U.S. Defends New Internet Wiretap Rules in Appeals Court

The Bush administration is defending new federal rules making it easier for police and the FBI to wiretap Internet phone calls.

A broad group of civil liberties and education groups -- and a leading technology company-- say the U.S. has improperly applied telephone-era rules to a new generation of Internet services.

Lawyers were expected to square off Friday over the Federal Communications Commission regulations before a three-judge panel for the U.S. Circuit Court for the District of Columbia. In an unrelated case last year affecting digital television, two of the same three judges ruled that the FCC had significantly exceeded its authority and threw out new FCC rules requiring anti-piracy technologies.

In the current case, the FCC determined that providers of Internet phone service and broadband services must ensure their equipment can accommodate police wiretaps under the 1994 Communications Assistance for Law Enforcement Act, known as CALEA. The new rules go into effect in May 2007.

The 1994 law was originally aimed at ensuring court-ordered wiretaps could be placed on wireless phones.

The Justice Department, which has lobbied aggressively on the subject, warned in court papers that failure to expand the wiretap requirements to the fast-growing Internet phone industry "could effectively provide a surveillance safe haven for criminals and terrorists who make use of new communications services."

Critics said the new FCC rules are too broad and inconsistent with the intent of Congress when it passed the 1994 law, which excluded categories of companies described as information services.

"Our significant concern is that if the FCC is essentially permitted to override the congressional exclusion, there are no limits," said John B. Morris, a lawyer for the Washington-based Center for Democracy and Technology, one of the civil liberties groups fighting the FCC's rules.

The case was expected to be decided by U.S. Circuit Judges Janice Rogers Brown, David B. Sentelle and Harry T. Edwards.

In the 2005 ruling against the FCC -- the most recent major case involving the FCC before the circuit court -- Sentelle famously told government lawyers that their new anti-piracy rules exceeded the authority Congress gave the agency. "You can't rule the world," Sentelle told them.

Edwards, another appeals judge in the current case, also came down hard on the FCC in 2005, saying it had "crossed the line" and "gone too far."


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