1 A dynamic assessment of VoIP adoption, innovation and their interaction with CALEA regulation Chintan Vaishnav Engineering Systems Division Massachusetts Institute of Technology Charles Fine Engineering Systems Division and Sloan School of Management Massachusetts Institute of Technology Introduction The need to expand Communications Assistance for the Law Enforcement Act (CALEA), also known as the wiretapping act, to VoIP is situated in a sociotechnical context that is starkly different from the first passing of the act in A sociotechnical context that is marked by service delivery models where the access provider and the service provider are separate entities, technology such as packetswitching that is not conducive to wiretapping, political environment where the law enforcement agencies (LEAs) are paranoid about homeland security and, the Internetcriminal who is savvy about their choice of encryption and other VoIP innovations. Such a system can be envisioned as a complex feedback system where, regulatory decisions lead to technology and investment choices by the industry and the consumer which may have repercussions on the adequacy of the very decision that led to these choices. In such a system, are there ways to model the cause and effect of regulatory decisions that may be dispersed in time and space? In this paper we present a system dynamics model to understand the complex feedback system surrounding VoIP adoption, innovation and the current VoIP CALEA proceedings. System dynamics is a methodology for studying and managing complex feedback systems using a computer simulation. We model the adoption of the managed (facilitybased or VoIP that interconnects with PSTN) and unmanaged (peertopeer) VoIP to understand the fraction of VoIP that will be under the CALEA jurisdiction. We then model the cost of compliance for the providers of the managed VoIP service and the resulting incentive structure for the new entrants to provide the unmanaged service, instead. Finally, we model the trends of the number of lawful intercepts required annually and the fraction of network that will have the CALEAcompliant technology deployed to carryout such enforcement wiretaps. Our model provides a framework as well as a computer simulation for understanding the overall CALEA compliance in a network, the cost of compliance as affected by various factors. Several policy lessons emerge through the process of model building, falsification, calibration and the subsequent sensitivity analysis. First, the current decision of exempting the unmanaged VoIP from CALEA obligations creates an incentive
2 structure for its increased adoption. Second, if unmanaged VoIP aspires to be a telephony substitute, it will invite the threat of social regulation. Third, arms race between CALEAcompliant and noncompliant technologies can substantially raise the cost of CALEA compliance. Fourth, the LEA may choose to ban the use of certain encryption techniques to increase the ability to wiretap criminals; however, this would simultaneously reduce the consumer privacy protection and thereby the adoption of technology. The rest of the paper is organized as follows. We first discuss the CALEA obligations from the old act. Next, we discuss a classification of the current VoIP business models as appropriate for our analysis. Then, we discuss the recent regulatory intervention to CALEA for VoIP and the incentive structure it creates for the various stakeholders involved. After briefly discussing the model parameterization and validation, we will end the discussion with policy analysis and lessons. CALEA: The old act and the regulatory obligations The Communications Assistance for the Law Enforcement Act (CALEA) requires a telecommunications carrier to engineer their networks to be able to: 1. Provide content tracing (lawful intercept) capability, 2. Provide callidentifying information, 3. Ensure security of the tapped communication, and 4. Ensure privacy of the user In this section, we will provide the statutory history behind the emergence of these obligations. Our approach here is to provide minimal citation to clarify the intent of the act. For a reader with little or no legal background, we have attempted to paraphrase the act without taking too much liberty. In the Second Report and Order ( Second R&O ), the FCC concluded that the term "telecommunications carrier" can be applied to particular carriers, their offerings and facilities. 1 The Second R&O further stated that CALEA does not apply to certain entities and services, e.g. information services and private network services. Additionally, the Second R&O stated that CALEA's definitions of telecommunications carrier and information services were subsequently not modified by the Telecommunications Act of Section 103 of CALEA establishes four general "assistance capability requirements" that telecommunications carriers must meet to achieve compliance with CALEA. 2 A telecommunications carrier shall ensure that its equipment, facilities, or services that provide a 1 Communications Assistance for Law Enforcement Act, CC Docket No , Second Report and Order, 15 FCC Rcd 7105 (2000), at 7110, 9. The Second R&O stated that the legislative history contains examples of the types of service providers subject to CALEA: The definition of telecommunications carrier includes such service providers as local exchange carriers, interexchange carriers, competitive access providers, cellular carriers, providers of personal communications services, satellitebased service providers, cable operators, and electric and other utilities that provide telecommunications services for hire to the public, and any other wireline or wireless service for hire to the public. Id. at 7111, 10, citing 140 Cong. Rec. H10779 (daily ed. October 7, 1994) (statement of Rep. Hyde). See also H.R. Rep. No (I), at 23, reprinted in 1994 U.S.C.C.A.N. 3489, Section 103(a)(1)(4) of CALEA, 47 U.S.C. 1002(a)(1)(4).
