HoodaThunk?

I’m unsure if “gobbledygook” is a legal term, but that’s what the judge used in the hearing held Friday on the matter of the FCC’s intended rules to force internet telephony providers to permit “wiretaps” for the FBI and law enforcement.

A U.S. appeals panel sharply challenged the Bush administration Friday over new rules making it easier for police and the FBI to wiretap Internet phone calls.

A judge said the government’s courtroom arguments were “gobbledygook.”

The skepticism expressed so openly toward the administration’s case encouraged civil liberties and education groups that argued that the U.S. is improperly applying telephone-era rules to a new generation of Internet services.

“Your argument makes no sense,” U.S. Circuit Judge Harry T. Edwards told the lawyer for the Federal Communications Commission, Jacob Lewis. “When you go back to the office, have a big chuckle. I’m not missing this. This is ridiculous. Counsel!”

At another point in the hearing, Edwards told the FCC’s lawyer that his arguments were “gobbledygook” and “nonsense.”

Well, it may well be that the arguments were nonsense. We can’t really tell, however, because the story about them was… frankly, nonsense. The story itself is hard to read. The quotes don’t appear to make a lot of sense even from a perspective of spoken english, at least to me. What is absolutely not there is any reference to the actual arguments used in the hearing – the ones the judge found so incomprehensible.

Voice over Internet Protocol, or VoIP, refers to bi-directional voice communication between at least 2 endpoints on a data network. Rather than having your phone connected to what amounts to a dedicated wire and then into a circuit switched network, VoIP allows phones to connect to a routed data network and carry the calls as streams of data packets. It uses exactly the same technique for digitizing music onto a CD and the transmission techniques of streaming audio. It’s just that the audio streams both directions.

It is quite possible to “wiretap” such a call, but there are concerns you must address in a VoIP call that don’t exist when a standard phone is tapped. When your regular land line is tapped, there’s no doubt about whether the signal coming out of your house is a phone call. When you’ve got a VoIP call, however, the data packets that comprise the phone call are mixed in with all the other data packets coming out of the house. A phone call can be ongoing while you download e-mail or check the weather or sports. There are indicators to your home’s network that tell your local equipment which packets are which, but once you stream that out to the Internet those indicators become less meaningful. Out on the Internet, a packet is pretty much a packet. So, the first concern in wiretapping a VoIP call is determining which packets you intercept.

Then there’s encryption. A regular land line doesn’t generally encrypt a call. With VoIP, it’s simply a matter of having the software encrypt the packet payload before it sends it out onto the network. Even if you intercept the call, it won’t make any sense until you have the encryption key or crack it. Can the FBI crack encryption? Sure. Takes time, though.

All of which is interesting (for us network geeks, anyway) but irrelevant to the matter of whether or not agencies should be required to permit such intercepts. That was the point of the hearing and the arguments in favor were deemed “goggledygook” by a judge. Wonder why. Might have been nice if the AP had told us.

I’ll look around to see if I can find a transcript somewhere and see if we can check out the arguments ourselves. If I find it, I’ll post again.

Update: A Reuters story on the same event was much better in its detail and writing and can be found on the Washington Post. Apparently the FCC has issued a ruling that all broadband providers and “interconnected” VoIP providers must implement the wiretapping procedures to allow law enforcement to intercept a call.

The FCC decision prompted an appeal by universities and libraries. The groups, including the American Library Association and Association of American Universities, challenged the agency’s authority to extend such requirements to high-speed Internet services.

The groups challenging the decision note that the law contains an exemption for “information services.” They say the FCC has long included broadband Internet in that category.

Judge Edwards agreed. And he scoffed at the FCC’s argument that broadband Internet services included a separate telecommunications “component” that made it subject to the wiretapping requirements.

Ah, so now we get to it. The FCC is arguing that an existing data network suddenly has a separate “component” to it by virtue of the fact that the data being carried by it is being used to stream the bi-directional audio of a phone call.

I agree with the judge. That’s nonsense. I’m not arguing that VoIP calls shouldn’t be interceptable, but the law – as it’s written – does not allow for the FCC to simply rule that everyone must treat their networks differently because someone wrote a piece of software. If the FCC wants that authority, they must get it from Congress and the President via legislation.