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Exalted technology: should CALEA be expanded to authorize Internet wiretapping?

I. INTRODUCTION

Rapid development of Internet technology has posed new challenges for government agencies and the legal community. One of the issues currently debated is the extent to which Internet phone systems should be regulated by law enforcement agencies. (1) In August 2004, the Federal Communications Commission ("FCC") tentatively approved a Notice of Proposed Rulemaking and Declaratory Ruling ("NPRM") by the Department of Justice ("DOJ"), the Federal Bureau of Investigation ("FBI"), and the U.S. Drug Enforcement Administration ("DLA") that would authorize Internet wiretapping by intelligence and police agencies. (2) The FCC's 5-0 vote approved plans to draft rules that would apply to "voice over Internet protocol" ("VoIP") services, making them subject to a 1994 law that requires new telecommunications technologies to be accessible to authorized eavesdropping. (3) On August 5, 2005, after a year of debate and consideration of relevant issues, the FCC adopted an order that will require "providers of certain broadband and interconnected" VoIP services to accommodate legally authorized enforcement wiretaps. (4)

This note demonstrates that while the Internet should not provide a cover for illegal activity, the FCC does not currently have the legal authority to undertake intrusive regulation of the Internet. Congress did not explicitly include the Internet as being subject to legislation enacted in 1994, nor does the legislative history lead one to a different conclusion. (5) Moreover, it is possible that this proposed regulation of Internet technology would simply serve as a road map to drive knowledgeable criminals to areas unprotected by legislation. (6) Finally, it is necessary to consider whether regulations imposed by this new rule would stifle the growth of new technology, and deprive us of its educational and economic benefits. (7)

II. BACKGROUND

A. History of Electronic Surveillance

The development of sophisticated technology has created new opportunities for surveillance. Simultaneously, such technology has made it possible to investigate individuals' private lives. (8) Electronic surveillance consists of interception of call content, or wiretapping, and the interception of call-identifying information, known as dialed-number extraction. (9) Lawfully authorized electronic surveillance can be a valuable tool for legal authorities in their fight against crime and terrorism. (10) The Omnibus Crime Control and Safe Streets Act (commonly referred to as Title III), (11) passed in 1968, contains the procedures law enforcement operatives must follow to obtain the necessary judicial approval to conduct electronic surveillance. (12) Enactment of the law followed spirited Congressional debate as to the need to balance an individual's right to privacy with law enforcement's need to monitor serious criminal activity. (13)

In 1970, Congress updated the federal wiretap statute to clarify the duty of service providers and to provide legal authority to accomplish needed interception. (14) Subsequently, Congress passed the Foreign Surveillance Act of 1978 ("FSA"), which sets forth procedures for requesting judicial authorization for electronic surveillance and physical search of a foreign power (or its agents) engaged in espionage or international terrorism against the United States. (15) This statute was considered a regulative response to allegations of domestic espionage by federal law enforcement and intelligence agencies in the 1960s and 70s. (16) In 1986, as a result of developments in technology, Congress enacted the Electronic Communications Privacy Act ("ECPA"), (17) which expanded Title III's coverage to include electronic communications. (18) Under Title III, government agents seeking authorization to intercept the content of electronic communications using a wiretap must submit a statement showing that other investigative means have been utilized (and determined inadequate), the length of time sought to have the order in place, and make a showing of probable cause. (19) There are three primary types of legally authorized electronic surveillance: pen registers, trap and trace devices, and content interception. (20) The provisions of Title III of the Omnibus Crime Control and Safe Streets Act continue to govern U.S. procedures for obtaining legal authority for initiating and conducting lawful interceptions of wire, oral, and electronic communications. (21) Congress passed the ECPA with the goal that it would provide balance "'between the privacy of citizens and the needs of law enforcement' that had become tipped too far in favor of the government." (22)

B. History of CALEA

In October 1994, Congress took action to protect public safety and ensure national security by enacting the Communications Assistance for Law Enforcement Act of 1994 ("CALEA"). (23) CALEA is a federal law that, immediately after court approval, authorizes FBI surveillance in U.S. telephone networks. (24) The purpose of CALEA is to facilitate the ability of law enforcement agencies to conduct electronic surveillance as telecommunications technology advances rapidly and the world's dependence on this technology increases. (25) It was also intended to clarify the scope of a carrier's duty in implementing legally authorized electronic surveillance. (26) CALEA does not simply authorize electronic surveillance as other legislation has done but requires telecommunications operators to take any necessary measures to aid law enforcement in this operation. (27)

Since 1970, "telecommunications carriers have been required ... to cooperate with law enforcement personnel in conducting lawfully-authorized electronic surveillance," but the implementation of CALEA required these carriers "to modify the design of their equipment, facilities, and services to ensure" the surveillance can actually be accomplished. (28) This applied to all carriers or entities "engaged in the transmission or switching of wire or electronic communications as a common carrier for hire." (29) Section 107(a)(2) of CALEA established the technical standards a carrier and a manufacturer of telecommunications transmission or switching equipment must meet to be in compliance. (30) Under certain license agreements, "the Government pays for the development of CALEA software solutions for high priority switching platforms," which enable carriers to obtain the "CALEA software at a nominal charge for equipment, facilities, or services installed or deployed now and in the future." (31)

CALEA authorized $500 million for the reimbursement of carriers for reasonable costs associated with making equipment, facilities, and services" to meet compliance requirements and a target date of June 30, 2002. (32) However, even with this seemingly large appropriation, full compliance has been hard to achieve, despite the fact that carriers can face fines of $10,000 for each intercept request from a law enforcement agency they fail to capture. (33) Some carriers argue that both the cost and the technology are obstacles in reaching compliance. (34) The FCC had to extend the original date for compliance from October 25, 1998 to June 30, 2000, and even in 2004 there were frequent allegations of noncompliance. (35)

C. Carnivore

Fourth Amendment privacy rights are in jeopardy during times of compromised national security. (36) The right to privacy derives from English common law, long before the concept of the sanctity of the home shifted from one's four walls to encompass secure technology within those walls. (37) However, "the right to privacy is not absolute" at any time, and "the courts have established" exceptions to the requirement "that all searches and seizures" need a court-issued warrant. (38) The privacy issues for accessing packet-based telephony are the same as those for e-mail surveillance, governed by the FBI's controversial system known as Carnivore (also called DCS1000). (39) Internet communications receive limited protection by the Fourth Amendment's right to be secure from unreasonable searches and seizure. (40) However, law enforcement officials complained that they could not adequately pursue cyber criminals because they lacked the support technology needed to identify and catch them. (41) As a result, in 2000 "the FBI developed the diagnostic tool [named] Carnivore to conduct electronic surveillance," which operates by running software from the FBI's system into the "surveillance target's ISP network." (42) Carnivore is "classified as a 'packet filter' or 'packet sniffer,'" and it operates on a personal computer or laptop by searching and intercepting "the surveillance target's electronic communications, while ignoring all the other communications that the government has no authority to intercept." (43) For example, the FBI states that Carnivore can be "configured to intercept e-mail but not online shopping records" if only the former had been authorized for surveillance. (44)

The Carnivore system has the capacity to scan millions of e-mail messages per second, and some contend that it exceeds the bounds of permissible government surveillance and is thus a threat to individual privacy. (45) The FBI claimed that this system "can read the destination and origination address of a data packet" to ascertain where it came from, without necessarily being able to read the contents. (46) The FBI said it would scan only the addresses in the "to" and "from" fields but not the contents, unless the intercept is identified as the one sought. (47) However, critics have complained that the way Carnivore operated was like an electronic version of listening to everyone's phone calls just to see if it is the one needed call that should be monitored. (48) Moreover, outside experts could not independently evaluate the technical capabilities of Carnivore because the FBI would not release the source code. (49) The FBI allegedly named the system 'Carnivore' because it had the ability to get to the meat of potentially suspicious communications, (50) although government officials such as Janet Reno, then Attorney General, were critical of the name and the impression it would give to the public. (51)

The FBI has argued that the capabilities of Carnivore are irrelevant because court orders control the extent to which any wiretap device can intercept data from electronic communications, and this software is simply a method to extract that lawfully authorized information. (52) However, the fear is that there is no guarantee the government will not exceed the scope of its authority when it has extracted information, although agents discovered to have misused Carnivore are subject to civil and criminal penalties. (53) However, under the NPRM, as encryption becomes part of more VoIP and instant messaging systems, eavesdropping methods like the Carnivore system will become less useful. (54) In contrast, VoIP leaders, Jeff Pulver, founder of Free World Dialup, and Niklas Zennstrom, founder of Skype, have stated "that their [VoIP] services currently offer no easy wiretap route for police because VoIP calls travel along the Internet in tens of thousands of packets, each sometimes taking completely different routes." (55)

D. The New Proposal

In August 2004 the FCC tentatively approved and released the NPRM that would expand the interpretation of CALEA from U.S. telephone networks as applying to Internet traffic, holding that "cable modem, broadband over power line, satellite, wireless and other high-speed Internet providers are covered by the law." (56) The FCC also ruled (57) that managed Internet telephony providers such as Vonage (58) must become wiretap friendly. (59) Such providers are also commonly referred to as "packet-mode technologies." (60)

Then FCC Chairman Michael Powell stated it was the FCC's goal "to ensure that law enforcement agencies have all of the electronic surveillance capabilities that CALEA authorizes to combat crime and terrorism and support homeland security." (61) Although the FCC vote was unanimous, (62) such rules are open to public comment before taking effect, (63) and the FCC requested industry feedback on implementation, including the length of time service providers would need to wire their networks for surveillance. (64) The FCC's ruling resulted from a Joint Petition for Expedited Rulemaking filed by the DOJ, FBI and DEA earlier in 2004, requesting that the FCC identify those services subject to CALEA and rule that broadband services such as Voice over Internet Protocol are included in that grouping. (65) The FCC concludes in the NPRM that providers of "managed" VoIP Services offered to the general public as a way of communicating with any telephone subscriber, including parties reachable only through the Public Switched Telephone Network ("PSTN"), (66) are subject to CALEA. (67) These managed VoIP communications differ from "peer-to peer" communication which:</p> <pre> are set up and managed by the end user via its customer premises equipment or personal computer. In these non-managed, or disintermediated, communications, the VoIP provider has minimal or no involvement in the flow of packets during the communication, serving instead primarily as a directory that provides users' internet web addresses to facilitate peer-to-peer communications. The FCC tentatively

concludes that non-managed VoIP services should not be subject to CALEA ... The NPRM and Ruling seek comment on this tentative conclusion. (68) </pre> <p>1. Voice Over Internet Protocol

