The Department of Justice has informed the Commission that it plans to file a petition for rulemaking asking the Commission to initiate a comprehensive rulemaking to address law enforcement's needs relative to CALEA. The Commission recognizes the importance of ensuring that law enforcement's requirements are fully addressed. The Commission takes seriously the issues raised by law enforcement agencies concerning lawfully authorized wiretaps. Accordingly, the Commission plans to initiate a rulemaking proceeding in the near future to address the matters we anticipate will be raised by law enforcement, including the scope of services that are covered, who bears responsibility for compliance, the wiretap capabilities required by law enforcement, and acceptable compliance standards. Our decision in this Order does not prejudice the outcome of our proceeding on CALEA. See Letter from John G. Malcolm, Deputy Assistant Attorney General, Department of Justice, to Marlene H. Dortch, Secretary, Federal Communications Commission, CC Docket Nos. 02-33, 95-20, & 98-10; CS Docket No. 02-52; WC Docket Nos. 03-45, 03-211, & 02-361 (filed Feb. 6, 2004); see also Letter from Patrick W. Kelley, Deputy General Counsel, FBI, to John Rogovin, General Counsel, Federal Communications Commission, CC Docket Nos. 97-213, 02-33, 95-20, & 98-10; CS Docket No. 02-52; WC Docket Nos. 02-361, 03-45, 03-211, 03-251 & 03-266 (filed Jan. 28, 2004); DOJ/FBI Comments at 2-3.
-- In re Petition for Declaratory Ruling that pulver.com's Free World Dialup is Neither Telecommunications Nor a Telecommunications Service, WC Docket No. 03-45, Memorandum Opinion And Order n. 24 (FCC February 19, 2004)
Impact of IP Telephony on Public Safety: In California, years of state funded improvements have been made to 911 service to enable telecommunications providers and first responders to ensure the safety of California customers. In addition, law enforcement utilizes its right under federal law to monitor telecommunications services to combat criminal activity. Exempting VoIP providers from regulation raises concerns about public safety and law enforcement activities in local communities. On the other hand, VoIP technologies offer the possibility to provide more detailed emergency information about some user locations, e.g. PBX users, than available with current technology.
-- Order instituting investigation on the Commission's own motion to determine the extent to which the public utility telephone service known as Voice over Internet Protocol should be exempted from regulatory requirements, CA PUC February 11, 2004 http://www.cpuc.ca.gov/published/agenda_decision/33960.htm
The Commission is obligated by Section 229(a) of the Communications Act to adopt all rules necessary to fulfill the goals of CALEA, including the goal of adapting lawful electronic surveillance to advanced technologies such as VoIP.11 The Commission must therefore require VoIP providers to comply with CALEA through formal rules regardless of whether some providers would comply voluntarily.12
. . . . .
CALEA implementation is hardly ripe for deregulation, given the current state of CALEA readiness in the VoIP industry. Industry suffers from widespread confusion over which VoIP entities and services are subject to CALEA, which Section 10313 capabilities are required, and just as importantly, by what deadlines. Industry and Law Enforcement have debated many of these issues in certain standard-setting proceedings, but the ultimate arbiters of such matters are the Commission and the courts.14
Without firm Commission guidance, industry could unilaterally impose its own concept of appropriate assistance capabilities, leaving law enforcement shortchanged. Equally disturbing is the risk that industry cooperation may arrive too late for many
criminal investigations. CALEA solutions for VoIP are needed upon initiation of service, not at some unknown future date.
--- In re The Commission's December 1, 2003, Voice Over IP Forum, WC Docket Nos. 03-211, 02-361, and 03-35, Joint Comments Of The United States Department Of Justice, The United States Drug Enforcement Administration, And The Federal Bureau Of Investigation (Dec. 15, 2003) http://www.fcc.gov/voip/comments/USDOJ-DEA-FBI.pdf
"12. . . . Section 102(8)(C) of the definition specifically excludes information services, and the legislative history makes clear that CALEA does not apply to private network services:
"Telecommunications Services that support the transport or switching of communications for private networks or for the sole purpose of interconnecting telecommunications carriers . . . need not meet any wiretap standards. PBXs are excluded. So are automated teller machine (ATM) networks and other closed networks. Also excluded from coverage are all information services, such as Internet service providers or services such as prodigy or America Online."
13. We also conclude that CALEA's definitions of "telecommunications carriers" and "information services" were not modified by the 1996 Act, and that the CALEA definitions therefore remain in force for purposes of CALEA.
. . .
