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Court Ruling Mixed on Wiretapping Suit

June 13, 2006

A federal appeals court ruled last week that the Federal Communications Commission can require Internet service providers, including colleges and universities, to make network upgrades in keeping with federal surveillance requirements. The court noted, however, that institutions may be exempt as private networks.

The case, brought against the FCC by the American Council on Education, other higher education associations, and library and civil liberties groups, challenged the application of the Communications Assistance for Law Enforcement Act to broadband Internet services and voice over Internet phone services. Enacted in 1994, CALEA was aimed at facilitating law enforcement agencies' access to complex telephone networks for the purpose of wiretapping. It is anticipated that compliance with CALEA would be extremely costly for colleges and universities.

The U.S. Court of Appeals for the District of Columbia upheld the FCC's broad application of CALEA to Internet service providers. At the same time, the court reaffirmed CALEA provisions that specifically exempt private networks, which are operated by many colleges and universities, from wiretapping regulation by the FCC.

While it appears that many institutions may be exempt from the FCC order, at this time the specific definition of "private networks", upon which such exemption rests, is not clear. We will continue to share information related to CALEA compliance as it becomes available.