3 customer or subscriber with the ability to originate, terminate, or direct communications are capable of: (1) expeditiously isolating and enabling the government, pursuant to a court order or other lawful authorization, to intercept, to the exclusion of any other communications, all wire and electronic communications carried by the carrier within a service area to or from equipment, facilities, or services of a subscriber of such carrier concurrently with their transmission to or from the subscriber's equipment, facility, or service, or at such later time as may be acceptable to the government; (2) expeditiously isolating and enabling the government, pursuant to a court order or other lawful authorization, to access callidentifying information that is reasonably available 3 to the carrier (a) before, during, or immediately after the transmission of a wire or electronic communication (or at such later time as may be acceptable to the government) and (b) in a manner that allows it to be associated with the communication to which it pertains; (3) delivering intercepted communications and callidentifying information to the government, pursuant to a court order or other lawful authorization, in a format such that they may be transmitted by means of equipment, facilities, or services procured by the government to a location other than the premises of the carrier; and (4) facilitating authorized communications interceptions and access to callidentifying information unobtrusively and with a minimum of interference with any subscriber's telecommunications service and in a manner that protects (a) the privacy and security of communications and callidentifying information not authorized to be intercepted and (b) information regarding the government's interception of communications and access to callidentifying information. 4 Section 104 of CALEA sets forth notices of maximum and actual capacity requirements to accommodate all electronic surveillance events that telecommunications carriers may need to conduct for LEAs. Section 109 of CALEA addresses the payment of costs by the Attorney General to telecommunications carriers who comply with the capability requirements of section 103. The statute distinguishes between equipment, facilities and services installed or deployed on or before January 1, 1995, and after that date. Business Models for delivering VoIP Let us now look at the various business models and their characteristics important for meeting the above CALEA obligations. Since the introduction of VocalTec s VocalChat PCtoPC communication software in March of 1995, VoIPbased service has steadily grown to be a serious competitor to Public Switched Telephone Network (PSTN). Various business models have emerged over time for offering VoIP as a service. The earliest effort for large scale commercialization was by equipmentmakers in with their thrust to develop IPGateways that could convert an incoming circuitswitched call to packetswitched and vice versa. IP Gateways allowed longdistance 3 CALEA does not define or interpret the term "reasonably available." 4 47 U.S.C. 1002(a)(1)(4). Callidentifying information is defined in section 102(2) of CALEA as "dialing or signaling information that identifies the origin, direction, destination, or termination of each communication generated or received by a subscriber by means of any equipment, facility, or service of a telecommunications carrier." 47 U.S.C. 1001(2). For a discussion of callidentifying information, see, supra.
