Digital Wiretap Rules
June 03, 2004
No. 13

Background: On March 10th the Federal Bureau of Investigation (FBI), Drug Enforcement Administration (DEA) and the Department of Justice (DOJ) petitioned the Federal Communications Commission (FCC) to require all internet providers and providers of other broadband services to modify their technology to allow the FBI to intercept communications on their systems. In other words, the FBI (relying on a law called the Communications Assistance for Law Enforcement Act (CALEA) wants the FCC to make sure that anyone providing a new communications service (for example, voice-over-internet and cable modem providers) leave a trap door, so that the FBI can listen in whenever it is authorized by law to do so.

Status: The Petition for Rulemaking remains pending before the FCC. It is anticipated that the FCC will take some action on the petition this summer.

Discussion: There is a great value in the ability of law enforcement to intercept the communications of those bent on criminal conduct or terrorism. When subject to proper judicial supervision and authorization, it is a legitimate and sometimes necessary tool of law enforcement.

But CALEA takes wiretap authority one step further, not only providing the ability to tap, but requiring technologies to be put in place to make it possible. Such technological mandates could be particularly harmful when applied to new, innovative technologies, as proposed in the DOJ/FBI petition.

The petition envisions opening up to FCC regulation a whole new range of service providers who have not, traditionally, been subject to comprehensive regulation. Moreover, these providers operate in a dynamic and changing field, in which government technology mandates – however well meaning – could be particularly disruptive. And the cost of compliance with CALEA requirements is almost certain to exceed $100 million, making this petition a significant regulatory action.

Yet the FBI’s request has never been vetted by the Office of Management and Budget. It has never been subject to a rigorous cost-benefit analysis and the law enforcement benefits appear, at best, to be speculative.

Action item: Before ruling on the FBI's petition, the FCC should either conduct a cost-benefit analysis of the request or seek guidance from OMB on the comparative costs and benefits to be gained from the new rule.

This brief was prepared by Heritage Senior Legal Research Fellow Paul Rosenzweig.

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