Bikers Of America, Know Your Rights!: USA - Communications Assistance for Law Enforcement Act

OFF THE WIRE
Note: The following information is provided for general reference purposes only and should not be relied upon for a full and complete understanding of the CALEA statute. Carriers and others seeking to know how they are affected by CALEA should consult the statute and relevant FCC rules, Orders, and other publications, as well as rules and other documents published by the United States Department of Justice and the Federal Bureau of Investigation (FBI).
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Introduction

In response to concerns that emerging technologies such as digital and wireless communications were making it increasingly difficult for law enforcement agencies to execute authorized surveillance, Congress enacted CALEA on October 25, 1994. CALEA requires a "telecommunications carrier," as defined by the CALEA statute, to ensure that equipment, facilities, or services that allow a customer or subscriber to "originate, terminate, or direct communications," enable law enforcement officials to conduct electronic surveillance pursuant to court order or other lawful authorization. CALEA is intended to preserve the ability of law enforcement agencies to conduct electronic surveillance by requiring that telecommunications carriers and manufacturers of telecommunications equipment design and modify their equipment, facilities, and services to ensure that they have the necessary surveillance capabilities as communications network technologies evolve. Communications services utilizing Circuit Mode equipment and facilities, and communications services utilizing packet mode are all subject to CALEA. In May 2006, the FCC issued a Second Report and Order also requiring facilities-based broadband Internet access providers and providers of interconnected Voice over Internet Protocol (VoIP) service to come into compliance with CALEA obligations no later than May 14, 2007.

CALEA Compliance - Some Basic Information

Pursuant to CALEA, industry is generally responsible for setting CALEA standards and solutions. Unless a party files a special petition pursuant to CALEA section 107(b), the Commission does not get formally involved with the compliance standards development process. CALEA also does not provide for Commission review of manufacturer-developed solutions. Entities subject to CALEA are responsible for reviewing the Commission's regulations and analyzing how this regulation applies per their specific network architecture.
A telecommunications carrier may comply with CALEA in different ways. First, the carrier may develop its own compliance solution for its unique network. Second, the carrier may purchase a compliance solution from vendors, including the manufacturers of the equipment it is using to provide service. Third, the carrier may purchase a compliance solution from a trusted third party (TPP). See CALEA Second Report and Order at para. 26. To contact TPPs, carriers may conduct an Internet search using such key words as "CALEA compliance" and "CALEA compliance help," or any combination that will yield a display of TPPs.

Compliance Requires the Filing of System Security and Integrity (SSI) Plans

Additionally, telecommunications carriers, as defined by CALEA section 102(8), must file and maintain up-to-date System Security and Integrity (SSI) plans with the Commission, as those plans are described in 47 C.F.R. § 1.20005. This information includes a description of how the service provider complies with CALEA, including carrier contact information which the FCC shares with the FBI. Such information is not disclosed to the public. This information collection has been approved by the Office of Management and Budget, control number 3060-0809, 77 FR 156 (2012). A sample SSI plan checklist is available online: CALEA Checklist 2013.

Compliance for Circuit-Mode Equipment, Facilities or Services

If your switching equipment was placed in service prior to January 1, 1995, you are already deemed compliant temporarily with CALEA's capability requirements, pursuant to CALEA section 109(d), subject to the process described in that section. Carriers with equipment deployed prior to January 1, 1995 should note that when any of their "equipment, facility or service is replaced or significantly upgraded or otherwise undergoes major modification," they must become fully compliant with CALEA's capability requirements. See CALEA § 109(d); 47 USC §1008(d).
For those carriers who installed switching equipment on January 1, 1995 or later, these carriers must comply with CALEA section 103's surveillance capability requirements unless they have filed petitions for relief and obtained relief from these requirements as discussed below.

CALEA Compliance for Packet Equipment, And Equipment for Facilities-Based Broadband Internet Access Providers and Providers of Interconnected VoIP

All facilities-based broadband Internet access providers and providers of interconnected VoIP service must ensure that their services comply with CALEA upon launch. These compliance requirements include wireless services, routing and soft switched services, and internet-based telecommunications present in applications used by telecommunications devices. In the May 12, 2006 Commission second CALEA order, the Commission found that section 107(c)(1) may not be used by entities seeking extensions for equipment, facilities, and services deployed on or after October 25, 1998 (the effective date of the CALEA section 103 and 105 requirements).

Reference Web Sites

The following organizations provide information on their web sites that telecommunications carriers may find useful to research what various industry organizations are doing to develop CALEA section 103 compliance standards and solutions. Please note that this list is not exhaustive, and that the Commission does not approve or endorse the information contained in these web sites. In addition, by referencing these organizations, the Commission in no way endorses these organizations, their advice, or their opinions. These web sites are presented purely for informational purposes only. Accordingly, we encourage everyone to consult legal counsel when making CALEA compliance determinations and selecting CALEA compliance solutions.

