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Watchdogs howl at FBI wiretap plans

Privacy advocates are trying to derail efforts by the FBI to expand its wiretapping authority in order to get easier access to communications sent over Net backbones or wireless devices.

Privacy advocates are trying to derail efforts by the FBI to expand its wiretapping authority in order to get easier access to communications sent over Net backbones or wireless devices.

As expected, the Center for Democracy and Technology and Electronic Frontier Foundation today filed a petition with the Federal Communications Commission, asking the agency to block alleged FBI plans to implement new surveillance standards for data networks, which the groups say are unconstitutional.

The conflict surrounds the Communications Assistance for Law Enforcement Act (CALEA), which was enacted by Congress in 1994 and allocated millions of dollars to help U.S. phone companies upgrade their networks so they could accommodate court-ordered wiretapping techniques by law enforcement officials. During a criminal investigation, the government can seek authority to intercept online and voice communications and track the origination points of conversation.

But the groups who filed the petition worry that the convergence of voice and data networks will give the government access to private digital discourse without a court order. With wireline phone calls, the actual voice conversation and location of the caller run on separate channels. On the Net, data from multiple users are sent in "packets." Investigators with a court order to track the origin and destination of a person's call could potentially eavesdrop on many conversations by different people if the communications take place over a packet switching network.

"The proposal threatens to undermine long-standing Fourth Amendment protections for private communications by granting the FBI access to the contents of digital communications without probable cause that a crime has been committed," CDT executive director Jerry Berman said in a statement. "Citizens would have to rely on the good faith of law enforcement agents to not look at the contents of digital communications delivered to them under the lower standard."

The CDT and EFF also want to block the FBI's ability to track the real-time location of cellular phone or modem users.

"New technologies enhance the ability of law enforcement to intercept and analyze communications and track individuals. Many of these enhancements are coming about without government intervention as the unintended consequences of market-driven changes in technology," states the "Communications Privacy in the Digital Age" report, released in June by the CDT, United States Telephone Association, the Cellular Telecommunications Industry Association, and other groups.

"Existing law allows law enforcement to take advantage of these developments and requires telecommunications companies to cooperate by providing technical assistance, subject to government reimbursement," the paper states. "As technology enhances surveillance capabilities, the legal standards for government use of these new technologies must adequately protect privacy."

But the FBI says it is not trying to expand its authority so it can circumvent necessary court orders to view conversations secretly over the Net or wireless phones. The agency contends that it is the telecommunications carriers that increasingly have decided to use packet switching technology, which makes it difficult to access just the caller's location.

"A court order allows us to intercept communication where there is probable cause to believe that the communication is furthering criminal activity. It applies to wire and electronic communications," FBI spokesman Charles Barry Smith said today. "CALEA does articulate what is needed by carriers in terms of capability and capacity in order to provide technical assistance for law enforcement officials with a court order."

Still, privacy advocates maintain that the FBI's plans will go much further. According to today's petition, they want the FCC to do the following:

  • "Adopt a CALEA implementation standard that deletes these location tracking and packet switching features from the proposed industry standard.

  • "Require industry and law enforcement agencies to develop an additional standard for packet switching that affirmatively protects the privacy of content information that law enforcement is not authorized to receive.

  • "Reject any requests by the FBI or other agencies to further expand the surveillance features proposed in the draft industry standard."