Daytona Beach News-Journal
November 2, 2005
In 1994, Congress passed a law requiring telephone companies to become adjuncts of law enforcement when necessary: The Communications Assistance for Law Enforcement Act requires phone companies to ensure that their technology is wiretapping-friendly, so federal law enforcement can tap in whenever it gets permission from a court to do so. It was costly. The phone companies had to do it on their own dime. But they passed the cost on to customers. Whether it made law enforcement more effective is an open question. The FBI doesn't produce cost-benefit analyses, and 9/11 looms large.
Telephones no longer corner the market on telecommunications. Internet telephony is all the rage now. To update its wiretapping abilities, the Justice Department now wants all universities that provide internet service as well as all cities, libraries and other big institutions that provide wireless services (like airports) to get in line with the Communications Assistance Act. The FBI wants the ability immediately to tap into any of those communications networks from its own remote locations. As in 1994, the cost of the upgrade must be borne by the provider -- not the government. If universities are to comply, they're looking at a bill of up to $7 billion, and a rise in tuition and fees of about $450 per college or university student per year. This, at a time when rising college tuition is a crisis in itself.
Is the Justice Department's request necessary? Is it fair? And most important: Is it effective? Evidence suggests that the answer to each question is a big no.
Put aside any civil liberties concerns, and take law enforcement at its word: It intends to use wiretapping capabilities only with a court order. (There's a caveat here: The USA Patriot Act allows federal law enforcement to wiretap secretly, based on a secret court's order; and the Justice Department is lobbying hard to convince Congress to widen wiretap allowances to such a point that a court order would not always be required. That "update" of the Patriot Act is being hashed out in Congress at the moment.) But how often has the FBI needed to wiretap campuses? According to the Center for Democracy and Technology, the FBI has done so just 12 times in 2003 (out of 1,442 state and federal wiretap orders), and by the FBI's own admission, never with any trouble. So why a multi-billion dollar dragnet upgrade to something that's already working, and that's needed so rarely?
That raises the fairness question. Costs at colleges and universities are out of control as it is, rising 14 percent in 2003-4, the highest surge in three decades, before moderating somewhat in the last two years. More fees won't necessarily catch terrorists, but they'll seed more anger among parents and price more students out of a college education. It's hard to see how that profits national security.
Harder still to see how the Justice Department's dragnet obsession would work as intended. What the Justice Department is asking colleges and universities and other agencies to do, it has already compelled the financial sector to do: Since 2001 banks have been forced to spend hundreds of millions of dollars to record millions of details about financial transactions in order to allow federal law enforcement to pick up on patterns and the possibility that terrorists are using "dirty money" in preparation for attacks. As The Economist reported last week, the evidence is overwhelming that it doesn't work. To comply with federal regulations, American banks file reports on 13 million transactions over $10,000 every day, including 685,000 "suspicious activity reports" last year alone. For all that, barely 150 indictments were produced and a fraction of those yielded convictions. It's not worth the staggering diversion of effort and economic output.
Nor would the mandate on colleges and universities to do the same be worth the cost. As Larry Conrad, the chief information officer at Florida State University, told The New York Times last week: "It seems like overkill to make all these institutions spend this huge amount of money for a just-in-case kind of scenario."