Digital Surveillance: The Communications Assistance for Law Enforcement Act







Prepared for Members and Committees of Congress



The Communications Assistance for Law Enforcement Act (CALEA, P.L. 103-414, 47 U.S.C.
1001-1010), enacted October 25, 1994, is intended to preserve the ability of law enforcement
officials to conduct electronic surveillance effectively and efficiently despite the deployment of
new digital technologies and wireless services that have altered the character of electronic
surveillance. CALEA requires telecommunications carriers to modify their equipment, facilities,
and services, wherever reasonably achievable, to ensure that they are able to comply with
authorized electronic surveillance actions.
Since 2004, the Federal Communications Commission (FCC) has been considering a number of
questions as to how to apply CALEA to new technologies, such as Voice over Internet Protocol
(VoIP). In August 2005, in response to a March 2004 petition by a group of law enforcement
agencies, the FCC released a Notice of Proposed Rulemaking and Declaratory Ruling which
required providers of certain broadband and interconnected VoIP services to accommodate law
enforcement wiretaps. The FCC found that these services could be considered replacements for
conventional telecommunications services already subject to wiretap rules, including circuit-
switched voice service and dial-up Internet access. The Order is limited to facilities-based
broadband Internet access service providers and VoIP providers that offer services that use the
public switched telephone network (“interconnected VoIP providers).
In May 2006, the FCC addressed several outstanding issues regarding CALEA implementation.
Among other clarifications, the FCC (1) affirmed its May 14, 2007 compliance deadline for
facilities-based broadband Internet access and interconnected VoIP services, and clarified that the
date applied to all such providers; (2) explained that the FCC does not plan to intervene in the
standards-setting process in this matter; (3) permitted telecommunications carriers the option of
using Trusted Third Parties to assist in meeting their CALEA obligations; (4) restricted the
availability of compliance extensions to equipment, facilities, and services deployed prior to
October 25, 1998; (5) found that the FCC may enforce action under section 229(a) of the
Communications Act against carriers that fail to comply with CALEA; and (6) concluded that
carriers are responsible for CALEA development and implementation costs for post-January 1,
1995, equipment and facilities, and declined to adopt a national surcharge to recover CALEA
costs.
In June 2006, the United States Court of Appeals for the District of Columbia Circuit affirmed the
FCC’s decision concluding that VoIP and facilities-based broadband Internet access providers
have CALEA obligations similar to those of telephone companies.






Backgr ound ..................................................................................................................................... 1
Some Technical Terms..............................................................................................................1
CALEA’s Main Provisions..............................................................................................................2
Major Events Following Enactment of CALEA.............................................................................3
Initial Delays.............................................................................................................................3
The FBI’s “Punch List”.............................................................................................................4
Capacity Requirements.............................................................................................................5
Previous FCC Actions...............................................................................................................5
Government Activity: 2004 - Present..............................................................................................7
FBI Activity...............................................................................................................................8
Comments to the FCC’s Wireless Broadband Task Force Report......................................8
Notice of Information Collection Under Review................................................................8
Petition for Declaratory Ruling...........................................................................................8
Inspector General Report....................................................................................................8
FCC Activity.............................................................................................................................9
Declaratory Ruling..............................................................................................................9
First Report and Order........................................................................................................9
Second Report and Order..................................................................................................10
Court Challenge.................................................................................................................11 th
Congressional Activity: 110 Congress...................................................................................11
Author Contact Information...........................................................................................................11






