CALEA and Other Regulatory Burdens

Communications Assistance for Law Enforcement Act (CALEA) is a complex piece of federal
legislation that expands law enforcement’s authority to conduct electronic surveillance,
including surveillance over public networks. It has been recently reinforced by provisions
contained within the USA PATRIOT Act, authorizing a broad range of surveillance and interdiction
techniques conducted over public networks.
■Note The USA PATRIOT Act is the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act.
To date, the provisions of CALEA have primarily been applied to incumbent telcos, if for
no other reason other than the act was conceived in the area of circuit-switched networks and
is somewhat difficult to apply to pure packet networks such as those characterizing broadband
wireless deployments. Nevertheless, if the current political climate and preoccupation with
terrorism persist, you may expect that the efforts of law enforcement to monitor the public networks
will intensify and will place increasing burdens and liabilities on the network operators.
Already the federal government has used such programs as Carnivore to inspect traffic in
a wholesale manner to determine the presence of suspicious activity, and legal barriers to fairly
indiscriminate monitoring have been considerably relaxed. Where this will lead is anyone’s
guess, and the legal and societal implications of such practices are best left to those with specific
expertise in constitutional law and political processes. However, that such activities will
increasingly involve the service provider in an uncompensated role may be predicted with a
good degree of confidence, provided, that is, that counterterrorism remains at the heart of
governmental policy.
Advising the network operator on how to cope with such exigencies is difficult because of
an almost utter lack of prior experience on which to draw. In the recent past, various authoritarian
regimes have attempted to restrict and monitor the Internet activities of their subject
populations, with mostly indifferent results. The governmental firewall around the island of
Singapore, for instance, is relatively transparent and ineffective. Nevertheless, network monitoring
on the part of law enforcement agencies is likely to become more extensive in the future,
though whether it will become more welcome depends on external political circumstances. In
any event, the necessity of abetting the practice puts the network operator in a nearly impossible
position. On the one hand, one wants to be perceived as concerned about national security
matters and ready to do one’s part to check further attacks upon lives and property here or
abroad. On the other hand, one’s subscribers expect their privacy to be protected. And if such
broad surveillance powers are abused, as they have been in certain instances in the past, then
the position of the service provider becomes more difficult still.
At the present moment, government-monitoring requirements do not impose an
onerous burden on wireless broadband operators. But the possibility that they eventually
will is not entirely remote. Unfortunately, a technical manual can offer the network operator little guidance in these matters. Ultimately one’s own beliefs regarding privacy and openness
and, conversely, on one’s own obligations to the state, will play a critical role in the decisions
one will make regarding supporting monitoring activities. Some conundrums really are
conundrums. Some choices remain difficult regardless of how much professional expertise
one commands.

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