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FCC Wiretap Order Raises ACLU Ire

The American Civil Liberties Union (ACLU) Thursday became the latest member of a growing group challenging the Federal Communications Commission's (FCC) order that all Voice over IP providers must build a standardized wiretap backdoor into their systems.

The order would "dramatically increase" the government's surveillance powers on the Internet, the ACLU said in a motion filed with the District of Columbia Circuit Court of Appeals.

"The fledgling Internet phone industry is still experimenting with a variety of technologies . . . yet the government would force companies to engineer wiretapping capabilities into every new product they develop," ACLU lawyer Gerald J. Waldron said in a statement.

At issue is the Communications Assistance for Law Enforcement Act (CALEA), a 1994 law that allows the FBI to force traditional telephone companies to build its technology in particular ways in order to make wiretapping easier. Congress specifically exempted "information services," such as the Internet, from the law.

But in August, the FCC, citing national security interests, voted 5-0 to extend CALEA to facilities-based providers of any type of broadband Internet access service.

"Congress didn't want to extend these trap-door requirements to the Internet and said so clearly," Waldron said.

The ACLU said the order threatens the future of privacy on the Internet, comparing the FCC mandate to a law requiring all new homes be built with a peephole for law enforcement agents to look through.

"The FCC has unilaterally granted the FBI a sweeping expansion of its surveillance powers on the Internet, far in excess of what Congress authorized or intended," said Chris Calabrese, program counsel for the ACLU's Technology and Liberty Project.

He added, "If the Justice Department or the FCC want to expand surveillance powers, they need to go back and ask Congress to vote on it. In the meantime, we are asking the court to rein the Commission back in."

The FBI, for its part, says the agency will wiretap Internet connections with or without CALEA. The only real issue, according to the FBI, is whether there will be a standard wiretap interface or if each legally obtained wiretap order will have to be customized.

"We have to [wiretap]," Steve Martinez, the deputy assistant director of the FBI's Cyber Division, told internetnews.com in an interview last month. "There are some tech issues but none that can't be overcome."

The ACLU lawsuit follows similar legal action by the Center for Democracy and Technology, Pulver.com, the Electronic Frontier Foundation and the Competitive Telecommunications Association.