Is It a Phone, a Computer, or a Duck?
Everybody wants Voice over Internet Protocol (VoIP), but nobody is really sure what the hell it is. Specifically, law enforcement groups and policymakers are engaged in a tug-of-war over whether the new communication service -- which routes phone calls over the Internet in a variety of ways -- is like the telephone system or a computer network.
The distinction is crucial because many laws that enable wiretapping on telephones cannot currently be applied to data communications via computer. The FBI, however, hopes to change all that. Along with the DoJ and DEA, the FBI has submitted a petition (PDF) to the FCC asking to reclassify VoIP as a telephone service in order to make surveillance easier. Specifically, they're pushing to bring VoIP under the Communications Assistance to Law Enforcement Act (CALEA), which mandates that digital phone companies build backdoors for law enforcement into their switches to provide easy wiretap access. Today, the FCC issued a statement suggesting that centrally administered VoIP services, as well as cable broadband service, should be included under the CALEA umbrella. (The public is welcome to comment on this rule via the FCC's website.)
But, you say, VoIP has the words "Internet protocol" in it -- how can the government presume to treat it like a telephone? As far as we can tell, law enforcement and the FCC are using the infamous "quacks like a duck" test -- which holds that if something looks, acts, and quacks like a duck, then it must be a duck. If VoIP looks and acts like a phone, argues law enforcement, it should be regulated like one.
A few months ago, Sen. John Sununu drafted a bill aiming to improve upon the duck methodology for defining communications media. The VOIP Regulatory Freedom Act of 2004 would have kept the FCC from regulating VoIP, among other things. But as Tech Law Journal reports, the bill made it out of committee mark-up (and further along the path to the Senate floor) minus the section addressing the FCC's jurisdiction over VoIP.
If VoIP is regulated like telephones when it comes to surveillance, what next? Will the feds attempt to regulate all types of communication over data networks, asking for the power to approve product designs to make sure they're easily tapped? Unfortunately, that's entirely possible.