"Internet Voice," also known as VoIP, is a technology that allows users to make telephone calls using a broadband computer network like an Internet connection instead of a regular phone line. (69) VoIP converts the voice signal from the telephone into a digital signal that goes over the Internet, and then converts it back at the other end, thus connecting to anyone with a regular phone number. (70) VoIP calls can be made using a cable modem, or by connecting a phone directly to a telephone adaptor. (71) The adaptor connects through a broadband (high-speed Internet) connection, which is required. (72) Some VoIP providers charge more for a long distance call to a number outside the calling area, just like traditional telephone service; some limit service to other subscribers, while others allow the user to reach any phone number in the world. (73) Because VoIP is digital it may also offer features not available with traditional phones, such as being able to talk indefinitely with anyone in the world and (with some plans) being able to talk with multiple people at the same time without additional cost. (74) Carriers promote their service plans aggressively to consumers, focusing and competing on price. (75) However, these advantages of cost savings and convenience could be offset by disadvantages such as potentially losing access during power outages and an inability of emergency services such as a 911 dispatch center to identify the location of a call in a crisis. (76) Regardless, it is anticipated that by 2006, there will be more than 7 million VoIP units used. (77) In January 2005, Comcast announced that it hopes to attract eight million customers to its new cyberphone service by 2010. (78)

2. Internet Regulation

Historically, the FBI has not regulated the Internet or services such as VoIP conducted over it. (79) However, absence of authority over the Internet has become more of a concern over the last few years. In particular, there has been growing awareness that the fast and convenient attributes of the Internet can also facilitate communication among terrorists and criminals. For example, after the events of September 11, 2001, it was widely reported in the media that the hijackers may have communicated with each other by accessing the Internet using computers at public libraries in Florida. (80) In addition, the Massachusetts Attorney General's Criminal Bureau has recently experienced several cases in which criminals used VoIP, including an international drug-smuggling group that used Nextel DirectConnect in the mistaken belief they could thereby avoid wiretapping. (81)

Based on increasing concern about such situations, the FCC formally announced on February 12, 2004, that an "entirely Internet-based VoIP service" was an unregulated information service, and determined that it should examine what its role would be with regard to this technology, given its goal of safeguarding consumer interests. (82) However, industry experts suggest that if the FCC had done nothing, "wiretaps would still be possible [although they] could be more difficult and time-consuming for police to carry out." (83)

E. Intent of Congress When CALEA Was Passed

The 1994 CALEA statute was intended to facilitate law enforcement's ability to conduct lawfully authorized electronic surveillance on PSTN while preserving public safety, the public's right to privacy, and the telecommunications industry's competitiveness. (84) The bill faced opposition not only from an industry worried about the costs of implementation, but also from civil liberties organizations concerned about privacy issues. (85) Just as the bill was adopted on the last night of the 1994 session, the government offered to pay the telephone companies $500 billion to make changes in exchange for their support. (86) Notably, when it was passed, CALEA specifically exempted "information services" (87) (the Internet) from digital surveillance rules. (88) Thus, telecommunications and wireless companies using the traditional telephone networks had to meet an FBI standard that permits access to phone calls once the police obtain wiretap approval, although Internet companies were free from such regulation. (89) The DOJ now argues that Congress intended CALEA to have broad reach so as to include new technology unimagined in 1994, and gave the FCC authority to expand upon CALEA for that reason. (90) The FCC apparently concurs with this view, and has stated that "the definition of 'telecommunications carrier' in CALEA is broader than the definition of that term in the Communications Act and can encompass providers of services that are not classified as telecommunication services under the Communications Act." (91)

Opponents reply that lawmakers used unequivocal language deliberately excluding the Internet from CALEA:</p> <pre> The definition of telecommunications carrier [to which CALEA applies] does not include persons or entities to the extent that they are engaged in providing information services, such as electronic mail providers, on-line services providers, such as Compuserve, Prodigy, America On-line or Mead Data, or Internet Service providers ... [T]he bill does

not require reengineering of the Internet, nor does it impose prospectively functional requirements on the Internet. (92) </pre> <p>In CALEA, the term "information services" applied to "current and future advanced software and software-based electronic messaging services, including e-mail, text, voice and video services." (93) Thus, narrowband Internet access and Internet applications such as e-mail fall within the definition above and so are explicitly protected/excluded from CALEA's requirements. (94) In contrast, while broadband Internet developed, it never fell within this "information service" definition, (95) and because it was not specifically mentioned, remains outside the reach of CALEA.

In remarks made before the Subcommittee on Telecommunications and the Internet on Energy and Commerce, James X. Dempsey, Executive Director of the Center for Democracy and Technology, testified against the NPRM ruling, stating that the government already has "the legal authority it needs to compel broadband access providers and VoIP service providers to cooperate with court orders for interception." (96) He admitted that it might be less convenient to intercept communications without further legislation but argued the larger issue was whether the government needs additional authority before it can enact the NPRM. (97) He accused the FCC of looking at the urgency of the terrorist threat, and of having jumped to the conclusion that CALEA should be extended to the Internet, even if it meant "ignoring the language of the Act and contradicting its own earlier decisions about the regulatory status of broadband access." (98)

F. Legislative History and the Reach of CALEA

In 1994, Congress clearly understood that CALEA did not create a statute that would reach all future voice communications, including voice communications over the Internet. (99) Not only did Congress intend CALEA to be a narrow piece of legislation focused on traditional phone lines but legislative history reveals that the narrowness of CALEA was the result of compromises. (100) Louis Freeh, then Director of the FBI, acknowledged at the time "that CALEA was narrowed in order to get it passed, and that some future telephone services would be excluded from the reach of CALEA." (101) Despite this clear evidence of legislative intent, the FBI and Justice Department spent the last several years lobbying for a very different application of CALEA. (102) Gerald Waldron, who had litigated for groups opposing elements of CALEA, said in 2002, "I see the Patriot Act as in some ways an extension of CALEA. Law enforcement is trying to get things they couldn't get under CALEA." (103) Even two of the FCC commissioners who had voted in favor of the NPRM seemed worried in August 2004 that the FCC's interpretation of CALEA was precarious, and could be vulnerable to a court challenge in the future. (104)

Opponents to the NPRM argue that the FCC "cannot rely on unsupported assertions by law enforcement agencies" about unspecified threats that warrant this extension of CALEA. (105) Since there is no legal impediment to the wiretap laws already controlling the Internet, surveillance orders for all types of electronic communication can be implemented as needed under Title 111. (106) Moreover, under 18 U.S.C. [section] 2518(4), a wiretap order can force any ISP to provide "all information, facilities, and technical assistance necessary to accomplish the interception." (107) VoIP providers have already asserted their willingness to work with law enforcement to satisfy interception orders once received. (108) Steven Zipperstein, vice president and general counsel of Verizon Wireless, even commended the FCC's release of the NPRM, stating:</p>

<pre> Verizon Wireless advocated this result and strongly agrees

that law enforcement, when armed with court-sanctioned authority, needs the ability to listen into suspected criminals and terrorists whether they are communicating through traditional voice technologies or using newer VoIP or push-to-talk services. (109) </pre> <p>G. Industry Reaction

Despite much debate and coverage, there is still such confusion in the telecommunications industry and legal community as to the extent of CALEA's coverage under this new rule that the FCC has a special place on its website for "Frequently Misunderstood Questions." (110) There it states that online services such as instant messaging, e-mail, and website visits are exempt because they do not fall under the definition of broadband Internet service. (111) However, some VoIP providers feel strongly they are being singled out, and believe CALEA requirements should be applied more evenhandedly. (112) On November 15, 2004, Nuvio Corporation, one of the leading providers of VoIP, announced it had formally filed comments with the FCC, stating CALEA requirements should apply not only to VoIP providers but also to "all providers of packetized data communications services including instant messaging and online chat room services." (113) Otherwise, an "attractive loophole for terrorists and criminals seeking to circumvent lawful surveillance" will be created. (114) Nuvio also suggests that providers will need financial support from the government to make their networks compatible with CALLA, similar to past funding. (115) Nuvio acknowledges the need of law enforcement agencies to access VoIP for legitimate purposes, but only if "the implementation of CALLA is in the interest of the public and homeland security and is not discriminatory in its application to all providers." (116)

III. THE FCC'S BALANCING ACT

A. Surveillance and Regulation Under Commissioner Powell

One of Congress' greatest challenges in the 21st century is to balance the competing demands of law enforcement, privacy rights, and technological innovation. In addition to the Internet regulations examined in this note, lawmakers are faced with complex issues involving online fraud and content, spam, and taxation of information technology. (117) Although the events of September 11, 2001, made the public more aware of the need for national security, law enforcement agencies themselves have used the rapidly changing technical environment to monitor criminal activity for many years. There is no dispute that use of authorized electronic surveillance has facilitated the capture of criminals and the deterrence of criminal activity. (118) In fact, the goal of Congress in enacting CALEA in 1994 was to preserve the ability of law enforcement to conduct electronic surveillance using developing technology. (119) The FCC derives authority via CALEA to issue regulations defining what types of industries are subject to the legislation. (120)

Under the leadership of Commissioner Michael Powell, the FCC and Powell himself had been accused of "a consistently deregulatory approach" (121) and, alternatively, of making "the government more intrusive." (122) Powell was appointed chairman of the FCC by President George W. Bush in January 2001, (123) and initially embraced development of broadband technology and protected VoIP services from "intrusive government regulation and taxation." (124)

Powell is credited by VoIP providers as having helped the telephone industry transition from old to new technology by freeing them from the regulations and taxes that had encumbered the traditional phone network in the 20th century. (125) Powell's "free market" approach was controversial, opposed by Democrats and activists who argued that easing regulations would enable individual corporations to own too many TV and radio stations. (126) Simultaneously, the FBI became concerned that deregulation of broadband would prevent them "from monitoring the communications of criminals and terrorists." (127) It was this concern, in 2004, which encouraged the DOJ to begin planning expansion of its surveillance capabilities that would extend CALEA to VoIP. (128)

On March 10, 2004, the DOJ initiated this process by submitting a petition for rulemaking to the FCC that would require "broadband service providers ... and others to design and modify their networks, hardware, software, and equipment in a manner that enables the DOJ to more easily intercept VOIP and other internet based communications." (129) In the FCC's official response to the DOJ petition, the NPRM (130) "tentatively conclude[d]" (131) that the FCC had the authority to issue a declaratory ruling and create rules of compliance under CALEA but did not provide the DOJ with everything that it had sought in its petition, such as instant messaging and "peer-to-peer programs ... which do not use the public telephone network." (132) However, the FCC stated that broadband and VoIP services fall under the authority of CALEA, which is considered a victory for the DOJ. (133) The DOJ also successfully requested the FCC "create an enforcement mechanism ... [because] CALLA only gives enforcement authority to the courts." (134) The resulting FCC order will provide the enforcement needed for Internet wiretaps. (135)

B. Privacy Rights

Does the FCC's Decision to Broaden Interpretation of CALEA Violate the Fourth Amendment?

