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Witness Testimony
Mr. Julius P. Knapp
Law Enforcement Access to Communications Systems in a Digital Age
Mr. Chairman, Ranking Member, and Members of the Subcommittee: Good morning. I am Julius Knapp, Deputy Chief of the Office of Engineering and Technology at the Federal Communications Commission (FCC or Commission). I welcome this opportunity to discuss the FCC's activities to implement the Communications Assistance for Law Enforcement Act (CALEA). The FCC, under Chairman Powell's leadership, is absolutely committed to ensuring that telecommunications carriers provide law enforcement agencies (LEAs) with the surveillance capabilities that are required under CALEA. The Commission recognizes the vital importance of lawfully authorized surveillance in combating crime and ensuring Homeland Security and intends for our recently initiated proceeding to continue this ability. The FCC also recognizes that in providing these capabilities we cannot compromise other important objectives, such as avoiding impediments to new technologies and services, protecting personal privacy, and minimizing the impact on consumers. INTRODUCTION Since 1970, telecommunications carriers have been required to cooperate with LEAs to assist their conduct of electronic surveillance. The CALEA statute was passed in 1994 with the purpose of preserving the government's ability, pursuant to court order or other lawful authorization, to intercept communications involving advanced technologies such as digital or wireless transmission modes, while protecting the privacy of communications and without impeding the introduction of new technologies, features and services. Jurisdiction to implement CALEA's provisions is shared by the Attorney General of the United States, who consults with state and local LEAs, and the FCC. Effective implementation of CALEA's provisions relies to a large extent on shared responsibility among these governmental agencies and the service providers and manufacturers subject to the law's requirements. Great changes in technology have occurred over the past ten years, which have challenged the ability of LEAs to conduct lawful surveillance. Most notably, there has been a rapid shift from circuit-mode to packet-mode technologies, with an array of new services such as broadband Internet access and Voice over Internet Protocol (VoIP) now offered to consumers and businesses. The FCC has been proud to facilitate this communications revolution by minimally regulating these new services to promote increased competition and the introduction of new services for consumers and businesses. These changes from a circuit-based world to a packet-based world will have a profound effect on the way we communicate. As my colleague Jeff Carlisle, now Chief of the FCC's Wireline Competition Bureau, noted just two months ago in testimony before this Subcommittee, voice is gradually becoming nothing more than one application of many over a multiuse digital network, where users may obtain a wide variety of services from multiple sources. For example, VoIP accelerates the migration to digital multiuse broadband infrastructures and internationalizes voice communications, allowing customers to buy voice applications from providers around the world. From the outset of this sea change, the Commission has stressed that important law enforcement obligations must be a part of any regulatory regime. And indeed, the very real threat of terrorism coupled with day-to-day criminal activity will not permit anything short of full CALEA compliance. Against the backdrop of the advancing digital migration and facing these new challenges, the FCC is moving forward to ensure that CALEA's intent is fully carried out and that lawfully-authorized electronic surveillance is not compromised by new technologies - while at the same time not compromising the new technologies themselves. PAST FCC RULEMAKINGS In 1997, the FCC initiated a rulemaking proceeding to begin the implementation of CALEA, and over the next several years took a number of significant actions in that proceeding, focusing largely on circuit-switched technologies. Specifically, in an August 1999 Second Report and Order, the FCC concluded that the language and legislative history of CALEA provided sufficient guidance as to what the term "telecommunications carrier" means, such that the statute could be applied to particular carriers, their offerings and facilities. The Second Report and Order also stated that CALEA does not apply to certain entities and services, including information services and private network services. In a companion Third Report and Order, the FCC required that wireline, cellular, and broadband Personal Communications Services carriers implement all electronic surveillance capabilities of an industry-developed standard, as well as some additional capabilities requested by the Department of Justice and the Federal Bureau of Investigation. CURRENT FCC RULEMAKING In March 2004, the Department of Justice, Federal Bureau of Investigation, and Drug Enforcement Administration (collectively, Law Enforcement) filed a joint petition requesting that the FCC initiate a new rulemaking proceeding to resolve, on an expedited basis, issues associated with the implementation of CALEA. In its Petition, Law