FCC Receives Comments Regarding DOJ Petition
to Expand the CALEA to Cover Information Services |
4/12. April 12 was the deadline to submit comment to the
Federal Communications Commission (FCC) regarding
the Department of Justice's (DOJ) March 10
petition for rulemaking
[83 pages in PDF] regarding requiring broadband service providers, voice over internet
protocol (VOIP) application providers, and others, to design and modify their networks,
hardware, software, and equipment in a manner that enables the DOJ to intercept
communications.
The DOJ asserts, among other things, that the
Communications Assistance for Law Enforcement Act (CALEA), a
1994 statute that provides that a "telecommunications carrier" must design its
network to facilitate wiretapping, also applies to information services,
including broadband internet access and voice over internet protocol (VOIP) services
and applications.
The DOJ petition, which is variously referred to as the CALEA petition, the
joint petition, or as the petition in RM-10865, drew praise and support in
comments submitted by other law enforcement agencies, groups that support or
represent law enforcement agencies, and companies that sell surveillance and
intercept products.
The petition was widely criticized by other commenters, including MCI
WorldCom, AT&T, Sprint, Covad, ISPs (Earthlink and ISP CALEA Coalition), a VOIP
application provider (Skype), an economist, and various Washington DC based
groups that advocate various broad public interests -- EPIC (privacy), ACLU
(civil liberties) and CDT (democracy and technology).
However, the FCC has yet to publish in its web site all of the comments
submitted on April 12. Also, reply comments are not due until April 27.
As of April 12, the FCC had not yet published any comments from the Regional
Bell Operating Companies, cable companies, consumer electronics companies, large
software companies, or the groups that represent them.
Law Enforcement Entities. The DOJ petition, which is signed by
representatives of the DOJ's Criminal
Division, the DOJ's Federal Bureau of
Investigation, and the DOJ's Drug Enforcement
Administration, is
summarized in a TLJ article titled "Summary of DOJ Petition for Rulemaking to
Expand the CALEA to Cover Information Services" in TLJ Daily E-Mail Alert No.
873, April 9, 2004.
The DOJ petition has been supported by comments submitted by the Tennessee
Bureau of Investigation, Texas Department of Public Safety, Police Executive
Research Forum, Los Angeles County Regional Criminal Information Clearinghouse,
International Association of Chiefs of Police, and the National Sheriffs'
Association. Although, these comments reflect some copying or paraphrasing of
each other's comments.
The Texas Department of Public Safety
(TDPS) submitted a
comment [2 pages in PDF] in support of the DOJ petition in which it argues
that "law enforcement has been thwarted in its attempts to implement lawfully
authorized surveillance intercepts." It also adds that companies, not law
enforcement entities, should pay for the costs of making equipment and services
more subject to surveillance.
The Tennessee Bureau of Investigation
(TBI) submitted a
comment [2 pages in PDF]. The TBI and the TDPS make identically worded points in
their comments. Either one entity copied from the other, or they both copied
from the same source.
The Police Executive Research Forum
submitted a
comment [2 pages in PDF] in support of the DOJ petition. (It also closely
resembles the TDPS and TBI comments.) It states that
"Since 1994, many new communications technologies have emerged, including
broadband Internet access, voice over IP telephony (VoIP), push-to-talk digital
dispatch services, and other packet mode services. These services, currently
used by millions of individuals across the nation, pose a great challenge to
state and local law enforcement. Many of the service providers have failed to
voluntarily adopt currently available CALEA intercept solutions. This hampers
law enforcement attempts to implement lawfully authorized surveillance
intercepts. Voluntary industry compliance with CALEA is not a feasible option."
See also, brief
comment [2 pages in PDF] of the International
Association of Chiefs of Police, and brief
comment [2 pages in PDF] of the National Sheriffs'
Association, both in support of the DOJ.
The Los Angeles County Regional Criminal Information
Clearinghouse submitted a
comment [7 pages in PDF] in support of the DOJ petition. It reflects
authorship separate from the other law enforcement comments. It stated that
"Voluntary industry compliance with CALEA does not work." It elaborated that two
providers of push-to-talk features are not CALEA compliant. In addition, "two
broadband services providers in the greater Los Angles (sic) area market openly
admit that their telephony infrastructure is not CALEA-compliant."