Privacy issues abound in discussion of DOJ surveillance, and particularly with regard to the proposed expansion of CALLA. Since VoIP combines transmission of data via the Internet in addition to voice transmission, privacy advocates worry that data yielding location and other personal information will be collected for surveillance, even when there is no probable cause. (136) Further, it may be possible for private citizens to illegally monitor one another, obtaining privileged information, and there is no guarantee that the government would monitor or punish such behavior. (137) In addition, the FBI has stated that if the broadband provider cannot isolate specific VoIP calls to an individual user, it would need access to all customers, which would result in surveillance of individuals who are not the target of an investigation. (138)

In Katz v. United States, the Supreme Court held for the first time that Fourth Amendment protection applies to government interception of telephone conversations, in "that eavesdropping carried on by electronic means (equivalent to wiretapping) constitutes a search." (139) Previously, wiretapping had been considered outside the scope of the Fourth Amendment's restrictions on unreasonable search and seizure. (140) While wiretapping and international terrorism were beyond the imagination of the framers of the Constitution, they used language in the Fourth Amendment that could apply to any situation, yet would require probable cause before the individual's privacy can be violated. (141)

Over the years, respect for privacy rights has been replaced by conflict between law enforcement, eager to use technology to safeguard the nation, and a population torn between fear of unknown terrors and desire "to be secure in their persons." (142) Under the Patriot Act and the new interpretation of CALEA, probable cause is no longer determined in the courts but instead is a decision made on a case-by-case basis by law enforcement officials using advanced technology. (143) While it is the attorney general who has the legal authority to seek a federal wiretap, this power is usually delegated to DOJ senior management, who in turn rely on staffers from the Enforcement Operations division to evaluate surveillance suggestions from field agents. (144)

Historically, when the FBI or DOJ has asked for increased surveillance capability they have gotten more than the public realized or that they actually needed. (145) Of course, federal wiretaps are just one type of surveillance these days as technology has created sophisticated gadgets and capabilities undreamed of by Maxwell Smart in his heyday. Yet critics of the current administration's disregard for privacy concerns ignore the fact that wiretapping activity rose sharply during the Clinton presidency. (146) While federal electronic surveillance had been expanding since the late 80s, the growth accelerated to the point that 1995 marked the first time federal courts approved more wiretaps than all state courts combined. (147) In 1992, there were 340 federal court orders permitting electronic surveillance in criminal cases, and that number increased to 672 in 1993. (148) Legal challenges have accompanied this increase in surveillance, but the upward trend has continued, although the U.S. Court of Appeals for the D.C. Circuit held that "law enforcement agencies must meet the highest legal standard before using new surveillance capabilities." (149) In 2003, the Administrative Office of the United States Courts "reported that state and federal courts authorized 1,442 interceptions of wire, oral and electronic communications," and that "no wiretap applications were denied that year." (150)

C. Regulatory Issues

Federal courts have been divided on the issue of expanding government power to regulate the Internet and VoIP. (151) In October 2003, the Ninth Circuit Court of Appeals held that cable operators, to the extent that their broadband services use the Internet, are telecommunications providers, and thus are subject to state and federal regulations. (152) In Brand X Internet Services. v. FCC ("Brand X"), a three-judge panel said they were forced by legal precedent to rule in favor of the ISPs challenging the FCC. (153) In an earlier case, AT&T v. City of Portland, (154) the Ninth Circuit Court of Appeals was faced with deciding whether the Internet access it provided was an information service, requiring no regulation, or a telecommunications service, which falls under the Telecommunications Act of 1996. (155) In 2000, the FCC had no broadband policy so the Ninth Circuit came to its own conclusion. (156) Since then the FCC has created its own broadband policy, but the three judge panel that heard the case could not overturn it because it was bound by the precedent of the Ninth Circuit. (157)

The Supreme Court gives broad discretion to the decisions of federal agencies. In Brand X, the Ninth Circuit described the review process of an agency charged with administering a statute. (158) The Supreme Court established a two-step formula in Chevron U.S.A. v. Natural Resources Defense Council, Inc. ("Chevron"). (159) As the Court reviews the agency's interpretation of the relevant law, it will examine the statutory language: "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." (160) However, if "the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute." (161) Instead, "if the statute is silent or ambiguous," the court must determine "whether the agency's answer is based on a permissible construction of the statute." (162)

According to this decision, cable modem access includes a telecommunications component, so is subject to telecommunications fees and regulations. (163) When Brand X reached the Supreme Court on March 29, 2005, the Court was expected to examine whether the lower court acted properly, not simply focus on the merits of the case. (164) A critical issue was whether the Ninth Circuit should have ignored its own precedent to "consider the merits of the FCC's classification ruling and grant 'expert agency' deference." (165) Experts argue that the broadband industry needs certainty now, and that a Supreme Court remand back to the Ninth Circuit could waste years, hampering technological developments. (166) For this reason, many were hopeful the high court would make a ruling classifying cable-modem services, and believed it was within their power--if they so chose. (167) In fact, oral argument before the Supreme Court immediately focused on the definition of cable modem services and whether they should be classified as information services, thus falling under the authority of the FCC. (168) Ultimately, in June 2005, the Supreme Court's "6-3 ruling affirmed the FCC's authority to decide which services it needs to regulate." (169)

The standard of review demonstrated in Brand X has been followed in cases examining federal regulation, not simply telecommunications. (170) The Chevron rule enables the Court to examine both sides of the argument by looking at the language of the law, which includes legislative intent, as well as analyzing the agency's interpretation of the statute if it is ambiguous or silent. However, the Court's broad deference to agencies is not limitless. It recognizes that there will be situations as in Portland where FCC regulations were silent on "the regulatory classification of cable modem service." (171) In such cases, an agency's interpretation of existing law will be given deference so long as it is "based on a permissible construction of the statute;" thus, does not impede constitutional rights. (172)

The Court also acknowledges that for an agency "to engage in informed rulemaking" it "must be given ample latitude to 'adapt [its] rules and policies to the demands of changing circumstances.'" (173) Thus, it does not expect policy to stand still simply because a judgment has been made. This is a critical concern in all telecommunications legislation because the rapid growth of technology has made it inevitable that courts at all levels will be ruling on issues that have outpaced existing law. On the topic of cable modem service, the FCC's goal has been to adopt a deregulatory approach that would incentivize the cable industry to invest in fiber optic networks as part of an economic objective Powell described as "efforts to develop a vitally important national broadband policy." (174)

Although the FCC at times has approached Internet phone system regulations as an issue of national security first, and economic concern second, the Chevron rule can also be applied to the current proposed interpretation of CALEA. There is authority on both sides of this issue under the two-part rule. Examination of Congressional intent reveals deliberate exclusion of CALEA in the definitions section and in the substantive section where it imposed capability assistance requirements. (175) Congress also said that even if an entity providing information services became a substantial replacement for traditional phone networks, it would still be excluded from CALEA requirements. (176) Thus, the test for the language of the statute is clearly met, and under this analysis, the court as well as the agency "must give effect to the unambiguously expressed intent of Congress." (177)

Traditionally, administrative agencies have been granted broad discretion in interpreting the statutes they impose. (178) Instead of determining whether the agency's interpretation is correct or whether it is the interpretation the court would have made, the court examines whether the interpretation is permissible on a constitutional level. (179) However, an interpretation is impermissible if unreasonable based on statutory language and legislative intent. (180)

The FCC's interpretation of CALEA can be distinguished from cases in which the courts have deferred to administrative agencies because there is a considerable amount of legislative history that demonstrates Congress' concern that CALEA might subsequently be interpreted to reach farther than its original intent. (181) This history is exhibited by a colloquy in March 1994 between Senator Patrick Leahy (D-VT) and FBI Director Freeh, which revealed, "(1) that the narrowness of CALEA was the result of a compromise the FBI made to get the law passed, and critically, (2) that Congress understood that some future telephone-like services would in fact be excluded from CALEA coverage." (182) Leahy asked if some telecommunications entities would be exempt, and Freeh replied,</p>

<pre> I do know and do concede that there are portions of the

industry not addressed in [CALEA].... In a perfect world, they would be in there, but we want to narrow the focus of this so we can get the greatest support by the Congress and the committees, because the last time we were here, we were told specifically that it was too broad and it had to be narrowed and focused. So we picked out where we think we have the greatest vulnerability. (183) </pre> <p>Indeed, the forthcoming FCC Order apparently does appear to limit the scope by excluding instant messaging and Skype's peer-to-peer product as not being service providers or VoIP. (184) Already, however, the FBI and other agencies "are reportedly up in arms over any such technical exemptions." (185)

Unlike the situations in Portland or Brand X where a key factor was that the FCC had not yet taken a definitive position on cable modem regulation, here, the FCC is aware of legislative intent regarding CALEA but seeks to override it. The relevant statutory language is neither silent nor ambiguous because the congressional objective was emphatically to safeguard against future expansion of CALEA. (186) Thus, according to the second Chevron test, the court should not defer to the FCC's interpretation. Further, the Court in Chevron stated that "[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." (187)

The Court in Chevron does provide that in the absence of explicit statutory construction, the administrative agency may formulate policy and make rules to fill Congressional omissions. (188) An FCC argument that there is a "statutory gap" for the agency to fill would fail, but the Court might consider the argument that existing legislation does not adequately promote national security in the administration's war on terror. (189) If there were such a gap, "there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation." (190) Such legislation is given controlling weight, unless considered "arbitrary, capricious, or manifestly contrary to the statute." (191) Thus, the Court has left itself a means by which it can still restrain the decision making power of an administrative agency without disturbing law that has been settled for several decades.

