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WASHINGTON � The federal courts may soon face the first round in a battle over the U.S. Department of Justice’s demand that federal wiretapping requirements be extended to certain Internet services for the first time. The Center for Democracy & Technology, the Electronic Frontier Foundation and others said last week that they are considering legal challenges to an Aug. 5 decision by the Federal Communications Commission (FCC) to require providers of certain broadband and interconnected Voice over Internet Protocol (VoIP) services to accommodate law enforcement wiretaps in their designs and applications. Those groups and some legal scholars said that the FCC decision � sought more than a year ago by the Justice Department, the Federal Bureau of Investigation and the Drug Enforcement Administration � is based on a seriously flawed interpretation of the 1994 Communications Assistance for Law Enforcement Act (CALEA). The FCC interpretation, they warned, could be used to require surveillance-ready cell phone and Internet use on airlines � now being sought in a Justice Department petition pending at the FCC � and even, some day, “tappable” Xbox game consoles. “It’s important to emphasize here that no one questions law enforcement’s right to surveil the Internet,” said cyberlaw scholar Susan Crawford of Yeshiva University’s Benjamin N. Cardozo School of Law. “That’s not the issue presented here. “The problem here is whether law enforcement should have the right to participate in the design of applications and devices in advance so that they are easily tappable,” she said. “The tremendous economic growth that has accompanied the Internet’s rise would not have happened if everything had been forced to get the approval of a government agency. That’s a change that has tremendous implications for innovation.” And implications for privacy, others added, because communications will become less secure. If innovators and designers are required to build “windows” or “back doors” into applications and devices so that law enforcement can “look” into the communications, law enforcement will not be the only party trying to look. “If you build it, they will come � hackers, criminals, etc.,” said cyberlaw practitioner Albert Gidari of Seattle’s Perkins Coie. “The ‘they’ is a very, very long list.” At the FCC’s Aug. 5 meeting, FCC Chairman Kevin Martin noted the exponential growth of interconnected VoIP services and facilities-based broadband services in recent years. “Given this, it is critical to our nation’s security that VoIP and broadband Internet access providers have CALEA obligations,” he said. VoIP, also known as IP telephony and Internet telephony, is the routing of voice conversations over the Internet or any other Internet Protocol network. Broadband-access subscribers have high-speed, or large bandwidth, access to the public Internet through any one of a number of different methods, such as cable modem or DSL. Up until 1968, there were few specific rules governing surveillance of electronic communications, noted Mark Rasch, a former head of the Justice Department’s computer crime unit, and now senior vice president and chief security counsel at Solutionary Inc., an Omaha, Neb.-based security company that protects the networks and electronic assets of companies and organizations worldwide. In 1968, Congress enacted the Omnibus Crime Control and Safe Streets Act, Title III of which set rules for intercepting telephone calls, he said. In 1970, Congress, concerned that the FBI lacked the technical ability to install and monitor wiretaps, mandated that a court could order a phone company to give law enforcement “information, facilities and technical assistance” needed to accomplish the interception. And law enforcement would have to compensate the phone company for reasonable expenses incurred in providing that help. In 1994, Congress, at the request of law enforcement, expanded the law to require all covered telecommunications providers to design their systems to be surveillance-ready in the event of a court-ordered wiretap. As the Justice Department said at the time, “CALEA for the first time required telecommunications carriers to modify the design of their equipment, facilities and services to ensure that lawfully authorized electronic surveillance could actually be performed.” But did Congress intend CALEA to apply to information services, such as broadband access to the Internet, as well as telecommunications services? James Dempsey, executive director of the Center for Democracy & Technology, said absolutely not, and that is why the FCC’s Aug. 5 decision is on shaky legal ground. The FCC had no jurisdiction to act, he said. The American Civil Liberties Union, which had filed comments with the FCC opposing the Justice Department’s petition to extend CALEA, has not had discussions about a legal challenge to the Aug. 5 decision, said Christopher Calabrese of the ACLU’s Technology and Liberty Project. But he agreed that the FCC’s legal position is weak. “CALEA made a very clear distinction between telecommunication services and information services,” said Calabrese. “It’s very clear Congress envisioned information services to be the Internet. This was 1994 and their comprehension of what the Internet would become was not very clear but they were very prescient in knowing it would require different rules.” Congress, he added, exempted information services from the definition of telecommunications providers in the act and exempted them again in another statutory provision. He and Dempsey said that exemption was part of the compromise that enabled CALEA to be enacted. Former