28 May 2013

“VoIP” and “justice” aren’t always mentioned in the same sentence, but that’s exactly what the FBI, the White House, and advocacy groups are talking about this month.

The FBI wants to expand existing surveillance laws to include Internet calling, known as VoIP. The current surveillance laws cover traditional phone calls, but VoIP has remained relatively untouched by wiretapping.

Government agencies are calling the proposed surveillance expansion a necessity to protect the public. There are enough examples recently, including the Boston Marathon Bombing and the Mother’s Day Parade Shooting, which prove that surveillance quickly identifies perpetrators, and circumvents future harm to the public.

However, the proposed expansion of the Communications Assistance for Law Enforcement Act is not without its critics. Privacy advocacy groups have slammed the proposal on the privacy front, and other groups like the Center for Democracy and Technology see the expansion as a deterrent for innovation. Furthermore, VoIP providers are worried that they will be subjected to high fees even if they are genuinely unable to tap a call.

Why VoIP is Not Already Controlled Under Surveillance Law

VoIP phone calls use a special kind of encryption that only VoIP providers can uncrack. The FBI wants VoIP providers to cooperate with government agencies in deciphering VoIP phone calls upon request. According to reports, the FBI plans on fining these providers around $25,000/day for each day of non-compliance.

There are two other reasons that VoIP calls are harder to put under surveillance:

1. VoIP calls aren’t tied to physical locations, like cellular towers or analog wires, which make them harder to wiretap.

2. VoIP is now mobile and many VoIP users take their VoIP service with them on the go, which makes it harder for law enforcement to adequately wiretap a VoIP call.

Government agencies are concerned that criminals will use VoIP for untraced calls to organize crime and attacks on citizens, which is why they want access to VoIP calls for VoIP users who are under suspicion of committing a crime or plotting to commit a crime.

Current Phone Surveillance Laws

It’s already commonplace for government agencies to wiretap traditional phone calls. When it comes to phone surveillance, the the real marker of change happened in 1979. In the 1979, the Supreme Court ruled in Smith v. Maryland that information collected by third parties, like phone service providers, is not protected by the Constitution's Fourth Amendment protection from unreasonable searches.

The ruling set the precedent that call information does not belong to the caller, but to the phone service provider. When government agencies need phone information about a user, they do not need to go through the user, they go through the phone provider. This is why the current discussion about VoIP surveillance is heating up between VoIP providers and legislators, and not between VoIP users and legislators.

VoIP Providers

So far, Internet phone service companies are reluctant to endorse the proposed legislation for fear of the repercussions should they at any point be unable to successfully tap a call. Heavy fees could cause significant damage to small providers.

The Obama administration is expected to officially support the FBI’s proposal when it passes through Congress later this year.

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