VoIP May Go Under Wiretap Laws

WASHINGTON -- The Federal Communications Commission is taking its first steps toward requiring voice over Internet Protocol (VoIP) providers to comply with law enforcement wiretapping requests.

Whether VoIP must give the same access to law enforcement as traditional telecomm services do has been unclear, and is one of the stumbling blocks to allowing VoIP to remain unregulated. Security agencies have especially expressed concern that VoIP could be a way for terrorists to communicate undetected.

The FCC voted Wednesday to begin examining the policies needed to bring VoIP providers under the 1994 Communications Assistance for Law Enforcement Act (CALEA), which allows U.S. law enforcement agencies to listen in on telephone conversations. The commission's decision includes a tentative finding that communications services offered over broadband pipes, including VoIP, are subject to CALEA requirements to comply with law enforcement wiretap requests.

Selective Enforcement

The tentative rules also cover managed communications services offered over broadband connections, including managed instant message or video services, says Ed Thomas, chief of the FCC Office of Engineering and Technology. Non-managed peer-to-peer services, including consumer-grade instant messaging services and noncommercial VoIP services, are probably not subject to CALEA regulations under the proposed order, FCC staffers say.

All five commissioners supported the "notice of proposed rulemaking" presented to them Wednesday. In the notice, the FCC tentatively concludes that CALEA applies to facilities-based providers of any type of broadband Internet access service--including wireline, cable modem, satellite, wireless, and powerline--and to managed VoIP services. The commission says these services fall under CALEA as "a replacement for a substantial portion of the local telephone exchange service."

"More and more people are taking advantage of these new and exciting competitive voice offerings, and we are starting to see substantial consumer and economic benefits emerge," said FCC Chairman Michael Powell. "The development and success of the Internet has been a result, in part, of our desire to maintain its minimally regulated status. Above all, law enforcement access to IP-enabled communications is essential."

The FCC's action came at the request of three federal law enforcement agencies: the Department of Justice, FBI, and Drug Enforcement Administration.

Objections Remain

While Commissioner Kathleen Abernathy noted "all of us are in complete support" of law enforcement requests, some senators and privacy groups are questioning applying CALEA to VoIP. Senator John Sununu, sponsor of the VoIP Regulatory Freedom Act of 2004, is challenging application of CALEA rules to apply to VoIP services, but not most instant message, e-mail, or P-to-P services.

"Do you think the terrorists are not smart enough to use e-mail?" Sununu, a New Hampshire Republican, said during a June hearing.

Earlier this year, privacy rights Web site Privacilla.org argued in a position paper that CALEA is "a dramatic departure from the fundamental practice in our free society of designing products, technologies and infrastructures first and foremost with consumers' interests in mind. Altering goods and services for the benefit of government investigators inverts American values and puts the interests of government and law enforcement ahead of the overwhelmingly honest and law-abiding people that make up our civil society."

More Research Urged

The commission's two Democrats, Michael Copps and Jonathan Adelstein, say they support the commission's decision to examine CALEA regulations. However, both expressed concern over the legal arguments that FCC staff used to tentatively conclude VoIP is subject to CALEA.

The commission shouldn't try to "slice and dice" managed and non-managed services, Copps said, questioning whether the court would agree with the FCC's definition of VoIP as a substantial replacement for local phone service. Copps urged commission staff to come up with better reasons to bring VoIP under CALEA rules.

"I believe today's item asks many of the right questions, but I also believe that too often it gets the reasoning wrong," Copps said. "It is flush with tentative conclusions that stretch the statutory fabric to the point of tear. If these proposals become the rules and reasons we have to defend in court, we may find ourselves making a stand on very shaky ground."