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Controversy Continues Over FCC's Internet Wiretapping Rule

By Gene J. Koprowski
Nov 4, 2005 6:00 AM PT

The controversy over the Federal Communications Commission's proposal to allow wiretapping of Internet telephone calls continues -- as experts on both sides of the question battle it out in federal court and in the court of public opinion.

Controversy Continues Over FCC's Internet Wiretapping Rule

Last week, an alliance of Voice over Internet Protocol (VOIP) telephony providers and technology makers -- including Sun Microsystems -- filed a petition in federal court in Washington D.C. seeking to have the FCC's rule requiring that all future Internet telephone systems be built to accommodate wiretapping technology.

The Center for Democracy and Technology and other interest groups are siding with the phone companies and technology companies, saying that the rules are intrusive.

Experts Disagree

But other legal experts disagree. "I can't see how VOIP should be treated any differently than any other form of communication when it comes to wiretaps," said Patrick Corbett, an associate professor of criminal law and procedure at Cooley Law School and graduate of Michigan State University. [*correction] "The federal wiretap statute -- 18 USC 2510, et seq. -- only authorizes wiretaps for real-time communications after a showing of probable cause, and that other methods of obtaining the info have tried and failed, or were too dangerous to try."

Added Corbett: "Why should it make any difference what method of communication is used?"

The FCC last month finalized its August 5 decision to force broadband Internet access and "interconnected VoIP" services to be designed to make government wiretapping easier, under the terms of the 1994 Communications Assistance for Law Enforcement Act (CALEA).

The rule officially took effect October 13, when the FCC published it in the Federal Register. But, the Center for Democracy and Technology and others are challenging the FCC's order in court, arguing that the decision exceeds the terms of the statute, imposes undue burdens on innovation and threatens the privacy of Internet users.

"We're deeply concerned that extending a law written specifically for the public telephone network to these emerging technologies will stifle the sort of innovation that has been the hallmark of the Internet revolution," said John Morris, staff counsel for CDT.

Grievance About Rule

According to Jeff Pulver, chairman of pulver.com, regarding the federal court notice of appeal from the perspective of Internet innovators and application providers, the current grievance centers on the FCC's attempt to legislate from within an administrative agency.

"The FCC has essentially rewritten the CALEA statute and extended its scope well beyond intended telecom services and upon the Internet," said Pulver. "The debate over the scope of CALEA was fought in Congress during the debate and passage of the CALEA statute, and it was determined that CALEA would not extend to the Internet. Frankly, it is inappropriate for a regulatory body to reinterpret the clear intent of Congress."

*ECT News Network editor's note: The original publication of this article stated that Cooley Law School is part of Michigan State University. The two are in fact separate institutions. We regret the error.


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