TELECOM Digest OnLine - Sorted: Court Also Backs Government on Broadband Wiretap Access

Court Also Backs Government on Broadband Wiretap Access

Peter Kaplan (
Sat, 10 Jun 2006 16:28:18 -0500

By Peter Kaplan

A U.S. appeals court on Friday upheld the government's authority to force
high-speed Internet service providers to give law enforcement authorities
access for surveillance purposes.

The U.S. Court of Appeals for the District of Columbia Circuit rejected a
petition aimed at overturning a decision by regulators requiring
facilities-based broadband providers and those that offer Internet telephone
service to comply with U.S. wiretap laws.

In a split decision, two of three judges on the panel concluded that the
2005 Federal Communications Commission requirement was a "reasonable policy
choice" even though information services are exempted from the government's
wiretapping authority.

The FCC has set a May 14, 2007, deadline for compliance, and the ruling drew
praise from the FCC and the Justice Department, which sought the access.

"Today's decision will ensure that technology does not impede the
capabilities of law enforcement to provide for the safety and security of
our nation," the department said in a statement.

But the chief author of the 1994 wiretapping law, U.S. Sen. Patrick Leahy
(news, bio, voting record), criticized the court's decision, saying Congress
had deliberately excluded the Internet when it wrote the wiretap law.

"The court's expansion of (the wiretapping law) to cover the Internet is
troubling, and it is not what Congress intended," Leahy, a Vermont Democrat,
said in a statement.

The ruling comes at a time when some lawmakers have voiced concern that the
Bush administration's communications surveillance program violates civil

The administration has countered that it needs the program, which allows the
National Security Agency to monitor international telephone calls of U.S.
citizens, as part of its broader war on terrorism.

Authorities want to be able to access e-mails and other communications
because of concerns that the proliferation of Internet communications could
allow criminals to circumvent wiretaps by using e-mail and Internet phone
services instead of traditional telephone services.

Private networks would not be subject to the wiretap requirements, but those
connected with a public network would have to comply with the law.

The FCC decision last year prompted an appeal by universities and libraries.
The groups, including the American Library Association and Association of
American Universities, challenged the agency's authority to extend such
requirements to high-speed Internet services.

The FCC has considered broadband Internet in the category of an "information
service," insulating it from many regulations.

But in an opinion written by Judge David Sentelle, the appeals court said
the same words could be defined differently by the FCC in applying the
wiretapping law.

In a dissenting opinion, one of the judges, Harry Edwards, called the
argument "convoluted."

"The agency has simply abandoned the well-understood meaning of 'information
services' without offering any coherent alternative interpretation in its
place," Edwards said.

A lawyer who represents some of the groups that challenged the FCC said
Edwards' dissent makes the case a good candidate for appeal.

"We will give serious consideration to asking for Supreme Court review,"
said Andrew Schwartzman, president of Media Access Project, a co-counsel for
the groups.

Copyright © 2006 Reuters Limited.

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