Questions about CALEA application
FCC issued its NPRM today — it's a 100-page pdf file. I'm just beginning to study it, and I have four questions.
1. What exactly is a “managed” VoIP service? Law enforcement says that providers of VoIP services that are “managed” or “mediated” are subject to CALEA as telecommunications carriers. Before we get to the awkwardness of saying that someone is a “telecommunications carrier” under CALEA even though they're an “information services” provider under the Communications Act as a whole (and CALEA has a large exception for information services), it would help me to figure out what's meant by “managed.” It doesn't seem to mean only those services ”connecting to the traditional telephone network,” necessarily, although services that do connect to the PSTN would be covered.
The FCC is trying hard to be clear, but I'm still confused. They say “those services that offer voice communications calling capability whereby the VoIP provider acts as a mediator to manage the communication between its end points and to provide call set up, connection, termination, and party identification features…” (at 19). They say that's different from disintermediated communications in which the VoIP provider has “minimal or no involvement in the flow of packets during the communication, serving instead primarily as a directory.” (So Pulver.com is not a managed VoIP service.) But the definition isn't limited to services that connect to the PSTN or use telephone numbers.
So is it true that if a company provides a private voice service that doesn't connect to the traditional telephone network or use telephone numbers, but does facilitate dedicated conversations somehow — perhaps by using a private namespace — it's subject to CALEA? Would this include services that don't use IP or the public internet? How can you tell if a service is a voice service or a service for carrying lots of other things, with just a little voice added in?
2. Does the Substantial Replacement analysis hold water? CALEA requires “telecommunications carriers” to make sure their services are capable of providing surveillance capabilities to law enforcement. (I thought this was a “who” question, not a “what” question, and that FCC had to make determinations one by one as to who was a telecommunications carrier under CALEA, but I may be wrong about this.) The FCC says there are two ways to be a telecommunications carrier under CALEA: first, by being someone who is “engaged in the transmission or switching of wire or electronic communications as a common carrier for hire,” and second, by being an entity that provides “a replacement for a substantial portion of the local telephone exchange service.”
Let's start with the second part first. The FCC is saying that if an individual, a person like me, is using broadband access instead of dialup access to the internet, that broadband provider is a telecommunications provider. Why? Because the functionality (the service of access to the internet) that used to be provided by traditional telephones is now being provided by broadband. (at 24) But does that make sense? Shouldn't “substantial portion” have something to do with market control in a particular geographic area? In other words, if local telephones just aren't being used any more in a particular state, that service has been replaced. Is it replaced one person at a time?
As to the first part, the switching part, FCC appears to be saying that “switching” includes routers and software (”softswitches”). (at 23) Equipment that provides addressing or intelligence functions is going to be subject to CALEA, even if it's not “technically” switching or transmission equipment. Does this make sense? Doesn't CALEA operate on switches understood the traditional way (as in telephone switches)? Does this reinterpretation cover more equipment than it should? Could it possibly cover home users, home networks, etc?
3. How can you be an “information service” provider (and thus exempt from CALEA) at the same time that you are a “telecommunications carrier” because of your “substantial replacement” (and thus covered by CALEA)? FCC says it's more important to look hard at CALEA's definition of “telecommunications carrier” than the rest of the statute, because this definition is broader than the Telecom Act definition of “telecommunications carrier”. They say that if they didn't read CALEA this way, they'd be stuck with an “irreconcilable tension.” (at 31).
Is this right? Doesn't the reading-of-telecom-carrier-for-all-it-is-worth part of this statutory interpretation create the tension? After all, if we read the whole statute equally, we'd see the blinking red light: No CALEA Application To Information Services — and stop there. We'd say that if we read more into “telecommunications carrier,” the exemption wouldn't make sense. Aren't statutes supposed to be read as if they make sense?
4. Is the FCC confident of its jurisdiction? There's an interesting paragraph on p.35 that suggests that even if this interpretation of CALEA doesn't work out, the FCC could always reach non-common-carriers under its ancillary jurisdiction — and impose on them law enforcement assistance requirements. Ancillary jurisdiction is the same hook being used in the Broadcast Flag rulemaking and the IP-enabled Services rulemaking. I'm finishing up an article about ancillary jurisdiction, so this paragraph caught my eye. Is this Plan B?
Looking forward to illumination. The FCC has clearly worked very hard on this and is being as careful as they can be.
Comments
Got something to say?