But what of those networks caught in the middle, such as wireless hotspots, hotels and public libraries? As public Internet access points, clearly these kinds of networks are not private. However, the First Report and Order specifies that the FCC doesn't consider these to be facilities-based broadband ISPs and therefore are exempt from CALEA.

If an institution offers no network access to those not associated with it (such as in the college case, where access is given only to faculty, staff and students), it can be argued that it is therefore a private network. If public access is offered through the college library, that does not negate the institution's private status, according to one view.

What about public wireless access at such institutions? Here the issue gets a bit grayer. Referring back to the college example again, ACE has suggested that if the access is incidental to the nature of the network, then it may not negate its private status. The degree of access that exceeds its incidental nature isn't stated.

The second test revolves around the Internet connection itself. The connection can be considered a combination of two entities: the circuit and the customer premise electronics. It's important to reiterate that the link between a private and public network falls under CALEA requirements; the question here is which end is responsible for fulfilling those requirements.

In the circuit case, if the end site owns the circuit to the ISP (such as in the case of perhaps a dark fiber connection to an ISP's point of presence), then the end site may be subject to CALEA. If the end site leases the line, it may be subject still, but if the ISP owns the circuit outright, the ISP must provide the monitoring, not the end site.