Feds: No warrants for Net wiretaps

[William Knowles <wk () C4I ORG>]

http://www.zdnet.com/zdnn/stories/news/0,4586,2570897,00.html?chkpt=zdhpnews01

By Mike Brunker, MSNBC
May 17, 2000 7:20 AM PT

In a case with broad implications for communications technology,
lawyers for the Justice Department and a coalition of
telecommunications and privacy groups square off in federal court
Wednesday to argue whether the FBI should be allowed to intercept
Internet communications and pinpoint the locations of cellular phone
users without first obtaining a search warrant.

At issue in the proceedings before the U.S. Court of Appeals in
Washington are rules issued last year by the Federal Communication
Commission spelling out how telecommunications providers will be
required to comply with the Communications Assistance for Law
Enforcement Act (CALEA), passed by Congress in 1994.

Among other things, the act requires telecommunications equipment
manufacturers and service providers to build into their systems the
capability for surveillance of telephone line and cellular
communications, as well as of services such as advanced paging,
specialized mobile radio and satellite-based systems.

After telecommunications providers were unable to reach agreement with
FBI officials on how to implement the monitoring capabilities, the FCC
adopted rules that in several areas went beyond the CALEA language -
including a requirement that cellular phones be traceable and that
information on any digits dialed after a call is connected, which
could include such things as account or credit-card numbers or
call-forwarding instructions, must be provided.

Warrant not required As interpreted by the FCC, the act also would
require telecommunications providers to turn over "packet-mode
communications" - such as those that carry Internet traffic - without
the warrant required for a phone wiretap.

Taken in total, the FCC rules amount to a "significant expansion" of
law enforcement's ability to monitor private communication, said Jim
Dempsey, senior staff counsel for the Center for Democracy and
Technology.

"We're arguing that given the constitutional right to privacy, and
given Congress' concern about protecting that privacy that it was
wrong for the FCC to broadly interpret this statute to give more
surveillance powers to law enforcement," he said.

But a Justice Department official, who spoke with MSNBC.com on the
condition that he not be named nor quoted directly, said neither CALEA
nor the FCC's interpretation of it had given authorities new
eavesdropping powers.

The law simply says if agents are legally authorized to get
information, then the telephone carriers have an obligation to provide
it, he said.

Rule called overly broad Dempsey, however, noted that the rule
requiring telecommunications companies to hand over packet-mode
communications is overly broad and will result in the content being
given to authorities who have not gotten a warrant.

"It would deliver to the government the content of communications that
the government has no authority to intercept," he said. "Now, on a
normal phone call, carriers distinguish between the content and the
dialing of a number. (Agents) don't get content of the communication
unless law enforcement has a court order issued under strict legal
standards."

The Justice Department official acknowledged that under some
circumstances, agents would be given material they were not legally
entitled to. But he said the problem occurs not because law
enforcement wants to avoid the legal requirements for such "electronic
intercepts" but because telecommunications companies have said they
are unable to separate the content of such packets from the
destination information.

In such a case, the official said, the information could not be used
in any civil or criminal proceeding.

Other groups that will argue against the FCC rules are the Cellular
Telecommunications Industry Association, the U.S. Telecom Association,
the Electronic Privacy Information Center, the Electronic Frontier
Foundation and the American Civil Liberties Union.

Privacy advocates have expressed concern over the increasing use of
eavesdropping by federal authorities, which has jumped 33 percent
since President Bill Clinton took office in 1993.

A report earlier this month by the Administrative Office of the U.S.
Courts showed that 53 percent of the 1,277 wiretaps authorized last
year were electronic intercepts, which are used to tap wireless
phones, pagers and e-mail. That was a 17 percent increase from 1998.


*-------------------------------------------------*
"Communications without intelligence is noise;
Intelligence without communications is irrelevant."
Gen. Alfred. M. Gray, USMC
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