[IP] CDT Paper on VoIP and Law Enforcement Surveillance:
Delivered-To: dfarber+@xxxxxxxxxxxxxxxxxx
Date: Mon, 15 Mar 2004 15:47:52 -0500
From: Jim Dempsey <jdempsey@xxxxxxx>
Here is CDT's initial position paper on VoIP and CALEA - comments welcome:
CDT Paper on VoIP and Law Enforcement Surveillance:
Law Enforcement Concerns Can Be Addressed Without Regulation,
Which Would Stifle Innovation, Raise Costs, Risk Security
March 15, 2004
There is nothing untappable about packet or Internet technology. Packet
services currently available for voice (and data) are tappable at one or
more points in the networks, and service providers are quite willing to
work with law enforcement to satisfy interception orders quickly and
fully. But the Internet is different from the traditional telephone
network, and government agencies should not expect that surveillance will
be carried out on the Internet the same way it is carried out in the
circuit-switched telephone network. The digital revolution has produced
many means of communication and it is not reasonable to require that all of
them identify calls and route traffic the same way that the telephone
network does.
Yet the Justice Department and the FBI are trying to force the diversity of
services available over the Internet into a single format resembling the
telephone network. On March 10, 2004, DOJ and FBI filed a Joint Petition
for Expedited Rulemaking with the Federal Communications Commission asking
the FCC (a) to declare that providers of "Voice over IP" (or Voice on the
Net) services are covered by the Communications Assistance for Law
Enforcement Act ("CALEA"), and (b) to create a regulatory process under
which new communications protocols, applications, or services must be
reviewed and approved by the FBI before they can be deployed.
CALEA was adopted in 1994 in response to law enforcement concerns that
wiretaps would be more difficult in digital telephone networks than they
had been with the analog phone system. CALEA required "telecommunications
carriers" to design basic wiretap capabilities into their networks. As it
was implemented, the CALEA statute gave the FBI very precise design control
over telephone switching software. The FBI was able to convince the FCC to
mandate very specific features, including - at substantial cost to carriers
- features that gave the government capabilities going beyond those that
had been available in older phone systems. Thus CALEA was used to enhance
rather than merely preserve government surveillance capabilities.
The CALEA statute applies only to telecommunications common carriers. It
does not apply to "information services." Congress realized that the
Internet was fundamentally different from the telephone system and Congress
chose not to apply CALEA to the Internet and "information services" carried
over it. VoIP is an information service and therefore is not covered by
CALEA. Although ISPs and Internet application providers must (and do)
comply with interception orders under the wiretap laws, they have not had
to design their networks and services to meet FBI specifications.
The Joint Petition seeks to alter the balance initially struck in CALEA,
and asks the FCC to extend CALEA to cover broadband ISPs and application
providers that offer VoIP services. Moreover, the Joint Petition asks the
FCC to create a system under which any new technology that might replace a
range of existing communications technologies must be reviewed and approved
by the FBI before deployment.
Such a prior-review requirement would destroy the United States' ability to
innovate on the Internet, and would in effect overturn the critical
decisions of the FCC over the years that facilitated the rise of the
Internet as a mass communications medium. The changes that the FBI seeks
are not necessary to allow law enforcement to carry out court-ordered
interceptions. The Internet and technology industries are working hard to
meet the needs of law enforcement, and the imposition of the sweeping
regulatory regime advocated by the Joint Petition is not necessary to
provide law enforcement with the ability to carry out its
investigations. Surveillance features built in to satisfy government
demands could undermine the openness and security of the Internet.
For more information, contact Jim Dempsey, Lara Flint or John Morris at
(202) 637-9800.
--
Jim Dempsey
Executive Director
Center for Democracy and Technology
Policy Director, Global Internet Policy Initiative
1634 I Street, NW Suite 1100
Washington DC, 20006
voice: +1 202 637-9800 Ext. 112
fax: +1 202 637-0968
cell: +1 202 365-8026
jdempsey@xxxxxxx
http://www.cdt.org
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