Thursday, August 05, 2004

Jeff's Reflection on CALEA Ruling @ FCC

The Jeff Pulver Blog: Reflection on CALEA Ruling @ FCC

The FCC has adopted the CALEA Declaratory Ruling and NPRM today at their August, 2004 meeting. I understand that the NPRM is intended to help create an environment in which VoIP can grow in a regulation-free environment, while still addressing lawful intercept concerns. I believe that the Declaratory Ruling clarifies that commercial wireless 'push-to-talk' services are subject to CALEA, regardless of the technologies that Commercial Mobile Radio Service providers choose to apply in offering them. The wireless carriers employing push-to-talk have apparently already anticipated and accounted for this.

The more relevant issue for VoIP providers is the NPRM, which will include a tentative conclusion that, for purposes of CALEA ONLY, managed VOIP could meet the "substantial replacement" test and could be subject to CALEA obligations. I understand that the tentative conclusions are limited to the CALEA provisions. Importantly, the item does not propose to classify VoIP as a telecommunications services, and, therefore, should not take us down a slippery slope in which VoIP would be categorized as a telecom service and subject to the host of telecom regulations. Furthermore, the tentative conclusion that CALEA applies to managed VoIP services that are a "substantial replacement" to POTS, will not apply to non-managed services like Free World Dialup. In his Separate Statement, Chairman Powell specifically states, 'The item also tentatively concludes that non-managed, or disintermediated, VoIP and Instant Messaging are not subject to CALEA, and that it is unnecessary to identify future services and entities subject to CALEA.'

I understand that the NPRM will reinforce the FCC's commitment to holding a "Solution Summit" on law enforcement access to Internet voice communications. The Solution Summit will be an effort to develop forward-thinking solutions that meet law enforcement's legitimate needs without stifling the innovative potential of Internet communications.

The NPRM will apparently request comment on the feasibility of carriers relying on a trusted third party to manage their CALEA compliance obligations and whether standards for packet technologies are deficient and preclude carriers relying on them as safe harbors for complying with CALEA's capability requirements.

I believe that the NPRM is designed to address law enforcement issues but is also part of a broader effort to ensure that VoIP remains free of unnecessary requirements.

Having said all of this, the IP Communications industry still has to remain vigilant to ensure that the FCC does not impose unnecessary, onerous CALEA or other telecom obligations on IP-based communications applications. It will also be important for us to ensure that the national security issue does not sidetrack efforts to achieve a rational, deregulatory VoIP policy.

We are living in interesting regulatory times.

Some selected news stories covering this:

The Boston Globe: Wiretap law to apply to Net calls
Australian Financial Review: US wants to wiretap internet calls
CNET: Feds back wiretap rules for Internet

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