The DC Circuit Court of Appeals has ruled that VoIP-based telephone companies are subject to CALEA, the 1994 law mandating that phone companies install infrastructure to facilitate court-ordered wiretaps. The FCC has set a deadline of May 2007 for all VoIP providers to comply.
Back in October, when the FCC first announced its intention to expand CALEA to cover VoIP providers, Sen. Leahy, one of CALEA’s sponsors, objected:
Congress recognized the unique architecture of the Internet and explicitly excluded it from the scope of CALEA’s surveillance design mandates, and we did that to allow Congress to re-visit the appropriateness of such an extension as the Internet developed. Any extension of CALEA–a law written for the telephone system in 1994–to the Internet in 2005 would be inconsistent with congressional intent.
I don’t think it’s obvious how the courts should have ruled here. Vonage does present itself as an alternative to a traditional phone line, and it does interface extensively with the PSTN. Although I’d rather the federal government have as little power over the Internet as possible, it’s not clear to me that Vonage and its ilk shouldn’t be classified as telephone companies.
What is clear, though, is that the FCC’s definitional headaches will only get worse. Skype is very careful to emphasize that it’s not a replacement for phone service, and the vast majority of Skype users call other Skype users without using the PSTN. There are pure VoIP services like Apple’s iChat and Google Talk that don’t interface with the PSTN at all. And then there are services like XBox Live that allow users to chat with one another during video games. If the FCC is going to start requiring Vonage and (perhaps) Skype to comply with CALEA, they’re going to have to decide how “phone like” an application has to be before it gets classified as such.
And of course, CALEA’s not the only regulatory scheme that applies to phone companies. We’ve also got Universal Service fees, E911 service, and probably others. If the FCC piles too many requirements on services it classifies as “phone like,” it’ll lead to the fragmentation of phone connectivity, as “pure” VoIP applications refuse to interface with the PSTN for fear of triggering all those regulatory obligations. That will mean that grandma with her land line can’t call junior on his Google phone. That wouldn’t be the end of the world, but it’s probably not what the FCC is trying to accomplish.
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