- The Washington Times - Friday, June 9, 2006


A federal appeals court sided with the Bush administration yesterday on an electronic surveillance issue, making it easier to tap into Internet phone calls and broadband transmissions.

The court ruled 2-1 in favor of the Federal Communications Commission, which says equipment using the new technologies must be able to accommodate police wiretaps under the 1994 Communications Assistance for Law Enforcement Act, known as CALEA.

Judge David Sentelle called the agency’s reading of the law a reasonable interpretation. In dissent, Judge Harry Edwards said the FCC gutted an exemption for information services that he said covered the Internet and broadband.

The FCC “apparently forgot to read the words of the statute,” Judge Edwards wrote.

FCC Chairman Kevin J. Martin said the decision ensures that law enforcement’s ability to conduct court-ordered electronic surveillance will keep pace with new technology.

Sen. Patrick J. Leahy, Vermont Democrat, primary sponsor of CALEA, called the court’s decision contrary to congressional intent, saying it stretches a law written for “the telephone system of 1994 to cover the Internet of 2006.”

Education groups challenged the FCC rule because they said the requirements would impose burdensome new costs on private university networks. They argued that broadband Internet access is an information service beyond the reach of CALEA.

The American Council on Education said it was encouraged by part of the court’s ruling that the law does not apply to private networks, which include many research institutions and corporations.

But more broadly, “we believe we had established a strong legal case that CALEA did not apply to providers of facilities-based Internet access or [Voice over Internet Protocol],” the education council said.

Challengers to the FCC rule focused on a Supreme Court case upholding the FCC’s classification of broadband as an integrated information service under the Telecommunications Act of 1996. Therefore, the education groups said, broadband providers must fall within the exemption for information services in CALEA.

But the appeals court said CALEA and the telecom act are different laws and that the Supreme Court did not find that broadband Internet access was exclusively an information service.

The two laws reflect different objectives and the commission made a reasonable policy choice, wrote Judge Sentelle, who was appointed by President Reagan.

Jim Dempsey, policy director of the Center for Democracy and Technology, a private group, said the decision “threatens the privacy rights of innocent Americans as well as the ability of technology companies to innovate freely.”

Judge Janice Rogers Brown, who sided with Judge Sentelle, is an appointee of President Bush. Judge Edwards was appointed by President Carter.

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