Feds' wiretapping rules challenged in court

In a 71-page brief sent to the U.S. Court of Appeals in Washington, D.C., on Thursday, they ask the judges to overturn a wiretap ruling from the Federal Communications Commission that applies to "any type of broadband Internet access service" and many Internet phone services.

The Bush administration claims that last year's FCC rules are necessary to make it easier to catch "criminals, terrorists and spies" that would otherwise be able to evade detection.

But the organizations behind the lawsuit say that Congress never intended to force broadband providers--and private networks at corporations and universities--to build in central surveillance hubs for police convenience. The list of organizations includes Sun Microsystems, Pulver.com, the American Association of Community Colleges, the Association of American Universities, and the American Library Association.

"The brief demonstrates the flaws in the FCC's reasoning and strips away any believability that its legal analysis has any validity," said Albert Gidari, a partner at Perkins Coie in Seattle who co-authored the document.

Even without the FCC rules that are scheduled to take effect in spring 2007, police have the legal authority to conduct Internet wiretaps--that's precisely what the FBI's Carnivore system was designed to do. Still, the FBI says, the need for "standardized broadband intercept capabilities is especially urgent in light of today's heightened threats to homeland security and the ongoing tendency of criminals to use the most clandestine modes of communication."

Unlike most lawsuits that are first heard by a judge, a procedural twist sends this one directly to the appeals court. Thursday's filing was expected; the universities and other groups filed a brief notice of appeal on Oct. 24, and now the Justice Department and the FCC will have a chance to submit their responses.

At issue in this case is the scope of a 1994 called the Communications Assistance for Law Enforcement Act, or CALEA. It required telephone companies to rewire their networks and switches--at taxpayer expense--to guarantee police access to features such as extracting touch tones pressed during a call, conference call information, call waiting data, and so on.

Opponents of the FBI's demands argue that Congress explicitly said CALEA would not apply to the Internet. A House of Representatives committee report prepared in October 1994 says CALEA's requirements "do not apply to information services such as electronic-mail services; or online services such as CompuServe, Prodigy, America Online or Mead Data; or to Internet service providers."

According to the brief filed Thursday, the Bush administration is "relying on an interpretation of CALEA that is contrary to the plain meaning of the statute, arbitrary and capricious, and otherwise not in accordance with law."

In an unusual twist, some of the FCC commissioners who unanimously approved the wiretapping rules have acknowledged that the agency was on shaky legal ground. Commissioner Kathleen Abernathy, for instance, said she had "concern that an approach like the one we adopt today is not without legal risk."