The District of Columbia Circuit Court of Appeals ruled 2-1 Friday in favor of upholding a Federal Communications Commission policy that treats interconnected VoIP providers and broadband Internet service providers the same as traditional POTS (Plain Old Telephone Service) providers with regards to government wiretaps.

Traditionally, the Internet has been considered exempt from the Communications Assistance for Law Enforcement Act, which contains language specifically excluding “information services” from its provisions. In 2004, the FCC tried to change that by issuing a Notice of Proposed Rulemaking that claimed that interconnected VoIP providers, those which allow people to make calls to and receive calls from ordinary telephones via the Internet, are offering a service which acts as a replacement for a traditional phone line, so they should be subject to the wiretap provisions of CALEA.

It doesn’t take a lawyer to see that CALEA specifically excludes sound information sent by an information service.

Judge Harry Edwards was the lone dissenting voice in the decision. “The commission apparently forgot to read the words of the statute,” he wrote. “Calea does not give the FCC unlimited authority to regulate every telecommunications service that might conceivably be used to assist law enforcement.”

During the presentation of arguments in May, Judge Edwards called the FCC’s argument “gobbledygook,” adding “it’s utter nonsense.”

The most disappointing thing about this ruling is that one of the two judges who upheld the FCC’s rule change was Judge Janice Rogers Brown, a judge who has a reputation for her radically libertarian views. Et tu, Janice?

A solution for privacy-minded individuals is to encrypt your VoIP communications.