In the early 1990s the Federal Bureau of Investigation (FBI) asked Congress for legislation to
assist law enforcement agencies to continue conducting electronic surveillance. The FBI argued
that the deployment of digital technologies in public telephone systems was making it
increasingly difficult for law enforcement agencies to conduct electronic surveillance of
communications over public telephone networks. As a result of these arguments and concerns 1
from the telecommunications industry, as well as issues raised by groups advocating protection 2
of privacy rights, the Communications Assistance for Law Enforcement Act (CALEA) was rd
enacted on October 25, 1994 (47 U.S.C. 1001-1021), in the final days of the 103 Congress.
CALEA is intended to preserve the ability of law enforcement officials to conduct electronic
surveillance effectively and efficiently, despite the deployment of new digital technologies and
wireless services by the telecommunications industry. CALEA requires telecommunications
carriers to modify their equipment, facilities, and services to ensure that they are able to comply
with authorized electronic surveillance. These modifications were originally planned to be
completed by October 25, 1998. Since that time, the Federal Communications Commission
(FCC) issued two additional orders establishing June 30, 2002, as the date by which 3
telecommunications carries must have upgraded all their systems. Equipment manufacturers
have fulfilled their obligation to provide CALEA solutions and carriers are implementing them.
The FBI and FCC continue to monitor and review the implementation of this program.
As a result of the revolution in digital technology in telecommunications, the process of
wiretapping and other electronic surveillance has become more complex, and legal ambiguities
have been introduced. As a background to understanding the problems associated with CALEA
implementation, the definitions of several terms are necessary. Electronic surveillance refers to
either the interception of communications content (as in a conversation) also known as
wiretapping, or the acquisition of call-identifying information (the number dialed). The latter
activity is accomplished through the use of pen register devices, which capture call-identifying
information for numbers of outgoing calls from the location of lawful interception, and traps and
traces, which capture information for numbers received at the location of lawful interception,
much like consumer caller ID systems. Under current federal law, law enforcement (i.e., police or
the FBI) must obtain a court order before conducting any of these activities. However, a wiretap
requires a higher “evidentiary burden” than a pen register or trap and trace, including showing

1 In this report, the telecommunications industry includes common carrier telephone companies, mobile wireless
telecommunications providers, telecommunications equipment manufacturers, and other entities that provide
telecommunications services to the public.
2 Privacy rights groups involved in the CALEA debate include the Electronic Privacy Information Center, the
Electronic Frontier Foundation, advocacy groups which both support on-line privacy rights of individuals, the Center
for Democracy and Technology, which also advocates electronic privacy (and is funded primarily by the
telecommunications, computer, and media industries), and the American Civil Liberties Union (ACLU), which
represents a broad array of civil rights based on the First and Fourth Amendments.
3 United States Department of Justice, Federal Bureau of Investigation, Communications Assistance for Law
Enforcement Act, Eighth Annual Report to Congress, November 30, 2002 (Eighth Annual Report), pp. 7-9.





that there is probable cause for believing that a person is committing one of a list of specific 4
crimes.
Under traditional analog technology, it was easy to separate the above categories of electronic
surveillance. However, the advent of digital signal transmission technologies has made that
distinction less clear. Information signals (voice or data) can be transmitted over telephone 5
networks in one of two ways: circuit-switched and packet-switched modes. In circuit-switched
systems, a communications path is established between the parties and dedicated exclusively to
one conversation for the duration of the call. In packet-switched systems, the information is
broken down into smaller pieces called “packets”using a digital process. Each packet contains a
small part of the message content along with call-identifying information called a “header” that
indicates the origination and destination points of the information. Each packet is transmitted
separately and is reassembled into the complete message at the destination point.
The packet-switched mode is the signal transmission technology used in all Internet
communications. Packet switching is considered a more efficient use of a network than circuit
switching because the same line can be used for multiple communications simultaneously.
Although the circuit-switched mode was historically used in all voice telephone calls, the packet-
switched mode is increasingly being used for voice and data transmissions over telephone
networks.

