In message <[EMAIL PROTECTED]>, "Perry E. Metzger" writes:
>>
>>As interpreted by the FCC, the act also would require telecommunications
>>providers to turn over "packet-mode communications" - such as those that
>>carry Internet traffic - without the warrant required for a phone wiretap.
I think that the probability that the FBI will be allowed access to
packet content without a warrant is about zero. There's too much
precedent against them.
First, look at the origin of the current Federal wiretap law (18 USC
2511). Circa 1967 (I'm on a plane and don't have my references handy),
the U.S. Supreme Court ruled that warrantless wiretaps were violations
of the Constitution. The principle of stare decisis (which I can type
but not pronounce...) makes it quite improbable that they would overturn
that ruling, this soon. The legislative response was Title III of the
Ombnibus Crime Control Act of 1968, which set out the current wiretap
requirements. These were amended by the ECPA to cover other forms of
communications.
The CALEA requirements are for headers -- for better or worse, the
equivalent data in the voice world, the caller and called numbers, are
not protected as strongly. One can argue that those are, legally
speaking, more easily obtainable. The argument was made to the FCC
that it's very hard to separate headers from content (and rightly so, I
think -- consider all the myriad forms of tunneling). So the FBI said,
in effect, "give us all the data and we'll do the hard stuff".
It's very hard to see how that will fly. It certainly won't in New
York, where the courts have ruled that even pen registers require a
wiretap warrant, since the same technology is involved. Using not
just the same technology, but actually turning over the content on a
promise of good behavior, with no warrant -- that's not one I'm worried
about. (Of course, if it passes muster, I'll be *very* upset, but I
very much doubt that that will be the case.)
--Steve Bellovin
