Groups Initiate Court Challenge to FBI Wiretap Standards; Say FCC Decision Threatens Communications Privacy

FOR IMMEDIATE RELEASE
Thursday, November 18, 1999

WASHINGTON, DC — The American Civil Liberties Union and the Electronic Privacy Information Center today asked a federal appeals court to block new rules that would enable the FBI to dictate the design of the nation’s communication infrastructure.

The challenged rules would enable the Bureau to track the physical locations of cellular phone users and monitor Internet traffic. In a petition submitted today to the U.S. Court of Appeals for the District of Columbia Circuit, the groups said that the rules — contained in a Federal Communications Commission decision issued in August — could result in a significant increase in government interception of digital communications.

In a report issued last year, the ACLU warned that the Clinton Administration is using scare tactics to acquire vast new powers to spy on all Americans.

“If the FBI has its way, the only communications medium invulnerable to government snooping will consist of two soup cans and some string — and even then, I’d be careful,” said Barry Steinhardt, Associate Director of the ACLU.

“We are now at a historic crossroad,” Steinhardt added. “We can use emerging technologies to protect our personal privacy, or we can succumb to scare tactics and to exaggerated claims about the law enforcement value of electronic surveillance and give up our cherished rights, perhaps — forever.”

The court challenge involves the Communications Assistance for Law Enforcement Act (“CALEA”), a controversial law enacted by Congress in 1994, which requires the telecommunications industry to design its systems in compliance with FBI technical requirements to facilitate electronic surveillance.

In negotiations over the last few years, the FBI and industry representatives were unable to agree upon those standards, resulting in the recent FCC ruling. The ACLU and EPIC opposed the enactment of CALEA in 1994 and participated as parties in the FCC proceeding.

Today’s court filing asserts that the FCC ruling exceeds the requirements of CALEA and frustrates the privacy interests protected by federal statutes and the Fourth Amendment.

According to EPIC’s General Counsel, David L. Sobel, “The FBI is seeking surveillance capabilities that far exceed the powers law enforcement has had in the past and is entitled to under the law. It is disappointing that the FCC resolved this issue in favor of police powers and against privacy.”

Sobel said that the appeals court challenge “raises fundamental privacy issues affecting the American public. This case will likely define the privacy standards for the nation’s telecommunication networks, including the cellular systems and the Internet.”

A separate challenge to the FCC ruling is being filed today in San Francisco by the Electronic Frontier Foundation, which joined EPIC and the ACLU in proceedings before the Commission.

The privacy groups are being represented on a pro bono basis by Kurt Wimmer and Gerard J. Waldron, partners at the Washington law firm of Covington & Burling.

The ACLU’s report on wiretapping, “Big Brother in the Wires,” is online at /news/n031798b.html.

A collection of ACLU material on cyberliberties is also available online at /issues/cyber/hmcl.html.

The ACLU-EPIC Petition is attached below.

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

__________________________________________
ELECTRONIC PRIVACY INFORMATION
CENTER and THE AMERICAN CIVIL
LIBERTIES UNION
Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION,
and UNITED STATES OF AMERICA
Respondents.

PETITION FOR REVIEW

The Electronic Privacy Information Center (“EPIC”) and the American Civil Liberties Union (“ACLU”), pursuant to Section 402(a) of the Communications Act of 1934 (“Communications Act”), 47 U.S.C. 402(a), 28 U.S.C. 2342-44, and Rule 15(a) of the Federal Rules of Appellate Procedure, hereby petitions this Court for review of an order of the Federal Communications Commission (“FCC”). In the Matter of Communications Assistance for Law Enforcement Act, CC Docket No. 97-213, Third Report and Order, FCC 99-230 (released Aug. 31, 1999), 64 Fed. Reg. 51,710 (“Third Order”). A copy of the Third Order is attached to this Petition. Venue lies in this Court pursuant to 28 U.S.C. 2343.

The Commission initiated this rulemaking in response to two separate petitions, filed pursuant to section 107(b) of the Communications Assistance for Law Enforcement Act (“CALEA”), contending that the interim standard adopted by industry and the “punchlist” proposed by the Department of Justice (“DoJ”) and the Federal Bureau of Investigation (“FBI”) were either overinclusive or underinclusive. See Third Order, 64 Fed. Reg. 51,710, para.3.

EPIC and the ACLU, along with the Electronic Frontier Foundation (“EFF”), urged the Commission to find that the industry standard and the “punch-list” frustrate the privacy interests of federal statutes and the Fourth Amendment. Specifically, EPIC and the ACLU objected to the adoption of the proposed industry standards as being overinclusive because the standards include location information and packet-mode communications capabilities. EPIC and the ACLU also objected to the DoJ/FBI proposed “punch-list” as being outside the scope of CALEA. Over these objections, the FCC adopted the majority of both the industry standards and the “punch-list” in the Third Order.

The Third Order is arbitrary, capricious, an abuse of discretion and otherwise contrary to law because, inter alia, it conflicts with the privacy interests protected by both the Constitution and federal statutes.

Respectfully submitted,

David L. Sobel
Marc Rotenberg
Electronic Privacy Information Center
666 Pennsylvania Avenue, N.W.
Washington, D.C. 20003
202-544-9240

Barry Steinhardt
American Civil Liberties Union
125 Broad Street
New York, New York 10004
212-344-3005

Kurt A. Wimmer
Gerard J. Waldron
COVINGTON & BURLING
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20044-7566
202-662-6000

Counsel for Petitioners
Electronic Privacy Information Center
and American Civil Liberties Union

November 18, 1999