Broadband, Wiretaps facilitate surveillance by law enforcement

http://www.tbrnews.org/Archives/a1887.htm

FCC Releases Orders on Broadband, Wiretaps

September 27, 2005
by Drew Clark
National Journal

The FCC released rules for the newly "deregulated" providers of high-speed Internet
service over digital subscriber lines -- and mandated that they and Internet telephone
companies design their networks to facilitate surveillance by law enforcement.

The agency issued two separate orders: One declared that broadband over DSL provided by
telecommunications companies is now an unregulated "information service." The other order
requires all broadband and companies capable of being linked to the public-switched
telephone network to help law enforcers implement wiretaps.

The FCC unanimously approved both moves in principle on Aug. 5. The obligation to comply
with the Communications Assistance for Law Enforcement Act was seen as a necessary,
simultaneous action because -- without it -- DSL providers would have been exempt from the
wiretapping law.

Two of the agency's four commissioners questioned the legality of the FCC's action with
regard to CALEA. And at least two groups -- the Center for Democracy and Technology, and
the Electronic Frontier Foundation -- said they are likely to sue because Internet
services were specifically exempted from CALEA, which was passed in 1994.

The decision "is built on very complicated legal ground," Democratic Commissioner Michael
Copps said in a statement released Friday. He added, "The statute is undeniably stretched
to recognize new service technologies."

"An approach like the one we adopt today is not without legal risk," Republican
Commissioner Kathleen Abernathy said in an Aug. 5 statement repeated on Friday.

The decision to push DSL into the generally less regulated category of information
service under telecom law was occasioned by the June 27 Supreme Court decision in National
Cable and Telecommunications Association v. Brand X Internet Services.

That ruling upheld the FCC's declaration that broadband over cable modems is an
information service, not a more heavily regulated "telecommunications service." FCC Chairman Kevin
Martin said he wanted equal treatment for cable and DSL.

In August 2004, the FCC tentatively concluded that cable modems are subject to CALEA
obligations previously imposed on other telecom carriers, even if cable were classified as an
information service. The recent order affirmed that finding and applied it to all
information services, including DSL and other yet-to-be-developed technologies.

More expansively, the FCC's 59-page order said providers of Voice-over-Internet Protocol
that can link to the traditional phone network must comply with CALEA. That could ensnare
Skype Technologies -- which is otherwise exempt from regulation such as emergency 911
dialing that is imposed on "interconnected" VoIP providers like Vonage.

Critics said the FCC's new distinction would not work. "CALEA has been a difficult
statute to apply to the centralized, public-switched telephone network; it would be a nightmare
trying to apply it to the decentralized Internet," CDT Executive Director James Dempsey
said. "It was just not designed for the Internet."

Friday's FCC orders were supplemented by a three-page policy statement restating the
agency's commitment to "network neutrality," or the notion that broadband providers allow
consumers to access any legal content, applications or devices.