FBI Proposes Increased Wiretapping Privileges

Proposal to FCC Backed by Bush Administration

By John Erzen

Staff Writer

In a move that may signal the Bush Administration's intention to seek additional legislation that some have dubbed "Patriot Act II", the Federal Bureau of Investigation recently submitted an 85-page filing to the Federal Communications Commission requesting that all broadband Internet providers rewire their networks, making it easier for police to perform wiretaps. The proposal, which has the backing of the Bush Administration, would require companies to build back doors into programs ranging from instant messaging and voice over Internet Protocol to live video game service such as Microsoft's Xbox.

The FBI already has a program called "Carnivore", developed during the Clinton Administration, which was installed on equipment of Internet service providers to monitor e-mail and web site visits of suspected terrorists. Because of the 21st Century Department of Justice Authorization Act, the Justice Department is required to report to Congress its use of Carnivore and other types of Internet monitoring software.

Comcast and Time Warner Cable, two companies whose services would be affected, have refused comment on the proposal. Other companies such as AT&T say they will comply with all law enforcement requests if technically possible. Verizon officials said they have already complied with a request to tap into a DSL line.

If the proposal, supported by the U.S. Department of Justice and the Drug Enforcement Administration, becomes law, companies would have 15 months to comply.

A provision of the 1994 Communications Assistance for Law Enforcement Act (CALEA) required telephone companies to standardized surveillance facilities for wiretapping purposes, something that Internet only service providers are not required to do. Some broadband companies are already in the process of creating a code of conduct to address similar concerns raised by the FBI, but the process is currently voluntary.

Representatives from the FBI's Electronic Surveillance Technology Section have argued that these regulations must be placed on broadband Internet providers, otherwise terrorists could avoid wiretaps by making calls over the Internet instead of a land line.

Some officials say while the proposal would increase the FBI's wiretapping powers, it would also raise costs for broadband services and make Internet product development more difficult.

Congressman Albert Wynn (D-Maryland) is against this idea, saying it is a way to tax Internet services that Democrats have opposed.

"I believe [raising the costs of services] is wrong," Wynn stated. "They ought to be financed under homeland security. Under no circumstance should that cost go on to consumers or providers in a way that would inhibit technology."

This would not be the first time Internet Service Providers (ISP's) have been targeted. In 2002, Congress passed the Cyber Security Enhancement Act, lowering the threshold for when ISP's can divulge the content of Internet communications and to whom. Prior to its passage, ISPs needed a "reasonable" belief that there was an emergency of "immediate" danger, death or serious injury before they could report it to a law enforcement agency. Now ISPs need only to have a "good faith" belief that an emergency involving danger exists and they must report this to a federal, state or local government entity.

The new rules and regulations stem from the Patriot Act, passed after the September 11th attacks. The law says authorities can jail individuals (citizens and non-citizens of the United States) indefinitely if the President declares the person an "enemy combatant."

Officials from the American Civil Liberties Union (ACLU), the Center for Democracy and Technology (CDT) and the Electronic Privacy Information Center (EPIC) have urged caution in attempts to locate and punish terrorists who threaten democracy because individuals' privacy, a fundamental tenet of that democracy, may also be threatened.

Congressman Steny Hoyer (D-Maryland) agrees with doing what is necessary to fight the war on terror, but says American's civil liberties must not be violated in the process.

"Our nation must provide the appropriate agencies with the tools necessary to combat the sophisticated, world-wide networks of terrorists that would do our nation and our people great harm, but these tools must be properly balanced with ensuring that our fundamental civil rights and liberties are protected," Hoyer stated.

Additionally, Hoyer said the legislation must be openly and publicly debated in Congress.

Some local officials have expressed concern over the Patriot Act and have taken steps to prevent it from being enforced in Prince George's County.

Last November the County Council passed legislation calling for the county attorney and police to not cooperate with federal authorities under the powers of the Patriot Act.

The resolution specifically states that county authorities will not provide surveillance of groups or individuals and "whether acting alone or with federal or state authorities will not collect information about the political, religious, or social views of groups or individuals."

The resolution was spearheaded by Councilman Tom Hendershot (D-PG 3rd District) who argued that the Patriot Act "conflicts with the constitutional rights of residents and employees of Prince George's County."

Council members Marilynn Bland (D-PG 9th District), Camille Exum (D-PG 7th District) and Doug Peters (D-PG 4th District) co-sponsored the resolution.

When informed of the FBI's proposal, Hendershot said he was not against making it technologically easier for police to perform wiretaps, but they must have the proper permission and warrants from the court to do so.

"I want [the police] to be able to do what they have to do but I don't want them to be able to run roughshod over the Bill of Rights and individual privacy to do it. What is important to me is that the appropriate privacy protections be in place."

Under CALEA, police would still be required to follow standard legal procedures when tapping Internet communications, however, some of those taps would not require court approval because of the expanded wiretapping powers set forth in the Patriot Act.

"I think that's wrong," Hendershot stated. "We have to be careful about giving the government too much authority to interfere in our private lives. We need that protection and we ought not to use the war on terror to [violate those rights]."

"I believe the same standards that apply to telephone wiretapping should apply to the Internet," Wynn said. "You have to go before a judge and prove probably cause and that should be the standard. Any time you dispense with probable cause and don't appear before a judge, it's gone too far."

Wynn also argues that any agency that performs a wiretap without proving probable cause and obtaining a warrant should face severe penalties if the tap does not lead to anything.

"The [wiretapping] process is set up for a reason and [law enforcement agencies] have to justify their reasons for doing a wiretap," Peters said, expressing his agreement with Hendershot and Wynn.

Along with a possible infringement on people's rights, Peters, like Wynn, is concerned that Internet service providers will have to spend money to rewire their systems and those costs will be passed on to consumers. Peters, a veteran of Operation Desert Storm, supports the war on terror and U.S. troops overseas, but feels the government must be vigilant when protecting civil liberties.

"We can support our troops overseas and root out terrorism in the United States, but we have to balance that with people's rights."

© Berlyn, Incorporated. All rights reserved.