TELECOM Digest OnLine - Sorted: Appeals Court Backs Bush on Wiretaps

Appeals Court Backs Bush on Wiretaps

Pete Yost (
Sat, 10 Jun 2006 16:26:02 -0500

By PETE YOST, Associated Press Writer

A federal appeals court sided with the Bush administration Friday on
an electronic surveillance issue, making it easier to tap into
Internet phone calls and broadband transmissions.

The court ruled 2-1 in favor of the Federal Communications Commission,
which says equipment using the new technologies must be able to
accommodate police wiretaps under the 1994 Communications Assistance
for Law Enforcement Act, known as CALEA.

Judge David Sentelle called the agency's reading of the law a
reasonable interpretation. In dissent, Judge Harry Edwards said the
FCC gutted an exemption for information services that he said covered
the Internet and broadband.

The FCC "apparently forgot to read the words of the statute," Edwards

FCC chairman Kevin Martin said the decision ensures that law
enforcement's ability to conduct court-ordered electronic surveillance
will keep pace with new technology.

Democratic Sen. Patrick Leahy of Vermont, primary sponsor of CALEA,
called the court's decision contrary to congressional intent, saying
it stretches a law written for "the telephone system of 1994 to cover
the Internet of 2006."

Education groups challenged the FCC rule because they said the
requirements would impose burdensome new costs on private university
networks. They argued that broadband Internet access is an information
service beyond the reach of CALEA.

The American Council on Education said it was encouraged by part of
the court's ruling that the law does not apply to private networks,
which include many research institutions and corporations.

But more broadly, "we believe we had established a strong legal case
that CALEA did not apply to providers of facilities-based Internet
access or voice-over-IP," the education council said.

Challengers to the FCC rule focused on a Supreme Court case upholding
the FCC's classification of broadband as an integrated information
service under the Telecommunications Act of 1996. Therefore, the
education groups said, broadband providers must fall within the
exemption for information services in CALEA.

But the appeals court said CALEA and the Telecom act are different
laws and that the Supreme Court did not find that broadband Internet
access was exclusively an information service.

The two laws reflect different objectives and the commission made a
reasonable policy choice, wrote Sentelle, an appointee of President

Jim Dempsey, policy director of the Center for Democracy & Technology,
a private group, said the decision "threatens the privacy rights of
innocent Americans as well as the ability of technology companies to
innovate freely."

Judge Janice Rogers Brown, who sided with Sentelle, is an appointee of
President George W. Bush. Edwards was appointed by President Carter.

Copyright 2006 The Associated Press.

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