This story appeared on Network World at

http://www.networkworld.com/columnists/2005/101005bradner.html

'Net Insider

Internet wiretapping: More questions than answers

By Scott Bradner, Network World, 10/10/05

You can't get them all right. It's now been more than a year and a half since I complained that the FCC was trying to deal with the complex issue of wiretapping the Internet "with unseemly haste," but the FCC has just released yet another in a series of documents on the topic. This one, like its predecessors, leaves the reader with more questions than answers - and there are more documents to come.

In March 2004, I reported on an FCC request for comments on applying the Communications Assistance for Law Enforcement Act (CALEA) to the Internet and Internet-based services (See "Looking for the dumb ones"). The result was a Notice of Proposed Rulemaking published a few months later ("FCC chooses middle road on 'Net wiretapping "). That notice asked for comments on some of the FCC's tentative conclusions.

The new document represents the FCC's final decision, based at least somewhat on comments received in response to last year's Notice of Proposed Rulemaking. The current document also contains a new notice, as well as a request for comments dealing with a number of topics, but is mostly focused on the FCC's conclusion that facilities-based broadband Internet access providers and providers of "interconnected VoIP" are subject to CALEA's wiretapping requirements.

The logic that the FCC uses is often rather tortured. For example, it says that a VoIP provider that uses gateways to direct calls to and from the public switched telephone network (PSTN) fits the switching requirement because it "must necessarily use a router or other server to do so." Of course, this condition is true of all services offered over the Internet, not just interconnected VoIP. So where should the boundary be?

You should expect that a large pod of lawyers will spend lots of clients' money (including your tax dollars) arguing the details of FCC's decision and the authority of the commission to decide what it did in the light of the enabling laws. From my strictly non-lawyer point of view, I expect the courts to toss out this set of decisions but that Congress will quickly change the law to produce about the same result.

There is a lot of strangeness in this document. On one hand, the FCC says that an Internet access provider would have "no CALEA obligations with respect to, for example, the storage functions of its e-mail service," while at the same time implying that the same access provider would have to tap data going into or out of the aforementioned storage. Seems like an irrelevant difference. The FCC definition of an interconnected VoIP provider is strangely worded: It says that VoIP providers that both send calls to and receive calls from the PSTN are covered, but ones that go only one way are not, nor are ones where the user can employ a PSTN gateway provided by a third party as long as the VoIP provider has no specific arrangement for using the gateway.

The FCC still considers enterprise networks exempt. But the commission has not yet made up its mind about a number of other connectivity providers, such as hotels. This is far from the last word on the topic, including from me next week.

Disclaimer: Rules like this are music to the ears of law school graduates, but I got no input from any of them for the above.