Court skeptical of FCC on broadband wiretap access

Reuters
Court skeptical of FCC on broadband wiretap access
By Peter Kaplan

WASHINGTON (Reuters) - U.S. telecommunications regulators on Friday faced tough questioning from a federal appeals court about whether the government can force broadband Internet service providers to give law enforcement authorities access for surveillance purposes.

One of the three judges hearing the case called the government's rationale for the surveillance requirement "gobbledygook," and another also expressed reservations.

"This is totally ridiculous. I can't believe you're making this argument," Judge Harry Edwards told the Federal Communications Commission lawyer.

The issue before the U.S. Court of Appeals for the District of Columbia is a decision by the FCC in August requiring facilities-based broadband providers and those that offer Internet telephone service to comply with U.S. wiretap laws.

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

Authorities are concerned that the growth of Internet communications could allow criminals to circumvent wiretaps by using e-mail and Internet phone service instead of traditional telephone services.

Private networks would not be subject to the wiretap requirements but those that are connected with a public network would have to comply with the law.

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.

The groups challenging the decision note that the law contains an exemption for "information services." 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 Jacob Lewis, an associate general counsel with the FCC.

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

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

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.