Contact the FBI

The FCC encourages all carriers to consult with the FBI if they have questions about their CALEA compliance plans. Carriers may contact the FBI's CALEA Implementation Program at the National Domestic Communications Assistance Center (NDCAC), directly at the following address or phone number:

FBI Quantico Engineering Research Facility (ERF) NDCAC, Building 27958A Quantico, VA 22135, Toll Free Telephone: (855) 306-3222 or (540) 361-4600. Also see http://askcalea.fbi.gov/.

Petitions for Relief

Section 107(c)(1) Petitions for Temporary Relief

CALEA section 107(c)(1) permits a petitioner to apply for an extension of time, up to two years from the date that the petition is filed, to come into compliance with a particular CALEA section 103 capability requirements. Under section 107(c)(1), a petitioner may seek an extension of time only for equipment, facilities, or services ("services") installed or deployed prior to October 25, 1998. The Commission issued new section 107(c) filing instructions in Appendix F to the CALEA Second Report and Order. As stated in those instructions, section 107(c) extensions of time will only be available for "any equipment, facility, or service" installed or deployed before October 25, 1998.

Section 109(b)(1) Petitions for Cost-Shifting Relief

CALEA section 109(b) permits a "telecommunications carrier," as that term is defined by CALEA, to file a petition with the FCC and an application with the Department of Justice (DOJ) to request that DOJ pay the costs of the carrier's CALEA compliance (cost-shifting relief) with respect to any equipment, facility or service installed or deployed after January 1, 1995. First, the carrier must file a section 109(b)(1) petition with the FCC and prove that, based on one or more of the criteria set forth in section 109(b)(1)(A)-(K), implementation of at least one particular solution that would comply with a particular CALEA section 103 capability requirement is not "reasonably achievable." Second, if the Commission grants a section 109(b)(1) petition, the carrier must then apply to DOJ, pursuant to section 109(b)(2), to pay the reasonable costs of compliance for one of the solutions proposed in the section 109(b)(1) petition. DOJ may then either pay the reasonable costs of compliance or deny the application.
If DOJ denies the section 109(b)(2) application, then the carrier is deemed to be CALEA compliant for the facilities, networks, and services (facilities) described in the section 109(b)(1) petition until those facilities are replaced, significantly upgraded or otherwise undergo a major modification. When those facilities are replaced, significantly upgraded or otherwise undergo a major modification, the carrier is obligated under the law to become CALEA compliant. The FCC may also specify in its CALEA section 109(b)(1) order granting a carrier's petition the specific date when the replacement, upgrade or modification will occur and when CALEA compliance is required. Thus, a carrier's obligation to comply with all CALEA requirements is only deferred when (1) the FCC grants a section 109(b)(1) petition, and (2) DOJ declines to pay the additional reasonable costs to comply with one or more of the CALEA requirements. No qualifying carrier is exempt from CALEA.
Section 109(b)(1) petitions must be adequately supported, and the FCC decides whether to grant the petition strictly in reference to criteria set out in section 109(b)(1). Accordingly, carriers are encouraged to consult with competent legal and technical counsel before filing such a petition. Please note that a filing fee of $6,085.00 is required to accompany all CALEA section 109(b)(1) petitions filed with the FCC. See Appendix E entitled "Section 109(b)(1) Petitions for Cost-Shifting Relief: Filing Instructions," and paragraphs 38-57 of the CALEA Second Report and Order for detailed filing instructions and further explanation of the scope of relief, and its limitations, available under section 109(b).

Filing Procedures for Section 107(c)(1) And Section 109(b)(1) Petitions

All CALEA section 107(c)(1) and 109(b)(1) petitions must reference ET Docket No. 04-295.

Parties must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
All filings, orders and any other information provided in a section 109(b)(1) proceeding shall be treated as presumptively confidential pursuant to section 0.457(g) of the Commission's rules, 47 C.F.R. § 0.457(g) and must be filed under seal by the petitioner. Petitioners must mark the top of each page of their petitions: "Confidential - Not for Public Inspection." Persons seeking access to any information from a section 109(b)(1) proceeding must request such access pursuant to section 0.461 of the Commission's rules. 47 C.F.R. § 0.461.
The filing fee for a section 109(b)(1) petition is $6,085.00. See 47 C.F.R. § 1.1102 (21).
The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW, Washington D.C. 20554.
Parties also should send a copy of their filings to: David Ward, Senior Legal Advisor, Policy Division, Public Safety and Homeland Security Bureau, 445 12th Street, SW, Washington, DC 20554. Questions regarding CALEA system security and integrity plans may be directed to David Ward via e-mail, david.ward@fcc.gov and telephone, (202) 418-2336.

