Move to extend wiretap law to VOIP criticized

A federal judge has ruled that a 1994 law that requires telecommunications providers to install technology that makes wiretapping easier should apply to voice-over-IP technology, sparking a growing backlash from privacy advocates and technology experts.

Critics of the ruling argue that VOIP technology is fundamentally different from the traditional public switched telephone network (PSTN) system, making it risky to try to apply the 1994 Communications Assistance for Law Enforcement Act to it. CALEA was designed to work with the centralized, standardized architecture of the traditional telephone network, while VOIP works through decentralized, ad hoc networks on the Internet.

The law requires telecom providers to design their equipment so that federal law enforcement can easily perform wiretaps.

The FBI supports the June 9 decision of the U.S. Court of Appeals for the District of Columbia Circuit upholding a Federal Communications Commission 2005 ruling that CALEA applies to VOIP and broadband providers. The FBI had requested the original FCC determination in 2004.

“Terrorists, spies and criminals will find it harder to migrate to new Internet-based services as a means of evading electronic surveillance authorized by federal courts,” said Kerry Haynes, assistant director of the FBI’s Operational Technology Division, in a statement.

But privacy and technology experts fear that the difference between the technologies is so vast that enforcing CALEA on VOIP would introduce severe economic risks and threats to national security.

“The current FBI and FCC direction on CALEA applied to VOIP carries great risks,” experts concluded in a June 12 report that the Information Technology Association of America (ITAA) sponsored.

The report’s nine contributors included Vinton Cerf, chief Internet evangelist at Google and one of the founders of the Internet; Whitfield Diffie, chief security officer at Sun Microsystems; and Clinton Brooks, a retired senior executive from the National Security Agency.

VOIP can work like the PSTN by routing calls through known and fixed numbers, but more VOIP calls are placed between parties that are assigned different IP addresses for each call, according to the report. With decentralized VOIP, the choke point that facilitates surveillance may not exist because the two parties on the call could be using completely different paths through the network, said Mark Uncapher, ITAA’s senior vice president and counsel.

Making CALEA apply to decentralized VOIP to create those choke points would require massive changes in how the Internet’s architecture transmits data, Uncapher said.

The court ruling was flawed because it doesn’t respect Congress’ explicit exemption of the Internet and broadband from CALEA, said John Morris, staff counsel and director of Internet standards for the Center for Democracy and Technology’s (CDT) Technology and Policy Project.

The ruling could also force some products and applications providers out of the running, Morris said. Some VOIP technologies simply can’t monitor the content of phone calls.

The FBI has a dismal track record in adopting new technologies and appears to be intimidated by the Internet, Morris said. By insisting that CALEA apply to VOIP, the bureau shows it does not understand the differences between current and older technologies, he added.

The FBI also wants to make Internet communications backward-compatible with the wiretapping equipment that its state and local law enforcement partners use, Morris said. Those tools are 20 to 30 years old in some cases.

“We should attempt to move law enforcement into the 1990s instead of the Internet into the 1970s,” he said.

Abandoning CALEA for VOIP is in the FBI’s best interests, Morris said. If the FBI develops its own in-house technical capabilities and understands how to intercept VOIP calls without mandating Internet architecture, he said, it will have access to an even greater wealth of information that it can lawfully intercept than in the old PSTN network.

An FBI spokesman declined to comment on CDT’s and ITAA’s concerns. In his statement, Haynes said the FBI will identify its technical needs for lawful intercepts so industry can quickly create technical standards and specifications to comply with CALEA.