Appeals Decision in USTA vs. FCC (CALEA)

MacRonin writes: "Electronic Privacy Information Center announces the DC Circuit Decision in USTA v. FCC (CALEA). The U.S. Court of Appeals for the DC Circuit has ruled that law enforcement agencies must meet the highest legal standard before using new surveillance capabilities. The court decision came in a legal challenge filed by EPIC, other privacy groups and the telecommunications industry to invalidate technical surveillance standards issued by the Federal Communications Commission last year. More details at: CDT Policy Post Volume 6. The court's decision is available."

Note that this case is fundamentally about money: the telecom carriers are suing the government because they feel that the government's desired surveillance abilities (mandated under the 1996 Communications Assistance for Law Enforcement Act; this is where Carnivore was born) are too expensive to implement. If the government provided more money (half a billion tax dollars were given to the phone companies when CALEA was passed, but the companies want more), these objections would evaporate.

So there weren't any principles of privacy involved, at least in the beginning. But some civil liberties groups have grabbed on the shirt-tails of this case to make principled arguments - that the surveillance requirements are too burdensome and intrusive in principle, not just too costly. So this is actually a good result where the Court mostly agreed with the civil liberties people that the surveillors should have to get warrants for some of the information they were seeking to get without warrants, and other information may be unavailable entirely. Note however that "call location" information (the ability of cellular carriers to report to the cops which cell phone tower your phone is registered with, and therefore, probably where you are) will still be available to law enforcement.

Comments

Is it a win?

[Kaa]

I am not so sure that this decision is a good thing. Yes, the four items from the so-called "FBI punch list" were stricken, but two others, the ones that made EPIC concerned, were left in force.

Basically, the court has thrown out the requirement that telecom carriers capture any digit tones (made by pressing buttons on the phone keypad) trasmitted after the call has already connected. Example: calling-card calls -- the original call is to an 800 number and then, after the call has connected, you dial the number you actually want. Note that this could include also such things as bank account numbers and voicemail passwords.

However the court left in force the requirement to supply the physical location of the closest-to-the-caller antenna tower (thus providing the ability to track the caller). It also left in force the interception of packet-mode communications.

So: win some, lose some. The decision to allow tapping packet-mode communications *could* set the wrong precedent for TCP/IP interception...

Kaa

Re:This is Great

[gilroy]

Blockquoth the poster:

Now all we have to do is get law enforcement agencies to repsect the laws. Any chance of that happening? Probably not.

Cynicism aside, this is a good thing. Yes, there are cases of law enforcement abuse, and yes, we need to keep vigilant. But most law enforcement officers in the States do respect the law and live within it. What's being said here is not a statement of technological capability, but of social acceptance: The courts are saying that this sort of surveillance is not compatible with a free society. Can the law be broken? Yeah -- but a cop can beat a confession out of you, too. We still don't recognize it as right.

I would rather live in a society where evil is done through the failure of principles than through their success. The courts have affirmed tat, for now at least, our principles are not evil.