07.12.04

Sens. Cantwell, Wyden, and Sununu Ask FCC Chair to Protect VoIP Innovation

Technology needs to grow without interference, lawmakers say

WASHINGTON, D.C. – U.S. Senator Maria Cantwell (D-WA) asked Federal Communications Commission Chairman (FCC) Michael Powell to protect innovation in internet telephony, known as Voice Over Internet Protocol (VoIP). Cantwell was joined by Sen. Ron Wyden (D-OR) and John Sununu (R-NH) in a letter to Powell asking the commission to find that the expedited rulemaking petition request by law enforcement is outside the FCC's jurisdiction. If the FCC comes out in favor of the petition, it would place federal law enforcement agencies, for the first time, in the role of guiding the feature designs of Internet applications. New FCC rules could slow technological innovation and impose significant costs on a new industry that could save consumers a significant amount on their monthly phone bills.

Cantwell said, "New FCC rules could will slow technological innovation and impose significant costs on a new industry that could save the consumer a lot on their monthly phone bills."

The text of the letter follows below.

The Honorable Michael K. Powell

Chairman Federal Communications Commission 445 12th Street, SW Washington, DC 20554

Dear Chairman Powell:

We are writing to express our concerns regarding the Joint Petition by the Department of Justice, the Federal Bureau of Investigation and the Drug Enforcement Administration to the Federal Communications Commission seeking an expedited rulemaking on the scope of the Communications Assistance for Law Enforcement Act ("CALEA"). The Petition seeks, among other things, to apply CALEA to Voice over Internet Protocol ("VoIP"). More broadly, the Petition raises serious questions about protection of national security, potential impact on civil liberties, and involvement by the FCC and law enforcement agencies in the technical architecture of Internet applications.

We recognize the importance of law enforcement's ability to carry out surveillance on all forms of communications. However, the obligations of CALEA apply only to telecommunications common carriers. It is important to note that the statutory language specifically excludes information services, such as VOIP and other Internet applications, from CALEA obligations. Any attempt to extend CALEA to VoIP application providers by administrative action will only generate further litigation and undermine the legal certainty needed for VoIP to reach its potential.

In addition, we are concerned that the Joint Petition, if granted, would, for the first time, place federal law enforcement agencies in the role of mandating design features for Internet applications. This could have a drastic impact on technology innovation and economic growth resulting from that innovation, and could impose significant costs on service providers and consumers.

CALEA was adopted by Congress after careful consideration of the balance between the needs of law enforcement to obtain information and the need to protect the privacy interests of individuals, while supporting innovation and the delivery of affordable services to all Americans. The initial drafting of CALEA required a thoughtful process involving federal agencies, industry, privacy experts and law enforcement. The resulting statute from this process combined certain obligations with corresponding limitations that the Commission cannot and should not overlook.

We are committed to working toward a similarly balanced solution to law enforcement's current concerns – a solution that is suited to the unique nature of the Internet. So far, the record is incomplete as to what problems Internet technology poses for law enforcement and what the best approach would be. It is clear, however, that an effective effort to facilitate access to information by law enforcement to Internet applications is likely to require a more sophisticated, multifaceted solution than merely applying CALEA to VoIP applications.

The Federal Communications Commission solicited comments on the Joint Petition and is in the process of considering those comments. We understand that you expect to take action on the Petition within the month. We urge you to find that, while the law enforcement interests at stake are unquestionably important, the requested relief is beyond the jurisdiction of the FCC. We urge you to make that point in the NPRM and then to work with Congress to fully examine the issues and develop a suitable legislative framework before any specific rules are proposed.

Sincerely,

Senator Maria Cantwell Senator John Sununu Senator Ron Wyden