Professor Lillian R. BeVier examines the Communications Assistance for Law Enforcement Act (CALEA) that Congress passed in 1994 as a framework for inquiring into the array of privacy issues raised by technological advances. The law essentially required that telecommunications carriers provide equipment capable of isolating and intercepting the content of electronic communications and of delivering the information to law enforcement. Through the lens of public choice theory, Professor BeVier develops the implications of CALEA as a policy approach to resolving the contradictions posed by privacy protection and law enforcement. After setting forth the content and context of the legislation, the article applies the principles of public choice theory, which views legislation as the outcome of a process in which actual political choices are the product of interest groups pursuing their own interests, to CALEA. These interested parties included law enforcement, the telecommunications industry, and explicit privacy advocates. The legislation's goals are analyzed first from the point of view of a hypothetical Credulous Observer who imagines a world in which policy goals are embodied in clear statutory directives with which affected parties unequivocally comply. Next, they are judged by a Skeptical Analyst. This exercise reveals many flaws in CALEA's conception. They include excessive sacrifices to privacy principles, mistaken conceptions of law enforcement imperfect considerations of the incompatible incentives of industry and government, and wasted resources of both industry and law enforcement. The article reviews CALEA's rocky implementation to date, focusing on conflicts surrounding the development of capacity requirements and capability standards which the Federal Communications Commission may finally be bringing to a resolution. Professor BeVier concludes, though, that this close could augur a new phase of controversy.
