Section 1002(b)(1) of the CALEA provides;
(1) Design of features and systems configurations. This subchapter does not authorize any law enforcement agency or office
(a) to require any specific design of equipment, facilities, services, features, or system configurations to be adopted by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services;
(b) to prohibit the adoption of any equipment, facility, service, or feature by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services.
However, the government has dismissed this narrative, saying “CALEA is entirely
inapplicable to the present dispute [because] Apple is not acting as a telecommunications carrier, and the Court order issued, concerns access to stored data rather than real time interception and call-identifying information.
Nonetheless, If CALEA limits the government’s power “to require any specific design of equipment, facilities, services, features or system configurations” from any manufacturer, then by definition, CALEA limits by statute what a court can order by fiat or writ under the All Writs Act. Therefore, the Court Order the FBI procured from the court cannot necessarily circumvent CALEA by relying only on the All Writs Act.
Notwithstanding, the government’s argument that the CALEA is not applicable in this scenario might be right. In order to invoke the All Writs Act, Apple might argue that it is a communication equipment manufacturer as provided by Section 1002(b)(1) — A, of the CALEA. Apple might argue that it designs and manufactures the telecommunications equipment in the center of the whole controversy, namely the iPhone 5c in the government’s possession. If the Court accepts this narrative, then Apple might have successfully found a legal loophole to exploit as well.
But Apple’s narrative could be thrown out of Court before anyone can say ‘cheese’. Apple’s interpretation and application of the CALEA may in legal reality be fatally flawed.
The narrative rather comfortably ignores the fact that the “manufacturers” that are covered by CALEA are manufacturers of “telecommunications equipment” — according to Subsection (1002(b)(1)). Worst off, the “Telecommunications equipment” covered by the CALEA is defined in §153(52), and that definition is consistent with the usage in 1005(b) (“manufacturer of telecommunications transmission or switching equipment”). The equipment and manufacturers covered by CALEA is only that which is acquired by carriers for use within their network.