Enforcement maintains that outstanding implementation issues require immediate attention and resolution by the FCC, so that industry and federal, state, and local LEAs have clear guidance as CALEA implementation moves forward, particularly as communications technology changes. The Petition was placed on Public Notice on March 12, 2004; comments were due by April 12, 2004 and reply comments were due by April 27, 2004. The Commission received comments from LEAs, cable organizations, Internet and broadband companies/organizations, privacy and public interest groups, standards and technology groups, wireless companies/ organizations, and wireline companies/organizations. On August 4, 2004, the FCC adopted a Notice of Proposed Rule Making and Declaratory Ruling (Notice) to launch a thorough examination of the appropriate legal and policy framework for implementing CALEA. In the item, the FCC states that it will be guided by several policy goals as it updates its CALEA policies: First, the FCC wishes to ensure that LEAs have all of the resources that CALEA authorizes to combat crime and support Homeland Security. Second, the FCC recognizes that LEAs' needs must be balanced with the competing policies of avoiding impeding the development of new communications services and technologies and protecting customer privacy. Third, the FCC intends to remove to the extent possible any uncertainty that is impeding CALEA compliance, particularly for packet-mode technologies. The Notice addresses a number of areas, including the applicability of CALEA to broadband Internet access and VoIP, capability requirements and solutions, compliance extensions, and cost and cost recovery issues. Each of these topics is discussed below. Applicability of CALEA to Broadband Internet Access and VoIP The Notice observes that CALEA applies to "telecommunications carriers" and exempts persons or entities insofar as they are engaged in providing "information services." The CALEA statute contains its own unique definition of the term "telecommunications carrier." Specifically, for purposes of CALEA, a "telecommunications carrier" is a person or entity engaged in the transmission or switching of wire or electronic communications as a common carrier for hire, but also includes entities that provide a replacement for a substantial portion of the local telephone exchange service if the FCC deems those entities to be "telecommunications carriers" as well. The Notice refers to this latter clause of the definition as the "Substantial Replacement Provision." The Notice tentatively concludes that, where a service provider is found to fall within the Substantial Replacement Provision, it should be deemed a "telecommunications carrier" for purposes of CALEA, to which CALEA obligations would apply. If, at the same time, the FCC interpreted CALEA's information services exclusion to apply, it would present an irreconcilable tension; that is, particular service providers would find themselves at the same time subject to CALEA under the Substantial Replacement Provision and exempted from it by virtue of the information services exclusion. The Notice tentatively concludes that the better reading of the statute is to recognize and give full effect to CALEA's broader definition of "telecommunications carrier" and to interpret the statute to mean that where a service provider is determined to fall within the Substantial Replacement Provision, by definition it cannot be providing an information service for purposes of CALEA. The Notice also tentatively concludes that facilities-based providers of any type of broadband Internet access, including but not limited to wireline, cable modem, satellite, wireless, and broadband access via powerline, are subject to CALEA because they provide replacement for a substantial portion of the local telephone exchange service used for dial-up Internet access service and such treatment is in the public interest. This tentative conclusion is based on the premise that broadband Internet access includes switching and transmission functionality and it replaces a substantial portion of the local exchange service used for narrowband Internet access. The Notice observes that, at the time CALEA was enacted, Internet services were generally provided on a dial-up basis by two separate entities providing two different capabilities - a local exchange telephone company carrying the calls between an end user and its chosen Internet Service Provider (ISP), and the ISP providing e-mail, content, web hosting and other Internet services. In its Report on the CALEA statute, the House of Representatives was quite clear as to the status of these different entities under CALEA: The local exchange carrier providing the local exchange transmission service that enabled the call to that dial-up ISP - "the transmission of an E-mail message" - was covered as a telecommunications carrier providing a "plain old telephone service" or "POTS" functionality (a "phone call"). By contrast, the separate ISP was not subject to CALEA because the functions it provided - such as the storage of a message in an E-mail 'box'" - were "information services." The Notice's tentative conclusion respects the House's understanding and does not propose attaching CALEA obligations to services or applications that "ride over" the