Communications Assistance for Law Enforcement Act - CALEA

Lawfully-authorized electronic surveillance is a law enforcement tool that police and other authorized government agencies use to investigate and prosecute criminals. Its use by such agencies is strictly limited by law. Lawfully-authorized electronic surveillance is a law enforcement agency's or organization's lawful collection of (1) the contents of communications; and/or (2) the dialing or signaling information that identifies the origin, direction, destination, or termination of any communication generated or received by a subject of surveillance by means of the equipment, facilities, or services of a telecommunications carrier. Contents of a communication (18 U.S.C. § 2510(8)) is "any information concerning the substance, purport, or meaning of that communication."

Since 1970, telecommunications carriers have been required to cooperate with law enforcement agencies (LEAs) to assist their conduct of electronic surveillance. Advances in technology, however, most notably the introduction of digital transmission and processing techniques and the proliferation of wireless and Internet services, such as broadband access services, have challenged the ability of LEAs to conduct lawful surveillance.

The Communications Assistance for Law Enforcement Act (CALEA), enacted in October 1994, was intended to preserve the ability of LEAs to conduct electronic surveillance by requiring that telecommunications carriers and manufacturers of such equipment modify and design their equipment, facilities, and services to ensure that they have the required surveillance capabilities.

The Legal Framework

The modern legal framework for electronic surveillance arises out of the Supreme Court's landmark decision in Katz v. United States, 389 U.S. 347 (1967). Prior to Katz, the Supreme Court had regarded wiretapping as outside the scope of the Fourth Amendment's restrictions on unreasonable searches and seizures. See Olmstead v. United States, 277 U.S. 438 (1928). In Katz, however, the Supreme Court reversed its prior position and held for the first time that Fourth Amendment protections do apply to government interception of telephone conversations.

A year after the Katz decision, and after a failed attempt to address wiretapping through amendments to the Communications Act of 1934, Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968 (OCCSSA) (Pub. L. No. 90-351, 82 Stat. 212 [1968]). Section 605 of the Communications Act of 1934 was amended to provide that "no person not being authorized by the sender shall intercept any communication and divulge or publish [its] existence, contents . . . or meaning." By 1968, the provisions of the Act dealing with wiretapping had become so muddled by inconsistent interpretations of federal and state courts that Congress intervened. See Pub. L. No. 90-351, 82 Stat. 212.

Title III of the Omnibus Act created the foundation for communications privacy and electronic surveillance law. The Omnibus Act not only established a judicial process by which law enforcement officials could obtain lawful authorization to conduct electronic surveillance, but also prohibited the use of electronic surveillance by private individuals. A subsequent amendment to Title III also required telecommunications carriers to "furnish [law enforcement] . . . all information, facilities, and technical assistance necessary to accomplish [an] interception." 18 U.S.C. § 2518[4].

In 1970, Congress amended the OCCSSA (Pub. L. No. 91-644, 84 Stat. 1880 [1971]) to confirm the government's authority to lawfully require providers of communications services to provide law enforcement with the ". . . technical assistance necessary to accomplish the interception . . ." In the telecommunications environment of that time, only comparatively minor assistance from telephone companies was needed by law enforcement to accomplish the interception (e.g., identity of "access points"). However, in today's telecommunications environment, greater assistance is necessary because newer and more advanced telecommunications technologies, services, and features are now being offered by service providers.

Public Law 93-579, Privacy Act of 1974, provides that the privacy of an individual is directly affected by the collection, maintenance, use, and dissemination of personal information by Federal agencies. The increasing use of computers and sophisticated information technology has increased the threat to individual privacy that can occur when collecting, maintaining, using, and disseminating personal information. The Privacy Act provides certain safeguards against the invasion of privacy for an individual. One of the purposes of the Privacy Act is to permit individuals to determine which records pertaining to them are collected, maintained, or disseminated to other agencies and grants individuals the right to access and amend those records if they are not accurate, relevant, current, or complete In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA) (50 U.S.C. §§ 1801-1843) to safeguard national security by authorizing select government agencies to conduct electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information. Section 1805(b)(2)(B) of FISA requires that common carriers furnish ". . . all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference . . ." with the services of the target of electronic surveillance.

