Court Rules Providers of Broadband Internet and VoIP Services Must Make Networks “Wiretap-Friendly”
Posted by Brian Bennett
The U.S. Court of Appeals for the D.C. Circuit recently ruled in American Council on Education v. Federal Communications Commission that providers of broadband Internet access and voice over Internet protocol (VoIP) must make their services “wiretap-friendly” under the Communications Assistance for Law Enforcement Act (CALEA), 47 U.S.C. §§ 1001-1010.
The emergence of new communication technologies, including DSL, cable modems and VoIP, led providers to replace physical copper wires with ethereal and encrypted digital signals, which are harder to intercept using traditional law enforcement methods. Responding to these changes, Congress passed CALEA in 1994, requiring “telecommunications carriers” to ensure that law enforcement officials can access provider networks.
Congress created an exception, however, for “information services” and “private networks,” which are not subject to the requirements of CALEA. See 47 U.S.C. § 1002(b)(2). This caused confusion as to whether providers of broadband Internet access and VoIP services are “telecommunications carriers” (subject to CALEA) or providers of “information services” (exempt from CALEA).
In American Council on Education, the D.C. Circuit upheld the classification of broadband and VoIP providers as “telecommunications carriers,” relying on a provision that allows the FCC to extend CALEA to new technologies that substantially replace the functions of telephone networks. See 47 U.S.C. § 1001(8)(B)(ii). The FCC’s ruling was deemed a “reasonable policy choice” to meet the “evolving needs of law enforcement officials.”
Others strongly disagreed with the court’s ruling and its implications on privacy. Judge Harry T. Edwards stated in his dissenting opinion that the decision “manufactures broad new powers out of thin air.” Senator Patrick Leahy, chief sponsor of the original act, stated that “expansion of CALEA to cover the Internet is troubling, and it is not what Congress intended.”
Where does this leave providers and users of broadband Internet and VoIP services? The D.C. Circuit did state that CALEA has limits, and does not extend to private broadband networks or intranets. As for the court’s ruling that broadband and VoIP providers must make their services “wiretap-friendly,” stay tuned – the case likely will appear before the U.S. Supreme Court.