providers and Internet phone companies will have to pick up the tab for the
cost of building in mandatory wiretap access for police surveillance, federal
regulators ruled Wednesday.
The Federal Communications Commission voted unanimously to levy what likely
will amount to wiretapping taxes on companies, municipalities and universities,
saying it would create an incentive for them to keep costs down and that it
was necessary to fight the war on terror. Universities have estimated their
cost to be about $7 billion.
"The first obligation is...the safety of the people," said FCC Commissioner
Copps, a Democrat. "This commission supports efforts to protect the
public safety and homeland security of the United States and its people."
Federal police agencies have spent years lobbying for mandatory backdoors for
easy surveillance, saying "criminals,
terrorists and spies" could cloak their Internet communications with
impunity unless centralized wiretapping hubs become mandatory. Last year, the
a deadline of May 14, 2007, for compliance. But universities, libraries
and some technology companies have filed
suit against the agency, and arguments before a federal court are scheduled
"We're going to have a lot of fights over cost reimbursement," Al
Gidari, a partner at the law firm of Perkins Coie, who is co-counsel in
the lawsuit, said in an interview after the vote. "It continues the lunacy
of their prior order and confirms they've learned nothing from what's been filed"
in the lawsuit, he said.
The original 1994 law, called the Communications Assistance for Law Enforcement
Act, or CALEA, authorized
$500 million to pay telecommunications carriers for the cost of upgrading
their networks to facilitate wiretapping. Some broadband and voice over Internet
Protocol (VoIP) providers had hoped that they'd be reimbursed as well.
Askin, general counsel of Pulver.com, likened Wednesday's vote to earlier
FCC rules extending 911 regulations to VoIP. "It essentially imposed a
mandate on the industry without giving the industry the necessary support to
abide by the rules--and the same thing seems to be happening here," Askin
Even without the CALEA regulations, 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 has argued, 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."
The American Council on Education, which represents 1,800 colleges and universities,
estimates that the costs of CALEA compliance could total roughly $7 billion for
the entire higher-education community, or a tuition hike of $450 for every student
in the nation. Documents filed in the lawsuit challenging the FCC's rules put
the cost at hundreds of dollars per student.
But during Wednesday's vote, commissioners dismissed those concerns as unfounded.
"I am not persuaded merely by largely speculative allegations that the
financial burden on the higher-education community could total billions of dollars,"
said FCC Commissioner Deborah
Taylor Tate, a Republican.
The FCC's initial ruling last fall had left open the question of whether broadband
and VoIP providers would be reimbursed for rewiring their networks and upgrading
equipment to comply with CALEA.
Lingering questions about compliance...
Another open question is what portion of a university's or library's network must
be rendered wiretap-friendly. One possibility is that only the pipe (or pipes)
connecting a school with the rest of the Internet must be made CALEA-compliant.
Another is that the entire network would be covered.
The FCC adopted its second order on Wednesday but released only a two-page
summary, which didn't offer much clarity. In its initial ruling last year, the
FCC said only that it had reached "no conclusions" about exactly what
universities and libraries would have to do, prompting a flurry of comments
filed with the agency and the federal lawsuit. (Plaintiffs in the lawsuit include
Sun Microsystems, the American Civil Liberties Union, the Center for Democracy
and Technology, the American Library Association, the American Council on Education
and VoIP firm Pulver.com.)
Commissioner Copps acknowledged that there is "still some clarity to be
provided" for library and university network operators, but he suggested
that additional clarity would not be forthcoming from the FCC. Instead, "all
those agencies and offices of government who are involved in CALEA implementation
should be working together to provide clarity there to avoid confusion and possibly
expenses for these institutions," Copps said.
At the Computers, Freedom and Privacy conference here Wednesday, John
Morris of the Center for Democracy and Technology said libraries and universities
are still left with more questions than answers.
"There's some serious uncertainty about how it will really play out for
universities," Morris said. Even if the FCC technically calls for Internet
interception at the edge of a campus network, that likely won't be enough to
satisfy law enforcement demands for all of an individual student's network traffic,
including on-campus activities, he added.
Injecting additional uncertainty is whether the FCC's action is legal. It represents
what critics call an unreasonable extension of CALEA--which was designed to
address telephone features such as three-way calling and call waiting--to the
A House of Representatives committee report (click
here for PDF) prepared in October 1994 emphatically 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
(Central); or to Internet service providers."
When Congress was debating CALEA, then-FBI Director Louis Freeh reassured nervous
senators that the law would be limited to telephone calls. "So what we
are looking for is strictly telephone--what is said over a telephone?"
Sen. Larry Pressler, R-S.D., asked during one hearing.
Freeh replied: "That is the way I understand it. Yes, sir."
Two of the four FCC commissioners who voted for the initial CALEA ruling last
fall acknowledged that the federal government was on shaky legal ground. The FCC's
regulation is based on arguing that the law's definition of "telecommunications
carrier" applies to broadband and VoIP providers.
Then-FCC Commissioner Kathleen
Abernathy, a Republican, 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."
The FCC is no stranger to having its decisions rejected by a federal appeals
court that can be hostile to what it views as regulatory overreaching. Last
May, for instance, the FCC's "broadcast flag" was unceremoniously
tossed out by the U.S. Court of Appeals for the D.C. Circuit.