4 companies such as AT&T, MCI to convert their circuitswitched backbone to VoIP in the backbone. While many argue that this approach leads to a better use of bandwidth, it is clear that the statistical aggregation in the PSTN was nearly perfect, so the efficiency gain from IP backbone couldn t have been that much. VoIP in the backbone, however, did offer the longdistance companies a way to avoid access charges between their hightraffic nodes. Since the year 2000, three other business models for VoIPbased service have emerged. Local or longdistance companies such as QWest owning DSL facilities, or cable companies such as Comcast owning cable facilities have begun to offer Facilitybased VoIP. Proliferation of broadband has now made possible for companies such as Vonage to offer VoIP service over an existing broadband connection (VoIP over Broadband) or companies such as Skype, Yahoo and AOL to offer a free application for peertopeer (P2P) voice communication (P2P VoIP). Table 1 shows the four business models. Of course, the above is one of many ways of categorizing VoIP business models. We have chosen this classification as it provides a reasonably clear categorization for thinking about the regulatory issues. The business models differ on many accounts, but let us focus on only those differences that matter for CALEA. Business Models Examples PSTN Interconnection? Ownership Technology to connect the end device VoIP in the Backbone AT&T, MCI, Sprint Facilitybased VoIP Qwest DSL, Comcast VoIP over Broadband Vonage, 8x8, SkypeOut/ SkypeIn Yes Yes Yes No Same operator and service provider Circuit Switching Same operator and service provider Packet Switching Different operator and service provider Packet Switching Table 1 VoIP business models and their differences pertinent to CALEA P2P VoIP Skype, Yahoo Messenger, IM Different operator and service provider Packet Switching First, is the interconnection with PSTN. Business models that allow for calling a PSTN phone offer this feature. P2P VoIP, as construed here, offers only PCtoPC communication and no PSTN interconnection. So in that sense, a pure Skype service is a case of P2P VoIP, while the SkypeOut and SkypeIn classify as VoIP over Broadband. The interconnection with PSTN is important since the PSTN switches are already CALEA compliant. This makes it possible to obtain call identifying information and content tracing of at least the PSTN end of a call. Second is the question of the network and the service ownership. VoIP in the Backbone and Facilitybased VoIP are vertically integrated business models, where the operator who owns the network and the service provider who bares the responsibility for the
5 service are the same. Conversely, for VoIP over Broadband and P2P VoIP, the operator and the service provider are different entities. This difference is important when carrying out content tracing upon a court order. Voice communication is achieved by two fundamental functions: call signaling that establishes and terminates a call and bit transport that carries bits of the actual voice conversation. In business models where the operator and the service provider are different entities, the call signaling function is carried out by the service provider, while the bit transport function is carried out by the operator (the network owner). When the court requires content tracing of a call, the service provider (carrying out call signaling function) knows the when the call originates and ends, while the operator has the capability to trace content. In this situation, the service provider and the operator, who compete for a customer under normal circumstances, must now collaborate to deliver the content trace. The third is the of technology used to the end point. In VoIP in the Backbone, circuitswitching is used till the end device. In the rest of the business models, packet switching is used to connect the end points. This difference is important as the devices (phone or other devices such as PCs, PDAs etc.) used in Facilitybased VoIP, VoIP over Broadband, or P2P VoIP have the potential for running the Internet Protocol (IP) stack on the devise, which makes them capable of running various encryption schemes. A user can now encrypt their voice traffic in ways that are difficult to tap and decrypt. Recent regulatory intervention and the system of incentive With the recent emphasis on homeland security, FCC, in response to FBI s petition, has sought to expand CALEA obligations