August 15, 2000 6:00 PM PDT
Court limits federal wiretapping powers
The decision marks a victory for privacy advocacy groups and the telecommunications industry, which have been fighting federal law enforcement and communications regulators on the issue for years.
"The court clearly sent a signal to the Federal Communications Commission that it had to respect privacy in implementing (this law)," said Jim Dempsey, senior staff counsel for the Center for Democracy and Technology
The ruling stems from years of hot debate over revisions in the federal wiretapping law, which is being updated to handle digital and wireless telecommunications networks. The final implementation of the law, dubbed the Communications Assistance for Law Enforcement Act, will go a long way toward determining just how much power police have in tracking people over modern communications networks.
The FBI had asked for powers that critics said went beyond the jurisdiction they have on older phone networks. Telephone carriers said many of these powers would be too expensive to implement, while privacy groups said they would be too intrusive. The FCC nevertheless granted many of these requests, ordering telephone companies to make them possible during the next few years.
Today's decision overturned several of the FCC's most critical decisions on the wiretapping issue, sending regulators back to the drawing board on many of the most controversial provisions.
The FCC had no comment on the day's decision.
How much is too much?
One of the most controversial--and ambiguous--pieces of the proposed regulations has dealt with how much information a law enforcement agency can extract from "packet switched" information such as email, Internet voice calls or other Net data transmissions.
The FCC had proposed giving the FBI and other authorities access to this information even when relatively little evidence had been presented that a target was involved in a crime. This would be analogous to a legal situation in which police have access to the telephone number a call comes from but can't listen to a call itself--a so-called trace that doesn't require a judge's order to implement.
This is difficult in the world of the Net, however. Internet information is broken into "packets" that contain information about where the transmission originated as well as pieces of the call, email or data transmission itself.
Privacy groups argued that giving law enforcement access to the packets without getting a full judge's order could open individuals to privacy violations by police and be an expansion of existing wiretap laws. The court agreed, saying that police must get a court order to win access to Net packets instead of simply allowing a prosecutor or law enforcement agency to ask carriers for the access.
"That aspect of the decision really rejects the 'just trust us' approach the FBI had taken," Dempsey said.
Provisions struck down
Though it upheld the FBI's ability to get at Internet-style data, although only with a court order, the court did reject several provisions that law enforcement had wanted and which the FCC had ordered carriers to make available.
One of the most hotly contested issues was the availability of digits dialed after a call has already gone through. Allowing access to these would give police the ability to determine such things as the numbers of people's bank accounts, or passwords to email or other personal accounts, critics said.
The FCC itself said it implemented this policy with "hand wringing and worrying." The court overturned the regulators' decision, writing that "neither hand wringing nor worrying can substitute for reasoned decision making."
The court did leave in place a provision that will require mobile phone carriers to let authorities pinpoint which antenna cell phone callers are using.
The United States Telephone Association, which had sued to overturn the FCC's ruling, welcomed the decision today.
"The USTA is very pleased that the court vacated the FCC's decision regarding (these) items," USTA president Roy Neel said in a statement today. "The USTA has been concerned that (these) items would only serve to impose extraordinary and unnecessary costs on carriers."