The Federal Communications Commission released a proposal last week for implementing the 1994 Communications Assistance for Law Enforcement Act (CALEA), a measure that requires telephone companies to provide law enforcement with access to digital call information.
But the report left untouched the issue of whether the FBI would get new powers to tap Net calls. An FCC staffer, who asked to remain anonymous, said the question of how Net calls will be treated remains wide open, and may be decided during another round of public comments.
Congress passed CALEA in 1994, after law enforcement officials complained that digital technology undermined their ability to tap telephone lines. The bill was intended to give the FBI and other police agencies the same access to digital communications, that they already have to traditional phone lines.
Yet the technological landscape has changed since Congress' action. Voice transmissions using Internet technologies have moved from hobbyists' basements and into the corporate mainstream. Companies like Qwest are building whole business strategies around Net-based telephony, while the amount of data traffic on public networks has soared.
The FBI wants access to these Net calls, and the leading industry proposal being reviewed by the FCC allows this. But civil liberties groups warn that this access goes beyond the original law's bounds, which don't apply well to Internet communications.
"Congress said very explicitly that the CALEA law was not intended to apply to Internet communications," said Barry Steinhardt, president of the Electronic Frontier Foundation. "Over the long term this is the ability to get packet-switched data, not just voice information."
The sticking point lies in the way that law enforcement gets its power to tap lines, and in the way that permission fails to translate into the world of the Internet.
Many people associate a wiretap with a listening post able to overhear the entire content of a call. This type of tap requires a law enforcement agency to meet a fairly high standard of evidence, to show it needs access to a certain phone line.
But the vast majority of wiretaps fall into a category known as "tap and trace," in which phone companies give up information about a call's origin and destination without giving officials access to the actual call. This type of access is much easier for law enforcement officials to obtain, as they don't require evidence as strong as what is needed for standard wiretaps.
The "tap-and-trace" system doesn't carry over well to Net calls, which are broken down and transmitted in individual packets of information. Telephone company officials say it is impossible, at today's level of technology, for telephone carriers to hand over the header information in these packets--which would identify the call's origin and destination--without also handing over the actual content of the call itself.
"For us it's impossible to do just the one thing," said Grant Seiffert, vice president of governmental relations for the Telecommunications Industry Association. "Once you've opened the can of worms, the whole can stays open."
The EFF, along with the Center for Democracy and Technology (CDT), the American Civil Liberties Union (ACLU), and the Electronic Privacy Information Center(EPIC), have lobbied the FCC hard to keep Net calls out of the wiretapping law for this reason.
"The FBI is saying, 'Trust us, give us the whole message and we'll strip out the call content,'" Steinhardt said. "We just don't trust them."
For its part, the FBI says it needs access to the Net calls, or criminals will be able to hide in the telecommunications loophole. Officials have repeatedly said they will not violate court orders to look at the content of calls or data messages
The argument doesn't sway civil liberties groups. "If it's not feasible, the telcos shouldn't have to hand the information over," Steinhardt said. "[The FBI] shouldn't be given access to information they're not entitled to."
Comments on the issue of tapping Net calls, as well as the rest of the FCC's digital wiretapping plan, are due December 14. Telephone companies are not required to comply with the CALEA provisions until June 30, 2000.