Feds: No warrants for Net wiretaps
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.
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.
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.