Guest guest Posted August 16, 2004 Report Share Posted August 16, 2004 > Sun, 15 Aug 2004 > Wiretapping the Web > > As if hacking worries weren't enough, two recent > legal developments have raised further fears among > Web privacy advocates in the United States. In one > case, the Federal Communications Commission voted > 5-0 last week to prohibit businesses from offering > broadband or Internet phone service unless they > provide Uncle Sam with backdoors for wiretapping > access. And in a separate decision last month, a > federal appeals court decided that e-mail and other > electronic communications are not protected under a > strict reading of wiretap laws. Taken together, > these decisions may make it both legally and > technologically easier to wiretap Internet > communications, some legal experts told NEWSWEEK. > " All the trends are toward easier to tap, " says > Kevin Bankston, an attorney at the nonprofit > Electronic Frontier Foundation. > > http://msnbc.msn.com/id/5697267/site/newsweek/ > > Wiretapping the Web > > A literal reading of electronic eavesdropping > laws—coupled with a new FCC proposal—may make it > easier for Washington to watch you online > > By Brian Braiker > Newsweek > Updated: 2:18 p.m. ET Aug. 13, 2004 > > Aug. 13 - We’ve been told since the dawn of the > Internet that the e-mail we send and receive on > company time is fair game for our employers to > monitor. Many took for granted, though, that e-mail > sent from private accounts was just that: private. > How naive. > > > As if hacking worries weren’t enough, two recent legal developments have raised further fears among Web > privacy advocates in the United States. In one case, > the Federal Communications Commission voted 5-0 last > week to prohibit businesses from offering broadband > or Internet phone service unless they provide Uncle > Sam with backdoors for wiretapping access. And in a > separate decision last month, a federal appeals > court decided that e-mail and other electronic > communications are not protected under a strict > reading of wiretap laws. Taken together, these > decisions may make it both legally and > technologically easier to wiretap Internet > communications, some legal experts told NEWSWEEK. > “All the trends are toward easier to tap,” says > Kevin Bankston, an attorney at the nonprofit > Electronic Frontier Foundation. > > The FCC’s plans to require Internet-based phone and > broadband services to be engineered for easy > wiretapping is a response to a request from the FBI > and other law-enforcement agencies. The proposal > would bring Internet-based phone providers in line > with the Communications Assistance for Law > Enforcement Act (CALEA), which requires > “telecommunications” carriers to make their networks > wiretap-friendly. The FCC says the government must > still go through all of the necessary legal steps to > obtain the authority to wiretap; CALEA simply makes > it technologically easier to do. “This will not have > an effect on whether there is appropriate lawful > authority—that remains the same,” says FCC spokesman > Julius Knapp. “All this really is addressing is > whether the carrier is required to have the > capability to provide the information that’s covered > by a court order.” > > Then there's U.S. v. Councilman. In January 1998, an > online bookseller called Interloc offered e-mail > accounts to its dealer clients. The idea was that by > secretly copying messages Interloc customers > received from rival Amazon.com, the booksellers > could gain a market advantage. Totally illegal, > right? Not according to the federal court of appeals > decision. Bradford C. Councilman, then an Interloc > supervisor, claimed he was innocent of wiretapping > because the law did not apply: since the messages > had been stored on Interloc’s servers while they > were being processed, they were not intercepted in > transit. The court agreed with this literal reading > of the wiretap laws. “We believe that the language > of the statute makes clear that Congress meant to > give lesser protection to electronic communications > than wire and oral communication,” the court wrote > in its decision. Under a 1986 amendment to the 1968 > Wiretap Act, companies are banned from monitoring > customer communications—but not from > reading stored customer communications. > > Is this outrageous? “This difference between stored > communications and more transitory [communications] > is a pretty refined one that really was ill-fitting > at the time it was passed,” says Jonathan Zittrain, > codirector of Harvard Law School’s Berkman Center > for Internet and Society. “It’s even worse now.” The > framers of the law, he says, wanted to make it > harder to conduct ongoing surveillance than > undertake a one-time intrusion. “The Councilman > decision sort of puts that on its end, because it > says you can do a series of one-shot intrusions that > amount to the same as surveillance—but still treat > it as merely a one-shot deal.” The Department of > Justice, which prosecuted the case, did not return > NEWSWEEK's calls asking for comment. > > As it is, the wiretap laws have exceptions for the > interception of unencrypted or unscrambled radio > signals. So any easy-to-intercept e-mail you may > send from your Wi-Fi-enabled laptop at your friendly > neighborhood coffee shop is treated as a radio > signal and therefore may not have the same > protections under the law that wire and oral > communications do. When the EFF’s Bankston looks at > the FCC ruling side by side with Councilman, he > sees the former as making it technologically easier > to wiretap Internet communications and the latter as > lowering legal barriers. “Building the > infrastructure for a surveillance state is not good > public hygiene,” he quips. > > Not all lawyers see the situation in such bleak > terms. Susan Crawford, an assistant professor at New > York's Cardozo Law School who writes extensively on > the FCC, isn’t quite buying this conspiracy theory. > “I’m not convinced that either Councilman or CALEA > changes any individual’s privacy online,” she says. > She does, however, agree that the Councilman case > highlighted a weakness in the current law, adding > that the recent developments could be seen “as part > of the trend at the FBI and the Department of > Justice and the Drug Enforcement Agency of asserting > a great deal of control over the regulatory > process.” > > For some privacy experts, that’s the real question: > Is it the FCC’s mandate to aid law enforcement? > Civil-liberties concerns aside, building a backdoor > through which the FBI can monitor communications > also inserts a soft spot for hackers. “To the extent > that there may be tension in the law,” argues the > FCC's Knapp, “it’s suggested that with that tension > in place, the appropriate public interest lies in > ensuring that public safety has access to the tools > it needed.” > > There may be more developments to come. In March, > the same month the FBI requested that the FCC expand > CALEA, the commission released a “Notice on Proposed > Rulemaking,” which announced plans to look at > whether and how the FCC should begin regulating the > Internet. Crawford points to its 155th footnote, > which says the FCC could, if it wanted to, place > tariffs on online newspapers or require that online > retailers be able to process 911 emergency calls. > “It’s sort of a lighthearted footnote,” she says. > “But for me it suggests the FCC has power over all > online services and it’s just going to decide what > services it’s going to act on. This is a turning > pointing in the history of the Internet because > telecom agencies all over the world are looking at > their very broad enabling statutes and saying > ‘Someone needs to be in charge of this Wild, Wild > West'.” And providers are falling in line with the > FCC, she says, because the certainty of regulated > business minimizes risk. Or, as an America > Online spokesman puts it, “We comply with > law-enforcement agencies that bring a legally > binding request to us, and we cooperate with them. > We’ve always done that.” > > Which is why Crawford says it’s time for the FCC, an > independent government organization accountable to > Congress, to engage in a public discourse if it > plans on regulating the Web. “What we need right now > is a national conversation about whether and how > we’re going to regulate Internet services.” But even > from where she sits, Crawford admits that the > question of “whether” is already being answered in > the affirmative. It’s the “how” that concerns her. > Quote Link to comment Share on other sites More sharing options...
Recommended Posts
Join the conversation
You are posting as a guest. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.