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Appeals Court Splits on CALEA Suit

June 9, 2006

A three-judge appeals court panel today offered a split decision on whether provisions of the Communications Assistance for Law Enforcement Act (CALEA) apply to the communications networks operated by colleges and universities.

In a 29-page decision, the U.S. Court of Appeals for the District of Columbia Circuit upheld the Federal Communications Commission’s (FCC) decision to extend CALEA provisions to the Internet and providers of facilities-based Internet access or voice-over-IP. At the same time, the court reaffirmed provisions within CALEA that specifically exempt private networks, such as those operated by many colleges and universities, from such regulation by the FCC.

The American Council on Education (ACE), along with EDUCAUSE and a number of other organizations, filed a formal appeal with the U.S. Court of Appeals for the District of Columbia Circuit on Jan. 26, 2006 in an effort to overturn the FCC ruling regarding extending CALEA provisions. CALEA requires telephone companies to ensure that their networks do not impede the ability of law enforcement agencies to conduct wiretaps. The U.S. Department of Justice and Federal Bureau of Investigation requested an FCC ruling extending the scope of CALEA to include all "facilities-based" Internet service providers.

Reaction to the ruling came quickly from both ACE and the FCC.

"While we are still studying the decision of the three-judge panel, the court's opinion appears somewhat mixed," said David Ward, president of ACE. "While it appears that many of America's colleges and universities may be exempt from the FCC order, a final determination will require additional study of the court's decision and the dissenting opinion." Ward’s complete statement is available on ACE's web site.

"Today, the court of appeals affirmed the Commission’s decision concluding that VoIP and facilities-based broadband Internet access providers have CALEA obligations similar to those of telephone companies," said Kevin J. Martin, chairman of the FCC in a prepared statement. "I am pleased that the Court agreed with the Commission’s finding, which will ensure that law enforcement agencies' ability to conduct lawful court-ordered electronic surveillance will keep pace with new communication technologies."

While the FCC's order focused on commercial entities, it explicitly stated that colleges and universities that operate private broadband networks would be subject to the new obligations as long as they "support" a connection to the Internet. It is generally believed that CALEA compliance would be extremely costly for campuses and educational and research networks.

"We are still considering all options—including legal options—pending further analysis of the court decision," added Ward.