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Blindly looking in the wrong place

By Scott Bradner

If everything has gone as predicted by the press the FCC has formally decided to decide to not regulate voice over IP. Or at least that is what the headline should have read. This development may not please the FBI but if they care if the FCC regulates VoIP the FBI does not understand the problem.

For those of you who have not been following this saga, a year ago Pulver.com submitted a request (URL) to have the FCC declare that Pulver.com's Free World Dialup (FWD) VoIP service is not telecommunications nor is it a telecommunications service as defined by the Telecommunications Act of 1996. Such a declaration would mean that FWD was not subject to a number of FCC regulations that apply to telecommunications services. These regulations include paying into the Universal Service Fund, supporting enhanced 911 service and enabling law enforcement wiretaps.

Regulators do not much like this idea, (See for example http://www.nwfusion.com/columnists/2003/0825bradner.html) nor does the FBI. The FBI feels that it needs to be able to wiretap VoIP to chase criminals and protect the national security. I think they misunderstand the problem and that if they get their way they will specifically not be able to accomplish their mission against anyone but the dumbest criminals or terrorists. If I were a conspiracy theorist, I would suspect that there was a mole inside the FBI convincing them to do what they have been doing. But maybe it's just that they do not understand data networking.

In 1994 the U.S. Congress passed the Communications Assistance for Law Enforcement Act (CALEA). This act requires "telecommunications carriers" to be able to wiretap their services. The same act specifically exempts "information services" from these provisions. If the FCC followed the logic that it has followed for years it will now decide to rule that VoIP is an information service and thus not subject to CALEA and will have proposed rules for public comment that say this.

The news reports in early February say that the FBI, the Justice Department and the Drug Enforcement Administration have agreed to not block an FCC determination that FWD is an information rather than a telecommunication service but the three agencies will file a petition with the FCC asking for rules that will apply CALEA to VoIP services.

I spent most of February 6th on a video conference between Cambridge MA and the Washington DC area near Dulles Airport. The video conference, with full audio ran between my Mac laptop and another Mac laptop at the other end. We used Apple iSight cameras and iChat software. It would be quite hard to differentiate this conference from one that was run over a phone service. But, in my case, no one in the network knew that a conference was underway. If the FBI focuses only on the VoIP providers it will miss anyone like me who makes direct connections without using a provider.

The only sensible way for the FBI and the other agencies to proceed is to go back to congress and persuade them to extend CALEA to information services then to get ISPs to wiretap the underlying IP communications. To do anything else would be to willfully avoid doing anything effective against the real threats.

disclaimer: Some people complain that folk at Harvard do not exercise willful avoidance enough but the above observation is my own.