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Nothing But Net/Mark McFadden: The Privacy Police

The Justice Department is back in court and I think you should be really nervous. Is it that Microsoft anti-trust thing again? Far from it: this time it’s something that has the potential to be more important in the long term.

More than five years ago Congress passed a law called the Communications Assistance for Law Enforcement Act -- or, CALEA for short. The idea behind CALEA is to ensure that law enforcement organizations have the support and cooperation they need when faced with threats and criminal behavior online. The word online is defined pretty broadly here: it includes telecommunications providers of all kinds.

For a few years after the passage of CALEA, US telecommunications firms negotiated with the Justice Department and the FCC to build a set of rules and procedures that would govern cooperation under CALEA. Eventually those negotiations broke down. And that’s the beginning of the bad news.

In the absence of a negotiated agreement between law enforcement and telecommunications providers, the FCC developed its own rules. First, the FCC ordered all telecommunications providers and equipment manufacturers to build surveillance capabilities into their offerings. That would be understandable, but the FCC went far beyond the original requirements of CALEA. As an example, the FCC requires all digits dialed on a cellular phone, even those dialed after the connection has been made, should be available to surveillance. If you entered a credit card number as part of your dialing, it would be available to law enforcement.

What’s worse, far worse, is that the FCC rules also call for packetized communications -- for instance, TCP/IP packets, the foundation of all Internet communications -- would also be subject to surveillance. Without the need for a warrant! That means Internet communications would not even have the basic protections we have come to expect for traditional phone calls.

A coalition of telecommunications vendors and privacy groups has taken the FCC to court to prevent the implementation of the new law. Is it a big deal? I think so.

Wiretapping and eavesdropping has increased more than 33 percent during the current administration. In addition, a report released last year by the Administrative Office of the US Courts showed that more than half of the 1,277 wiretaps authorized last year were permits to do electronic surveillance. That represented a 17 percent increase in taps on wireless phones, pagers, e-mail and Web browsing.

CALEA grew out of law enforcement’s concern that technology was outpacing law enforcement’s ability to legally obtain information. In fact, at the time CALEA was enacted the FBI said it sought "no expansion of its authority." Unfortunately, as implemented by FCC rule, CALEA turns cellular phones into tracking devices and every copy of Outlook or Eudora into a window on private communications.

The federal courts are being asked to bring CALEA back into line with our expectations of privacy. Anyone who uses the public Internet -- for personal or business use -- should watch this closely and hope that the courts return CALEA to the narrow focus for which it was intended.

About the Author

Scott Bekker is editor in chief of Redmond Channel Partner magazine.