to Internet, Broadband and VoIP service 5. The FCC has concluded that VoIP services that Law Enforcement characterizes as managed or mediated are subject to CALEA as telecommunications carriers. Law Enforcement describes managed or mediated VoIP services as those services that offer voice communications calling capability whereby the VoIP provider acts as a mediator to manage the communication between its end points and to provide call set up, connection, termination, and party identification features, often generating or modifying dialing, signaling, switching, addressing or routing functions for the user. Law Enforcement distinguishes managed communications from unmanaged or peertopeer communications, which involve disintermediated communications that are set up and managed by the end user via its customer premises equipment or personal computer. In these nonmanaged, or disintermediated, communications, the VoIP provider has minimal or no involvement in the flow of packets during the communication, serving instead primarily as a directory that provides users Internet web addresses to facilitate peertopeer communications. Considering the classification of VoIP business models in Table 1, the CALEA and subsequent order suggests that the CALEA obligations are extended to the VoIP as shown in Table 2. 5 FCC CALEA NPRM. ET Docket No
6 Business Models Regulated under CALEA VoIP in the Backbone Facilitybased VoIP VoIP over Broadband Business Models not Regulated under CALEA P2P VoIP Table 2 Regulatory intent of extending CALEA to VoIP The FCC has concluded that facilitiesbased providers of any type of broadband Internet access service, 6 whether provided on a wholesale or retail basis, 7 are subject to CALEA because they provide a replacement for a substantial portion of the local telephone exchange service used for dialup Internet access service and treating such providers as telecommunications carriers for purposes of CALEA is in the public interest. 8 Broadband Internet access providers include, but are not limited to, wireline, cable modem, satellite, wireless, and broadband access via powerline companies. 9 6 See FCC CALEA NPRM. ET Docket No (defining broadband Internet access service for purposes of this proceeding). By facilitiesbased, we mean entities that provide transmission or switching over their own facilities between the end user and the Internet Service Provider. We seek comment on this approach. 7 We clarify that some entities that sell or lease mere transmission facilities on a noncommon carrier basis, e.g., dark fiber, bare space segment capacity or wireless spectrum, to other entities that use such transmission capacity to provide a broadband Internet access service, are not subject to CALEA under the Substantial Replacement Provision as broadband Internet access providers. Under such a scenario, the entity procuring the transmission capacity via the sale or lease and using it to provide broadband Internet access service (e.g., a satellite earth station licensee) would be considered the facilitiesbased broadband Internet access service provider and thus, the entity subject to CALEA under the Substantial Replacement Provision. 8 See Petition at 1516, We note that in other dockets, the Commission previously requested and received comment on the applicability of CALEA to wireline broadband Internet access service and has received comment on its applicability to cable modem service. See Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, Universal Service Obligations of Broadband Providers, CC Docket No. 0233, Notice of Proposed Rulemaking, 17 FCC Rcd 3019 (2002) (Wireline Broadband NPRM); see also FCC CALEA NPRM. ET Docket No (summarizing the fact that this proceeding encompasses the issue of the applicability of CALEA to wireline broadband Internet access previously raised in WC Docket No. 0233); Inquiry Concerning HighSpeed Access to the Internet Over Cable and Other Facilities, Internet Over Cable Declaratory Ruling, Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities, GN Docket No and CS Docket No. 0252, Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC Rcd 4798 (2002) (Cable Modem Declaratory Ruling & NPRM), aff d in part, vacated in part, and remanded, Brand X Internet Services v. FCC, 345 F.3d 1120 (9th Cir. 2003), stay granted pending cert. (April 9, 2004) (cable modem service constitutes the offering of both an information service and a telecommunications service to the end user). Parties that commented on CALEA issues in these dockets should respond to the instant docket. 