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A middle road from the FCC

By Scott Bradner

The FCC seems to have decided to take a path between the open road and a guarded tunnel when it comes to the Internet but the jury is still out.

Last March I wrote about a "Joint petition for Expedited Rulemaking" that the US Department of Justice, Drug Enforcement Agency and the Federal Bureau of Investigation sent to the US Federal Communications Commission (FCC). (http://www.nwfusion.com/columnists/2004/0322bradner.html) The petition requested that the FCC come up with a bunch of rules to clearly permit wiretapping the Internet and Internet-based services (and to have service providers pay for the required network upgrades). The FCC has just published a "Notice of Proposed Rulemaking" (NPRM) in response to the petition that details their tentative decision and includes some requests for comments on particular issues.

The FCC published the NPRM on its web site ((http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-187A1.doc) and included statements by some of the FCC Commissioners. The FCC is about to start on a 45-day comment period and things may change in response to the comments received but some of the high level conclusions seem clear. The FCC has "tentatively" decided that the Communications Assistance for law Enforcement Act (CALEA) applies to "facilities-based providers of any type of broadband Internet service" (both wholesale and retail), this includes wireline, cable modem, satellite and powerline (if that ever gets anywhere) based Internet service providers (ISPs). The FCC will propose "mechanisms to ensure that telecommunications carriers comply with CALEA." The FCC has also tentatively decided that CALEA also applies to "managed" Voice over Internet Protocol (VoIP) or instant messaging services. At the same time, the FCC also tentatively decided that they would not need to identify future services and entities that would also be subject to CALEA because the final FCC order will make it clear enough.

The FCC does not assume that it has all the answers and asks for comments on the state of CALEA-type standards for the Internet, on the feasibility of carriers relying on third parties to manage a carrier's CALEA functions and on a number of other issues.

The FCC's tentative conclusion is that CALEA does not apply to non-moderated (e.g. point-to-point) VoIP and instant messaging applications or to non-facilities-based ISPs. The FCC could change their minds after receiving comments or Congress could change the rules but, at first pass and without much detail, the tentative decisions seem as balanced as one might hope for. They avoid the innovation-killing application pre-screening process and an impossible to enforce CALEA extension to Internet applications other than VoIP and instant messaging.

Some of the Commissioners are worried that the FCC may be going beyond the current law or that the conclusions are on "very shaky ground." But, as one of the Commissioners pointed out, in the end it will be the courts (and Congress then the courts) that make the final decision.

We are at an important stage in the evolution of the Internet. The 'Net can not be considered just a toy, even if some telco folk still think it is one, when it becomes merely another law enforcement tool. (But that is kind of a sad milestone.)

disclaimer: At its age, Harvard has had lots of milestones, sad & happy, but it's not "merely another law enforcement tool" and the above opinion is mine.