Delivered-To: [EMAIL PROTECTED] Date: Thu, 22 Jan 2004 02:57:27 -0800 From: Dewayne Hendricks <[EMAIL PROTECTED]> Subject: [Dewayne-Net] Easing of Internet Regulations Challenges Surveillance

Easing of Internet Regulations Challenges Surveillance Efforts

WASHINGTON, Jan. 21 - The Federal Communications Commission's efforts to reduce regulations over some Internet services have come under intense criticism from officials at law enforcement agencies who say that their ability to monitor terrorists and other criminal suspects electronically is threatened.

In a series of unpublicized meetings and heated correspondence in recent weeks, officials from the Justice Department, the Federal Bureau of Investigation and the Drug Enforcement Administration have repeatedly complained about the commission's decision in 2002 to classify high-speed Internet cable services under a looser regulatory regime than the phone system.

The Justice Department recently tried to block the commission from appealing a decision by a federal appeals court two months ago that struck down major parts of its 2002 deregulatory order. Justice Department officials fear that the deregulatory order impedes its ability to enforce wiretapping orders.

The department ultimately decided to permit the F.C.C. to appeal, but took the highly unusual step of withdrawing from the lawsuit, officials involved in the case said.

As a result of the commission's actions, said John G. Malcolm, a deputy assistant attorney general who has played a lead role for the Justice Department, some telecommunications carriers have taken the position in court proceedings that they do not need to make their networks available to federal agents for court-approved wiretapping.

"I am aware of instances in which law enforcement authorities have not been able to execute intercept orders because of this uncertainty," Mr. Malcolm said in an interview last Friday. He declined to provide further details.

The clash between the commission and officials from the Justice Department and other law enforcement agencies pits two cherished policies of the Bush administration against each other. On one side stand those who support deregulation of major industries and the nurturing of emerging technologies; on the other are those who favor more aggressive law enforcement after the Sept. 11 terrorist attacks.

The outcome of the debate has far- reaching consequences.

Law enforcement officials say it will determine whether they can effectively monitor communications between suspects over new kinds of phone services that otherwise might allow them to escape detection. Also at stake is whether the government or industry will bear the considerable costs of developing the technology for such surveillance.

By contrast, some F.C.C. officials and telephone industry executives say that if the commission buckles to the other agencies and forces the industry to take on a host of expensive obligations the development of promising new communications services may be stalled or squelched for years to come.

The law enforcement officials have also raised concerns about recent statements by the commission's chairman, Michael K. Powell, that suggest he intends to propose rules soon that would place nascent Internet-based telephone services under a looser regulatory regime than the traditional phone system.

Through a spokesman, Mr. Powell declined to discuss the subject.

David Fiske, the commission's chief spokesman, said that he could not respond to Mr. Malcolm's statement that the F.C.C.'s interpretation of the rules was making it more difficult to execute surveillance orders.

A senior official at the F.C.C. said the commission was not unsympathetic to the concerns of the law enforcement agencies. "We're an economic regulatory agency as well as a law enforcement agency and we have to look at the interests of everyone," the official said.

Some industry experts say that their biggest worry is that law enforcement demands may reshape the technical specifications of the new Internet voice services, an accusation that officials at the Justice Department and the F.B.I. deny.

"What's most scary for industry and perhaps some people at the F.C.C. is the notion that the architecture of the Internet will depend on the permission of the F.B.I.," said Stewart A. Baker, a former general counsel of the National Security Agency, which monitors foreign communications. Mr. Baker now represents a number of telecommunications companies as a partner at the law firm of Steptoe & Johnson.


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