Digital telephone wiretapping

In 1994, the U.S. passed the Communications Assistance for Law Enforcement Act (CALEA), a bill widely opposed by the civil rights community. The bill tries to ensure that police will be able to tap new mobile and other digital telephones with the same capabilities they currently have on plain telephone service. Both civil libertarians and telephone companies complained about FBI requirements. Criticism has included a letter from EPIC saying a proposed revision gives more surveillance capability to law enforcenment than the law was meant to give. The bill also authorized 500 million dollars (half a billion!) to pay phone manufacturers and providers for the costs of conversion; this has proven insufficient and the Administration's 2001 budget includes millions of dollars more.

The FCC tried to balance the demands of the FBI against the objections of civil libertarians, telecom companies, and telephone equipment manufacturers, but stretched the law in a couple ways: for instance, law enforcement can track the location of mobile phone users and can continue listening to multi-person conversations after the user they're claiming to tap has left. Civil liberties groups challenged the FCC ruling in court, claiming that the ruling gives law enforcement information they are not entitled to and allows them to monitor Internet traffic, which was outside the scope of CALEA. Telephone companies also sued because of the cost of the technologies. In August 2000, a court required the FCC to revise its rules in light of these complaints.

Considering how stringently both Congress and the FCC examined the demands of law enforcement over the years, it is remarkable how compliantly Congress inserted many of the provisions that had been previously denied after the attacks on the World Trade Center and Pentagon on September 11, 2001. It was assumed that law enforcement groups needed looser control to fight terrorism, instead of improving their abilities within the constraints that currently existed. Inquiries into intelligence operations showed a good deal of sloppiness before the September 11 attacks; to give the police new powers within this regime of sloppiness inevitably leads to violations of civil liberties.

A related proposal has been aired by the European Union under the name ENFOPOL, and more recently a European convention on cybercrime, which was criticized by an international coalition of civil liberties groups. These proposals are far more sweeping because they would cover Internet and other information network users, not just telephones. They seems to embody an impetus to match the English-speaking world’s mysterious worldwide snooping network, Echelon, which has been revealed as an incredible attempt to check all electronic traffic everywhere in the world (telephone, fax, email) for key phrases.

In the United States, a little-understood computer system called Carnivore lets the FBI monitor traffic at a user's ISP. The FBI claims that it follows standard wiretap laws by looking only at the suspect's traffic, but the technical way that traffic from many users is combined by TCP/IP protocols would seem to make it unavoidable that Carnivore checks at least packet headers for all users passing through the ISP's system.

The governments of several countries, notably Britain and Russia, have promulgated regulations requiring ISPs to allow the police access to Internet traffic. Typically, the ISP must bear the cost of trapping and saving traffic. Russia requires the ISPs to provide law enforcement with user email at any time with no safeguards such as court warrants. The British Regulation of Investigatory Powers Bill originally gave the police broad powers without oversight, and while it was scaled back after public and Parliamentary protest, it still grants law enforcement some new powers, such as the ability to demand encryption keys from users without evidence that the users have committed crimes. A proposal for such sweeping police powers is also being debated by the European Parliament.

Also, for the first time, the group responsible for setting standards for Internet protocols (the IETF) has considered building the ability to wiretap directly into protocols—and while it has rejected wiretapping so far, the FBI is putting pressure on it.

More information on this CALEA and general background on wiretapping is provided by EPIC; the Center for Democracy and Technology also features the issue. Since digital conversations are amenable to inexpensive and powerful protection though cryptography, that technology has been subject to heavy regulation as well.

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Last updated: November 21, 2001

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