The D.C. Circuit Court of Appeals upheld the Bush Administration's rules for Internet surveillance, saying the FCC made a "reasonable policy choice," News.com reports.
Judge Harry Edwards, who had called the FCC's arguments "gobbledygook" and "nonsense" during oral arguments before the appeals court last month, dissented. He said the 1994 Communications Assistance for Law Enforcement Act, or CALEA, does not give the FCC "unlimited authority to regulate every telecommunications service that might conceivably be used to assist law enforcement."
The FCC rules include VoIP companies, but not instant messaging and peer-to-peer VoIP systems, like the original Skype.
The ruling contradicts the opinion of even some FCC commissioners who voted for the rules. Michael Copps, a Democrat, warned at the time that if a court case leads to the rules being struck down, the move may have done "more harm than good." The FCC's logic, he said, was "built on very complicated legal ground."
The issue of Internet and telephone surveillance is creating high-pressure rifts in the Republican party as Sen. Arlen Specter accused VP Dick Cheney of going behind his back by getting other members of the Senate Judiciary Committee to block Specter's efforts to have telephone companies testify about domestic spying, the New York Times reported.
The rules known as CALEA does not apply to "information services," and opponents of the rules argued that Internet access qualifies as a service. They also claimed that the FCC unlawfully extended CALEA to apply to private networks, such as ones operated by a university or corporation. A majority (two of three) of the Appeals panel disagreed, saying where statutory language is ambiguous, the FCC should have leeway to interpret. The plaintiffs could ask for hearing by the full Appeals Court (en banc) or appeal to the Supreme Court.
A House of Representatives committee report prepared in October 1994 emphatically says CALEA's requirements "do not apply to information services such as electronic-mail services; or online services such as CompuServe, Prodigy, America Online or Mead Data (Central); or to Internet service providers."
When Congress was debating CALEA, then-FBI Director Louis Freeh reassured nervous senators that the law would be limited to telephone calls. "So what we are looking for is strictly telephone--what is said over a telephone?" Sen. Larry Pressler, R-S.D., asked during one hearing.
Freeh replied: "That is the way I understand it. Yes, sir."