January 2005

VoIP And CALEA BY John Cimko

The FCC, responding to a petition filed by federal law enforcement agencies, has proposed to apply the Communications Assistance to Law Enforcement Act (CALEA) to certain types of Voice over Internet Protocol (VoIP) service. The FCC’s proposal raises two central questions. Has the FCC presented sufficient legal arguments supporting its tentative conclusion that CALEA covers VoIP? Should Congress get back involved to resolve key policy issues?

CALEA requires telecommunications carriers to design their services and facilities to enable law enforcement agencies armed with court orders to intercept calls and obtain call identifying information.

Before imposing CALEA requirements on VoIP, the FCC must make the legal case that Congress intended CALEA to reach Internet services such as VoIP. But Congress exempted Internet-based and other information services from CALEA. The FCC, however, has tentatively concluded that this exemption does not apply to VoIP because the statute permits coverage if a service constitutes a replacement for a “substantial portion” of “local telephone exchange service.”

The FCC believes this statutory language means that, if a VoIP service replaces portions of a subscriber’s plain old telephone service, then the VoIP service is subject to CALEA. The agency concedes the statutory language is ambiguous, but argues that its interpretation is reasonable because its “functional” test is consistent with CALEA’s goal of preserving law enforcement surveillance capabilities in the face of changing technologies.

The FCC’s approach raises two problems. First, there is some legislative history suggesting the “substantial replacement” test applies geographically, not based on the functional nature of services provided to individual customers. In other words, a VoIP service would not be subject to CALEA unless it had substantially replaced local exchange service throughout a geographic area, such as a state. This geographic test, some parties argue, serves the congressional objective of benefiting competition, consumers, and technological innovation while still preserving surveillance capabilities.

Second, and more fundamentally, some parties contend that the FCC is wrong in assuming that the “substantial replacement” test can trump the statute’s information service exemption. These parties suggest that, once a service fits under the exemption, Congress did not intend to permit the FCC to bring the service back under CALEA’s coverage.

If the FCC persists in its interpretation of the statute, the order it eventually adopts will likely face court challenges. FCC Commissioner Michael Copps already has complained that the FCC’s tentative conclusions “stretch the statutory fabric to the point of tear.” A court battle could be avoided, however, if Congress decides to revisit CALEA to address the VoIP issues. Reauthorization of parts of the USA Patriot Act this year could serve as a vehicle for Congress to take up these CALEA issues.

One reason Congress should intervene is that, if industry players and observers are correct, VoIP may be the “killer app” that will reshape telecommunications in a way rivaling the invention of the telephone. A recent study by Atlantic-ACM, for example, predicts that the retail VoIP market will grow at a compound annual rate of 64 percent through 2009 and will reach $20.4 billion in annual revenues by 2009. If the Internet eclipses the circuit-switched network as the voice communications backbone, then congressional action at the threshold of this sweeping change could be the best means of ensuring that VoIP fulfills this promise in a way that realizes the potential of the Internet, while also retaining viable means for court-sanctioned surveillance.

Another reason for congressional action is that there are a host of policy issues that Congress, rather than the FCC, may be in a better position to sort out. Here are some highlights:

How should surveillance needs and privacy interests be balanced? There are growing concerns in some quarters that personal privacy may take a back seat to the government’s interest in maximizing its surveillance capabilities. Congress could determine whether additional statutory ground rules are needed to guard against problems such as inadvertent interception of data packets that are not covered by court orders.

Are there any options for dealing with offshore VoIP providers? It may not do much good to subject domestically-based VoIP providers to CALEA requirements if offshore providers can serve the U.S. market but escape these requirements.

Have law enforcement authorities shown an urgent need to extend CALEA to VoIP to aid the war against terrorists? In 2003, a total of 1,442 court-authorized wiretaps were granted, and 1,104 of these (76.6 percent) were for crimes related to narcotics. Wiretaps for terror-related activities did not make the tracking list. Congress could evaluate the claims of urgency, and then design CALEA requirements that meet law enforcement needs without compromising privacy interests, competition, or technological innovation.

Finally, how much leeway should VoIP providers have in designing software and facilities to comply with CALEA? Some industry players worry that law enforcement authorities will insist on a “one size fits all” approach because this makes law enforcement’s wiretapping job less burdensome. But this could increase costs and stifle innovation. Congress could decide whether current CALEA protections regarding system design should be strengthened to meet industry concerns.

John Cimko served for fifteen years at the FCC, and currently practices law at Greenberg Traurig LLP in Washington, D.C. The views expressed are solely those of the author and should not be attributed to his firm or its clients.

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