Federal News Service
HEADLINE: HEARING OF THE SENATE COMMERCE, SCIENCE, AND TRANSPORTATION COMMITTEE
SUBJECT: THE VOIP REGULATORY FREEDOM ACT OF 2004
CHAIRED BY: SENATOR JOHN MCCAIN (R-AZ)
WITNESSES PANEL I: LAURA PARSKY, DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE;
JAMES X. DEMPSEY, EXECUTIVE DIRECTOR, CENTER FOR DEMOCRACY AND TECHNOLOGY;
TOM RUTLEDGE, CHIEF OPERATING OFFICER, CABLEVISION SYSTEMS CORPORATION;
DAVID JONES, DIRECTOR OF EMERGENCY SERVICES, SPARTANBURG COUNTY COMMUNICATIONS/911;
STAN WISE, COMMISSIONER, GEORGIA PUBLIC SERVICE COMMISSION;
JEFF PULVER, PRESIDENT AND CEO, PULVER.COM; ARTURO "ARCHIE" MACIAS, GENERAL MANAGER, WHEAT STATE TELEPHONE COMPANY
LOCATION: 253 RUSSELL SENATE OFFICE BUILDING, WASHINGTON, D.C.
SEN. GEORGE ALLEN (R-VA): Thank you, Mr. Chairman, and thank you for holding this hearing. I'm substantially in agreement with your bill and I have a statement I'll put into the record.
SEN. SUNUNU: Without objection.
SEN. ALLEN: But I think we need to understand the larger picture here and that Voice Over IP is a great opportunity for consumers, greater services, less cost. And I don't want to have this new innovation being burdened by old legacy regulations, regulations that were put in years ago that were necessary on telephone services because telephone services were a monopoly and so you had all sorts of regulations. There's still taxes that are being imposed on our telephone service that were put in as a luxury tax to finance the Spanish-American War. Some of the regulations are about as outmoded as that.
And so this whole definition of an information service versus telecommunications means a great deal. This is an information service. They're packets of bits, zeroes and ones. And so in the midst of all of this at this hearing, we need to understand why those definitions matter. And the purpose of the Voice Over IP measure that Senator Sununu has is to make sure we all understand this is interstate commerce, it's international, there is federal jurisdiction. We can't have a patchwork of laws and regulations that differ all across this nation. That will harm the build out, the availability and certainly harm the cost as well for consumers.
So as we get to the question of what law enforcement needs might be, rather than make it an argument on, well, gosh, it's got to be like telephone service or you have to define it like a telecommunications service, figure out how those desires, legitimate desires of law enforcement to have access to information can be achieved. This information that they would be gleaning would still have judicial review, have to have the burdens of proof, probable cause and so forth to-for it.
Now, in trying to determine, listening to the arguments and statements and principles of Mr. Dempsey, whose comments I do agree with a great deal, Ms. Parsky, the FBI presently I believe, and just say yes or no, they can get at the content of e-mail presently with independent judicial scrutiny, can they not?
MS. PARSKY: Yes.
SEN. ALLEN: All right. And so what's the difference with Voice Over IP if you're going to do a packet search and use Carnivore or some other such technology if you had to get after the packet search for Voice Over IP, because that's actually what it is? It is different obviously than telephone lines in the way that it's-it doesn't sound different as far as the consumers. But insofar as the technology, it's the same technology so why could you not use something like Carnivore to get after-or searching these packets to glean information from a Voice Over IP communication?
MS. PARSKY: Well, you raise several important issues. The first issue is that one of the main differences is real time interception, a difference between many of these VOIP services and the e-mail. And the other difference is that, as I was explaining before, some of these VOIP services actually will relay calls over a different cable network or other means of IP communication and we have no ability to know that it's been relayed over a different line. So that creates a huge problem with respect to --
SEN. ALLEN: All right, let's assume that's a huge problem. So are folks that have souped up four-wheel drives, I suppose, that might be able to go in places where police vehicles may not. That's not a reason to stop-this is the whole point, we cannot have-and there are legitimate law enforcement concerns. We cannot stop this idea because law enforcement can't quite do it. But I still don't understand, though.
