CALEA Wiretap Law to Increase College Tuition by $450? – FCC Rule Under Fire

Sam Dillon and Stephen Labaton write at the New York Times online on October 23, 2005 that “Colleges Protest Call to Upgrade Online Systems“.

The protest relates to the 1994 “Wiretap Law”, the 1994 Communications Assistance for Law Enforcement Act (CALEA), which has been very broadly interpreted in an FCC notice issued on August 5, 2005 and published October 13, 2005 in the Federal Register (html, pdf, summary).

As written by the FCC at its AskCALEA compliance assistance page:

“In October 1994, Congress took action to protect public safety and ensure national security by enacting the Communications Assistance for Law Enforcement Act of 1994 (CALEA), Pub. L. No. 103-414, 108 Stat. 4279. The law further defines the existing statutory obligation of telecommunications carriers to assist law enforcement in executing electronic surveillance pursuant to court order or other lawful authorization.

The objective of CALEA implementation is to preserve law enforcement’s ability to conduct lawfully-authorized electronic surveillance while preserving public safety, the public’s right to privacy, and the telecommunications industry’s competitiveness.”

The August, 2005 notice of the FCC provides:

“Responding to a petition from the Department of Justice, the Federal Bureau of Investigation, and the Drug Enforcement Agency, the Commission determined that providers of certain broadband and interconnected voice over Internet Protocol (VoIP) services must be prepared to accommodate law enforcement wiretaps, the Federal Communications Commission ruled today.

The Commission found that these services can essentially replace conventional telecommunications services currently subject to wiretap rules, including circuit-switched voice service and dial-up Internet access. As replacements, the new services are covered by the Communications Assistance for Law Enforcement Act, or CALEA, which requires the Commission to preserve the ability of law enforcement agencies to conduct court-ordered wiretaps in the face of technological change.

The Order is limited to facilities-based broadband Internet access service providers and VoIP providers that offer services permitting users to receive calls from, and place calls to, the public switched telephone network. These VoIP providers are called interconnected VoIP providers.

The Commission found that the definition of “telecommunications carrier” in CALEA is broader than the definition of that term in the Communications Act and can encompass providers of services that are not classified as telecommunications services under the Communications Act. CALEA contains a provision that authorizes the Commission to deem an entity a telecommunications carrier if the Commission “finds that such service is a replacement for a substantial portion of the local telephone exchange.”

Because broadband Internet and interconnected VoIP providers need a reasonable amount of time to come into compliance with all relevant CALEA requirements, the Commission established a deadline of 18 months from the effective date of this Order, by which time newly covered entities and providers of newly covered services must be in full compliance. The Commission also adopted a Further Notice of Proposed Rulemaking that will seek more information about whether certain classes or categories of facilities-based broadband Internet access providers – notably small and rural providers and providers of broadband networks for educational and research institutions – should be exempt from CALEA.

The Commission’s action is the first critical step to apply CALEA obligations to new technologies and services that are increasingly used as a substitute for conventional services. The Order strikes an appropriate balance between fostering competitive broadband and advanced services deployment and technological innovation on one hand, and meeting the needs of the law enforcement community on the other.”

As written at the New York Times:

“The action, which the government says is intended to help catch terrorists and other criminals, has unleashed protests and the threat of lawsuits from universities, which argue that it will cost them at least $7 billion while doing little to apprehend lawbreakers. Because the government would have to win court orders before undertaking surveillance, the universities are not raising civil liberties issues….”

Lawyers for the American Council on Education … are preparing to appeal the order … Terry W. Hartle, a senior vice president of the council, said Friday….

The universities do not question the government’s right to use wiretaps to monitor terrorism or criminal suspects on college campuses, Mr. Hartle said, only the order’s rapid timetable for compliance and extraordinary cost….

Even the lowest estimates of compliance costs would, on average, increase annual tuition at most American universities by some $450….

Hat tip to Morningstar.com

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