CALEA requires telecommunications carriers to assist law enforcement in performing electronic
surveillance on their digital networks pursuant to court order or other lawful authorization. The
telecommunications industry, privacy rights groups, and law enforcement agencies agree that
CALEA was not intended to expand law enforcement’s authority to conduct electronic
surveillance. On the contrary, CALEA was intended only to ensure that after law enforcement
obtains the appropriate legal authority, carriers will have the necessary capabilities and sufficient
capacity to assist law enforcement in conducting digital electronic surveillance regardless of the
specific telecommunications systems or services deployed.
CALEA (47 U.S.C. 1002) directs the telecommunications industry to design, develop, and deploy
solutions that meet certain assistance capability requirements for telecommunications carriers to
support law enforcement in the conduct of lawfully-authorized electronic surveillance. Pursuant
to a court order or other lawful authorization, carriers must be able, within certain limitations, to:
(1) expeditiously isolate all wire and electronic communications of a target transmitted by the
carrier within its service area; (2) expeditiously isolate call-identifying information that is
reasonably available on a target; (3) provide intercepted communications and call-identifying
information to law enforcement; and (4) carry out intercepts unobtrusively, so targets are not
made aware of the electronic surveillance, and in a manner that does not compromise the privacy
and security of other communications.

4 See CRS Report 98-326, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic
Eavesdropping, by Gina Marie Stevens and Charles Doyle.
5 Switches are network devices that select a path or circuit for sending data to its next destination over the telephone
network. Switches may also include functions of the router, a device also used in computer networks, that determines
the route and adjacent network point for data to be sent.





To allow carriers to give law enforcement the means to conduct its wiretaps, CALEA (47 U.S.C.
1003) requires the Attorney General to determine the number of simultaneous interceptions (law
enforcement agencies’ estimate of their maximum capacity requirements) that
telecommunications carriers must be able to support.
To maintain privacy rights of individuals, CALEA (47 U.S.C. 1004) requires telecommunications
carriers to ensure that any interception of communications or access to call-identifying
information that is conducted within their premises can only be done with a court order. It also
requires the specific intervention of an officer or employee of the carrier acting in accordance
with regulations prescribed by the Federal Communications Commission (FCC).
CALEA (47 U.S.C. 1005) directs telecommunications carriers to consult with
telecommunications equipment manufacturers to develop equipment necessary to comply with
the capability and capacity requirements identified by the FBI. For efficient industry-wide
implementation of the above requirements, CALEA (47 U.S.C. 1006) directs the law enforcement
community to coordinate with the telecommunications industry and state utility commissions to
develop suitable technical standards and establish compliance dates for equipment. In its Eighth
Annual Report, the FBI stated that, “to date, most manufacturers have either complete, or nearly 6
complete, CALEA solutions available for their carrier customers.”
CALEA (47 U.S.C. 1008) gives the Attorney General, subject to the availability of
appropriations, authority to pay telecommunications carriers for all reasonable costs directly
associated with the modifications performed by carriers in connection with equipment, facilities,
and services installed or deployed on or before January 1, 1995 (known as the “grandfather”
date).

CALEA gave implementation responsibility to the Attorney General, who, in turn, delegated the
responsibility to the FBI. The FBI leads that nationwide effort on behalf of federal, state, and
local law enforcement agencies. FBI officials initially anticipated that it would take a year for a
standard to be developed and agreed upon by law enforcement, the telecommunications carriers,
and the equipment manufacturers. Telecommunications consultants estimated that it would take
the industry another three years to design, build and deploy new systems to comply with CALEA.
Instead, industry and law enforcement became involved in a protracted dispute over what should
be required for law enforcement’s wiretapping capabilities.
By March 1997, the completion of the capability standard was overdue by 16 months. The FBI
attempted to expedite the industry’s implementation of CALEA by releasing regulations that
included a cost recovery plan for the federal government’s payment of costs associated with
CALEA, as well as capability and capacity requirements for the industry to meet. The plan
required more extensive upgrades to networks than the telecommunications industry believed
were necessary for law enforcement to preserve its wiretapping capabilities. Industry groups and

