VoIP calls subject to federal wiretap, says FCC

The Federal Communications Commission last week voted for proposed rules that would require managed VoIP phone calls to be subject to the same federal wiretap policy as the wired and cellular public telephone networks.

The move to treat VoIP like traditional voice service – unanimously voted on by the Commission as necessary for national security – could eventually tip the scales toward greater Internet regulation. VoIP providers, of course, have been fighting against state and federal regulators who view VoIP as a potential source of tax revenue. 

With its decision, the FCC, in effect, agreed with a joint petition filed by the Department of Justice, FBI and Drug Enforcement Administration in March that said VoIP services should fall under the Communications Assistance for Law Enforcement Act (CALEA). CALEA, enacted in 1994, requires the telecommunications industry to build tools into its products that federal investigators with court approval can use to eavesdrop on conversations.

In a Notice of Proposed Rulemaking last week, the FCC tentatively concluded that CALEA applies to facilities-based providers of any type of broadband Internet access service – including wireline, cable modem, satellite, wireless and powerline – and to VoIP services, which the proposal says are “a replacement for a substantial portion of the local telephone exchange service.”

This means that service providers offering VoIP services over their own broadband networks would have to meet CALEA standards. However, peer-to-peer VoIP offerings such as Skype are not considered managed VoIP services and would not be required to comply with CALEA. (CALEA obligations for offerings such as Skype’s recent SkypeOut service, which connects Internet calls to the public-switched telephone network, however, are still to be determined.)

The FCC also adopted new rules that, for matters of national security, require wireless, wireline, cable and satellite telecommunications providers to report information about outages in their systems electronically to the Commission.  However, the FCC intends to keep the outage details private for security and competitive reasons. 

This marks the first time wireless and satellite providers will be subject to the FCC’s reporting requirements. Currently, only wireline and cable telephony communications providers are required to report outages. In addition, the Commission will require network outage reports when certain critical facilities – such as E911 facilities and large airports – are affected and when network control technologies such as Signaling System 7 networks have been disrupted.