Business Week on FBI's CALEA Net-tapping petition [priv]

[Declan McCullagh <declan () well com>]

-------- Original Message --------
Subject: from BW - More Spy Powers for the FBI? Bad Move
Date: Thu, 18 Mar 2004 13:36:16 -0500
From: Chuck Mauthe <cmauthe () transcard com>
To: 'Politech' <declan () well com>

original story is at
http://www.businessweek.com/technology/content/mar2004/tc20040318_2440_tc073
.htm

MARCH 18, 2004

PRIVACY MATTERS
By Jane Black

More Spy Powers for the FBI? Bad Move
Now the feds are demanding that the FCC grant full access to tap all sorts
of Net communications. It simply isn't necessary
On Mar. 12, the Justice Dept., FBI, and Drug Enforcement Administration
delivered an 83-page petition to the Federal Communications Commission
demanding dramatic new surveillance powers. If they're approved, the FBI
would have the right to require Internet service providers (ISPs), voice
over Internet protocol (VoIP) companies, and others that rely on broadband
access to the Net to redesign their networks to support standards designed
by law enforcement for wiretapping and tracing.

The FBI already can require phone companies to do this under the 1994
Communications Assistance for Law Enforcement Act, better known as CALEA
(see BW Online, 2/27/03, "These Are Not Your Father's Wiretaps"). And to
some, the expansion of these powers to the Net seems reasonable. After all,
CALEA's goal is to help law enforcement keep pace with changes in
telecommunications technology, and never before in that industry's history
has there been such rapid, tumultuous change. Today, calls are made over the
Internet and via peer-to-peer networks such as Skype, and people often
communicate more through e-mail and instant messaging than they do
face-to-face (see BW Online, 1/6/04, "Skype: Telephony as File Trading").

The FBI warns that unless it has some influence over these new technologies,
it'll be unable to keep up with terrorists and thieves. "The ability of
federal, state, and local law enforcement to carry out critical electronic
surveillance is being compromised today," the petition warns, adding that
the task of protecting the public is growing more difficult every day. The
FBI has asked the FCC to solicit comments on its proposal by Apr. 12 -- a
lightening pace for the federal agency where matters of this kind normally
take months, if not years, to be decided.

FOURTH AMENDMENT DEBATE.  Political pressure to cave in to FBI demands is
sure to be intense. But the FCC should think carefully before O.K.'ing this
proposal. That's because what might appear a straightforward extension of a
10-year-old law is actually a land grab for new surveillance powers. Under
CALEA, surveillance is no longer a "method of last resort" -- the phrase
Congress used when authorizing wiretapping in 1968. Instead, it's a primary
goal.

The FBI's latest request would extend the use of surveillance well beyond
Internet phone companies. Legal experts warn that the ruling would apply to
all ISPs, instant messaging services, even the likes of Sony (SNE ) and
Microsoft (MSFT ), which make Internet-ready video-game consoles for
multiplayer gaming.

"The heart of this debate is about the Fourth Amendment in the 21st
century," says Marc Rotenburg, executive director of the Electronic Privacy
Information Center in Washington, D.C. "Do we tell law enforcement that they
can architect and oversee the development of communications technology, or
do we maintain that they only should have access to information with
reasonable cause and permission from a judge?"

READY TO COOPERATE.  Privacy advocates know how they would answer. But let's
consider the FBI's case. In its petition, the agency claims that
"communications among surveillance targets are being lost and associated
call-identifying information is not being provided in a timely manner"
thanks to "providers who have failed to implement CALEA-compliant intercept
capabilities."

O.K., where's the proof? Anecdotal information and plenty of press reports
in the wake of September 11 reveal that corporations are willing -- often
very willing -- to hand over any data requested by federal law enforcers.
Cable companies such as Time Warner (TWC ) and Cox (COX ) have voluntarily
developed their own wiretapping capabilities, often in concert with the FBI.

And leading consumer VoIP provider Vonage says it has been cooperating with
law enforcement for the past 18 months, handing over call records, logs, and
billing information when material is subpoenaed. It's true that Vonage
doesn't yet have the ability to tap its lines. But to date, it has never
been required by law to intercept calls, according to company spokesperson
Brooke Schultz. Vonage engineers are now developing a standard to meet the
FBI's needs.

BOTTLENECK CHECKPOINTS.  Moreover, since when has tracking information on
the Internet become so difficult? Internet technologies use standard
protocols. And though each call or e-mail is chopped up into hundreds or
thousands of pieces and sent over various routes, each packet hits one of
several Internet bottlenecks.

...
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