In 1986, as a result of developments in telecommunications and computer technologies, Congress found it necessary to enact the Electronic Communications Privacy Act (Pub. L. No. 99- 508, 100 Stat. 1848 [1986]), which amended the OCCSSA by broadening its coverage to include electronic communications (including electronic mail, data transmissions, faxes, and pagers). The provisions of Title III of the OCCSSA, as amended, continue to govern the procedures for obtaining legal authority for initiating and conducting lawful interceptions of wire, oral, and electronic communications for criminal investigatory purposes.

Lawfully-authorized electronic surveillance is considered to consist of both the interception of communications content (commonly referred to as wiretaps) and the acquisition of dialing and signaling information used to identify a call (e.g., dialed number information) through the use of pen registers and/or through the use of trap and trace devices.

The term interception is defined by law and refers to the lawful acquisition of the contents of any wire, electronic or oral communication (e.g., signs, signals, writing, images, sounds, data, or intelligence of any nature) transmitted from one party to another. Authority for initiating an interception is found in Title III of the OCCSSA or FISA.

The term pen register is defined by law and refers to the lawful acquisition of certain outgoing dialing, routing, addressing, or signaling information. Authority for using a pen register is found in 18 U.S.C. § 3123 and 50 U.S.C. § 1842. The term trap and trace is defined by law and refers to the lawful acquisition of dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication. Authority for using a trap and trace device is also found in 18 U.S.C. § 3123 and 50 U.S.C. § 1842.

CALEA

In October 1994, Congress again took action to protect public safety and national security by enacting CALEA, (Pub. L. No. 103-414, 108 Stat. 4279 [1994]). The law clarifies and further defines the existing statutory obligations of providers of telecommunications services in assisting law enforcement in executing electronic surveillance court orders.

CALEA does not change or expand law enforcement's fundamental statutory authority to conduct various types of electronic surveillance. It seeks to ensure that after law enforcement obtains the appropriate legal authority, telecommunications carriers will have the necessary technical capability and sufficient capacity to fulfill their statutory obligations to assist law enforcement. In many instances, telecommunications carriers do not have the capability to handle all electronic surveillance court orders. CALEA sets forth the assistance capabilities that telecommunications carriers are legally required to have and maintain within their networks to assist law enforcement in conducting lawfullyauthorized electronic surveillance. Specifically, CALEA directs the telecommunications industry to design, develop, and deploy solutions that meet specific assistance capability requirements delineated in Section 103 of CALEA.

CALEA also recognizes that some existing equipment, services, and features would have to be retrofitted and includes a provision by which the Attorney General may reimburse the industry for modifications made to equipment, facilities, and services installed or deployed on or before January 1, 1995.

CALEA was enacted to ensure that ongoing technological changes in the telecommunications industry would not compromise the ability of federal, state, and local law enforcement agencies to conduct lawfully-authorized electronic surveillance. To that end, CALEA obligates telecommunications carriers to ensure that their equipment, facilities, and services are technically capable of expeditiously isolating and delivering to law enforcement agencies all communications content and call-identifying information that law enforcement is authorized to acquire.

CALEA requires carriers to be capable of ". . . delivering intercepted communications and call-identifying information . . . by means of equipment, facilities, or services procured by the government to a location other than the premises of the carrier. . ." Carriers must install and activate appropriate software and any applicable switch platform specific hardware to provide carriers the necessary capability.

When CALEA was enacted into law in 1994, Congress authorized $500 million to be appropriated to reimburse the telecommunications industry for certain eligible costs associated with modifications to their networks. This dollar amount was authorized to remain available until expended. CALEA was subsequently amended by The Omnibus Consolidated Appropriations Act of 1997, which created the Telecommunications Carrier Compliance Fund (TCCF) and appropriated $60 million in initial CALEA funding. The purpose of the TCCF is to facilitate the disbursement of funds available for CALEA implementation. Additionally, the Act authorized agencies with law enforcement and intelligence responsibilities to transfer unobligated balances into the TCCF, subject to applicable Congressional reprogramming requirements.

Because of the nature of older telephone technology and of law enforcement's traditional interception methods, previous generations of telephone equipment and services had virtually a 100 percent capacity to accommodate all court-authorized electronic surveillance. However, many of the newer generations of telephone systems were designed in a way that inadvertently limited or provided no capacity for conducting any kind of electronic surveillance.

