Industry Split on VoIP Wiretap Compliance
Carriers remain split on a proposed FCC rule to apply federal wiretap requirements to VoIP and broadband service. In comments on the Commission’s CALEA proceeding, a broad array of lobbying groups drew lines in the sand on the role of CALEA on a new generation of IP- based communications products.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
“The question of whether CALEA was intended to reach broadband Internet access and voice over IP applications should be decided by Congress, not the Commission in the first instance,” said the CTIA in its filing. “[We are] concerned that the Commission’s approach will lead to litigation and create uncertainty for years while the matter is resolved in the courts.” The group said 90% of wiretap requests in 2003 were made to wireless carriers.
Congress specifically excluded information services from CALEA jurisdiction when it wrote the law and many carriers, including BellSouth, said the FCC shouldn’t try to stretch its purview to include VoIP. “Rather than unlawfully expanding the scope of CALEA… the Commission should allow industry, working together with law enforcement, to develop the most effective and cost- efficient methods for meeting the electronic surveillance needs of the government,” BellSouth said.
A diverse group of lobby groups, including CompTel/Ascent, the Center for Democracy & Technology and the American Library Assn. agreed with BellSouth. “We strongly believe that the proposed extension of CALEA to the Internet is an unjustified and counterproductive approach to addressing law enforcement’s concerns,” wrote CDT’s Jim Dempsey.
N.Y. Attorney Gen. Elliot Spitzer (D) disagreed: “The FCC has both the authority and duty under CALEA to ensure compliance by all providers.” Spitzer complained that many carriers are treating CALEA as a “profit center” by charging “unreasonably high” fees for call intercepts.
Rural carriers supported FCC’s authority to require VoIP and broadband compliance with CALEA but said their customers rarely get targeted for wiretaps. “In rural areas, where the threat to public safety and national security has been low, much greater weight needs to be given to the financial impact of requiring a rural carrier to comply with CALEA,” said the Rural Telecom Group in its comments. According to the group, the average CALEA upgrade costs $250 per rural customer and about $2 per customer for large urban providers. RTG also asked the FCC to reimburse rural carriers for CALEA compliance costs: “As rural carriers face more and more unfunded Commission mandates, the ability to continue providing service to subscribers at an affordable cost becomes nearly impossible.”
Another rural industry group asked the FCC for more time to comply with any CALEA requirements. “Granting small ILECs longer amounts of time to file requests for alternative relief, as well as establishing a blanket transition period for them, will not conflict with the ability of [law enforcement agencies] to conduct necessary intercepts in the short term,” OPASTCO said in its filing. The National Telecom Cooperative Assn. agreed: “In an attempt to force carriers into CALEA compliance, the Commission proposes regulations that virtually guarantee small carrier non-compliance.”
CTIA advised patience on deadlines. “It is manifestly unfair for the Commission to declare all broadband Internet access to be covered by CALEA and then afford only 90 days to achieve compliance,” CTIA said. The association questioned the size of any problems. “While there are disagreements over what is covered and who pays for it, CTIA is not aware of a single packet-mode wiretap in a wireless network that has failed to be implemented,” CTIA said. “When considering criteria for extensions, the Commission should consider law enforcement’s need. Last year, out of the 1,442 authorized wiretaps, only one related to broadband -- the interception of a single DSL line in Minnesota, which also suggests that law enforcement can readily intercept broadband communications.”
T-Mobile said FCC should avoid any temptation to extend its CALEA requirements to Wi-Fi and 3G wireless data services. T-Mobile also opposed the Commission’s framework for carrying out the new rules. “Extensions, coupled with the FBI’s Flexible Deployment Plans, have resulted in timely and efficient compliance,” the carrier said. “The Commission should not interpret CALEA in a way that will yield an enforcement crisis by denying hundreds of pending extension requests and essentially closing off all future extensions. Nor should the Commission interpose third parties that promote independent CALEA solutions as mandatory alternatives to carriers and manufacturers that have not yet developed solutions.”
T-Mobile also questioned whether the FCC was overreaching. It suggested the Commission was attempting to “supplant federal courts as the CALEA enforcement authority.” T-Mobile argued: “Nothing in CALEA permits this result.”
Nextel said implementing wiretaps on the service shouldn’t present problems for carriers or law enforcement. Nextel noted that since 2002 it has had in place the ability to intercept PTT calls on its system. Nextel said it supported “generally the notion that all PTT-like services come to market with a CALEA-compliant intercept solution to ensure that law enforcement and national security agencies have the capability to conduct lawfully-authorized electronic surveillance.” Nextel did raise concerns about an FCC proposal to create a flat monthly fee for carriers to cover CALEA-related costs. “The Commission’s role in establishing whether a carrier charge is reasonable is limited to CALEA charges,” Nextel said. “Nothing in the [Communications] Act permits the Commission to regulate a carrier’s charges for recovering the cost of responding to law enforcement requests for provisioning of electronic surveillance.”