumstances and conditions under which the interception of wire and oral
communications may be authorized."
S. Rep. No. 1097, 90th Cong., 2d Sess. 66 (1968).
Title
III, as enacted, did not specify whether telecommunications carriers were
required to assist law enforcement agents with authorized eavesdropping. Shortly after the statute became effective,
the Central Telephone Company of
An order authorizing the
interception of a wire, oral, or electronic communication under this chapter
shall, upon request of the applicant, direct that a provider of wire or
electronic communication service, landlord, custodian or other person shall
furnish the applicant forthwith all information, facilities, and technical
assistance necessary to accomplish the interception unobtrusively and with a minimum
of interference with the services that such service provider, landlord
custodian, or person is according the person whose communications are to be
intercepted. Any provider of wire or electronic communication service,
landlord, custodian or other person furnishing such facilities or technical
assistance shall be compensated therefor by the applicant for reasonable
expenses incurred in providing such facilities or assistance.
18 U.S.C. § 2518(4) (1988).
The
Supreme Court has read this provision as requiring the federal courts to
compel, upon request of the government, "any assistance necessary to
accomplish an electronic interception."
As
telecommunications technology evolved, Congress continued to adjust Title III's
balance between privacy and law enforcement.
In the Electronic Communications Privacy Act of 1986 ("ECPA"),
Pub.
L. No. 99-508, 100 Stat. 1848 (1986), Congress
extended law enforcement’s intercept authority to a new set of technologies,
including electronic mail, cellular telephones and paging devices. The House Committee on the Judiciary stated
that ECPA's goal was to preserve "a fair balance between the privacy
expectations of citizens and the legitimate needs of law enforcement." H.R. Rep. No. 647, 99th Cong., 2d Sess., pt.
2, at 19 (1986).
After
1986, the pace of change in technology continued to accelerate. Cellular telephony, online information services,
and other wireless services operating in both analog and digital transmission
modes experienced explosive growth in the 1980s and early 1990s. H.R. Rep. No. 827, 103d Cong., 2d Sess., pt.
1, at 12 (1994). At the same time,
popular consumer-oriented amenities such as "call forwarding" began
to present unanticipated technical impediments to authorized wiretaps.
EARLY
CONGRESSIONAL HEARINGS ON CALEA PREDECESSOR BILLS
In
1990, Senator Patrick Leahy (D-VT), then-Chairman of the Senate Judiciary
Subcommittee on Technology and the Law, assembled a Privacy and Technology Task
Force with representatives from business, consumer advocacy, the law, and civil
liberties, to examine current developments in communications technology and the
extent to which the law in general, and ECPA, specifically, protected, or
failed adequately to protect, personal and corporate privacy. H.R. Rep. No.
827, 103d Cong., 2d Sess., pt. 1, at 12 (1994).
After
examining a wide array of communication media, including cellular phones,
personal communications networks, the newer generation of cordless phones,
wireless modems, wireless local area networks (LANs), and electronic mail and
messaging, the Task Force issued a Final Report on May 28, 1991, recommending
that ECPA be extended to cover new wireless data communications, such as those
occurring over cellular laptop computers, LANs, and cordless phones.
On
March 3, 1992, the FBI attempted to spark such legislative attention, by
introducing draft legislation which it claimed would preserve that
balance. Sharon LaFraniere, FBI Asks
Wiretap Access to Digital Phone Systems,
"Digital
telephony" is difficult for FBI agents to wiretap because it translates
voices into computerized blips, then retranslates them into voices at the other
end." John Mintz, FBI, Phone
Firms in Tiff Over Turning on the Taps:
Technology Has Made Eavesdropping Harder,
At
the same March 6, 1992 news conference, FBI engineering chief James Kallstrom
claimed that the draft legislation would require phone companies to do "a
small amount of re-engineering" of existing phone systems, but would
"mainly mandate redesigns of networks not yet built." Sharon LaFraniere, FBI Asks Wiretap Access
to Digital Phone Systems,
Privacy
advocates including the American Civil Liberties Union (ACLU) were quick to
express disapproval of the proposal.
"It's incredible and outrageous that the government would propose
it has the right to force private companies to conduct their business in a way
that's less efficient and more expensive in order to facilitate government
surveillance. And the final notion that
we the ratepayers should end up paying for this is totally outrageous,"
commented Morton Halperin, director of the ACLU's
The
FBI initially proposed its legislation to the Congressional Communications
Committees. Marc Rotenberg, a
Without
renting RFK Stadium, the House Judiciary Subcommittee on Civil and
Constitutional Rights held its annual Hearings on FBI Oversight and
Authorization on March 18, 1992.
Although these budget Hearings were not supposed to be dedicated
to discussion of the FBI's recent wiretapping proposal, FBI Director William S.
Sessions, in his opening statement before the Subcommittee, characterized
"digital telephony" as "one of the most pressing Federal
legislative initiatives for the FBI, and probably for all of law
enforcement." FBI Oversight and
Authorization, Fiscal Year 1993: Hearings Before the Subcomm. on Civil and
Constitutional Rights of the House Comm. on the Judiciary, 102d Cong., 2d
Sess. 6 (1992). Director Sessions
entered into the record of the hearings a draft of Attorney General William P.
