VoIP Wiretap Order Heads to Court

by Roy Mark

Pulver, Sun join public interest groups to challenge the FCC's wiretapping rule.

Civil liberties, privacy and high-tech industry advocates went to court today to block the Federal Communications Commission's (FCC) pending rule to impose wiretapping standards on Voice over IP systems.

Groups, including Pulver.com, Sun, Electronic Frontier Foundation (EFF), the Center for Democracy and Technology (CDT), Competitive Telecommunications Association (CompTel) and the Electronic Privacy Information Center (EPIC) claim the FCC ruling extends the wiretapping rules to technologies it was never intended to cover.

"We're deeply concerned that extending a law written specifically for the public telephone network to these emerging technologies will stifle the sort of innovation that has been the hallmark of the Internet revolution," John Morris, staff counsel for the CDT, said at a Tuesday teleconference.

Under the current FCC plan, wireline broadband providers and Internet telephone companies have 18 months to comply with the network wiretap accessibility rules of the Communications Assistance for Law Enforcement Act (CALEA).

The law requires telephone companies to build a standard wiretap backdoor into their systems.

As written by Congress in 1994, CALEA applies only to traditional telephone networks and exempts information services. The FCC, however, extended CALEA to VoIP providers after the Department of Justice (DoJ) expressed concern that terrorists and other criminals could use VoIP networks to avoid detection.

Although Internet service providers and Internet application providers were already obligated to comply with interception orders under the U.S. wiretap laws, they have not until now been burdened with specific design mandates.

"It's always troubling when the government seeks to limit how technologists design new products," Morris said. "In this case it's particularly problematic, since the government has offered no evidence that it has any trouble intercepting Internet communications today."

In a separate statement, Jeff Pulver of Free World Dialup, added, "The debate over the scope of CALEA was fought in Congress during the debate and passage of the CALEA statute, and it was determined that CALEA would not extend to the Internet."

"Frankly, it is inappropriate for a regulatory body to reinterpret the clear intent of Congress."

Pulver said the FCC's order extending CALEA to the Internet was "essentially collateral damage" from another FCC mandate reclassifying the Bells' DSL broadband, including its VoIP offering, as an information service, putting it on equal regulatory footing with cable modems.

That ruling, in turn, put DSL outside the scope of CALEA.

"In order to keep these services subject to CALEA, the FCC had to kluge together a new understanding of the CALEA statute and decades of telecom regulation, in order to impose regulation on services that provide voice communications, regardless of whether the services are telecom services or not," Pulver said.

According to Pulver, the FCC's interpretation of CALEA will have the unintended effect of imposing "unnecessary and debilitating costs" on the emerging Internet-based communications industry without any real benefit to national security.

"Why would government draw the line at voice bits? Is voice somehow so much more susceptible to use by evildoers that it should be subject to more extreme intercept laws than e-mail, text, video or other data transmissions?" Pulver asked. "At the end of the day, this order opens the door to absolute government intrusion upon and regulation of the Internet."

The FCC did not overlook the possibility of litigation when it passed its controversial CALEA order in August.

Responding to that decision, Republican Commissioner Kathleen Abernathy wrote, "Because litigation is as inevitable as death and taxes, and because some might not read the statute to permit the extension of CALEA to the broadband Internet access and VoIP services at issue here, I have stated my concern that an approach like the one we adopt today is not without legal risk."

Democrat Michael Copps added, "Though I approve today's decision, I continue to note that it is built on very complicated legal ground. The statute is undeniably stretched to recognize new service technologies and pushed very hard to accommodate new and emerging telecommunications platforms."

This article was originally published on Tuesday Oct 25th 2005