From: "Rich Gauszka" 

"The brief demonstrates the flaws in the FCC's reasoning and strips
away any believability that its legal analysis has any validity,"

http://news.zdnet.com/2100-9595_22-6032300.html
Universities, libraries and technology companies are asking a federal court
to block controversial wiretap rules designed to facilitate police
surveillance of the Internet.

In a 71-page brief sent to the U.S. Court of Appeals in Washington, D.C.,
on Thursday, they ask the judges to overturn a wiretap ruling from the
Federal Communications Commission that applies to "any type of
broadband Internet access service" and many Internet phone services.

The Bush administration claims that last year's FCC rules are necessary to
make it easier to catch "criminals, terrorists and spies" that
would otherwise be able to evade detection.

But the organizations behind the lawsuit say that Congress never intended
to force broadband providers--and private networks at corporations and
universities--to build in central surveillance hubs for police convenience.
The list of organizations includes Sun Microsystems, Pulver.com, the
American Association of Community Colleges, the Association of American
Universities, and the American Library Association.

"The brief demonstrates the flaws in the FCC's reasoning and strips
away any believability that its legal analysis has any validity," said
Albert Gidari, a partner at Perkins Coie in Seattle who co-authored the
document.

Even without the FCC rules that are scheduled to take effect in spring
2007, police have the legal authority to conduct Internet wiretaps--that's
precisely what the FBI's Carnivore system was designed to do. Still, the
FBI says, the need for "standardized broadband intercept capabilities
is especially urgent in light of today's heightened threats to homeland
security and the ongoing tendency of criminals to use the most clandestine
modes of communication."

Unlike most lawsuits that are first heard by a judge, a procedural twist
sends this one directly to the appeals court. Thursday's filing was
expected; the universities and other groups filed a brief notice of appeal
on Oct. 24, and now the Justice Department and the FCC will have a chance
to submit their responses.

At issue in this case is the scope of a 1994 called the Communications
Assistance for Law Enforcement Act, or CALEA. It required telephone
companies to rewire their networks and switches--at taxpayer expense--to
guarantee police access to features such as extracting touch tones pressed
during a call, conference call information, call waiting data, and so on.

Opponents of the FBI's demands argue that Congress explicitly said CALEA
would not apply to the Internet. A House of Representatives committee
report prepared in October 1994 says CALEA's requirements "do not
apply to information services such as electronic-mail services; or online
services such as CompuServe, Prodigy, America Online or Mead Data; or to
Internet service providers."

According to the brief filed Thursday, the Bush administration is
"relying on an interpretation of CALEA that is contrary to the plain
meaning of the statute, arbitrary and capricious, and otherwise not in
accordance with law."

In an unusual twist, some of the FCC commissioners who unanimously approved
the wiretapping rules have acknowledged that the agency was on shaky legal
ground. Commissioner Kathleen Abernathy, for instance, said she had
"concern that an approach like the one we adopt today is not without
legal risk."

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