Internet wiretapping OK, appeals court says Dissenting judge says ruling "manufactures broad new powers out of thin air."

The District of Columbia Appeals Court today upheld a Federal Communications Commission ruling that ISPs and VOiP providers must make their systems accessible to the police by May 17, 2007. The court rejected a petition for review by the American Council on Education, which argued that the Communications Assistance for Law Enforcement Act (CALEA) did not apply to broadband phone service and ISPs. ,

"The FCC offered a reasonable interpretation of CALEA," Justice David Sentelle wrote, with Janice Rogers Brown concurring.

The 2-1 decision rejected arguments that ISPs and VOiPs represent "information services"â€”by statute exempt from the lawâ€”rather than "telecommunications carriers." The majority agreed with the FCC claim that CALEAs language allows the agency to classify ISPs and VOiPs as telecommunications carriers if "the Commission finds that such service is a replacement for a substantial portion of the local telephone exchange service."

The court also rebuffed arguments that the FCCs decision may illegally force college and universities to open up their broadband systems to law enforcement.

FCC Chair Kevin Martin praised todays decision: "I am pleased that the Court agreed with the Commissionâ€™s finding, which will ensure that law enforcement agencies ability to conduct lawful court-ordered electronic surveillance will keep pace with new communication technologies," Martin said.

Passed by Congress in 1994, CALEA originally directed digital phone service providers to retool their systems to make them more accessible to wiretapping. In 2005, at the request of the Justice Department and the Drug Enforcement Agency, the FCC extended CALEA to broadband and VOiP systems.

But the FCCs order has been overwhelmingly unpopular, drawing protests from trade groups, educational associations, and civil liberties groups.

The court majoritys decision also drew an angry dissent from Judge Harry T. Edwards, who called the ruling "gobbledegook."

"What we see in this case is an agency attempting to squeeze authority from a statute that does not give it," Edwards wrote. "The FCCâ€™s interpretation completely nullifies the information services exception and manufactures broad new powers out of thin air."

Media Access Project President Andrew Schwartzman, who helped prepare the petitioners brief, praised Edwards dissent.

"The FCCs broad brush implementation of what was intended to be a very narrow law will have particularly adverse impact on small community broadband networks and educational institutions which will be forced to adopt expensive measures to try to comply with what is an almost impossible technological challenge," Schwartzman said.

"The forcefulness of Judge Edwards dissent makes this decision a candidate for further appeal. We will give serious consideration to asking for Supreme Court review."