The Federal Communications Commission's (FCC) rules on Voice over IP
(define) wiretapping accessibility is likely to set off another round
of regulatory uncertainty, all in the name of regulatory certainty.
Since the FCC began investigative proceedings on VoIP almost two years ago, the
agency has promised a light regulatory approach but stressed that Internet
telephone services would have certain legal obligations, particularly in the
areas of law enforcement and public safety.
The FCC first took up public safety, ordering Internet telephone companies
provide the same E911 calling services as traditional telephone firms. One
lawsuit is already pending on that order.
In early August, the FCC mandated that
wireline broadband providers and Internet telephone companies have 18 months
to comply with the network wiretap accessibility rules of the Communications
Assistance for Law Enforcement Act (CALEA).
Last weekend, the FCC quietly released the actual rules backing up its
unanimous August vote. The issuance of the rules is likely to set in motion months, if not
years, of even more litigation, a possibility not overlooked by the
commissioners.
"Because litigation is as inevitable as death and taxes, and because some
might not read the statute to permit the extension of CALEA to the broadband
Internet access and VoIP services at issue here, I have stated my concern
that an approach like the one we adopt today is not without legal risk,"
wrote Republican Commissioner Kathleen Abernathy.
Democrat Michael Copps added, "Though I approve today's decision, I continue
to note that it is built on very complicated legal ground. The statute is
undeniably stretched to recognize new service technologies and pushed very
hard to accommodate new and emerging telecommunications platforms.
At issue is the statutory scope of CALEA, a controversial measure
passed by Congress in 1994 and originally meant to apply only to traditional
telephone networks. In fact, CALEA specifically exempts information
services.
But in an effort to deal with the Department of Justice's concerns that VoIP
networks, with no obligation to accommodate legal wiretaps, could become the
phone service of choice for terrorists and other criminals, the FCC
stretched CALEA's definitions to include VoIP.
"Although I believe that new technologies and services should operate free
of economic regulation, I also believe that law enforcement agencies must
have the ability to conduct lawful electronic surveillance over these new
technologies," FCC Chairman Kevin Martin said in a statement.
"We must
strike a balance between fostering competitive broadband deployment with
meeting the needs of the law enforcement community."
Martin said the FCC would issue further rules in the coming months about
VoIP and wiretap obligations, including cost recovery, standards, and
enforcement.
"We firmly expect that interconnected VoIP and facilities-based broadband
Internet providers use the regulatory clarity provided by this order to
begin tackling the technical issues necessary for full compliance," Martin
wrote. "I am committed to ensuring that these providers take all necessary
actions to incorporate surveillance capabilities into their networks in a
timely fashion."
Almost immediately after the new CALEA rules were published over the
weekend, the public advocacy group Center for Democracy and Technology (CDT)
began sharpening its legal briefs.
"CDT and others are likely to challenge the FCC's order in court, arguing
that the decision exceeds the terms of the statute, imposes undue burdens on
innovation and threatens the privacy of Internet users," the CDT wrote in a
brief statement.
Abernathy, as she has done for more than a year, again urged Congressional
action to clarify the matter.
"Because some parties will dispute our conclusions, the application of CALEA
to these new services could be stymied for years," she wrote. "For this
reason, I continue to believe that the Commission, the law enforcement
community, and the public would benefit greatly from additional
Congressional guidance in this area.
Or, as Copps put it, "If CALEA is not judged to apply to these new services,
our efforts here will have done more harm than good."
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