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Photographs by Stephen Laufer

Down to the Wire: Cruzio co-owner Chris Neklason says he may close shop if a new FBI proposal forces him--and all Internet providers--to rewire their networks to allow easy wiretapping by police.

Big Brother Gets Wired

The FBI wants to turn the Internet into a surveillance box, and their plan for doing so is on a fast track that doesn't require a single vote from Congress

By Sarah Phelan

Chris Neklason describes Cruzio as "a mom-and-pop Internet shop" and himself as "pop."

"I'm not totally opposed to wiretapping," says Neklason, "but since the Patriot Act, the feds don't need to get a judge's warrant to wiretap, which reflects a watering down of checks and balances, and less respect for civil liberties, which has occurred under the current administration. The FBI has a long history of abuse when it comes to spying. They are trying to turn a necessary tool for law enforcement into a tool for spying."

Why would an Internet provider be so hot and bothered about wiretapping? Because, suddenly, he has to be.

On March 12, the U.S. Department of Justice, the Drug Enforcement Agency and the Federal Bureau of Investigation filed an 85-page submission to the Federal Communications Commission requesting that all broadband Internet providers, including cable modem and DSL companies, rewire their networks to support easy wiretapping by police.

If passed, this proposal would force these providers to come under the jurisdiction of the controversial Communications Assistance for Law Enforcement Act (CALEA), which the FBI convinced Congress to enact in 1994.

At that time, then FBI director Louis Freeh testified that emerging technology such as call forwarding was hampering surveillance, but to date, the FCC has only interpreted CALEA to cover analog and wireless telephone services, meaning Internet and broadband applications are--according to most analysts--not subject to the FBI's expanded powers. Yet.

Rodney Small of the FCC's Office of Engineering and Technology says that law enforcement agencies are "of course strongly in favor" of the FBI's proposal, while privacy groups and most Internet and broadband providers (with the exception of Verizon Wireless) oppose it.

"What a lot of broadband companies argue is that CALEA doesn't apply to them, so the FCC can't do to them what law enforcement wants it to do, without a new law," says Small. "The FBI argues that what they meant by 'information service' is something different, that 1994 was the Dark Ages of the Internet and that 10 years later these definitions have changed."

In a nutshell, the FCC has to decide whether law enforcement is right, or not, but whatever it decides can be appealed in the courts.

Asked if he thought the FBI's current proposal was related to arguments being made before the 9/11 commission, Small said, "I think so. The real tricky part of this is, does the law that was passed in 1994 prevent the FBI from doing this or not, and is a new law needed? Or did the law intend to apply to new services, and therefore should these entities have to redesign their systems? It's very controversial, but there isn't any argument that the new services are not amenable to tapping. Issues of privacy are not within the purview of the FCC to decide."

Local Connection

Neklason has no illusions that this kind of lawmaking is restricted to any particular administration. Noting that the Clinton administration wanted to outlaw encryption and that the FBI already has a program called "Carnivore," which was developed during the Clinton administration and was installed on the equipment of Internet service providers to monitor email and website visits of suspected terrorists, Neklason observes that the feds seem to have caught more pedophiles and organized crime since the passage of the Patriot Act.

Still, Neklason recalls how Democratic presidential nominee John Kerry recently said it was almost surreal to learn the extent to which he was followed by the FBI for the act of engaging in peaceful patriotic protest in the 1970s, and that Kerry said the revelation had made him respect civil rights and the Constitution even more.

"When the FBI says, we need this and that since 9/11, I don't believe them," said Neklason. "And speaking from the point of view of an information technology expert, I don't think this proposal is useful. They knew plans were afoot to use planes as bombs, they saw the chatter, they noted the pattern of pilot training, the analysts said strengthen the cockpits and doors first. But instead of integrating the analysis, Cheney, Rice and Rumsfeld want me to help spy on people."

That said, Neklason pledges he'll comply with any court orders and laws--if he's still in the business.

"My wife and I might feel compelled to get rid of the business. We cannot be an agency of spying on our customers," he confides. "I have a lot of sympathy for anyone trying to protect an open-border country, so we're definitely not ruling out that we as a communication hub would cooperate with law enforcement, but we want it to be a case of probable cause, with a judge signing off."

Asked if he's been approached about wiretapping any Cruzio clients, Neklason grimaces. "It's a federal offense for me to answer that. We've never been approached, but if we had been, I probably couldn't tell you."

