ACLU Files Challenge to Online Wiretapping Power Grab

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Group Asks Court to Overturn FCC’s Unilateral Grant of New Authority to FBI
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.