Written by: Cody Brumfield
Published: 06/15/2006

UPDATE: Court Extends Wiretapping Law to Include Some Colleges and University Networks

The U.S. Court of Appeals in the District of Columbia has issued a 2-1 ruling against the American Council of Education (ACE) in the organization's attempts to block the Federal Communications Commission (FCC) from extending certain provisions of the Communications Assistance for Law Enforcement Act (CALEA) to voice-over-IP (VoIP) providers and facilities-based broadband Internet access providers, which include many higher education institutions.

CALEA, passed in 1994, requires telecommunications carriers such as phone companies to ensure that law-enforcement agencies can install wiretaps on their networks pursuant to court orders. At the time, “telecommunications carrier” was defined in a way that included things like phone calls and connecting to the Internet via a dial-up modem.

Two years later, when Congress passed the Telecommunications Act of 1996, the FCC concluded that broadband Internet access is not a telecommunications service. Lawyers for ACE argued that the 1996 conclusion should apply to the FCC's new interpretation of CALEA.

CALEA, however, includes a provision on future technological developments that further defines a “telecommunications carrier” as an entity that the FCC concludes is providing a “service [that] is a replacement for a substantial portion of the local telephone exchange service.” Relying on that clause, the court ruled that the FCC is free to classify broadband Internet access as a replacement for dial-up even though it is not classified as a telecommunications service. Similarly, VoIP is considered a replacement for telephone service.

The court, however, also found that many private networks, including campus-wide networks, are exempt from CALEA's provisions. After noting that some broadband-based private network communications “provide access to “private education, library and research networks,” the decision quotes the FCC:

To the extent [the petitioners] are engaged in the provision of facilities-based private broadband networks or intranets that enable members to communicate with one another and/or retrieve information from shared data libraries not available to the general public, these networks appear to be private networks for purposes of CALEA... To the extent, however, that these private networks are interconnected with a public network, either the [public voice network] or the Internet, providers of the facilities that support the connection of the private network to a public network are subject to CALEA.

The decision is mixed for higher education. While the court ruled that colleges and universities providing broadband access that is interconnected with the wider Internet must be CALEA compliant, internal networks like those often used in university libraries or research departments are exempt.

According to a statement released by David Ward, President of ACE, “[ACE is] still considering all options—including legal options—pending further analysis of the court decision.”

Related Links:

Full text of the Decision
http://www.educause.edu/ir/library/pdf/EPO0648.pdf

Statement of David Ward
http://www.acenet.edu/AM/Template.cfm?Section=News_Room&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=16800