FCC chooses middle road on ‘Net wiretapping

The FCC seems to have decided to take a path between the open road and a guarded tunnel when it comes to the Internet, but the jury is still out.

In March I wrote about a “Joint Petition for Expedited Rulemaking” that the Department of Justice, Drug Enforcement Administration and FBI sent to the FCC. The petition asked the FCC to come up with rules to clearly permit wiretapping the Internet and Internet-based services (and to have service providers pay for the required network upgrades). The FCC has just published a “Notice of Proposed Rulemaking” (NPRM) in response to the petition that details its tentative decision and includes requests for comments on particular issues.

The FCC published the NPRM on its Web site  and included statements by some of the FCC commissioners. The FCC is about to start on a 45-day comment period, and things could change in response to comments received, but some of the high-level conclusions seem clear.

The FCC has “tentatively” decided the Communications Assistance for Law Enforcement Act (CALEA) applies to “facilities-based providers of any type of broadband Internet service” (wholesale and retail). This includes wireline-, cable- modem-, satellite- and powerline-based ISPs. The FCC will propose “mechanisms to ensure that telecommunications carriers comply with CALEA.”

The FCC also has tentatively decided that CALEA also applies to “managed” VoIP or instant-messaging services. At the same time, the commission tentatively decided that it would not need to identify future services and entities that also would be subject to CALEA because the final FCC order will make it clear enough.

The FCC does not assume it has all the answers and asks for comments on issues such as the state of CALEA-type standards for the Internet and the feasibility of carriers relying on third parties to manage a carrier’s CALEA functions.

The FCC’s tentative conclusion is that CALEA does not apply to non-moderated (for example, point-to-point) VoIP and IM applications or to non-facilities-based ISPs. The FCC could change its mind after receiving comments or Congress could change the rules, but, at first pass and without much detail, the decisions seem as balanced as one might hope for. They avoid the innovation-killing application pre-screening process and an impossible-to-enforce CALEA extension to Internet applications other than VoIP and IM.

Some of the commissioners are worried the FCC might be going beyond the current law or that the conclusions are on “very shaky ground.” But, as one of the commissioners pointed out, in the end it will be the courts (and Congress, then the courts) that make the final decision.

We are at an important stage in the evolution of the Internet. The ‘Net cannot be considered just a toy, even if some telco folk still think it is one, when law enforcement starts to see it as yet another observation tool. (But that is kind of a sad milestone.)

Disclaimer: At its age, Harvard has had lots of milestones, sad and happy, but it’s not “yet another law-enforcement tool” and the above opinion is mine.