Sellers of Surveillance and Interception Products. Two sellers of
surveillance and interception products, which stand to receive increased
revenues if the relief sought by the DOJ is granted, wrote comments in support
of the DOJ.
Top Layer Networks, Inc., which sells
surveillance products to government, service providers and enterprise customers,
submitted a
comment
[7 pages in PDF] in which it argued, on behalf of the surveillance products
industry, that "unless the FCC acts immediately on the proposed petition,
this industry will suffer".
Top Layer also wrote that "The technology to intercept IP (or packet) based communications
has advanced significantly in the last 5 years, (because of demand in other
countries outside the U.S) and mature products and solutions are widely
available today. These solutions have the ability to access and intercept the
specific needed call identifying or content information for an IP application
such as VoIP. At the same time the Collector systems (Monitoring Centers) that
Law Enforcement agencies have been using for decoding intercepted voice calls,
now have the capability to decode VoIP calls and other IP applications such as
email, and web browsing." (Parentheses in original.)
Top Layer also pointed out that "The capabilities sought by the Joint
Petitioners are in large measure extensively used in many other countries
worldwide." Russia is one of the seven foreign countries listed in a table
provided by Top Layer. Top Layer's table also lists VeriSign as an "Interception
Vendor".
VeriSign submitted a
comment [15 pages in PDF] in support of the DOJ petition. It stated that "VeriSign
provides lawfully authorized electronic
surveillance (lawful interception) capability requirements to communication
providers globally". It further stated that "VeriSign already provides CALEA
services for precisely this kind of broadband telephony" addressed in the DOJ
petition.
VeriSign also argued that "dramatic changes in electronic communication
network platforms have occurred over the past several years. Indeed, it is not
just the emergence of large-scale IP-enabled Services that are involved here.
There are a host of other factors. The technologies and market demand for an
always-on world of nomadic users and agile access is supported by a complex
network self-configuring terminal devices with globally distributed applications
and service providers. Criminals and terrorists who are typically rather nomadic
themselves, have gravitated to these technologies on a significant scale."
Equipment Manufacturers. The FCC has not yet published comments from any
manufacturers of telecommunications, networking, or information technology
equipment. It has, however, received a lengthy comment from the
Telecommunications Industry Association
(TIA). The TIA
comment [39 pages in PDF] takes an intermediate position. It criticizes the
DOJ petition on many points. However, it does not oppose other parts of the DOJ
request.
The TIA is both an industry standards development group, and a group that
represents manufacturers of telecommunication and information technology
equipment in policy debates. Its members want to sell more equipment. The DOJ
would like to compel service providers to buy more equipment. However, the TIA
members also do not want regulation that is so onerous that it would impede industry
development. This would decrease equipment sales.
Hence, the TIA does not oppose the DOJ petition. Nor does it oppose the DOJ
request that broadband internet access and VOIP be subjected to the CALEA. It
states, however, that these are questions that should be addressed as part of a
notice of proposed rule making, rather than in an initial declaratory ruling.
But, the TIA argues that the DOJ proposal to require government pre-approval
of new technologies should be rejected. "If
adopted, these proposals would have a devastating impact on industry,
particularly on equipment suppliers who would face the cost of building wiretap
capabilities for new technologies even before it is clear whether they will
succeed. The Commission should reject the proposed rules out of hand, as
directly inconsistent with CALEA."
Local Exchange Carriers. The FCC has not published in its web site
much in the way of comments from local exchange carriers. There are no comments
from any of the Regional Bell Operating Companies (Verizon, BellSouth, SBC or
Qwest), or groups, such as the USTA, that represent them.
The FCC has published a
comment [8 pages in PDF] from the National
Telecommunications Cooperative
Association (NTCA), a group that represents rural telecommunications
providers . It makes just two arguments that are critical of the DOJ petition.
First, it argues that
"forcing carriers to comply with arbitrary deadlines and benchmarks, as proposed
by petitioners, may not result in CALEA compliance." Second, it addresses
cost recovery. The DOJ wants companies and their customers to bear all of the
costs.
