Common carriers, facilities-based broadband Internet access providers, and providers of interconnected VoIP service – all three types of entities are defined to be “telecommunications carriers” for purposes of CALEA – are covered. In 2006 the D.C. Federal Court of Appeals affirmed the FCC’s decision that broadband Internet access and voice over Internet protocol (VoIP) services are regulable as "telecommunications carriers" under CALEA (Am. Council on Educ. v. FCC, 451 F.3d 226 (D.C. Cir. 2006)).
Industry is basically responsible for setting CALEA standards and solutions. Unless a party files a special petition pursuant to CALEA § 107(b), the Commission does not get formally involved with the compliance standards development process. CALEA does not provide for FCC review of manufacturer-developed solutions. Entities subject to CALEA are responsible for reviewing the FCC’s regulations and analyzing how this regulation applies per their specific network architecture.
CALEA requires that telecommunications carriers and manufacturers of telecommunications equipment modify and design their equipment, facilities, and services to ensure that they have the necessary surveillance capabilities. A telecommunications carrier may comply with CALEA either by:
Section 107 of CALEA provides that a carrier will be deemed to comply with the assistance capability requirements if it complies with “publicly available technical requirements or standards adopted by an industry association or standard-setting organization.” Any person may petition the Commission to modify such standards (or, in their absence, to establish standards). In such cases, section 107(b)(5) directs the Commission to “provide a reasonable time and conditions for compliance with and the transition to any new standard.”
Under CALEA, a court order is required for law enforcement officials to wiretap and eavesdrop on phone conversations and to intercept electronic communications. Such a court order is obtainable only with a showing that there is probable cause to believe that a crime is being committed, that communications about the crime will be intercepted and that the equipment being tapped is used by the suspect in connection with the crime.
When Congress enacted CALEA, it included clear limitations on future regulation. CALEA denies law enforcement the authority to require any specific design of equipment, facilities, services, features or system configurations to be adopted, or to prohibit the adoption of any equipment, facility, service or feature by any provider of wire or electronic communications services. CALEA mandates that any FCC-imposed requirements must serve the policy of the United States to encourage the provision of new technologies and services to the public.
Over-regulation can stifle innovation. The open and voluntary nature of the multistakeholder process used to develop CALEA standards ensures inclusiveness of all stakeholders in the process. The unique architecture of the Internet lends it to particular vulnerabilities regarding the innovative nature of the Internet. In addition, the proposed expansion of CALEA also raises free speech and privacy issues. Imposing a specific technology design or solution would limit technological innovation by industry and would not be consistent with the Congressional intent of CALEA.
It is in the nation’s best interest to facilitate innovation. Any requirement of governmental approval of communications technology or applications before deployment could give foreign competitors an advantage over U.S. companies. The unique architecture of the Internet lends it to particular vulnerabilities national security concerns.
Broad technical mandates undermine cybersecurity goals. Architecting communications technologies to facilitate surveillance can make them less secure, and can produce backdoors easily exploited by foreign governments, hackers and identity thieves. Broad requirements or restrictions could introduce vulnerabilities or weaken the protection afforded by encryption and related security technologies.
CALEA standards help preserve consumer trust that mandates could threaten. Consumers and businesses trust in the confidentiality of Internet communications, and this characteristic is essential to online commerce, privacy, and free speech. Changes to products and services that could undermine users’ trust in the privacy and security of their communications should be avoided.
We hope that China will use this break in the negotiations to reexamine its approach to the negotiations to expand the ITA and focus on reducing its overly large list of sensitive products. If China is ready to move forward to conclude the expansion of the ITA this year then the ITA Expansion is achievable this year.
As part of a large U.S. industry delegation representing a broad array of ICT manufacturers, TIA is in Geneva, Switzerland this week to cheer on the trade negotiators who are working hard to conclude the negotiations to expand the product coverage of the WTO’s Information Technology Agreement (ITA). The ITA remains one of the most commercially important WTO trade agreements – by eliminating tariffs on a broad range of ICT products, the ITA lowers the cost and improves access to these products, which are vital to the economic competitiveness of all economies around the world.
The Telecommunications Industry Association was in Geneva last week along with AdvaMed, the Consumer Electronics Association, the Entertainment Software Association, the Information Technology Industry Council, the Liquid Crystal Polymer Coalition, the Motion Picture Association of America, and the Semiconductor Industry Association. This coalition of high-tech companies represents a broad spectrum of manufacturers and service providers in the information and communication technology (ICT) sector.
Last week was a busy one at the World Trade Organization (WTO) in Geneva, Switzerland. The signs are very encouraging that the member countries of the WTO are back on track to move the WTO’s trade liberalization agenda forward – from the new International Services Agreement (ISA) to the ongoing negotiations to expand the existing WTO Information Technology Agreement (ITA).