underlying broadband transmission, such as e-mail storage, web browsing capabilities and Internet gaming. The Notice also tentatively concludes that providers of "managed" VoIP services, in which the provider acts as mediator to manage the communication between its end points and offers the service to the general public as a means of communicating with any telephone subscriber, including parties reachable only through the public switched telephone network (PSTN) are subject to CALEA. Such VoIP service providers offer an electronic communications switching or transmission service that replaces a substantial portion of local exchange service for their customers in a manner functionally the same as POTS service. The FCC believes that there is an overriding public interest in maintaining LEAs' ability to conduct wiretaps of on-going voice communications that are taking place over networks that are rapidly replacing the traditional circuit-switched network, yet providing consumers essentially the same calling capability that exists with legacy POTS service. Further, the Notice observes that it appears that basic capabilities essential to LEAs' surveillance efforts, such as access to call management information (e.g., call forwarding, conference call features such as party join and drop) and call set up information (e.g., real time speed dialing information, post-dial digit extraction information) may not be reasonably available to the broadband access provider. Consequently, subjecting only the broadband access provider to CALEA without including managed VoIP service providers could undermine LEAs' surveillance efforts. Capability requirements and solutions The Notice seeks comment on telecommunications carriers' capability obligations under section 103 of CALEA. Section 103 requires telecommunications carriers to enable LEAs, pursuant to a court order or other lawful authorization, (1) to intercept, to the exclusion of other communications, wire and electronic communications carried by the carrier to or from a subject, and (2) to access call-identifying information that is reasonably available to the carrier, subject to certain conditions. Further, the interception of communications or access to call-identifying information is to be delivered to LEAs in a format that may be transmitted over the equipment, facilities or services procured by LEAs, to a location other than the provider's premises and in a way that protects the privacy and security of communications and information not authorized to be intercepted or accessed. The Notice observes that CALEA defines call-identifying information as dialing or signaling information that identifies the origin, direction, destination, or termination of each communication generated or received by a subscriber by means of any equipment, facility, or service of a telecommunications carrier. The exact application of that term is not always clear in the context of broadband access and VoIP services. Call-identifying information may be found within several encapsulated layers of protocols, some of which may be considered packet content. The Notice invites comment as to how the FCC should apply that term for broadband and VoIP services. The Notice also invites comment on who may be in the best position to provide this information. The Notice observes that telecommunications carriers may use whatever method they choose to satisfy CALEA's requirements. CALEA requires that LEAs and industry work cooperatively to develop standards that would serve as "safe harbors." In other words, if a telecommunications carrier employs an industry-developed standard, it would be deemed compliant with CALEA. Under CALEA, any party may petition the FCC to address deficiencies in industry "safe-harbor" standards. While Law Enforcement has criticized certain of the industry standards, no petitions have been filed asking the FCC to intervene. The Notice invites comment as to whether standards for packet-mode technologies are deficient and thus preclude carriers from relying on them as safe harbors for complying with CALEA. The Notice also invites comment on the feasibility of carriers relying on a trusted third party to manage their CALEA obligations. The trusted third party effectively acts as a surveillance service provider by collecting the packets from the carrier's network, extracting the information to which a LEA is entitled, and conveying it in an acceptable format to that LEA. Such an approach is already being used in both the United States and other parts of the world. Compliance extensions The Notice proposes several steps to ensure that telecommunications carriers comply with CALEA. CALEA section 107(c) provides that telecommunications carriers may request, and the FCC, after consultation with the Attorney General, may grant, extensions of time for CALEA compliance. The Notice proposes to restrict the availability of compliance extensions under CALEA section 107(c). The Notice also proposes to clarify the role and scope of CALEA section 109(b), under which carriers may be reimbursed by the Department of Justice for their CALEA compliance costs. The Notice specifies the information that would be required to be filed with Section 107(c) and 109(b) petitions. The Notice asks whether there are special concerns regarding small and rural carriers