Opponents of the FCC's NPRM argue that CALEA does not need to be changed, both because of legislative intent and because other tools and processes exist for surveillance--which would make the proposed ruling arbitrary and capricious. (192) Jonathan Zittrain of Harvard Law School explains that the goal of the lawmakers creating CALEA legislation was to establish a high standard for electronic surveillance; they wanted to make it more difficult "to conduct ongoing surveillance than undertake a onetime intrusion." (193) That is because existing law already provides law enforcement agencies with the ability to get a court order authorizing necessary surveillance of any broadband target--when justified. (194) Concerns about the new interpretation of CALEA echo doubts expressed about the Patriot Act: that it will result in "perceived marginalizing of the judiciary and the relaxing of standards to be met by prosecutors seeking to gather evidence." (195)

The CDT points out that the NPRM has not sufficiently established that there is a problem to be solved, and has not demonstrated that extension of CALEA would address the issue identified. (196) Similarly, without complete information on the dimensions of the problem to be solved, it is not possible to assess the financial commitment involved to subsidized implementation, and what entities would bear that cost. (197) This further demonstrates the FCC's weak position should it attempt to argue that their expansion of CALEA is based on a permissible construction of the statute.

D. Policy Considerations

Reasons to Expand CALEA

It is difficult to argue with the FCC's objective of ensuring that law enforcement agencies have all electronic capabilities possible to combat crime and terrorism, and support homeland security. In many ways, Internet surveillance has the potential to be more effective than traditional wiretapping. Information can be gathered less expensively and vast quantities of data can be stored efficiently. (198) Online surveillance also offers the possibility of identifying the sender of information "by e-mail address, IP address, or even a digital signature, whereas traditional wiretap investigators often encountered difficulties putting a name to a face." (199) In addition, individuals who spend time online leave a cyber trail of information about themselves that provides a "rich and detailed personal digital dossier" that is very appealing to law enforcement. (200)

Moreover, the proposed regulation could be financially beneficial to consumers because increased competition among carriers would lower costs. Powell argues that imposing federal regulation would simplify compliance and also reduce costs for carriers; "[T]o subject a global network to disparate local regulatory treatment by 51 different jurisdictions would be to destroy the very qualities that embody the technological marvel that is the Internet." (201) Understandably, states such as Minnesota and New York wanted VoIP to comply with traditional phone rules, which would have resulted in pricing plans, 911 emergency services, and attractive payments to state universal service funds. (202) The FCC's controversial November 2004 Vonage ruling pre-empted these state objectives. (203)

Increased attention from federal agencies has already resulted in better service to areas relying on VoIP technology. (204) For example, on March 4, 2005, the FCC fined a rural North Carolina local exchange carrier ("LEC") $15,000 for blocking local calls that use VoIP. (205) Even emergency calls were allegedly blocked, leaving some callers without any service. (206) Madison River Communications agreed to pay the fine so as to avoid litigation, and in "consideration of the termination" of the FCC's investigation. (207) The FCC clearly intended this fine to warn local telecommunications firms "not to disrupt VoIP traffic" regardless of the perceived threat to their landline revenues. (208) Subsequently, the FCC announced requirements for 911 emergency services in VoIP phones, allowing VoIP service providers "until the end of the year to provide emergency service to its customers after a ruling by FCC commissioners in May [2005]." (209)

Arguments Against Expansion of CALEA

Many individuals and organizations object to the FCC's proposed new regulation because they believe CALEA expressly did not regulate data traveling over the Internet. (210) In addition, the CDT points out that the NPRM has not sufficiently established that there is a problem that cannot be handled by existing technology and law enforcement options. (211) There are also the economic ramifications of regulation to evaluate. While proponents argue that the playing field would be leveled for carriers once all are subject to the same rule, others are concerned that CALEA's financial requirements impose a high regulatory burden on the industry, and would unfairly encumber smaller companies. (212) In addition, state officials fear that federal regulation would deplete their coffers and undermine programs "that provide universal phone service to rural, poor and underserved areas as the traditional telephone companies move closer to offering Internet-based services." (213)

The FCC is required by CALEA to protect the privacy interests of the public. (214) In the absence of privacy protection, there is an issue as to who would oversee the collection and storage of the vast amounts of data that will be collected. Moreover, there are concerns as to the ability to filter unneeded information. Traditionally, law enforcement officials have regarded electronic surveillance favorably, and privacy advocates have opposed it. However, legal authorities oppose surveillance that violates the law, and privacy proponents acknowledge that law enforcement officials must uphold these laws. (215) Both sides recognize the need for regulation, if only to protect themselves from each other.

Alternatives to CALEA Expansion

Privacy experts are convinced there are other ways the FBI could conduct surveillance that would be less invasive and less expensive. They believe that the issue is not whether law enforcement can conduct surveillance on new technologies like VoIP, but how easily they can access it. (216) The Electronic Frontier Foundation ("EFF") was one of several groups to file comments with the FCC objecting to the proposed regulation. (217) EFF staff attorney Kurt Opsahl, a civil liberties expert, believes that the DOJ and FBI already have "the legal and technological means to access communications on the Internet ... expanding CALEA ... is not only unnecessary, it will retard innovation." (218) Another concern voiced by experts is whether "building a backdoor through which the FBI can monitor communications also inserts a soft spot for hackers." (219) They argue that mandating information dissemination is irresponsible because when networks or applications are surveillance-compliant, it deliberately introduces more vulnerability into the system. (220) Some critics assert that industrial control systems, including "public-switched networks, private microwave and fiber networks, wireless radio and cellular networks to oversee electrical grids and dams," are vulnerable to cyber attack because of FCC rules. (221) Jeffrey Katz of the United Telecom Council describes problems with the FCC's licensing system which allows technical and location data to be obtained readily, so "anyone who would do us harm will find all they need courtesy of the FCC." (222)

Will Surveillance of the Internet Stifle Technological Innovation?

Panelists at a Cardozo Law School conference in September 2004 stated

that an FCC regulation authorizing surveillance of the Internet "is likely to impose an unacceptable drag on innovation in telecommunications." (223) The DOJ initially wanted the FCC to require a system of pre-approval for new technology, requiring submission to and approval by the FCC, but appears that this request from the March petition was not granted. (224) Many critics felt the restrictions of such a system could potentially drive technological innovations overseas: Stewart Baker, an attorney from Steptoe & Johnson LLP, who represents the Telecommunications Industry Association and is critical of the FCC ruling, believes "extending CALLA to [VoIP] will force telecom innovation to China." (225) The negative economic implications of such a scheme could be enormous, both in terms of losing profitable new technology to other countries as well as losing jobs in this country. It could also force companies to focus on compliance technology instead of new product development.

Moreover, our own workforce could fall behind if not exposed to new technology as it is developed. Innovators would be forced to think inside the box of surveillance, limiting creativity. Yet those in favor of regulation, such as Congressman Fred Upton (R-MI) argue that coordination between government and industry is the most effective means "to find workable ways to build the proverbial 'mousetrap' without stifling innovation in this relatively nascent and dynamic marketplace." (226)

Service providers, for the most part, have come out in support of the FCC because "the certainty of regulated business minimizes risk," according to Professor Susan Crawford of Cardozo Law School. (227) Another viewpoint, articulated by an America Online ("AOL") spokesperson, is more prosaic: "We comply with law-enforcement agencies that bring a legally binding request to us." (228)

Negative Educational Repercussions

There is concern that surveillance of the Internet would limit and inhibit its educational potential. (229) Some lobbyists successfully petitioned the FCC to exempt schools and libraries. (230) Wendy Wigen, a policy analyst for Educause, (231) believed the FCC commissioners would support an exemption for educational entities, and had offered to help the DOJ draft appropriate language. (232) If supportive of this exemption, the DOJ's goal would be to ensure the final language does not "supply a loophole to noneducational networks." (233)

The FCC's Authority Under CALEA

The FCC does not have the authority to implement this proposal under CALEA, contrary to its assertations. The NPRM analyzed section [section] 1001(8), which provides that "it is in the public interest to deem such a person or entity to be a telecommunications carrier for purposes of this subchapter," and used this as the basis for its alleged power to alter the scope of "telecommunications carrier." (234) However, section [section] 1001(6) defines information services, and nothing in that statute or any other part of CALEA provides the FCC with authority to change that definition. (235) Therefore, if Internet or VoIP service are information services according to section [section] 1001(6), they are information services protected by CALEA legislation and the FCC cannot ignore or distort that classification. (236)

The FCC's approval process requires that it solicit feedback from those in directly affected industries, and to consider whether the proposed rule will encourage the development of new technologies. (237) The call for feedback resulted in many briefs such as the one submitted by the CDT and others from telecommunications companies which the FCC considered for nearly a year. (238) Crawford insists that the FCC needs to engage in public discourse before it begins regulation of Internet Services. (239) In a sense, this is exactly what the FCC did by inviting comments at large, but there is no consensus as to what extent the commissioners were influenced by the briefs they received.

IV. CONCLUSION

The FCC rule is a blatant effort to exploit current fears of terrorism at the expense of personal liberty and privacy. (240) The growth of the Internet and wireless services, which are now employed by millions of ordinary citizens for personal use, has made electronic communication widespread but undeniably less secure. The FCC must recognize that packet-based telecommunications are fundamentally different from traditional communications technology, and must determine what information can be extracted from this medium without violating privacy rights. This principle was embodied in the language of CALEA when Congress enacted the provision that "authorized communication" must protect the "privacy and security of communications and call-identifying information not authorized to be intercepted." (241)

This interpretation of CALEA stifles innovation at a time when our economy is faltering and should not slow down lest we lose the technological race. The Internet and its constant innovations provide educational and economic benefits to the United States. Since the Internet is not a mature technology, the stringent regulations imposed by this interpretation of CALEA could hurt the growth of telecommunications by driving new product development overseas. In United States v. White, a controversial electronic surveillance case, Justice Douglas observed, "But every person is the victim, for the technology we exalt today is everyman's master." (242) He referred specifically to privacy issues but economic concerns should be of great concern as well. It is our duty as a nation to reconcile these seemingly conflicting goals so that telecommunications technology can be exploited in a positive way.