6 Eighth Annual Report, p. 5.





privacy advocates disputed the FBI’s plan. They argued that the FBI was attempting to expand its
surveillance capabilities beyond the congressional intention of CALEA, and was attempting to
unfairly shift costs and accountability away from the federal government onto private industry.
Furthermore, the industry argued that, without an adopted capability standard, it could not begin
designing, manufacturing, and purchasing the equipment to achieve CALEA compliance.
In December 1997, the Telecommunications Industry Association (TIA, representing
telecommunications equipment manufacturers) adopted, over the objections of the law
enforcement community, a technical standard, J-STD-025, also known as the “J-standard.” This
standard prescribes upgrades to network devices to meet CALEA’s assistance capability
requirements for local exchange, cellular, and broadband personal communications services
(PCS). Although the FBI claimed that the J-standard did not provide all of the capabilities needed,
the industry asserted that CALEA’s language stated that telecommunications carriers would be
compliant if they met publicly available standards adopted by the industry.
Privacy rights groups, on the other hand, protested two aspects of the J-standard that they asserted
would make information beyond what is legally required available to law enforcement. One was a
feature enabling the telecommunications network to provide location information for users of
mobile wireless telecommunications services. The location information protocols in J-STD-025
allow law enforcement agencies to obtain information on the physical location of the nearest cell
site (i.e., the receiver/transmitter antenna and base station) of mobile phone handsets at the
beginning and end of each call. Wireless carriers are now deploying another technology (called
triangulation) that will enable the carriers, and law enforcement, to track wireless telephone users
more precisely, potentially within a few meters. The other was a feature enabling the network to
access packet-mode data from telephone calls using more advanced systems. Privacy rights
groups argued that these capabilities would violate the Fourth Amendment rights of individuals
against unreasonable searches and seizures. Despite these objections, telecommunications
manufacturers began designing new switches and upgrades to existing switches according to the
J-standard.
Currently, equipment manufacturers have successfully incorporated the J-standard into their new
equipment and carriers are now well underway with their efforts to upgrade their systems.
In the negotiations to develop the J-standard, TIA had refused to include some of the capabilities
that law enforcement officials claimed they needed to facilitate digital wiretapping. As a result, in
March 1998, the FBI petitioned the FCC to require the telecommunications industry to adopt
eleven additional capabilities. Industry and privacy rights groups protested that the FBI’s plan 7
would unlawfully expand enforcement capabilities. Eventually, the “punch-list” included the 8
following six items:

7 Thepunch list” was named as such by the telecommunications industry, which believed the FBI was improperly
forcing industry to comply with the FBIs requirements.
8 The additional capabilities originally requested by the FBI that were not included were: standardized delivery
interface; separated delivery, surveillance status; continuity check tone (c-tone); and feature status.





• Content of subject-initiated conference calls—Would enable law enforcement to
access the content of conference calls supported by the subject’s service
(including the call content of parties on hold).
• Party hold, join, drop—Messages would be sent to law enforcement that identify
the active parties of a call. Specifically, on a conference call, these messages
would indicate whether a party is on hold, has joined or has been dropped from
the conference call.
• Subject-initiated dialing and signaling information—Access to all dialing and
signaling information available from the subject would inform law enforcement
of a subject’s use of features (such as the use of flash-hook and other feature
keys).
• In-band and out-of-band signaling (notification message)—A message would be
sent to law enforcement whenever a subject’s service sends a tone or other
network message to the subject or associate (e.g., notification that a line is
ringing or busy).
• Timing information—Information necessary to correlate call-identifying
information with the call content of a communications interception.
• Dialed digit extraction—Information would include those digits dialed by a 9
subject after the initial call setup is completed.
The FBI’s subsequent implementation actions were also opposed by the telecommunications
industry. In March 1998, the FBI announced its estimated capacity requirements for local 10
exchange, cellular, and broadband PCS. The industry protested the FBI’s estimates, arguing that
it would require telephone carriers to accommodate thousands of wiretaps simultaneously, an
impractical and unnecessary burden. In July 1998, the FBI developed guidelines and procedures
to facilitate small carrier compliance with its capacity requirements, and asked carriers to identify
any systems or services that did not have the capacity to accommodate those requirements. In
December 1998, the FBI began a proceeding to develop capacity requirements for services other
than local exchange, cellular, and broadband PCS, asked additional questions of interested parties 11
in June 2000. These technologies and services included paging, mobile satellite services,
specialized mobile radio, and enhanced specialized mobile radio. To date, the proceeding is still
pending.
As a result of petitions from the industry and the FBI, the FCC became involved in the
implementation of CALEA. In October 1997, the FCC released its first Notice of Proposed Rule

