For purposes of national security, the Bush administration delegated authority to the National Security Administration (“NSA”) to conduct warrantless surveillance of Americans; and such surveillance defies tradition. At the same time, emerging communications technology, like Voice over Internet Protocol (“VoIP”), complicates the already controversial issue by generating uncertainty about how courts will analyze warrantless surveillance of such forums. The problem lies in outdated communications and surveillance regulations, which effectively address older communications forums, like the telephone, but encounter stifling ambiguity vis-à-vis VoIP and other new forums. VoIP is a relatively new technology, but it encompasses the large and ever-growing use of voice conversations over the Internet. The U.S. must govern this area with regulations that accommodate the rapid development of this and other new communications technologies. In the hands of wrongdoers, VoIP has the power to wield extraordinary harm, which supports warrantless surveillance in this domain. Notwithstanding the obvious national security concern, however, such intrusive governmental action jeopardizes the privacy of American citizens. Therefore, in modifying its policies, the Legislature must balance national security interests and citizens’ privacy interests, while ensuring conformity to acceptable legal standards. A failure to modify existing regulations to adapt and grow with new technologies places the interests of both this nation and its people at stake.
Eric Koester, VoIP Goes the Bad Guy: Understanding the Legal Impact of the Use of Voice Over IP Communications in Cases of NSA Warrantless Eavesdropping, 24 J. Marshall J. Computer & Info. L. 227 (2006)