In a series of letters made public Tuesday, the Justice Department said it is "currently drafting a request" that would invoke the 1994 Communications Assistance for Law Enforcement Act (CALEA). That law requires telecommunications carriers to rewire their networks to government specifications to provide police with guaranteed access for wiretaps.
It is debatable whether CALEA's decade-old definition of "telecommunications carrier," crafted long before the Internet era, applies to Voice over Internet Protocol (VoIP) providers. If the FCC rules that CALEA's definitions are not a close enough fit for the fast-growing and somewhat amorphous VoIP sector, then the Bush administration could ask Congress to rewrite the law.
Until earlier this month, the FBI had tried to block the FCC from considering VoIP's regulatory structure until the wiretap issue was resolved. But last week, the two agencies said they had reached an agreement allowing a vote on VoIP regulations to take place on Thursday.
"While it would obviously be our preference that the FCC decide these issues prior to considering other broadband proceedings, we recognise that this is not practical, and have no desire to prevent the FCC from doing its work," Deputy Assistant Attorney General John Malcolm wrote in a letter to the FCC. "We expect that the FCC will commence rule-making proceedings on CALEA-related matters in response to our petition in the near future."
Malcolm added that based on the Justice Department's conversations with FCC attorneys, he expects them to recommend that the commission "tentatively concludes that CALEA applies to broadband Internet access services, including VoIP, whether provided over DSL or cable modem."
Civil liberties groups such as the Electronic Privacy Information Center and the American Civil Liberties Union contend that CALEA's definition of telecommunications carrier clearly does not apply to most VoIP providers.
In general, VoIP providers have pledged to work with police, and some, including Level 3 Communications, do not oppose the regulations the FBI is seeking. Others, such as a coalition of 12 smaller VoIP providers that includes BullDog Teleworks and PingTone Communications, have told the FCC that "there are various industry initiatives under way, and the commission should allow those initiatives time to succeed before pre-emptively regulating."
Vonage already is able to comply with police wiretap requests, company spokeswoman Brooke Schulz said Wednesday. "We have a way to capture the data, to give them everything they need," Schulz said. "But we don't really have a way to get it from our system to their system. We've had meetings with various law enforcement agencies to figure out the best way to do that."
CALEA defines telecommunications carriers as companies that are "engaged in the transmission or switching of wire or electronic communications as a common carrier"--which probably does not apply to VoIP providers. A second definition, which covers services that are "a replacement for a substantial portion" of the local telephone network, comes closer. So far, the FCC has interpreted CALEA's wiretap-ready requirements to cover only traditional analogue and wireless telephone service.
