Bottom line: There is no principled distinction between VoIP applications that are "capable" of connecting to the traditional telephone network and any other online application. If VoIP has to be designed in advance to meet the requirements of law enforcement, including demands for standard forms of data and back doors of various kinds, all applications -- email, IM, everything -- will have to be designed this way.
A little review: Under the federal wiretap statute, all electronic communications -- no matter whether they are in the form of faxes, emails, or VoIP calls -- can be intercepted legally by law enforcement if a wiretap order has been obtained.
Under the 1994 CALEA, telecommunications providers --common carriers of telephone communications -- must provide certain specific capacities and capabilities to make wiretapping easier for law enforcement. Congress specifically elected to leave out of CALEA's coverage "information services, such as electronic mail services, or on-line services, such as Compuserve, Prodigy, America On-line or Mead Data, or Internet service providers." There's a good deal of legislative history making clear that CALEA's application was narrowed to telephone carriers in order for it to pass.
On Friday, FCC released its CALEA First Report and Order [warning, large pdf] covering broadband access providers and "interconnected VoIP" providers.
Using what Comm'r Copps labels a "stretched" and "pushed very hard" interpretation of the CALEA statute (Comm'r Abernathy pleads for Congressional help because "some might not read the statute to permit [this] extension of CALEA"), the Commission has taken a statute that excluded information services and read it to include them -- without any empirical demonstration that there is a need to do this. The implications of this quasi-legislative move are enormous, and litigation over the Commission's authority to trump Congress is more than likely.
The Commission has found a couple of ways to avoid the "information services" exclusion. If this document could talk, it might say (I'm providing the words):
First. "It doesn't matter whether something is an information service, even though we've fought very very hard in other contexts to keep things in the category of information service, because CALEA should cover things that are 'substantial replacements' for traditional telephone service. We're not going to require empirical evidence that anything is supplanting telephone service -- instead, we're going to look at the traditional functions of telephone service and see whether they're being provided by something new. Here, broadband access is functionally just like dial-up access that used to be provided by local telephone companies. And VoIP services that are capable of interconnection with the telephone network are just like traditional telephone service. Packet switching and circuit switching are just the same, functionally, so by using the word 'switch' Congress must have meant to include transmission to and over the Internet. So both broadband access and interconnected VoIP are covered under CALEA."
Second. "Even if broadband access and interconnected VoIP aren't substantial replacements for traditional telephones, they're still 'telecommunications carriers' for CALEA purposes because 'information services' should be read more narrowly under CALEA than it is under the Telecommunications Act. These two sets of terms -- 'telecommunications carriers" and 'information services' -- are mutually exclusive Both broadband access and and interconnected VoIP services are providing switching and transmission services to the public, so they're covered by CALEA."
This order is only about coverage. It doesn't say anything about how CALEA's mandates as to design of services will be applied to broadband or VoIP providers. The Commission's plan is that entities that know they're covered by CALEA will start thinking that way now, and in 18 months they'll be in full compliance with whatever CALEA requires.
Scope -- the idea is that CALEA will apply to all forms of broadband access, whether now known or later developed. So broadband over power line and satellite and other access notions are covered ahead of time. (Broadband is very broadly defined to cover any kind of access any of these actors might be providing.) And, as the Commission announced in an accompanying Further Notice, it will be thinking about whether other VoIP services should be subject to CALEA. (It is also, of course, thinking about whether other VoIP services should be subject to E911 obligations.)
Level playing field. The Commission (somewhat disingenuously) says that the application of CALEA won't distort competition in any way, because all VoIP and access providers will have to do it. "They're all saying they're complying with law enforcement already," the Commission points out.
But, once again, the field isn't level when it includes large incumbent telephone and cable companies who are already working through CALEA issues for their own offerings. New entrants will be crushed by having to ask permission and await responses from law enforcement. What's required will remain negotiable.
The permission culture continues. Congress will have to grapple with this issue once the inevitable lawsuit is resolved. There must be better ways to get law enforcement the data it needs without also giving it veto power over the design of online applications.
References to terrorism abound here. To oppose this Order is to be on the side of criminals. As in the E911 context, the level of implied rhetoric is very high. If you're against this, you must want to kill people.