Circuit Court of Appeals Approves Wiretapping of ‘Net

Steve Javors
WASHINGTON — The U.S. Court of Appeals ruled on Friday that the Federal Communications Commission has the power to make broadband provider networks more “wiretap friendly” for law enforcement purposes.

In its majority 2-1 ruling, the Circuit Court for the District of Columbia ruled that broadband Internet service providers are subject to the Communications Assistance for Law Enforcement Act (CALEA), which provides law enforcement with easy access to broadband network records and data. CALEA was passed in 1997.

With regular telephone lines being easy to intercept, previous laws were satisfactory in allowing law enforcement wiretapping access. With the burgeoning use of high-speed Internet, encryption technologies and VoIP, the government claims it needed updated regulations to intercept data from these new technologies.

Under the law, broadband ISPs are classified as “telecommunications carriers,” which are subject to CALEA, so they “must ensure that law enforcement officers are able to intercept communications transmitted over the providers’ networks,” the ruling states.

The crux of the argument is centered on how broadband providers are defined under the law. The court’s ruling states that broadband providers are “telecommunications carriers,” while the plaintiff, the American Council on Education, sought to classify them as an “information service” that are exempt from the law. CALEA’s provisions do not apply to an “information service.”

“CALEA does not give the FCC unlimited authority to regulate every telecommunications service that might conceivably be used to assist law enforcement,” dissenting Judge Harry Edwards wrote. “Quite the contrary. It expressly states that the statute’s assistance capability requirements ‘do not apply to information services.’”

If the ruling stands, ISPs will have to add new surveillance hardware to their networks and law enforcement will have unfettered access to email and web activity for any user they target.

Edwards went on to write that, “There is absolutely no permissible basis for this court to sustain the FCC’s convoluted attempt to infer broad new powers under CALEA. The agency has simply abandoned the well-understood meaning of ‘information services’ without offering any coherent alternative interpretation in its place.”

In 2004, the U.S. Department of Justice filed a petition for the court to determine how CALEA applies to new technology, specifically broadband ISPs, because these companies had not implemented “CALEA-compliant intercept capabilities,” Judge David Sentelle wrote for the majority. The FCC concluded that broadband ISPs are hybrid services.

“The FCC concluded that a telecommunications carrier should not escape reach altogether simply because the carrier’s service offering has an ‘informational’ component,” David Sentelle wrote. “Thus, the FCC concluded that CALEA’s definitional sections are not mutually exclusive.”

Edwards disagreed with his colleague’s definition.

“The net result [of the ruling] is that the FCC has altogether gutted the ‘information services’ exemption from CALEA,” he wrote. “Only Congress can modify the statute in this way.”

The case is expected to reach the U.S. Supreme Court, according to experts.