[Clips] Broader Wiretap Rule Draws Resistance

R. A. Hettinga rah at shipwright.com
Sun Jan 1 05:34:03 PST 2006


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 <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 at 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'
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-- 
-----------------
R. A. Hettinga <mailto: rah at 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'





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