http://www.washingtonpost.com/ac2/wp-dyn/A54512-2004Mar12

Easier Internet Wiretaps Sought Justice Dept., FBI Want Consumers To Pay
the Cost

By Dan Eggen and Jonathan Krim Washington Post Staff Writers Saturday,
March 13, 2004; Page A01

The 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."


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