The Video Games That Play You Back

The FBI's proposal is also coming under fire from legal experts who say the 85-page filing includes language that could be interpreted as forcing companies to build backdoors into everything from instant messaging and voice-over Internet Protocol (VoIP) programs to Microsoft's Xbox Live game service.

In addition, the introduction of new services that don't support a backdoor for police would be outlawed, and companies would be given 15 months to make sure that existing services comply--all while being expected to bear the full costs involved in making such a vast makeover happen.

The FBI's latest request comes almost a year after representatives from the FBI's Electronic Surveillance Technology Section asked that broadband providers be required to provide more efficient, standardized surveillance facilities. Such new rules were necessary, argued the FBI, because terrorists could otherwise frustrate legitimate wiretaps by placing phone calls over the Internet.

Brad Templeton, chairman of the board of the San Francisco-based Electronic Frontier Foundation (EFF), whose mission is "to protect liberties and privacy in cyberspace," calls the FBI's latest proposal "very bad stuff."

"There's little evidence that even if we had such strong surveillance before 9/11 that it would have stopped the attacks," says Templeton. "Throwing away the freedom of Americans to appear to be doing something is a tragedy."

Lee Tien, senior staff attorney for the Electronic Frontier Foundation, says the proposal not only asks the FCC to rewrite CALEA, but also proposes a massive bureaucratic process under which the telecommunications industry would perpetually have to present new communications service offerings to the FCC for compliance.

"CALEA was enacted in 1994 to make sure the FBI could keep wiretapping people," says Tien. "We didn't think it was a good idea then, and the issue at hand now is whether to continue to allow the idea that it's OK for government to control technology."

Control Panel: An FBI-proposed change to the Communications Assistance for Law Enforcement Act (CALEA) that would allow Internet wiretapping could make this router at Cruzio seem eerily prescient.

A Square Peg in a Round Hole

In Tien's opinion, if wiretapping was a bad idea for the phone network, it's a really bad one for the Internet, not just in terms of civil liberties and security, but also in terms of design.

"The Internet is a giant freeway system that you can build things to move on," says Tien. "It moves bits from here to there, which has led to tremendous efficiency and innovation. It introduced the idea of end-to-end design. But if we end up with the system the FBI proposes, we won't be able to do this or that. Instead, we'll have to make sure the streets are a certain width to keep certain cars off the road, all of which will make openness difficult, especially if everyone offering service has to prove it's OK in terms of tappability."

Tien worries what the Internet would look like with the FCC sitting on top of the network and specifying what could or should be done.

"From that perspective the issues of privacy, innovation and efficiency all end up leveling together," he says, emitting a hollow laugh when asked if he thought the idea that the FBI is wiretapping DSL would have a chilling effect on Internet use.

"Part of the chilling effect is that you don't get chilled if you don't know about it, and with covert surveillance, of course you don't,' he says.

In Tien's opinion, what the FBI is asking is tantamount to turning our communications systems into a very efficient surveillance device.

"It's already that way with our phone systems, but until we get good at automatically processing voice data, listening is still a bottleneck. But text-based communications such as the Internet are a lot faster to process from the automatic point of view," he explains.

As for encryption, Tien notes that telephone carriers caught up in CALEA can offer encrypted calls, but must also be able to provide decryption services to law enforcement.

"I don't want to see that happen on the Internet," he says. "CALEA was a bad idea when it was passed in 1994. The FCC gave the FBI the benefit of the doubt back then, and here they are again asking for more. The FBI maintains this new technology is making their life difficult, but they never talk about how it is in fact making their life easier. The least they could do is be intellectually honest in their arguments."

Asked how he thought this proposal might trickle down--or up--legislatively, Tien, who has submitted a thick package of comments to the FCC on behalf of EFF, says the piecemeal approach to passing unpopular legislation is getting increasingly more common.

"We saw it being used to pass an amended Patriot Act provision, which would otherwise have sunsetted in 2005. The downside of being based in California is you pretty much give up on being able to track the legislative process. Sure, there are watchdogs like the ACLU, but we're not in the position to be supervigilant, which means amendments can get added in committee after a piece of legislation has passed. It takes a lot of Capitol Hill credibility and currency to keep totally on top of what happens to a bill."

