Federal Agency Overreaches in Effort to Wiretap Internet Communications

File Under: 2006, Telecommunications

Feb 7, 2006

WASHINGTON – The Computer & Communications Industry Association (CCIA) today released the following statement in reaction to recent actions by the Federal Communications Commission (FCC) that imperil basic civil liberties of American citizens:

CCIA regrets that the Federal Communications Commission (FCC) is advancing an agenda that endangers the basic rights of millions of Americans. However temporarily appealing it may seem to fight the "evils du jour," the Federal government’s persistent efforts make it easier to spy o n not just terrorists or criminals, but law-abiding citizens as well. Our Founding Fathers were well aware of the omnipresent presence of evil in the world. However, they recognized such evil does not justify indiscriminate government intrusion. Their brilliance was in their commitment to checking the power of the federal government. Where the potential for abuse exists, it often occurs. The First and Fourth Amendments were conditioned o n precisely this principle: The capacity to use government power for good can easily result in excess and overreaching, and place undesirable burdens o n the innocent.

The FCC’s actions to facilitate surveillance of Internet communications is yet another example of federal government overreaching. This effort, currently being questioned before a federal court of appeals, will place an undue burden o n the rights of average citizens and o n those of thousands of innovative companies in an important, expanding market.

The controversial FCC order adopted in August 2005 requires broadband Internet providers and Voice over Internet Protocol (VoIP) companies to configure their networks for simplified eavesdropping by law enforcement agencies. In addition to being fundamentally flawed, the FCC’s rigid 18-month deadline for compliance provides little technical guidance and, as a result, is not feasible given the scope of the ambiguous order.

In its First Report and Order, the FCC recognized that "broadband Internet access providers today are subject to a number of electronic surveillance statutes that compel their cooperation with law enforcement agencies." Because these agencies already possess the tools necessary to enlist service providers’ assistance in electronic surveillance, this order fails to justify the burden it will impose o n private companies and institutions.

When enacting the Communications Assistance for Law Enforcement Act (CALEA) in 1994, Congress recognized the potential value and benefits of the Internet and the problems inherent in constraining Internet companies with design mandates. Consequently, Congress explicitly exempted the Internet from the provisions of the law. Extending CALEA beyond—and in conflict with—congressional intent by regulatory fiat is unwise policy and well outside the authority vested in the FCC by Congress.

The FCC order imposes:

• a government "back door" into Internet communications applications and private institutions that threatens privacy o nline
• a significant and unjustified burden o n anyone who routes Internet traffic, including private universities and VoIP companies
• increased overhead costs and barriers to entry in a fragile, emerging market
• industry compliance with a timetable that is neither clear nor technically feasible

"Broadening CALEA to include the Internet will further cast a shadow of surveillance on all Internet users and impose significant burdens o n well-functioning, emerging markets," CCIA president Ed Black said. "This is another example of ill-conceived, heavy handed government regulation that will stymie innovation and threaten privacy."

Contact: Will Rodger, 202-783-0070 ext. 105