--- begin forwarded text Delivered-To: clips@philodox.com Date: Sun, 1 Jan 2006 08:32:50 -0500 To: Philodox Clips List <clips@philodox.com> From: "R. A. Hettinga" <rah@shipwright.com> Subject: [Clips] Broader Wiretap Rule Draws Resistance Reply-To: rah@philodox.com Sender: clips-bounces@philodox.com <http://online.wsj.com/article_print/SB113581972188433505.html> The Wall Street Journal December 29, 2005 Broader Wiretap Rule Draws Resistance Companies and Universities Cite Costs if Surveillance Expands Beyond Phone, Cable to Web By YOCHI J. DREAZEN, AMY SCHATZ and ROBERT BLOCK Staff Reporters of THE WALL STREET JOURNAL December 29, 2005; Page A4 WASHINGTON -- When the cable industry's research consortium's first attempt to make its systems more compatible with FBI eavesdropping failed to win government approval, it asked the FBI for suggestions. The industry not only got them but implemented them fully, winning unusual public thanks from the bureau along the way. Today, the industry faces the prospect of having to re-engineer itself again, due to a recent Federal Communications Commission decision extending the Communications Assistance for Law Enforcement Act, or Calea, to Internet traffic as well as phone calls. The act, which became law in 1994, requires companies to make it easier for the government to listen to phone calls carried on their lines. The cable group's efforts to craft technical standards for the government show how U.S. corporations have helped with law enforcement. But companies are chafing both at the cost to comply with requests and increasing demands by government officials to have a seat at the table as engineers invent technologies. Susan Hackett of the Association of Corporate Counsel, which represents the legal departments of America's biggest corporations, says many rules and laws in place since the Sept. 11, 2001, terrorist attacks, such as the Patriot Act, have grown increasingly costly in terms of compliance. Earlier this month, 3Com Corp. told the FCC it should tightly define which Internet phone companies fall under the 1994 law in order to strike "an appropriate balance...between allowing innovation in the telecommunications industry and meeting the needs of law enforcement." Some of the loudest complaints about the expanded reach of the law have come from universities, who say that expanding the act to cover Internet traffic imposes a significant financial burden on them. In an FCC filing last year, a coalition of higher-education groups -- including the American Council on Education, a trade group for colleges and universities -- argued that such a decision would force them "substantially to replace existing network facilities well before their useful life has expired." The groups warned that replacing the equipment would cost billions of dollars, forcing an "increase in tuition (which may be as high as several hundred dollars per student), cancellation of some educational programs, and a delay in other network improvements necessary for educational and research objectives." One indication that business's patience is wearing thin is resistance to the Justice Department's push to expand the act to cover Internet phones and broadband services. Federal law-enforcement officials are concerned about terrorists switching to the new systems to bypass traditional phone networks that have wiretapping-friendly technology. In August the FCC agreed and said companies that provide Internet calling that looks and feels like traditional phone service must comply with the 1994 law in 18 months. Universities, libraries and municipalities that offer Internet service would also fall under the law, the FCC said. That decision prompted telecom companies and Internet-software companies to protest the rule and civil-liberties groups to file a challenge in federal court. Now, the political fight over the administration's secret program to eavesdrop on terrorism suspects is almost certain to heighten the dispute. "We already see the creep of Calea, and the Justice Department is making it crystal clear that they want to apply it to all Internet applications eventually," says John Morris, a staff attorney for the Center for Democracy and Technology, a nonprofit civil-liberties group that is leading a challenge to the FCC's August ruling. Mr. Morris says his group accepts that Internet traffic can sometimes legally be tapped, but believes the act doesn't give the Federal Bureau of Investigation or Justice Department the authority to impose costly technical mandates on corporations and private organizations. Public opinion appears to be divided on what trade-offs are acceptable between national security and civil liberties. In a poll to be released today by Ponemon Institute, a privacy-focused research organization, 88% of respondents said they were concerned about domestic spying and 63% felt that obtaining court orders wouldn't hinder the government's pursuit of terrorists. At the same time, those polled were evenly divided about whether the Bush administration can be trusted to take reasonable steps to protect civil liberties. For the telecom industry, the choice has generally been clearer. The industry is heavily regulated, and its future can depend on FCC regulators and lawmakers. The 1994 law, for instance, was crafted to require companies to work with the government to design backdoors into their systems to help law-enforcement officials more easily set up surveillance systems. It was passed to address concerns that new technologies, like cellphones, made it more difficult to conduct surveillance, and companies weren't responding to those concerns. Phone calls carried on analog lines aren't difficult for the government to tap; the phrase "wiretapping" comes from the practice of placing metal clips on analog wires to listen in to conversations. But as analog lines began to be replaced with digital-switching systems, intercepting calls meant plucking packets of information out of a datastream and then reassembling them to learn who was making or receiving the call and what was being said. The legislation generally left the Internet alone and put the burden on industry to design systems that were wiretap-friendly. FBI officials objected to the first designs by CableLabs, a research-and-development consortium representing cable-TV operators, saying the proposed engineering guidelines didn't go far enough. CableLabs asked the FBI to detail its concerns and preferences, and then released new technical specifications throughout 2003 and 2004 that incorporated FBI suggestions on how to increase the bureau's ability to tap phone calls carried on cable lines. In January 2004 the most-recent version was released, and an FBI assistant director, Kerry Haynes, praised it at the time as "an extraordinary example of law enforcement and industry collaboration in the public interest," singling out large cable operators such as Time Warner Inc. and Comcast Corp. for "special recognition and appreciation." CableLabs officials say the government involvement forced them to balance consumer interests and law-enforcement demands. "You have to do both," says Richard Green, the president and chief executive of CableLabs. "Our obligation to our customers is very important, but the needs of law enforcement are very important to us, too. We tried to walk a line between the two." Mr. Green notes that the act left the industry little choice but to comply. "There is a law, and as service providers we have to abide by it," he says. The cable industry has been more willing than others to accept the government's attempt to expand the 1994 law into newer-generation technologies like Internet telephone and broadband services, mostly because cable operators had already adopted wiretap-friendly specifications under separate federal requirements. In August the FCC said most Internet phone and broadband Internet-service providers were covered under the act because they essentially replaced older services, like dial-up Internet, which were subject to the law. FCC Chairman Kevin Martin said that while he believed "new technologies and services should operate free of economic regulation, I also believe that law-enforcement agencies must have the ability to conduct lawful electronic surveillance over these new technologies." The Justice Department wants the FCC to go further, saying the law should cover any Internet phone service, including companies such as Skype Technologies SA, which is being acquired by eBay Inc. and which offers computer-to-computer and computer-to-phone Internet calling. Internet companies, universities, libraries and other providers were given until spring of 2007 to reconfigure their networks to comply with the rule. But the FCC didn't give them any idea about what they would have to do to comply. Since then, dozens of universities, libraries and Internet companies have filed objections to the rules, asking for more time before the rules take effect, complaining about the potential cost and complexity of compliance and urging the FCC to adopt educational exemptions. Federal law-enforcement officials also want the FCC to give them expanded ability to monitor phone calls and data traffic when broadband Internet becomes available on U.S. commercial flights in the next few years. -- ----------------- R. A. Hettinga <mailto: rah@ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' _______________________________________________ Clips mailing list Clips@philodox.com http://www.philodox.com/mailman/listinfo/clips --- end forwarded text -- ----------------- R. A. Hettinga <mailto: rah@ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'