U.S. Telecom Ass'n v. Fed. Commun Comm'n.

• Decision Date: 15 August 2000
• Docket Number: 99-1466,99-1475 and 99-1523,Nos. 99-1442,s. 99-1442
• Citation: 227 F.3d 450
• Parties: (D.C. Cir. 2000) United States Telecom Association, et al.,Petitioners v. Federal Communications Commission and United States of America, Respondents Air Touch Communications, Inc., et al., Intervenors
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 450

227 F.3d 450 (D.C. Cir. 2000)

United States Telecom Association, et al.,Petitioners v. Federal Communications Commission and United States of America, Respondents

Air Touch Communications, Inc., et al., Intervenors

Nos. 99-1442, 99-1466, 99-1475 and 99-1523

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 17, 2000

Decided August 15, 2000

[Copyrighted Material Omitted]

On Petitions for Review of an Order of the Federal Communications Commission

Theodore B. Olson argued the cause for petitioners United States Telecom Association, et al. With him on the briefs were Eugene Scalia, John H. Harwood, II, Lynn R. Charytan, Michael Altschul, Jerry Berman, James X. Dempsey, Lawrence E. Sarjeant, Linda L. Kent, John W. Hunter and Julie E. Rones.

Gerard J. Waldron argued the cause for petitioners Electronic Privacy Information Center, et al. With him on the briefs were Kurt A. Wimmer, Carlos Perez-Albuerne, Lawrence A. Friedman, Kathleen A. Burdette, David L. Sobel and Marc Rotenberg.

Stewart A. Baker, Thomas M. Barba, Matthew L. Stennes, Mary McDermott, Brent H. Weingardt, Todd B. Lantor, Robert A. Long Jr., Kevin C. Newsom, Robert B. McKenna and Dan L. Poole were on the brief for intervenor Sprint Spectrum, et al.

Philip L. Malet, William D. Wallace and William F. Adler were on the brief for intervenors Globalstar, et al.

John E. Ingle, Deputy Associate General Counsel, Federal Communications Commission, argued the cause for respondent Federal Communications Commission. With him on the brief were Christopher J. Wright, General Counsel, Laurence N. Bourne and Lisa S. Gelb, Counsel.

James M. Carr, Counsel, entered an appearance.

Scott R. McIntosh, Attorney, U.S. Department of Justice, argued the cause for respondent United States of America. With him on the brief were David W. Ogden, Acting Assistant Attorney General, and Douglas N. Letter, Attorney.

Before: Ginsburg, Randolph and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge:

The Communications Assistance for Law Enforcement Act of 1994 requires telecommunications carriers to ensure that their systems are technically capable of enabling law enforcement agencies operating with proper legal authority to intercept individual telephone calls and to obtain certain "call-identifying information." In this proceeding, telecommunications industry associations and privacy rights organizations challenge those portions of the FCC's implementing Order that require carriers to make available to law enforcement agencies the location of antenna towers used in wireless telephone calls, signaling information from custom calling features (such as call forwarding and call waiting), telephone numbers dialed after calls are connected, and data pertaining to digital "packet-mode" communications. According to petitioners, the Commission exceeded its statutory authority, impermissibly expanded the types of callidentifying information that carriers must make accessible to law enforcement agencies, and violated the statute's requirements that it protect communication privacy and minimize the cost of implementing the Order. With respect to the custom calling features and dialed digits, we agree, vacate the relevant portions of the Order, and remand for further proceedings. We deny the petitions for review with respect to antenna tower location information and packet-mode data.

I

The legal standard that law enforcement agencies ("LEAs") must satisfy to obtain authorization for electronic surveillance of telecommunications depends on whether they seek to intercept telephone conversations or to secure a list of the telephone numbers of incoming and outgoing calls on a surveillance subject's line. In order to intercept telephone conversations, law enforcement agencies must obtain a warrant pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Before issuing a Title III wiretap warrant, a judge must find that: (1) "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous"; and (2) there is probable cause for believing "that an individual is committing, has committed, or is about to commit" one of a list of specifically enumerated crimes, that the wiretap will intercept particular communications about the enumerated offense, and that the communications facilities to be tapped are either being used in the commission of the crime or are commonly used by the suspect. 18 U.S.C. § 2518(3). The Electronic Communications Privacy Act of 1986 ("ECPA"), id. § 3121 et seq., establishes less demanding standards for capturing telephone numbers through the use of pen registers and trap and trace devices. Pen registers record telephone numbers of outgoing calls, see id. § 3127(3);trap and trace devices record telephone numbers from which incoming calls originate, much like common caller-ID systems, see id. § 3127(4). Although telephone numbers are not protected by the Fourth Amendment, see Smith v. Maryland, 442 U.S. 735, 742-45 (1979), ECPA requires law enforcement agencies to obtain court orders to install and use these devices. Rather than the strict probable cause showing necessary for wiretaps, pen register orders require only certification from a law enforcement officer that "the information likely to be obtained is relevant to an ongoing criminal investigation." 18 U.S.C. § 3122(b)(2).