9 Broadband Internet access services are rapidly being developed or provided over technologies other than wireline and cable, such as wireless and powerline. For example, broadband Internet access service may be provided by CMRS carriers and fixed wireless companies such as local multipoint distribution service and 39 GHz licensees, or by wireless Internet Service Providers using unlicensed spectrum. See, e.g., FCC Chairman Michael K. Powell announces Formation Of Wireless Broadband Access Task Force, News Release (May 5, 2004); Wireless Broadband Access Task Force Seeks Public Comment On Issues Related To Commission s Wireless Broadband Policies, GN Docket No , Public Notice, 19 FCC Rcd 8166 (2004). Broadband over powerline ( BPL ) is a new technology being developed at a rapid pace to offer
7 Law Enforcement asserts that CALEA applies to broadband Internet access service and mediated VoIP services and that application is critical to its efforts to combat crime and terrorism. 10 The FCC bases its conclusion that the meaning of telecommunications carrier in CALEA is broader than its meaning under the Communications Act and on Congress's stated intent to preserve the government s ability, pursuant to court order or other lawful authorization, to intercept communications involving advanced technologies such as digital or wireless transmission modes. 11 Incentive structure for various stakeholders Now let us look at what kind of incentive structure the above intervention creates for different stakeholders. Balancing loop (B1 Regulation of managed VoIP) 12 in Figure 1 shows the dynamics discussed in this paragraph. If we construe the total VoIP use to be made up of managed VoIP and P2P VoIP, as the use of VoIP goes up, the pressure to regulate builds up (the double bar indicate delay). The regulator hopes that the threat of regulation motivates the industry to collaborate to develop and deploy CALEA compliant technology. In our case, only the providers of managed VoIP should be expected to collaborate in compliance activities. Deployment of CALEA compliant technology increases the percentage of managed VoIP that is CALEA compliant, and over time, the pressure to regulate reduces. voice and highspeed data capabilities. See, e.g., Inquiry Regarding Carrier Current Systems, Including Broadband over Power Line Systems, ET Docket No , Notice of Inquiry, 18 FCC Rcd 8498 (2003) (seeking comment on technical issues relating to provision of BPL); see also generally United Power Line Council ( UPLC ) Comments at See Petition at 2, 25, 71; Law Enforcement Reply Comments at iii, H.R. Rep. No (I) (1994), reprinted in 1994 U.S.C.C.A.N (House Report) (Summary and Purpose) (emphasis added); see also Petition at iii. 12 Each arrow indicates a causeeffect relationship with the cause at the tail and the effect at the head of the arrow. The positive sign indicates a direct relationship between cause and effect. Increasing the cause increases the effect and decreasing the cause decreases the effect. The negative sign indicates an inverse relationship between the cause and the effect. Increasing the cause decreases the effect and decreasing the cause increases the effect. A balancing loop is where a change in any direction is counteracted by the resulting feedback. A reinforcing loop is where a change in any direction is exacerbated by the resulting feedback.
8 P2P VoIP Users Managed VoIP Use of VoIP Threat of Regulation to managed (Backbone, Facilitybased, over Broadband) VoIP Industry Collaboration for Pressure to Regulate B1 Regulation of "managed" VoIP Development of New CALEA % of managed VoIP CALEA Compliant Deployment of New Figure 1 Use of VoIP and pressure to regulate Incidentally, as the managed VoIP providers are required to comply with CALEA obligations, the new entrants in VoIP market find starting with unmanaged VoIP (in our classification P2P VoIP) more attractive. Reinforcing loop (R1 Incentive to offer unmanaged (P2P) VoIP) in Figure 2 shows the dynamics discussed in this paragraph. The attractiveness of unmanaged VoIP is due to the cost of development and deployment of CALEA compliant technology, which small players may like to avoid. As more providers offer the unmanaged VoIP, its usage increases. This reduces the percentage of total VoIP that is CALEA compliant, something that should concern the regulator (particularly, the LEAs).
