Public Power - September 2008 - (Page 52)

BROADBAND CALEA Compliance: Avoiding a $10,000 Fine By Cathy Swirbul BroadbandInternet protocol providers offering voice over services face a $10,000-a-day fine if they fail to comply with federal law requiring telecommunications providers to help law enforcement agencies. Thirteen years after adoption of the Communications Assistance for Law Enforcement Act of 1994 (CALEA), the Federal Communications Commission and the courts expanded its scope to require voice over Internet protocol providers to acquire the technical capabilities to assist law enforcement. With the extension of these responsibilities, law enforcement can turn to VoIP providers for help when conducting authorized interceptions of communications content or to obtain call-identifying information. Under the law, providers had to become compliant by May 14, 2007. “As the Federal Communications Commission has interpreted it, CALEA apparently applies to any provider of telecommunications or Internet services that could conceivably assist in surveillance, including the smallest municipality,” said Casey Lide, an attorney with the Baller Herbst Law Group, a firm that has worked with municipal broadband providers to help them become compliant with CALEA. “Transmission is key,” Lide said. “If the service provider owns or controls facilities involved in the transmission of communications, it will likely be subject to CALEA, regardless of whether it possesses detailed information about the end-user 52 SEPTEMBER 2008 customer.” CALEA does not affect surveillance authority. A surveillance order must still be legally valid. “If a municipality were to get a subpoena or a request for a wiretap from law enforcement, it would still have to be sure that the request is legally sufficient under something other than CALEA,” said Jim Baller, president of Baller Herbst. “Our firm has created a manual on privacy for APPA members on what makes a law enforcement request legal.” Many public power utilities have taken the steps necessary to comply with CALEA, Baller said. “There could conceivably be some entities, though, that are not yet in full compliance with CALEA.” While CALEA’s scope is determined by the term “telecommunications carrier,” the meaning of that term, under the law, is significantly broader than its use in other areas of telecommunications law. For CALEA, a telecommunications carrier includes broadband Internet access providers and interconnected voice over Internet protocol. Communications services offered through wireline, satellite, cable modem, wireless, fixed wireless and broadband over powerline may all be subject to CALEA. Tthe complexities of Internet technology compared with traditional telephony contributed to the long delay in implementing a firm deadline for CALEA compliance, Baller said. “With traditional circuit-switched telephony, you can easily find a good point along the transmission path to tap into a call. In contrast, in the IP world, calls are often broken into small ‘packets,’ and these packets find their way over separate paths around the world to the destination, where they are re-assembled. As a result, in some cases, no single entity may have access to an entire message,” Baller said. “The Federal Communications Commission, the Department of Justice, and the industry took a long time to work out these complexities, create standards, and determine to whom they would apply.” “As the world moves telephone communications to the Internet, the targets of investigations are migrating to broadband communications, and law enforcement officials must be able to keep up with them.” Baller said. “Reading CALEA as exempting broadband communications would have created significant problems for law enforcement, so the Federal Communications Commission and the courts stretched the language of the act to find broad coverage.” At the end of 2006, Baller Herbst, partnering with Columbia Telecommunications Corp., joined forces with about 25 public power utilities to address the intricacies of CALEA and assist them with deciding what would work best for each provider when filing with the Federal Communications Commission. Some larger municipal utilities and a few with special expertise are implementing the compliance technology themselves, Baller said. Others are outsourcing tasks to third parties. Since the collaborative formed, CALEA compliance technologies and business models have evolved, adding to the compliance options available. Whether a municipality works in-house or hires a third party, the compliance process is similar: surveying the existing infrastructure; determining the PUBLIC POWER

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Public Power - September 2008 Contents Perspective 10 Questions What’s Good About RTOs? Capturing Coal’s Carbon Carbon Safety Valves Greater Glass, Greater Savings Getting Customers to Embrace Compact Fluorescent Lights LEEDing Green Kansas City Shows How to Build Green For Governing Boards Safety Community Broadband Hometown Connections Parting Shot

Public Power - September 2008

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