Net snooping rules challenged in court

Universities, libraries and technology companies are asking a federal court to block controversial wiretap rules designed to facilitate police surveillance of the internet.

In a 71-page brief sent to the US Court of Appeals in Washington, DC, on Thursday, they asked the judges to overturn a wiretap ruling from the Federal Communications Commission (FCC) that applies to "any type of broadband internet access service" and many internet phone services.

The Bush administration claims that last year's FCC rules are necessary to make it easier to catch "criminals, terrorists and spies" who would otherwise be able to evade detection.

But the organisations behind the lawsuit say Congress never intended to force broadband providers - and private networks at corporations and universities - to build in central surveillance hubs for police convenience. The list of organisations includes the American Association of Community Colleges, the Association of American Universities, the American Library Association, Pulver.com and Sun Microsystems.

Albert Gidari, a partner at Perkins Coie in Seattle who co-authored the document, said: "The brief demonstrates the flaws in the FCC's reasoning and strips away any believability that its legal analysis has any validity."

Even without the FCC rules, which are scheduled to take effect in spring 2007, police have the legal authority to conduct internet wiretaps - that's precisely what the FBI's Carnivore system was designed to do. The FBI argues that the need for "standardised broadband intercept capabilities is especially urgent in light of today's heightened threats to homeland security and the ongoing tendency of criminals to use the most clandestine modes of communication".

Unlike most lawsuits, which are first heard by a judge, a procedural twist sends this one directly to the appeals court. Thursday's filing was expected; the universities and other groups filed a brief notice of appeal on 24 October, and now the Justice Department and the FCC will have a chance to submit their responses.

At issue in this case is the scope of a 1994 US ruling called the Communications Assistance for Law Enforcement Act, or Calea. It required telephone companies to rewire their networks and switches - at taxpayer expense - to guarantee police access to features such as extracting touch tones pressed during a call, conference call information, call waiting data, and so on.

Opponents of the FBI's demands argue that Congress explicitly said Calea would not apply to the internet. A House of Representatives committee report prepared in October 1994 said Calea's requirements "do not apply to information services such as electronic-mail services; or online services such as CompuServe, Prodigy, America Online or Mead Data; or to internet service providers".

According to the brief filed on Thursday, the Bush administration is "relying on an interpretation of Calea that is contrary to the plain meaning of the statute, arbitrary and capricious, and otherwise not in accordance with law".

In an unusual twist, some of the FCC commissioners who unanimously approved the wiretapping rules have acknowledged that the agency was on shaky legal ground. Commissioner Kathleen Abernathy, for instance, said she had "concern that an approach like the one we adopt today is not without legal risk".

Declan McCullagh writes for CNET News.com