By Gerry Oberst

It used to be that law enforcement officials had a relatively obvious way to ensure legal access to satellite communications–get a court order to wire tap a local operator. Domestic satellite services were provided by operators under the jurisdiction of national authorities. International satellite services were provided mainly by intergovernmental satellite organizations whose services were funneled through national signatories, often government-owned. And the services involved were mainly distribution channels. If voice channels were involved, they would connect into the national switched network, where law enforcement officials could use traditional interception methods.

This clear, relatively simple system evaporated with the rise of many new international satellite operators and many new satellite services, not to speak of new encryption methods. As law enforcement officials insist on methods of lawful interception in this new environment, the satellite industry has to respond and measure the costs.

The mobile satellite industry has already faced these challenges in seeking to provide voice services and found that solutions can be costly and complex. For instance, in June of this year the Indian government imposed strict security conditions on global mobile personal communications service (GMPCS) providers. The rules were drawn up by Telecom Regulatory Authority of India, allegedly following reports that militants used Iridium phones during the 1999 conflict between India and Pakistan.

The Indian rules permit security agencies to intercept voice traffic through their gateways. Further, operators must make records of calls available upon inspection, and they must block services to certain areas at the demand of the government.

These rules are by no means unique. Germany applies strict technical rules on interception to all satellite earth stations, not just mobile gateways. Section 88 of the German telecommunications law provides that no telecommunications system can be brought into operation until the operator has set up the necessary technical facilities for authorized interceptions and has cleared the system with the regulator. A showing to this effect is required in seeking a satellite license.

In the United States, the 1994 Communications Assistance for Law Enforcement Act (CALEA) gives the attorney general, on behalf of all federal law enforcement agencies, authority to provide capacity requirements for the actual and maximum number of interceptions (of call content and/or call-identifying information) that telecoms carriers may be required to put in place in support of law enforcement electronic surveillance needs.

It is clear that CALEA applies to satellite operators. For example, in December 1998, the FBI issued a notice of inquiry on developing reasonable ways to define these capacity requirements for telecommunications services other than traditional voice services, including, the FBI noted, mobile satellite services (MSS).

It also is not unknown for the U.S. legal and national security authorities to review the location of satellite gateways and control stations for U.S. satellite operators. Some large satellite-related transactions involving foreign companies have been held up while the law enforcement agencies haggled over guarantees that key infrastructure would be subject to U.S. jurisdiction.

The counterpart to this U.S. law in the European Union is a European Council Act of May 29 this year, on mutual assistance in criminal matters. The convention sets up standards for member states to request intercepts from each other, including where a telecommunications gateway is operating in another country.

We can expect to see interception rules expand in the satellite field as the industry expands its capabilities. In June this year, the Asia Pacific Telecommunity (APT) noted this issue in a paper to the ITU Standardization Sector. The APT pointed out that telecommunications interception challenges will arise with new services that are different from traditional circuit-switched voice telephony. The APT also recommended that the ITU standardization assembly later this year in Canada should raise the awareness of the legal interception issue. This effort would follow resolution 1115 that the ITU Council adopted in June 1997 on legal interception, referring to a generic set of requirements for legal interception (the International Requirements for Interception, IUR).

Most of these rules and theorizing so far have applied to satellite applications in the voice services area, such as MSS. But we can expect to see governments moving to apply similar restrictions to ISPs and other Internet applications. As concerns over cybercrime grow, satellite operators more frequently will become the subjects for legal interceptions, especially as the satellite industry continues to provide Internet related applications.

Satellite interactive services will have a foot in both camps of voice service and general electronic commerce. To the extent that IP applications over satellite can support both voice and data transmissions, we can expect that regulators and law enforcement agencies will want increasing ability to intercept or monitor services. This could turn into a difficult barrier for satellite platforms that serve many countries with the same data stream.

Gerry Oberst is a partner in the Brussels office of the Hogan & Hartson law firm. His email address is [email protected].