NEW YORK—The American Civil Liberties Union today filed a legal
challenge to an order from the Federal Communications Commission (FCC) that
would dramatically increase the government’s surveillance powers on the
Internet.
“The FCC has unilaterally granted the FBI a
sweeping expansion of its surveillance powers on the Internet, far in excess of
what Congress authorized or intended,” said Chris Calabrese, Program Counsel for
the ACLU’s Technology and Liberty Project. “If the Justice Department or
the FCC want to expand surveillance powers, they need to go back and ask
Congress to vote on it. In the meantime, we are asking the Court to rein
the Commission back in.”
At issue is the Communications Assistance
for Law Enforcement Act (CALEA), a controversial 1994 law that allows the FBI to
force the telecommunications industry to build its technology in particular ways
in order to make wiretapping easier. When Congress approved the statute,
it restricted its application to traditional telephone companies, while
explicitly exempting “information services” such as the Internet. But, at
the prompting of the Department of Justice, the FCC ruled in September that
CALEA does apply to companies that provide software allowing Internet users to
talk to each other and users of regular telephones – so-called “Voice Over
Internet Protocol” applications, or VOIP.
“The fledgling Internet
phone industry is still experimenting with a variety of technologies, and serves
just a small niche, yet the government would force companies to engineer
wiretapping capabilities into every new product they develop – before they’ve
even worked out the bugs or tested their success in the marketplace,” said
Gerard J. Waldron, a partner at the Washington law firm of Covington &
Burling, which is representing the ACLU on a pro bono basis. “Congress
didn’t want to extend these trap-door requirements to the Internet and said so
clearly.”
The ACLU compared the FCC’s order to a law
requiring all new homes be built with a peephole for law enforcement agents to
look through, and said it was vital for the future of privacy on the Internet
that these powers be reined in.
“The courts already slapped
down the government once for trying to go beyond Congress’s intent on CALEA,”
said Calabrese, referring to a 2000 ruling by a Washington, D.C. appeals
court. “That case had to do with the details of the law’s application to
the industry the Congress intended to cover—the companies offering ‘plain old
telephone service.’ This case goes well beyond traditional telephone service and
straight to the Internet. It’s as if they failed trying to move the goal
line – and now they’re attempting to claim an entirely new
stadium.”
The ACLU’s legal motion was filed today with the District
of Columbia Circuit Court of Appeals. A copy of the motion is online at www.aclu.org/privacy/spying/22044lgl20051201.html.
Comments
filed by the ACLU in response to the FCC’s original draft order are online at www.aclu.org/privacy/spying/15255res20040412.html.