Wiretaps, pen registers and trap and trace devices worked well as long as calls were placed using what has come to be known as POTS or "plain old telephone service." With the development and proliferation of new telecommunications technologies, however, electronic surveillance has become increasingly difficult. In congressional hearings, the FBI identified 183 "specific instances in which law enforcement agencies were precluded due to technological impediments from fully implementing authorized electronic surveillance (wiretaps, pen registers and trap and traces)." H.R. Rep. No. 103-827, pt. 1, at 14-15 (1994). These impediments stemmed mainly from the limited capacity of cellular systems to accommodate large numbers of simultaneous intercepts as well as from the growing use of custom calling features such as call forwarding, call waiting, and speed dialing. See id. at 14.

Finding that "new and emerging telecommunications technologies pose problems for law enforcement," id., Congress enacted the Communications Assistance for Law Enforcement Act of 1994 "to preserve the government's ability, pursuant to court order or other lawful authorization, to intercept communications involving advanced technologies such as digital or wireless transmission modes, or features and services such as call forwarding, speed dialing and conference calling, while protecting the privacy of communications and without impeding the introduction of new technologies, features, and services," id. at 9. Known as CALEA, the Act requires telecommunications carriers and equipment manufacturers to build into their networks technical capabilities to assist law enforcement with authorized interception of communications and "call-identifying information." See 47 U.S.C. § 1002. The Act defines "call-identifying information" as "dialing or signaling information that identifies the origin, direction, destination, or termination of each communication generated or received by a subscriber by means of any equipment, facility, or service of a telecommunications carrier." Id. § 1001(2). CALEA requires each carrier to

ensure that its equipment, facilities, or services ... are capable of

(1) expeditiously isolating and enabling the government, pursuant to a court order or other lawful authorization, to intercept, to the exclusion of any other communications, all wire and electronic communications carried by the carrier within a service area to or from equipment, facilities, or services of a subscriber of such carrier concurrently with their transmission to or from the sub-scriber's equipment, facility, or service, or at such later time as may be acceptable to the government; [and]

(2) expeditiously isolating and enabling the government, pursuant to a court order or other lawful authorization, to access call-identifying information that is reasonably available to the carrier....

Id. § 1002(a)(1)-(2). Carriers must also "facilitat[e] authorized communications interceptions and access to call identifying information ... in a manner that protects ... the privacy and security of communications and call-identifying information not authorized to be intercepted." Id. § 1002(a)(4)(A). Because Congress intended CALEA to "preserve the status quo," the Act does not alter the existing legal framework for obtaining wiretap and pen register authorization, "provid[ing] law enforcement no more and no less access to information than it had in the past." H.R. Rep. No. 103-827, pt. 1, at 22. CALEA does not cover "information services" such as e-mail and internet access. 47 U.S.C. §§ 1001(8)(C)(i), 1002(b)(2)(A).

To ensure efficient and uniform implementation of the Act's surveillance assistance requirements without stifling technological innovation, CALEA permits the telecommunications industry, in consultation with law enforcement agencies, regulators, and consumers, to develop its own technical standards for meeting the required surveillance capabilities. See id. § 1006. The Act "does not authorize any law enforcement agency or officer" to dictate the specific design of communications equipment, services, or features. Id. § 1002(b)(1). Although carriers failing to meet CALEA's requirements may incur civil fines of up to $10,000 a day, see 18 U.S.C. § 2522(c), the Act establishes a safe harbor under which carriers that comply with the accepted industry standards will be deemed in compliance with the statute, see 47 U.S.C. § 1006(a)(2). But "if a Government agency or...