Easing of Internet Regulations Challenges Surveillance Efforts

[Dave Farber <dave () farber net>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Thu, 22 Jan 2004 02:57:27 -0800
From: Dewayne Hendricks <dewayne () warpspeed com>
Subject: [Dewayne-Net] Easing of Internet Regulations Challenges Surveillance

Easing of Internet Regulations Challenges Surveillance Efforts
By STEPHEN LABATON
 <http://www.nytimes.com/2004/01/22/technology/22VOIC.html?hp>

WASHINGTON, Jan. 21 - The Federal Communications Commission's efforts to 
reduce regulations over some Internet services have come under intense 
criticism from officials at law enforcement agencies who say that their 
ability to monitor terrorists and other criminal suspects electronically is 
threatened.

In a series of unpublicized meetings and heated correspondence in recent 
weeks, officials from the Justice Department, the Federal Bureau of 
Investigation and the Drug Enforcement Administration have repeatedly 
complained about the commission's decision in 2002 to classify high-speed 
Internet cable services under a looser regulatory regime than the phone system.

The Justice Department recently tried to block the commission from 
appealing a decision by a federal appeals court two months ago that struck 
down major parts of its 2002 deregulatory order. Justice Department 
officials fear that the deregulatory order impedes its ability to enforce 
wiretapping orders.

The department ultimately decided to permit the F.C.C. to appeal, but took 
the highly unusual step of withdrawing from the lawsuit, officials involved 
in the case said.

As a result of the commission's actions, said John G. Malcolm, a deputy 
assistant attorney general who has played a lead role for the Justice 
Department, some telecommunications carriers have taken the position in 
court proceedings that they do not need to make their networks available to 
federal agents for court-approved wiretapping.

"I am aware of instances in which law enforcement authorities have not been 
able to execute intercept orders because of this uncertainty," Mr. Malcolm 
said in an interview last Friday. He declined to provide further details.

The clash between the commission and officials from the Justice Department 
and other law enforcement agencies pits two cherished policies of the Bush 
administration against each other. On one side stand those who support 
deregulation of major industries and the nurturing of emerging 
technologies; on the other are those who favor more aggressive law 
enforcement after the Sept. 11 terrorist attacks.

The outcome of the debate has far- reaching consequences.

Law enforcement officials say it will determine whether they can 
effectively monitor communications between suspects over new kinds of phone 
services that otherwise might allow them to escape detection. Also at stake 
is whether the government or industry will bear the considerable costs of 
developing the technology for such surveillance.

By contrast, some F.C.C. officials and telephone industry executives say 
that if the commission buckles to the other agencies and forces the 
industry to take on a host of expensive obligations the development of 
promising new communications services may be stalled or squelched for years 
to come.

The law enforcement officials have also raised concerns about recent 
statements by the commission's chairman, Michael K. Powell, that suggest he 
intends to propose rules soon that would place nascent Internet-based 
telephone services under a looser regulatory regime than the traditional 
phone system.

Through a spokesman, Mr. Powell declined to discuss the subject.

David Fiske, the commission's chief spokesman, said that he could not 
respond to Mr. Malcolm's statement that the F.C.C.'s interpretation of the 
rules was making it more difficult to execute surveillance orders.

A senior official at the F.C.C. said the commission was not unsympathetic 
to the concerns of the law enforcement agencies. "We're an economic 
regulatory agency as well as a law enforcement agency and we have to look 
at the interests of everyone," the official said.

Some industry experts say that their biggest worry is that law enforcement 
demands may reshape the technical specifications of the new Internet voice 
services, an accusation that officials at the Justice Department and the 
F.B.I. deny.

"What's most scary for industry and perhaps some people at the F.C.C. is 
the notion that the architecture of the Internet will depend on the 
permission of the F.B.I.," said Stewart A. Baker, a former general counsel 
of the National Security Agency, which monitors foreign communications. Mr. 
Baker now represents a number of telecommunications companies as a partner 
at the law firm of Steptoe & Johnson.

<snip>

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