Wiretaps—“Gobbledygook”

Two telecommunications lawsuits involving national security interests are providing some exceptional problems for the federal government. While the cases may involve civil litigation, they still involve issues that effect criminal investigations.

The first case involves new FCC regulations that are supposed to go into effect in May of 2007.^[1] At issue is whether the new rules, promulgated under the 1994 Communications Assistance for Law Enforcement Act [hereinafter CALEA], exceeded the FCC’s authority.^[2] These rules would make the CALEA apply to broadband internet access and Voice Over IP [hereinafter VOIP] services.^[3] Under the FCC’s interpretation and new rules, CALEA—which deals with circuit-switching technology, and which obligates telecommunications providers to intercept wire and communications carried by the carrier to or from a subject and to access call-identifying information that is reasonably available to the carrier^[4]—would also apply to packet-switching technology such as VOIP. Thus, under the new rules, information obtainable from broadband service providers and VOIP providers, could include information about the subject’s access sessions, information about changes to the user’s service or account profile, and information about packets sent and received by the subject, “including source and destination IP addresses.”^[5]

US Circuit Judge Harry T. Edwards, however is extremely skeptical, saying that the government’s argument “makes no sense,” is “ridiculous,” and are “nonsense” and “gobbledygook.”^[6] The FCC was arguing that the 1994 law covered providers of high-speed Internet services “because their voice-transmission services can be considered separately from information services,” but Judge Edwards replied that “there’s nothing to suggest that in the statute,” and that “stating that does not make it so.”^[7] VOIP providers, however, may be a different story since “it offered ‘precisely the same’ functions as tradition telephone lines,” according to US Circuit Judge David B. Sentelle.^[8] The US DOJ, never missing an opportunity to cry “terror,” filed court papers in which it warned that “failure to expand the wiretap requirements to the fast-growing Internet phone industry ‘could effectively provide a surveillance safe haven for criminals and terrorists who make use of new communications services.’”^[9]

Across the country, in the extremely underreported case involving AT&T’s alleged siphoning of network data to the NSA, the federal government will ask a federal judge in California to dismiss the Electronic Frontier Foundation’s lawsuit against AT&T.^[10] The government will apparently argue that the “state secrets” privilege requires the suit to be dropped.^[11]

The “state secrets” privilege protects military and state secrets, and the court must determine whether “the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.”^[12] Indeed, according to the Supreme Court, “Public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential.”^[13]

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[1] Ted Bridis, Judges Challenge Internet Wiretap Rules, Associated Press (via Yahoo!), May 5, 2006.
[2] Id.
[3] See FCC, Notice of Proposed Rulemaking and Declaratory Ruling 18, Aug. 9, 2004.
[4] Id. at 37.
[5] Id. at 38.
[6] Bridis, supra note 1.
[7] Id.
[8] Id.
[9] Id.
[10] Ryan Singel, Feds Go All Out to Kill Spy Suit, Wired News, May 2, 2006.
[11] Id.
[12] United States v. Reynolds, 354 U.S. 1, 7-8 (1957).
[13] Tenet v. Doe, 544 U.S. 1, 8 (2005) (emphasis in original) (citing Totten v. United States, 92 U.S. 105, 107 (1876)).