Last Friday the D.C. Circuit heard argument in the CALEA case. The estimable Matt Brill, representing the entities and associations challenging the FCC's August 2005 order, did a great job on all accounts.
According to Reuters, Judge Edwards didn't think much of the FCC's argument that CALEA, which excludes “information services” from its coverage, should properly be read to include information services. He used words like “gobbledygook” and “ridiculous,” and at one point flatly told the Commission that its argument made no sense. (The Commission, after all, has been steadfastly maintaining since 2002 that broadband access is an information service — to take the opposite view for purposes of CALEA made for a very strained legal argument.)
But Judge Edwards also made clear that he thought VoIP was a “substantial replacement” for local telephone service, and that the argument that CALEA applies to VoIP made more sense to him. What does this mean?
Well, CALEA defines covered “telecommunications carriers” to include entities (1) engaged in providing switching or transmission services (2) to the extent that the Commission finds such services to be “a replacement for a substantial portion of the local telephone exchange service.”
So in order for CALEA to apply to VoIP, we'd have to say that VoIP applications are entities that are providing “switching” or “transmission” services. By “switching,” this 1994 statute meant centrally-controlled phone switches — and by “transmission,” the statute meant the provision of pipes or other modalities that allow for centrally-controlled communications. These words can't be stretched to cover what VoIP applications do. There are no “switches” involved in VoIP. There are routers, but they aren't controlled by the VoIP application, and all they know is how, locally, to send a packet onward. The architecture is completely different from the traditional telephone network architecture that the 1994 drafters of CALEA had in mind.
The first step — that CALEA does not apply to information services — is in place in the D.C. Circuit's mind. It remains to be seen whether the three judges who heard argument will understand that VoIP is a quintessential information service.
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