Giovanni Maria Riccio is an IP Osgoode research affiliate, a professor of private comparative law at the University of Salerno, and a Partner at SR & Partners, Rome, Italy. [Our apologies, this by-line has been updated to refer to Professor Riccio’s current law firm affiliation.]
According to a recent post by a French journalist, ARCEP, the French authority on the regulation of electronic and postal communications, is considering whether Skype should be outlawed.
At first, the issue was that Skype had not complied with legislative provisions on number portability and on emergency calls. But, ultimately, Skype is causing legal concern because the conversations (vocal or chat) cannot be wiretapped by police and other public authorities.
The problem is not new. Recently, Raffaele Cantone, one of the most active anti-Mafia judges, has noted that Italian criminal organizations started using Skype many years ago, long before investigators were aware of the existence of VoIP systems. Cantone also noted that the system used by Skype is “practically invulnerable”.
Concerns about criminality are not solely a French affair.
On the other hand, it cannot be ignored that these internet facilities have played an important role in the current riots in northern Africa. Skype has been widely used to coordinate the protests and, in some instances, ISPs have been required to block access to Skype (for instance, in Libya). This clearly shows that media are neutral: in the French and Italian cases, it is a way to get around wiretapping, thus aiding illegal activities; in the latter case, it is an instrument of democracy.
This problem probably deserves a more complex analysis. However the elementary question is this: is Skype good or bad? Are we really sure that the means is the source of the evil and not the way in which it is used?
Internet is a mass medium and nothing else. It is not ontologically legal or illegal. It is not democracy, but a means to help the development of democracy. The problem of VoIP operations must be analyzed from different perspectives, considering different and probably not immediately apparent aspects.
Firstly, what is the significance, in France, of telephone companies lobbying on the demonization of VoIP systems? It does not mean, obviously, that the issue of Skype and, in general, VoIP operators can be solved by just a legal requirement; but the advantages to telephone operators from the banishment of VoIP systems are clear. We are probably facing a clash of business models; a clash between the old economy (represented by telephone operators) and the new economy (represented by VoIP operators).
The second aspect that should be taken into account is the legal foundation of VoIP companies. Skype has its legal seat in Luxembourg. This means that the taxes it pays on incomes are not paid to the Italian or French governments, but to the Luxembourgish one.
Remember that, in 2010, the French Parliament passed an act requiring on-line gambling operators to have a .fr domain name and to be established in France. In theory, this act was aimed at controlling the gambling market and preventing the external interference of criminal organizations. Commentators argued that the real goals were to forbid transnational betting and to oblige the companies to pay their taxes in France.
In the final analysis, the question is this: are we really sure that issue of national security, i.e. the inability to wiretap Skype communications, is the main problem?