Using your example, why is that different than e-mail? E-mail can go in all sorts of different routes. You don't necessarily know when it's going or-somehow you can retrieve it, obviously, from storage. But as far as trying to get it contemporaneously, the same problem you're talking about Voice Over IP would still be-apply or instant messaging, right? Same thing. The same sort of situation applies, but that's-and it seems to me that you can adapt the same sort of protocols, procedures, obviously all of this with independent judicial review but for getting after Voice Over IP that you think needs to be searched or tapped into.
MS. PARSKY: Well, one other point that I think --
SEN. ALLEN: But don't you agree? I mean, it's the same sort of packet search that you would have for e-mail or instant messaging, which is e-mail in itself?
MS. PARSKY: But they're different protocols and all the different services that are involved will set the protocols at different stages in the process. And in order for us to be able to intercept communications in a timely manner and in a way that is the least invasive to the privacy of other information that's being carried along the same lines, we need to be able to have those people who are constantly resetting those protocols to provide us with the means to most narrowly tailor that interception. But there is, if I may --
SEN. ALLEN: So a technological challenge?
MS. PARSKY: It is a technological challenge.
SEN. ALLEN: But it should not be a reason to stop this legislation, though?
MS. PARSKY: Absolutely not. And that was one thing that I wanted to make very clear, is that what we're speaking to is just one small provision of this bill. We have absolutely no problem and fully support the promotion of the development of these communication services and we fully recognize all the benefits that they offer. And to the extent that you are reevaluating what type of regulatory framework is appropriate for these new technologies, we're just asking that the small piece of that regulatory framework, the one that applies to CALEA, that you take note of the significant law enforcement interests in that piece and that, you know, to the extent that CALEA does need to be reexamined-and we feel that it does need to be reexamined given these advancements, to make reference to one of the terms in CALEA in what appears to us to be an unclear way will only promulgate all the problems that we've already encountered with respect to applying these new technologies to the definitions that were set in 1994.
MR. DEMPSEY: Senator, if I could just make one point?
SEN. ALLEN: Yes, Mr. Dempsey.
MR. DEMPSEY: You know, 30 years ago life was simple. There was Ma Bell, it was one-stop shopping, it was very easy for law enforcement. They went there, they got everything from one place, one switch, one system. And this Congress decided as a matter of public policy that we needed a different approach, we needed competition, we needed innovations, that with the development of the Internet there were a vast range of possibilities out there. And the policy choice was put in place to support the development of many different kinds of services and many different kinds of service providers, and that has proven-with all the rocky roads that the Telecom Reform Act has been over, that still has proven to be on balance 100 percent the right decision and the proof is in the pudding in what we see in our telecommunications industry today.
With respect to this one issue, the Justice Department and the FBI is trying to put that all back to the Ma Bell single point. And I think we can't do that. I think it would be inconsistent with this basic theme of our telecommunications policy for the past 15 or 20, 30 years nearly, of promoting diversity of services and competition. They're going to have to go to different places to get different pieces of the picture. They already are there now. A person has a cell phone, they have an e-mail account, they have a wire line, they have a home phone number, et cetera. That's life. We're reaped huge benefits from it.
The fact is that terrorists and drug dealers have not found a haven. Eighty percent of the interceptions last year were on cell phones. The criminal who thinks he's getting something by having a cell phone and walking around is cooking his own goose. Eighty percent of all wire taps last year were on cell phones. So law enforcement keeps up with this technology, but they're going to have to go to different places and find the bits and pieces of information as we've broken up this network, to try to put that network back together with a single intercept point that gives the government everything they want in a neat, tied up package. I don't think that's a feasible policy objective. I think it's inconsistent with other policy objectives.
SEN. ALLEN: And let me just conclude, thanking both these witnesses.
I thank you, Mr. Chairman, for introducing this bill and finally, moreover, if you even forced this in this country it would have no impact because a lot of Voice Over IP is going to be-could be easily provided offshore.