TCS Daily

Wiretapping and the Politics of Fear

By Kevin Werbach - August 19, 2004 12:00 AM

The FCC just voted unanimously in favor of new obligations on voice over IP (VoIP) and broadband networks. Why the lack of outcry from opponents of regulation? The rules mandate backdoors for law enforcement to wiretap VoIP communications. Of all the policy issues VoIP raises, wiretapping is the least amenable to a reasoned and informed public debate. Yet that's exactly what we need.

On the one hand, it's hard to argue that law enforcement agencies shouldn't have the tools to do their jobs in the dangerous post-9/11 world. On the other hand, regulation is regulation, especially when it casts its shadow over nascent technologies.

The FCC isn't the villain here. Faced with an impossible situation, it is doing its best to draw a responsible line. Still, it's hard to feel comfortable with the Commission's latest pronouncement.

The Communications Assistance to Law Enforcement Act (CALEA) mandates that telecommunications carriers make their networks amenable to government wiretapping as they deploy new technologies. It forces carriers to modify their infrastructure, potentially at significant cost, to ensure that law enforcement can continue to obtain information such as the originating and terminating party of a call.

Passed back in 1994, CALEA says nothing about VoIP. It was focused on digital transmission technologies in the public switched telephone network, with Internet service providers and other information services expressly excluded. With VoIP deployment growing, though, it was a matter of time before law enforcement agencies sought to broaden their reach. The FBI and Department of Justice furiously lobbied to prevent the FCC from adopting its relatively deregulatory Free World Dialup and IP-Enabled Services decisions in February. When the Commission went ahead, they filed an emergency petition seeking to extend CALEA to VoIP.

The petition put FCC Chairman Michael Powell in an awkward position. As a George W. Bush appointee, former military officer, son of a Joint Chiefs of Staff Chairman, and the FCC's designated national security officer, in the midst of an election year where homeland security is a campaign issue, Michael Powell is not exactly in a position to thumb his nose at law enforcement interests. Yet Powell has made strong statements in favor of keeping VoIP services outside the scope of FCC regulation. He has led the charge to classify broadband access platforms as lightly regulated information services, which CALEA does not cover. He could see the dangers of an FCC ruling that could block deployment of everything from instant messaging services to online gaming networks, all of which would fall within a broad reading of CALEA. So Powell's FCC tried to craft with a compromise.

The Commission's proposed action would significantly expand the scope of CALEA obligations. For the first time, facilities-based broadband Internet access providers are required to comply with CALEA. So are "managed or mediated" VoIP services, like Vonage and AT&T's CallVantage. The statutory hook is that these are considered to be "a replacement for a substantial portion of the local exchange telephone service."

The FCC did its best to draw the line against unbounded regulatory expansion. "Unmanaged" or "disintermediated" VoIP offerings, which include Free World Dialup and instant messaging, are explicitly excluded. The Commission declined to enumerate what other new services might fall within the CALEA requirements, suggesting that the current list is all-inclusive.

At every point in its analysis, though, the FCC finds itself on shaky ground. Just what constitutes a "managed or mediated" VoIP offering, and what is to stop law enforcement from stretching those terms? How "substantial" a replacement does something have to be for telephone service to fall within CALEA's clutches? And isn't "substantial replacement" essentially the same as the "quacks like a duck" argument that proponents of pervasive VoIP regulation have long championed? How can something be "telecommunications" for some regulatory obligations and an unregulated "information service" for others? And what happens to global services like Skype that are predominantly peer-to-peer software but offer limited interconnection with the public switched telephone network?

Depending on how the courts, state regulators, and Congress react, we may well find that the FCC has made a bad situation worse. On the other hand, I'm at a loss to say how the Commission could have done much better. The political reality was that it had to issue a proposal granting law enforcement some access to VoIP communications. And the decade-old law didn't give it much leeway in crafting a decision that squares with today's technological reality.

The telecommunications industry has never denied its responsibility to cooperate with legitimate law enforcement efforts. At some point, though, the incremental costs of network modifications, both directly and in blocked innovation, will exceed the benefits in catching criminals. And let us not forget that wiretapping, though a legitimate tool, bumps up against Constitutional safeguards for individual liberty.

The Justice Department, VoIP providers, and public interest representatives need to do more to define the technical, law enforcement, and economic issues at stake. What are the real-world cases in which investigations have suffered because of technical difficulties with wiretapping? What exactly are the future scenarios law enforcement agencies are worried about?

Scare tactics like the unsupported concern that VoIP would become "a haven for criminals, terrorists, and spies," as one Justice Department official testified in June, aren't productive. The more information on the table, the easier it will be for policy-makers to make the appropriate judgments. And ultimately, Congress needs to re-examine CALEA, using data about the costs and benefits for compliance from the decade of experience in the conventional telephone world. This is one hot potato that shouldn't stay in the FCC's lap.


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