The ‘SUBJECT DEVICE’, an iphone 5c to which the FBI seeks access is not a “telecommunications equipment” as defined by the CALEA and it is not used by a “carrier” for transmission or switching. Rather it is “CPE” (§153(16)) and CALEA does not apply at all to edge devices owned by the user, or manufacturers of those
devices which Apple currently falls under.
On the Contrary, even if for some legal reasons, Apple’s narrative is considered, it may be (with a “may”) self implicative as the CALEA requires that all telecommunications providers in the US must install new hardware or software, as well as modify old equipment, so that it doesn’t interfere with the ability of a law enforcement agency to perform real-time* surveillance of any telephone or Internet traffic.
Apple might also argue that it is wrong for the FBI to ask it to decrypt the data on the iPhone 5c, citing 47 U.S. Code § 1002 Which reads;
A telecommunications carrier shall not be responsible for decrypting, or ensuring the government’s ability to decrypt, any communication encrypted by a subscriber or customer, unless the encryption was provided by the carrier and the carrier possesses the information necessary to decrypt the communication.
The data in the subject device was encrypted by the the terrorist and owner of the iPhone 5c being the subscriber— and Apple does not necessarily posses the “encryption key” being the information necessary to decrypt the device being the iPhone — Apple can thus claim wrong doing by the FBI.
However, considering the defintions in 47 U.S. Code § 1001;
(8) The term “telecommunications carrier”—
(A) means a person or entity engaged in the transmission or switching of wire or
electronic communications as a common carrier for hire; and
(i) a person or entity engaged in providing commercial mobile service (as defined in section 332(d) of this title); or
(ii) a person or entity engaged in providing wire or electronic communication switching or transmission service to the extent that the Commission finds that such service is a replacement for a substantial portion of the local telephone exchange service and that it is in the public interest to deem such a person or entity to be a telecommunications carrier for purposes of this subchapter
The definition of a communication carrier is not consistent in Apple’s context and thus, it is not legally applicable. However, (8)B(ii) provides for “a person or entity engaged in providing wire or electronic communication switching or transmission service “.
Apple might argue that its Facetime and iMessage platform are “electronic communication transmission services” provided by Apple on all iPhones which can substantially replace telephone exchanges. However, the Court will have to be convinced that the platform “can substantially replace local telephone exchange services”.