Barr's proposed amendments to the Communications Act of 1934.
Sessions
characterized the effect of the proposed legislation as "effectively
allow[ing] us to stay even with where we are; that is, to have the same access
that was given to use by the Title III enactment in Congress in 1968."
Some
members of Congress scoffed openly at the FBI's priorities. One member announced her disappointment
"that you're more into how can we wiretap better and please don't let them
put [in] new equipment because we won't be able to wiretap as well" than
"into" combating gangs, guns, or violence against women.
Rep.
Kopetski also expressed concern that the telecommunications industry not be
hindered in the development and deployment of new technologies. He observed that the proposed legislation
would tell a "legally responsible corporation that is trying to design an
airtight [internal communications] system . . . that now we want you to create
an exception for the FBI and, trust us, nobody else will be able to break into
that airtight system.
The
Director conceded Congressman Kopetski's point, saying:
I'll give you the ground; that could
happen. Obviously, that could
happen. Technologies can be stolen and
are stolen. Capabilities are misapplied. There are people who use the wiretap
capability . . . now to do criminal things, and we all know that, but the
access of law enforcement and of the intelligence community to this type of
information is just absolutely essential.
We cannot carry out our responsibility without it.
The
Subcommittee Chairman expressed incredulity at the Director's testimony about
the scope of the proposed legislation. Chairman Edwards asked Director Sessions
if "you're going to require that all the telephone manufacturers are to
really take instructions from the FBI as to how they're going to manufacture
their telephones in order to protect this technique that you have
today?"
Director
Sessions conceded that there were "no specific cases where we have been
rejected," but maintained that "when we come down to digital
telephony, we are talking about access to an absolutely new technological piece
of equipment. . . . I am not sure that
they will provide that access or can now provide that access until the
technology is developed to give that access."
The
issue of cost also came up at the March 18, 1992 hearing. Congressman Kopetski asked Director Sessions:
"What is the social policy reason of why we should impose this cost on
business? Why should they pay and not
the taxpayer?"
Immediately
after the hearings, FBI Director Sessions took his case to the public, arguing
that:
Wiretapping is one of the most
effective means of combating drug trafficking, organized crime, kidnapping and
corruption in government. The FBI does not want the new digital technology that
is spreading across
Indisputably, there will be
financial costs associated with whatever technical solutions the private sector
might develop. These costs cannot be measured only in dollars; consider the
price society would pay if the ability to solve complex crimes were thwarted by
an end to wiretapping.
William S. Sessions, High-Tech
Wiretaps Keeping an Ear on Crime; The
FBI Needs Industry's Help, N.Y. Times, Mar. 27, 1992, at A35; accord
William S. Sessions, FBI Doesn't Seek To Impede Technology, N.Y. Times,
Apr. 26, 1992, at Sec. 4, p. 18.
On
April 29, 1992, Sessions returned to Congress, to testify about foreign
espionage against American companies before a panel of members of the House
Judiciary Committee. Keith Bradsher,
At
the hearing, House Democrats accused the Administration, by insisting on the
ability to eavesdrop, of delaying the installation of advanced equipment
necessary to reduce costs for industry, prevent the loss of trade secrets, and
preserve American competitiveness.
By
this time, telephone companies, including NYNEX Corp. and AT&T, had joined
the ACLU in opposing the FBI's proposal, which they saw as an expensive
obstacle to deploying the most advanced, cost-saving technologies
available.
As
of September, 1992, the FBI had not yet found a Congressional Sponsor for its
proposal, which it had named the "Digital Telephony and Interception
Act." Users, Vendors Unite in
Blasting FBI Wiretap Plan, Network World, Sept. 21, 1992, at 1. Further, by that time, telephone companies
and associations including AT&T, the Cellular Telecommunications Industry
Association, the Telecommunications Industry Association, and the United States
Telephone Association, circulated a report to key Members of Congress, alleging
that the Bush Administration's proposals would "demand costly and
time-consuming equipment modifications that could keep the companies from
competing equally in global telecom equipment markets." Industry Study Says FBI, Justice Dept.
Seek Extensive Wiretap Modifications,
Faced
with such unified opposition from the telecommunications industry, and with the
upcoming 1992 elections, Congress decided not to take up the issue of the
Digital Telephony and Interception Act until the new Congress was seated in
January, 1993. Congress Puts FBI on
Hold until 1993, Telephone Engineer & Mgmt., Oct. 15, 1992, at 14. Consequently, the House and Senate Judiciary
Committees cancelled plans to hold a joint hearing on the bill.
On
the 103d Congress's Inauguration Day, the FBI's still-unsponsored proposal
received another blow, when documents prepared by the General Services
Administration (GSA) in May, 1992, detailing "unusually sharp
criticism" of the proposed wiretapping legislation, were released to the
public.[6] Anthony Ramirez, F.B.I.'s Proposal on
Wiretaps Criticized by Federal Agency, N.Y. Times, Jan. 15, 1993, at
A12. In the documents, the GSA said the
proposed legislation could hurt the nation's competitiveness in "the
international trade arena" and could pose a danger to national security.
The
FBI responded to the release by calling it "ill informed and out of
date."