Non-confidential documents in ET Docket No. 04-295 may be obtained from Best Copy and Printing, Inc., in person at 445 12th St., S.W., Room CY-B402, Washington, DC 20554, via telephone at (202) 488-5300, via facsimile at (202) 488-5563, or via e-mail at fcc@bpciweb.com. Non-classified documents also will be available for public inspection and copying during regular business hours in the FCC Reference Information Center, Room CY-A257, 445 12th St. S.W., Washington, DC 20554, and through the Commission's Electronic Filing System (ECFS).
To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

Releases

5/12/2006
FCC released a Second Report and Order and Memorandum Opinion and Order.
Order: Word | Acrobat
9/23/2005
FCC released a First Report and Order and Further Notice of Proposed Rulemaking requiring certain Broadband and VoIP Providers to comply with CALEA section 103's surveillance capability requirements.
Order: Word | Acrobat
9/23/2004
The Office of Engineering and Technology released a Declaratory Ruling, which clarified that commercial wireless "push-to-talk" services continue to be subject to the CALEA, regardless of the technologies that Commercial Mobile Radio Services (CMRS) providers choose to apply in offering them.
Declaratory Ruling: Word | Acrobat
8/9/2004
FCC released a Notice of Proposed Rulemaking (NPRM) in the matter of Communications Assistance for Law Enforcement Act and Broadband Access and Services.
NPRM: Word | Acrobat
3/12/2004
The Office of Engineering and Technology released a Public Notice requesting comments sought as a result of the rulemaking proceeding.
Public Notice: Word | Acrobat
11/19/2003
Public Notice by the Wireline Competition and Wireless Telecommunications Bureaus Announces a Revised Schedule for Consideration of Pending Packet Mode CALEA Section 107(C) Petitions and Related Issues.
Public Notice: Word | Acrobat
4/11/2002
Order on Remand requires that wireline, cellular and broadcast PCS carriers provide "punch list" electronic surveillance capabilities by June 30, 2002.
Order: Word | Acrobat
9/28/2001
Public Notice on the Common Carrier and Wireless Telecommunication Bureaus Establishes Procedures for Carriers to Submit or Supplement CALEA, Section 107(c) Extension Petitions, Both Generally With Respect to Packet-Mode and Other Safe Harbor Standards.
Public Notice: Word | Acrobat
9/21/2001
CALEA Order temporarily suspends the September 30, 2001 compliance date and grants carriers until November 19, 2001 to come into compliance.
Order: Word | Acrobat
8/15/2001
The Communications Assistance for Law Enforcement Act (CALEA), Section 107(C)Extension of Capability Requirements. Grants an extension for compliance with the assistance capability requirements of section 103 of CALEA, 47 U.S.C. Section 1002(a)(1)-(4) until the dates agreed to by the FBI as set forth in each carrier's individual FBI support letter.
Order: Word | Acrobat
4/16/2001
Second Order on Reconsideration clarifies arrangements that carriers must make to interact with LEAs.
Order: Word | Acrobat
3/15/2001
Wireless Telecommunications Bureau extends CALEA Section 107(c) preliminary determination period for wireless carriers until September 30, 2001; Seeks comment on additional extension petitions.
Order: Word | Acrobat
6/30/2000
Public Notice by the Wireless Telecommunications Bureau to Announce CALEA Section 107(c) extension petitions filed and deemed to have an extension to March 31, 2001.
Order: Word | Acrobat
4/25/2000
CALEA Section 103 Compliance and Section 107(c) Petitions provides instructions for carriers needing an extension of the deadline for complying with CALEA.
Order: Word | Acrobat
8/31/1999
Third Report & Order adopts technical requirements for carriers to comply with CALEA.
Order: Acrobat
8/31/1999
Second Report & Order defines telecommunications carriers and discusses how the definition applies to various types of service providers.
Order: Acrobat
9/11/1998
Memorandum Opinion and Order grants an extension to June 20, 2000 for complying with CALEA.
M&O: Word | Acrobat

PSHSB CALEA Team

Tom Beers: Chief, PSHSB Policy and Licensing Division; Phone: (202) 418-0952
David Ward: Senior Legal Advisor, PSHSB Policy and Licensing Division; Phone: (202) 418-2336
Jane Kelly: Attorney Advisor, PSHSB Policy and Licensing Division; Phone: (202) 418-2832
Kim Anderson: CALEA Records Administrator, PSHSB Policy and Licensing Division; Phone: (202) 418-7604