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 SEPARATE  STATEMENT  OF  COMMISSIONER  KATHLEEN  Q.  ABERNATHY 
 Re:  Communications  Assistance  for  Law  Enforcement  Act  and  Broadband  Access  and  Services,  RM-  10865,  ET  Docket  No.  04-  295,  Notice  of  Proposed  Rulemaking 
 and  Declaratory  Ruling 
 As  set  forth  in  the  opening  provision  of  the  Communications  Act,  the  Commission  has  no  higher  priority  than  promoting  public  safety  and  the  national  defense. 
 I  therefore  support  initiating  this  rulemaking  regarding  the  Commission’s  implementation  of  the  Communications  Assistance  for  Law  Enforcement  Act  (CALEA).  The  Department 
 of  Justice  and  other  law  enforcement  agencies  have  raised  a  number  of  significant  questions  regarding  the  applicability  of  CALEA  to  IP-  enabled  services,  compliance 
 timelines,  enforcement,  and  cost  recovery,  among  other  things.  The  Commission  must  build  a  thorough  record  to  ensure  that,  to  the  extent  permitted  by  statute,  law  enforcement 
 agencies  have  the  tools  they  need  to  conduct  surveillance  in  a  changing  technological  environment. 


 While  the  Commission  must  do  its  utmost  to  enable  law  enforcement  agencies  to  combat  crime  and  promote  homeland  security,  it  would  be  a  mistake  to  gloss  over  the 
 possibility  that  the  existing  statutory  framework  does  not  apply  to  broadband  Internet  access  services  or  other  IP-  enabled  services  that  are  classified  as  information  services. 
 The  NPRM  we  are  issuing  proposes  a  plausible  interpretation  of  the  “substantial  replacement”  provision  in  CALEA  that  would  extend  the  assistance-  capability 
 requirements  to  broadband  access  services  and  IP  telephony.  But  such  an  extension  clearly  would  be  fraught  with  legal  risk.  The  Commission  thus  would  benefit  greatly 
 from  further  congressional  guidance  in  this  area.  While  the  text  and  legislative  history  of  CALEA  make  clear  that  the  march  of  technological  progress  should  not  hamper  law 
 enforcement’s  ability  to  conduct  lawful  wiretaps,  the  statute  also  explicitly  exempts  information  services  from  its  reach.  The  Commission  has  proposed  a  means  of  resolving 
 this  tension,  but  it  remains  to  be  seen  whether  our  attempts  to  do  so  would  pass  judicial  muster. 


 In  addition  to  the  question  whether  CALEA  applies  to  IP-  enabled  services,  the  issues  of  enforcement  and  cost  recovery  also  warrant  congressional  attention.  Section 
 108  of  CALEA  establishes  an  enforcement  mechanism  that  requires  the  Attorney  General  to  bring  a  civil  action  in  the  appropriate  federal  district  court.  While  law  enforcement 
 agencies  have  noted  the  shortcomings  of  this  regime,  it  is  unclear  whether  Congress  intended  the  Commission  to  assume  a  central  role  over  enforcement  of  the  statute’s 
 requirements.  Moreover,  upgrading  networks  to  comply  with  a  new  packet-  mode  standard  for  surveillance  will  be  a  costly  endeavor,  and  there  are  many  unanswered 
 questions  about  how  these  costs  should  be  recovered. 
 In  sum,  I  support  the  Commission’s  initiation  of  this  rulemaking  in  response  to  the  petition  filed  by  the  Department  of  Justice  and  other  law  enforcement  agencies.  The 
 issues  raised  are  critical,  and  the  Commission  must  provide  clarity  and  direction  to  the 
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