Judges challenge Internet wiretap rules

A U.S. appeals panel sharply challenged the Bush administration Friday over new rules making it easier for police and the FBI to wiretap Internet phone calls. A judge said the government’s courtroom arguments were “gobbledygook.”

The skepticism expressed so openly toward the administration’s case encouraged civil liberties and education groups that argued that the U.S. is improperly applying telephone-era rules to a new generation of Internet services.

“Your argument makes no sense,” U.S. Circuit Judge Harry T. Edwards told the lawyer for the Federal Communications Commission, Jacob Lewis. “When you go back to the office, have a big chuckle. I’m not missing this. This is ridiculous. Counsel!”

At another point in the hearing, Edwards told the FCC’s lawyer that his arguments were “gobbledygook” and “nonsense.”

The court’s decision was expected within several months.

In an unrelated case last year affecting digital television, two of the same three judges determined the FCC had significantly exceeded its authority and threw out new government rules requiring anti-piracy devices in new video devices. Lewis was also the losing lawyer in that case, and Edwards also was impassioned then in his criticisms of the FCC.

In the current case, Edwards appeared especially skeptical over the FCC’s decision to require 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 surveillance law, which excluded categories of companies described as information services.

The FCC asserted that providers of high-speed Internet services should be covered under the 1994 law because their voice-transmission services can be considered separately from information services. “Congress intended to cover services (in the 1994 law) that were functionally equivalent” to traditional telephones, Lewis said during the hearing in U.S. Circuit Court for the District of Columbia.

“There’s nothing to suggest that in the statute,” Edwards replied. “Stating that doesn’t make it so.”

The panel appeared more inclined to support the FCC’s argument that Internet-phone services — which allow users to dial and receive calls from traditional phone numbers — may be covered under the 1994 law and required to accommodate court-ordered wiretaps. The technology, popularized by Holmdel, N.J.-based Vonage Holdings Corp., is known as “voice over Internet protocol,” or VOIP.

“Voice-over is a very different thing,” U.S. Circuit Judge David B. Sentelle said. He said it offered “precisely the same” functions as traditional telephone lines.

Edwards told the lawyer for the civil liberties groups, Matthew Brill, that on his challenge that VOIP services aren’t covered under the surveillance law, “I didn’t think you have it.”
Education groups had challenged the FCC rules because they said the requirements would impose burdensome new costs on private university networks.

The third judge on the panel, Janice Rogers Brown, did not comment or ask any questions during the arguments.