US demand for college wiretaps questioned

May 06, 2006

 
''This is totally ridiculous. I can't believe you're making this argument,'' Judge Harry T. Edwards told Jacob Lewis, an associate general counsel with the Federal Communications Commission.

A U.S. appeals court panel challenged the Bush administration Friday over new rules making it easier for the police and the FBI to wiretap phone calls made over the Internet.

One of the three judges hearing the case told the government that its courtroom arguments were "gobbledygook" and suggested its lawyer return to his office and "have a big chuckle."

Judge Edwards criticized the U.S. government's demand that universities install wiretapping capabilities in their computer networks, saying he sees no evidence that Congress intended the intrusion.

FCC officials last year indicated that their requirement would lead to the installation of new switches throughout university networks to monitor individual computers, said Terry Hartle, senior vice president of the American Council on Education. That would cost colleges an estimated $7 billion.

The FCC recently clarified its position, saying universities only need to establish points where police can monitor messages coming in and out of the campus network, as long as the equipment includes authentication technology that reliably identifies each computer user, Hartle said.

That alternative may be just as costly, since no such authentication technology yet exists, said Douglas Carlson, executive director of computing services at New York University, who is advising the American Council on Education in its case.

"Depending on the data that needs to be collected at the gateway, it could still require major changes at the university networks and systems," he said.

Aside from the costs, the universities don't accept that they are subject to the 1994 law or want an outcome that would find otherwise, Hartle said.

The FCC has set a May 14, 2007 deadline for compliance.

The FCC decision prompted an appeal by universities and libraries. The groups, including the American Library Association and Association of American Universities, challenged the agency's authority to extend such requirements to high-speed Internet services.

Judge Edwards has taught at the Michigan, Harvard, Duke, Pennsylvania, Georgetown, and New York University law schools. His most important publication, "The Growing Disjunction Between Legal Education and the Legal Profession," from Michigan Law Review in 1992, has been the source of extensive comment, discussion, and debate among legal scholars and practitioners in the United States.
Critics said the new rules were too broad and inconsistent with the intent of Congress when it passed the surveillance law, which excluded categories of companies described as information service providers. They say the FCC has long included broadband Internet in that category.

Judge Edwards agreed. And he scoffed at the FCC's argument that broadband Internet services included a separate telecommunications "component" that made it subject to the wiretapping requirements.

"Your argument makes no sense," Edwards told Lewis.

"I'm sorry I'm not making myself clear," Lewis said.

"You're making yourself very clear. That's the problem," Edwards replied.

"Congress intended to cover services that were functionally equivalent" to traditional telephones, Lewis said.

"There's nothing to suggest that in the statute," Edwards replied. "Stating that doesn't make it so."

The panel appeared to be more willing to support the FCC's argument that Internet-phone services - which allow Internet users to make and receive calls from fixed-line phones - might be covered under the law.

One of the other two justices on the panel, David Sentelle, expressed more sympathy for the government's argument, especially regarding the idea of extending the surveillance requirements to Internet phone service. But Sentelle also sounded skeptical about the FCC's position on broadband services.

The third judge, Janice Brown, did not question the lawyers.

The court's decision is expected within several months.

Federal agencies foretell a dark world of evil benefiting from limited wiretapping laws. The Department of Justice said leaving out VoIP would deliver "a surveillance safe haven for criminals and terrorists who make use of new communications services."