FCC Releases Final Broadband/CALEA Order; Questions on ‘Interconnection’

The Substantial Replacement Provision (SRP) in CALEA requires the FCC to designate certain service providers as “telecommunications carriers” that wouldn’t fall under such a categorization under the Communications Act. The definition of “switching” in the SRP includes routers, softswitches and other equipment that provides “addressing and intelligence functions” for packet-based communication, the order said, discounting critics who said “switching” was limited to its PSTN connotation in the 1994 Communications Act. CALEA focuses on “function, not technology,” the order said. The reference to the “local telephone exchange service” in the SRP didn’t preclude services connected to local service, such as long distance service, the order said.

The FCC’s definition of “interconnection” could spread to PC-to-PC calls, unless the Commission explicitly exempts them, Electronic Frontier Foundation (EFF) attorney Kurt Opsahl told us. The order said: “A service offering is ‘interconnected VoIP’ if it offers the capability for users to receive calls from and terminate calls to the PSTN; the offering is covered by CALEA for all VoIP communications, even those that do not involve the PSTN.” That could mean that PC-to-PC service through Skype, for example, is covered by CALEA because Skype also offers service to the PSTN through its premium SkypeOut service, Opsahl said. “It may be an open question” whether Skype would have to provide wiretapping ability for Skype users that don’t have SkypeOut accounts, he said: “It seems to be a pretty expansive understanding of ‘interconnected.'”

The FCC will have a “very difficult time supporting this decision in court,” Opsahl said, as the SRP interpretation “stretched CALEA beyond the breaking point.” The Communications Act’s reference to “service” was replaced by the FCC with “function,” and the legislative history of the “local exchange” provision suggests it applies only if VoIP substantially replaces the PSTN in a state, he added. Congress described the importance of privacy in protecting the public interest in CALEA, but “discussion of privacy is pretty much missing from the [FCC] order,” Opsahl said.

Some commissioners asked Congress to give them guidance on the extension of CALEA to IP-based services. Comr. Abernathy said the strong disagreements on CALEA’s applicability led her to conclude the approach in the order is “not without legal risk,” possibly meaning “the applications of CALEA to these new services could be stymied for years… I repeat my plea for Congressional clarity and for the certainty such clarity will bring.” Though approving of the order, it’s “built on very complicated legal ground,” Comr. Copps said: “The statute is undeniably stretched… and pushed very hard to accommodate new and emerging telecommunications platforms… Our efforts here will have done more harm than good” if CALEA’s extension to IP services is struck down. Despite such wavering, it’s unclear if anyone in Congress will step forward to clear out ambiguity, Opsahl said.

The Center for Democracy & Technology (CDT) said it’s “likely” to challenge the order in court, and Opsahl said EFF will probably do so as well. The Aug. decision had too little detail for privacy organizations and tech firms to decide whether they can all agree on a rationale for challenging the decision, but that discussion has started with the release of the formal order, he said: “It may be that we all join together as one” or file separate challenges. CDT couldn’t be reached for comment.