The FCC and Department of Justice continue to incorrectly interpret the statutory language of CALEA. Both the definitions of telecommunications carriers and Section 1002(b) clearly exempt information services from CALEA's requirements. (243) The definition of information services and the Congressional language make it obvious that broadband and VoIP should be classified as information services, and thus be exempt from CALEA. (244) However, the FCC justifies its position by arguing that broadband and VoIP have "essentially replace[d] the conventional telecommunications services currently subject to wiretap rules," and thus, should be subject to the same laws. (245)

The FCC should not make policy decisions that are reserved to Congress. Congress must revisit CALEA since it is clear that many legislators were concerned then that the statute they created could be interpreted more broadly than they intended. (246) Clearly, this new FCC regulation is the use of a power, arguably a permissible use, that Congress feared would be the result of its passage. Some members of Congress fear that privacy rights are in jeopardy from many directions. Senator Ron Wyden (D-OR), who opposes electronic searches, argues, "It's possible to fight terrorism ferociously without gutting civil liberties. The challenge in striking that balance is to have ground rules." (247)

Ground rules are essential as the telecommunications marketplace continues to grow and to integrate technologies that use the Internet, VoIP, and other packet-based technologies. (248) However, there is no factual basis for the regulation ordered by the FCC. This new regulation disrupts the careful balance struck by Congress between the needs of legal authorities and Fourth Amendment guarantees. Critics stand on firm ground when they refer to it as "the New Ashcroft Internet snooping request." (249) Frank Rich of the New York Times accurately described 2004 as a year in which the government "expand[ed] its role as cultural cop" with increasing interference with American television and entertainment. (250) President Bush's long-time advisor, now Attorney General Alberto R. Gonzales, is by all indications eager to make such regulations an objective of the current presidential term. (251)

It is imperative that the balance between privacy and law enforcement be reestablished. The courts must act and show that they realize this case is different from those where the statute is silent or ambiguous, as there is extensive legislative history from CALEA's enactment to show the lawmakers' fear that government might try to usurp their role. If the courts act otherwise, Congress must emphatically seize the opportunity to make its voice heard again and create new legislation that will not sacrifice America's privacy for safety.

(1.) See generally Declan McCullagh, US 'Right to Spy' on Cyberspace Gets Approval, CNET NEWS.COM, Aug. 5, 2004, http://management.silicon.com/ government/0,39024677,39122919,00.htm (on file with the Rutgers Computer and Technology Law Journal).

(2.) See In the Matter of Communications Assistance for Law Enforcement Act and Broadband Access and Services, 19 F.C.C.R. 15676 (Aug. 9, 2004) [hereinafter NPRM]; see also Kevin Poulsen, Ashcroft Wins Internet Wiretap System, SECURITYFOCUS, Aug. 4, 2004, http://www.securityfocus.com/ news/9263 [hereinafter Poulsen I] (on file with the Rutgers Computer and Technology Law Journal).

(3.) Peter J. Howe, Wiretap Law to Apply to Net Calls, BOSTON GLOBE, Aug. 5, 2004, at C2.

(4.) Press Release, Federal Communications Commission, FCC Requires Certain Broadband and VoIP Providers to Accommodate Wiretaps (Aug. 5, 2005) available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC260434Al.doc [hereinafter FCC Press Release] (on file with the Rutgers Computer and Technology Law Journal). As of this writing, the Order had not been made public, but the FCC released information on the ruling on August 5, 2005. According to the Press Release, the Order refers to both "facilities-based broadband Internet access service providers and VoIP providers that offer services permitting users to receive calls from, and place calls to, the public switched telephone network. These VoIP providers are called interconnected VoIP providers." Id.

(5.) See Center for Democracy & Technology Joint Comments, In Re CALEA and Broadband Access and Services, FCC ET, Docket No. 04-295, RM-10865, (Nov. 8, 2004), available at http://www.cdt.org/digi_tele/20041108indpubint.pdf [hereinafter CDT Comments] (on file with the Rutgers Computer and Technology Law Journal).

(6.) Id. at 9. Members of the House Telecommunications Subcommittee had asked about difficulties experienced obtaining wiretaps on such Internet technology, and were told by a DOJ spokesperson that "[t]he cell structure and worldwide scope of modern terrorist groups make electronic surveillance essential to uncovering these lethal networks before they strike us." Law Enforcement Access to Communications Sys. in a Digital Age: Hearing Before the Subcomm. on Telecomm. and the Internet, House Comm. on Energy and Commerce, 108th Cong. 6 (2004), available at, http://www.access.gpo.gov/congress/house, (testimony of Laura H. Parsky, Deputy Assistant Attorney General, U.S. Dept. of Justice) [hereinafter Hearing]. They were also informed that information on specific problems was too sensitive to provide, lest terrorists migrate to these networks. DOJ: Some VoIP Providers Avoiding CALEA Responsibilities, COMMUNICATIONS DAILY, Sept. 9, 2004.

(7.) Congressman Chris Cox (R-CA) warned that "overregulation under CALEA could stifle innovation and enable foreign firms not subject to U.S. law to get the upper hand on American companies." Michael Grebb, Law Fights to Keep Pace with Tech, WIRED NEWS, Sept. 9, 2004, http://www.wired.com/news/ print/0,1294,64887,00.html (last visited Nov. 13, 2005) (on file with the Rutgers Computer and Technology Law Journal). Cox further stated that such an approach by the FCC "would be a 'fundamental shift' of 'regulation first, innovation second.'" Terry Lane, DOJ. Some VoIP Providers Avoiding CALEA Responsibilities, COMM. DAILY, Sept. 9, 2004.

(8.) See RICHARD SPINELLO, CYBERETHICS: MORALITY AND LAW IN CYBERSPACE, 121 (Jones and Bartlett 2000).

(9.) See Communications for Law Enforcement Act: AskCALEA, http://www.askcalea.com/faqs.html [hereinafter AskCALEA] (last visited November 19, 2005) (on file with the Rutgers Computer & Technology Law Journal). This site is maintained by the FBI.

(10.) Id; see also Katz v. United States, 389 U.S. 347, 351 (1967); Scott v. United States, 436 U.S. 128, 128-29 (1978) (upholding wiretapping where 40% of intercepted conversations were relevant); United States v. Merton, 274 F. Supp. 2d 1156, 1196-97 (D. Colo. 2003) (denying motion to suppress evidence obtained from wiretap because agents made a good faith effort to minimize conversations that were not pertinent to this investigation).

(11.) Pub. L. No. 90-351, 82 Stat. 212 (1968).

(12.) See 18 U.S.C. [subsection] 2510-2522 (1994 & Supp. IV 1998); see also AskCALEA, supra note 9.

(13.) See AskCALEA, supra note 9.

(14.) See Act of Oct. 15, 1970, Pub. L. No. 91-452, tit. II, [section] 227(b); see also AskCALEA, supra note 9.

(15.) 50 U.S.C. [subsection] 1801-1843 (2000).

(16.) See Patrick S. Poole, Inside America's Secret Court: The Foreign Intelligence Surveillance Court, http://home.hiwaay.net/~pspoole/fiscshort.html (last visited Nov. 19, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(17.) Pub. L. No. 99-508, 100 Stat. 1848 (1986).

(18.) AskCALEA, supra note 9. Electronic communications include e-mail, data transmissions, faxes, and pagers. Id.

(19.) See 18 U.S.C. [section] 2518(1)-(3) (2000); see also Johnny Gilman, Carnivore: The Uneasy Relationship Between the Fourth Amendment and Electronic Surveillance of Internet Communications, 9 COMMLAW CONSPECTUS 111, 117 (200l).

(20.) CALEA IMPLEMENTATION SEC, COMMUNICATIONS ASSISTANCE FOR LAW ENFORCEMENT ACT, U.S. ATTORNEYS' BULL. 1 (May 2001), http://www.usdoj.gov/criminal/cybercrime/usamay2001_4.htm [hereinafter U.S. ATTORNEYS' BULLETIN] (on file with the Rutgers Computer and Technology Law Journal). See id. Pen registers and trap and trace devices record and decode the dialing and signaling information used in processing the communication, such as the signals identifying numbers dialed on a telephone. Content interception not surprisingly refers to electronic content that is obtained from the communication. See id.

(21.) AskCALEA, supra note 9.

(22.) See Gilman, supra note 19, at 118.

(23.) Pub. L. No. 103-414, 108 Stat. 4279; see also 47 U.S.C. [subsection] 1001-1010 (2000).

(24.) 47 U.S.C. [section] 1004 (2000).

(25.) See AskCALEA, supra note 9.

(26.) U.S. Attorneys' Bulletin, supra note 20, at 2.

(27.) 47 U.S.C. [section] 1005(b) (2000). See also Jeffrey Yeates, CALEA and the RIPA: The U.S. and the U.K. Responses to Wiretapping in an Increasingly Wireless World, 12 ALB. L.J. SCI. & TECH. 125, 127 (2001).

(28.) 47 U.S.C. [section] 1006(a) (2000); see also Communications Assistance for Law Enforcement Act (CALEA): CALEA Implementation section Federal Bureau of Investigation, http://www.usdoj.gov/criminal/cybercrime/usamay2001_4.htm (last visited Nov. 19, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(29.) See AskCALEA, supra note 9; Pub. L. No. 103-414, 108 Star. 4279 (1994), available at http://askalea.net/calea.html (last visited Nov. 19, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(30.) Pub. L. No. 103-414, 108 Stat. 4279. The manufacturers must also "on a reasonably timely basis and at reasonable charge, make available to the telecommunications carriers using its equipment, facilities, or services such features or modifications" needed to enable the carriers to comply with the requirements; see AskCALEA, supra note 9.

(31.) See Communications Assistance for Law Enforcement Act: AskCALEA: Cost Recovery (Aug. 25, 2005), http://www.askcalea.net/cost.html (on file with the Rutgers Computer and Technology Law Journal).

(32.) See AskCALEA, supra note 9. Note that if a carrier can claim with validity that it cannot comply with CALEA standards, it can apply for a waiver but this waiver grants only a temporary extension. 47 U.S.C. [section] 1006(c)(2) (2000).

(33.) Khali Henderson, CALEA Compliance Goes Undercover, PHONE+MAGAZINE, Jan. 2003, http://www.phoneplusmag.com/articles/ 311FEAT4.html (last visited Nov. 13, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(34.) See id. A biannual audit (Report No. 04-19, Office of the Inspector General, April 2004), conducted by the DOJ's Office of the Inspector General (OIG), evaluated the progress of CALEA compliance, and found many problems. See the audit report at the DOJ OIG website, http://www.usdoj.gov:80/ oig/reports/FBI/a0419/exec.htm (last visited Nov. 13, 2005) (on file with the Rutgers Computer and Technology Journal). It noted that implementation costs had been much higher than estimated by Congress, and that CALEA-compliant software had only been activated on just 10-20% of wireline equipment. Id. Most alarming was that the report admitted the FBI could not show the extent to which inability to implement CALEA had negatively affected FBI surveillance. Id.

(35.) Press Release, Federal Communications Commission, Extension of CALEA Compliance Date (Sept. 11, 1998), available at http://www.fcc.gov/ Speeches/Kennard/Statements/stwek867.txt (William E. Kennard served as Chairman of the FCC from October 1997 to January 2001) (on file with the Rutgers Computer and Technology Law Journal). In September 2004 testimony before the House Subcommittee on Telecommunications and the Internet, spokespersons for the FBI and DOJ stated that many companies still do not comply with CALEA, primarily because of inadequate technology. See Hearing, supra note 6, at 4, 15 (prepared statements of Laura H. Parsky, DOJ, and Marcus C. Thomas, Deputy Assistant Director, Investigative Technologies Division, FBI).

