Voice Over Internet Protocol and the Wiretap Act: Is Your Conversation Protected?

JurisdictionUnited States,Federal
CitationVol. 29 No. 01
Publication year2005


Voice over Internet Protocol and the Wiretap Act: Is Your Conversation Protected?

Daniel B. Garrie, Matthew J. Armstrong, and Donald P. Harris(fn*)

10101101: Is this sequence of digits voice or data? To a computer, voice is a sequence of digits and data is a sequence of digits. The law has defined 10101101 to be data, and 10101001 to be voice communications. Courts have constructed a distinction between data, 10101101, and voice, 10101001. However, that distinction is blurred when voice and data are simultaneously transmitted through the same medium. The courts forbid third parties to tap or monitor voice communications, yet permit data packets to be tracked, stored, and sold by third parties with the implied consent of either party engaged in the transaction. Prior to the convergence of voice and data into a single transmission medium, courts were able to enforce the distinction between voice and data communications by constructing the clickstream data exemption to the Wiretap Act. With the onset of Voice over Internet Protocol (VoIP) and comparable technologies, the privacy rights assigned to 10101101 (data) or 10101001 (voice) have been blended such that it is unclear whether voice communications using VoIP are protected.

This Article examines VoIP communications in the modern digital arena. More specifically, the Article suggests a new legal framework for courts to analyze VoIP claims brought under the Wiretap Act. Part I of this Article provides a comprehensive overview of VoIP privacy rights and legal treatment. Part II sets out a background primer for readers unfamiliar with Internet technology, including VoIP and clickstream data. Part III discusses relevant privacy case law, and Part IV describes how that case law has been applied to electronic communications. Part V provides a statutory analysis of the different privacy levels that are, and should be, afforded to different types of electronic communications. Part VI identifies the specific problem facing the legislature and courts regarding the treatment of VoIP. To solve this problem, Part VII proposes a modified framework advocating legislative action to re-write the Wiretap Act by creating an explicit clickstream data exception with a corresponding decrease in the mens rea element from intent(fn1) to recklessness for persons using clickstream data. By adopting this approach, the legislature would enable companies to legitimately tap clickstream data with or without an end-user's consent, though companies doing so would be required to design systems that monitor only clickstream data and do not tap protected oral telephone and electronic communications. In this way, Congress can protect VoIP privacy expectations while maintaining the vitality of the Internet economy.

I. Overview of Voice over Internet Protocol Privacy Rights

This section examines the judiciary's treatment of clickstream data when applying the Wiretap Act's consent exception. By broadly construing the consent exception in data mining(fn2) cases to include implied consent where no explicit contract provision limits the scope of interceptions, courts have essentially exempted clickstream data from protection under the Wiretap Act.(fn3) An examination of congressional intent supports the clickstream data exception, but neither Congress nor the judiciary has affirmatively recognized this.(fn4) The judiciary has officially acknowledged the difference in treatment between clickstream data and other electronic communications,(fn5) but unless courts clarify this ambiguity, there is a risk that (1) the clickstream data exception could be eliminated, making a large amount of Internet communications illegal,(fn6)or (2) the courts could read the exception too broadly, exempting electronic and VoIP telephone communications from protection under the Wiretap Act.(fn7)

To rectify this judicially created privacy dichotomy, Congress should amend the Wiretap Act to codify the judicially recognized clickstream data exception(fn8) and to lower the mens rea element from intent(fn9) to recklessness for companies that knowingly risk making unauthorized third party interceptions of VoIP(fn10) communications while engaging in judicially protected data mining of clickstream data. The first of these changes would legalize the interception of clickstream data under the Wiretap Act with the implied consent of the computer user or the Web host. At the same time, interceptors of clickstream data would be forced to operate with due care to prevent unauthorized interceptions of other telephone and electronic communications transmitted through the same medium.(fn11)

Justice Brandeis was correct in 1928 when he anticipated that technological advancement would enable the Government to employ surveillance tools extending far beyond wiretapping.(fn12) In his dissenting opinion in Olmstead v. United States, Justice Brandeis asserted that Fourth Amendment protections must be interpreted broadly to safeguard against new abuses that were not previously envisioned.(fn13) Thus, Justice Brandeis sought to protect the individual's "right to be let alone" without regard to the different technologies that might be employed by the government to compromise that right.(fn14) Justice Brandeis's focus on underlying privacy interests presents a more compelling perspective than the premise of Title III of the Omnibus Crime Control and Safe Streets Act of 1968(fn15) (hereinafter "Wiretap Act") as currently applied by the courts.(fn16)

The courts forbid third parties to tap or monitor oral telephone communications,(fn17) but they routinely permit data packets(fn18) to be tracked, stored, and sold by third parties with the implied(fn19) or explicit(fn20) consent of either party engaged in the transmission. In the digital age, however, the law-made distinction between voice and data has become muddled. With the convergence of oral and data communications into a single transmission medium, the courts are unable to distinguish between oral telephone and electronic communications.(fn21) The use of VoIP and similar technologies has made this legal distinction impossible to uphold because oral telephone and electronic data communications now travel over the same wires simultaneously, encapsulated in digital data packets.(fn22)

VoIP(fn23) is a technology for transmitting ordinary telephone calls over the Internet.(fn24) In other words, VoIP can send oral, fax and other information over the Internet, rather than through the Public Switched Telephone Network (PSTN) or regular telephone network.(fn25) For example, if you are connected to the Internet, you can simultaneously exchange data, audio or video with anyone while using VoIP, which is impossible with a regular telephone line.(fn26) This convergence of separate mediums shifts the legal landscape of digital communications and requires further examination. This examination must proceed in light of the disparity in judicial treatment between oral telephone and electronic data communications, with oral telephone communications generally receiving a higher level of privacy protection.(fn27)

VoIP is no longer a fledgling technology;(fn28) it is rapidly becoming a mainstream communication product.(fn29) Both corporate and individual consumers are using VoIP to reduce their phone bills by capitalizing on their existing connections to Internet broadband infrastructure.(fn30) For example, Nissan North America, based in California, is implementing VoIP globally,(fn31) though dollar cost savings are not the only factor driving this decision.(fn32) Nissan and a multitude of other companies are utilizing VoIP to facilitate global communication between their offices because VoIP offers improved functionality over traditional telephone systems.(fn33) While large corporations that purchase VoIP systems to improve functionality(fn34) and decrease costs(fn35) receive the primary benefit from these services, individual consumers also benefit from Internet-based VoIP services that offer less expensive long distance and local phone service via their own home broadband Internet connections.(fn36)

VoIP cost savings arise(fn37) from the ability to transmit oral and data communications simultaneously over the same medium,(fn38) thereby eliminating the need for multiple phone and data lines in a home(fn39) or business. VoIP technology threatens to break the oral communication monopolies held by the regional Bell companies(fn40) because it eliminates the need for consumers to pay non-competitive fees for the use of a telephone line to carry oral telephone conversations.(fn41) VoIP transmits oral communications via Internet Protocol (IP)(fn42) instead of the PSTN. Unlike the PSTN,(fn43) VoIP is unlikely to face legal issues of monopolization and significant government regulation because there are multiple technologies such as satellite, wireless, cable, DSL, and IP over power line technology competing to be the communication service provider.(fn44)

While the market's invisible hand has already fostered technical innovations making some VoIP services superior to those offered by the traditional PSTN,(fn45) the legislature and the courts have yet to resolve two primary legal issues that are likely to hinder the United States' adoption of VoIP as the new oral communication standard. First, VoIP will have to contend with the...

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