Court Says FCC Gives FBI Too Much Wiretap Power was: Re: Right to Privacy Too Often Overlooked

[Henk Elegeert]

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http://www.washingtonpost.com/wp-dyn/articles/A32193-2000Aug15.html

Court Says FCC Gives FBI Too Much Wiretap Power

"
By John Schwartz
Washington Post Staff Writer
Wednesday, August 16, 2000 ; E01

Federal regulators have given the FBI too much authority to wiretap
cellular phones and should rewrite the rules to give greater
consideration to consumer privacy and industry expense, a federal
appeals court ruled yesterday.

The decision by a three-judge panel of the U.S. Court of Appeals for the
District of Columbia involves a court challenge to rules passed by the
Federal Communications Commission to implement a 1994 electronic wiretap
law, the Communications Assistance for Law Enforcement Act (CALEA). The
FBI argued in pushing for the new law that it was losing ground against
criminals because many of the emerging wireless telephone companies were
not designing wiretapping capabilities into their networks. At the time,
FBI Director Louis J. Freeh pledged to Congress that he was asking only
to preserve current wiretap capabilities.

After the law was passed, however, telecommunications companies and
civil liberties groups accused the FBI of making demands that
overstepped the powers that Congress granted. The agency demanded a
"punch list" of capabilities that included telephone numbers of calls
completed using calling cards as well as signaling information related
to custom calling features such as call waiting and conference calling.
It also demanded that the companies provide technology that could allow
law enforcement agents to track the location of cell-phone users and to
monitor data sent in the digital format used by computers.

Courts have long ruled that "pen register" and "trap and trace"
devices--technologies that scoop the telephone numbers that a suspect
dials and the telephone numbers of those who dial the suspect--do not
need the full court orders required for conventional wiretaps. The FBI
argued that the punch list's items involved information of a similar
nature.

But Theodore B. Olson, the Washington lawyer who argued the case for the
industry, noted that people now use the telephone to enter credit-card
information, pharmaceutical prescriptions and other sensitive personal
data.

Tom Wheeler of the Cellular Telecommunications Industry Association
stressed that his companies have long cooperated with government in
providing court-authorized wiretaps. "This was a question about 'Should
the law be expanded without congressional consent?' " he said.

After the FCC largely backed the FBI's interpretation, privacy groups
and telecommunications companies asked the federal courts to review the
FCC order.

In yesterday's decision, the court ruled that the FCC had been too
accommodating to law enforcement without paying enough attention to the
privacy of citizens or the financial needs of the companies. "The
statute requires the Commission to consider more than the burden on law
enforcement," the court wrote. "After all, any privacy protections
burden law enforcement to some extent."

The court was blunt in its language toward the law enforcement officials
and regulators. Noting that FCC officials had testified that "we
addressed ourselves to the privacy questions with a little bit of hand
wringing and worrying," the court responded:
"Neither hand wringing nor worrying can substitute for reasoned
decisionmaking."

The decision suggests courts could also raise questions about similar
forms of wiretapping, such as the Internet wiretap system Carnivore,
created by the FBI for use at Internet service providers. The system is
controversial because it samples large streams of data--potentially, the
computer communications from every customer of the provider--and sifts
out the information related to the suspect. Because the FBI says the
system can be fine-tuned to hand over only data about the senders and
recipients of the suspect's e-mail, it should require the same light
oversight as devices in the telephone world, which gather only incoming
or outgoing telephone numbers, and which can be implemented with a very
low standard of proof or oversight.

The FBI has argued that because the Carnivore machine strips away any
information that law enforcement officials aren't entitled to see, the
system actually protects privacy and the agency ought to be allowed to
conduct the initially broad data sweep since the result is so selective.

The court did not deal directly with Carnivore, but in discussing the
monitoring of computer data, it rejected such an interpretation.
"Nothing in the Commission's treatment of packet-mode data requires
carriers to turn over call content to law enforcement agencies absent
lawful authorization." Although the FCC appeared to have interpreted the
provisions of CALEA "as expanding the authority of law enforcement
agencies to obtain the contents of communications . . . the Commission
was simply mistaken," the court wrote.

"That means government cannot get its hands on what it's not authorized
to get just by promising it won't read what it's not supposed to read,"
said James Dempsey of the Center for Democracy and Technology, one of
the groups that fought the FBI.

"That whole program is in very, very big trouble here," Olson said. "If
I were in government, I would say, 'we'd better go back to the drawing
board right away.' "

A Justice Department official said the department was reviewing the
opinion. "We hope and plan to prevail in the FCC," said Assistant
Attorney General Stephen Colgate, "and want to ensure that the issues
the court asked to be addressed such as cost and privacy are adequately
addressed."

Colgate characterized the decision less as a defeat than as a teacher
returning a paper to a student for additional work. "It's sort of like
we got an incomplete grade," Colgate said.

Staff writer Neely Tucker contributed to this report.
"

Als ook hier dat besef zou kunnen doordringen.....

Henk Elegeert

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