FCC bid in U.S. rekindles debate over wiretapping

Regulator wants snooping law to extend to VoIP Critics see it as a privacy grab that won’t boost security

BOSTON — A new method of communicating is creating intriguing services that beat old ways of sending information. But U. S. law enforcement makes a sombre claim: These new networks will become a boon to criminals and terrorists unless the government can easily listen in. With each new advance in communications, the government wants to extend the snooping power that authorities have exercised over phone conversations for a century. Technologists recoil, accusing the government of micromanaging — and potentially limiting — innovation.

Today, this tug of war is playing out over the U. S. Federal Communications Commission’s demands that a phone- wiretapping law be extended to voiceoverInternet services and broadband networks. Opponents are trying to block the plan on various grounds: that it goes beyond the original scope of the law, will force network owners to make complicated changes at their own expense, and have questionable value improving security. No matter who wins the battle over this law — the Communications Assistance for Law Enforcement Act, known as CALEA — this probably won’t be the last time authorities raise hackles by seeking a bird’s eye view over the information flow created by new technology.

Authorities are justified in trying to reduce the ways that technology helps dangerous people operate in the shadows, said Daniel Solove, author of The Digital Person. But “ We have to ask ourselves anew the larger question: What surveillance power should the government have?” said Solove, an assistant professor at George Washington University Law School. ‘‘And to what extent should the government be allowed to manage the development of technology to embody its surveillance capability?’’ A 1928 case, Olmstead v. United States, legitimized wiretapping, when the U.S. Supreme Court ruled it was acceptable for police to monitor the private calls of a suspected bootlegger.

Behind that 5- 4 ruling, however, a seminal debate was raging. The dissenting opinion by Justice Louis Brandeis argued the government had no right to open someone’s mail, so why should a phone — or other technologies that might emerge — be different?

In 1967, the Supreme Court reversed Olmstead. After that, authorities had to get a search warrant before setting wiretaps, even on public payphones.

Since 1980, U. S. authorities also have been able to set secret wiretaps with the approval of the Foreign Intelligence Surveillance Court, which privacy watchdogs say requires a lower standard of evidence than the general warrant process. But technology began to pose obstacles in the 1980s, as oldfashioned telephone networks were giving way to digital switching systems that could also transmit information. Suddenly some wiretaps had to become virtual, using “ packet sniffing’’ programs that spy on the splintered packets of data that make up network traffic. Congress passed CALEA in 1994, requiring carriers to ensure their networks left it relatively easy for police to set wiretaps. The law applied to landline and cellphone networks but essentially exempted the Internet. The FBI also was developing Carnivore, a program that could grab specific emails and other Internet communications defined in a court order. ( The FBI later dropped Carnivore in favour of commercial software; co- operation from Internet service providers often made the technology unnecessary ). And all the while the U. S. National Security Agency was harvesting the fruits of a system called Echelon, intercepting millions of international phone calls and feeding them into the agency’s giant maw for analysis.

Justifiably or not, each of these steps unsettled privacy activists. And it is that unease that colours the current fight over expanding CALEA’s reach to new services such as Voice over Internet Protocol ( VoIP).

Critics of expanding CALEA to broadband networks say the cost of rewiring — estimated as high as $7 billion ( U. S.) for universities alone — is excessive. Those against expanding it to VoIP say it leaves too many holes to be effective. “ If you take the argument to its extreme, every kind of Internet application, including (file-transfer programs) and Web browsing, is capable of transmitting communications. So where does it end?,” said Glenn Manishin, an attorney with Kelley Drye & Warren LLP who has handled telecom regulation cases.

“ Do they now have to have a back door into every Web browser?’’