February 2004

A New Chapter in the War on Terrorism: The FBI Wants Expanded Wiretapping Authority

The debate over government interception of Internet communications has expanded to a new technology, namely Voice over Internet Protocol (“VoIP”) transmissions.  Indeed, representatives of the FBI’s Electronic Surveillance Technology Section in Chantilly, Virginia have been meeting secretly with the Federal Communications Commission since July, 2003, exploring ways to provide the FBI with more regulatory authority to “wiretap” Internet communications, and in particular VoIP transmissions. [i] The FBI along with the U.S. Drug Enforcement Administration and the U.S. Department of Justice want VoIP providers declared as “telecommunications carrier[s]” under the Federal Communications Act of 1996 and the Communications Assistance for Law Enforcement Act of 1994 (“CALEA”).[ii]   These three federal law enforcement organizations declared that if left unregulated, VoIP would provide a means of communications whereby “terrorists, spies, and criminals … [can] most likely evade lawful electronic surveillance.” [iii]  

 Voice Over Internet Protocol allows analog voice signals to be digitized into packets of data, sent over a series of networks, and reassembled at the other end. [iv]. In other words, telephone calls that have traditionally, since the late 19^th century, been made through Public Switching Technology Networks (“PSTN”) are now initiated, transmitted and received through computer networks, and thereby avoid long distance telephone charges. The technology, introduced in 1995, stumbled along until recent improvements in the sound quality and transmission reliability have made “phone carriers …practically tripping over each other to announce aggressive VoIP strategies aimed at both consumers and businesses.” [v]

Today, VoIP transmissions constitute up to ten percent of all calls made in the United States, with estimates of up to 2.5 million U.S. subscribers.[vi] By 2006, it is anticipated that well over 7 million VoIP units will be in circulation.[vii]

The most popular reason that businesses and consumers give for switching to VoIP is cost savings. Flat rate service plans, including unlimited local and long distance calls range from $20-$40, which is 20-40% lower than service plans being offered by PSTN companies.  The main reason for the cost savings is that VoIP transmissions are not regulated like regular telephone service. VoIP providers therefore do not have to pay the same taxes and access fees that are passed onto consumers. [viii]

A technological benefit of VoIP is more efficient use of the broadband cable, which currently carries half of all VoIP transmissions. Voice, data (e.g., faxes, e-mail, instant messaging), and video can all be transmitted simultaneously through broadband cable, record an outgoing message and leave it in their customers’ voice mail inboxes with one click, instead of repeating the same message several times a day.  Moreover VoIP transmissions can be recorded, labeled, indexed, stored, and retrieved when necessary. [ix] These technological benefits have made VoIP the new “target” of the Federal Government’s War on Terrorism. 

Under existing federal wiretapping laws, the FBI already has the ability to seek a court order to conduct surveillance of any broadband user through its DCS 1000 system, previously called Carnivore. [x] But federal law enforcement agencies worry that unless Internet service providers, and in particular VoIP providers, offer surveillance hubs based on common standards, lawbreakers can evade or, at the very least, complicate surveillance by using VoIP providers such as Vonage, Time Warner Cable, Net2Phone, 8X8, deltathree and Digital Voice. [xi]

The origins of this debate date back nine years, to when the FBI persuaded Congress to enact a controversial law called the Communications Assistance for Law Enforcement Act (“CALEA”). [xii]  The 1994 legislation requires that telecommunications services rewire their networks to provide police with guaranteed access for wiretaps.  The legislation also empowered the FCC to issues regulations defining what categories of companies were subject to the broad sweeping legislation.[xiii]  So far only traditional PSTN (analog) companies and wireless phone services have been subject to CALEA.

The FBI now has taken the position that the combination of the federal wiretap laws, originally enacted in 1964, and amended numerous times since,[xiv] along with CALEA, give it the authority to wiretap DSL and other types of broadband services, including VoIP. [xv]

Critics are worried about privacy issues.  Under CALEA, “telecommunications services” as defined under CALEA and the 1994 Federal Communications Act [xvi] are required to modify their equipment so that law enforcement officials can effectively “wiretap” both data and voice transmissions. [xvii] In particular, since VoIP represents the “blending” of data and real time voice transmissions, privacy advocates worry that VoIP “wiretapping” will lead to “dataveillance”, where data such as location information will be routinely collected for surveillance, without any investigatory predicate.[xviii]  Moreover, neither VoIP providers nor the FBI can explain what will be done to ensure that private parties do not engage in illegal monitoring of private citizens, gaining access to privileged information, confidential business/trade secrets, or even sensitive medical information.[xix]

Moreover, the FBI has said that if broadband providers cannot isolate specific VoIP calls to and from individual users, they must give police access to the “full pipe”—which, therefore, inevitably would include hundreds or thousands of customers who are not the target of the investigation.[xx]  This technological short-coming of VoIP “wiretapping” would inevitably lead to over-inclusive sweeps of conversations and data transmissions that are not the “target” of any government probe.

Some companies like MetaSwitch and Cisco Systems, Inc. have already cooperated with the FBI’s request for CALEA compliance to make their VoIP hardware products “surveillance friendly.”  These two companies have “developed backdoor technology in their VOIP products that enables the FBI to eavesdrop at will.” [xxi]  Yet segregating particular voice packets not the target of a search warrant still presents technological hurdles to many VoIP providers, leaving many VoIP transmissions subject to interception despite falling outside of the scope of the federal search warrant that authorized the interception.    

On the other hand, not all Internet service providers see themselves as “adverse” to the interests of the FBI.  EarthLink, for instance, wants CALEA and the Federal Wiretapping Statutes applied to VoIP calls.  If VoIP calls escape being subjected to this expanded regulatory scheme, it would mean that VoIP stays “unregulated” as far as the FCC is concerned. Such de-regulation of Internet services, would allow the Baby Bells such as Verizon and BellSouth to raise the rates charged to ISP’s, such as EarthLink, for access to the copper wire that runs to subscribers’ homes and businesses. [xxii]

EarthLink, as an ISP provider has, therefore, admitted that it sees “the FBI as an ally of sorts,” said David Baker, EarthLink’s vice president for law and public policy. [xxiii]

The federal courts are split on this issue of expanding government power to regulate [and therefore intercept Internet transmissions], and in particular VoIP.  The Ninth Circuit  Court of Appeals, for instance, in October, declared, to the delight of Internet Service Providers (ISP’s) such as EarthLink, that the cable operators to the extent that their broadband services use the Internet, are telecommunications providers, making them subject to state and federal regulations, including FCC regulations. [xxiv] In the same month, a federal district judge in Minnesota issued an injunction against the Minnesota Public Utilities Commission, barring it from seeking to impose tariffs on VoIP provider Vonage. [xxv]  Consequently, the Minnesota Federal District Court decision allows Vonage to escape being subjected to the FBI’s request to the FCC to expand the reach of CALEA. [xxvi]

CONCLUSION

Everything is pointing to the exponential growth of VoIP use. VoIP usage might even exceed the prediction that by 2007, seventy-five percent of all voice traffic will travel over the Internet.  Thus, it appears that the FBI’s request for expansion of its “wiretapping” authority versus and the FCC Chairman Michael Powell’s stated desire to further unleash the Internet, making it free from government regulation are set on a collision course. 

Endnotes:

[xxvi]  Marc Rotenberg, Electronic Privacy Information Center Comments on VoIP, December 15, 2003 submitted to December 1, 2003 Federal Communications Commission VoIP Forum at http://www.fcc.gov/voip/comments/EPIC.txt