Government eavesdropping on private communications is as old as government itself. Telecommunications providers are but an instrument for government wiretapping. As blunt as this may sound and regardless of whether this practice is justified, this is the relationship between law enforcement agencies and private telecom providers. The issue of whether government should eavesdrop on its citizens is left to constitutional lawyers, but there are extents to which telecom providers are required to cooperate.

The Wiretapping Law

In 1994, the U.S. Congress passed the Communications Assistance for Law Enforcement Act (CALEA) in response to concerns that emerging technologies, such as digital and wireless communications, were making it increasingly difficult for law enforcement to execute authorized surveillance. Wiretapping authority actually is derived from the Electronics Communications Privacy Act, and a court order is required before any such surveillance can take place. What CALEA does is impose a duty on telecommunications carriers to cooperate with law enforcement in surveillance efforts.

The 1990s represented the technological culmination of a transition from circuit-switched to packet telephony and from analog to digital communications. Similarly, the new millennium prompted a revision of CALEA regulations due to the emergence of Internet-related technologies. Thus, CALEA obligations were extended to facilities-based broadband providers, and interconnected VoIP providers. 

Satellite Service Providers and CALEA

The answer to the question whether satellite service providers are subject to CALEA lies with the type of services they offer; most importantly, whether they provide broadband services. A facilities-based carrier owns transmission facilities and/or routing equipment. A service is defined as broadband when data rates are at least 200 Kbps. Hence, a satellite service provider that provides facilities-based broadband access most likely would be subject to CALEA.

Furthermore, a satellite service provider also may qualify as an interconnected VoIP provider. To do so, the provider would have to facilitate two-way voice communications to the Public Switched Telephone Network (PSTN) over broadband, where the customer used IP-compatible equipment (e.g., the Vonage model). On the other hand, it is quite possible that satellite service providers only provide enterprise solutions to private networks. In this case, CALEA obligations would not apply. However, the private network must be totally isolated from public access (PSTN or the Internet).

How to Comply with CALEA

Telecom carriers subject to CALEA can comply in any of three ways:

1. 1. Develop a customized solution

Carriers can develop their own customized hardware and software solution to comply with CALEA. In this case, carriers deal directly with the law enforcement agency.

1. 2. Purchase a solution from manufacturers

Carriers can purchase CALEA-compatible equipment and install it in their networks. Here again, carriers deal directly with the law enforcement agency.

1. 3. Outsource a solution to a third party

CALEA allows compliance through trusted third parties (TTPs). In essence, carriers subject to CALEA may give TTPs equipment access for purposes of court-ordered wiretaps. The TTP interfaces with the law enforcement agency and takes care of setting up the tap. TTPs typically charge an initial setup fee and a monthly fee, plus a separate fee for each requested tap. Compliance through TTPs remains the most popular option.

Conclusion

The era of bug-ready telecom equipment is here. Some argue that with tap-compatible equipment, the danger is that if law enforcement has the ability to tap, so can a hacker. Unfortunately, there is not much room for argument, as providers must nonetheless abide by the statute. The practical thing to do is to make CALEA-compliant equipment part of your network planning. There are harsh federal penalties for failing to comply. Service providers should carefully look at their services to decide whether compliance is required, and if so, implement the solution that works best for them.

Raul Magallanes runs a Houston-based law firm focusing on telecommunications law.
He may be reached at +1 (281) 317-1397 or by email at raul@ rmtelecomlaw.com.