The NTCA wrote that "an end user surcharge will disproportionately
affect the consumers living and
working in rural America and the carriers that serve them. Many of the costs
associated with governmental mandates are the same irrespective of the size of
the company implementing them. The cost of many switch and software upgrades do
not vary no matter how many customers are served by that switch or software." It
added that "While the Commission may conclude that an end user charge is
appropriate for large carriers, it would be more appropriate for rural carriers
to recover their costs in the interstate jurisdiction."
The NTCA comment "does not agree that an end-user charge is appropriate for
rural carriers".
Finally, the FCC has published a
comment [6 pages in PDF] from Warinner, Gesinger
& Associates. It describes itself as "a certified public accounting firm
specializing in the provision of accounting and consulting services to local exchange
telecommunications carriers". It is highly supportive of the DOJ petition.
It requests that the FCC "find that broadband telephone
providers qualify as ``telecommunications carriers´´ under CALEA and subject them
to the regulations required under CALEA".
It states that there is a problem with two "broadband telephone
providers" -- Pulver.com and Skype. Moroever, it argues that one of the
problems that these services present is encryption of communications.
It argues that failure by the FCC to apply the CALEA to these "broadband
telephone providers" would lead to "regulatory arbitrage".
|
|
|
Scalia Asserts That There Is a First
Amendment Right Not to Speak on Radio or Television |
4/9. Supreme Court Justice Antonin Scalia wrote letters to the
Reporters Committee for Freedom of the Press
(RCFP) and two reporters whose audio recorders were seized and erased by U.S.
Marshals at a public event at which Justice Scalia spoke. See,
letter to
RCFP and RCFP
release.
Scalia wrote that "I was as upset as you were." Nevertheless, he asserted a
"First Amendment right not to speak on radio or television".
The Department of Justice's (DOJ)
U.S. Marshals Service is a law enforcement agency tasked with protecting
federal courts and ensuring the effective operation of the federal judicial
system. This includes providing security for the Supreme Court Justices when
they travel. The Federal Communications Commission
(FCC) is the federal agency that abridges the speech of radio and television
broadcasters.
The two reporters whose recordings were erased work for the Associated
Press and a local newspaper. Both are entities that publish information primarily
through written words.
|
|
|
Microsoft and InterTrust Settle DRM Patent
Dispute |
4/12. Microsoft and InterTrust
announced that they have settled all pending patent litigation between the two
companies. The dispute involves digital rights management. See, Microsoft
release and InterTrust
release.
Microsoft stated that it will license "InterTrust's patent portfolio for a
one-time payment of $440 million", and that "InterTrust receives rights under
Microsoft patents to design and publish InterTrust reference technology
specifications related to digital rights management (DRM) and security".
On April 27, 2001, InterTrust
filed a complaint in U.S. District Court (NDCal)
against Microsoft alleging patent infringement. InterTrust's U.S.
Patent No. 6,185,683 discloses systems and techniques for
the secure delivery of electronic documents, execution of
legal documents, and electronic data interchange. InterTrust
alleged that Microsoft's Windows Media Player and other
products implementing rights management functions directly and contributorily
infringe this patent.
In June of 2001, InterTrust filed its
first amended complaint, adding a claim for infringement of its
U.S. Patent No. 6,253,193.
In July of 2001, InterTrust filed a
second amended complaint in the District Court adding a claim for infringement of InterTrust's
U.S. Patent No. 5,920,861, which discloses techniques for defining, using,
and manipulating rights management data structures. InterTrust alleged that the
infringing products include Microsoft's
Reader (application
for reading electronic books) and Digital Asset Server.
This case is InterTrust v. Microsoft, U.S. District Court for the
Northern District of California, D.C. No. C 01 1640 JL.
|
|
|
People and Appointments |
4/12. James Carroll was named Deputy General Counsel of the
Treasury
Department. He was previously Special Assistant and Associate Counsel to the
President for Clearance at the White House. He vetted people under
consideration for appointment by the President. See, Treasury
release.
|
|
|
|
Internet Companies Oppose
DOJ CALEA Petition |
4/12. Earthlink, the ISP CALEA Coalition, and VOIP application provider Skype
submitted comments to the Federal Communications
Commission (FCC) that are critical of many parts of the
Department of Justice's (DOJ) March 10
petition for
rulemaking [83 pages in PDF].
