 calvoiper
join:2003-03-31
Belvedere Tiburon, CA | What the statutes say.... The EFF, to the extent it references Title 47 of the US Code (i.e., the title dealing with the FCC), references section 605 which generally prohibits interception or dissemination of communications, though one of the exceptions, IN ADDITION TO COURT WARRANTS, is "on demand of lawful authority." Clearly, there is some condition anticipated which involves a "lawful authority" demanding stuff without a warrant--otherwise it wouldn't be a separate exception.
Historically, phone companies have treated this as "when the lawful authorities (i.e., the police) make the demand, we comply" and this provision has been used, for example, to place warrantless wiretaps on phones in hostage situations. I am not aware of its use for long term taps.
A related provision is section 606, which gives the President all of the FCC's regulatory powers, along with the powers to seize, close, or use telecom facilities "[u]pon proclamation by the President that there exists war or a threat of war, or a state of public peril or disaster or other national emergency...." While the President's powers are limited somewhat by other language in 606, he does get all of the FCC's powers, which would include the first cut at defining the otherwise undefined "lawful authority" phrase in 605.
Bottom line in this analysis is that ATT may have been (and will certainly claim to have been) effectively immunized by the Presidential proclamations involved.
(The legality of the proclamations is, of course, a separate matter--but it's not likely that the US Supreme Court is going to decide a case that will make ATT not want to comply with Presidential directives in time of war. Defining and limiting "time of war" may well receive attention, but I doubt that ATT is really in much danger here.)
calvoiper
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VoIP--the death knell of remaining voice monopolies! |
