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 modem digital arena. More specifically, the Article suggests a new legal framework for courts to analyze VoIP claims brought under the Wiretap Act.To solve this problem, this Article 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' 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.
Daniel B. Garrie, Matthew J. Armstrong, and Donald P. Harris, Voice over Internet Protocol and the Wiretap Act: Is Your Conversation Protected?, 29 SEATTLE U. L. REV. 97 (2005).