"The way in which VoIP is regulated will profoundly impact the Department of Justice's ability to protect communities across the nation from the harms inflicted by drug trafficking, organized crime, and terrorism," stated Laura Parsky, Deputy Assistant Attorney General, Criminal Division, U.S. Department of Justice, in testimony before the U.S. Senate's Committee on Science, Commerce and Transportation. The Senate hearing was to consider the proposed VOIP Regulatory Freedom Act (S. 2281).
The Department of Justice contends that Congress did not limit the Communications Assistance for Law Enforcement Act ("CALEA") to just one particular technology, service, or suite of features, but rather "set in place a structure that anticipated and provided for a vast array of technological advances." On these grounds, the Department of Justice is arguing (1) that public safety and national security will be compromised unless court orders for electronic surveillance can be implemented by providers; (2) that assistance requirements should apply to every service provider that provides switching or transmission, regardless of the technologies they employ; and (3) that if any particular technology is singled out for a special exemption from these requirements, that technology will quickly attract criminals and create a hole in law enforcement's ability to protect the public and the national security.
No, the Internet and Internet applications were not included in the regulatory mandates of the Communications Assistance for Law Enforcement Act of 1994 (CALEA), stated James X. Dempsey, Executive Director, Center for Democracy & Technology and CALEA should not be extended to these domains. In his view, Congress "should balance law enforcement issues with other national interests in promoting innovation, maintaining American leadership of Internet technology development, expanding access, keeping costs down, enforcing competition, protecting privacy, and enhancing network security." Dempsey's testimony noted that all providers of VOIP services are already under a legal obligation to cooperate with all court orders for interception. Last year, only 12 of the 1,442 state and federal wiretap orders were issued for computer communications, and the FBI has not argued that it had difficulty implementing any of those 12 wiretaps. Indeed, out of all 1,442 authorized wiretaps, the "most active" was the interception of a DSL line in Minnesota, suggesting that law enforcement agencies can readily intercept broadband communications.
Tom Rutledge, Chief Operating Officer of Cablevision Systems, said his company's residential VoIP service already support E-911 and is capable of meeting all law enforcement access and surveillance requests. Supporting Senator Sununu's proposed VoIP legislation, he encouraged policymakers to establish a broad, deregulatory national framework that encourages new services and technological advancements.
"With our excitement for VoIP comes equal concern.. that public safety services and access will be woefully neglected unless we pursue early technical review and service planning within free-market development," testified David Jones, Director of Emergency Services, Spartanburg County Communications and also the First Vice President of the National Emergency Number Association (NENA). NENA has adopted a "Future Path Plan" which seeks to enable E9-1-1 to work with a wide range of VoIP and IP-enabled products and services. This includes both voice and data, whether serving a fixed location, or nomadic locations that may change from day to day, or operating wirelessly in a much greater area (including roaming from area to area), during a single call. Jones supports targeted federal regulation for E9-1-1 and VoIP, believing further that this is most appropriately handled by the FCC. He also believes that a national E9-1-1 Coordinating Office is a needed and necessary step for improving the nation's emergency response capabilities. His testimony also expressed concern about the growing loss of conventional service fees and surcharge revenue, and the uncertainty of any requirement to replace that critical operational funding stream in the VoIP environment.
"As we keep our eyes on the future, we must contend with urgent challenges to the sustainability of reliable, affordable phone service in the rural and high cost markets around the country," cautioned Stan Wise, who sits on the Georgia Public Service Commission. Speaking in opposition to the Sununu bill, Wise stated that the regulatory treatment of VoIP "should follow from the functional nature of a service, not the way it works under the hood. " He argues that the proposed VoIP legislation solves only one part of a larger problems, which should be addressed in an entirely new Telecom Act.
"End-to-end IP networks have the power to disrupt traditional telecommunications and to empower consumers and enterprise users of future communications services," stated Jeff Pulver. President & CEO, pulver.com, in his written testimony. Noting that only a couple hundred thousand POTS lines have been lost to VoIP, whereas tens of millions of lines have been lost to wireless alternatives, Pulver argued that "it is frankly absurd to impose regulations on an industry that has barely made a dent in legacy telecom revenue streams, and will, in fact, drive new broadband revenue to builders of telecommunications networks and infrastructure." His advice to legislators is to adhere to two core principles: (1) do not impose regulation unless absolutely necessary; and (2) ensure that no entity can leverage its market power to stifle choice and innovation.
"Rural consumers will not be able to enjoy the benefits of VoIP if the underlying networks operated by rural telephone companies are compromised due to a lack of adequate cost recovery," testified
Arturo "Archie" Macias, General Manager, Wheat State Telephone, speaking on behalf of the Organizations for the Promotion and Advancement of State Telecommunications Companies (OPASTCO). He said the most troubling aspect of the Sununu VoIP bill is that it places an explicit ban on the application of access charges to VoIP. http://www.senate.gov
- In April, Senator John Sununu (R-NH) and Congressman Chip Pickering (R-MS) introduced a bill aimed at encouraging the growth of VoIP by definitively classifying it as an information service and limiting potential state regulations. The bill has three key provisions: (1) Treat VoIP as an information service in order to help establish a level playing field for all forms of data (2) Establish federal jurisdiction over VoIP applications. (3) Protect VoIP data from federal and state taxation.
- In March, the Federal Bureau of Investigation (FBI), the U.S. Department of Justice and the U.S. Drug Enforcement Agency filed a joint petition for rulemaking with the FCC arguing that legal wiretapping needs to be "technology neutral" and needs to apply to all telecommunications carriers equally. Specifically, the FBI is asking the FCC to rule that broadband access and broadband telephony are subject to CALEA; and to adopt rules that provide for the easy and rapid identification of future CALEA covered services. The petitionenvisions a new regulatory and enforcement scheme that imposes deadlines by which VoIP providers must implement CALEA intercept capabilities for their existing services. The FBI is also asking the FCC to confirm that carriers bear sole financial responsibility for CALEA implementation costs.
- Two prominent industry groups, the Telecommunications Industry Association (TIA) and The VON Coalition, have each filed public comments with the FCC that are critical of the FBI's recent proposal to update the Communications Assistance for Law Enforcement Act (CALEA) wiretapping law to cover VoIP and future packet-based communications.
