An FBI proposal to shoehorn a sweeping and sophisticated internet wiretapping capability into emerging in-flight broadband services would be illegal, unconstitutional and costly to implement, a civil liberties group is arguing.

The Washington, D.C. organization, Center for Democracy and Technology, or CDT, says it will file comments Wednesday with the FCC opposing an FBI request to force satellite-based broadband service providers to equip their in-air networks with a rapid-wiretapping capability. It would let government spooks begin sniffing any passenger's internet traffic within 10 minutes of obtaining court authorization.

"If they truly believe this is needed, then they need to ask Congress to require what they're asking," says CDT attorney John Morris.

The FBI, Justice Department and Department of Homeland Security jointly asked the FCC for the enhanced surveillance powers last month, citing fears that terrorists could use on-board internet access to communicate with confederates on other planes, on the ground or in different sections on the same plane during an attack.

The agencies also asked that carriers be required to maintain fine-grained control over their airborne broadband links. This would include the ability to cut off a passenger's internet access quickly, deny passengers' access without affecting the flight crew's connection, or redirect communications to and from the aircraft in the event of a crisis.

Particularly nettlesome to civil libertarians, the plan would force providers to keep a log of every internet connection each passenger makes from the air, tied to name and seat number. The log -- which would not include the contents of the communications -- would have to be maintained for 24 hours after the flight, in case law enforcement wants to review it.

"There are serious Fourth Amendment and privacy implications from the proposed 24-hour, full-time anticipatory wiretapping of everybody," says Morris. "It carries enormous concern."

The FBI is resting its request on the 1994 Communications Assistance for Law Enforcement Act, a federal law that required telephone companies to modify their networks to be more wiretap-friendly.

Last year, law enforcement officials persuaded the FCC to interpret the law as it applies to internet traffic over cable modems and DSL lines.

The commission has already expressed the view that in-flight broadband would likely be covered as well. But CDT says the FCC has already gone too far.

"There's nothing wrong with the FBI being able to intercept internet communications, and they already do that today," says Morris. "What we're fighting about is the question of whether the FBI can impose pretty burdensome specific design elements onto the internet, and essentially forcibly narrow the internet to fit the FBI's model of how things should be."

The FCC is considering implementing a licensing scheme that would encourage more companies to enter the satellite-based in-flight broadband market. Currently, only Boeing is licensed to provide such services.

Boeing's Connexion system lets passengers plug into a wired ethernet jack or connect wirelessly over 802.11b, and is available on select flights on a handful of international carriers, including Lufthansa, Singapore Airlines and Korean Air. No U.S. carrier offers the satellite-based service, but last month United Airlines and Verizon Communications won Federal Aviation Administration approval for an air-to-ground internet service for domestic flights.

Boeing says it is neither opposing nor supporting the FBI's request, but will comply with the FCC's final decision.

"Our only comment really is whether (the FCC) is really the right avenue by which this ruling should come," says Boeing spokesman Terrance Scott. "Should that particular debate be better placed with Congress or with the court system? Above and beyond that, we'll wait and see what they decide."


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