Appeals Court Hears Oral Argument in CALEA Case

(May 18, 2000) The Court of Appeals heard oral arguments in USTA v. FCC, a challenge to the FCC's CALEA, order on Wednesday, May 18. The Court did not rule.

Congress passed the Communications Assistance for Law Enforcement Act (CALEA) in 1994 to enable law enforcement authorities to maintain their existing wiretap capabilities in new telecommunications devices.

The Federal Communications Commission adopted an Order last August implementing the Act. However, both industry and privacy groups asserted that the FCC Order imposed requirements that go beyond the statute, and violate constitutional and privacy rights.

CALEA provides that wireline, cellular, and broadband Personal Communications Services carriers must make their equipment capable of certain surveillance functions. Section 103 provides that:

"a telecommunications carrier shall ensure that its equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications are capable of expeditiously isolating and enabling the government ... intercept, to the exclusion of any other communications, all wire and electronic communications carried by the carrier within a service area to or from equipment, facilities, or services of a subscriber of such carrier concurrently with their transmission to or from the subscriber's equipment, facility, or service, or at such later time as may be acceptable to the government".

The final order of the Federal Communications Commission, titled the Third Report and Order, in the proceeding titled In the Matter of Communications Assistance for Law Enforcement Act, was released on August 31, 1999. (See, CC Docket No. 97-213, FCC 99-230.)

Several groups filed Petitions for Review of this Order last November with the U.S. Court of Appeals in Washington DC. The industry groups include the United States Telecom Association (USTA), the Cellular Telecommunications Industry Association (CTIA), and the Center for Democracy and Technology (CDT). The privacy groups include the Electronic Privacy Information Center (EPIC) and others.

A three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit comprised of Judge Douglas Ginsburg, Ray Randolph, and David Tatel has been assigned to the case. The panel heard the oral arguments on Wednesday morning, May 17. They made no ruling, and gave no indication as to when they would rule.

However, oral arguments lasted for two hours, which is rare. This is an indication that the the case is complex, and that the judges consider it very important.

Four attorneys participated in oral argument. Mac Armstrong represented the Department of Justice. (The Federal Bureau of Investigation is the leading proponent of an expansive interpretation of CALEA.) John Ingel represented the Federal Communications Commission. Ted Olson, of the law firm of Gibson Dunn & Crutcher, represented the industry groups. And, Gerry Waldron, of Covington & Burling, represented the privacy groups.

"We think that the Court understands that the FCC did not do its job in protecting privacy," Gerry Waldron told Tech Law Journal after the hearing.

He added that "the Court seemed to be skeptical as to the cost analysis that the FCC went through."

A two hour oral argument is "very unusual," said Waldron. "The Court explored just about every facet of the case. ... They got to everything."