(36.) Congress passed the USA Patriot Act ("Patriot Act") into law on October 26, 2001, with "quickness uncharacteristic of the federal government, in a mere six weeks following the unprecedented terrorist attacks of September 11, 2001." Justin F. Kollar, USA PATRIOT Act, the Fourth Amendment, and Paranoia: Can They Read This While I'm Typing, 3 J. HIGH TECH. L. 67, 68 (2004). The Patriot Act gave the DOJ the power to conduct surveillance on any target, with the objective of apprehending terrorists before they have acted. The existing, higher standard had restricted the government's surveillance to cases where there was probable cause or a magistrate found probable cause to believe a crime had occurred. However, the Act now authorized interception of all messages "relevant to an ongoing criminal investigation." Id. at 69. See H.R. 3162, [section] 216(b)(a)(1) 107th Cong. (2001).

(37.) See Kollar, supra note 36, at 72-73.

(38.) See Gilman, supra note 19, at 111.

(39.) George A. Chidi, Jr., Privacy, Money Issues Delay New FCC Wiretapping Rules, ITWORLD.COM (Jan. 14, 2002), http://www.itworldcom/Man/2697/ IDG020114wiretappingrules/pfindex.html (on file with the Rutgers Computer and Technology Law Journal).

(40.) See Gilman, supra note 19, at 111.

(41.) See id. at 122.

(42.) Id. at 122. ISP stands for Internet Service Provider, a company that provides individuals with access to the Internet. In addition, ISPs serve companies by "providing a direct connection from the company's networks to the Internet." See Internet Service Provider--A Word Definition from the Webopedia Computer Dictionary available at http://isp.webopedia.com/TERM/I/ISP.html (last visited Nov. 13, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(43.) Gilman, supra note 19, at 122. However, critics are skeptical that Carnivore can be selective and not capture unauthorized data. They fear there is enormous potential for abuse. See Pierre Thomas, FBI Says Carnivore Will Not Devour Privacy, CYN.COM (July 21, 2000), http://archives.cnn.com/2000/ TECH/computing/07/21/fbi.carnivore (on file with the Rutgers Computer and Technology Law Journal).

(44.) See definition of Carnivore, at the Whatis.com website available at http://searchsecurity.techtarget.com/sDefinition/0,,sid14_gci508347,00.html (last visited Oct. 28, 2002) (on file with the Rutgers Computer and Technology Journal).

(45.) See generally Thomas, supra note 43.

(46.) Chidi, supra note 39.

(47.) See Thomas, supra note 43.

(48.) 'Carnivore' Eats Your Privacy, WIRED NEWS (July 11, 2000), http://wired.com/news/politics/0,1283,37503,00.html (last visited Nov. 13, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(49.) See Gilman, supra note 19, at 123. The government argues that releasing the 'source code' would allow criminals to figure out ways to outwit the system. Id. Source code is the readable form created in programming language by a human. It must be converted to the machine language that the computer understands and can execute. See Glossary, PACE S.A., availble at http://www.pace.ch/cours/glossary.htm (last visited Nov. 13, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(50.) See WIRED NEWS, supra note 48.

(51.) See Thomas, supra note 43.

(52.) See Gilman, supra note 19, at 124.

(53.) See id.

(54.) Declan McCullagh and Ben Charny, FBI Adds to Wiretap Wish List, ZDNET NEWS, Mar. 12, 2004, http://news.zdnet.com/2100-1099 22-5172948.html [hereinafter McCullagh and Charny I] (on file with the Rutgers Computer and Technology Law Journal).

(55.) Id.

(56.) Kevin Poulsen, Feds Invite Comment on Internet Wiretaps, SECURITYFOCUS, Sept. 24, 2004, http://securityfocus.com/news/9582 [hereinafter Poulsen II] (on file with the Rutgers Computer and Technology Law Journal); see also NPRM, supra note 2, at 15677.

(57.) The DOJ has asserted that the FCC has the authority to issue declaratory rulings and promulgate rules under the authority of CALEA, although statements made by FCC commissioners and FCC press releases do not constitute federal law and are not binding on the FCC. David Carney, FCC Adopts NPRM and Declaratory Ruling Regarding CALEA Obligations, TECH L.J., Aug. 4, 2004, http://www.techlawjournal.com/topstories/2004/20040804.asp (on file with the Rutgers Computer and Technology Law Journal).

(58.) Vonage is the world's largest commercial provider of Voice over Internet Protocol. Declan McCullagh and Ben Charny, Feds Back Wiretap Rules for Internet, CNET NEWS, Aug. 4, 2004, http://www.news.com.com/2100-735252-96417.html [hereinafter McCullagh and Charny II] (on file with the Rutgers Computer and Technology Law Journal).

(59.) See NPRM, supra note 2, at 15677; FCC Press Release, supra note 4.

(60.) Thomas K. Crowe, Esq., New VoIP CALEA Rules, MONDAQ, Aug. 25, 2004, http://www.mondaq.com/I_article.asp_Q_articleid_E_28009 (last visited Nov. 13, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(61.) Poulsen I, supra note 2.

(62.) See NPRM, supra note 2, at 15677.

(63.) 47 C.F.R. [section] 1.415(a) (2004). The FCC stated that comments were to be filed on or before November 8, 2004 and reply comments on or before December 7, 2004. Communications Assistance for Law Enforcement Act, 69 Fed. Reg. 56976, 56976 (published Sept. 23, 2004).

(64.) See NPRM, supra note 2, at 15677, 15693, 15743; see also CDT Comments, supra note 5. The CDT represents many organizations opposed to this ruling, among them the American Library Association and Sun Microsystems. See CDT Comments, supra note 5.

(65.) Crowe, supra note 60.

(66.) PSTN refers to the traditional phone network based on copper wires carrying analog voice data. See What is PSTN?--A Word Definition from the Webopedia Computer Dictionary, http://www.webopedia.com/TERM/P /PSTN.html (last visited Nov. 2, 2005) (on file with the Rutgers Computer and Technology Journal).

(67.) Crowe, supra note 60.

(68.) Id.

(69.) Federal Communications Commission, Consumer & Governmental Affairs Bureau, Voice-Over-Internet Protocol, http://www.fcc.gov/voip/ (last visited Nov. 2, 2005) [hereinafter FCC VoIP] (on file with the Rutgers Computer and Technology Law Journal). In recent years, the technology has greatly improved in "sound quality and transmission reliability," contributing to its growing appeal. See Konrad Trope, A New Chapter in the War on Terrorism: The FB1 Wants Expanded Wiretapping Authority, MODERN PRACTICE, Feb. 2004, http://practice.findlaw.com/tooltalk-0204.html (on file with the Rutgers and Technology Law Journal).

(70.) See FCC VoIP, supra note 69. Perhaps there is no greater sign that VoIP has entered the common lexicon than the fact that it joined the worldwide For Dummies[R] series in August 2005 when my own employer, John Wiley & Sons, published VoIP for Dummies.

(71.) FCC VoIP, supra note 69. So long as there is high speed Internet connection available, the phone adaptor can be used while traveling, adding great flexibility to this technology. See id. Many hotels have made availability of high speed Internet access a priority to lure business travelers, offering help desks for guests who want to get connected quickly, as well as a flat daily charge with unlimited access. The goal is to make "connecting to the Internet simple and instantaneous." See The Internet 'Super Highway"--Now In a Hotel Near You, THE TRAVEL INSIDER, Sept. 27, 2002, available at http://www.thetravelinsider.info/2002/0927.htm (last visited Nov. 13, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(72.) See FCC VoIP, supra note 69.

(73.) Id.

(74.) Id.

(75.) Providers (often through ubiquitous pop-up ads) currently offer prices as low as $14.95 per month for 500 minutes, and features such as one free month, free local and long distance calls, and low international rates, or higher monthly charges with unlimited access to the U.S., Canada and Western Europe. See, e.g., BesTradeUSA, http://www.bestradeusa.com/longdistance/ (last visited Jan. 29, 2005) [hereinafter Everywhere Broadband]; Lingo Broadband Phone Service Homepage, https://www.lingo.com/guWeb/(last visited Jan. 29, 2005) [hereinafter Lingo Broadband] (on file with the Rutgers Computer and Technology Law Journal). One such service, Lingo, for example, includes 26 calling features such as voicemail, call forwarding, and call waiting for a home plan at $19.95 per month with a 30-day guarantee. Ease of set-up is also emphasized on service provider sites.

(76.) See FCC VoIP, supra note 69.

(77.) See Trope, supra note 69, at 2. Not unrelated to this growth was another controversial ruling by the FCC in November 2004, stating that wireless and land-based VoIP carriers were exempt from most state regulation. See, In re Vonage Holdings Corp., 19 F.C.C.R. 22404, 22404-05 (2004). The FCC's declaratory order preempted the local utilities' attempts to impose their regulations, and the Eighth Circuit Court of Appeals concluded that the FCC order was binding and could not be challenged in the litigation. See, Vonage Holdings Corp. v. Minn. Pub. Utils. Comm'n, 394 F.3d 568, 569 (8th Cir. 2004). This ruling is expected to result in lower prices for telephone calls but has angered states seeking revenue and control of local carriers. See, Vonage Holdings Corp., 394 F.3d 568.

(78.) See Pamela M. Prah, States Want a Say on Cyberspace Calls, KANSAS CITY INFOZINE, Feb. 9, 2005, http://www.infozine.com/news/stories/op/ storiesView/sid/5749/ (last visited Nov. 13, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(79.) Id.

(80.) See Sue Anne Pressley and Justin Blum, Hackers May Have Accessed Computers at Public Libraries." Authorities Investigating Possible Internet Communications, WASH. POST, Sept. 16, 2001, at A04.

(81.) See Howe, supra note 3.

(82.) FCC VoIP, supra note 69. Note that an information service is "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications." 47 U.S.C. [section] 1001(6)(A)(2000).

(83.) McCullagh and Chamy II, supra note 58.

(84.) See generally AskCALEA, note 9.

(85.) See Wiretapping, Electronic Privacy Information Center, available at http://epic.org/privacy/wiretap/ (last visited Oct. 10, 2005) (on file with the Rutgers Computer & Technology Law Journal).

(86.) Id.

(87.) At that time, the term "information services" was shorthand for the Internet and the applications running over it. See U.S.C. [section] 1001(6)(A) (2000) (defining information services).

