Wednesday, June 19, 2024

FCC Says VoIP Subject to Wiretap Laws

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WASHINGTON — Internet telephony should be subject to traditional wiretap laws, the Federal Communications Commission
(FCC) said today. The preliminary decision will force Voice over IP providers to
comply with the same law enforcement rules as telephone carriers.

In its Notice of Proposed Rulemaking, the FCC voted 5-0 that the Communication Assistance for Law Enforcement Act
(CALEA) applies to facilities-based providers of any type of broadband Internet access service, including wireline,
cable modem, wireless, satellite and powerline.

The decision also covers “managed or mediated” VoIP services. Non-managed IP services not covered by the ruling
include peer-to-peer (P2P) instant messaging and voice software services, such as Jeff Pulver’s Free World Dialup and
Skype which do not interconnect with the public switched telephone network.

“CALEA requirements can and should apply to VoIP and other IP-enabled service providers, even if these services are
‘information services’ for the purposes of the Communication Act,” FCC Chairman Michael Powell said. “Above all, law
enforcement access to IP-enabled communications is essential.”

Earlier this year, the Justice Department, the FBI and the Drug Enforcement Agency asked the FCC to promulgate rules
requiring broadband networks to comply with CALEA. The request came as the FCC embarked on a year-long review of
IP-enabled services.

Powell said the ruling is “expressly limited to the requirements of the CALEA statute and does not indicate a
willingness on my part to regulate VoIP services as telecommunications services.”

If VoIP is ultimately defined as a telecommunications service, it would be subject to the same rules, regulations
and taxes as traditional companies, but the FCC has classified most IP-enabled services as information services.
The five FCC commissioners have consistently said they favor classifying most IP products as information services
to foster a light regulatory approach to the emerging technology.

Wednesday’s ruling was based on an FCC staff proposal that VoIP services fall under CALEA as a “replacement for a
substantial portion of the local telephone exchange service.” While the ruling is not final, the unanimous vote and
the strong show of support for law enforcement by the commissioners make it all but so.

“It is our goal in this proceeding to ensure that law enforcement agencies
have all of the electronic surveillance capabilities that CALEA authorizes to combat crime and support homeland security,”
Powell said.

Commissioner Kathleen Abernathy said it is still an open question whether or not CALEA applies to broadband services.

“While the commission must do its utmost to enable law enforcement agencies to combat crime and promote homeland
security, it would be a mistake to gloss over the possibility that the existing statutory framework does not apply
to broadband Internet access services or other IP-enabled services that are classified as information services,” she said.

Abernathy argued that the “substantial replacement” argument was a “plausible interpretation” of CALEA, yet it was
“fraught with legal risk.”

“While the text and legislative history of CALEA make clear that the march of technological progress should not hamper
law enforcement’s ability to conduct lawful wiretaps, the statute explicitly exempts information services from its
reach,” Abernathy said. “The commission has proposed a means of resolving this tension, but it remains to be seen
whether our attempts to do so would pass judicial muster.”

She added, “At the end of the day, the federal courts — rather than this commission — will be the arbiter of whether
we are authorized to take the actions proposed in this rulemaking, and we must remain mindful of that fact as we
consider final rules.”

Commissioner Michael Copps agreed with Abernathy that it was correct to launch the rulemaking process, but also
questioned the legal interpretation of CALEA underpinning the decision.

“I believe today’s item asks many of the right questions, but I also believe 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 the ruling makes it to final approval, Copps said the FCC would be on shaky ground.

“It would be a shame if our reliance on thin legal arguments results in the CALEA rules being thrown out,” he said.
“Neither law enforcement nor the American people would benefit from that result.”

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