The Hindu Business Line : Spotlight on VoIP

According to a June 19 report by Marguerite Reardon on http://news.com.com, Verizon says that Vonage infringed on patents held by Verizon that describe technology for the following: completing phone calls between VoIP users and people using phones on the traditional public switched network, authenticating VoIP callers, validating VoIP callers' accounts, fraud protection, providing enhanced features, using Wi-Fi handsets with VoIP services and monitoring VoIP caller usage.

"Vonage's service uses software that turns voice signals into packets and then transmits them over broadband connections, essentially turning any Internet connection into a telephone line. Verizon sells a similar service, called VoiceWing," explains Reardon.

Verizon was the respondent in a different VoIP case that came up recently before the US Court of Appeals for the District of Columbia Circuit: American Council on Education (ACE) vs Federal Communications Commission (FCC).

At the core of the case was a ruling by the FCC that providers of broadband Internet access and VoIP services can be regulated as `telecommunications carriers' under the Communications Assistance for Law Enforcement Act (CALEA). Meaning, "broadband and VoIP providers must ensure that law-enforcement officers are able to intercept communications transmitted over the providers' networks."

ACE said that the Commission's interpretation was unlawful because the provisions of law applied to `telecommunications carriers', and not `information services'. The decision, though, went against ACE.

The verdict of Circuit Judge Sentelle dated June 9 begins on a historical note: "Before the dawn of the digital era, there were few technological obstacles to the government's wiretapping capabilities: Eavesdropping on a phone call was as easy as finding the copper wires that ran into every caller's home."

The digital age brought in drastic changes to the architecture of the world's communications networks.

What was the change? Instead of the ethereal, physical copper wires running between individual end-users, there came new communications technologies such as digital subscriber line (DSL), cable modems, and VoIP, using encrypted digital signals that were "much harder to intercept and decode using old-fashioned call-interception techniques."

Uncle Sam responded by amending, in 1994, the law governing communications to bring in CALEA. Accordingly, `telecommunications carriers' had to `ensure' that their networks are technologically `capable' of being accessed by authorised law enforcement officials. Information service providers were not subject to CALEA; they were not required to make their networks accessible to law-enforcement agencies, according to a clause in the Act.

CALEA defines `information service' as "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilising, or making available information via telecommunications."

Significantly, however, CALEA had an SRP or `Substantial Replacement Provision' that allowed the Commission to expand the definition of `telecommunications carrier' to include new technologies that substantially replace the functions of an old-fashioned telephone network.

In 2004, the US Department of Justice, the Federal Bureau of Investigation, and the Drug Enforcement Administration filed a joint petition before the FCC. They said that the ability of federal, state, and local law enforcement to carry out critical electronic surveillance was being compromised by providers who had failed to implement CALEA-compliant intercept capabilities.

FCC collected `thousands of pages of comments from more than 40 interested parties' and ruled that broadband and VoIP providers are covered (at least in part) by CALEA's definition of `telecommunications carriers'.

The Commission said that the Act creates three categories of communications services: "pure telecommunications (which plainly fall within CALEA), pure information (which plainly fall outside CALEA), and hybrid telecommunications-information services (which are only partially governed by CALEA)." Broadband and VoIP came under the last category, that is, hybrid services, containing both `telecommunications' and `information' components, said FCC.

This was the interpretation that ACE fought against and lost. To the disappointed, there is solace in the form of dissent by Senior Circuit Judge, Edwards. "What we see in this case is an agency attempting to squeeze authority from a statute that does not give it. The FCC's interpretation completely nullifies the information services exception and manufactures broad new powers out of thin air," he said.

Despite the `clear language' in which `information services' were defined in CALEA, the Commission had stated in its order under dispute that "when a single service comprises an information service component and a telecommunications component, Congress intended CALEA to apply to the telecommunications component."

Calling such interpretation, `utter gobbledygook', Judge Edwards reasoned thus: "Under the plain words of the statute, exempt information services are those specified services that include a telecommunications component. If, as the FCC would have it, the telecommunications component is excised, the statutorily defined exemption no longer exists. This makes no sense."

He added, "If all information services that are carried out `via telecommunications' are subject to CALEA, then the `information services' exemption is an empty set. Under the plain terms of the statute, this cannot be." Seen the way the FCC interprets, even email storage services are thus potentially subject to CALEA's requirements, cautioned the judge.

In its anxiety to ensure that `technological change' did not erode `lawful surveillance authority' the Commission seemed to have had little interest in reading CALEA in a manner that is consistent with the statute's language and structure, rued the judge.

"The FCC can no more contend that `information service' providers are really `telecommunications carriers' because their regulation can facilitate the law enforcement purposes of CALEA, than the agency could assert that those who operate `movie theatres' are really `radio broadcasters' because their regulation would facilitate control of indecent material," reads an interesting analogy from the judge.

"The agency has simply abandoned the well-understood meaning of `information services' without offering any coherent alternative interpretation in its place. The net result is that the FCC has altogether gutted the `information services' exemption from CALEA. Only Congress can modify the statute in this way."

An instructive decision, more so, the dissent, on how `information' was sacrificed at the altar of `surveillance'.

http://ITcases.blogspot.com

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