Earthlink. Internet service provider (ISP)
Earthlink, and its attorneys, Sher &
Blackwell, submitted a
comment [20 pages in PDF] that argues that the FCC should deny the DOJ's
request for a declaratory order that broadband internet access and VOIP are
subject to the CALEA. Its argument is based upon the CALEA's distinction between
"telecommunications carrier" and "information
services".
However, Earthlink's argument is nuanced. As an ISP without its own broadband
facilities, Earthlink seeks access to the broadband facilities of ILECs and cable
companies. But, this requires a finding that there is a telecommunications component.
Earthlink cannot obtain forced access, or open access, to an information service under
the Communications Act. On the other hand, Earthlink also seeks to avoid burdensome
regulation and mandates from the DOJ. Only "telecommunications carriers" are
subject to the mandates of CALEA. Hence, Earthlink crafts arguments that it can
both obtain access to broadband DSL and cable modem facilities, but still
not itself be subject to CALEA burdens.
Earthlink provided this analysis. "At the heart of the Joint Petition,
however, is one key legal question: Where
does CALEA draw the line between the "telecommunications carrier" transmission
and switching services that are subject to CALEA and the ``information services´´
that are not? Contrary to the suggestion made by Law Enforcement in the Joint
Petition, the Commission cannot decide where to draw that line by looking solely
at the definition of ``telecommunications carrier´´. Any determination by the
Commission based only on the statutory construction of ``telecommunications
carrier´´ is legally unsupportable because Congress affirmatively excluded from
the definition of ``telecommunications carrier´´ any person or entity ``insofar as
they are engaged in providing information services.´´ Thus, in order to determine
whether a person or entity must comply with the assistance requirements of
section 103(a) of CALEA, the Commission must first determine to what extent that
person or entity is engaged in providing "information services".
Earthlink, which is a party in Brand X v. FCC, argued in it comment that the
FCC should follow the opinion of the U.S. Court of Appeals that "broadband Internet
access services offered over cable facilities constitute a bundled offering of
legally separate "information service" and common carrier transmission service
components." (Quotation from Earthlink comment.)
See, October 6, 2003,
opinion
[39 pages in PDF] of the U.S. Court of Appeals
(9thCir) (also published at 345 F.3d 1120), and
story
titled "9th Circuit Vacates FCC Declaratory Ruling That Cable
Modem Service is an Information Service Without a Separate Offering of a
Telecommunications Service" in
TLJ Daily E-Mail
Alert No. 754, October 7, 2003.
Earthlink also argued that the FCC should abandon any efforts to seek a writ
of certiorari from the Supreme Court.
Earthlink also argued, in passing, that "no meaningful action can be taken on
the Joint Petition until the point addressed above is decided ..."
And consequently, Earthlink argued that the FCC should adopt the approach
that "broadband transmission used to support Internet service is covered by
CALEA", but "Internet access service" is not. Then, Earthlink urged
"Leaving broadband telephony for another day ..."
Earthlink further argued that it is "clear that the CALEA requirements
with respect to Internet traffic are to be implemented as close to the edges of the
network as is operationally feasible. That is, the appropriate intercept point for packet
mode Internet traffic is at the first switching facility that the traffic reaches after it
leaves the user's premises. In the case of DSL and dial-up services, this
typically will be at the first central office of the local exchange carrier that
provides the physical connection to the end user's premises. For cable-based
communications, this first intercept point typically will be at the Cable Modem
Termination System (``CMTS´´) located at the cable headend."
Earthlink therefore opposed the DOJ's argument that the intercept capability
requirements extend to all "servers and routers".
In conclusion, Earthlink argued that "Congress did not intend for CALEA to
cover ISPs as such. Thus, to the extent that the Joint Petition can be read as
an attempt to sweep ISPs lock, stock, and barrel into the definition of
"telecommunications carrier" under CALEA, Earthlink object to that
approach ..."
ISP CALEA Coalition. The ISP CALEA Coalition submitted a
comment [44 pages in PDF] that argued that "CALEA does not apply to ``information
services,´´ and that exclusion should be interpreted broadly. The core services
provided by the companies in the ISP CALEA Coalition -- including online
services; e-mail; and text, voice and video messaging -- are all classic
information services. The Commission should reaffirm the scope of the
information services exception."
