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Argued October 12, 2001

Opinion for the Court filed by Senior Circuit Judge Williams.

Electronic eavesdropping has historically proceeded on a basis of cooperation between law enforcement authorities and telephone service providers. In 1970 Congress regularized the relationship somewhat by providing that a court order for electronic surveillance should, at the request of the officer applying for authority, direct the provider to furnish the applicant with the necessary “information, facilities and technical assistance.” Act of July 29, 1970, Pub. L. No. 91-358, tit. II, s 211(b), 84 Stat. 654 (1970), codified at 18 U.S.C. s 2518(4). Because of rapid technological development since then, Congress in 1994 added further structure with the Communications Assistance for Law Enforcement Act (“CALEA” or the “Act”), 47 U.S.C. s 1001 et seq. (1994). (Each of the statute’s sections has a number 899 lower than that of its codified equivalent in Title 47; for simplicity’s sake we use only the latter.) The Act has requirements relating to both the “capability” of telephone service providers to intercept communications and their “capacity” to do so. In United States Telecom Ass’n v. FCC, 227 F.3d 450 (D.C. Cir. 2000), we addressed “capability”; here we deal only with “capacity.”

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