Internet Adapts to Surveillance by Law Enforcement
Posted by Thomas Jeffry
Monday (May 14th) marked the deadline when all facilities-based broadband Internet access providers and providers of interconnected VoIP (voice over Internet protocol) needed to comply with Section 103 and 105 of the Communications Assistance for Law Enforcement Act of 1994 (CALEA), Pub. L. No. 103-414, 108 Stat. 4279. Cable modem companies, satellite internet companies, DSL providers, and broadband over powerline join traditional telecommunications carriers in providing technology that allows law enforcement agencies to tap into email, instant messaging, web browsing logs, and other forms of electronic communications.
Although CALEA initially applied to phone companies and mandated accommodations for wiretapping, the FCC determined in 2002 that it had authority to regulate broadband and VoIP providers under CALEA through its expanded interpretation of “telecommunications carriers” as that term is defined in CALEA. A legal challenge to the FCC’s decision brought by the American Council on Education was unsuccessful, ending in a 2-to-1 decision in the D.C. Court of Appeals last June. American Council on Educ. v. F.C.C., 451 F.3d 226 (D.C. Cir. 2006).
Law enforcement still needs a court order or other legal authorization to access these types of electronic communications. However, the broadband and VoIP providers must now apply technology specifications that will make such access quicker and easier for the government. For privacy advocates, Monday marked yet another chink in the privacy armor under the theory that expanded access capability by government precedes an increase in their access to private information. With the ability to pinpoint messages from a particular sender or to a designated recipient, the anonymity of our emails is lost.