9 Federal Register 63 page 63639, FCC, Further Notice of Proposed Rulemaking, November 16, 1998.
10 Federal Register 63, page 12217, FBI, Final Notice of Capacity, March 12, 1998.
11 Federal Register 63, page 70160, FBI Notice of Inquiry, December 18, 1998, and Federal Register 65, page 40694,
FBI Further Notice of Inquiry, June 30, 2000.





Making (NPRM) on CALEA implementation.12 The NPRM sought comments from interested
parties regarding a set of policies and procedures proposed by the FCC for telecommunications
carriers to follow. The proposed procedures would (1) preclude the unlawful interception of
communications, (2) ensure that authorized interceptions are performed, (3) maintain secure and
adequate records of any interceptions, and (4) determine what entities should be subject to these
requirements, whether the requirements are reasonable, and whether to grant extensions of time
for compliance with the requirements.
In response to the NPRM, telecommunications carriers, privacy rights groups, and the FBI
submitted comments to the FCC to attempt to influence the final decision. Then, in April 1998,
the FCC released a Public Notice requesting comments on issues raised in those petitions
concerning the dates that carriers were required to comply with CALEA and the dispute over the
J-standard. Based on comments it received, the FCC extended the implementation deadline until
June 30, 2000, stating that without a standard, the necessary equipment would not be available in 13
time.
In October 1998, the FCC initiated a proceeding to review the technical capabilities prescribed by 14
the J-standard. The goal of that proceeding was to determine whether telecommunications
carriers should be required under CALEA to meet the FBI’s “punch list” items. The FCC
addressed these issues in several documents released over the following year. In March 1999, the
FCC’s First Report and Order established the minimum capability requirements for 15
telecommunications carriers to comply with CALEA. Telecommunications carriers were
required to ensure that only lawful wiretaps occur on their premises and that the occurrence of
wiretaps is not divulged to anyone other than authorized law enforcement personnel. On August

2, 1999, the FCC decided to allow carriers to decide how long they would maintain their records 16


of law enforcement’s wiretap, pen register, and trap and trace interceptions. On August 31,
1999, the Second Report and Order established a definition for “telecommunications carrier” to
include all common carriers, cable operators, electric and other utilities that offer
telecommunications services to the public, commercial mobile radio services, and service 17
resellers. The definition did not include Internet service providers (ISPs), which were explicitly
excluded under the CALEA statute.
The FCC’s Third Report and Order, released August 31, 1999, adopted technical requirements for 18
wireline, cellular, and broadband PCS carriers to comply with CALEA requirements. The ruling
adopted the J-standard, including the two capabilities that were opposed by the privacy rights
groups (i.e., the ability to provide location information and packet-mode data to law
enforcement). As described above, the FCC also adopted six of the punch list capabilities
requested by the FBI to be implemented by telecommunications carriers. The Order required all
aspects of the J-standard except for the packet-mode data collection capability to be implemented