(88.) Drew Clark, Tech, Privacy Groups Challenge Digital Wiretapping," Rules, NATIONAL JOURNAL'S TECHNOLOGY DAILY, PM EDITION, Sept. 8, 2004, at 1 [hereinafter Clark I].

(89.) Id.

(90.) See Joint Petition for Expedited Rulemaking to Resolve Various Outstanding Issues Concerning the Implementation of the Communications Assistance for Law Enforcement Act, Department of Justice, Mar. 10, 2004, available at http://www.askcalea.com/jper.html [hereinafter Joint Petition] (last visited Nov. 13, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(91.) FCC Press Release, supra note 4.

(92.) H.R. REP. NO. 103-827, Telecommunications Carrier Assistance to the Government, at 22, 24 (1994), available at http://www.askcalea.net/docs/ hr103827.pdf (last visited Nov. 7, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(93.) CDT Comments, supra note 5, at 23.

(94.) Id.

(95.) Id.

(96.) Hearing, supra note 6 at 40 (testimony of James X. Dempsey).

(97.) Id. Dempsey is considered "one of the leading watchdogs of FBI surveillance initiatives," respected by both political parties. ROBERT O'HARROW, JR., NO PLACE TO HIDE, 12 (2005).

(98.) Hearing, supra note 6, at 41.

(99.) See CDT Comments, supra note 5, at 22.

(100.) Id. at 19.

(101.) Id. at 22.

(102.) Poulsen I, supra note 2.

(103.) Chidi, supra note 39.

(104.) Poulsen I, supra note 2.

(105.) CDT Comments, supra note 5, at 4.

(106.) See id. at 4-5.

(107.) Id. at 5.

(108.) Id.

(109.) Press Release, Verizon Wireless, Verizon Wireless Applauds FCC for Law Enforcement Assistance (Aug. 4, 2004) http://www.wreg.com/Global/ story.asp?S=2132296 [hereinafter Verizon Press Release] (on file with the Rutgers Computer and Technology Law Journal).

(110.) See CALEA Homepage available at http://www.askcalea.net/ jper.html#fmq (last visited November 19, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(111.) Id.

(112.) See Verizon Press Release, supra note 109.

(113.) Nuvio's FCC Filing Advocates CALEA Guidelines for VoIP Providers, BUSINESS WIRE, Nov. 15, 2004, http://www.businesswire.com (on file with the Rutgers Computer and Technology Law Journal).

(114.) Id.

(115.) Id.

(116.) Id.

(117.) See Roy Mark, A Busy Year for IT in DC, FXCM.COM, Dec. 17, 2004, http://www.internetnews.com/bus-news/php/3449601 (on file with the Rutgers Computer and Technology Law Journal).

(118.)See U.S. Attorneys' Bulletin, supra note 20, at 1.

(119.)See id. at 1-2.

(120.)See Trope, supra note 69, at 3.

(121.)Declan McCullagh and Ben Charny, FCC Chairman Powell Resigns, CNET NEWS.COM, Jan. 21, 2005, http://news.com.com/ FCC+Chairman+Powell+resigns/2100-1033_3-5545030.html [hereinafter McCullagh and Chamy III] (on file with the Rutgers Computer and Technology Law Journal). In January 2005, Powell announced he would step down from the FCC, effective March 2005. Id.

(122.) Drew Clark et al., The Reluctant Planner, REASON ONLINE, Dec. 2004, http://www.reason.com/0412/fe.dc.the.shtml [hereinafter Clark III (on file with the Rutgers Computer and Technology Law Journal).

(123.) The FCC normally has five commissioners, usually three from the political party in power and two from the opposing party. Powell, son of former Secretary of State Colin Powell, is a Georgetown-educated lawyer and first joined the FCC in 1997 when confirmed by the Senate to be one of the Republican commissioners. Id. As part of his supervisory role over telecommunications, Powell was also responsible for enforcing decency in broadcasting, most notably the $550,000 fine to CBS for Janet Jackson's bare breast during the 2004 Superbowl. Id. Although Commissioner Kevin J. Martin has replaced Powell as FCC chairman, a replacement commissioner has not been named since Powell's departure, so there are currently only four commissioners. See id; see also commissioner information and biographies on the FCC's homepage, available at http://www.fcc.gov/ (last visited October 24, 2005) (on file with the Rutgers Computer and Technology Journal).

(124.) See McCullagh and Charny II, supra note 121.

(125.) Id.

(126.) Id.

(127.) Paul Davidson, FCC May Put Cable, Net Phones Under Wiretap Rule, USA TODAY, Aug. 4, 2004, at 2B.

(128.) See McCullagh and Charny I, supra note 54.

(129.) See Carney, supra note 57.

(130.) See NPRM, supra note 2 and accompanying text.

(131.) The FCC's unanimous vote in August 2004 is technically only a notice of proposed rulemaking in the approval process, which then requested "public comment before a formal regulation is adopted." See McCullagh and Charny II, supra note 58.

(132.) Id.

(133.) See Carney, supra note 57.

(134.) Id. The DOJ's petition suggested that the FCC "is the appropriate agency to enforce any CALLA compliance benchmarks and/or deadlines, as well as CALLA compliance generally." Id.

(135.) See FCC Press Release, supra note 4.

(136.) See Trope, supra note 69, at 3.

(137.) Id.

(138.) Id.

(139.) See Katz v. United States, 389 U.S. 347, 364 (1967) (Black, J., dissenting) (characterizing the holding of the majority); see also U.S. ATTORNEYS' BULLETIN, supra note 20, at 1.

(140.) See Katz, 389 U.S. at 359.

(141.) See Kollar, supra note 36, at 71.

(142.) U.S. CONST. amend. IV.

(143.) See Kollar, supra note 36, at 71.

(144.) See Jim McGee, Wiretapping Rises Sharply Under Clinton," Drug War Budget Increases Lead to Continuing Growth Of High-Tech Surveillance, WASH. POST, July 7, 1996, at A4.

(145.) See Scott, 436 U.S. at 141-42 (upholding wiretapping where only 40% of intercepted conversations were relevant to the investigation); Ozar v. United States, 50 F.3d 1440, 1448 (W.D. Mo. 1994) (upholding the government's wiretapping of privileged conversations where "there was no bad faith" despite a "pattern of unnecessary intrusion").

(146.) See McGee, supra note 144, at A1.

(147.) Id. at A1, A4.

(148.) Id. at A1.

(149.) See generally U.S. Telecom Assoc. v. FCC, 227 F.3d 450 (D.C. Cir. 2000). The issue in this case was a legal challenge by privacy groups to invalidate technical surveillance standards issued by the FCC under CALEA. The court cited A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1491 (D.C. Cir. 1995) ("It is well-established that 'an agency must cogently explain why it has exercised its discretion in a given manner' and that explanation must be 'sufficient to enable us to conclude that the [agency's action] was the product of reasoned decisionmaking.'"). It criticized the FCC's response to CALEA's cost directives as demonstrating "a classic case of arbitrary and capricious agency action." U.S. Telecom Assoc. v. FCC, 227 F.3d 450, 461 (D.C. Cir. 2002). Clearly, the appeals court was determined to limit use of new surveillance authority. See Wiretapping Report, Electronic Privacy Information Center, available at http://www.epic.org/ privacy/wiretap/[hereinafter Wiretapping Report] (last visited Oct. 10, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(150.) Wiretapping Report, supra note 149.

(151.) See Trope, supra note 69, at 4.

(152.) Brand X Internet Servs. v. FCC, 345 F.3d 1120, 1129 (9th Cir. 2003).

(153.) Id. at 1129. In his concurrence, Judge Diarmuid F. O'Scannlain stated that the court's adherence to stare decisis results in a holding that "effectively stops a vitally important policy debate in its tracks, at least until the Supreme Court reverses us or Congress decides to act." Id. at 1132-33. In fact, although rehearing and suggestion for rehearing en banc was denied by the Ninth Circuit on Aug 31, 2004, certiorari was granted and the case was argued to the Supreme Court on March 29, 2005. See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 160 L. Ed. 2d 494, 125 S. Ct. 654 (2004).

(154.) 216 F.3d 871 (9th Cir. 2000).</p> <pre> ISPs are themselves users of telecommunications when they lease lines to transport data on their own networks and beyond on the Internet backbone. However, in relation to their subscribers, who are the 'public' in terms of the statutory definition of telecommunications service, ISPs provide 'information services,' and therefore are not subject to regulation as telecommunications carriers. Id. at 877 (citations omitted). </pre> <p>(155.) Pub. L. No. 104-104, 110 Stat. 56 (1996). The Act "provides that a franchising authority may not impose any requirement that has the purpose or effect of prohibiting, limiting, restricting, or conditioning the provision of a telecommunications service by a cable operator." 47 U.S.C. [section] 541(b)3(B) (2000). "The goal of this new law is to let anyone enter any communications business--to let any communications business compete in any market against any other." FCC Homepage, Telecommunications Act of 1996, available at bttp://www.fcc.gov/telecom.html (last visited Oct. 10, 2005) (on file with the Rutgers Computer and Technology Journal)

(156.) Kevin Fitchard and Glenn Bischoff, Court Ruling Reopens Data Divide, Oct. 13, 2003, http://telephonyonline.com/mag/telecom_court_ruling_reopens/; see also Brand X Internet Servs., 345 F.3d at 1126.

(157.) Brand X Internet Servs., 345 F.3d at 1132. The very size of the Ninth Circuit makes it nearly impossible for the court to overrule its own precedent, although in this case at least one of the judges was conflicted over the prospect. See supra note 152 and accompanying text.

(158.) Brand X Internet Servs., 345 F.3d at 1127.

(159.) 467 U.S. 837, 842 (1984).

(160.) Id. at 842-43.

(161.) Id. at 843.

(162.) Id.

(163.) Brand X Internet Servs., 345 F.3d at 1132.

(164.) Donny Jackson, Cable-modem Classification Needs' to Be Resolved Quickly, PRIMEDIA INSIGHT TELEPHONY, Dec. 8, 2004, http://www.telephonyonline.com/ (on file with the Rutgers Computer and Technology Law Journal).

(165.) Id.

(166.) Id.

(167.) Id.

(168.) See the Supreme Court Homepage available at http://www, supremecourtus.gov/oralarguments/argument_transcripts/04-277.pdf (last visited Nov. 7, 2005) (on file with the Rutgers Computer and Technology Journal).

(169.) Yuki Noguchi, Cable Firms Don't Have to Share Networks, Court Rules, WASH POST., June 28, 2005, at DI.