THE
ENACTMENT OF CALEA
Special
Agent Smith's prediction proved overly optimistic, from the FBI's
perspective. A full year passed before
the wiretapping proposal was mentioned again on the floor of Congress or in any
major newspaper. Finally, on February
11, 1994, unidentified "Clinton Administration officials" told the New
York Times that "the White House is pressing for legislation to force
telephone and cable television companies to install computer software on their
networks that would enable law enforcement agencies to eavesdrop on phone calls
and computer transmissions." Edmund
L. Andrews,
The
officials characterized the new bill as "a revised version of legislation
proposed two years ago by the Bush Administration but never introduced in
Congress, . . . narrower than the Bush Administration measure."
The
Times elaborated on only one difference between the "focused"
Within
a month, a coalition including AT&T, MCI, Apple Computer Inc., Microsoft,
the Electronic Frontier Foundation, the United States Telephone Association,
and the ACLU, had written letters to President Clinton and new FBI Director
Louis Freeh protesting the new wiretapping legislation, now called the
"Digital Telephony Act." John
Schwartz, Industry Fights Wiretap Proposal; Group Says
Transactional data will reveal far
more about individuals than it has in the past.
In fact, in some cases it may be equivalent to content information. This transactional data certainly could make
it possible to build a detailed model of an individual's behavior and
movements. The result could be Orwellian
in its implications: government dictating to industry that it create a surveillance-based
system that will allow federal, state and local government to use a carrier's
electronic communications facilities to conduct minute-by-minute surveillance
of individuals.
By
this time, the United States Telephone Association (USTA), which represents
local telephone companies ranging in size from the regional Bell Operating
Companies to small companies with fewer than 100 subscribers, had doubled since
1992 its estimate of the cost of wiretapping legislation. Mary Lu Carnevale, FBI Wants Law Requiring
That Calls Can Be Tapped; Industry Resists Measure, Wall St. J., Mar. 18,
1994, at A5. According to USTA
President--and former Deputy Chief of Staff to President Clinton--Roy Neel, the
legislation now carried a price tag that could top $2 billion.
On
March 18, 1994, largely at the urging of the Clinton Administration and without
any legislation having yet been introduced, a joint hearing of the Senate
Judiciary Subcommittee on Technology and the Law and the House Judiciary
Subcommittee on Civil and Constitutional Rights was held to discuss the newly
rechristened "Digital Telephony and Communications Privacy Improvement Act
of 1994." Jon Healey, Clinton
Pushes Clipper Chip Over Industry Objections, 1994 Cong. Q. Wkly. Rep. 796,
797; see also Communications and Computer Surveillance, Privacy and
Security: Hearing Before the Subcomm. on Technology, Environment and Aviation
of the House Comm. on Science, Space, and Technology, 103d Cong., 2d Sess.
173-199 (1994) (containing full text and section-by-section analysis of the
Act). The hearing was presided over by
Sen. Patrick J. Leahy (D-VT) and Rep. Don Edwards (D-CA), who had just
announced that he would not seek re-election in November, 1994.
At
the hearing, FBI Director Freeh testified that the FBI had identified specific
instances in which law enforcement agencies were precluded due to technological
impediments from fully implementing authorized electronic surveillance
(wiretaps, pen registers and trap and traces).
In
his testimony, Neel, for the first time, introduced the USTA's four-part
"backup" position regarding what legislation would be acceptable to
USTA should there be legislation. Police Access to Advanced Communications
Systems: Joint Hearings Before the Subcomm. on Technology and the Law of the
Senate Comm. on the Judiciary and the Subcomm. on Civil and Constitutional
Rights of the House Comm. on the Judiciary, 103d Cong., 2d Sess., 1994 WL
223906, at 4-9 (Mar. 18, 1994) (testimony of Roy Neel, President, USTA)
(unpublished). According to Neel, the
following four principles should be included in any wiretapping legislation: (1) All communications providers and
networks should be required to assist the law enforcement community efforts to
conduct lawful electronic surveillance, id. at 4; (2) Public confidence
in the public network must be maintained, id. at 6; (3) Rate payers
should not be required to pay for law enforcement's upgrades, id. at 7;
and (4) The information age cannot be delayed.
While
Rep. Edwards did not deliver a statement at the hearings, Sen. Leahy said he
would oppose letting the government dictate an outdated telecommunications
policy. Jon Healey,
Finally,
on August 9, 1994, following "four months of often-intense negotiations
with law enforcement officials, industry representatives and civil liberties
activists," a new "digital telephony" bill was introduced
simultaneously in the Senate by Sen. Leahy (S. 2375), and in the House by Rep.
Edwards (H.R. 4922). John Schwartz, Wiretap
Bill Compromise is Reached, Wash. Post, Aug. 9, 1994, at D1. Although the FBI had lobbied for an
electronic wiretapping bill continuously for three years, the August 9 bill was
credited to "a frenzy of last-minute consultations, spurred by White House
and FBI pressure to move the bill to Congress," which "resulted in
agreements between the FBI, telephone companies, and civil
libertarians." Sabra Chartrand, Wiretap
Access Bill is Ready, N.Y. Times, Aug. 9, 1994, at D1. The legislation apparently was drafted by
Beryl Howell, a former prosecutor in the
The
principal bargain struck with the telephone industry involved the issue of cost. Under the August 9, 1994
"compromise" bill, the federal government allocated $500 million in
short-term federal money to help communications companies pay for the
development and installation of the necessary software.
