The public comment period on a Justice Department proposal to make the Internet easier to wiretap ended on Monday with most of the filed comments tracing a clean line between two opposing camps.

On the government's side, federal, state and local law enforcement agencies who perform wiretaps, allied with companies who sell surveillance equipment and services: on the other, Internet companies who would be forced by the plan to make changes to their networks, along with advocacy groups concerned about slowed innovation and an incursion on Internet privacy.

The controversy kicked off last month when the Department of Justice, the FBI and the U.S. Drug Enforcement Administration jointly petitioned the Federal Communications Commission (FCC) to immediately direct broadband providers to modify their networks to be more easily wiretapped by law enforcement, and to begin an "expedited rulemaking" of new regulations that would mandate that any new communications technology be certified as wiretap-ready by the government before launch.

The petition capped over a year of low-key lobbying at the commission by Justice and FBI lawyers seeking to expand the reach of the 1994 Communication's Assistance for Law Enforcement Act (CALEA), which already mandates surveillance backdoors in U.S. telephone networks. The FCC issued a notice on the proposal, and opened the question to public comments.

Federal law already compels ISPs to co-operate with law enforcement in court-approved surveillance of customers. But as police rely more on Internet snooping - with tools like the FBI's "Carnivore" DCS-1000 packet sniffer - they've begun to crave the speed and ease-of-use of the wiretapping infrastructure that CALEA grafted onto the modern telephone network, described in a filing by the New York state Attorney General's office this way:

"Within minutes of receipt of the court order, warrants for the interception of wireless devices can be implemented by the communications carriers. With just a few computer key strokes, the connection is made directly between law enforcement's computerised listening stations and the telephone service provider's computerised switches."

The Justice Department plan would make Internet taps as easy, though at great expense to Internet service providers and their customers. The EFF, ACLU, the Electronic Privacy Information Center and the Center for Democracy and Technology all filed comments opposing the plan, and an ACLU letter-drive generated hundreds of mailings from citizens against what the group called "the New Ashcroft Internet Snooping Request."

All four groups argue that the Justice Department failed to demonstrate any need for the expansion, that the language of CALEA makes it clear that it cannot legally be applied to the Internet, and that innovation would be chilled by the Department's request that new technologies be pre-programmed for surveillance. "It threatens to render stillborn a brand new communications industry and poses a significant risk to the entire Internet," the ACLU wrote.

"The FBI's rulemaking petition would impose a massive bureaucratic structure upon innovation in communications," wrote the EFF. "Yet the FBI has offered no evidence that this rulemaking is justified in terms of its civil-liberties and economic costs." The group also argues that the surveillance backdoors would make Internet connections more vulnerable to electronic criminals and unauthorised eavesdroppers.

In another filing, the American Library Association and 13 college and university groups also opposed the petition, because "innovation will be threatened, privacy diminished, and unnecessary costs imposed" on libraries and campuses that provide broadband connectivity.

Law enforcement support

Not surprisingly, Internet service providers also oppose the plan, including AT&T, Earthlink, WorldCom, the United Power Line Council, which consists of companies working on broadband over power line services, and a group called the ISP CALEA Coalition, which wrote that the Justice Department's proposal "seeks to overturn the balance struck by Congress between law enforcement and continued innovation." Local phone companies proved more agnostic.

An earlier FCC ruling found that DSL service was already covered by CALEA, inasmuch as it travels over telephone lines. It is "critical", Verizon argued, that CALEA also be applied to cable modem companies, lest criminals give up their DSL and flock to the competing services of cable providers for a little privacy. SBC neither opposed nor supported applying CALEA to broadband, but urged that the FCC develop a full record to guide implementers. Bellsouth took a position more in line with the ISPs, urging the FCC not expand CALEA without a full rulemaking process, and arguing that the law simply doesn't permit what the Justice Department is seeking.

Law enforcement agencies heartily supported expanding CALEA to the Internet. New York State Attorney General Eliot Spitzer set out the state's history of successful organised crime prosecutions based on telephone wiretaps, and said the FCC "should assure that as new services are developed, carriers and manufacturers will deploy eavesdropping capability and that it will punish those who do not." (Spitzer also took the opportunity to complain about the high fees wireless companies bill the state to perform cell phone taps.)

The Texas Department of Public Safety supported the petition, as did the International Association of Chiefs of Poilce, the National Sheriffs' Association, and the Los Angeles County Regional Criminal Information Clearinghouse, which operates an electronic surveillance centre used by various local law enforcement agencies in Los Angeles, including the Los Angeles Police Department (LAPD).

The Clearinghouse filing argues that the local police don't have the FBI's resources to develop their own eavesdropping solutions, and that without the broadband backdoors sought by the Justice Department, they've "been thwarted" in their efforts to surveil Internet users. To emphasis the importance of electronic surveillance in policing the City of Angels, the Clearinghouse attached a three-page list of wiretapping successes, including several murder convictions supposedly made possible by intercepted phone calls.

Los Angeles hasn't always been so open with its wiretapping. In 1998, the LAPD admitted to concealing the use of court-authorised wiretaps from defence lawyers in 58 different criminal cases over five years, by treating information gathered from the taps as tips from confidential informants - a ruse that prevented defendants in the resulting arrests from challenging the legality of the surveillance. The skulduggery came to light when a public defender noticed a discrepancy in wiretap statistics; a Superior Court judge later ordered an end to the practice and full disclosure of the secret wiretaps.

Finally, the proposal won the support of Massachusetts-based Top Layer Networks, which describes itself as "a leading provider of IP Interception appliances" and found the government's argument "very logical and completely justified," and VeriSign, which offers its NetDiscovery surveillance services to telecom companies that prefer to outsource their FBI wiretaps.

VeriSign argued that tapping the Internet is good for the nation. "Criminals have the ability to act on a network in microseconds, while law enforcement is encumbered today with solutions that require weeks to institute judicially ordered capabilities," reads the filing. The company helpfully attached a press release about it's recent deal to provide NetDiscovery services to cable company Cox Communications for an undisclosed amount.

The FCC is accepting reply comments on the petition until 27 April.

Copyright © 2004,

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