27. Where facilities are used solely to provide an information service, whether offered by an exclusively-IS provider or a common carrier that has established a dedicated IS-system apart from the telecommunications system, we find that such facilities are not subject to CALEA. Where facilities are used to provide both telecommunications and information services, however, such joint-use facilities are subject to CALEA in order to ensure the ability to surveil the telecommunications services.
-- In the matter of Communications Assistance for Law Enforcement Act, CC Docket 97-213, Second Report and Order, (August 31, 1999)
See also In the matter of Communications Assistance for Law Enforcement Act, CC Docket 97-213, Third Report and Order, ¶¶ 47 - 54 (August 31, 1999) (discussing CALEA obligations for packet-mode communications)
In order to formulate an informed, consistent regulatory policy, the Commission would like to obtain information about VOIP activity in Michigan . The Commission, therefore, requests comments on VOIP activity in Michigan on the following topics that may be affected by both state and federal law:
...
h. Other technical issues, such as internet virus potential, power outage risks, consumer protections including privacy, quality of service, and accessibility by local, state and federal law enforcement.
-- -- U-14073 - Commission's Own Motion (investigation of VOIP) - (MI PUC 3/16/2004 ) HTML | PDF
C. State and Federal Law Enforcement Needs Must Be Safeguarded
The implications of Vonage’s and other VoIP offerings for federal agencies’ law enforcement and national security activities were well presented in the DOJ-FBI joint filing. Carrier compliance with statutory requirements for telecommunications providers to cooperate
with lawful governmental investigatory efforts to monitor calls and capture relevant call routing and other data is also critically important to investigations conducted by state and local prosecutors and police. For example, the NYSAG’s Organized Crime Task Force has devoted
substantial effort and capital to access facilities of numerous local exchange carriers and wireless carriers to effect its investigations of major crimes. State and local law enforcement activities would be compromised if the FCC does not require Vonage and other VoIP providers to comply with the Communications Assistance for Law Enforcement Act.
--In Re Vonage Holding Company Petition for a Declaratory Ruling Concerning the Order of the Minnesota PUC, WC Docket No. 03-211, Comments of the NY AG (Nov. 21, 2003)
Voluntary CALEA
A Commission Decision to Implement CALEA Based on Voluntary Efforts Would Harm the Public Interest
As a matter of public policy, CALEA is vital to national security, law enforcement, and public safety. Such a critically important statute should not be left to mere voluntary efforts. Of course, some VoIP providers may have already installed CALEA solutions, in which case their cooperation is greatly appreciated, but others may not be such good corporate citizens. The success of CALEA depends on consistent implementation, and in any event, leaving CALEA to voluntary efforts would effectively punish the good corporate citizens by placing them at a competitive disadvantage to those who choose not to cooperate. Furthermore, under a voluntary CALEA compliance scheme, law enforcement would have no enforcement mechanism against those VoIP providers who do not cooperate.
. . . .
D. VoIP Providers Lack Commercial Incentives to Assist Law Enforcement In the past, telecommunications carriers have complied with certain federal mandates in a manner that creates commercial opportunities. 15 However, the VoIP industry has yet to announce any initiatives that might spark commercial incentives to assist law enforcement, let alone reduce the need for CALEA regulation. If anything, VoIP providers may unintentionally benefit from half-hearted CALEA implementation because terrorists, spies, and criminals typically flock to the modes of communication most likely to evade lawful electronic surveillance. Therefore, the Commission must adopt VoIP-specific CALEA rules that are rigorous enough to ensure that this does not occur.
E. CALEA Already Contains Provisions that Accommodate the Business
Needs of Emerging Services Such as VoIP Some VoIP providers claim traditional regulation may frustrate the growth of
their nascent industry. In the case of CALEA, however, this concern has already been addressed. Specifically, under CALEA, law enforcement may not "prohibit the adoption of any equipment, facility, service, or feature by any provider of a wire or electronic communications service . . . . "16 Moreover, CALEA grants industry broad discretion to design surveillance solutions as it sees fit.17 Even after the solution design stage, if a carrier still finds CALEA compliance is not "reasonably achievable," it may seek special regulatory relief.18 For these reasons, the Commission need not make the CALEA mandate any more flexible than already provided under the statute.
--- In re The Commission's December 1, 2003, Voice Over IP Forum, WC Docket Nos. 03-211, 02-361, and 03-35, Joint Comments Of The United States Department Of Justice, The United States Drug Enforcement Administration, And The Federal Bureau Of Investigation
(Dec. 15, 2003)
