Defense proposals sparkreluctant privacy debate

All but the hardiest civil libertarians have felt the urge recently to barter a small piece of our privacy for a good, old-fashioned dose of security. Attorney General John Ashcroft last week proposed an anti-terrorism package to Congress that puts a price tag on that security. So far, people are buying. 

"The most important civil freedom we have is that our communications cannot be tapped without a warrant and without probable cause," said Tom Evslin, chairman and CEO of ITXC. "And there is nothing in [the proposal] that upsets that in any way."

The 21-page, anti-terrorism package proposes changes to electronic surveillance laws that make it easier for law-enforcement agencies to obtain and enforce wiretaps-particularly for digital, or packet-mode, technology. 

The proposal may have influenced the extension of a deadline imposed by the FCC on service providers to comply with Section 103 of the Communications Assistance for Law Enforcement Act, which governs wiretapping. Last Wednesday, the FCC extended the Sept. 30 deadline for complying or filing appeals to Nov 19. Most service providers are expected to file appeals.

In a statement reflecting the industry's frustration with CALEA, Cellular Telecommunications & Internet Association President and CEO Tom Wheeler said, "The technical evidence in our submission to the FCC was clear: There is no commercially available solution that meets the FCC's packet-mode surveillance requirements. We understand what they want to accomplish and why, but as of now, the commercially available systems don't exist."

The commercial availability of that technology may be in question, but the issue is less technical than political and cultural, experts said. And service providers appear to be stuck in the middle, particularly as surveillance laws are applied to packet telephony and e-mail.

"We certainly have no problem complying with warrants under these extended conditions," Evslin said. However, "the law should be clear, so people know what to expect. People have a right to know what law is going to be applied."

The concern of many is how it will be applied. Using available technology, service providers can tap into packet-mode communications. But service providers--essentially the guardians of privacy for the public's electronic communications--say they can't filter that data in order to limit law-enforcement's access to data that is outside the bounds of what they are allowed by law. 

"They are going to get more [information] than what the law appears to give them," said a BellSouth Communications attorney. "It's sort of a 'trust me' situation that they will sift out what they are not entitled to."

This scenario is especially sensitive for e-mail communications where the controversy surrounding applications such as Carnivore will heat up.

"Carnivore makes it so [law enforcement] goes to an ISP and sifts through everything to find what they think is responsive to a court order or search warrant, and that is what has the privacy people obviously concerned," the BellSouth attorney said.