John Morris, Center for Democacy and Technology
Mike Godwin, Public Knowledge
Geraldine Matise, FCC
Christopher Murray, Vonage
John Morris,
Douglas McCollum, Fiducianet
Timothy Wu, Columbia Law School
David Young, Verizon

Matise: CALEA allows law enforcement agencies to get information in close to real time. And it requires the information to be put into a standardized format. The Justice Dept. would like the FCC to assume more of an enforcement role, which the FCC is reluctant to do.

Morris: The substantial replacement language is applicable to email. If we go down the road the FCC is going down, CALEA will apply to it.

Godwin: We need to do cost-benefit analyses as the limiting principle because there’s no limiting principle built in.

Morris: Most of the mainstream public interest groups accept that there’s going to be some interception [= wiretaps]. The problem is with CALEA.

Wu: How hard are these rules making it for new businesses to get started? The FCC is most successful when it allows something to develop free of government permission and requires it to comply with regulatory stories once it has gotten established.

Murray: It has to run at the physical layer or we miss Skype.

Young: At the physical layer, you can’t provide things like call-to, call-from, call times, etc. All you see at the physical layer are IP addresses.

Murray: Vonage will be CALEA compliant. Not because we’re an information provider but because we made a business choice. [The choice not to fight an expensive losing fight]

Wu: Email really should be more subject to CALEA than VoIP. For one thing, email is well-established and won’t fail to take root because of CALEA’s impositions. If you were taking a mainstream approach, that’s where you’d start. The fledgling technologies shouldn’t be subject to it initially.

Morris: In April, the FBI was talking to people about CALEA. During that period I had an hour-long conversation with two FBI engineers. They are so stuck in the old way of doing things. They understand telephones. They don’t understand all that SIP stuff. At the end of the day, there will be sophisticated criminals who can circumvent the FBI, if CALEA goes the way it’s going. The FBI cries, “Terrorist! Terrorist!” but they’re not going to get them. They’re going to get the common criminal. That’s a bad reason to impose telephony regulation on a new media application.

Morris: CALEA was originally conceived as being of narrow scope. Louis Freeh went to Congress and said we’re giving up on the Internet in order to focus on digital telephony (not IP-based). Law enforcement has bamboozled the FCC by repeatedly saying that it needs this. There’s no public record saying that this is a genuine problem.

Someone in the audience in Elliott Spitzer’s office, says, yes, there is a problem. They have phone taps interrupted when someone says, “Let me call you on my push-to-talk phone.”

Godwin: If you want to be able to tap every communications type, you’ll kill innovation.

McCollum: There’s a very good case that as soon as criminals know there’s a service that isn’t wire-tapped, that’s where they’ll go.

Q: What assurances are there that CALEA won’t open the door to all sorts of abuses in the name of fighting terrorism, just as in the 50s and 60s, the FBI engaged in abuses in the name of fighting communism?

No response from the panel.

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