The
compromise bill also exempted commercial computer network services such as
America Online and Compuserve (which had not yet, in 1994, transformed into
Internet Service Providers), and conventional cable TV, from having to provide
special access to law enforcement agents.
Sabra Chartrand, Wiretap Access Bill is Ready, N.Y. Times, Aug.
9, 1994, at D1. Rather, surveillance was
confined to public communications networks, excluding private corporate
telephone and computer networks.
Other
bargains struck by privacy advocates included a provision making it a crime to
intentionally intercept calls made on cordless telephones, and another forbidding
phone companies from revealing a caller's location to police without a court
order. Jon Healey, Bills Would Ensure
Wiretap Access, 1994 Cong. Q. Wkly. Rep. 2330 (1994). The bill sharply limited, but did not
eliminate, the ability of law enforcement to gather information about credit
card and banking transactions, political preferences, social contacts, what
movies people have watched, and the like, from electronic databases. Sabra Chartrand, Wiretap Access Bill is
Ready, N.Y. Times, Aug. 9, 1994, at D1.
Rep. Edwards predicted that the legislation would
move quickly through the House and Senate after the Labor Day recess because
much negotiation and deal-making had already taken place.
At
the August 11, 1994 hearings, FBI Director Freeh, USTA President Neel, and EFF
Executive Director Berman each appeared again to present testimony. H.R. Rep. No. 827, 103d Cong., 2d Sess., pt.
1, at 10 (1994). Also appearing as
witnesses were Hazel Edwards, Director, Information Resources
Management/General Government, Accounting and Information Management Division,
U.S. General Accounting Office (GAO); and Thomas E. Wheeler, President and CEO
of the Cellular Telecommunications Industry Association (CTIA), which
represents providers of two-way wireless telecommunications services, including
licensed cellular, personal communications services, and enhanced specialized
mobile radio.
The
August 11 hearings focused primarily on whether the $500 million through 1998
in federal money offered by H.R. 4922 and S. 2375 was sufficient to pay the
cost of the software necessary to implement the FBI's wiretapping scheme. Sabra Chartrand, More Subsidies Sought to
Pay for Wiretap Plan, N.Y. Times, Aug. 12, 1994, at D2. Roy Neel testified that it was "severely
underestimated."
Hazel
Edwards, the GAO's information resources management director, testified that
"it is virtually impossible to determine if $500 million is adequate
because the cost depends on evolving capacity requirements as well as yet to be
determined technological requirements."
Sabra Chartrand, More Subsidies Sought to Pay for Wiretap Plan,
N.Y. Times, Aug. 12, 1994, at D2. When
pressed, the government expert estimated the costs as ranging "from $100
million into the billions."
On
August 17, 1994, after a brief debate, the House Judiciary Subcommittee on
Civil and Constitutional Rights, by voice vote, ordered bill H.R. 4922 to be
favorably reported without amendment. Jon Healey, Wiretap Access Bill
Advances As Funding Qualms Sidelined, 1994 Cong. Q. Wkly. Rep. 2444. Chairman Edwards called "what to do
about the long-term costs" the biggest unresolved issue, and promised to
address that issue before the bill reached the full Judiciary Committee.
Rep.
Edwards received some help in this area from Sen. Leahy's Senate Judiciary
Subcommittee on Technology and the Law.
On September 23, 1994, the Senate Subcommittee approved S. 2375, with
"an amendment in the nature of a substitute." S. Rep. No. 402, 103d Cong., 2d Sess. 11
(1994). The amendment "largely
spell[ed] out that phone companies [wouldn't] be forced to pay to modify their
existing networks to comply with the measure." Mary Lu Carnevale, Bill Would Ensure Law
Enforcement Is Able To Tap Wires, Wall St. J., Sept. 30, 1994, at B5. Under the amendment, law-enforcement
authorities could no longer force phone companies to bear the costs of
upgrading their networks once the $500 million was spent.
On
September 28, 1994, the full Senate Judiciary Committee held a legislative
mark-up session in which several more changes to the bill were made. One significant change forbade penalties
against any existing network that could not obtain federal aid to make the
necessary upgrades. Jon Healey, Legislation
On Wiretapping Heads For Floor Debate, 1994 Cong. Q. Wkly. Rep. 2778
(1994). Another change required the
federal government to cover the cost of any increase in network capacity
required to accommodate wiretaps, no matter when that increase was demanded.
On
September 29, 1994, the House Judiciary Committee, by voice vote, adopted
"an amendment in the nature of a substitute to H.R. 4922" adopting
the Senate's changes, and ordered the bill favorably reported as amended. H.R.
Rep. No. 827, 103d Cong., 2d Sess., pt.1, at 11 (1994). Rep. Edwards then pledged to bring the bill
to the House floor by October 4, 1994, under an expedited procedure that
allowed no amendments. Jon Healey, Legislation
On Wiretapping Heads For Floor Debate, 1994 Cong. Q. Wkly. Rep. 2778
(1994).
Rep.
