Last week, members of our firm attended a program sponsored by the Federal Communications Bar Association (“FCBA”) entitled, “CALEA Enforcement: Don’t Find Out the Hard Way.” The program was organized by the FCBA’s Homeland Security and Emergency Communications Committee and included several prominent speakers representing both government and private industry views. The purpose of the program was twofold: First, to update the industry on CALEA developments before Congress, including CALEA enhancements being sought by the U.S. Department of Justice. Second, to discuss risks associated with non-compliance, including predictions of increased CALEA enforcement by the federal government in 2012, with specific warnings regarding anticipated FCC enforcement.
Our firm constantly strives to ensure our clients are made aware of important legal and regulatory developments affecting their communications businesses. We are particularly sensitive to issues which create increased operational risks. Our goal is merely to help our clients avoid surprises with educational information while trying hard to avoid the disfavored alarmist predictions of doom and gloom.
With this in mind, however, we wanted to share specific information that was gleaned from the FCBA program and subsequently verified based on a third party’s public postings. One of the panelists, Mike Warren, spoke in detail about impending FCC enforcement in the area of CALEA compliance. A 29-year veteran of the FBI, including time as the chief of the agency’s CALEA Implementation Section, Warren now serves as Vice President of Neustar’s Legal Compliance Services business unit. Warren flat out predicted an enforcement action by the FCC, stating that the first enforcement action will not be against a small Tier 3 carrier, but a bigger carrier with the resources to comply. Warren explained that the types of non-compliance issues that are likely to garner the FBI’s attention are when a carrier has no “safe harbor” solution or when the solution is non-standard, inadequate or incomplete.
While disclaiming any knowledge of specific enforcement actions currently being prepared by the FCC, Warren intimated that the U.S. Department of Justice has referred ten carriers to the FCC with requests to investigate CALEA compliance. Warren suggested that these referrals reflect a new, more aggressive approach to carriers’ failures to implement compliant CALEA compliance capabilities. According to Warren, the FBI’s previous approach was to work with non-compliant carriers, even to the point of bringing in government surveillance equipment at the FBI’s expense when a carrier’s own facilities proved inadequate. However, the FBI’s present view is that it no longer has the budget for such remedial efforts, and that only enforcement action will spur CALEA compliance at the level required.
Due to the technically complex nature of CALEA compliance, particularly for Tier 1 and Tier 2 facilities-based service providers (which appear to be the likely targets of any FCC enforcement, if the predictions come to fruition), our firm is considering organizing a webinar to provide additional information about compliance and solutions. If you have concerns about CALEA compliance and/or would be interested in participating in a 30-minute webinar hosted by our firm, please contact Jonathan Marashlian at firstname.lastname@example.org or notify the attorney responsible for your account. If we receive sufficient interest, we will coordinate a webinar in the upcoming weeks.