New Rules On Internet Wiretapping Challenged

By Arshad Mohammed
Washington Post Staff Writer
Wednesday, October 26, 2005

New federal wiretapping rules that would make it easier for law enforcement to monitor e-mails and Internet-based phone calls were challenged by privacy, high-tech and telecommunications groups in federal court yesterday.

The groups argued that the rules would force broadband Internet service providers, including universities and libraries, to pay for redesigning their networks to make them more accessible to court-ordered wiretaps.

The groups also said the Federal Communications Commission rules, scheduled to take effect in May 2007, could erode civil liberties and stifle Internet innovation by imposing technological demands on developers.

"It's simply a very bad idea for privacy and for free speech for the government to design any technology, much less the Internet, to be surveillance-friendly," said Lee Tien, a senior staff lawyer with the Electronic Frontier Foundation, a nonprofit privacy rights group.

The government was trying to "build tentacles of control throughout telecommunications networks," Tien said.

The FCC rules make broadband Internet providers and voice over Internet protocol companies subject to a 1994 federal law that requires telecom companies to assist law enforcement agencies in carrying out court-ordered wiretaps. The Communications Assistance for Law Enforcement Act requires telecom carriers to design their networks so they can quickly intercept communications and deliver them to the government when presented with a court order.

In adopting the rules, the FCC said it wanted to ensure the government could carry out wiretaps as more communications move from the traditional telephone system to the Internet.

"It is clearly not in the public interest to allow terrorists and criminals to avoid lawful surveillance by law enforcement agencies," the commission wrote in its order.

Opponents argued the law was tailored for a simpler, earlier era of traditional telephone service and could cripple the evolution of the Internet by forcing engineers to design products so they can be easily monitored by the government.

The 1994 law "will have a devastating impact on the whole model of technical innovation on the Internet," said John Morris, staff counsel for the Center for Democracy and Technology in Washington, which filed an appeal of the rules with the U.S. Court of Appeals for the District of Columbia Circuit yesterday.

"The Internet evolves through many tens of thousands, or hundreds of thousands, of innovators coming up with brand new ideas," he said. "That is exactly what will be squelched."

Morris said his group did not dispute the idea that the government should be able to carry out court-ordered wiretaps, but rather argued that the 1994 law was a blunt instrument ill-suited for the Internet age.

He said the matter should be referred to Congress, which "can tailor the obligations to the Internet context as opposed to importing the very clumsy [telephone system] obligations and imposing them on the Internet."

The American Council on Education, a higher-education trade group, separately asked the court Monday to review the rules.

"We fear that doing what they want will require every router and every switch in an IT system to be replaced," said Terry W. Hartle, the council's senior vice president. He estimated that the upgrades could cost colleges and universities $6 billion to $7 billion.

"Our quarrel with them is fairly specific," Hartle said. "We are concerned about the cost, and the complexity, and the schedule on which they want this accomplished."

Spokesmen for the FCC and the Justice Department declined comment on the court challenges.

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