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

The European telephony industry too argues that, in the eyes of the law, internet telephony is neither fish nor fowl. From the perspective of the telco industry, the telcos have to operate in one of the most highly regulated industries in Europe, whereas internet telephony companies such as Skype steer right around most such regulation. Telcos are also taxed differently.

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

The documents noted that so-called “over-the-top” services such as Skype use internet infrastructure to provide call services “without being subject to the same regulatory regime” as telephony operators. “It is necessary to design a fair and future-proof regulatory environment for all services,” the leaked document said.

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.