S.2281 Hearing (was: Justice Dept: Wiretaps...)

Sun Jun 20 03:02:33 UTC 2004

The particular hearing that set this all off is the Senate Commerce 
Committee's review of S.2281 ("VoIP Regulatory Freedom Act") that
took place on last Wednesday, and in general, the hearing has a 
higher content to noise ratio than the resulting press coverage.

The agenda and statements of the participants can be found here:
<http://commerce.senate.gov/hearings/witnesslist.cfm?id=1230>

S.2281 takes the middle of the road position in areas such as lawful 
intercept, universal service fund, and E911.   At a high-level, those 
VoIP services which offer PSTN interconnection (and thereby look like 
traditional phone service in terms of capabilities) under S.2281 pick up 
the same regulatory requirements.  Those VoIP services which do not 
interconnect are continue to be treated as "information services" and 
therefore excluded from these requirements.

With respect to facilitating lawful intercept, the opening comments of 
Ms. Laura Parsky (Deputy Assistant Attorney General, US DoJ) and 
James Dempsey, Executive Director of the Center for Democracy and
Technology (CDT) are quite informative.   The DoJ view is that S.2281 
is not enough, and any service using switching or transport should
facilitate lawful intercept.  This position has the advantage of clarity,
but there are lots of communications (chat/IM/etc) that are going to
hard to decode and make readily available as needed.  It is also an
expansion of the current framework of CALEA, which specifically sets
aside information services including email and messaging.

The CDT position is interesting, noting that CALEA came into being to
address concerns that law enforcement wouldn't be able to readily
pursue lawful intercept orders without directly mandating call intercept 
capacity in each service provider.   This works fine with one application
(voice) but that replicating this model for data services makes no sense 
given the diversity of Internet communications applications.  CDT proposes
that if law enforcement really needs better intercept capabilities for data
applications, it should work on its own decode capabilities or get service
bureaus to handle that same, and that the Internet service providers 
shouldn't have to do anything other supply a copy of the relevant users
raw packet stream...

Despite the angst on both sides, requiring just those VoIP services 
which look like traditional phone service (due to PSTN interconnection) 
as requiring ready lawful intercept capacity will result in the equivalent 
situation as we have today with CALEA, and appears to be the likely 
outcome of the debate.

Apologies for length,
/John