FCC CALEA Order Hard to Reverse, Ex-FBI Agent Predicts
It will be hard to convince courts to reverse an FCC decision requiring facilities-based broadband Internet access service providers, such as VoIP, to accommodate electronic surveillance wiretaps under CALEA, said Mike Warren, NeuStar vp-fiduciary services and ex-FBI head- CALEA implementation section. He spoke Wed. at a USTelecom webinar on CALEA.
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Parties have indicated they will appeal the Sept. 23 order, made in response to a petition by the Justice Dept., the FBI and the Drug Enforcement Agency. But the order will be difficult to reverse “in light of the Supreme Court’s Brand X decision. Brand X basically said the FCC decision interpreting its statutory authority is entitled to due deference from the court,” Warren said.
Privacy groups probably will be among those challenging the order, Warren said. Issues raised by such groups include “whether law enforcement can tap new technology such as VoIP easily,” Warren said: “They argued that law enforcement didn’t make a persuasive case for this capability… But I think it’s the wrong way to frame the issue.” Privacy groups are worry about “the breaching of the expectation of privacy associated with the use of Internet,” Warren said: “I think this is debatable.” And the groups say privacy-friendly technologies that protect personal consumer data will be pushed from the marketplace, he said: “I don’t agree with that issue. I suspect that will be one of the issues they will raise when they go to the D.C. Circuit.”
Although still examining the issue, the FCC is unlikely to exclude facilities-based broadband providers from CALEA obligations, Warren said. The agency declined to do so in its first report and order, he said. But the door remains open for providers to “make the case to the FCC as of why they should be excluded,” as the FCC is working on further NPRM, Warren said. “Granting exemptions is going to be a very tough issue, because it’s going to be like a magnet” for “criminals and terrorists [to] go over to the exempt service to conduct their business,” Warren said.
The FCC may or may not require “something less than full CALEA compliance for certain classes or categories of providers” such as small rural carriers, Warren said. It’s not clear whether the Commission has the authority to impose different compliance requirements on different groups of provider, he said. “In the regulatory flexibility analysis, which is usually a non-brainer, they [FCC] spent a lot of time dealing with a problem of what exactly a small entity was,” Warren said. The FCC will take on the issue in a further NPRM, he said.
Responding to questions voicing industry concern, Warren joined Doug McCollum, NeuStar senior counsel- fiduciary services, said CALEA addresses cost reimbursement. “When you get a [court] order, one of the provisions that has to be there is [one] that directs law enforcement to compensate the service provider,” McCollum said: “So there is a way to recover some of the costs you incur for handling the technical assistance for the order. The ongoing debate now is whether some portion of CALEA costs can be recovered on pro-rata basis and that’s the issue the FCC will have to rustle with in further NPRM.” - - Susan Polyakova