Section 104 of CALEA sets forth notices of maximum and actual capacity requirements to accommodate all electronic surveillance events that telecommunications carriers may need to conduct for LEAs. Subsection 104(b) requires that telecommunications carriers ensure that they were capable of accommodating simultaneously the actual number of interceptions, pen registers, and trap and trace devices estimated by the Attorney General, as well as expanding to the estimated maximum capacity required thereafter.

On October 16, 1995, the FBI published an Initial Notice of Capacity, 60 Fed. Reg. 53,643 (1995) for local exchange, cellular, and broadband Personal Communications Services (PCS) carriers. The notice proposed requiring carriers in major urban areas to install a maximum surveillance capacity of 1% of "engineered capacity," equal to one out of every one hundred phone lines. 60 Fed. Reg. 53643 (Oct. 16, 1995). The proposal produced a firestorm of controversy. The FBI published the Telecommunications Carrier Statement Notice, 61 Fed. Reg. 15,974 (1996) on April 10, 1996, for carriers to comment on the collection of information necessary to implement section 104 of CALEA.

On January 14, 1997, the FBI published a Second Notice of Capacity, 62 Fed. Reg. 1902 (1997) for local exchange, cellular and broadband Personal Communications Services (PCS) carriers. One potential reading of the notice would require just one of the wireline carriers in Los Angeles to install the capacity to perform 136,000 simultaneous intercepts.

The Final Notice of Capacity, 63 Fed. Reg. 12,218 (1998) was published on March 12, 1998, providing law enforcement's capacity requirements for local exchange, cellular, and broadband personal communications services (PCS). As mandated by CALEA, telecommunications carriers were required to file Carrier Statements by September 8, 1998, identifying any systems or services that did not have the capacity to accommodate the published requirements. Effective March 12, 2001, carriers must comply with the capacity requirements as specified in the Final Notice of Capacity pursuant to the FBI's Cost Recovery regulations. According to one analysis, cumulatively the Final Notice produced high capacity requirements, ones higher even that the 1 in 100 phone lines requirement in the FBI's first, discredited notice.

CALEA required that capacity requirements be expressed in terms of "simultaneous" interceptions. Law enforcement chose to consider interceptions occurring on the same day, rather than at exactly the same moment, as being simultaneous. Some surveys find that people typically spend about half an hour talking on the telephone every day. Thus the theoretical total number of individuals who might be subject to monitoring could be upwards of 50 times the stated capacity.

The nominal character of the capacity requirements for the 3,146 counties can be summarized by the following statistics. Over 66 percent of all counties (2,089) have an actual capacity requirement of two and a maximum capacity requirement of three simultaneous interceptions. These thresholds were based on a county historic experience of one interception. Approximately 90 percent of all counties (2,807) have an actual capacity requirement of twelve or less and a maximum capacity requirement of sixteen simultaneous interceptions or less. A relatively small number of counties have estimated actual and maximum capacity numbers may be somewhat sizeable, (e.g., 17 out of the 3,146 counties have maximum capacity requirements of 235 or more -- Manhattan led the list with 401).

The nominal character of the capacity requirements for the 734 cellular market service areas can be summarized by the following statistics. Approximately 70 percent of all markets (510) have an actual capacity requirement of two and a maximum capacity requirement of four simultaneous interceptions. This threshold was based on a market service area historic experience of one interception. Over 83 percent of all cellular market service areas (614) have an actual capacity requirement of twelve or less and a maximum capacity requirement of twenty simultaneous interceptions or less.

A decade after its enactment, the statute had not yet been fully implemented. The industry has not adopted the development and deployment of electronic surveillance capabilities as a basic element of providing service, and has resisted full implementation of CALEA through multiple litigations, requests for extensions, and other means. By the end of 2004, the FBI expected only 40 percent of law enforcement priority switches to have CALEA technical solutions deployed.

On March 10, 2004, DOJ, the FBI, and DEA filed a "Joint Petition for Expedited Rulemaking" in which they requested the Commission to take certain steps to accelerate CALEA compliance. Based on this petition and comments received in response, the FCC has undertaken a comprehensive review of issues relating to CALEA implementation, including policies regarding section 107(c) extensions and section 109(b) petitions. See In the Matter of Communications Assistance for Law Enforcement Act and Broadband Access and Services, FCC 04-187, 2004 WL 1774542 (August 9, 2004).