This story appeared on Network World at

http://www.networkworld.com/columnists/2005/101705bradner.html

'Net Insider

Still more questions about the FCC order on 'Net wiretapping

By Scott Bradner, Network World, 10/17/05

Last week I started exploring the FCC's recent order regarding the Communications Assistance for Law Enforcement Act, but there are far more questions to ask about the order.

To complicate matters, the FCC released its final Policy Statement on Broadband Internet Access on the same day it released the CALEA order.

I mentioned the four principles contained in the policy statement in my Aug. 15 column.

At least one of the principles, along with an aside in the FCC First Report and Order and Further Notice of Proposed Rulemaking, seem to signal that a significant extension of the order might be in our future.

The second principle sounds good when it says, "consumers are entitled to run applications and use services of their choice." But things get murkier when it continues with "subject to the needs of law enforcement," and the CALEA order says that a future order will address the identification of "future services" subject to CALEA.

If that's not enough, the FCC's arguments about why CALEA should cover VoIP just as easily applies to almost any Internet application. This sounds like the FCC will order that law enforcement approve Internet applications before you can use them. That will surely drive innovation and make U.S. applications attractive elsewhere in the world. (Not!)

In the CALEA order, the FCC has decided that the differentiation between telecommunications and information services delineated in the Telecom Act of 1996 is null and void, seemingly because offering an information service involves telecom. That's a deft move, but one that I expect will be subject to quite a bit of legal second-guessing. Lots of things that I suspect Congress thought it was being clear about (for example, what services are covered by CALEA) get muddy when you blow away that differentiation. Congress might not agree with the FCC's cavalier move.

The FCC leaves open the question of whether small and rural broadband Internet providers and "providers of broadband networks for educational and research institutions should be exempt from CALEA."

This is just after concluding that some of these networks are private and thus exempt (see footnote 100) - another confusion to resolve.

The FCC CALEA order claims that the commission has already told broadband ISPs "in great detail what these carriers would be required to do if they were subject to CALEA," in the previous notice of proposed rulemaking.

Actually, what the FCC did was tell carriers that TIA standard J-STD-025 was on the right track (this document is available for purchase from Telecommunications Industry Association.

The FCC says that CALEA applies to carriers offering services "for sale to the public." I wonder what that means for free Wi-Fi hot spots, including the systems that some cities are working on, or Google's ad-supported service.

This order does warn that the FCC will be issuing more orders. Maybe next time there will be more answers than questions so that people, including those at carriers, will actually understand what they have to do and when (subject, of course, to the outcome of the totally predictable legal battles).

Disclaimer: "Totally predictable" and "Harvard" are not generally used in conjunction, and the above is my own opinion anyway.