9 Managed VoIP Use of VoIP Cost of CALEA Compliance P2P VoIP Providers Threat of Regulation to managed (Backbone, Facilitybased, over Broadband) VoIP Attractiveness of unmanaged (P2P) VoIP Industry Collaboration for R1 Incentive to offer "unmanaged" VoIP Development of New CALEA P2P VoIP Users Pressure to Regulate B1 Regulation of "managed" VoIP % of managed VoIP CALEA Compliant Deployment of New % of Total VoIP CALEA Compliant Figure 2 The incentive to offer unmanaged VoIP
10 Managed VoIP Use of VoIP Use of Internet for Crime Cost of CALEA Compliance Concern for Privacy P2P VoIP Providers Threat of Regulation to managed (Backbone, Facilitybased, over Broadband) VoIP Efficacy of R2 CALEA New challenges to tapping New Channel Security Technologies Attractiveness of unmanaged (P2P) VoIP R1 Development of New CALEA New challenges to New Content decryption Privacy Technologies Industry Collaboration for R3 Incentive to offer "unmanaged" VoIP P2P VoIP Users Pressure to Regulate B1 Regulation of "managed" VoIP % of managed VoIP CALEA Compliant Deployment of New Success of tapping Probability of Successful Wiretapping B2 Probability of Successful Decryption B3 Success of decrypting % of Total VoIP CALEA Compliant Figure 3 Regulatory compliance and the arms race with between criminals and the authority The percentage of VoIP that can be tapped will determine how inclined is the criminal to use the Internet. The lower the CALEA compliance, the higher is the use of the noncompliant technology for crime, and vice versa. Please follow along Figure 3 for the rest of this paragraph. As the use of the Internet for crime rises, there are heightened concerns for privacy. If we construe the security as the security of the channel, and the privacy as the privacy of the content, new ways to encrypt the channel increases the channel security, while new ways to encrypt or desensitize the content increases privacy of the content. Here, we can see the potential for an arms race between criminals and the law enforcement. The deployment CALEA compliant technologies increase the efficacy of CALEA solutions in two ways: by increasing the probability of successful wiretap (B2 Success of tapping) and increasing the probability of decrypting the content once tapped (B3 Success of decrypting). On the other hand, new ways to secure the channel (R2 New challenges to tapping) and the content (R3 New challenges to decryption) try to outpace the ability to tap and decrypt communications successfully.
11 Change in Average Cost Average Cost of CALEA Compliance Total Cost of CALEA Compliance Gap Desired CALEAcompliant Deployment P2P Attractiveness Pressure to Develope New noncalea New New noncalea CALEAcompliant Deployed noncalea Obsolete Adoption of noncalea Percent VoIP Not Under CALEA Jurisdiction Percent VoIP Under CALEA Jurisdiction Percent Voice Under CALEA Jurisdiction P2P VoIP MOU Managed VoIP MOU Subscribers Leaving Average P2P MOU P2P Users 2004 P2P Users Subscribers Joining Managed VoIP Users Conversion 2004 Managed VoIP Users Average MOU Potential P2P Users PSTN Users PSTN MOU Figure 4 CALEA a stylized computer model Figure 4 shows a stylized version of the computer simulation of the CALEA model. For description of the complete working model, please refer to (Vaishnav 2005). Each box is like a bathtub with an inflow and an outflow; for example, the rate of deploying New fills up the CALEAcompliant solutions deployed tub, while the rate of Obsolete drains it. The adoption of managed and P2P VoIP are modeled as the Bass Diffusion Model (Bass, Krishnan et al. 1994). The PSTN users convert to the managed VoIP users, while the potential P2P users convert to the P2P users. We assume that any user can be a managed VoIP and a P2P VoIP user simultaneously, substituting a fraction of their traffic from managed to P2P. If the P2P VoIP usage increases, the percentage VoIP under CALEA jurisdiction reduces. This leads to regulatory pressure to develop CALEA solutions. New solutions are developed and deployed until the network meets the desired level of CALEA compliance. On one hand, deploying CALEA compliant solutions adds to the cost of CALEA compliance, while on the other, out of concern for security and privacy, it leads to development of new ways to secure the channel or content that is not CALEA compliant. The adoption of noncalea compliant solutions leads to making some of the already deployed CALEA compliant solutions obsolete.
