Deregulation, security ideologies clash
Source: Houston Chronicle
By STEPHEN LABATON
Date: January 22, 2004
Debate on Internet surveillance flares
WASHINGTON — The Federal Communications Commission's efforts to reduce regulations of some Internet services have come under intense criticism from officials at law enforcement agencies who say that their ability to electronically monitor terrorists and other criminal suspects is threatened, according to government officials, industry lawyers and documents on file at the FCC.
In a series of unpublicized meetings and heated correspondence in recent weeks, officials from the Justice Department, FBI and Drug Enforcement Administration have repeatedly complained about the FCC's decision in 2002 to classify high-speed Internet cable services under a looser regulatory regime than the telephone system.
The Justice Department recently tried to block the FCC from appealing a decision by a federal appeals court two months ago that struck down major parts of its 2002 deregulatory order. Justice Department officials feared that the deregulatory order impedes the department's ability to enforce wiretaps.
The department ultimately decided to let the FCC appeal, but it took the highly unusual step of withdrawing from the lawsuit, officials involved in the case said.
As a result of the FCC's actions, said John Malcolm, a deputy assistant attorney general who has played a lead role for the Justice Department, some telecommunications carriers have taken the position in court proceedings that they do not need to make their networks available to federal agents for court-approved wiretaps.
"I am aware of instances in which law enforcement authorities have not been able to execute intercept orders because of this uncertainty," Malcolm said on Friday. He declined to provide further details.
The clash between the FCC and officials from law enforcement agencies pits two cherished policies of the Bush administration against each other. On one side stand those who support deregulation of major industries and the nurturing of emerging technologies^; on the other are those who favor more aggressive law enforcement in the wake of the 2001 terrorist attacks.
The outcome of the debate has far-reaching consequences.
Law enforcement officials say it will determine whether they can effectively monitor communications between suspects over new kinds of phone services that otherwise might allow the suspects to escape detection.
Also at stake is whether the government or industry will bear the considerable costs for developing the technology for such surveillance.
By contrast, some FCC officials and telephone industry executives say that if the FCC buckles to the other agencies and forces the industry to take on a host of expensive obligations, the development of promising new communications services may be stalled or squelched for years.
The law enforcement officials have also raised concerns about recent statements by the FCC's chairman, Michael Powell, that suggest he intends to propose rules soon that would place nascent Internet-based telephone services under a looser regulatory regime than the traditional phone system.
Through a spokesman, Powell declined to discuss the subject.
David Fiske, the FCC's chief spokesman, said he could not respond to Malcolm's statement that the FCC's interpretation of the rules was making it harder to execute surveillance orders.
A senior official at the FCC said the commission was not unsympathetic to the concerns of the law enforcement agencies.
"We're an economic regulatory agency as well as a law enforcement agency, and we have to look at the interests of everyone," the official said.
Some industry experts say their biggest worry is that law enforcement demands may reshape the technical specifications of the new Internet voice services, an accusation that officials at the Justice Department and the FBI deny.
"What's most scary for industry and perhaps some people at the FCC is the notion that the architecture of the Internet will depend on the permission of the FBI," said Stewart Baker, a former general counsel of the National Security Agency, which monitors foreign communications.
But law enforcement officials say they are not seeking uniform technical standards. Rather, they want requirements that companies offering "voice-over-Internet" services build into their systems easy ways for agents to tap into conversations between suspects.
In a strange-bedfellows twist, officials from the FBI and other agencies have found themselves to be allies with groups like the American Civil Liberties Union, which have also argued that the new Internet services offered by cable companies should be under a regulatory regime like the phone system — but for different reasons.
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