WASHINGTON, D.C. – A recent demand from the U.S. Department of Justice (DOJ) to extend federal wiretapping requirements to some internet services is likely to result in court battles, legal experts say.Privacy and communications freedom advocacy groups such as The Center for Democracy and Technology and the Electronic Frontier Foundation are considering legal challenges to an August 5th Federal Communications Commission (FCC) decision to require providers of certain interconnected Voice over Internet Protocol (VoIP) and broadband services to accommodate law enforcement wiretaps in their product designs and applications.
Some communications industry and legal experts assert that the FCC decision, which was initiated starting over a year ago by the DOJ, the Drug Enforcement Administration (DEA) and the Federal Bureau of Investigations (FBI), is based on a fundamentally flawed interpretation of 1994’s Communications Assistance for Law Enforcement Act (CALEA).
These experts caution that the FCC interpretation could be used to require surveillance-friendly cellphone and internet use on airlines, and even potentially wiretap-ready entertainment devices like Xbox and Playstation gaming consoles.
According to legal scholars, the question is not whether law enforcement has the right to conduct surveillance on communications delivered via VoIP or broadband – experts generally agree that the government has this right – the issue is whether law enforcement agencies should have the right to influence designs and protocols developed by private industry.
“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,” said Susan Crawford of Yeshiva University’s Benjamin N. Cardozo School of Law. “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.”
Other experts have raised privacy concerns related to the FCC’s demand, pointing out that communications could become less secure by way of any “back doors” left in place to facilitate law enforcement wiretaps.
“If you build it, ‘they’ will come; hackers, criminals, etc.,” said Albert Gidari of the Seattle law firm Perkins Coie. “The ‘they’ is a very, very long list.”
The split between the FCC’s view and that of opposing legal scholars revolves around differing interpretations of the distinction made between “telecommunications services” and “information services” under CALEA.
Christopher Calabrese of the American Civil Liberties Union (ACLU) said that although the ACLU has not yet discussed whether they will challenge the FCC’s Aug. 5th decision, he agrees with other legal experts that the FCC’s position is weak.
“CALEA made a very clear distinction between telecommunication services and information services,” Calabrese said. “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.”
The FCC, however, contends 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 DOJ argues that CALEA was intended to enable law enforcement to keep pace with rapid changes in communications technology. In its FCC filing, the DOJ said that without the FCC’s recent decision, 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,” adding that Congress had given the FCC “significant authority” to implement CALEA.
Some have questioned the need to extend the CALEA requirements in order to make designs surveillance-ready in advance, when telecommunications and information service providers are already cooperating fully with law enforcement agencies when presented with wiretap orders.
“There’s no evidence I’m aware of that law enforcement is having trouble enforcing its warrants,” Crawford said. “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.”
