November 22, 2005

C.U. Fights FCC Wiretap Reg.

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Government agencies may soon be able to wiretap University-supported broadband communications, according to the Federal Communications Commission’s amendment to the 1994 Communications Assistance for Law Enforcement Act (CALEA), which became effective on Nov. 14.

The new FCC regulation will allow intelligence groups to access communications on broadband networks and Voice-Over-Internet Protocol services like Skype remotely and in real time.

The amendment, which gives network operators 18 months to comply, came in response to a petition by the Department of Justice, the Federal Bureau of Investigation and the Drug Enforcement Agency.

Cornell and other higher education institutions filed for exemption even before the FCC made its announcement last week, citing a number of objections to the scope and intent of the amendment.

Polley McClure, vice president of information technologies, wrote Cornell’s response to the FCC on behalf of the Government Affairs Office, University Counsel and the Office of Information Technologies. The filing, dated Nov. 10, stated that the CALEA expansion is “deleterious” to Cornell’s mission as a research and education center.

“Not-for-profit accredited educational institutions contribute uniquely to American society by exploring and sharing knowledge for its own sake. Teaching, research and outreach rely fundamentally on principles of unimpeded communications and open inquiry,” the cover letter stated.

Cornell’s basic objection to the CALEA amendment is that higher education institutions are private and therefore do not fit into the FCC’s definition of network providers because they are not “carriers for hire.”

The filing also raised concern that CALEA could “circumvent” the Family Education Rights and Privacy Act, which obliges schools to tell students before their education records are released.

The amended CALEA continues to require government agencies to file subpoenas for information, but carriers will have to institute a new or modified technological infrastructure in order to make broadband communications more open to government wiretaps.

Simeon Moss ’73, Cornell’s press office director, said that expectation of new technology worries the University because of potential financial and security ramifications.

“We’re concerned that there’s a lack of clarity in the proposed rule and that it could prove to be intrusive and costly and ultimately redundant in terms of existing law,” he said.

The filing stated that depending on the scope of government calls for information, “the regulation likely becomes technologically infeasible.” It would be “nearly impossible” for Cornell to provide automatic remote access while still maintaining a high security level, it claimed.

Cornell’s response to the amendment revealed major hesitation in financing the unprecedented program. The filing stated, “It is unfair to expect a not-for-profit educational institution to spend scarce and precious funds on potential chimeras.”

Because “it is not entirely clear what the effect of the regulations will be,” Moss said, the University could not estimate the cost of updated CALEA compliance.

“Cost could be anywhere between zero dollars and millions,” he said.

Rohit Ahuja, director of administration and finance at the office of information technologies, stated that “CIT recovers its network operations and capital costs from the network services users.” Network users include students, faculty and staff.

Moss explained that students would probably have to carry the financial burden by way of higher tuition and fees.

EDUCAUSE, a coalition of institutions of higher education, and the American Council on Education also filed exemption papers with the FCC. Among their main objections to the amendment were its cost and the potentially harmful effect of government oversight of research.

A press release from EDUCAUSE stated, “We argued that requiring full compliance with the proposed new rules would impose an unreasonable financial burden, increasing the costs of education and impacting innovation, with no guarantee of better security for our nation.”

As part of its Further Notice of Proposed Rulemaking, the FCC had called for responses from organizations concerned about how they could comply with the amendment.

The University does not know if there is a timeline for when the Commission will consider or act upon its filings. “We’re hoping that they will strongly consider it [Cornell’s filing]. The arguments that we and others have brought forth are significant,” Moss said.

If Cornell is exempted, it will continue to upgrade its technology to comply with other federal regulations over the next four years.

Archived article by Melissa Korn
Sun Senior Editor