Appeal against ISP snooping goes to Washington

'FCC went too far', coalition says

By OUT-LAW.COM, 25th July 2006

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A group of technology companies and civil liberties groups will continue to challenge a law requiring ISPs to allow eavesdropping of customers by security agencies.

The US Government is trying to force ISPs to re-configure their systems to allow agencies to snoop on email and internet traffic. The relevant laws demand that phone providers allow such eavesdropping on voice calls, but the government and the companies dispute whether or not it allows the same actions with regard to data.

On 9 June a federal appeals court in the US ruled by two votes to one that companies would have to change their systems. That decision will now be appealed to the Court of Appeals in Washington, DC.

The coalition of groups mounting the appeal includes the Electronic Frontier Foundation (EFF), the Electronic Privacy Information Centre, Pulver.com, Sun Microsystems, and the National Association of College and University Business Officials.

Those organisations argue that the current systems have never blocked law enforcement agencies finding out information that they have needed in the past. "As far as the record on appeal reveals, 100 per cent of attempted interceptions of internet communications to date have been successful," says their brief in the case.

The coalition of groups opposes amendments to the Communications Assistance for Law Enforcement Act (CALEA) being proposed by the US communications regulator the Federal Communications Commission (FCC). They argue that the FCC went too far when it framed the requirements for ISPs and argue that the FCC is demanding changes that are outside of its legal scope.

"CALEA requires telecommunications common carriers to build certain capabilities into their networks to facilitate wiretaps, but expressly excludes providers of information services," argues the coalition's brief.

The legal basis for internet wiretaps is currently in place, but the FCC is trying to standardise the methodology used, causing privacy concerns for those opposing it, as well as economic concerns about the cost of rewiring systems.

"It is crucial to remember that the issue here is not whether law enforcement can tap new technologies like VoIP, but whether they can tap it easily," said a statement from the EFF.

"Existing laws already permit law enforcement to place internet users under surveillance, regardless of what programs or protocols they are using to communicate. Industry already cooperates with law enforcement to give it all the information requested, and this will continue to happen with or without a new FCC rule interpreting CALEA."

The one dissenting judge who ruled in favour of the objections in June, Harry Edwards, called the FCC's evidence in that case "gobbledygook" and "nonsense".

OUT-LAW.COM is part of international law firm Pinsent Masons.

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