Since early January, when the Federal Communications Commission asked for comments on its 2005 ruling ordering schools and businesses to give the police access to their Internet systems, almost three dozen parties have filed opinions on the matter.

Most of the remarks can be summarized in three words: No, no, and no.

The FCC wants broadband to obey the Communications Assistance for Law Enforcement Act (CALEA), originally written to make telephone companies open up their digital lines to the cops (see LL-FCC, January 15, 2006).

Lutheran and Mennonite college presidents, the president of FCC Chair Kevin Martin's alma mater, library associations, civil liberties groups, computer science groups, Internet Service Providers (ISPs), and telecom trade associations all agree: The FCC plan either doesn't apply to them, won't work for them, is too vaguely defined, violates civil liberties, or they're just not ready for the 18 month compliance deadline to obey the ruling.

"With almost the entire universe of the communications and Internet industries saying to the Commission that 'we do not know what CALEA means in the broadband context'," concludes the statement of one group of petitioners, "the bald assertions to the contrary by DOJ and a single company (a company that not coincidentally is in the business of selling CALEA compliance services) cannot be given any credence."

Other than that, the plan is a hit.

Background

Congress passed CALEA in 1994 in response to the changing nature of telephone technology. Once telecom companies began using digital signals and decentralized packet switching software, it became harder to predict where a telephone conversation would travel over the wires. Wiretapping became a lot more difficult.

CALEA made telephone companies redesign their infrastructures so that the FBI and other agencies could more easily monitor telephone conversations in the new digital environment. But in March, 2004 the Department of Justice (DOJ), the FBI, and the Drug Enforcement Agency (DEA) filed a petition complaining that Internet and telecommunications companies resisted compliance with CALEA. The petitioners asked the FCC "to reaffirm that packet-mode communications services are subject to CALEA and, having done so, to establish rules that formally identify the services and entities that are covered by CALEA, so that both law enforcement and industry are on notice with respect to CALEA obligations and compliance."

On August 5, 2005, the FCC came through for the FBI and DEA. The Commission found that VoIP providers (broadband telephone service) and ISPs can easily step in for more traditional telephone services. Therefore, they "must be prepared to accommodate law enforcement wiretaps."

The Commission gave industry a year and a half to revamp their architecture, with the possible exception of rural ISPs.

Static

The cyberworld, both public and private, responded to the FCC's ruling with an uproar of protest. In late October, the American Council on Education asked the U.S. Court of Appeals for the District of Columbia to review the FCC's decision.

And on November 14th, the United States Telecom Association (USTA) filed a Petition for Reconsideration and Clarification with the FCC. The Commission granted that petition and opened up a short pleading cycle on January 4, 2006.

Almost all the non-law enforcement responses to the FCC since then have, at minimum, requested a considerable delay in implementing the Commission's original proposal.

The National Telecommunications Cooperative Association (NTCA) and the Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTC) have asked the FCC to postpone their 18 month deadline until the commission more fully spells out compliance requirements and decides whether small broadband facilities and rural broadband providers should be exempt from the order.

CTIA, the Wireless Association, a trade group for wireless providers, filed a similar request, as did the Satellite Industry Association, and the United Power Line Trade Council, a trade group for companies that provide Broadband over Power Line services (BPL).

Universities protest that they cannot afford to pay the cost of retooling their broadband infrastructures to make them more accessible.

"Who will ultimately pay the multiple million dollar price tag for Virginia's institutions of higher education to comply with this unfunded and expansive mandate?" Eastern Mennonite University President Loren E. Swartzendruber wrote to FCC Chair Kevin Martin on February 28th. "From our perspective, Virginia's public and private college students, and their families, will experience additional, and possibly unacceptable, costs if we are required to finance this mandate."

Other schools argue that CALEA doesn't apply to them. "The history is clear that the Congress did not intend for CALEA to cover higher education networks," Duke University President Richard Brodhead wrote to the FCC in a letter that also invited FCC Chair Kevin Martin to speak at his alma mater.

Campus officials point out that the original statute that created CALEA specifically exempted "equipment, facilities, or services that support the transport or switching of communications for private networks." South Dakota State University was one of a number of schools that filed a statement contending that this would include non-commercial entities, such as colleges.

But in their August 5th, 2005 decision, the FCC added that "to the extent these private networks are interconnected with a public network, either the PSTN [Public Switched Telephone Network] or the Internet, providers of the facilities that support the connection of the private network to a public network are subject to CALEA . . . "

Since everyone is connected to the Internet, universities and libraries want the Commission to reaffirm that they are exempt from the law.

The American Library Association's filing spelled out their understanding of CALEA: "[P]rivate local or regional municipal networks, campus networks or through affiliation with regional and national high-speed networks such as Internet2’s Abilene network and its local affiliates are not covered by CALEA either," they wrote on January 30th, "but the commercial access provider supporting connection to the public Internet would have the primary obligation."

Needless to say, the American Civil Liberties Union filed comments on this controversy. A January 19th ACLU statement warns that the alleged vagueness of the FCC's August 5th ruling—"with no sign from the Commission on how to implement CALEA with respect to broadband and VoIP"—will result in "unnecessary and unwarranted electronic surveillance" by ISPs forced to implement CALEA on the fly.

But the Department of Justice's comments to the FCC come close to calling all this bunk. Also filed on January 19th, they dismissed USTA's "professed confusion" regarding how to implement CALEA on broadband.

"CALEA places the initial responsibility for deciding how the assistance-capability requirements in Section 103(a) [the law creating CALEA] are to be implemented on industry, through the standard-setting process," the DOJ argues. "Thus, industry, not the Commission, is in fact responsible for the next step of the process."

Operators are standing by

In this claim, the Justice Department has the support of one vocal member of the private sector: VeriSign, the data network security company. VeriSign filed comments on January 30th charging that USTA and the "small collection of parties" supporting its position "defy the plain language of CALEA and the facts in the proceeding."

The company also asserts that "there is no broadband or VoIP provider who cannot become fully compliant today—much less by 17 May 2007 [the 18 month FCC deadline set in August 2005]—with the simple implementation of readily available products or the procurement of a cost-effective, competitive CALEA third party service bureau offerings such as those provided by VeriSign."

To which a group of media reform groups rushed a quick, formal reply. "It is undeniable that the Commission’s First Report and Order has led to a dramatic amount of uncertainty across the communications and Internet industries," declared a consortium of nine filers that included the Electronic Frontier Foundation. "Until the uncertainty is addressed, the Commission should stay the ticking compliance clock.

The clock has been ticking since January 30th, 2006—the FCC's final deadline for comments. The public now awaits the FCC's resolution of this contentious issue.