Easier Internet Wiretaps Sought:

Justice Dept., FBI Want Consumers To Pay the Cost"

Dan Eggen and Jonathan Krim,
Washington Post

The U.S. 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."