seeking additional compliance extensions, and, generally, proposes to afford all carriers with pending petitions a reasonable period of time (e.g., 90 days) in which to comply with, or seek relief from, any determinations that the FCC eventually adopts in the rulemaking proceeding. Additionally, the Notice considers whether, in addition to the enforcement remedies through the courts available to LEAs under CALEA section 108, the FCC may take separate enforcement action against carriers that fail to comply with CALEA. The Notice tentatively finds that the FCC has general authority under the Communications Act to promulgate and enforce CALEA rules against carriers and non-common carriers. Cost and cost recovery issues In its Petition, Law Enforcement contends that CALEA places the financial burden of post-January 1, 1995 implementation on carriers and not LEAs. Law Enforcement requests that the FCC establish rules confirming that carriers bear the sole financial responsibility for post-January 1, 1995 CALEA implementation, unless otherwise specified by the FCC, recognizing that a specific carrier could have its costs reimbursed by the Department of Justice in the context of a CALEA section 109(b) petition. Related to this request, Law Enforcement asks the FCC to eliminate the issues of compliance costs as a basis for delayed compliance or non-compliance by establishing rules permitting carriers to recover CALEA implementation costs from their customers. The Notice tentatively concludes that carriers are responsible for CALEA development and implementation costs for post-January 1, 1995 equipment and facilities. The Notice also seeks comment on cost recovery options that could reduce CALEA-related burdens otherwise imposed on carriers and their customers, particularly in rural areas. The Notice also asks for comment on how to assess the scope of CALEA-related costs in this proceeding. Commenters are requested to submit cost calculations and analysis, and to identify any conditions or factors that may affect the FCC's ability to determine the true scope of CALEA-related costs. The Notice refers to the Federal-State Separations Joint Board cost recovery issues for carriers subject to Title II of the Communications Act. DECLARATORY RULING ON PUSH-TO-TALK SERVICES The companion Declaratory Ruling grants Law Enforcement's request in the Petition and clarifies that commercial wireless "push-to-talk" services are subject to CALEA, regardless of the technologies that Commercial Mobile Radio Service providers choose to apply in offering them. In a prior decision, the FCC ruled that push-to-talk "dispatch" services that are interconnected to the PSTN are subject to CALEA. In effect, such push-to-talk service is a switched service that is functionally equivalent to a combination of speed dialing and conference calling. If push-to-talk "dispatch" service otherwise does not interconnect to the PSTN, the FCC found that it is not subject to CALEA. Commercial mobile radio service providers are developing push-to-talk services based on use of packet technologies. Some parties asserted that such push-to-talk service is offered over a closed network and therefore should not be subject to CALEA. The Declaratory Ruling notes that CALEA is technology neutral; therefore, the choice of technology that a carrier makes when offering common carrier services does not change its obligations under CALEA. CONCLUSION As Chairman Powell noted in his statement on the CALEA Notice of Proposed Rulemaking and Declaratory Ruling: "[The Commission's] support for law enforcement is unwavering." As the Chairman also noted, the FCC's tentative conclusions in the Notice with respect to new packet-mode services such as VoIP is expressly limited to the requirements of the CALEA statute and does not indicate a willingness on the FCC's part to regulate those services as traditional telecommunications services. CALEA and other important social obligations can and will be continued without imparting upon carriers the full litany of analog, monopoly regulation. Similarly, the FCC is not proposing to regulate under the CALEA statute "non-managed" VoIP services, such as Instant Messaging, in which the service provider has minimal or no involvement in the flow of packets during the communication. However, it is the FCC's unmistakable intent to ensure that LEAs have all of the electronic surveillance capabilities that CALEA authorizes to combat crime and terrorism and support Homeland Security. The FCC looks forward to developing a complete and comprehensive record before determining how best to proceed. The FCC will devote the necessary resources to expeditiously and responsibly complete this task. The FCC is also cognizant that the Congress is currently contemplating legislation that may address CALEA. The FCC would welcome Congressional guidance in this area that would bring added certainty to the industry and lessen the risk of litigation. The Commission stands ready to provide whatever technical assistance that the Congress would find helpful in this regard. I would like to thank you, Mr. Chairman, for the opportunity to appear before you today. This concludes my testimony and I would be pleased to answer any questions you or the other members may have. |
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