This comment concluded that "the Petition fails to establish a
legal basis for regulating broadband access and broadband telephony services under
CALEA."
This comment also argued that the DOJ petition "requests the
Commission to establish rules and
procedures for application of CALEA to future services, and goes so far as to
suggest a pre-approval process for new services. This astonishing proposal would
cripple innovation on the Internet, quite probably ensuring that new services
would always be implemented outside the United States and well beyond the reach
of this new regulatory regime. The proposal contradicts Congress's plain intent
and should be rejected. No rulemaking on these issues is appropriate."
The ISP CALEA Coalition comment, and the TIA comment, which
advance different arguments, were both signed by Stewart Baker of the law firm
of Steptoe & Johnson.
Skype. As of April 12, the FCC had published only one comment from a
VOIP application provider. Skype Technologies submitted a
comment [5 pages in PDF] asking that the FCC rule that the CALEA applies to
"underlying transmission networks", but not to applications, such as Skype's,
that run on that network.
As of April 12, the FCC had not published comments from
Pulver.com (which offers Free World Dialup),
SIPphone, or other VOIP application providers.
Skype stated that it is "a Luxembourg company offering peer-to-peer
software to consumers throughout
the world. By installing this software, users are able to communicate to any
other Skype user. At present, 4.5 million people have downloaded Skype’s free
software. Though Skype users are currently unable to use Skype to connect to the
PSTN, Skype shortly will offer its users a means to make communications to and
receive communications from the PSTN."
"Skype is software, not a network", it wrote. "Skype
does not provide servers, routers, switches or other transmission
facilities that carry, route, or process communications among Skype users. Skype
does not ``track´´ users with a central directory. All of these functions are
performed, instead, by end-users’ computers, using end-users' Internet access.
Because Skype does not carry its users' communications, it is not technically
feasible for Skype to offer public safety agencies access to those
communications.
It added that "A requirement that Skype and similar
application-providers make peer-to-peer communications accessible to the worlds' public
safety and law enforcement agencies would effectively eliminate true peer-to-peer networks,
which are defined by their decentralization, as well as variants of such networks, such as
Skype’s next generation ``one-sided´´ PSTN service."
Consequently, Skype argued that "whenever possible, the Commission should place
responsibility for CALEA compliance on PSTN network providers. When reliance on
PSTN network providers alone is insufficient, compliance responsibility may also
be placed upon broadband transmission providers, as these entities will
necessarily have access to the relevant data streams."
The FCC has also received lengthy comments from MCI WorldCom, AT&T, Sprint,
Covad, and others that oppose and criticize substantial parts of the DOJ
petition. Similarly, the FCC has received lengthy comments in opposition to the
DOJ petition from groups that advocate various aspects of the public interest.
These comments will be the subject of stories in the next issue of the
TLJ Daily E-Mail Alert.
|
|
|
Washington Tech Calendar
New items are highlighted in red. |
|
|
Tuesday, April 13 |
The House is in recess until Monday, April 19, 2004.
The Senate is in recess until April 19, 2004.
The Supreme Court is in
recess until April 19, 2004.
Day two of a three day conference hosted by the
National Institute of Standards and Technology
(NIST), National Institutes of Health (NIH), Internet2, USENIX, and OASIS
titled "Public Key Technology R&D Workshop". See,
notice
and conference website.
The price to attend is $105. Location: NIST, Gaithersburg, MD.
|
|
|
Wednesday, April 14 |
12:15 PM. The
Federal Communications Bar Association's (FCBA)
Cable Practice Committee will host a brown bag lunch. The speaker will be Ken Ferree,
Chief of the Federal Communications Commission's (FCC)
Media Bureau. RSVP to Quyen Truong at
ttruong@dowlohnes.com. Location:
Dow Lohnes & Albertson, 1200 New Hampshire
Ave., NW, Eighth Floor.
Day three of a three day conference hosted by the
National Institute of Standards and Technology
(NIST), National Institutes of Health (NIH), Internet2, USENIX, and OASIS
titled "Public Key Technology R&D Workshop". See,
notice
and conference website.
