Tech group appeals ISP wiretapping diktat

A coalition of civil liberties groups and technology companies, including Pulver.com and Sun Microsystems, is appealing a US federal court ruling that forces ISPs to create backdoors for government wiretapping.

The coalition on Friday asked the full US Court of Appeals in Washington, DC, to review a 9 June ruling that sided with the Bush administration.

That 2-1 ruling said internet providers must rewire their networks and follow a complex scheme of eavesdropping regulations. The deadline is set for May 2007.

The groups behind the appeal, called an "en banc" rehearing, say they're happy to comply with legitimate court orders.

What they're upset about are the cost, difficulty and the privacy concerns involved in building in backdoors for eavesdropping. They argue that the Federal Communications Commission (FCC), when approving the requirements, went beyond what federal law actually permits.

No law enforcement agency has identified "any obstacles to intercepting internet communications in the absence of [the FCC's regulations], and indeed as far as the record on appeal reveals, 100 per cent of attempted interceptions of internet communications to date have been successful," the brief said.

Even without the FCC rules, police have the legal authority to conduct internet wiretaps - that's precisely what the FBI's Carnivore system was designed to do. Still, the FBI has claimed, 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".

At issue in this spat are legal arcana found in the 1994 Communications Assistance for Law Enforcement Act, or Calea.

The dispute centres on whether Calea can be extended to "information services", which Congress appeared to exempt in 1994. Al Gidari, a partner at Perkins Coie in Seattle representing the plaintiffs, said: "There's no ambiguity or tension that needs to be resolved. Congress excluded information services."

Calea established a then-radical legal principle: it would be illegal to provide telephone service to the public unless wiretapping hubs were built in for police convenience. Congress created a $500m fund to reimburse telephone companies for hardware upgrades.

In mid-2003, representatives of the FBI's Electronic Surveillance Technology Section began quietly lobbying the FCC to force broadband providers to provide more efficient, standardised surveillance facilities as well. The Drug Enforcement Administration and Justice Department eventually signed on too.

The 2-1 court opinion published in June agreed with the police agencies that the FCC made a "reasonable policy choice" when approving the wiretapping regulations.

Judge Harry Edwards, who had called the FCC's arguments "gobbledygook" and "nonsense" during oral arguments before the appeals court, dissented. He said Calea does not give federal regulators "unlimited authority to regulate every telecommunications service that might conceivably be used to assist law enforcement".

Friday's brief takes the same approach. It said: "With Calea, Congress clearly indicated that the statute would stop at the internet. If law enforcement can demonstrate to Congress a need to extend Calea to the internet - something the government has wholly failed to do in this proceeding - then Congress, and only Congress, has the power to change the stopping point set out in the statutory language."

The FBI has drafted legislation that would put its net-surveillance push on solid legal footing. It has not yet been formally introduced.

Declan McCullagh writes for CNET News.com