Edwards's rush to bring the bill to the House floor was nearly slowed down by
the House Energy and Commerce Committee, which sought jurisdiction over the
bill.
On
October 3, 1994, Rep. Rick Boucher (D-VA), a member of both the House Judiciary
and the House Energy and Commerce Committees, held a press conference to take
credit for the successful compromise. He
explained the again-renamed "Communications Assistance For Law Enforcement
Act" as follows:
If appropriations are not available
to refit existing systems with wiretapping capability, the industry would have
no obligation to comply with the legislation's mandate. For the next four years, the cost is
unequivocally borne by the government. . . .
At the end of that time, however,
common carriers will pick up the tab and must design their new telecom systems
with wiretapping capability. As new switching
equipment and services are designed, they must include wiretapping capability
at industry expense.
Rep.
Edwards was ready to bring the bill to the House floor, with Rep. Boucher's
assistance in guiding it through the referral to the Energy and Commerce
Committee.
Most
civil liberties and privacy groups, however, disagreed with the Electronic
Frontier Foundation. Marc Rotenberg's
new organization, the Electronic Privacy Information Center (EPIC), vowed to
fight the bill, hoping to take advantage of the referral to stall the
legislation. Laura Murphy Lee, director
of the ACLU's
The
criticisms of the privacy groups notwithstanding, the House Judiciary Committee
issued a Report entitled Telecommunications Carrier Assistance to the
Government the next day, October 4, 1994.
H.R. Rep. No. 103-827, pt 1 (1994), reprinted in 1994
U.S.C.C.A.N. 3489. The report contained
the full, revised text of the Communications Assistance for Law Enforcement
Act, which was proposed to become Chapter 120 of Title 18 (Law Enforcement) of
the U.S. Code, id. at 1-9, and a section-by-section analysis thereof.
The
Report announced that "the purpose of H.R. 4922 is to preserve the
government's ability, pursuant to court order or other lawful authorization, to
intercept communications involving advanced technologies such as digital or
wireless transmission modes, or features and services such as call forwarding,
speed dialing and conference calling, while protecting the privacy of
communications and without impeding the introduction of new technologies,
features, and services."
It
summarized the bill's provisions as follows:
the bill requires telecommunications
carriers to ensure their systems have the capability to: (1) isolate
expeditiously the content of targeted communications transmitted by the carrier
within the carrier's service area; (2) isolate expeditiously information
identifying the origin and destination of targeted communications; (3) provide
intercepted communications and call identifying information to law enforcement
so they can be transmitted over lines or facilities leased by law enforcement
to a location away from the carrier's premises; and (4) carry out intercepts
unobtrusively, so targets are not made aware of the interception, and in a
manner that does not compromise the privacy and security of other
communications.
The
day after the House Report was issued, October 5, 1994, Senate Judiciary
Committee Chairman Jack Brooks (D-TX) moved that the House suspend the rules
and pass H.R. 4992, as amended. Communications
Assistance For Law Enforcement Act and Sundry Amendments to the Code and the
Communications Act of 1934, 140 Cong. Rec. H10,917 (daily ed. Oct. 5,
1994). The question was taken, and
two-thirds voted in favor of Chairman Brooks's proposal.
The
very next day, the Senate followed the House's lead. On October 6, 1994, the Senate Judiciary
Committee issued a Report entitled The Digital Telephony Bill of 1994. S. Rep. No. 402, 103d Cong., 2d Sess.
(1994). The Report essentially reprinted
verbatim the October 4, 1994 House Report on Telecommunications
Carrier Assistance to the Government issued two days earlier, references to
the House being replaced by references to the Senate. H.R. Rep. No. 827, 103d Cong., 2d Sess., pt 1
(1994). Sen. Leahy appeared optimistic
that the bill would pass the Senate quickly, despite the fact that he needed
the Senate's unanimous consent to bring up the bill in the session's waning
days. Jon Healey, Wallop Puts
Closing-Hour Hold on Wiretapping Bill, 1994 Cong. Q. Wkly. Rep. 2873.
Sen.
Leahy had reason to be optimistic. He
had just successfully overcome two logrolling threats to the legislation.
First, Sen. Herb Kohl (D-WI), had threatened to take the Senate bill hostage to
combat an unrelated Leahy-sponsored bill (S. 2069) that would have
ratified a six-state dairy compact to regulate the supply and price of milk in
the Northeast.
Later
that day, however, Sen. Howard Metzenbaum (D-OH), prevented the wiretapping
bill from being called up for Senate debate.
Metzenbaum
wanted the wiretapping bill to be available as a vehicle for his adoption
provision in case the education bill died.
On
October 6, however, the day the Senate Report was issued, Sen. Malcolm Wallop
(R-WY), a conservative Republican who was retiring from the Senate, announced
his opposition to the bill, on privacy grounds.
In floor debate in the House that
took place the same day, Rep. Henry Hyde (R-IL) stated that the definition of
“telecommunications carrier” in CALEA should be interpreted broadly to apply to
a wide range of service providers, including “local exchange carriers,
interexchange carriers, competitive access providers, cellular carriers,
providers of personal communications services, satellite-based service
providers, cable operators, and electric and other utilities that provide
telecommunications services for hire to the public, and any other wireline or
wireless service for hire to the public.”
