The Communications Assistance for Law Enforcement Act (CALEA) of 1994

Congress passed the Communications Assistance for Law Enforcement Act (CALEA) in 1994, which forced telephone companies to redesign their network architectures to make it easier for law enforcement to wiretap digital telephone calls. In 2005, CALEA was expanded by the Federal Communications Commission (FCC) to include Internet service providers (ISPs) and VoIP services like Skype. A few years later, the Federal Bureau of Investigation (FBI) began pushing legislation trying to expand CALEA to all online communications software. After an uproar, the proposal died quietly, but resurfaced in 2010, and again in 2013. In May of that year, the New York Times reported the White House as "on the verge" of backing the rumored FBI proposal. The newest proposal would not only expand CALEA to all online communications services, but would allow the FBI to fine noncompliant companies. Now, in 2014 the issue as at the forefront again, with the FBI calling for a national “discussion” about the use of encryption.  We expect the issue to continue to be front-page news for the foreseeable future.

2004: Expansion By the Federal Communications Commission

For ten years CALEA only applied to telephone companies, but in 2004 the Department of Justice (DOJ), FBI, and the Drug Enforcement Administration (DEA) filed a joint petition with the Federal Communications Commission (FCC) asking it to expand CALEA to cover communications that travel over the Internet. Specifically, the petition requested CALEA apply to broadband providers, to VoIP communications, and to other kinds of instant messaging programs.

EFF objected to a number of the requests in the joint petition in conjunction with numerous other organizations. Despite the objections, the Federal Communications Commission (FCC) released a Notice of Proposed Rulemaking (NPRM) expanding CALEA to broadband Internet access providers and managed VoIP systems.

After a yearlong rulemaking process, the FCC announced a Final Rule confirming the expansions in the NPRM. Congress explicitly exempted data traveling over the Internet in CALEA, but the FCC ruled that CALEA could be expanded to Internet broadband providers, like ISPs, and certain VoIP providers. As a result, EFF and a coalition of public interest, industry, and academic groups challenged the FCC's unjustified expansion in the DC circuit court. Despite Judge Harry Edwards declaring the FCC's argument "gobbedldygook," and "utter nonsense," the court approved the FCC's expansion.

2010: Give the Government an Inch of CALEA and It Will Take a Mile of Your Privacy

In 2010, the FBI began its "Going Dark" campaign. Despite the fact that we are in a Golden Age of Surveillance, the campaign is a charm offensive to convince politicians that FBI is unable to listen in on Internet users' digital communications after obtaining a court order because of recent advances in technology. The proposed legislation would have forced all communications services to build secret backdoors for the government to spy on users and to decrypt any encrypted messages exchanged via the service. The proposal's problems were many, and it quietly died after a tremendous amount of uproar.

Shortly after the 2010 proposal, EFF filed a Freedom of Information Act (FOIA) lawsuit against three agencies of the Department of Justice (DOJ) demanding records that would justify the Administration’s need to expand federal surveillance laws like CALEA. Within a year, EFF received only a few hundred documents out of the thousands the DOJ said it possessed. It's been three years, and the DOJ has continued to stall the release of the entire records.

2013 and Onwards

In the beginning of 2013, it was reported the FBI was again pushing for a wholesale expansion of CALEA to all Internet communications services. Similar to 2010, the FBI wants to force all companies with messaging services to engineer their products with a secret government backdoor and to decrypt all encrypted messages. The proposal also adds another component: fining companies for not cooperating. In May 2013, the New York Times revealed that the White House was "on the verge" of backing the proposal. While the bill was not introduced in 2013, updating CALEA was a stated priority for FBI Director James Comey in 2014 and we expect it to be so for 2015 as well.

CALEA Must Not Be Expanded

The 2013 proposal is a tremendous blow to security and privacy. The FBI already has an unprecedented level of access to our communications and personal data; access which it regularly uses. And we’ve seen government mandated backdoors—so-called CALEA interfaces—being used by criminals as the point-and-click wiretapping that they are. In an age where the government claims to want to beef up Internet security, any backdoors into our communications makes our infrastructure weaker.

Any government mandate that communications software or services include backdoors will take away not only developers' right to innovate, but also average users' right to protect their privacy and speak anonymously through the technologies of their choice. In the United States, those rights are unambiguously protected by the First Amendment. We have the right to engage in private conversations online, just as we have the right to private conversations in person, and those rights must be protected.