Not long ago, Brett Glass posted a message to Farber's list saying:

"The FCC Report and Order on CALEA (see http://cryptome.org/fcc070506.htm) appears to drag all broadband providers - including small, rural ISPs such as myself -- into a messy regulatory regime, merely because one of my customers might choose to use a VoIP service. Worse still, the requirements are vague and potentially extremely onerous."

Someone sent me an email asking "Is he reading the Order right?"  So I went off to look.

If you go to the August 2005 Order that asserted that CALEA covers "facilities-based" broadband internet access providers, you'll find that an entity can be covered if it:

1.  is engaged in providing wire or electronic communication switching service OR

2.  is engaged in providing wire or electronic communication transmission service AND

3. the Commission finds that such service is a replacement for a substantial portion of the local telephone exchange service AND

4.  the Commission finds that it is in the public interest to deem such a person or entity to be a telecommunications carrier for purposes of CALEA.

That August 2005 Order states that the FCC had already found that "switching" is the same as (or includes) providing "routers, softswitches, and other equipment that may provide addressing and intelligence functions for packet-based communications to manage and direct the communications along to their intended destinations."  So, in other words, if you're providing routing services you fulfill condition #1.  You're "facilities-based." 

The Commission found that broadband access services fulfill condition #3 because people used to use local telephone service to access the internet, and that such services fulfill condition #4 because deeming these entities covered by CALEA would "promote competition, encourage the development of new technologies, and protect public safety and national security."

So -- according to the Commission (whose interpretation has been deferred to by the D.C. Circuit), any entity providing access to the internet through a router (unless that entity is exempt for some other reason, for example because it is a private network operator) will need to assist law enforcement to tap its communications.  At its own cost. 

That means that every ISP falls under CALEA, because it operates routers.

So, yes, Brett Glass is arguably correct.

He continues:

"There is no rational reason to subject an ISP such as myself to the statute's expensive requirements. Yet, the FCC is trying to do so.  What's more, to add insult to injury, it has stated that it does not intend to allow ISPs to be compensated for the expense of making their networks tappable. In short, the FCC seems eager to impose requirements upon us which would do nothing to enhance homeland security but could well drive us and other independent ISPs out of business. This would ensure a cable/telco duopoly and hamper the expansion of broadband service to rural areas like ours."

Yup.