12 FCC NPRM CC Docket No. 97-213, FCC Record 97-356, released October 10, 1997.
13 FCC Memorandum Opinion and Order in the Matter of Petition for the Extension of the Compliance Date under
Section 107 of CALEA, released September 11, 1998.
14 FCC Proposes Rules to Meet Technical Requirements of CALEA. Report No. ET 98-8. FCC News, October 22,
1998.
15 FCC 99-11, Report and Order CC Docket No. 97-213, released March 15, 1999.
16 FCC 99-184, Order on Reconsideration, CC Docket No. 97-213, released August 2, 1999.
17 FCC 99-229, Second Report and Order, CC Docket No. 97-213, released August 31, 1999.
18 FCC 99-230, Third Report and Order, CC Docket No. 97-213, released August 31, 1999.





by June 30, 2000. The Order required carriers to comply with the packet-mode data capability 19
and the six punch list capabilities by September 30, 2001. (The FCC ultimately extended the
date by which all telecommunications carriers must have upgraded their systems to June 30, 20

2002.)


On April 9, 2001, the FCC adopted its Second Order on Reconsideration,21 which clarified the
arrangements telecommunications carriers must make to ensure that law enforcement agencies
can contact them when necessary, and the interception activity that triggers a record-keeping
requirement.
In September 2001, FCC released a tandem Order22 and Public Notice23 on CALEA
implementation. In the Order, the Commission extended until November 19, 2001, the deadline
by which wireline, cellular, and broadband personal communications services (PCS) carriers must
implement a packet-mode communications electronic surveillance capability, or to seek
individual relief under section 107(c) of CALEA. The notice explained the petitioning process for
telecommunications carriers seeking relief under section 107(c) for an extension of the new
compliance deadline with respect to packet-mode communications, as well as other safe harbor
standards.
Finally, on April 11, 2002, the FCC released an Order on Remand,24 which responded to a 25
decision issued by the United States Court of Appeals for the District of Columbia Circuit
vacating four of the punch list electronic surveillance capabilities mandated by the Third Report
and Order in this proceeding. The FCC found that all of the capabilities were necessary and
authorized by CALEA and had to be provided by wireline, cellular, and broadband PCS
telecommunications carriers by June 30, 2002. The FCC also required that two additional punch
list capabilities that were mandated by the Third Report and Order, but not reviewed by the Court
of Appeals be provided by that same date.
The FCC granted preliminary extensions to requesting carriers with respect to punch list
implementation that will expire on June 30, 2004. It granted preliminary extensions in connection
with “packet” services that had been scheduled to expire on November 19, 2003, but that date
was further extended to January 30, 2004. No further action with respect to that extension has
been taken.

The FBI and other law enforcement agencies, the FCC, and Congress are all concerned with
CALEA-related issues, particularly with respect to packet-based services (i.e., voice over Internet
Protocol [VoIP]) and “push-to-talk” services offered by wireless providers.

19 FCC Sides with FBI on Tapping, Wired News, August 27, 1999, http://www.wired.com/news.
20 FCC Pubic Notice DA 02-270, released March 26, 2002.
21 Federal Register 66, page 22446, FCC, Second Order on Reconsideration, CC Docket No. 97-213, May 4, 2001.
22 Federal Register 66, page 50841, FCC, Order, CC Docket No. 97-213, October 5, 2001.
23 FCC Pubic Notice DA 01-2243, released September 28, 2001.
24 Federal Register 67, page 21999, Order on Remand, CC Docket No. 97-213, May 2, 2002.
25 See United States Telecom. Association v. FCC, 227 F.3d 450 (D.C. Cir. 2000), available at http://www.fcc.gov/ogc/
documents/opinions/2000/99-1442.html.