12 Model parameterization and validation Before we begin the analysis, let us discuss the parameterization and the basic validation of the model. 200 M Managed VoIP Diffusion 150 M 100 M 50 M Year Managed VoIP Users : Current PSTN Users : Current subscriber subscriber Figure 5 Managed VoIP Diffusion Figure 5 shows the conversion of PSTN users into managed VoIP. The model parameters are set to match the number of managed VoIP users = 27 million by 2009, as forecasted by the International Data Corp ((IDC) 2005). This is the most optimistic forecast available for the managed VoIP diffusion. For a detailed list of model parameters, please refer to Table 6 of (Vaishnav 2005). According to this model, the crossover point between PSTN and managed VoIP Service users is between year 2011 and 2012.
13 300 M P2P Diffusion 225 M 150 M 75 M Year P2P Users : Current subscriber Figure 6 P2P Diffusion Figure 6 shows diffusion of P2P users. Here, the parameters are set to match those of the managed VoIP part of the model. This assumption maybe arguable, but the reality is only worse! Because of Broadband proliferation and the availability of free application software, the P2P VoIP adoption, in reality, is faster than that of managed VoIP. So, in a way, our assumption is rather conservative. Comparing Figure 6 with Figure 5 shows that diffusion of P2P VoIP is quicker than that of managed VoIP. This is an artifact of the way the model is conceived. In our model, the adoption of P2P VoIP is accelerated by the rising cost of CALEA compliance. As one can see, both the adoptions follow an S shaped growth.
14 20 B Minutes of Use 15 B 10 B 5 B Year P2P VoIP MOU (Assumes 10% of P2P traffic is voice) Managed VoIP MOU : Current PSTN MOU : Current MOU/Month MOU/Month MOU/Month Figure 7 Minutes of Use Figure 7 shows the minutes of use (MOU) for PSTN, managed VoIP and P2P VoIP. P2P VoIP MOU is only a fraction of the total VoIP because, in our model the P2P VoIP fraction is not allowed exceed to 0.1 (10%) of the total, once again to be conservative.
15 100 CALEA Jurisdiction Year % Voice under CALEA ((Managed VoIP PSTN)/Total Voice) fraction % VoIP under CALEA (Managed VoIP/Total VoIP) fraction % VoIP not under CALEA (P2P VoIP/Total VoIP) fraction Figure 8 CALEA Jurisdiction Figure 8 shows curves related to CALEA jurisdiction. % Voice under CALEA includes the PSTN and the managed VoIP fraction of the total voice MOU. From the validation point of view, the % voice traffic that is excluded from CALEA is limited to 10%, which is the upper limit we have set for the P2P VoIP fraction.
16 Policy Analysis and Lessons Let us now turn to the policy lessons. There are two types of lessons drawn here. First, as shown in Figure 9, just the systems view of influences due to the recent CALEA intervention imparts some learning. Next, we augment this learning with some sensitivity analysis to demonstrate how difficult decisionmaking could be in such an environment. Managed VoIP Use of VoIP Use of Internet for Crime Prohibition on the use of certain encryption technologies Concern for Privacy P2P VoIP Providers Efficacy of R2 CALEA New challenges to tapping R1 Development of New CALEA P2P VoIP Users Attractiveness of Cost of CALEA unmanaged (P2P) Compliance VoIP Pressure to Regulate Threat of Regulation to managed (Backbone, Facilitybased, over Broadband) VoIP B1 Industry Collaboration for New Channel Security Technologies New challenges to New Content decryption Privacy Technologies R3 Incentive to offer "unmanaged" VoIP Regulation of "managed" VoIP % of managed VoIP CALEA Compliant Deployment of New Success of tapping Probability of Successful Wiretapping B2 Probability of Successful Decryption Pressure to Regulate P2P VoIP B3 Success of decrypting % of Total VoIP CALEA Compliant Figure 9 Policy levers and their impact Policy Lesson 1: Considering P2P a nonissue for CALEA is exactly what might make it an issue. In CALEA NPRM 13 and the subsequent order, the LEAs indicated and the FCC tentatively concluded that the P2P or the unmanaged VoIP should not be subject to CALEA. Currently, P2P VoIP may be exempt from CALEA as its share of total voice traffic is very small, it is technically harder to wiretap P2P traffic, and there is a tension 13 FCC s CALEA NPRM. ET Docket No , item 54, 55 and 57
