Groups Challenge FBI Wiretap Standards, Say FCC Decision Threatens Communications Privacy

January 20, 2000 12:00 am

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WASHINGTON, DC — Leading Internet privacy advocates today asked a federal appeals court to block new rules that would enable the FBI to dictate the design of the nation’s communication infrastructure. The challenged rules would enable the Bureau to track the physical locations of cellular phone users and potentially monitor Internet traffic.

In a brief filed with the U.S. Court of Appeals for the District of Columbia Circuit, the Electronic Privacy Information Center (EPIC), American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) say that the rules — contained in a Federal Communications Commission (FCC) decision issued last August — could result in a significant increase in government interception of digital communications.

The court challenge involves the Communications Assistance for Law Enforcement Act (CALEA), a controversial law enacted by Congress in 1994, which requires the telecommunications industry to design its systems in compliance with FBI technical requirements to facilitate electronic surveillance. In negotiations over the last few years, the FBI and industry representatives were unable to agree upon those standards, resulting in the recent FCC ruling. EPIC, ACLU and EFF participated as parties in the FCC proceeding and argued that the privacy rights of Americans must be protected.

Today’s court filing asserts that the FCC ruling exceeds the requirements of CALEA and frustrates the privacy interests protected by federal statutes and the Fourth Amendment. Among other things, the Commission order would require telecommunications providers to determine the physical locations of cellular phone users and deliver “packet-mode communications” — such as those that carry Internet traffic — to law enforcement agencies.

According to EPIC’s General Counsel, David L. Sobel, “The FBI is seeking surveillance capabilities that far exceed the powers law enforcement has had in the past and is entitled to under the law. It is disappointing that the FCC resolved this issue in favor of police powers and against privacy.”

Sobel said that the appeals court challenge “raises fundamental privacy issues affecting the American public. This case will likely define the privacy standards for the nation’s telecommunication networks, including the cellular systems and the Internet.”

In a report issued last year, the ACLU warned that the Clinton Administration is using scare tactics to acquire vast new powers to spy on all Americans.

“If the FBI has its way, the only communications medium invulnerable to government snooping will consist of two soup cans and some string — and even then, I’d be careful,” said Barry Steinhardt, Associate Director of the ACLU.

“We are now at a historic crossroad,” Steinhardt added. “We can use emerging technologies to protect our personal privacy, or we can succumb to scare tactics and to exaggerated claims about the law enforcement value of electronic surveillance and give up our cherished rights, perhaps — forever.”

“The government has been asking for more wiretapping authority than it has ever had before,” added EFF Director of Legal Services, Shari Steele. “Just as more of our communications are becoming digital, law enforcement is getting even greater access. Whatever privacy balance we may have achieved in the past is completely decimated by the FCC’s interpretation of CALEA.”

The privacy groups are being represented on a pro bono basis by Kurt Wimmer and Gerard J. Waldron, attorneys at the Washington law firm of Covington & Burling, and Carlos Perez-Albuerne, an attorney at the Boston law firm of Chaote, Hall & Stewart.

Oral argument in the court challenge to the CALEA standards is scheduled for May 17, 2000.

The Electronic Privacy Information Center (http://www.epic.org) is a non-profit research and advocacy organization based in Washington, DC. It was established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and constitutional values in emerging communications media.

The American Civil Liberties Union is the nation’s largest and oldest civil liberties organization. In its defense of the principles of the Bill of Rights, it advocates for both free speech and privacy rights.

The Electronic Frontier Foundation (http://www.eff.org) is a leading global nonprofit organization linking technical architectures with legal frameworks to support the rights of individuals in an open society. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF maintains one of the most-linked-to Web sites in the world.

Background materials on CALEA, including documents filed by EPIC, ACLU and EFF with the Federal Communications Commission, are available at EPIC’s website: http://www.epic.org/privacy/wiretap/.

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