140 Cong. Rec. H10,779 (daily ed.
October 7, 1994) (statement of
Rep. Hyde). See also H.R. Rep. No. 103-827, pt. I,
at 23, reprinted in 1994 U.S.C.C.A.N. 3489, 3500.
Although he voted in favor of the
bill, House Judiciary Committee Chairman Jack Brooks (D-TX) indicated that he
might want to revisit the issue of costs.
Jon Healey, Senate Clears Bill to Facilitate Police Wiretapping,
1994 Cong. Q. Wkly. Rep. 2950. Rep.
Brooks said that while the government cannot cover the costs associated with
wiretapping needs forever, "an equitable arrangement between government
and private industry must be reached" on long-term expenses.
President Clinton signed the bill on
October 25, 1994. The Communications
Assistance for Law Enforcement Act of 1994, Pub. L. No. 103-414, 108 Stat.
4279, took effect immediately.
CALEA’s
PROVISIONS
As enacted in 1994, CALEA imposes
several requirements on “telecommunications carriers.” In particular, “telecommunications carriers”
must provide certain assistance capability requirements to support electronic
surveillance activity by law enforcement officials. See
47 U.S.C. § 1002(a)(1)-(4) (setting
forth four general “assistance capability requirements” that telecommunications
carriers must provide). In addition, “telecommunications carriers” must maintain sufficient
available system capacity to enable law enforcement to execute a specified
number of simultaneous electronic surveillance wiretapping orders. 47 U.S.C. § 1003; see also FBI Final Notice of Capacity, 63 Fed. Reg. 12218 (1998)
(setting forth specific capacity requirements for local exchange carriers,
cellular carriers, and broadband PCS carriers).
At the same time, such carriers must ensure that these mandatory
wiretapping capabilities can be activated only by law enforcement in accordance
with a valid court order, and that all user communications and call-identifying
information remains secure against unauthorized intruders. 47 U.S.C. § 1004.
The statutory term “telecommunications carrier” is defined in CALEA
as “a person or entity engaged in the transmission or switching of wire or
electronic communications as a common carrier for hire.” 47 U.S.C.
§ 1001(8). Commercial mobile
service providers qualify as “telecommunications carriers.” 47 U.S.C.
332(d). In addition, any “person or
entity engaged in providing wire or electronic communication switching or
transmission service to the extent that the Commission finds that such service
is a replacement for a substantial portion of the local telephone exchange
service and that it is in the public interest to deem such a person or entity
to be a telecommunications carrier for purposes of this title”
also qualifies as a “telecommunications carrier.” 47 U.S.C. § 1001(8)(B)(ii). On the other hand, providers of “information
services” are not “telecommunications
carriers,” and may not be made subject to CALEA requirements. See 47 U.S.C. § 1001(8)(C); see also Communications Assistance
for Law Enforcement Act, Second Report and Order, 15 FCC Rcd 7105, 7112
¶ 12 (2000) (holding that CALEA does not apply to “information services”
or to “private network services”).
For new equipment,
facilities, and services deployed after January 1, 1995, a “telecommunications
carrier” may be excused from CALEA’s assistance capability requirements if the
FCC determines that compliance with those requirements is not “reasonably
achievable.” 47 U.S.C.
§ 1008(b)(1). In making this determination, the FCC must
apply an eleven-factor balancing test to evaluate whether compliance would
impose significant difficulty or expense on the carrier or on the users of the
carrier's systems.[10]
If the FCC
determines that compliance with CALEA’s assistance capability requirements is
not reasonably achievable for a new facility or service, then the Attorney
General may opt to pay the costs of making the carrier’s compliance with those capability
requirements reasonably achievable. 47
U.S.C. § 1008(b)(2). If the Attorney General does not agree to pay
such costs, then the carrier offering the new facility or service is deemed to be
in compliance with CALEA’s capability requirements.
THE
ONSET OF VoIP
Voice over Internet Protocol (“VoIP”) broadly
refers to “the use of Internet protocol for the networking of packetized voice
services.”[11] Lee W. McKnight, Internet Telephony 3
(Lee W. McKnight, William Lehr & David D. Clark eds., The MIT Press
2001). Internet protocol was developed
in the late 60s partially in response to the government’s desire for more
secure and survivable military communications.
Mark A. Miller, P.E. Voice Over IP Technologies Building the
Converged Network 9 (M&T Books 2002). In theory, packet switching technologies made
messages more difficult for adversaries to intercept by dividing the
communication into smaller pieces and sending the pieces across various routes.
In 1995, computer hobbyists
transmitted the first voice message from one PC to another using Internet protocol. David Greenblatt, The Call Heard ‘Round
the World: Voice Over Internet Protocol and the Quest for Convergence 71
(Amacom American Management Association 2003).
In 1996, IP technology had advanced so that voice messages originating
from the Internet could be transmitted on to the public switched telephone
network (PSTN).
VoIP offers an efficient and
flexible means of voice delivery. To
complete a telephone call, the PSTN creates circuits that provide 64 kbps of
bandwidth between the communicating parties.