Justice Department official Rasch agreed, saying, “On its face, CALEA does not apply. You have to argue by analogy.” And that’s exactly what the FCC did. The FCC said the definition of “telecommunications carrier” in CALEA is broader than the definition of that term in the Communications Act. CALEA has a provision that authorizes the FCC to deem an entity a telecommunications carrier if the commission “finds that such service is a replacement for a substantial portion of the local telephone exchange.” The FCC found that broadband and VoIP services essentially replace local telephone exchanges and are therefore covered by CALEA � a position advanced by the Justice Department. In 1994, one of the uses of regular phone services was to dial up the Internet, said the ACLU’s Calabrese. “Now a substantial number of people have replaced that with broadband access, therefore, according to the FCC, broadband access is a replacement for a substantial portion of the local telephone exchange.” But the Internet and VoIP are demonstrably different from local phone service, he said. “With phone service, the technology doesn’t change that fast; the companies are fairly rigid. VoIP and Internet communications providers are all over the place. They’re big and small; people are giving away the service. It’s a completely different business model.” At the same time, the Justice Department wants airlines to build similar back doors into the phone and data networks on airplanes, said Kurt Opsahl, a staff attorney with the Electronic Frontier Foundation. The FCC’s new proposal to expand CALEA to airline broadband illustrates the fallacy of law enforcement’s rationale for its CALEA request, he said. The Justice Department takes the position that broadband has “substantially replaced” the local telephone exchange, he explained, but this claim is reduced to the “point of absurdity” aboard an airplane and opens the door for CALEA to cover just about anything. The Justice Department argued that CALEA was intended to enable law enforcement to keep up with the rapidly changing technology. Without the FCC’s recent decision, it said in its FCC filing, CALEA would no longer be viable “in the face of the monumental shift of the telecommunications industry from circuit-switched to IP-based broadband technologies.” Congress, it added, gave the FCC “significant authority” to implement CALEA. But some question the need to extend CALEA requirements to make designs and applications surveillance-ready in advance when telecommunications and information services providers readily cooperate with law enforcement when presented with a wiretap order. “There’s no evidence I’m aware of that law enforcement is having trouble enforcing its warrants,” said Cardozo’s Crawford. “People are quite cooperative. There are better ways to get data to law enforcement than to give them the power to approve new applications, and we have time to work on those better ways.” From law enforcement’s perspective, it’s a lot less work to have the telecommunications provider do all the wiretapping and just bundle it into a neat package and hand it to law enforcement, said the ACLU’s Calabrese. “It also entails enormous cost-shifting � they don’t bear the cost in manpower and technical expertise in doing the wiretap,” Calabrese said. “In a very troubling way, it could give the FBI a sort of check on the expansion of communications technology in the U.S. if they can pre-vet and say you have to be CALEA-compliant and we will tell you what CALEA-compliant is. They’re going to dispute this but [FCC] filings indicate they think they should be able to indicate whether somebody is CALEA-compliant, and that would be the subject of a suit if there is one,” he said. There are a number of collateral consequences to the FCC’s order, said Perkins Coie’s Gidari, counsel to education, library and other associations that opposed the FCC’s decision. “I don’t think the commission had a clue that what they were saying affected other facilities-based providers,” he said. “A lot of companies and organizations make broadband available to their work force, students, faculties, researchers and others. That’s why Congress holds hearings, to determine impact. The commission put out an order only carriers would pay attention to,” Gidari said. “The notion a librarian would have to do a wiretap and is subject to felony penalties if she discloses it, is amazing,” he said. “That’s what CALEA requires � you have to have a security office, security procedures. In truth, that won’t happen because the library will be closed because it has no budget for this. That’s why this issue is important.” In its Aug. 5 decision, the FCC said it will seek more information about whether certain categories of facilities-based broadband providers � such as educational and research institutions, and small and rural providers � should be exempt from CALEA. If law enforcement does have problems with Internet surveillance, the proper forum to address them is Congress, not the FCC, said Crawford, Rasch and others. In a statement on Aug. 5, Commissioner Kathleen Abernathy made a plea for congressional action to clarify CALEA’s reach. While calling the FCC’s interpretation “reasonable,” she added, “I have stated my concern that an approach like the one we adopt today is not without legal risk.” The FCC is legislating, not interpreting, said Cardozo’s Crawford. Gidari agreed, adding, “The principle that Congress, not the FCC, should make law is important enough to go to court on. And if we do, we will win.” Marcia Coyle is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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