Taming Cyberterrorists Via Broadband

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Cable needs to help the feds catch the broadband bad guys.

In a recent ruling, the Federal Communications Commission said cable companies that provide high-speed Internet access and offer managed Internet protocol-based phone services must comply with a law that authorizes law enforcement to wiretap communications networks.

In a unanimous decision, the FCC took the step to help shore up the country’s electronic defenses against terrorism.

Under pressure from the Department of Justice and state law enforcers, the FCC said it needed to plug holes in the national surveillance network and deny drug dealers, kidnappers and terrorist cells a broadband safe haven from a 1994 statute called the Communications Assistance for Law Enforcement Act, or CALEA.

AUTHORITY ISSUES

“Our support for law enforcement is unwavering, and it is our goal in this proceeding to ensure that law-enforcement agencies have all of the electronic-surveillance capabilities of CALEA authorizing them to combat crime and terrorism and to support homeland security,” FCC chairman Michael Powell said Aug. 4.

The DOJ, the FBI and the Drug Enforcement Agency were concerned that in the wake of FCC rulings that classified cable-modem service and at least one voice-over-IP service as information services, they would lack authority to invoke CALEA against cable-broadband platforms and VoIP providers.

Because CALEA does not cover information-service providers, law enforcement feared that the FCC had carved out an unacceptable loophole at a time when the nation is waging a global war against terrorism and coping with recent terror alerts in New York and Washington.

When the FCC’s final rules take effect, cable companies that offer high-speed Internet services and managed-VoIP services must install software that permits law enforcement to track communications by routing address and by content of the communication instantaneously, an FCC official said.

COMPLYING NOW

Cablevision Systems Corp. — which offers its “Optimum Voice” VoIP service to 4.4 million homes in the New York area, and which has signed up 100,000 subscribers — already complies with CALEA, an MSO spokesman said.

Spokespersons for Charter Communications Inc., Time Warner Cable, and Cox Communications Inc. said their VoIP services presently comply with CALEA.

A Comcast Corp. spokesman said the company planned to deploy CALEA-complaint technology when it rolls out VoIP.

The FCC’s order is expected to cover all broadband-access providers, and the agency intends to put the burden on industry to shoulder the cost of CALEA compliance.

In the past, the federal government has reimbursed carriers for some CALEA costs.

New York Attorney General Eliot Spitzer, who pushed the FCC to broaden CALEA’s reach, told the FCC that New York State accounts for about 30% of the 1,500 communications intercepts that courts authorize each year.

“I strongly support the FCC’s proposal that CALEA apply to broadband internet services — whether wireline, cable, satellite, wireless or even powerline — and to VoIP services. The commission also has taken into account the financial limitations of state and local law enforcement entities by tentatively concluding that the costs of CALEA implementation will be borne by the telecommunications carriers, rather than law enforcement,” Spitzer said in a statement.

NCTA ON BOARD

The National Cable & Telecommunications Association issued a short statement agreeing with the FCC’s decision insofar as it would apply to VoIP services.

The NCTA statement did not directly endorse the FCC’s ruling to the extent that it covered broadband-access providers and to the extent that it did not cover nonmanaged VoIP services.

“The cable industry strongly supports the application of CALEA requirements to VoIP services. We will study the FCC’s proposals and file formal comments once we have had the opportunity to review them further,” NCTA spokesman Brian Dietz said.

In his statement, Powell noted that the FCC planned to apply CALEA to broadband providers without altering the agency’s March 2002 ruling that cable-modem service is an information service within the meaning of federal communications law.

APPEASING DOJ?

But that FCC ruling was overturned by the 9th U.S. Circuit Court of Appeals, which held that cable-modem service is partly a telecommunications service — an interpretation that might require cable operators to sell wholesale broadband access to competing broadband access providers.

By appeasing the DOJ with its CALEA action, Powell may have gained its support to appeal the 9th Circuit’s ruling to the Supreme Court later this month.

The NCTA is planning to appeal with or without the DOJ’s support.

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