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Easier Internet Wiretaps Sought
By Dan Eggen and Jonathan Krim
The Justice Department wants to significantly expand the government's ability to monitor online traffic, proposing that providers of high-speed Internet service should be forced to grant easier access for FBI wiretaps and other electronic surveillance, according to documents and government officials.
A petition filed this week with the Federal Communications Commission also suggests that consumers should be required to foot the bill.
Law enforcement agencies have been increasingly concerned that fast-growing telephone service over the Internet could be a way for terrorists and criminals to evade surveillance. But the petition also moves beyond Internet telephony, leading several technology experts and privacy advocates yesterday to warn that many types of online communication, including instant messages and visits to Web sites, could be covered.
The proposal by the Justice Department, the FBI and the Drug Enforcement Administration could require extensive retooling of existing broadband networks and could impose significant costs, the experts said. Privacy advocates also argue that there are not enough safeguards to prevent the government from intercepting data from innocent users.
Justice Department lawyers argue in a 75-page FCC petition that Internet broadband and online telephone providers should be treated the same as traditional telephone companies, which are required by law to provide access for wiretaps and other monitoring of voice communications. The law enforcement agencies complain that many providers do not comply with existing wiretap rules and that rapidly changing technology is limiting the government's ability to track terrorists and other threats.
They are asking the FCC to curtail its usual review process to rapidly implement the proposed changes. The FBI views the petition as narrowly crafted and aimed only at making sure that terrorist and criminal suspects are not able to evade monitoring because of the type of telephone communications they use, according to a federal law enforcement official who spoke on the condition of anonymity.
"Lawfully-authorized electronic surveillance is an invaluable and necessary tool for federal, state and local law enforcement in their fight against criminals, terrorists, and spies," the petition said, adding that "the importance and the urgency of this task cannot be overstated" because "electronic surveillance is being compromised today."
But privacy and technology experts said the proposal is overly broad and raises serious privacy and business concerns. James X. Dempsey, executive director of the Center for Democracy & Technology, a public interest group, said the FBI is attempting to dictate how the Internet should be engineered to permit whatever level of surveillance law enforcement deems necessary.
"The breadth of what they are asking for is a little breathtaking," Dempsey said. "The question is, how deeply should the government be able to control the design of the Internet? . . . If you want to bring the economy to a halt, put the FBI in charge of deploying new Internet and communications services."
Jeffrey Citron, chief executive of Internet phone provider Vonage Inc., said the FBI is overreaching. He said that he and other providers cooperate fully with law enforcement, and that if the FBI has ongoing concerns, it should strive to change the law governing wiretaps.
The FCC is in the midst of a wide-ranging review of how to regulate the fledgling Internet telephone industry. Chairman Michael K. Powell, responding to complaints from the FBI and other law enforcement agencies, said last month that the FCC will also pursue a separate review of wiretapping rules.
The Communications Assistance for Law Enforcement Act (CALEA), enacted in 1994, required telecommunications companies to rewire their networks so police could have access for wiretaps and other surveillance measures. But law enforcement officials and privacy advocates have argued fiercely in recent years about whether, and to what extent, the law should apply to such newer-generation technologies as Internet telephone and broadband services.
The Justice proposal asserts that "CALEA was intended to protect the capacity of law enforcement to carry out authorized surveillance in the face of technological change, and CALEA contains no exemption for telephony services provided through broadband access."
Stewart Baker, a Washington lawyer and former general counsel at the National Security Agency, said the petition ignores the intent and letter of the CALEA law, which specifically exempts "persons or entities insofar as they are engaged in providing information services." The Justice Department and FBI argue that Congress nine years ago had in mind simple data-storage services, and did not envision the kind of Internet-based communications technologies available today.
The problem the FBI faces is that it cannot identify and break down information that travels as packets of data over the Internet. Phone calls placed over the Internet are changed from voice signals into data packets that look much like other data packets that contain e-mail or instructions for browsing the Internet.
CALEA does not require telecommunications providers to break down and identify which is which, or to decode data that might be encrypted. The FBI wants Internet providers to be forced to do so, experts said.
Justice and FBI lawyers also asked the FCC to "permit carriers to have the option to recover some or all of their CALEA implementation costs from their customers." The petition argues that the actual costs to individual customers would be minimal, although no estimates are provided.
Internet service providers yesterday reacted with caution. Many said they had not yet studied the FBI petition, and want to be viewed as cooperating with law enforcement whenever possible.
David Baker, vice president for public policy at Internet provider EarthLink Inc. in Atlanta, said the FBI appears to be going beyond concerns over voice communications technology on the Internet and is instead "seeking to apply CALEA to all information services."
© 2004 The Washington Post Company