Skype put on hold until Belgian court makes call on internet telephony

Microsoft-owned company says its calls not the same as those made over traditional infrastructure

Belgian authorities have taken Skype to court because it refused to allow two suspects’ Skype calls to be tapped. Photograph: Peter Byrne/PA Wire

Belgian authorities have taken Skype to court because it refused to allow two suspects’ Skype calls to be tapped. Photograph: Peter Byrne/PA Wire

 

When is a phone call not a phone call?

Microsoft-owned Skype is arguing that while it offers voice communications over the internet to customers it is not a telephony company and a Skype call is not the same as a call made by landline or mobile over traditional telephony infrastructure.

The distinction is critical.

If Skype were to be classified as a telecoms operator, it would then be subject to a plethora of national and international regulations, like its cousins the telcos.

It also would fall under existing laws that mandate telephony companies to provide law enforcement with access to their networks for surveillance.

When it come to regulation and law-enforcement access, Skype, like web- based email services, exists in a grey area.

The old European Union data- retention directive – thrown out by the European Court of Justice (ECJ) last year after a challenge by Digital Rights Ireland, but still the basis for many EU state data retention laws, including Ireland’s – covered webmail services to some degree. But in practice, due to the wording of the directive, and added complexities in how internet email services are used, retention and access were never as straightforward as with old-style email delivered to a person’s desktop inbox through an email software program.

Likewise, for net telephony services, a range of identifying metadata – information about the call but not its content – must be retained. The calls were not, and still are not, recognised as straightforward telephony calls but come a separate classification of service. One of the questions specifically raised by the ECJ justices during the data-retention directive case related to such ambiguities. They queried whether the directive included or adequately defined a requirement to retain data related to some internet services, or for internet telephony.

Neither fish nor fowl

An important case waiting to be heard in Belgium brings together many of these issues.

Belgian authorities have taken Skype to court because it refused to allow two suspects’ Skype calls to be tapped. Skype says it isn’t subject to wiretap legislation. A court spokesman has said the case hinges on whether Skype is a “telecoms operator”.

An added, if unspoken, consideration is likely to be the fact that Skype encrypts calls between its users, making them impenetrable even to surreptitious spying of the sort revealed by whistleblower Edward Snowden.

Skype has always argued that the privacy of its users and calls are paramount. It is very unlikely to allow for wiretapped calls unless expressly required to by law.

A decision is due on June 10th.

I would not be surprised to see the Belgian court ask the ECJ to answer whether Skype is subject to wiretapping warrants. Or to see Belgium, and other states, try to address national legislation to bring internet telephony within wiretapping legislation.

On the other hand, European states may decide to wait for new EU-level telecommunications legislation to be drafted, promised as early as next year. This intent forms part of the recently revealed, sweeping plans for a European “digital single market”.

Part of such a plan would be to “create a level playing field” for telephony providers of all types, the EU said. A press release issued on May 6th said “the [European] Commission will look into the growing importance of online players that provide similar or equivalent services to traditional communication services.”

A leaked document obtained by Reuters in April indicated the likely intentions more clearly: Europe intends to answer telco complaints and reclassify internet telephony as a regulated service alongside older, copper-wire service providers.

Over-the-top services

However, while the commission said it is aiming to have proposals ready by 2016, it is difficult to see how the EU can move so quickly on the panoply of complex and politically prickly issues covered by its digital single market strategy, which ranges from consumer rights and telephony to online media service access and parcel delivery costs for internet orders.

Witness what has happened with the long-promised new Data Protection Regulation, which began life years back, during the last Irish EU presidency, and still is not fully drafted.

With that snail-like prospect, perhaps EU states will be more likely to take some regulatory matters into their own hands in the short term.

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