Your VoIP Calls are Wiretapped - and Other Legal Surprises

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A cheat sheet of the regulatory debates affecting how your VoIP calls are handled, the plans for 911, and how the government is listening in.

As much as VoIP providers have relished the Wild West feel of the Internet, sheriffs are riding into town in the form of laws, FCC rules and taxes aimed at gradually taming VoIP. Here’s a rundown of the three debates affecting how VoIP providers handle service, the need to include 911 capability in it, and how open your calls are to federal wiretaps.

Network neutrality (or just “Net neutrality”) is the idea that Internet nodes — servers or groups of servers that forward information sent via the Internet—should treat every IP packet they send or receive in the same way as every other packet.

Consumers are concerned about net neutrality because some ISPs (notably AT&T and Verizon) had begun to treat VoIP and IPTV traffic differently than other types of traffic in an effort to maximize their networks’ efficiency. The fear is that other ISPs will follow and give these types of traffic second-class treatment compared with e-mail or Web traffic, or worse yet, charge consumers extra for speedy service while also charging content providers for fast delivery (so-called “tiered service levels”).

By the same token, telecom and cable companies tend to oppose Net-neutrality regulations as an unwarranted intrusion into how they can operate most efficiently and profitably. They also say net-neutrality mandates would stifle innovation and discourage companies from trying out new products.

Net neutrality is “the way things have been” for years — preserved by a patchwork of law and FCC regulation as much as any conscious effort—but as the idea of tiered service levels has gained momentum, so have efforts to codify net neutrality into law and policy.

In January 2007, Senators Byron Dorgan (D-ND) and Olympia Snowe (R-ME) introduced the Internet Freedom Preservation Act of 2007, which not only requires net neutrality, it would also mandate that ISPs inform users about the “speed, nature, and limitations of each user’s broadband service,” practically inviting a legal challenge by ISPs unwilling to reveal trade secrets.

In addition, AT&T’s December 2006 purchase of BellSouth cleared federal regulatory hurdles only after AT&T committed to net-neutral behavior by the merged companies—at least for the first 24 months.

In 2005 the FCC mandated that interconnected VoIP providers must provide access to enhanced 911 services, which would enable VoIP callers to reach local 911 services from wherever they were. The problem was that, unlike with land lines or even mobile phones, there was no easy way to determine where a VoIP caller was.

VoIP providers objected to the expense and technical difficulty of creating an all-encompassing 911 capacity that let them “see” where VoIP consumers were calling from. Eventually the FCC compromised by requiring consumers to tell VolP providers where they were from time to time.

The thinking is that over time, VoIP providers will build automatic location awareness into their VoIP services. For now, if your VoIP provider asks you to fill out a form indicating your location, do it—if for no other reason than that it will save ambulance drivers time finding you.

The Communications Assistance for Law Enforcement Act of 1994 – or CALEA – mandates that telecommunications providers make it easier for law-enforcement agencies to wiretap digital phone calls. In 2004 the FCC proposed to extend CALEA requirements to VoIP providers, sparking a legal battle over whether the FCC had overstepped its authority.

In theory, the FCC requires that “interconnected” VoIP providers (essentially anyone who makes broadband VoIP available and connectable to the PSTN) comply with CALEA by May 14, 2007. However, some VoIP companies and activists argue that CALEA is illegal, unnecessary, costly, and will suppress technological innovation. In a lawsuit, they allege that CALEA specifically excludes the Internet from regulation, among other deficiencies.

The government’s position is that VoIP calls—which are already highly tappable, whether encrypted or not—should be tappable in a more predictable, standardized way, and that CALEA requirements will not harm VoIP providers or consumers.

Both sides await a decision in the latest round of American Council on Education v. FCC from the D.C. Circuit Court of Appeals (read the PDF of the appeal here). For now, the need for CALEA compliance by VoIP providers is up in the air—but don’t bet against the sheriff bringing the law to town sooner or later.

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