Court Orders Wiretapping of the Internet

A divided appeals court ruled Friday that the FCC has the power to order broadband internet companies to make their networks wiretap friendly for law enforcement.

In a 2-1 decision (.pdf), the U.S. Circuit Court for the District of Columbia found that cable modem providers and other companies are subject to the Communications Assistance for Law Enforcement Act, or CALEA, the 1994 law that requires phone companies to put law enforcement backdoors in their switching networks.

The law explicitly exempts "information services," and the FCC has previously ruled, while interpreting the 1996 Telecommunications Act, that the internet is a such a service. But the court accepted the FCC's argument that identical language can hold two completely different meanings when such a view is necessary to help law enforcement do its job.

"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."

"The question is,” said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master--that’s all."

Oops. Sorry. That's not from the ruling. That's from Through the Looking Glass by Lewis Carroll. Here's an excerpt from the actual decision.

CALEA's definition of "information service" is virtually identical to the one included in the 1996 Act ... Therefore, [the plaintiff] concludes broadband providers must fall within the ambit of CALEA's identical "information services" exclusion. Notwithstanding the superficial attractiveness of this argument, we disagree

[...]

CALEA -- unlike the 1996 Act -- is a law-enforcement statute.

Dissenting in the ruling is circuit judge Harry Edwards, who described the FCC's position as "gobbledygook" during oral arguments last May.

In determining that broadband Internet providers are subject to CALEA as "telecommunications carriers," and not excluded pursuant to the "information services" exemption, the Commission apparently forgot to read the words of the statute. CALEA does not give the FCC unlimited authority to regulate every telecommunications service that might conceivably be used to assist law enforcement. Quite the contrary. ... It expressly states that the statute's assistance capability requirements "do not apply to [] information services." Broadband Internet is an "information service" -- indeed, the Commission does not dispute this. Therefore, broadband Internet providers are exempt from the substantive provisions of CALEA.

I was first to report it when the FBI and Justice Department began lobbyingfor the enhanced surveillance in 2002. If Friday's ruling stands, universities and broadband ISPs will be on the hook for an expensive retrofitting of their networks with surveillance gear, while law enforcement agencies will enjoy much quicker and easier access to information like a user's e-mail headers and the websites they visit, or -- with a court order -- a real time feed of the target's entire internet stream.

The plaintiff (the American Council on Education) could seek a review before a larger panel of judges. Eventually, the case is likely headed for the Supreme Court.