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 Industry Fears
Wiretap Plan Could Chill Innovation
March 19, 2004
By
Matthew Fordahl
SAN JOSE, Calif. -- Before 8x8 Inc. launched an Internet
phone service in late 2002, it drafted a business plan, set up its equipment,
posted a Web site and began taking orders from customers. As with most online
ventures, U.S. government approval wasn't needed.
That would change if
the Department of Justice succeeds at persuading federal regulators to require
new online communications services - such as Internet calling - to comply with
wiretapping laws.
Critics, including some online businesses that are
working with authorities to make their services wiretap-capable, say the DOJ
proposal isn't just unprecedented and overzealous but also dangerously
impractical.
It would chill innovation, they say, invade privacy and
drive businesses outside the United States.
"No one in the Internet
world is going to support this," said Bryan Martin, chief executive of 8x8,
which sells the Packet8 phone service. "It's counter to everything we've done to
date in terms of building the Internet as a free, anonymous and creative place."
The Justice Department, FBI and Drug Enforcement Administration are
seeking what they call a clarification to an existing wiretap law called the
Communications Assistance to Law Enforcement Act (CALEA).
The 1994 law
requires telecommunications carriers to ensure equipment is capable of being
tapped when there's a lawful order. It did not expand wiretap authority but
tried to ensure that new technologies are capable of intercepting calls on par
with the regular phone network.
The Justice Department says that, as the
very nature of telecommunications changes, it's simply not working.
Without citing examples, the agency's lawyers say some providers of new
communications services aren't complying and, as a result, surveillance targets
are being lost and investigations hindered.
"These problems are real,
not hypothetical, and their impact on the ability of ... law enforcement to
protect the public is growing with each passing day," according to a petition
sent to the Federal Communications Commission last week signed by Deputy
Assistant Attorney General John G. Malcolm and colleagues from the FBI and DEA.
The petition seeks a rule stating that high-speed Internet access
providers are covered by the wiretap law - as well as communications services
that displace traditional phone companies.
It argues, in effect, for
establishing a government approval process that would be required before any new
communications services launch.
"If the FBI had this power all along,
would we even have the Internet today?" said Lee Tien, senior staff attorney at
the Electronic Frontier Foundation.
At the crux of the debate is the
fact that communications technologies once tied to telephone carriers'
circuit-switched networks are no longer necessarily so.
Critics say the
petition violates the spirit of the original law by seeking to broaden the
definition of "communications carriers" to include what amount to information
service providers.
The law thus could apply not only Internet phone
systems but also to voice-enabled instant messaging, e-mail and even gaming
consoles - anything that could replace old fashion phone calls.
Currently, the debate is centered on Voice-over-Internet-Protocol (VoIP)
services, an increasingly popular technology that converts voice calls into data
packets and streams them over the Internet.
In some cases, wiretapping
simply isn't possible. In others, it appears to be but hasn't been fully tested.
In all cases, companies say they don't want to trot out new services through the
federal bureaucracy before releasing them.
"Let's just say if I had to
get prior approval from this government, I probably would have taken my services
to other governments," said Jeff Pulver, founder of Free World Dialup. "If I
have an idea, I go for it, I build it up and I do it. Getting permission - I
stopped doing that a long time ago."
Pulver's service, which amounts to
a directory service that links callers but doesn't carry the stream of bits from
conversations, doesn't support wiretaps. But such calls could be captured by a
caller's Internet service provider, he said.
When he gets valid
subpoenas or court orders, Pulver said he supplies information to authorities.
But companies outside the United States would not have to cooperate.
He
mentioned Skype, a peer-to-peer-based telephony service with offices in Estonia
and Sweden. Unlike major U.S. providers, Skype scrambles conversations, making
it nearly impossible to decipher conversations quickly. Skype spokeswoman Kat
James, reached via e-mail, declined to comment.
Even VoIP companies like
8x8 and Vonage that are capable of - and willing to comply with - legal wiretap
orders say the petition oversteps its bounds.
Justice Department
officials declined to comment beyond the filing, which requested and appears to
have received expedited review by the FCC. The deadline for the first round of
comments is set for April 12.
"It's quite a breathtaking petition, not
only in terms of the scope of coverage but also in the ambition of the legal
argument," said Marc Rotenberg, director of the Electronic Privacy Information
Center. "They seem to feel that they can get the FCC to give them what they want
without having to go back to Congress."
As well, a dangerous precedent
would be set by broadening the law so that it keeps up with future technologies
before they're created.
"I think you'll start to see applications which
have voice components but are not traditionally voice-replacement telephone
services," Pulver said. "Does the FBI really want Xbox Live to be tapped?"
This story was also included in:
Baltimore Sun. 3/25/04
CNN , 3/22/04
USA Today, 3/22/04
South Bend Tribune, 3/22/04
MLive.com, 3/20/04
Sarasota Herald-Tribune, 3/20/04
Times Daily, 3/20/04
Wichita Eagle, 3/20/04
Fort Wayne News Sentinel, 3/20/04
Ft. Wayne News Sentinal, 3/20/04
Lakeland Ledger, 3/20/04
Ocala Star-Banner, 3/20/04
San Jose Mercury News, 3/20/04
Fort Worth Star Telegram, 3/20/04
Contra Costa Times, 3/20/04
Miami Herald, 3/20/04
Kansas City Star, 3/20/04
Akron Beacon Journal, 3/20/04
Biloxi Sun Herald, 3/20/04
Brandenton Herald, 3/20/04
SiliconValley.com, 3/20/04
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