The public relations problem for VoIP providers is to not appear unpatriotic or unwilling to comply with the spirit of the law while at the same time trying to block costly, regulatory intrusions into the nascent industry.
The providers have publicly stated they will cooperate with law enforcement on any wiretap request.
"I encourage you [the FCC] to give these voluntary approaches time to work. What you shouldn't do is just dump legacy regulation on what is a fundamentally different technology," Jeff Pulver, founder of VoIP service Free World Dialup, told the FCC in December.
More than a year ago, Pulver asked the FCC to rule that Free World Dialup does not meet the definitional requirements of a telecom carrier.
The FCC is expected to consider Pulver's petition Thursday. According to a news report, the FCC put the matter on its agenda only after the FBI agreed to drop its wiretap concerns about Free World Dialup in return for the agency agreeing to make future wiretap decisions about VoIP retroactive.
For his part, Pulver said "cooperation is already underway" to create wiretap practices and standards, while another pioneer VoIP provider, Jeffrey Citron, CEO of Vonage, said there is 'no immediate technical obstacle' to providing wiretap cooperation for law enforcement officials.
Citron added, however, "The vast majority of voice-enabled Internet communications will forever remain outside the scope of CALEA."
The FBI says that's not good enough.
In a joint FBI-Department of Justice (DOJ) filing with the FCC last year, the agencies wrote they "are concerned that if certain broadband telecommunications carriers fail to comply with CALEA due to a misunderstanding of their regulatory status, criminals may exploit the opportunity to evade lawful electronic surveillance."
Just last month, the DOJ wrote in another filing, "CALEA is vital to national security, law enforcement and public safety. Such a critically important statute should not be left to mere voluntary efforts. Furthermore, under a voluntary CALEA compliance scheme, law enforcement would have no enforcement mechanism against those VoIP providers who do not cooperate."
Tien, the EFF attorney, said "it is unclear legally if [VoIP] is subject to CALEA. The scope of CALEA was limited to switched networks. It's really a regulatory issue. Do you classify it as a carrier or as a service provider?"
The answer is worth millions to both the FBI and VoIP providers.
"CALEA is very costly to implement. It costs millions to go out to every switch in the country and modify it," Tien said.
If the FCC rules VoIP is a carrier, many providers will have to retrofit their systems. If VoIP is ruled a communications service, the FBI will be forced to use costly surveillance methods such as its Carnivore packet sniffer to perform Internet snooping.
For the FBI, even with Carnivore, Internet surveillance is problematic without a wiretap friendly environment.
"Unless carriers are required to ensure such access, law enforcement surveillance capabilities will suffer a serious and dangerous gap," the DOJ wrote in its FCC filing last year.
The FCC has clearly signaled it hopes to impose a light regulatory touch on VoIP, but issues such as CALEA shows the task may be more difficult than originally anticipated.