A three-judge U.S. appeals panel heard arguments May 5 in a case that could decide whether colleges, universities, and even some K-12 school systems must upgrade their computer networks within the next year, making it easier for police and the FBI to wiretap internet phone calls.
At issue is what one higher-education group says could total $7 billion in upgrade expenses for schools nationwide. But if the judges’ demeanor in the May 5 court hearing is any indication, the outcome of the case–which pits federal government officials against civil liberties and education groups–ultimately could prove favorable for schools.
One judge told the government its courtroom arguments were “gobbledygook” and invited its lawyer to return to his office and “have a big chuckle,” the Associated Press (AP) reported.
“Your argument makes no sense,” U.S. Circuit Judge Harry T. Edwards reportedly told the lawyer for the Federal Communications Commission (FCC), Jacob Lewis. “When you go back to the office, have a big chuckle. I’m not missing this. This is ridiculous. Counsel!”
At another point in the hearing, Edwards reportedly told the FCC’s lawyer his arguments were “gobbledygook” and “nonsense.”
The court’s decision was expected within several months.
According to AP, Edwards appeared skeptical over the FCC’s decision to require that providers of internet phone service and broadband services must ensure their equipment can accommodate police wiretaps under the 1994 Communications Assistance for Law Enforcement Act, known as CALEA. The new rules go into effect in May 2007.
Critics say the new FCC rules are too broad and inconsistent with the intent of Congress when it passed the 1994 surveillance law, which excluded categories of companies described as information services.
The FCC argued that providers of high-speed internet services should be covered under the law, because their voice-transmission services can be considered separately from their information services. “Congress intended to cover services [in the 1994 law] that were functionally equivalent” to traditional telephones, Lewis said.
“There’s nothing to suggest that in the statute,” Edwards replied. “Stating that doesn’t make it so.”
The panel appeared more willing to support the FCC’s argument that internet-phone services that allow users to dial and receive calls from traditional telephone numbers might be covered under the 1994 law and required to accommodate court-ordered wiretaps. The technology, popularized by Holmdel, N.J.-based Vonage Holdings Corp., among others, is known as “voice over internet protocol,” or VoIP.
“Voice-over is a very different thing” from broadband services, U.S. Circuit Judge David B. Sentelle said. He said it offered “precisely the same” functions as traditional telephone lines.
The third judge on the panel, Janice Rogers Brown, did not comment or ask any questions during the arguments.
CALEA’s original intent was to outfit existing telephone networks with devices that would enable federal agents to eavesdrop on phone conversations from remote locations. The law was extended recently after Justice Department officials said the growth of the internet and other broadband-based communications was making it difficult to keep tabs on tech-savvy criminals. Under the extension, public computer networks that transmit voice communication via IP telephony also must be equipped with wiretapping capabilities.
Education groups had challenged the FCC rules because they said the requirements would impose burdensome new costs on campus networks.
In a worst-case scenario, every school and university system in the United States that serves as a provider of IP-based telephone services would face the prospect of replacing its switches and routers to meet the basic needs for federal wiretapping, said Wendy Wigen, a policy analyst for EDUCAUSE, a nonprofit association that promotes the use of technology in higher education.
EDUCAUSE is a plaintiff in the case, along with the American Council on Education and other groups.
U.S. Court of Appeals for the District of Columbia
Federal Communications Commission
Disputed FCC rules
American Council on Education