Tiptoeing Around the Beast

Given that this proposal stands to affect the telecommunications industry, you might think the industry could telecommunicate to its clients about the negative aspects of the proposed changes. Think again. The industries that have the most to lose are already in the crosshairs of the FBI and the FCC, so they have to be careful what they say, since they don't want to make enemies among those who have the power to affect a lot of the things they do.

"If the FBI says you're not in compliance with this or that, you stand to face fines of up to $10,000 a day," says Tien. "Whereas we at EFF can do a lot of loud, shrill, disturbing shouting, which sometimes gives the industry a little more cover to raise points of concern."

Given the tricky position the industry finds itself in, Tien recommends that people write to the FCC and their congressmembers asking them to tell the FBI to keep its hands off the Internet.

"To date, the FBI has provided no evidence to support their arguments for regulating the Internet in this way," he says. "So, until they make a real case, which they are unlikely to, the burden of proof is on them, not us, to show that the need to wiretap outweighs the benefits of privacy, innovation and competition."

The EFF recommends not only that the FCC reject the FBI petition, but also that it create a task force that would include representatives from a broad spectrum of interests--including consumer groups and civil liberties organizations, as well as law enforcement, the telecommunications industry, the computer hardware and software industries, the free software and open source community, computer security experts and the consumer electronics industry--to take a hard look at CALEA.

"That carriers represent their customers is a nice myth," says Tien. "Many would like to, but when push comes to shove, what they do depends on what law enforcement demands. The FCC will talk about customer privacy, but they are really catering to law enforcement's requirements. What's glaringly lacking from the dialogue, especially for something that ironically is all about surveillance, is public overview."

Bits and Bytes

Meanwhile, the fact that FCC chairman Michael Powell recently stressed that "law enforcement access to IP-enabled communications is essential" has left many with the feeling that the FCC would be only to happy to push this eavesdropping scheme through.

To quote the FBI proposal, "The importance and the urgency of this task cannot be overstated ... the ability of federal, state and local law enforcement to carry out critical electronic surveillance is being compromised today."

Still, if word gets out and people express their dissatisfaction with this proposal, won't it be impossible to push such a bill through Congress?

Not necessarily, says Santa Cruz civil rights activist Jared Jacobs. He recalls that after Congress passed the Patriot Act, there was talk of introducing Patriot Act II.

"As it turns out, the measures proposed within this proposed act were so heinous and ugly, including as they did the possibility of taking natural-born Americans and stripping them of their citizenship and dumping them in some foreign and as yet undetermined land, that Patriot II was DOA At which point, the feds and the Department of Justice began taking bits and pieces of Patriot II and trying to append them to bills whose authors couldn't afford for them to fail."

Congressmember Sam Farr says he wouldn't be surprised if someone in Washington is trying to achieve Patriot Act II in baby steps through the Internet-wiretapping proposal.

"It's election year and there was a general outrage about Patriot II, so I'm not aware of a specific bill [mirroring Patriot Act II], but if there is one it will have to see the light of day at some point. Right now, Congress is in the mood to do nothing controversial because it's an election year, but that doesn't mean there isn't some individual out there who wants to try and get access to a microphone and include parts of the so-called Patriot Act II in some other bill."

Noting that most of his "friends in Congress think the current system is appropriate when there is evidence of criminal activity," Farr circles back to the fact that this nation's recent problems--be they 9/11, the war on Iraq or the hunt for Al Qaeda--haven't been for lack of wiretaps, but rather because of a failure to connect the dots--and, some would say, a tendency to deliberately connect the wrong dots.

"Patriot I and II are overblown reactions to a problem that doesn't exist in the field that they are attacking," he says. "We need to stay alert, and make sure all legislators are on guard."

Blog Your Complaints

Since Cruzio is officially neutral, Neklason says, it cannot be involved in proactively spreading the word about the FBI's proposal--but he does want to make it known that if someone started a blog about this issue, Cruzio would be pleased to link to it.

"It's very important that folks know what the administration is doing to civil liberties," says Neklason, who sees this proposal as "just one of a continuous string that fit a basic pattern."

And while he isn't holding out much hope that a Kerry administration would reverse the wiretapping trend, Neklason says he's particularly uncomfortable with the FBI's proposal under the current presidency.

"What's done more damage to our country?" he asks. "The terrorists or the Bush administration? I love the Bill of Rights. All patriots love what it stands for. So I don't like what this administration is doing. Their actions are un-American."

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From the April 21-28, 2004 issue of Metro Santa Cruz.

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