Andy Serwin responds to this morning’s headlines about the administration seeking expanded wiretap capabilities:
… While the bill won’t be sent to Congress until next year, it appears that what the Administration is asking for is an expansion of a law called the Communications Assistance for Law Enforcement Act, or CALEA. There has already been an expansion of CALEA–the FCC ruled that it applied beyond telephones to broadband and VoIP. In litigation over the ability for the FCC to regulate VoIP, and the application of the Telecommunications Act of 1996 to VoIP, which was dealt with in the Brand X case, the Supreme Court rejected the application of FCC regulations to VoIP. Despite this, CALEA has been applied to broadband and VoIP, though it appears to be tied to similar issues. In American Council, the D.C. Court of Appeals addressed whether CALEA applied to broadband and VoIP providers. The FCC’s view was that if VoIP and broadband carriers qualify as “telecommunications carriers”, though they are not subject to the Telecommunications Act of 1996, CALEA applies. Ultimately, the court examined the differing (and broader) structure of CALEA in relation to the Telecommunications Act of 1996 at issue in the Brand X case. Despite the inapplicability of the Telecommunications Act, CALEA was found to apply to broadband and VoIP and thus require these providers to permit law enforcement access.
As one examines the new issues presented by cloud computing and ECPA reform, it is notable that these are not new issues and in fact we appear to be applying ECPA to the companies that store the data, rather than the companies that provide the connection to access the data.
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