A mixed court ruling on the issue of whether a 12-year-old wiretapping law can be expanded to include internet phone calls and broadband transmissions has given new hope to school leaders concerned that the law’s expansion could force them to upgrade their telecommunications networks.

Though a federal appeals court ruled 2-1 in favor of the Federal Communications Commission, which says equipment using the new technologies must be able to accommodate police wiretaps under the 1994 Communications Assistance for Law Enforcement Act (CALEA), it left open the possibility that schools and other operators of private networks would not be subject to the law.

School leaders are awaiting further guidance from the FCC, but the court’s ruling means it’s possible that only schools allowing the general public to use their networks–or those that provide internet access to their communities through their telecommunications networks–would have to comply with CALEA.

Education groups, led by the American Council on Education, had appealed an FCC order last fall expanding CALEA to include internet-based communications. The groups argued the rules would impose burdensome new costs on private university networks. According to one estimate by the nonprofit group EDUCAUSE, the rules could cost schools in the neighborhood of $7 billion to upgrade their existing telecommunications networks to allow the wiretaps in certain court-ordered cases.

The U.S. Court of Appeals for the District of Columbia Circuit on June 9 upheld the FCC’s order. But the court reaffirmed provisions within CALEA that specifically exempt private networks, such as those operated by many colleges and universities.

The FCC’s order, “like CALEA, expressly excludes ‘private networks’ from its reach,” the court ruled. “If and when the Commission expands its interpretation, an aggrieved party can bring a petition for review at that time.”

“Although we are disappointed in the decision overall, we are pleased to see the reaffirmation of the view that CALEA does not apply to our private networks,” said EDUCAUSE Vice President Mark Luker in a statement.

In an interview with eSchool News, Luker said his organization and other school groups now await further guidance from the FCC on issues such as what constitutes a “private network”–and what schools and other organizations that do not meet this definition must do to comply with CALEA by the May 2007 deadline.

“We’re in a watch and wait mode now, while we continue to study the ruling,” he said.

In the court’s majority opinion, Judge David Sentelle called the FCC’s reading of CALEA a reasonable interpretation. In dissent, Judge Harry Edwards said the FCC gutted an exemption for information services that he said covered the internet and broadband services.

The FCC “apparently forgot to read the words of the statute,” Edwards wrote.

FCC Chairman Kevin Martin said the decision ensures that law enforcement’s ability to conduct court-ordered electronic surveillance will keep pace with new technology. Democratic Sen. Patrick Leahy of Vermont, the primary sponsor of CALEA, called the court’s decision contrary to congressional intent, saying it stretches a law written for “the telephone system of 1994 to cover the internet of 2006.”

Challengers to the FCC rule focused on a Supreme Court case upholding the FCC’s classification of broadband internet access as an integrated information service under the Telecommunications Act of 1996. Therefore, the education groups said, broadband providers must fall within the exemption for information services in CALEA.

“We believe we had established a strong legal case that CALEA did not apply to providers of facilities-based internet access or voice-over-IP,” the American Council on Education said.

But the appeals court said CALEA and the Telecommunications Act are different laws and that the Supreme Court did not find that broadband access was exclusively an information service.

The two laws reflect different objectives, and the commission made a reasonable policy choice, wrote Sentelle, an appointee of President Reagan.

Judge Janice Rogers Brown, who sided with Sentelle, is an appointee of President George W. Bush. Edwards was appointed by President Carter.

Material from the Associated Press was used in this report.


Federal Communications Commission

American Council on Education