Several privacy and civil-liberties organizations are mounting alegal challenge to prevent VoIP and other Internet-basedcommunications from being subject to taps from law-enforcementagencies.

The group, which includes the Electronic Privacy Information Center(EPIC), the COMPTEL association of communications serviceproviders, the American Civil Liberties Union, and the ElectronicFrontier Foundation, says it will fight the FCC’s plan to expandthe Communications Assistance for Law Enforcement Act (CALEA) of1994. It filed a brief this week with the U.S. Court of Appeals forthe District of Columbia Circuit.

The FCC’s final rule, issued on August 5, 2005, would extend CALEAto all Internet-based communications, according to EFF ChairmanBrad Templeton, who spoke at this week’s Emerging TelephonyConference here, sponsored by O’Reilly Media. Once the FCC issues afinal rule, vendors have 18 months to comply with it.

Templeton claims that the CALEA expansion proposed by the FCC would”require that people get permission to innovate” and would alsocreate “regulatory barriers to entry.” “The FBI gets veto on newcompanies,” according to Templeton. Another, more threateningaspect of the regulation is its mandate that a “back door” be builtinto all Internet-communications hardware and software to provideaccess for law enforcement agencies. This same back door could beexploited by hackers to listen in and record these Internetcommunications, according to Templeton.

Existing Law Expanded

In March 2004 the Department of Justice, the FBI, and the DrugEnforcement Agency petitioned the FCC to expand CALEA to coverInternet-based communications. The original statute applied only tocalls made using the public switched telephone network.

The FCC’s proposal would require that all VoIP hardware vendorscomply with the wiretap mandate within 18 months of the order’seffective date, but Templeton claims that many router vendors havealready added the wiretap capability to their shipping products,despite the fact that the FCC hasn’t yet issued any instructionsfor doing so. Templeton adds that the cost of implementing thisproposal will be passed onto the businesses and consumers who usethe products.

Among the politicians opposing the FCC’s Internet wiretap plan isDemocratic Senator Patrick Leahy of Vermont, the chief sponsor ofthe original CALEA legislation. Leahy says the Internet wasexplicitly excluded from the law’s surveillance rules, with theunderstanding that the exclusion could be revisited. However, heclaims that extending CALEA to the Internet of today is counter tothe intention of Congress.

In a notice posted to the FBI’s CALEA Web site yesterday, the FCCpromises to release another order that will address such issues as”compliance extensions and exemptions, cost recovery,identification of future services and entities subject to CALEA,and enforcement.”

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