CUA- Counsel Online

Front Page
Hot Legal Topics
New Legislation
Archives

Text-Only Version
Contact Us
Counsel Home Page
CUA Home Page

The latest on CALEA

In a news release dated August 5th, 2005 the FCC determined that providers of certain broadband and interconnected VOIP services must be prepared to accommodate law enforcement wiretaps. Steve Worona of EDUCAUSE addresses what this might mean for the higher education community in the following short recap of the law.

For decades, law enforcement could execute a wiretap order by connecting to actual wires down at the local phone company. But when phone systems went high-tech in the 1980's and 1990's, this approach stopped working. Congress responded in 1994 with CALEA, the Communications Assistance for Law Enforcement Act, requiring phone companies to engineer their networks to facilitate authorized interceptions. The 1994 Act limited these requirements to public phone systems, explicitly excluding private networks and Internet communications.

In response to a petition from the Department of Justice, the Drug Enforcement Administration, and the FBI, the FCC (which administers CALEA) has announced that CALEA will be reinterpreted to bring both private networks and Internet communications under its umbrella. While details remain unclear, higher education would likely be impacted in two ways:

(1) Network hardware and software would need to become "CALEA compliant", providing a standardized connection for execution of wiretap orders.

(2) Network access would require authentication to allow an individual's communication stream to be isolated.

The first of these carries potentially significant financial implications; the second entails major policy implications.

Case Law on CAN-SPAM Act

White Buffalo Ventures, LLC v. University of Texas at Austin, 04-50362, 5th Circuit, August 2, 2005

In a case of "very, very first impression," the 5th Circuit Court of Appeals held that the CAN-SPAM Act does not prevent UT's anti-spam policy, and second, the policy is permissible under the First Amendment commercial speech jurisprudence. The University of Texas, like most schools, provides internet access and email addresses to faculty staff and students. The UT system has 178 email servers.

The Plaintiff, White Buffalo Ventures, LLC, operates online dating services. After obtaining email for UT students pursuant to an open records request, White Buffalo sent unsolicited emails to thousands of UT email account holders. After White Buffalo ignored UT's cease and desist letter, UT blocked all email coming from the White Buffalo IP address. White Buffalo went to court to prevent UT from taking this action, arguing that the federal ANTI-SPAM legislation preempted UT's policy of blocking many types of incoming spam, irrespective of commerical content or source authenticity. The district court granted summary judgment for the university, and the Court of Appeals affirmed. The district court noted that 15 USC 7707(c) permits Internet service providers to employ protection measures, and also that the Act does not prevent a state entity like UT from using technological devices such as spam filters to save server space and safeguard the time and resources of employees, students and faculty. The Court of Appeals, in upholding the lower court decision, noted that there was a strong presumption against preemption of state law, or in other words, a "tie goes to the state" jurdisprudence.

The Court of Appeals also addressed the First Amendment free speech question, using the four part commerical speech test, and found that the regulation in place by UT did not violate the First Amendment. A substantial interest in regulating spam was found, and the state action directly promoted that interest. The UT policy was found to be no more than necessary to achieve at least one of the two state interests, that of promoting user efficiency. The court found that in terms of promoting server efficiency, the policy might have been more extensive than necessary, but since one of the asserted governmental interests was substantial and not more extensively implemented than necessary, the policy would be upheld as constitutionally permissible. The court did not address what type of First Amendment forum a public university email network would constitute.

Last Revised 18-Sep-06 09:44 AM.