17 between regulation and innovativeness. However, such an exemption expedites the need for regulating P2P VoIP under CALEA. Diffusion of P2P VoIP reduces the % voice communications under CALEA jurisdiction. To examine the impact, we run the simulation multiple times, each time picking the upper limit for P2P VoIP fraction randomly between 5 20%, we see how P2P VoIP impacts % voice communications under CALEA as shown in Figure 10. Figure 10(a) shows that when 20% of VoIP traffic is P2P, % voice under CALEA jurisdiction can be as low as 82%. In other words, 18% of voice traffic would be legally exempt from wiretapping. Figure 10(b) and (c) show how % VoIP (alone) under CALEA jurisdiction is impacted. As high as 70% of VoIP traffic may be outside of the CALEA jurisdiction at one point, given the diffusion rates assumed in the model. Finally, Figure 10(d) shows how P2P VoIP diffusion, and the resulting pressure to increase CALEA compliance may drive the cost of CALEA compliance higher. This discussion leads us to our second lesson. Policy Lesson 2: If P2P VoIP aspires to become a telephony substitute, it will invite the threat of regulation. P2P VoIP experience has shown that there are no clear business models in this space when it comes to the question of making money. The only way any P2P VoIP provider has ever made money is to provide PSTN interconnection. However, under current statutory environment, the language and definitions of CALEA permit regulation of a voice service that interconnects with PSTN. So, interconnection with PSTN or a substitution of PSTN traffic is a way to invite regulation. Additionally, if substantial amount of telephony traffic is substituted with P2P voice, that offers further justification for social regulation such as CALEA and 911. Under such circumstances, the innovative freedom of the P2P technology would be kept unaffected only if the technology providers find ways to remain financially viable without aspiring to be a telephony substitutes.
18 (a) Current 50% 75% 95% 100% Percent Voice Under CALEA Jurisdiction (b) Current 50% 75% 95% 100% Percent VoIP Under CALEA Jurisdiction 100 Year (c) Current 50% 75% 95% 100% Percent VoIP Not Under CALEA Jurisdiction 80 Year (d) Current 50% 75% 95% 100% Average Cost of CALEA Compliance 4 Year Year Figure 10 Sensitivity Analysis: Sensitivity of CALEA Jurisdiction and Compliance Cost to varying P2P and Managed VoIP Diffusion
19 Policy Lesson 3: Arms race between CALEAcompliant and noncompliant technologies can raise the cost of compliance substantially. As the carriers deploy CALEA compliant technologies, various factors can lead to the use of noncompliant technologies. First, CALEA compliance may lag the technological progress in security and privacy technologies. Second, increase in concern for privacy may lead to proprietary privacy solutions. Finally, hackers and Internetcriminals may try to outsmart CALEAcompliant technologies. This arms race can raise the cost of CALEA compliance. Figure 11 shows the sensitivity of CALEA compliance to the varying development and deployment rate of noncalea solutions. Here the develop rate and the adoption rate of the noncompliant technologies is varied uniformly between their normal rate and double the rate. Figure 11 shows that such a variance can raise the cost of CALEA compliance to as high as 4.5 times the normal cost.
20 Current 50% 75% 95% 100% "CALEAcompliant Deployed" Current 50% 75% 95% 100% Average Cost of CALEA Compliance 6 Year Year Figure 11 Sensitivity Analysis: Sensitivity of CALEA Deployment and Compliance Cost to varying Development and Deployment Rate of NonCALEA
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Maggie McCready Vice President Federal Regulatory Affairs Ex Parte 1300 I Street, NW, Suite 400 West Washington, DC 20005 Phone 202 515-2543 Fax 202 336-7922 firstname.lastname@example.org Ms. Marlene H.
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