DC Appeals Court Strengthens Surveillance Standards

[Marjorie Simmons <lawyer () USIT NET>]

The US Telecom Assn v FCC opinion is at
http://www.findlaw.com/casecode/courts/dc.html under
"August 2000" and the case name.

The decision of the Federal Court of Appeals for the District of
Columbia ruling (on August 16th) that law enforcement agents
wishing to intercept headers and contents must meet the higher
legal requirements needed for a search warrant, cast further doubt
on the already dubious legality of Carnivore, which permits
monitoring under the less demanding standard of a pen register
order.

The earlier FCC ruling discussed by the DC court was issued under
the 1994 Communications Assistance for Law Enforcement Act
(CALEA), which required phone companies to incorporate law
enforcement surveillance capacities in new digital phone systems.

The three judge panel issued a unanimous opinion that the FCC's
requirement that carriers place extended surveillance capability
into the networks was not consistent with CALEA's privacy
guidelines. The panel also found that the FCC ruling did not
adequately consider the potential cost of incorporating such
surveillance systems, (duh), and also observed that CALEA
requires carriers to facilitate authorized communications
interceptions and access to call-identifying information in a
way that protects the privacy of messages or call-identifying
information not named in a court order.

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