Critics Slam Net Wiretapping Rule 

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By Ryan Singel  |   Also by this reporter

02:00 AM Aug. 11, 2005 PT

An FCC ruling that internet telephony services must provide the same built-in wiretapping capabilities as conventional phone companies has civil libertarians feeling burned.

"I think a legal challenge is highly likely at this point," said John Morris, an attorney with the Center for Democracy and Technology.

The FCC announced (.pdf) last week that some voice over internet protocol, or VOIP, companies are substantial replacements for old-fashioned telephone service, and must equip their systems to respond to federal wiretap orders.

The services will have 18 months to comply with the order, which also applies to cable-modem companies and other broadband providers.

While the full text of the ruling has yet to be released, critics say the announcement marks a significant expansion of the Communications Assistance for Law Enforcement Act, or CALEA, which drew a line between "information services" and phone networks.

"The essential compromise of CALEA was hands off the internet, and that promise has been broken," said Electronic Frontier Foundation attorney Kurt Opsahl.

The FBI already has the necessary capabilities to conduct surveillance of internet activities, and the FCC's order runs contrary to Congress' intent when it passed the law, said Opsahl.

Enacted in 1994, CALEA required land line and cellular providers to build their networks to accommodate a variety of wiretaps, and established exacting technical standards regarding what information about a phone call or voice message had to be provided to law enforcement when subpoenaed.

After a protracted campaign by online civil liberties groups, Congress exempted "information services" -- like electronic publishing and online messaging -- from the rules, partly for fear the regulations could stifle innovation.

The Justice Department's request last year to expand CALEA to some internet services stirred vigorous opposition from online civil liberties groups, VOIP providers and technology companies like Sun Microsystems.

"Even if you make (the) argument that underlying broadband service is a non-information service, no one would dispute that VOIP or e-mail or IM are applications, and they are excluded from CALEA," said Morris.

The ruling only covers VOIP services like Vonage that let customers dial from their computers to the traditional phone network.

Some observers, such as Lauren Weinstein, co-founder of People for Internet Responsibility, see logic in the FCC's discrimination between those systems and computer-to-computer services, like the voice chat available through instant-messaging software or Skype's free peer-to-peer service.

"The reasoning from the FCC is that if law enforcement needs to tap a phone, they don't want to be worried if it is a conventional phone or an IP-based phone calling a traditional phone," Weinstein said.

But, he added, the real question is whether the final order requires companies like Skype to build in wiretapping capabilities only for the calls that reach the publicly switched telephone network, or for all calls placed by users.

Kevin Werbach, assistant professor of legal studies and business ethics at the University of Pennsylvania's Wharton School, thinks the distinction between the two isn't intellectually clear.

"The FCC is starting with a laudable impulse," said Werbach. "I don't doubt that law enforcement needs to do its job in a world that's changing. But the problem is that going down the road they are going forces them to distinguish between bits flowing over the network and that's just ultimately impossible."

Werbach believes Friday's order is unnecessary, because VOIP companies have been working to cooperate with law enforcement voluntarily.

Justice Department spokesman Bryan Sierra praised the decision.

"We are pleased that the commission has taken this important first step in affirming the application of CALEA to these modern forms of communications technology, and we look forward to the commission's prompt action on the remaining issues raised in our petition," Sierra said. "As communications technologies develop, we must ensure that such progress does not come at the expense of our nation's safety and security."

The issue is likely not to be settled even when the FCC releases the full text of the order. Congress could move to overrule the commission, and the EFF's Opsahl expects VOIP providers will challenge the potentially expensive requirements in court.

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