Mark A. Miller, P.E. Voice Over IP Technologies Building the
Converged Network 6 (M&T Books 2002). Thus, for the duration of a PSTN telephone
call, 64 kbps of bandwidth along the path of the circuit is reserved.
Along with increased bandwidth
efficiency, IP based telephone systems can reduce the maintenance costs of
supporting separate voice and data networks and simplify the addition of new
applications. Dodd, supra, at
60. Adding new applications such as call
centers, voice mail and customer service systems that handle Web-originated
requests are difficult due to the proprietary protocols and signaling of
private branch exchanges.
The Voice over IP Forum, part of the
Internal Multimedia Teleconferencing Consortium (IMTC) has created an
implementation agreement that defines three connectivity configurations for
converged networks. Miller, supra,
at 248. These configurations ensure a
consistent flow of call control and user information by following common
multimedia signaling standards including the International Telecommunications
Union’s H.323 or the Internet Engineering Task Force’s Session Initiation
Protocol (SIP) standards.
In an inter-carrier or
phone-to-phone configuration, users can complete calls on traditional
telephones, utilizing the IP network to carry voice traffic between the two PSTN
connections.
Some international fixed operators
use this configuration in order to avoid international termination fees. IP Voice and Associated Convergent
Services, Final Report for the European Commission 28 (Jan. 28, 2004). Approximately 12% of all international voice
traffic is carried over IP.
Currently, businesses using their
own networks for internal calls are the biggest adopters of VoIP. Scott Beardsley, Luis Enriquez, Jon Garcia, A New Route For Telecom Deregulation,
McKinsey Quarterly, Issue 3 (2004).
Intersite enterprise VoIP is typically employed like inter-carrier
VoIP, by connecting the private branch
exchange (PBX) to a VoIP gateway that converts the voice signaling and
transport information to an IP format. Philip Carden, Building Voice Over IP,
Network Computing (May 8, 2000). The VoIP gateway then connects directly to a
router for transport over the IP network.
In a phone-to-PC or hybrid
configuration, one user accesses the network via a telephone and the PSTN,
while the other uses a personal computer or H.323 Terminal. Id at 249. Similar to the phone-to-phone configuration,
the phone user will connect to a gateway through the PSTN.
In this model if the call
is placed from an end user on a PC, an independent telephony provider routes
the call either to other VoIP users on the internet or to traditional
telephones via a gateway to the PSTN. European
Union Analysis, supra, at 24.
Independent telephony providers may also serve as the user’s ISP.
The functionalities provided by
independent VoIP providers vary.
‘Second line’ VoIP services have an
explicit loss of some functionality.
To complete calls from PC to PC,
end-users may communicate through a microphone and speakers, headset, or a
software driven phone plugged into a data port.
Philip Carden, Building Voice over IP, Network Computing (May 8,
2000). In accordance with the Voice over
IP Forum configuration for PC-to-PC in converged networks, personal computers connect
using dial-up or dedicated connections, or a higher-speed connection over a
LAN. Miller, supra, at 248. The personal computer will contact the
gatekeeper and DNS server before communicating directly across the IP network
to the other user.
However, because personal computers do
not actually require interaction with the PSTN, and therefore need not operate
over ‘converged’ PSTN/IP networks, many different configurations for PC-to-PC
telephony are possible. In its simplest
form, PC-to-PC VoIP requires no third party connection to complete a call, as
IP addresses could be known or exchanged privately, negating the need to
connect to an address server. European
Union Analysis, supra, at 29.
Using a broadband IP connection and a VoIP application, users can
initiate and receive calls to other users running the same application via the
public internet.
The
Application of CALEA to VoIP
Since the onset of VoIP in the late
1990s, there has been controversy about whether VOiP should be characterized
for regulatory purposes as a “telecommunications service” or, alternatively, an
“information service.” On February 12,
2004, the FCC substantially resolved this longstanding controversy when it classified
VoIP service as an “information service” for most regulatory purposes. IP-Enabled
Services, Notice of Proposed Rulemaking, FCC 04-28 (Feb. 12, 2004). Accordingly, VoIP service providers are now
not subject to regulation as telecommunications carriers under the
Communications Act of 1934. In response
to this FCC ruling, in March 2004, the Department of Justice and the FBI
jointly petitioned the FCC to characterize VoIP service providers as
“telecommunications carriers” for CALEA purposes only. See RM-10865, <http://www.askcalea.com/docs/20040310.calea.jper.pdf>
(filed March 10, 2004),. In August 2004,
the FCC issued a Notice of Proposed
Rulemaking to solicit public comment on the DOJ/FBI petition. In re Communications Assistance for Law
Enforcement Act and Broadband Access and Services, Notice of Proposed Rulemaking and Declaratory Ruling, FCC 04-187,
ET Docket No. 04-295 (rel. Aug. 9, 2004).
In that Notice, the FCC tentatively concluded that CALEA should be applied to all facilities-based
providers of any type of broadband Internet access service—including
wireline, cable modem, satellite, wireless, and powerline—and also to managed
or mediated VoIP services.