The FBI has remained active in promoting its positions related to its CALEA powers.
On April 22, 2005, the Department of Justice (DOJ) filed comments on the FCC’s Wireless 26
Broadband Task Force Report, requesting that the FCC “continue to preserve the vital national
security and criminal law enforcement capabilities of CALEA as it develops a deregulatory
framework for wireless broadband Internet access services.” Reply comments in the proceeding
were due May 23, 2005.
On April 13, 2005, the FBI published a 60-day Notice of Information Collection Under Review.27
The notice announced a CALEA Readiness Survey program, which seeks to evaluate the
effectiveness of CIU programs for implementing CALEA solutions in the Public Switched
Telephone Network. Comments in this proceeding were accepted until June 13, 2005.
On March 10, 2004, the FBI, the DOJ, and the Drug Enforcement Administration petitioned the
FCC to identify additional telecommunications services not identified specifically within CALEA 28
that should be subject to it. The services named in the FBI petition include some now
considered beyond the scope of CALEA by many observers, including services that fall under the
FCC’s definition of “information services” under the Communications Act of 1934. However,
CALEA provides the FCC a broader framework to determine that a service is a
“telecommunications service.” Comments and replies to the petition were due April 12 and April
27, 2004, respectively. The FCC ruled on this Petition on August 5, 2005, discussed below (See
“FCC Action,” page 10).
The FBI’s Inspector General issued a report in April 2004 on CALEA implementation.29 In its
report, the IG expressed concern over the cost estimates for obtaining CALEA compliance, which
have varied widely. Industry has stated it believes estimates full compliance will cost
approximately $1.3 billion; the FBI has estimated costs in the range of $500 million to $1 billion.
Further, in December 2003, the FBI estimated that an additional $204 million would be necessary

26 GN Docket No. 04-163. Additional information on this topic can be found online at the FCC’s website at
http://www.fcc.gov/wbatf.
27 70 Fed. Reg. 19,503 (2005). This document is available online at http://www.askcalea.net/docs/
20050413_70fr19503.pdf.
28 Joint Petition for Expedited Rulemaking of United States Department of Justice, Federal Bureau of Investigation, and
Drug Enforcement Administration, RM-10865, March 10, 2004.
29 U.S. Department of Justice, Office of the Inspector General of the, entitledImplementation of the Communications
Assistance for Law Enforcement Act by the Federal Bureau of Investigation,” available at http://www.usdoj.gov/oig/
reports/FBI/a0419/index.htm, April 7, 2004.





to complete deployment of CALEA. The IG stated in its report that it did not believe
implementation costs could be determined with any degree of specificity, but that it was unlikely
CALEA could be implemented with the $49.5 million that remains unobligated from current
funding.
In response to law enforcement’s petition and after considering the comments and replies from 30
interested parties, the FCC released an NPRM and Declaratory Ruling on August 4, 2004.
Additionally, the FCC has issued two Orders in this matter.
In the Declaratory Ruling accompanying the NPRM, the FCC clarified that commercial wireless
“push-to-talk” services are subject to CALEA, regardless of the technologies that wireless
providers choose to apply in offering them.
On August 5, 2005, the FCC ruled that providers of certain broadband and interconnected VoIP 31
services must accommodate law enforcement wiretaps. The FCC found that these services can
be considered replacements for conventional telecommunications services currently subject to
wiretap rules, including circuit-switched voice service and dial-up Internet access. As such, the
new services are covered by CALEA, which requires the FCC to preserve the ability of law
enforcement to conduct wiretaps as technology evolves. The rules are 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
providers are called interconnected VoIP providers.
In making its ruling, the FCC found that the definition of “telecommunications carrier” in
CALEA is broader than the definition of that term in the Communications Act and can, therefore,
include providers of services that are not classified as telecommunications services under the
Communications Act. CALEA contains a broader definition of telecommunications provider that
authorizes the FCC to classify an entity a telecommunications carrier if it finds that such service
is a replacement for a substantial portion of the local telephone exchange.
The FCC established a deadline of 18 months from the effective date of the Order for providers to
achieve full compliance and adopted a Further Notice of Proposed Rulemaking to seek more
information about whether specific classes of facilities-based broadband Internet access providers

