DOJ, FBI Air Wiretap Worries to FCC

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The Department of Justice and the Federal Bureau of Investigation oppose classifying Internet-delivered phone calls as an information service, claiming such an action would frustrate their ability to track and capture criminals and protect national security.

The DOJ and the FBI expressed their views last Monday to the Federal Communications Commission. Vonage Holdings Inc. has asked the agency to classify its voice-over-Internet protocol (VoIP) product as an interstate information service.

Currently, the FCC does not subject information service providers to the heavy common-carrier regulation that applies, for example, to Verizon Communications Inc. or BellSouth Corp.

Removing VoIP from the regime that governs traditional phone carriers could mean the DOJ and FBI would no longer have authority under the Communications Assistance and Law Enforcement Act of 1994 (CALEA) to monitor VoIP communications electronically, the law enforcement agencies said.

"Such a finding would clearly undercut CALEA's purpose, and jeopardize the ability of federal, state and local governments to protect public safety and national security against domestic and foreign threats," the DOJ and the FBI said in its FCC comments.

Verizon does not endorse the DOJ and FBI's opinion on CALEA's scope. The Baby Bell has told the FCC that CALEA's surveillance mandate is broad enough to include VoIP.

Vonage provides voice communications to cable-modem and digital subscriber line (DSL) customers. The Edison, N.J., company turned to the FCC for relief after state regulators in Minnesota tried to regulate the company as a traditional phone carrier.

Comcast Corp., Time Warner Cable and Cablevision Systems Corp. have made bullish comments about VoIP, but the imposition of regulatory burdens — including state certification, contributing revenue to universal service and ensuring reliability during power failures that knock out cable-modem service — could influence the pace of deployment.

Neither the NCTA nor any cable company filed comments last week with the FCC on Vonage's request.

Minnesota's effort to regulate Vonage was not successful. A federal judge has issued a permanent injunction against the state after holding that Vonage's VoIP service met the federal definition of information service, and that a deregulated Internet was consistent with congressional policy in the Telecommunications Act of 1996.

Cisco Systems Inc., which is betting that VoIP phones and routers help revive the telecommunications sector, endorsed the view that VoIP is an information service.

"Vonage's VoIP service is best described as an Internet application — like e-mail or instant messaging — that allows consumers to communicate using the connectivity provided by their own Internet-service provider and broadband connection," Cisco told the FCC.

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