Wireline carriers that provide inter-carrier
VoIP services will not be affected by the FCC’s proposed rule, because they are
already subject to CALEA requirements. Providers
of phone-to-PC or hybrid VoIP service (including broadband Internet access
providers and independent Internet telephony companies, such as Vonage), in
contrast, will be affected if the proposed rule is adopted. Because they already initiate and complete
communications over the PSTN, however, existing inter-carrier VoIP service providers
may not face insurmountable technical challenges if they are required to comply
with CALEA requirements.
For PC-to-PC VoIP, the FCC’s proposed
rule would apply to only managed or mediated services. Seemingly, this would include managed instant
message or video services offering voice functionality over broadband
connections. Grant Gross, FCC Takes Step
Toward VoIP Wiretapping Regulations, NetworkWorldFusion (Aug. 4 2004). Nonmanaged or peer-to-peer services including
Skype or simple applications for voice transmission would be exempt.
The FCC’s tentative conclusion to apply
CALEA requirements to VoIP service is predicated on the Commission’s tentative
characterization of VoIP services as “a replacement for a substantial portion
of the local telephone exchange service.”
While every FCC Commissioner voted tentatively in favor of applying
CALEA requirements to VoIP service, three of the five Commissioners
individually expressed concerns that the text and legislative history of CALEA might
preclude the Commission from subjecting VoIP services to CALEA while simultaneously
characterizing such services as “information services” for other purposes. See id. (Separate Statement of Comm’r
Abernathy) (“While the text and legislative history of CALEA make clear that
the march of technological progress should not hamper law enforcement’s ability
to conduct lawful wiretaps, the statute also explicitly exempts information
services from its reach. The Commission
has proposed a means of resolving this tension, but it remains to be seen whether
our attempts to do so would pass judicial muster.”); accord id.
(Separate Statement of Comm’r Copps); id. (Separate Statement of Comm’r
Adelstein).
[1] A "wiretap" is "a concealed listening or
recording device connected to a communications circuit." American Heritage Dictionary 1469 (New
College ed. 1981). Wiretapping is
"the installation of such a device."
[2] The House Report accompanying the Communications Assistance
to Law Enforcement Act, H.R. Rep. No. 827, 103d Cong., 2d Sess., pt. 1 (1994), reprinted
in 1994 U.S.C.C.A.N. 3489, is virtually identical to the Senate Report
accompanying the Act. S. Rep. No. 402,
103d Cong., 2d Sess. (1994). The
citations in this paper refer to the House Report.
[3] Today,
Marc Rotenberg is Executive Director of the Electronic
Privacy Information Center (EPIC) in
[4] Apparently, Congressman Edwards's concerns were
allayed. He ultimately became the House sponsor
of the Communications Assistance for Law Enforcement Act of 1994.
[5] Available on Westlaw at 1992 WL 2627231. Page numbers not available online.
[6] The GSA documents were obtained through a Freedom of
Information Act request by Computer Professionals for Social Responsibility. Anthony Ramirez, F.B.I.'s Proposal on
Wiretaps Criticized by Federal Agency, N.Y. Times, Jan. 15, 1993, at
A12. The group, which opposed the
wiretapping legislation, provided the documents to the New York Times in
early January, 1993.
[7] The New York Times quoted Marc Rotenberg, Director
of Computer Professionals for Social Responsibility, Jerry Berman, Executive
Director of the Electronic Frontier Foundation, and Martina Bradford, Vice
President of Government Affairs for AT&T, as being opposed to the Clinton
proposal. Edmund L. Andrews,
[8] Transcripts of the full testimony from the Joint Hearing do
not appear in any published source.
However, these transcripts are available on Westlaw via the Federal
Document Clearing House database USTESTIMONY, and can be accessed as follows:
statement of Sen. Leahy, 1994 WL 224003; testimony of USTA President Roy Neel,
1994 WL 223906; testimony of EFF Exec. Director Jerry Berman, 1994 WL 223996;
testimony of District Attorney William C. O'Malley, 1994 WL 223907; testimony
of FBI Director Louis J. Freeh, 1994 WL 223962.
[9] The FBI re-contacted law enforcement agencies after the
March hearing to identify further examples.
In April, 1994, the FBI revised this number to include 183 instances
(including the original 91) where the FBI, State or local agencies had
encountered problems.
[10] Those factors are (1) the effect on public safety and national
security; (2) the effect on
rates for basic residential telephone service; (3) the need to protect the privacy and security of communications
not authorized to be intercepted; (4)
the need to achieve the capability assistance requirements of section 103 by
cost-effective methods; (5) the effect on the nature and cost of the equipment,
facility, or service at issue; (6)
the effect on the operation of the equipment, facility, or service at issue; (7) the policy of the United States to
encourage the provision of new technologies and services to the public; (8) the financial resources of the
telecommunications carrier; (9)
the effect on competition in the provision of telecommunications services; (10) the extent to which the design
and development of the equipment, facility, or service was initiated before January
1, 1995; and (11) such other factors as the Commission determines are appropriate. 47 U.S.C. § 1008(b)(1).
[11] In this paper, the term VoIP refers broadly to all voice
over packet (VoP) technologies, including frame relay and ATM.
[12] Skype
now offers a pay service (“SkypeOut”) that enables Skype users to phone people with
PSTN phone numbers. Alex Salkever, Skype Gives Telcos a
Wake-Up Call, E-Commerce News (Aug. 14, 2004).