FBI Net-wiretapping rules face challenges

New federal wiretapping rules forcing Internet service providers and universities to rewire their networks for FBI surveillance of e-mail and Web browsing are being challenged in court.

Telecommunications firms, nonprofit organizations and educators are asking the U.S. Court of Appeals in Washington, D.C., to overturn the controversial rules, which dramatically extend the sweep of an 11-year-old surveillance law designed to guarantee police the ability to eavesdrop on telephone calls.

The regulations represent the culmination of years of lobbying by the FBI, the Justice Department and the Drug Enforcement Administration, which have argued that "criminals, terrorists and spies" could cloak their Internet communications with impunity unless police received broad new surveillance powers. The final rules, published this month by the Federal Communications Commission, apply to "any type of broadband Internet access service" and many Internet phone services.

"The concern is that what is being proposed is inordinately expensive to achieve the results that the FCC and the Department of Justice would like to secure," said Sheldon Steinbach, general counsel to the American Council on Education, which filed its legal challenge late Monday. The rules are set to take effect in April 2007.

Another legal challenge from businesses and nonprofit groups is set for Tuesday. "The FCC simply does not have the statutory authority to extend the 1994 law for the telephone system to the 21st century Internet," said Marc Rotenberg, director of the Electronic Privacy Information Center, which is joining the second challenge. Also participating are the Center for Democracy and Technology, Pulver.com, the Electronic Frontier Foundation, and the telecommunications trade group CompTel.

The 1994 law, called the Communications Assistance for Law Enforcement Act or CALEA, required telephone companies to rewire their networks and switches to guarantee ready eavesdropping access to police.

That prospect dismays privacy advocates and telecommunications providers who worry about the expense and argue that Congress never intended the law to apply to broadband links. 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."

"Regulating the entire Internet"
The new regulations also are alarming Internet phone service providers.

Jonathan Askin, general counsel to voice over Internet Protocol(VoIP) firm Pulver.com, said that his company is not directly implicated by the regulations because it currently offers only peer-to-peer conversations rather than links to the traditional telephone network. The new rules cover VoIP services that provide a "capability for users to receive calls from and terminate calls" to the phone network.

But that regulatory forbearance may vanish in the future, Askin warned. "From a forward-looking policy perspective, I think the FCC has opened the door to regulating the entire Internet," he said.

Federal police agencies and the FCC did not respond to interview requests on Monday. Department of Justice spokesperson Charles Miller said, "If and when they file suit, I'm sure we'll respond accordingly in court."

The American Civil Liberties Union said it has not yet decided whether to join the lawsuit, saying it's a matter of having enough time for its lawyers to take a new case. "I think there's a very strong statutory argument that the FCC just overreached and doesn't have authority over the industry," said Barry Steinhardt, director of the ACLU's Technology and Liberty Program.

The Information Technology Association of America also said it has not decided whether to join an appeal of the FCC's ruling. "The limits of the authorization that Congress provided are fairly clear and the FCC seems to have gone beyond that," said Mark Uncapher, senior vice president of ITAA.

In an unusual twist, two of the four FCC commissioners who unanimously approved the wiretapping rules last month acknowledged that a court challenge was likely.

Commissioner Kathleen Abernathy said: "Because litigation is as inevitable as death and taxes, and because some might not read the statute to permit the extension of CALEA to the broadband Internet access and VoIP services at issue here, I have stated my concern that an approach like the one we adopt today is not without legal risk."

Commissioner Michael Copps warned that if a court case leads to the rules being struck down, the regulations may have done "more harm than good." The FCC's logic, he said, was "built on very complicated legal ground."

The twin appeals being filed this week will follow a two-stage process. First, a very brief notice of appeal will be sent to the court. Then, after the judges decide on a schedule, a formal legal brief will be submitted and the Bush administration will be offered a chance to reply.

CNET News.com's Anne Broache contributed to this report