Story URL:
<http://news.zdnet.co.uk/business/legal/0,39020651,39148341,00.htm>
 <<...OLE_Obj...>> FBI wants to tap high-speed Internet

Declan McCullagh and Ben Charny <mailto:[log in to unmask]>

CNET News.com

March 15, 2004, 10:10 GMT
A far-reaching proposal from the FBI, made public on Friday, would require
all US broadband Internet providers, including cable modem and DSL
companies, to rewire their networks to support easy wiretapping by police.
The FBI's request to the Federal Communications Commission aims to give
police ready access to any form of Internet-based communications. If
approved as drafted, the proposal could dramatically expand the scope of the
agency's wiretap powers, raise costs for cable broadband companies and
complicate Internet product development.
Legal experts said the 85-page filing includes language that could be
interpreted as forcing companies to build back doors into everything from
instant messaging and voice over Internet Protocol (VoIP) programs to
Microsoft's Xbox Live game service. The introduction of new services that
did not support a back door for police would be outlawed, and companies
would be given 15 months to make sure that existing services comply.
"The importance and the urgency of this task cannot be overstated," says the
proposal, which is also backed by the US Department of Justice and the Drug
Enforcement Administration. "The ability of federal, state and local law
enforcement to carry out critical electronic surveillance is being
compromised today."
Because the eavesdropping scheme has the support of the Bush administration,
the FCC is expected to take it very seriously. Last month, FCC chairman
Michael Powell stressed that "law enforcement access to IP-enabled
communications is essential" and that police must have "access to
communications infrastructure they need to protect our nation."
The request from federal police comes almost a year after representatives
from the FBI's Electronic Surveillance Technology Section approached the FCC
and asked that broadband providers be required to provide more efficient,
standardised surveillance facilities. Such new rules were necessary, the FBI
argued, because terrorists could otherwise frustrate legitimate wiretaps by
placing phone calls over the Internet.
"It is a very big deal and will be very costly for the Internet and the
deployment of new technologies," said Stewart Baker, who represents Internet
providers as a partner at law firm Steptoe & Johnson. "Law enforcement is
very serious about it. There is a lot of emotion behind this. They have
stories that they're very convinced about in which they have not achieved
access to communications and in which wiretaps have failed."
Broadband in the mix
Broadband providers say the FBI's request would, for the first time, force
cable providers that sell broadband to come under the jurisdiction of 1994's
Communications Assistance for Law Enforcement Act (CALEA), which further
defined the already existing statutory obligations of telecommunications
carriers to help police conduct electronic surveillance. Telephone companies
that use their networks to sell broadband have already been following CALEA
rules.
"For cable companies, it's all new," said Bill McCloskey, a BellSouth
spokesman.
Several cable providers, including Comcast, Time Warner Cable and
Cablevision Systems, had no immediate comment on the FBI's request.
The FBI proposal would also force Vonage, 8x8, AT&T and other prominent
providers of broadband telephone services to comply with CALEA. Executives
from these companies have said in the past that they all intend to comply
with any request law enforcement makes, if technically possible.
Broadband phone service providers say they are already creating a code of
conduct to cover some of the same issues the FBI is addressing -- but on a
voluntary basis, according to Jeff Pulver, founder of Free World Dialup. "We
have our chance right now to prove to law enforcement that we can do this on
a voluntary basis," Pulver said. "If we mandate and make rules, it will just
complicate things."
Under CALEA, police must still follow legal procedures when wiretapping
Internet communications. Depending on the situation, such wiretaps do not
always require court approval, in part because of expanded wiretapping
powers put in place by the USA Patriot Act.
A Verizon representative said on Friday that the company has already
complied with at least one law enforcement request to tap a DSL line.
The new proposal surprised privacy advocates by reaching beyond broadband
providers to target companies that offer communications applications such as
instant-messaging clients.
"I don't think it's a reasonable claim," said Marc Rotenberg, director of
the Electronic Privacy Information Centre. "The FCC should seriously
consider where the FBI believes its authority... to regulate new
technologies would end. What about Bluetooth and USB?"
Baker agrees that the FBI's proposal means that IP-based services such as
chat programs and videoconferencing "that are 'switched' in any fashion
would be treated as telephony." If the FCC agrees, Baker said, "you would
have to vet your designs with law enforcement before providing your service.
There will be a queue. There will be politics involved. It would completely
change the way services are introduced on the Internet."
As encryption becomes glued into more and more VoIP and instant-messaging
systems such as PSST, X-IM and CryptIM, eavesdropping methods like the FBI's
Carnivore system (also called DCS1000) become less useful. Both Free World
Dialup's Pulver, and Niklas Zennstrom, founder of Skype, said last month
that their services currently offer no easy wiretap route for police,
because VoIP calls travel along the Internet in tens of thousands of
packets, each sometimes taking completely different routes.
Skype has become a hot button in the debate by automatically encrypting all
calls that take place through the peer-to-peer voice application.
The origins of this debate date back to when the FBI persuaded Congress to
enact the controversial CALEA. Louis Freeh, FBI director at the time,
testified in 1994 that emerging technologies such as call forwarding, call
waiting and mobile phones had frustrated surveillance efforts.
Congress responded to the FBI's concern by requiring that telecommunications
services rewire their networks to provide police with guaranteed access for
wiretaps. Legislators also granted the FCC substantial leeway in defining
what types of companies must comply. So far, the FCC has interpreted CALEA's
wiretap-ready requirements to cover only traditional analogue and wireless
telephone service, leaving broadband and Internet applications in a
regulatory grey area.
Under the FBI's proposal, Internet companies would bear "sole financial
responsibility for development and implementation of CALEA solutions" but
would be authorised to raise prices to cover their costs.

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