[Infowarrior] - Court Orders Wiretapping of the Internet

[Richard Forno]

Court Orders Wiretapping of the Internet

http://blog.wired.com/27BStroke6/#1498951

A divided appeals court ruled Friday that the FCC has the power to order
broadband internet companies to make their networks wiretap friendly for law
enforcement.

In a 2-1 decision (.pdf), the U.S. Circuit Court for the District of
Columbia found that cable modem providers and other companies are subject to
the Communications Assistance for Law Enforcement Act, or CALEA, the 1997
law that requires phone companies to put law enforcement backdoors in their
switching networks.

The law explicitly exempts "information services," and the FCC has
previously ruled, while interpreting the 1996 Telecommunications Act, that
the internet is a such a service. But the court accepted the FCC's argument
that identical language can hold two completely different meanings when such
a view is necessary to help law enforcement do its job.

    "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it
means just what I choose it to mean -- neither more nor less."

    "The question is,² said Alice, "whether you can make words mean so many
different things."

    "The question is," said Humpty Dumpty, "which is to be master--that¹s
all."

Oops. Sorry. That's not from the ruling. That's from Through the Looking
Glass by Lewis Carroll. Here's an excerpt from the actual decision.


    CALEA's definition of "information service" is virtually identical to
the one included in the 1996 Act ... Therefore, [the plaintiff] concludes
broadband providers must fall within the ambit of CALEA's identical
"information services" exclusion. Notwithstanding the superficial
attractiveness of this argument, we disagree

    [...]

    CALEA -- unlike the 1996 Act -- is a law-enforcement statute.

Dissenting in the ruling is circuit judge Harry Edwards, who described the
FCC's position as "gobbledygook" during oral arguments last May.

    In determining that broadband Internet providers are subject to CALEA as
"telecommunications carriers," and not excluded pursuant to the "information
services" exemption, the Commission apparently forgot to read the words of
the statute. CALEA does not give the FCC unlimited authority to regulate
every telecommunications service that might conceivably be used to assist
law enforcement. Quite the contrary. ... It expressly states that the
statute's assistance capability requirements "do not apply to [] information
services." Broadband Internet is an "information service" -- indeed, the
Commission does not dispute this. Therefore, broadband Internet providers
are exempt from the substantive provisions of CALEA.

If the ruling stands, universities and broadband ISPs will be on the hook
for an expensive retrofitting of their networks with surveillance gear,
while law enforcement agencies will enjoy much quicker and easier access to
information like a user's e-mail headers and the websites they visit, or --
with a court order -- a real time feed of the target's entire internet
stream.

The plaintiff (the American Council on Education) could seek a review before
a larger panel of judges. Eventually, the case is likely headed for the
Supreme Court.