Court Skeptical of FCC’s Internet Wiretap Rules

A U.S. appeals court panel sharply challenged the Bush administration Friday over new rules making it easier for police and the FBI to wiretap Internet phone calls. A judge said the government’s courtroom arguments were “gobbledygook.”

The skepticism expressed so openly toward the administration’s case encouraged civil liberties and education groups that argued that the U.S. was improperly applying telephone-era rules to a new generation of Internet services.

“Your argument makes no sense,” U.S. Circuit Judge Harry T. Edwards told Jacob Lewis, the lawyer for the Federal Communications Commission.

“When you go back to the office, have a big chuckle. I’m not missing this. This is ridiculous. Counsel!”

At another point in the hearing, Edwards told the FCC lawyer that his arguments were “gobbledygook” and “nonsense.”

The court’s decision is expected within several months.

In an unrelated case last year affecting digital television, two of the same three judges found that the FCC had significantly exceeded its authority and threw out new government rules requiring anti-piracy devices in new video devices. Lewis was also the losing lawyer in that case, and Edwards also was impassioned then in his criticisms of the FCC.

In the current case, Edwards appeared especially skeptical over the FCC’s decision to require that providers of Internet phone service and broadband services must ensure their equipment can accommodate police wiretaps under the 1994 Communications Assistance for Law Enforcement Act.

The new rules go into effect in May 2007.

The 1994 law was originally aimed at ensuring court-ordered wiretaps could be placed on wireless phones.

The Justice Department, which has lobbied aggressively on the subject, warned in court papers that failure to expand the wiretap requirements to the fast-growing Internet phone industry “could effectively provide a surveillance safe haven for criminals and terrorists who make use of new communications services.”

Critics argued that the new FCC rules were too broad and inconsistent with the intent of Congress when it passed the law, which excluded categories of companies described as information services.

The FCC asserted that providers of high-speed Internet services should be covered under the law because their voice-transmission services can be considered separately from information services.

“Congress intended to cover services that were functionally equivalent” to traditional telephones, Lewis said during the hearing in U.S. Court of Appeals for the District of Columbia.

Edwards replied, “There’s nothing to suggest that in the statute. Stating that doesn’t make it so.”

The panel appeared more inclined to support the FCC’s argument that Internet phone services that allow users to dial and receive calls from traditional phone numbers may be covered under the 1994 law and required to accommodate court-ordered wiretaps.

The technology, popularized by Holmdel, N.J.-based Vonage Holdings Corp., is known as voice over Internet protocol, or VOIP.

“Voice-over is a very different thing,” U.S. Circuit Judge David B. Sentelle said.

He said it offered “precisely the same” functions as traditional telephone lines.