COMMENTARY--A new U.S. government decision extending wiretapping regulations to the Internet raises far more questions than it answers.
The Federal Communications Commission voted 5-0 last week to prohibit businesses from offering broadband or Internet phone service unless they provide police with back doors for wiretapping access. Formal regulations are expected by early next year.
But the commissioners didn't give the FBI and its allies at the Justice Department and the Drug Enforcement Administration everything they wanted.
In the police agencies' original request, submitted in March, they asked the FCC to force surveillance back doors into instant-messaging programs and voice over Internet Protocol (VoIP) applications that do not use the traditional telephone network. The FCC politely declined, with Chairman Michael Powell saying those services were exempt from the Communications Assistance for Law Enforcement Act (CALEA) and that it was "unnecessary to identify future services and entities subject to" mandatory wiretapping requirements.
So what happens next? Here are some questions that could be asked of Attorney General John Ashcroft and FBI Director Robert Mueller:
• Your request to the FCC said that broadband and VoIP companies may raise prices to "recover their CALEA implementation costs from their customers." How do you square higher prices with President Bush's speech in March calling for "affordable broadband" for all Americans?
• Congress gave telephone companies $500 million to buy new equipment to comply with CALEA. Why should Internet companies not receive the same treatment? Is it because Verizon, SBC and the other former Bells have well-connected lobbying outposts in Washington, D.C.--but Vonage, 8x8 and other VoIP start-ups do not?
• Skype CEO Niklas Zennstrom told me last fall that "we do not have any legal obligation to provide any means for interception" in his company's VoIP software. How will you force a company based in Luxembourg to insert back doors in its software when it has no obligation to do so?
• Even if Skype redesigned its software to satisfy the FBI, how would you stop its users from switching to a competitor that offered secure communications without back doors for police surveillance? Why would criminals, terrorists and other miscreants choose to use eavesdropping-enabled software if a secure option was available?
• The FBI rarely gives up when it comes to demanding eavesdropping access. Your predecessors Louis Freeh and Janet Reno strong-armed Congress into approving CALEA on Oct. 7, 1994, one day before politicians left town for a fall recess. Capitol Hill is already considering VoIP regulation--will the FBI now ask Congress for regulatory power over peer-to-peer VoIP applications and instant messaging?
• The popular SourceForge.net site lists dozens of free VoIP applications and programming libraries without FBI back doors. Fortunately for you, SourceForge.net is run by VA Software of Fremont, Calif., and is under U.S. jurisdiction. Should VA Software be permitted to continue distributing VoIP programs that don't guarantee access to the FBI?
• Skype, PGPfone, and the still-incomplete GPGfone intentionally glue encryption into their VoIP applications to make them untappable. Your predecessor, Louis Freeh, lobbied Congress to ban strong encryption, and one House of Representatives committee agreed to his proposal in 1997. Will you pick up where he left off?
• Conservative groups including Americans for Tax Reform, the Free Congress Foundation and the Rutherford Institute warn that granting your requests would "drive up costs, impair and delay innovation, threaten privacy and force development of the latest Internet innovations offshore." These groups share President Bush's commitment to the war on terror and backed you, John Ashcroft, when your nomination to be attorney general was foundering in the Senate. When they suggest other ways to accomplish your stated goal of protecting America, might they be right?
• Two of the FCC's five commissioners expressed reservations about the legality of extending CALEA to broadband and certain VoIP services. Commissioner Michael Copps warned: "If these proposals become the rules and reasons we have to defend in court, we may find ourselves making a stand on very shaky ground." Do you think that the FCC has the authority to extend CALEA to the Internet, given that Congress explicitly rejected that notion a decade ago?
• You've been saying that terrorists may use VoIP services to "evade lawful electronic surveillance." But the only detailed court statistics available show that 77 percent of wiretap applications were for drug crimes, and terrorism-related offenses were so few they didn't even make the chart. Is terrorism the real reason behind your wiretap push?
• The best figures available show that only 4 percent of wiretaps were targeted at computers and electronic devices last year, with the rest aimed at the traditional phone network. Vonage and other VoIP companies have pledged to work with you. Given that VoIP and instant-messaging clients aren't widely used yet, why not try the voluntary approach before talking about banning certain technologies?
• American technology companies would like to help the FBI with legitimate investigations done under proper judicial oversight. But CALEA's requirements go hand in hand with the Patriot Act, which expanded the circumstances under which police may obtain wiretaps without a judge's prior approval. What assurances can you provide that the substantial powers you're seeking won't be abused?
biography
Declan McCullagh is CNET News.com's Washington, D.C., correspondent. He chronicles the busy intersection between technology and politics. Before that, he worked for several years as Washington bureau chief for Wired News. He has also worked as a reporter for The Netly News, Time magazine and HotWired.
