FCC takes step toward VOIP wiretapping regulations

The U.S. Federal Communications Commission (FCC) on Wednesday took the first step toward requiring voice over Internet Protocol (VOIP) providers to comply with law enforcement wiretapping requests.

The FCC voted to begin an examination of the policies needed to ensure that VOIP providers comply with 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 on Wednesday included a tentative finding that communications services offered over broadband pipes, including VOIP, are subject to CALEA requirements to comply with law enforcement wiretap requests.

The tentative rules would also cover managed communications services offered over broadband connections, including managed instant message or video services, said Ed Thomas, chief of the FCC Office of Engineering and Technology. Nonmanaged peer-to-peer (P-to-P) services, including consumer-grade instant messaging services and noncommercial VOIP services, would likely not be subject to CALEA regulations under the proposed order, FCC staff said.

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 proposed that 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 (DOJ) , Federal Bureau of Investigation, and Drug Enforcement Administration.

While Commissioner Kathleen Abernathy noted that "all of us are in complete support" of law enforcement requests, some U.S. senators and privacy groups have questioned the need for CALEA requirements for VOIP. In a June hearing, Senator John Sununu, sponsor of the VOIP Regulatory Freedom Act of 2004, questioned why the DOJ wanted 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 the hearing.

Earlier this year, Privacilla.org, a privacy rights Web site, 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."

The commission's two Democrats, Michael Copps and Jonathan Adelstein, said they support the commission decision to move forward with an examination of CALEA regulations, but both expressed concerns over the legal arguments that commission staff used to tentatively conclude VOIP was subject to CALEA.

The commission shouldn't try to "slice and dice" managed and nonmanaged services, Copps said, and he questioned whether the commission definition of VOIP as a substantial replacement for local phone service, as the tentative order concluded, would hold up in court. Copps urged commission staff to come up with better reasons for requiring VOIP service to comply with CALEA.

"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."