Eleven years ago, EE Times warned readers of the hidden costs of the Communications Assistance for Law Enforcement Act (Calea), then known as the Digital Telephony Act. By requiring service providers of all sizes to install packet-snooping gateways in their peering centers and central offices, at the carrier's own cost, the federal government was demanding the equivalent of an "unfunded mandate" for all players in broadband communications.
Last week, a consortium of universities and libraries sued the Federal Communications Commission, following a new FCC order requiring public access providers like schools and Wi-Fi hotspots to comply with those same Calea requirements. Perhaps the pain points were a delay of the inevitable, but the FCC order underscores the inherent absurdity of the Calea legislation.
The core problem from a privacy standpoint is the mere existence of the Foreign Intelligence Surveillance Court. A star-chamber federal court established in 1978, it approves wiretaps in cases of suspected espionage and terrorism. Complaints under the Foreign Intelligence Surveillance Act (FISA) against former Attorney General John Ashcroft in 2003 show that wiretap applications to this court are scarcely being made in an environment free of political pressure.
But even if we assume that FISA is compatible with democracy and that network tappability needs to be upgraded for a world of packetized Internet Protocol traffic two big and questionable assumptions why should the traffic bearer pay the costs? Some may argue that at the end of the day, the public will pay the price of monitoring IP traffic in one form or another. Thus, it matters little whether carriers pass on costs in higher access fees, or the FBI and other agencies demand higher budgets in order to assume the cost of purchasing gateways. But the important issue here is transparency.
A democracy may need covert agencies, and may need to violate basic privacy rights, but the onus should be on the intelligence or law-enforcement agency to justify the need, and to assume all fiscal burdens associated with it. When the costs fall within federal agencies, we may get a rough idea of how much "packet tapping" costs each citizen. When carriers and even public institutions have to pay the price for installing snooper gateways, and then pass the costs on to consumers, we may never know how much the rising cost of tuition or broadband access reflects the cost of allowing ourselves to be wiretapped.
- Loring Wirbel (firstname.lastname@example.org), editorial director of communications for CMP Media's Electronics Group