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Digital Surveillance: The Communications Assistance for Law Enforcement Act

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Abstract:

The Communications Assistance for Law Enforcement Act (CALEA, P.L. 103414, 47 USC 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.

The modifications, originally planned to be completed by 1998, have been delayed due to disagreements among the telecommunications industry, law enforcement agencies, and privacy rights groups, over equipment standards, and other technical issues. Disagreements over amount of federal funds to be provided to the telecommunications carriers for CALEA implementation, which carriers are eligible to receive those funds, and privacy concerns, have also impeded implementation.

After receiving petitions from the industry and the Federal Bureau of Investigation (FBI) over the dispute, the Federal Communications Commission (FCC) in 1999 ruled in favor of most of the FBI's requests. This decision resulted in lawsuits being filed by industry and privacy rights groups. In August 2000, a federal appeals court upheld parts of the FCC's decision, but remanded most of it for reconsideration. Since that time, the FCC established June 30, 2002, as the final CALEA compliance date, but it has granted numerous waivers and full CALEA implementation remains incomplete.

The FBI and other law enforcement agencies, the FCC, and Congress are all addressing CALEA-related concerns. On March 10, 2004, the FBI, the Department of Justice, and the Drug Enforcement Administration petitioned the FCC to identify additional telecommunications services not identified specifically within CALEA that should be subject to it. In response to the petition and after considering the comments and replies from interested parties, the FCC released an Notice of Proposed Rulemaking (NPRM) and declaratory ruling on August 4, 2004. In the NPRM, the FCC drew a number of tentative conclusions regarding CALEA applicability; addressed compliance issues; and developed a proposal for implementation costs and time frame. Comments and replies to the NPRM were due November 8 and December 7, 2004, respectively. Accompanying the NPRM was a declaratory ruling in which 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.

Thus far in the 109th Congress, no bills have been introduced that would amend the CALEA statute.