August 4, 2004  ·  Tim Wu

The FCC today tenatively concluded that most Voice-over IP providers will likely have to comply with a major federal wiretapping statute, the Communications Assistance for Law Enforcement Act (CALEA). This means companies like Vonage will probably soon have to provide law enforcement with some way to tap their service.

I don’t consider the vote particularly surprising — VoIP phones look like telephones, and who’s going to vote against national security? But I nonetheless think the approach unfortunate.

Here’s why. VoIP, despite the incessant hype, is still a baby. There has still been more said about VoIP than actually using VoIP. Yet this infant has already attracted more regulatory attention than many grown-up technologies. That kind of attention is not a good thing for a youngster: too much light makes the baby go blind. Its a bad thing to have startups spending their time thinking about regulatory compliance instead of better service. Having the the FCC and Congress as foster-parents is at best like being a child-star and at worst like being raised by alcoholics. Either way, stunted growth is a likely outcome.

I think the FCC and Congress do better to regulate what actually exists, not what is supposedly “on its way.” Just think “Digital Television.”

For people who are really into this stuff, a few more notes. The FCC’s NPRM is not yet available, but we learn about it from the various statements, in particularly Chairmain Powell’s.

Two bits of what might be taken as good news for VoIP providers. First, the NPRM interestingly seems to leave both instant messaging and “disintermediated” or “unmanaged” VoIP outside of CALEA. That strikes me as good news, and a sign that that the rule-making will leave definite room for unfettered innovation in at least some areas.

Second, there’s hard statutory question, as noted by Commissioner Copps: whether VoIP is really “a replacement for a substantial portion of the local telephone exchange,” as opposed to mainly an “information service.” (The statute exempts information services from CALEA). The point is, VoIP could be a “substantial replacement” someday, but it certainly isn’t yet. Hence the silver lining for VoIP companies may be a serious risk of the rules being struck down. something Commissioner Abernathy freely admits.

  • Anonymous

    It’s a Notice of Proposed Rulemaking. These rules were not adopted. There’s still hope that this can be changed before rules are adopted. True, the NPRM makes tentative conclusions, but it’s still just an NPRM. The only part of today’s ruling that constitutes an actual rule is that “push to talk” wireless services are subject to the same requirements as ordinary mobile phone service.

  • Joe

    Two things seem to be driving this.

    1. Telcos are scared to death that they might have an actual competitor that can do their job better than they can.

    2. Congress is still upset that they missed their chance to legislate the Internet at large out of existence.

    Remember that we are far easier to govern if we can�t talk to each other.

  • John S.

    Ok, so this will apply to Vonage and other commercial VoIP providers. And according to MP’s statement “both instant messaging and ‘disintermediated’ or ‘unmanaged’ ” VoIP is not included.

    Can someone help make sense of this for me, what would make a service “disintermediated” and/or “unmanaged” ? DIsintermediated is having no “middleman” as I understand it — but it seems this could get blurred as things develop. Also, unmanaged by anyone, or just not by a company? What if using something like iChat’s A/V chat becomes THE way to communicate? Or is this just far too unlikely to consider?

  • Jeff Wexler


    I’ve been active in VoIP with both vendors, marketers, and consulting and I don’t have a problem with this.

    If you think stop to think about it, the world of VoIP tries really hard to tell everyone that IT WORKS JUST LIKE A REAL TELEPHONE, Makes calls like a REAL telephone, and can be used in place of a REAL telephone call.

    So why shouldn’t it be treated like a REAL telephone when it comes to wiretapping terrorists or bank robbers or the next Martha Stewart inside trader?

    Seems to me the marketing is “working” – but now all the VoIP types are upset that their mesage, “It is a real telephone” is sinking in just a bit too much….

  • Tim Wu

    Let me be clear. I think VoIP and Voice should be treated the same, but only if and when VoIP actually exists in mass form.

    I don’t think the FCC has gone crazy here — I just wish they would finish some other business first. CALEA for VoIP is to me something like priority #23.

  • brian

    As a systems architect working for a major telecom provider, I am bemused by all of the controversy here. Without opining about the merits of CALEA, the whole thing is absurd. If hosted VoIP gets bogged down with all the regulations that traditional telephony has accreted over the years, the industry will be stillborn because its price benefit disappears and because “pure” VoIP is free (to the extent that any Internet service is) and, ultimately, impossible to regulate. I mean, they can make regulations, if they want to look foolish, but bits are not beholden to law; encrypting voice is no harder than encrypting web pages, and detection is prerequisite to enforcement.

    In my view, this will do nothing more than accelerate the demise of traditional telephony, and CALEA will be an historical footnote:

    “Grandpa, you’re fooling me. They didn’t really, did they?”

  • Fidelia

    This website certainly has all the information I needed concerning this subject and didn’t know who to ask.

  • IXC.UA

    The FCC also mentioned that it might want to require service providers to offer voice telephony service as a standalone service.
    Notice of Proposed Rulemaking July 23 aimed at making more spectrum available for Advanced Wireless Services (AWS) from four bands: the 1695MHz-1710MHz, 1755MHz-1780MHz, 2020MHz-2025MHz and 2155MHz-2180MHz bands.