WASHINGTON-A federal appeals court appears willing to agree with the Federal Communications Commission that Voice over Internet Protocol technology substantially replaces standard telecommunications services-but at least one judge believes the FCC’s argument that broadband Internet access is also a telecom replacement is “disingenuous” and “ridiculous.”
Whether VoIP and broadband Internet access replace telecommunications is the pivot point on whether such services must comply with the Communications for Law Enforcement Act of 1994. Congress passed CALEA to make sure law enforcement could maintain its surveillance capabilities even as technology changed. However, Congress wanted to make sure that the government didn’t overreach, so it put in place an exemption for information services. How or whether to apply that exemption was the argument presented before the U.S. Court of Appeals for the District of Columbia Circuit Friday.
The CALEA issue has clear implications for third-generation wireless providers, which offer services comparable to cable modem and digital subscriber line connections that support VoIP calls and other multimedia applications.
The FCC said last fall that both VoIP and broadband Internet access were subject to CALEA. While the three-judge panel seemed to agree with the FCC that VoIP must comply with CALEA, they did not agree that broadband Internet access was subject to the law. Jacob Lewis, arguing on behalf of the FCC, found himself trying to explain why the FCC pressed its definition of an information service under the Communications Act all the way to the Supreme Court and won-but then seemed to ignore that definition when it came to CALEA.
“The question is whether it should be regulated under a market statute-the Communications Act or under CALEA,” argued Lewis. “Those statements (referring to the Brand X Supreme Court case) were made under the Communications Act.”
But Senior Judge Harry Edwards didn’t seem to buy Lewis’ argument.
“There is nothing in this statute to say it (information services) was anything different than what the FCC has always said it was,” said Edwards. “Once a technical term has a clear meaning, you have to point to something in CALEA to say that it means something different. You can’t now say that a telephone is an orange because you are defining the telephone under a different statute-that will not make the telephone a fruit.”
If the other two judges on the panel agree with Edwards’ reasoning-and he seemed to receive support from Judge David Sentelle-then broadband Internet access providers will not have to reconfigure their networks at their own cost to comply with government CALEA specifications.
“It would seem parts of this are going back to the FCC, thus demonstrating that Congress needs to intervene,” said Michael Altschul, CTIA senior vice president and general counsel, who attended the oral argument.
FCC Commissioner Deborah Taylor Tate, who is the newest member of the FCC and did not vote on the CALEA order last year, said earlier in the week she agreed with the agency’s move. Tate argued that the commission was not overreaching when it changed the scope of CALEA.
“We must read CALEA’s requirements in a technology-neutral manner,” said Tate. “Our action is not expanding the reach of the statute.”
Edwards acknowledged that VoIP substantially replaced standard telecommunications services, which means VoIP providers likely will need to start working on CALEA compliance.
As for telecommunications providers, the FCC last week reaffirmed that carriers have one year to comply with CALEA. The agency also ruled that carriers cannot be reimbursed for the costs of reconfiguring their networks.
Cost had been expected to be a major topic during the oral argument since the lead opponent to the FCC was the American Council of Education, which represents colleges and universities. ACE had argued in its briefs that it would be too costly to reconfigure its private networks to gain CALEA compliance. CALEA has exemptions for both information services and private networks.
Matthew Brill, ACE outside counsel, took issue with the FCC’s argument that colleges only had to upgrade their connection to the public-switched telephone network. Brill said such an upgrade, or gateway, would still run up against the private network exemption.
“They rely on the argument that a gateway is covered. That is the same thing as my driveway. It is still on private property,” said Brill. When Sentelle questioned whether Brill was trying to say that search warrants did not cover driveways and thus wiretap orders did not cover private networks, Brill reassured him that private networks would still comply with wiretap orders. “They simply won’t continue under CALEA,” he added.
Brill is a former senior legal adviser to former FCC Commissioner Kathleen Abernathy, who warned last year the FCC was on shaky legal ground in its CALEA analysis.
Many colleges and universities have argued that the FCC’s decision would require them to completely overhaul their private on-campus networks.
The FCC tried to answer these criticisms by allowing providers to use trusted third parties to comply with CALEA. Tate said third parties could help lower compliance costs to as little as one cent per month per subscriber.
“It is not sound analysis to rely on assertions on cost-per-student when those analysis are not based on the use of trusted third parties,” said Tate.
The FCC declined to set specific technological standards for how VoIP and broadband Internet access service providers can comply with CALEA. The FCC said it was premature for it to intervene in the standards-setting process-a process that has been ongoing in various iterations for more than a decade since the passage of CALEA in 1994. The agency also declined to allow providers to institute a national surcharge to recover their compliance costs.
