The FCC issued a 100-page NPRM on August 9, 2004: In the Matter of Communications Assistance for Law Enforcement Act and Broadband Access and Services (PDF). It has been discussed quite a bit on the net, but so far everything I have seen misses the mark.
There is a lot of talk about what represents a “managed” or “mediated” service. Indeed, this was my first question upon a cursory read of the document. But the entire question is irrelevant.
- Myth number 1: The NPRM does not exclude IM (and peer-to-peer etc.) services on the basis of being non-managed, or disintermediated. The “managed” vs. “unmanaged” language of the NPRM is a red herring. The key to the exclusion is the “Substantial Replacement Provision”.
- Myth number 2: Substantial Replacement doesn’t have anything to do with connecting to the PSTN. According to the NPRM Substantial Replacement is about market penetration, how many people are reachable on a given system.
We also seek comment on our tentative conclusion that providers of non-managed, or disintermediated, communications should not be subject to CALEA. Non-managed VoIP services, such as peer-to-peer communications and voice enabled Instant Messaging, as currently provided, do not appear to be subject to CALEA for two reasons. First, because they are confined to a limited universe of users solely within the Internet or a private IP-network, they may be more akin to private networks, which Congress expressly excluded from section 103’s capability requirements.167 Therefore, they do not appear to replace a substantial portion of local exchange service; as such they do not appear to fall within the Substantial Replacement Provision. Second, they may be excluded information services under section 103(b)(2)(A) (as discussed above).
Footnote 167 to paragraph 58:
47 U.S.C. M-‘ 1002(b)(2)(B); see also House Report, 1994 U.S.C.C.A.N at 3498 (Narrow Scope); Second R&O, supra n.8 at 7112, M-6 12. We refer commenters to the legislative history’s discussion of private networks to address to what extent this affects the Commission’s analysis. See House Report, 1994 U.S.C.C.A.N at 3503 (Section-by-Section Analysis). We seek comment on whether there is some point at which certain “private” networks, because of an unlimited number of users, may be found to be more “public” than “private.”
So Free World Dialup, Skype, and the like, would be excluded from CALEA requirements, today, because they don’t have very many users. However, they could become subject to CALEA requirements whenever it is determined that they have “enough” users, regardless of whether they are managed, unmanaged, disintermediated, or deemed an “information service” or not.