Byline: Douglas Birch
Jun. 10--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.
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.
Meanwhile, a March report on CALEA by the inspector general of the Department of Justice, referred to a "widely held belief that the Internet will swallow up the conventional telephone network, essentially replacing traditional telephone services in the near future."
A survey, the report added, found that about 42 percent of law enforcement officers said criminals were using the Internet to elude surveillance.
Experts say CALEA's extension is not directly related to the USA Patriot Act's expansion of the use of administrative "national security letters" in lieu of subpoenas or to other Bush administration efforts to eavesdrop on or collect information about Americans outside judicial review.
The FBI has emphasized that CALEA is intended only to extend the reach of court-ordered wiretaps -- with the unspoken implication that it will not be used as part of the government's secret eavesdropping on Americans suspected of having contact with terrorists, revealed by The New York Times in December.
But some experts say CALEA's extension is part of a broader effort by the federal government to make Americans' private communications more accessible to police and security agencies.
"CALEA is part of what seems to be a transition towards what might be called the surveillance society, where government has increasing access to communications records and communications themselves," said Steven Aftergood of the Federation of American Scientists. "And it is proceeding at a rapid pace, and perhaps more rapidly than most of us bargained for."
In traditional telephone service, voices are sent in a continuous signal from one telephone set to another. Wiretaps of these systems are relatively simple. Monitoring and recording equipment are still connected to the wires carrying the signal, although often the signals are forwarded over phone lines to FBI offices or police headquarters.
To transmit calls over the Internet, voice signals are digitized and chopped up into small packets of digital information.
These packets are supplied with addresses, split up, routed through Internet hubs around the country or the world and reassembled at the other end of the conversation. Locating, intercepting and reconstructing these signals can be a challenge.
"These messages are like cars driving down the highway," said Mark Luker, an expert on CALEA for Educause, a Washington lobbying group representing college and university Internet networks. "If you want to catch a specific car based on its license plate, you have to be there at the right time and on the right road. It's hard. If the car takes a detour, you're going to miss it."
Law enforcement agencies can monitor Internet-based telephone calls -- at least in theory. But Anthony M. Rutkowski, president of the Global Lawful Intercept Forum, a trade association for the manufacturers of CALEA-compliant snooping equipment, said that intercepting calls over the Internet is difficult.
"First of all they have to detect where the call is sort of being managed," he said. "And then, without CALEA, they've got to basically take their own equipment and go to whatever sites are involved and connect that equipment up. All of which, given the nomadic behavior of most people, whether accessing at hotels or campuses or hot spots ... makes it effectively impossible."
Some Americans think the government already has too much power to snoop. But Rutkowski said the U.S. is far less aggressive than most nations in conducting wiretaps.
Italian authorities, he said, conduct 100 wiretaps for every 100,000 citizens each year. American authorities conduct .3 wiretaps per 100,000 citizens -- or about 1/300 as many as Italy.
"By comparison on the global scene," he said, the level of surveillance of U.S. citizens is "pretty minuscule."
CALEA's foes say they are not against the use of court-ordered wiretaps. But they said Congress should have the chance to place limits on the expansion of police wiretap powers.
"The obvious thing is that we get this back into Congress and talk about this as a nation," said Tracy Mitrano, director of the Computer Policy and Law Program at Cornell University.
"We are now in a very unsettled world, in which we know there has been a lot of illegal, unconstitutional searches," she said. "And so if nothing else, we need to go back to square one and remember the kind of government in which we live, a democratic republic, and play by those rules."
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