The price to attend is $105. Location: NIST, Gaithersburg, MD.
|
|
|
Thursday, April 15 |
9:30 AM. The Federal Communications
Commission (FCC) will hold a meeting. See,
agenda [PDF]. The event will be webcast.
Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).
9:30 AM - 12:00 NOON. The WRC-07 Advisory Committee's Informal Working
Group 4: Broadcasting and Amateur Issues will meet. See, FCC
notice [PDF]. Location: Shaw Pittman,
2300 N Street, NW.
9:30 AM. The U.S. Court Appeals (DCCir)
will hear oral argument in AT&T v. FCC, No. 03-1035. Judges
Edwards, Tatel and Sentele will preside. Location: Prettyman Courthouse, 333
Constitution Ave.
12:00 NOON. The
Progress & Freedom Foundation (PFF) will host a luncheon titled "Should
Spectrum Be Public or Private?". The speakers will be
Stuart
Benjamin (Duke University Law School), Randolph May (PFF), Peter Pitsch
(Intel), and Stuart Buck (Kellogg Huber). See,
notice and
registration
page. Location: Room 192, Dirksen Building, Capitol Hill.
12:00 NOON - 1:30 PM. The Open Source and
Industry Alliance (OSAIA) will host a luncheon briefing on open source
software. The speakers will be representatives of IBM, Novell, OSAIA, the
Open Source Development Lab, and Red Hat. RSVP to Pat Steckler (OSAIA) at 202
783-2942. Location: Room B-354, Rayburn Building, Capitol Hill.
12:30 PM. The
Federal Communications Bar Association's (FCBA)
Diversity Committee will hold a brown bag lunch. Natalie Ludaway will speak on
"the benefits of launching a legal career at a small law firm and establishing
and maintaining a diverse client base". For more information, contact Joy
Ragsdale at 202 261-1427 or jragsdale@opc-dc.gov.
RSVP by April 12, 2004 to Angela Bushnell at at 202 434-9121 or
abushnell@leftwichlaw.com.
Location: Leftwich & Ludaway, 1401 New York Ave., NW.
2:00 - 4:00 PM. The WRC-07 Advisory Committee's Informal Working Group 2:
IMT-2000 and 2.5 GHz Sharing Issues will meet. See,
notice [PDF]. Location: FCC, 445 12th Street, SW, South Conference Room
(6th Floor, Room 6-B516).
|
|
|
Friday, April 16 |
8:30 AM - 4:30 PM. The
New America Foundation will host a
conference titled "Pervasive Connectivity: How Unlicensed Spectrum Will Help
The World Go Wireless". The event is free. RSVP to Matt Barranca at
barranca@newamerica.net or 202 986-2700.
See, notice.
Location: National Guard Association of the United States, One Massachusetts
Ave, NW.
|
|
|
Monday, April 19 |
The House will return from its Spring/Easter recess.
The Senate will return from its Spring/Easter recess.
The Supreme Court will return
from the recess that it began on April 5.
The Intellectual Property Owners Association
(IPO) will host an event titled "Patent Quality Conference". For more
information, contact 202 466-2396 or
info@ipo.org. Location: Ronald Reagan Building and International Trade Center.
Deadline to submit comments to the
Federal Communications Commission (FCC) in
response to its notice of proposed rulemaking (NPRM) regarding whether certain
rules should be repealed or modified because they are no longer necessary in
the public interest. The FCC released this NPRM on January 12, 2004. This item
is FCC 03-337 in WC Docket No. 02-313. See,
notice in the Federal Register, March 18, 2004, Vol. 69, No. 53, at Pages
12814-12826.
|
|
|
About Tech Law Journal |
Tech Law Journal publishes a free access web site and
subscription e-mail alert. The basic rate for a subscription
to the TLJ Daily E-Mail Alert is $250 per year. However, there
are discounts for subscribers with multiple recipients. Free one
month trial subscriptions are available. Also, free
subscriptions are available for journalists,
federal elected officials, and employees of the Congress, courts, and
executive branch. The TLJ web site is
free access. However, copies of the TLJ Daily E-Mail Alert are not
published in the web site until one month after writing. See, subscription
information page.
Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Privacy
Policy
Notices
& Disclaimers
Copyright 1998 - 2004 David Carney, dba Tech Law Journal. All
rights reserved. |
|
|