Expansion of wiretap law is allowed

Court rules FCC can extend reach to Web-based calls

June 10, 2006|By DOUGLAS BIRCH | DOUGLAS BIRCH,SUN REPORTER

A federal appeals court has backed a Bush administration effort to make it easier to wiretap Internet-based phone calls, a ruling that supporters say will seal off a haven for criminals and terrorists and that critics fear could erode privacy rights.

In its 2-1 decision yesterday, a three-judge panel of the Washington appeals court ruled that the Federal Communications Commission had the right to expand the reach of a 12-year-old telephone wiretap law into cyberspace.

The court ruled that computers handling strictly internal communications in private networks - such as those run by corporations, colleges and universities - would not have to install the equipment throughout their systems.

FOR THE RECORD - In an article Saturday about a federal court decision that would require Internet providers to install eavesdropping equipment to make it easier to conduct court-ordered wiretaps on Internet phone service, the Association of American Universities was misidentified.
The Sun regrets the errors.
A June 10 article on a federal court decision extending the reach of
federal wiretap law misidentified the source of a $7 billion cost estimate for equipping computer systems to comply with wiretap orders. The American Council on Education was the source of the estimate.
The Sun regrets the errors.

But Matthew Brill, an attorney for those challenging the FCC decision, said the ruling appears to require private networks to install these technological "back doors" at the portals where private systems connect with the public Internet.

It will also affect new commercial outlets that sell phone service using Voice over Internet Protocol directly to consumers, replacing traditional land lines. These include Internet-based startups such as Vonage as well as full-scale providers such as Comcast Cable, which recently began offering its customers Internet-based phone service.

The Communications Assistance for Law Enforcement Act of 1994, called CALEA, was originally written to ensure that police could eavesdrop on wireless phone calls and specifically exempted "information services" from the requirement.

In its majority opinion, the court ruled that the Internet has become a hybrid system for carrying voice and data communication, and therefore falls at least partly under FCC jurisdiction.

One judge dissented. Senior Circuit Judge Harry T. Edwards, appointed by President Jimmy Carter, wrote that the broadband Internet was unequivocally an information service and that the FCC "apparently forgot to read the words of the statute."

The humble court-ordered wiretap may seem like a quaint investigative tool in an age when National Security Agency computers filter torrents of phone calls and Internet data for tidbits of intelligence.

But law enforcement officials say wiretaps are a critical weapon in their crime-fighting arsenal. And they say they've watched their ability to intercept phone calls erode with the rise of the Internet.

So at the urging of the FBI, police and prosecutors, the FCC in August 2004 ordered all public U.S. Internet service providers to install advanced wiretapping equipment and software in their networks. The FCC's ruling also requires providers to make sure any equipment they install in the future is wiretap-friendly. The deadline for compliance is May.

Thousands of colleges and universities run private systems that connect to the public Internet. Some private Internet phone service companies and several civil liberties groups filed suit to block the ruling.

At first, universities feared they might have to open their internal networks to eavesdropping technology. The American Association of Universities said that if its members were forced to install CALEA technology in all their networked computers, the order could cost $7 billion dollars.

But the government said in recent weeks that it would not seek such sweeping compliance, and the court appeared to rule that it did not have the right to do so.

Rights advocates said the FCC's decision would - without legislative authorization - restrict the constitutional right to privacy. And they charged that building backdoors to the Internet would make systems more vulnerable to hacking and unauthorized eavesdropping.

In its reaction to the ruling, the FCC said its chief concern was accommodating law enforcement. It did not mention privacy.

"Enabling law enforcement to ensure our safety and security is of paramount importance," FCC Chairman Kevin J. Martin said in a statement.

In a Web site dealing with CALEA, the FBI said its extension was needed to repair what it called a gaping hole in the wiretap law.

"Law enforcement believes expedited treatment is warranted in this case based on the fact that terrorists, criminals and/or spies are already exploiting the networks of broadband communications ... to evade lawful electronic surveillance," the FBI wrote.

Prosecutors argue that they are engaged in a kind of technological arms race with lawbreakers. "Criminals tend to be early adopters of technology," Rod J. Rosenstein, the U.S. attorney for Maryland, said in an interview this week. "So it's really important for us to be on the cutting edge of technology."

The world of wiretaps has changed significantly since the days when investigators snapped alligator clips on copper wires.

An April report by the director of the administrative office of U.S. federal courts reported that 91 percent of 1,773 court-sanctioned wiretaps the previous year targeted wireless phones, pagers and other portable devices rather than traditional phones.

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