(170.) See, e.g., Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 487, 496-97 (2004) (resolving an environmental dispute); United States v. Lara, 541 U.S. 193, 199 (2004) (concerning Native American tribal sovereignty); Pine Prods. Corp. v. United States, 945 F.2d 1555, 1558 (Fed. Cir. 1991) (examining a timber industry controversy).

(171.) Brand X Internet Servs., 345 F.3d at 1125. The FCC subsequently issued a notice of inquiry on September 28, 2000, announcing its goal to determine what regulatory treatments would be needed for cable modem service. See 15 F.C.C.R. 19287.

(172.) Chevron, 467 U.S. at 843.

(173.) Rust v. Sullivan, 500 U.S. 173, 186-87 (1991) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 42 (1983) (upholding health department regulations limiting the ability of Title X fund recipients from engaging in abortion related activities where the Court held the regulations were a permissible construction of the underlying legislation and did not violate either the First or Fifth Amendments).

(174.) See Christopher Stern & Jonathan Krim, Ruling Opens Cable Lines, Internet Access Choices May Grow, WASH. POST, Oct. 7, 2003, at Al (Powell's comments were in response to the Ninth Circuit's Brand X decision).

(175.) 47 U.S.C. [section] 1002(b) (2000).

(176.) 47 U.S.C. [section] 1001(8) (2000).

(177.) Brand X Internet Servs., 345 F.3d at 1127 (quoting Chevron U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

(178.) See e.g., Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 600 (2004) (holding that "deference to its statutory interpretation is called for only when the devices of judicial construction yield no clear sense of congressional intent"); Smith v. Doe, 538 U.S. 84, 93 (2003) (holding that considerable deference must be accorded to the intent as the legislature has stated it); Udall v. Tallman, 380 U.S. 1, 16 (1965) (stating that agency interpretation of a statute is entitled to great deference by the courts).

(179.)Chevron, 467 U.S. at 842-43.

(180.)Pine Prods. Corp., 945 F.2d at 1559.

(181.)See id,, section II, F and G.

(182.)CDT Comments, supra note 5, at 19.

(183.) Civil and Constitutional Rights of the H. Judiciary Comm.: J. Hearing, Before the Subcomm. on Technology and the Law of the S. Judiciary Comm. and the Subcomm., 103rd Cong. 49-50 (1994).

(184.) Wiretap Rules Split VoIP, RED HERRING, Aug. 26, 2005, available at http://www.redherring.com/Article.aspx?a= 13349&hed=Wiretap+Rules+Split+Vo IP&sector=Industries&subsector=SecurityAndDefense. Skype's website describes its product as a "Peer to peer voice service. Users may call landlines and cellphones for a fee; users may call each other for free. It's free and easy to download and use, and works with most computers." See Skype Homepage at http://www.skype.com.

(185.) Wiretap Rules Split VoIP, supra note 184.

(186.) See FBI Director Louis Freeh's commentary, supra note 183.

(187.) Chevron, 467 U.S. at 843 n.9.

(188.) See id. at 843.

(189.) In its landmark report released July 22, 2004, the National Commission on Terrorist Attacks upon the United States (also known as the 9/11 Commission) called for "standardized identification, widespread use of fingerprints and other biometrics, far greater information sharing, and a consolidated intelligence system." The 9/11 Commission Report, available at http://www.911commission.gov/. It asserted that such measures are crucial to national security, despite the issues they raise about our civil liberties. O'HARROW, supra note 97 at 8.

(190.) Chevron, 467 U.S. at 843-44.

(191.) Id. at 844.

(192.) See generally Brian Braiker, Wiretapping the Web, NEWSWEEK, Aug. 13, 2004, http://www.msnbc.msn.com/id/5697267/site/newsweek/.

(193.) Id. Zittrain is the co-director of Harvard Law School's Berkman Center for Internet and Society.

(194.) See Trope, supra note 69, at 2.

(195.) Kollar, supra note 36, at 69.

(196.) CDT Comments, supra note 5, at 10.

(197.) Id.

(198.) Susan Freiwald, Online Surveillance. Remembering the Lessons of the Wiretap Act, 56 ALA. L. REV. 9, 43 (2004).

(199.) Id.

(200.) Id. at 44. Incidentally, this abundance of information makes the individual vulnerable to online identity theft. Although many victims cannot determine exactly how the perpetrator obtained their personal data, it is believed that an increasing number of incidents involve online fraud. See Tom Zeller Jr., Breach Points Up Flaws in Privacy Laws, N.Y. TIMES, Feb. 24, 2005, at C1.

(201.) Stephen Labaton, F.C.C. Takes on Oversight of Internet Phone Services, N.Y. TIMES, Nov. 10, 2004, at C8.

(202.) See Alan Breznick, FCC Preempts State Utility Regulation of VoIP Services, CABLE DATACOM NEWS, Dec. 1, 2004, http://www.vonageforum.com/article1430.html (on file with the Rutgers Computer and Technology Law Journal).

(203.) See supra note 76 and accompanying text.

(204.) See Martin Booth, VoIP: FCC slaps $15,000 fine on Madison River Communications, EARTHTIMES.ORG, Mar. 4, 2005, http://www.earthtimes.org/ articles/show/1866.html.

(205.) Id.

(206.) Id.

(207.) In re Madison River Commc'ns, LLC, FCC Consent Decree, No. DA05543, http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-05-543A2.pdf (on file with the Rutgers Computer and Technology Law Journal).

(208.) See Booth, supra note 204.

(209.) Jim Wagner, Emergency VoIP Gets a Private Line, INTERNET NEWS.COM, Sept. 8, 2005, http://www.internetnews.com/infra/print.php/3547266 (on file with the Rutgers Computer and Technology Journal).

(210.) See supra, notes 90, 93 and accompanying text.

(211.) CDT Comments, supra note 5, at 10.

(212.) The DOJ and carriers do not agree who should pay for future wiretaps, and large companies such as Vonage argue that they should not be financially responsible for CALEA compliance since they did not benefit from earlier federal funding. See Randy Barrett, Carriers, DoJ Spar Over CALEA Wiretap Costs, WASH. INTERNET DAILY, Dec. 27, 2004.

(213.) See Labaton, supra note 201, at C8.

(214.) 47 U.S.C. [section] 1006(b)(2) (2000) ("protect[ing] the privacy and security of communications not authorized to be intercepted").

(215.) Freiwald, supra note 198, at 16.

(216.) See Communications Assistance for Law Enforcement Act (CALEA), Electronic Frontier Found. Homepage, http://www.eff.org/Privacy/ Surveillance/CALEA/ (last visited Oct. 28, 2005) (on file with the Rutgers Computer and Technology Journal).

(217.) See EFF Urges FCC Not to Mandate Surveillance Regime on Internet, LINUXELECTRONS, Nov. 13, 2004, http://www.linuxelectrons.com/article.php/ 20041113005852348 (on file with the Rutgers Computer and Technology Law Journal).

(218.) Id.

(219.) Braiker, supra note 192.

(220.) See Patrick Ross, Hill Panel Sounds Alarm on Telecom Network Vulnerability, WASH. INTERNET DAILY, March 31, 2004, (Lexis, News & Bus.).

(221.) Id.

(222.) Id.

(223.) Drew Clark, Telecom: Experts Fear Impact of Internet Telephone Surveillance, NAT'L J. TECH. DAILY PM ED., Sept. 29, 2004 [hereinafter Clark III].

(224.) See Carney, supra note 57.

(225.) See Clark III, supra note 223.

(226.) Heather Forsgren Weaver, Subcommittee Told No Technical Barriers to CALEA Compliance, RCR WIRELESS NEWS, Sept. 13, 2005, at 16.

(227.) Braiker, supra note 192.

(228.) Id.

(229.) See Michael Geist, Big Brother's Shocking Plans for the Internet, THESTAR.COM, Mar. 7, 2005, http://www.gnn.tv/headlines/1322/ Big_Brother_s_Shocking_Plans_for_the_Internet.

(230.) See FCC Press Release, supra note 4.

(231.) Educause is a nonprofit consortium of more than 1900 colleges, universities and other educational institutions that seek to advance responsible use of information technology in higher education. See generally Educause Homepage available at http://www.educause.com.

(232.) Lobbyist Predicts CALEA Exemption for Schools, Libraries, TELECOM A.M., Dec. 20, 2004, available at http://people.internet2.edu/~ben/blog/ archives/000044.html.

(233.) Id.

(234.) See 47 U.S.C. [section] 1001(8) (2000); see also CDT Comments, supra note 5, at 28.

(235.) See 47 U.S.C. [section] 1001(6) (2000); see also CDT Comments, supra note 5, at 28.

(236.) Id.

(237.) See Joint Petition, supra note 90.

(238.) See, e.g., CDT Comments, supra note 5.

(239.) See Braiker, supra note 192.

(240.) A recent New York Times editorial commented that funds available to improve the nation's security are often "misdirected" and there are areas of "troubling insecurities" that have not yet been addressed by Homeland Security: chemical plants, nuclear materials, nuclear power plants, port security, hazardous waste transport, and bioterrorism. Our Unnecessary Insecurity, N.Y. TIMES, Feb. 20, 2005, at A8.

(241.) 47 U.S.C. [section] 1002 (a)(4) (2000).

(242.) 401 u.s. 745, 757 (1971) (Douglas, J., dissenting).

(243.) See 47 U.S.C. [section] 1002(b) (2000).

(244.) See 47 U.S.C. [section] 1001(6) (2000); 47 U.S.C [section] 1002(b) (2000).

(245.) FCC Press Release, supra note 4.

(246.) See supra, section II, E.

(247.) Robert Pear, Panel Urges New Protection On Federal 'Data Mining,' N.Y. TIMES, May 17, 2004, at A12.

Constance L. Martin, A.B. History and Literature, cum laude, Harvard/Radcliffe College; M.B.A Duke University; Candidate for J.D., May 2006, Rutgers University School of Law--Newark. This note is dedicated to my father, the Honorable Gordon A. Martin, Jr., whose commitment to civil liberties has informed his life and greatly influenced mine. I would like to thank my classmate Scott Carlson, who identified a fascinating topic, and provided constant encouragement and proofreading throughout the writing process. I am very grateful for the support provided by my family and by the Rutgers Evening Students of the Class of 2006, and for the work of the 2004-2006 staffs of the Rutgers Computer and Technology Law Journal. My colleagues at John Wiley, particularly in the sales department, and at Barnes & Noble have been a wonderful source of support and encouragement during my years in law school, and I especially thank all of them.
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Title Annotation:Communications Assistance for Law Enforcement Act of 1994
Author:Martin, Constance L.
Publication:Rutgers Computer & Technology Law Journal
Date:Mar 22, 2005
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