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FBI urges FCC to protect its ability to wiretap

The FBI told the Federal Communications Commission that no matter how the battle for authority over Internet access ends up, the agency should not change law enforcement’s ability to wiretap.

In comments due Thursday to the FCC on a proposal to move broadband access services into the same category as phone services, the FBI said the FCC should not strip away law enforcement authorities' access to communications networks.

“The rationale is as valid today as it was in 2006 – the need for clear authority to investigate and, if necessary, penalize non-compliant carriers and equipment manufacturers continues to exist, and the Commission’s expertise and experience regarding CALEA continue to make it well-suited to investigate and resolve compliance matters,” wrote Elaine Lammert, deputy general counsel of the FBI. “This established principle should not be disturbed by the Commission’s present efforts to establish a framework for broadband Internet services.”

The Communications Assistance for Law Enforcement Act requires a telecommunications service provider to intercept calls for law enforcement authorities. That requirement applies to phone and broadband Internet services, including VoIP, or Internet-based voice services.

In recent years, some privacy and anti-regulatory groups have protested the expanded scope of CALEA. Higher education and library associations have unsuccessfully taken the FCC to court over its interpretation in 2005 that VoiP and broadband services were covered by CALEA.

A federal appeals court ruled in May that the FCC lacked the authority to prevent Internet service providers from blocking or slowing traffic on their networks. The decision came in a lawsuit filed by Comcast, which had sought to overturn an agency sanction for alleged violations of open-Internet guidelines. That ruling cast into doubt the FCC’s ability to regulate broadband providers just as the agency had begun to push its plan to expand high-speed Internet access nationwide.

With its relevancy in the Internet age at stake and backed by a majority of the commissioners, FCC Chairman Julius Genachowksi proposed reclassifying broadband as a regular phone service. Such a move would put broadband providers squarely under the agency’s authority. In its proposal, the agency said that plans to strip away some rules for broadband providers would not apply to wiretapping.

Senior FCC staff, including Genachowski's chief of staff, Eddie Lazarus, met again this week with telecommunications and cable service providers AT&T and Verizon and the National Cable and Telecommunications Association to see if they could come up with compromises on net neutrality that would help avoid the FCC's proposed move to reclassify broadband. Those companies in their comments disagreed with the proposal.

By Cecilia Kang  |  July 16, 2010; 11:30 AM ET
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