Blindly looking in the wrong place

If things have gone as widely expected, the FCC by now has formally decided to decide not to regulate VoIP. This development might not please the FBI, but if it cares whether the FCC regulates VoIP then the FBI does not understand the issue.

For those of you who have not been following this saga, Pulver.com a year ago submitted a request to have the FCC declare that Pulver.com’s Free World Dialup 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 Free World Dialup was not subject to a number of FCC regulations that apply to telecom 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, “Protecting the public from innovation“) 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 the FBI misunderstands the problem and that if the organization gets its way it specifically will not be able to accomplish its 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 it to ask the FCC to regulate VoIP. But maybe it’s just that the FBI does not understand data networking.

In 1994, Congress passed the Communications Assistance for Law Enforcement Act (CALEA), which 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 it has followed for years, it will now decide to rule that VoIP is an information service not subject to CALEA and will have proposed rules for public comment that say this.

News reports in early February said the FBI, the Department of Justice and the Drug Enforcement Administration have agreed not to block an FCC determination that Free World Dialup is an information service rather than a telecom service. But the agencies will file a petition with the FCC asking for rules that will apply CALEA to VoIP services. I spent most of Feb. 6 on a videoconference between Cambridge, Mass., and the Washington, D.C., area near Dulles Airport. The videoconference, with full audio, ran between my Mac laptop and a 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 under way. 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 lawmakers 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 folks at Harvard do not exercise willful avoidance enough, but the above observation is my own.