30 In the Matter of Communications Assistance for Law Enforcement Act and Broadband Access and Services, Notice of
Proposed Rulemaking and Declaratory Ruling, FCC 04-187, ET Docket 04-295, RM-10865, adopted August 4, 2004,
released August 9, 2004. Available online at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-187A1.pdf.
See also Federal Register 69, page 56976.
31 In the Matter of Communications Assistance for Law Enforcement Act and Broadband Access and Services, First
Report and Order and Further Notice of Proposed Rulemaking, FCC 05-153, ET Docket 04-295, RM-10865, adopted
August 5, 2005, released September 23, 2005. Available online at http://hraunfoss.fcc.gov/edocs_public/attachmatch/
FCC-05-153A1.pdf.





should be exempt from CALEA (i.e., small and rural providers and providers of broadband
networks for educational and research institutions).
A coalition of organizations filed a Petition for Review with the United States Court of Appeals 32
for the District of Columbia Circuit on October 25, 2005. Specifically, the “petitioners seek
relief from the Order on the grounds that it exceeds the Commission’s statutory authority and is
arbitrary, capricious, unsupported by substantial evidence, and contrary to law. Petitioners request
that this Court vacate the Order and the Final Rules adopted therein and grant such other relief as 33
may be appropriate.”
On May 3, 2006,34 the FCC addressed several issues regarding CALEA implementation,
specifically, the Order:
• Affirms the May 14, 2007, CALEA compliance deadline for facilities-based
broadband Internet access and interconnected VoIP services (as established by the
First Report and Order) and clarifies that the date will apply to all such providers.
• Explains that the FCC does not plan, at this time, to intervene in the standards-
setting process in this matter.
• Permits telecommunications carriers the option of using Trusted Third Parties
(TTPs) to assist in meeting their CALEA obligations.
• Restricts the availability of compliance extensions to equipment, facilities, and
services deployed prior to October 25, 1998.
• Finds that the commission may, in addition to law enforcement remedies
available through the courts, take separate enforcement action under section
229(a) of the Communications Act against carriers that fail to comply with
CALEA.
• Concludes that carriers are responsible for CALEA development and
implementation costs for post-January 1, 1995, equipment and facilities, and
declines to adopt a national surcharge to recover CALEA costs.
• Requires all carriers providing facilities-based broadband Internet access and
interconnected VoIP service to submit interim reports to the FCC to ensure that
they will be CALEA-compliant by May 14, 2007, and also requires all such
providers to which CALEA obligations were applied in the First Report and
Order to come into compliance with the system security requirements in the

32 The coalition is composed of CompTel, American Library Association, Association of Research Libraries, Center for
Democracy & Technology, Electronic Frontier Foundation, Electronic Privacy Information Center, Pulver.com, and
Sun Microsystems.
33 A copy of the Petition, No. 05-1408, is available online at http://www.cdt.org/digi_tele/20051025caleapetition.pdf.
34 In the Matter of Communications Assistance for Law Enforcement Act and Broadband Access and Services, Second
Report and Order and Memorandum Opinion and Order, FCC 06-56, ET Docket 04-295, adopted May 3, 2006. This
Order has not yet been released, but the news release is available online at http://hraunfoss.fcc.gov/edocs_public/
attachmatch/DOC-265221A1.pdf.





commission’s rules within 90 days of the effective date of this Second Report and
Order.
In June 2006, the United States Court of Appeals for the District of Columbia Circuit affirmed the
FCC’s decision concluding that VoIP and facilities-based broadband Internet access providers 35
have CALEA obligations similar to those of telephone companies.

No bills have been introduced in the 110th Congress that would amend the CALEA statute.
Patricia Moloney Figliola
Specialist in Internet and Telecommunications
Policy
pfigliola@crs.loc.gov, 7-2508


35 American Council on Education v. FCC, No. 05-1404 (Consolidated with 05-1408, 05-1438, 05-1451, 05-1453).
Argued May 5, 2006; decided June 9, 2006. Available online at http://hraunfoss.fcc.gov/edocs_public/attachmatch/
DOC-266204A1.pdf.