EFF and Others to Challenge Privacy-Invasive Rule

Washington, DC - The Federal Communications Commission (FCC) has issued a "First Report and Order" confirming its expansion of the Communications Assistance to Law Enforcement Act (CALEA) to the Internet. The Electronic Frontier Foundation (EFF) is planning to challenge the rule in court.

The new rule forces Internet broadband providers and "interconnected" Voice-over-IP (VoIP) providers to build backdoors into their networks to make it easier for law enforcement to listen in on private communications. EFF has argued against this expansion of CALEA in several rounds of comments to the FCC.

"A tech mandate requiring backdoors in the Internet endangers the privacy of innocent people, stifles innovation, and risks the Internet as a forum for free and open expression," said Kurt Opsahl, EFF staff attorney.

CALEA, a law passed in the early 1990s, required that all telephone providers build surveillance backdoors into their networks. Due to pressure from EFF and other privacy groups, Congress expressly exempted information services like broadband. But the new details released on September 23rd show that the FCC has decided to ignore Congress's decision to protect the Internet, instead forcing all "facilities-based" providers of any type of broadband Internet access service, as well as interconnected VoIP services, to make their networks wiretap-ready. According to the FCC, all VoIP communications on a given service must be wiretap-ready if the VoIP service offers the capability for users to connect calls with the public switched telephone network (PSTN), even those communications that do not involve the PSTN.

Practically, what this means is that the government will be asking broadband providers -- as well as companies that manufacture devices used for broadband communications -- to create new backdoors for surveillance, imperiling the privacy and security of citizens on the Internet. It also hobbles technical innovation by forcing companies involved in broadband to redesign their products to meet government requirements.

Acknowledging that the FCC is reaching beyond Congress's intention by expanding CALEA to the Internet, FCC Commissioner Michael J. Copps admitted that "[the] statute is undeniably stretched," and FCC Commissioner Kathleen Q. Abernathy issued a plea that Congress revisit its decision to exempt the Internet, stating the "application of CALEA to these new services could be stymied for years" by litigation.

"The FCC's overreach is an attempt to overrule Congress's decision to exclude 'information services,'" said EFF Senior Staff Attorney Lee Tien. "By mandating backdoors in any service that has the capability to replace functions provided by a telephone, the FCC has stretched the statute to the breaking point."


Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation