'Patriot Act' aids law enforcement

Under the newly enacted Patriot Act of 2001, ISPs and network administrators may give law enforcement agents access to their networks without a warrant in order to track hacker activities.

Law enforcement may not compel an ISP to grant access without a warrant, but under previous law designed to protect user privacy, ISPs were specifically forbidden to grant network access without customer permission or a judge's order.

Agents can monitor hackers without a warrant, but cannot monitor an ISP's bill-paying customers without one. Even if a customer is engaged in illegal activity, law enforcement must get a pen register - a judge's authorization equivalent to what's needed for reading incoming and outgoing phone numbers - to track the user's Web surfing habits and e-mail addresses, and a wiretap warrant to read e-mail or monitor other communications.

In addition, the U.S. attorney general is required to report semiannually to Congress on its use of the so-called Carnivore e-mail and Internet surveillance system, renamed DCS 1000.

The law requires agencies keep a record of who installed e-mail taps, when and for how long, how Carnivore was configured and what was recorded.

Carnivore can be used only after a judge signs a pen register, and the records must be given under seal to a judge 30 days after the court order for e-mail filtering expires.

For agents to tap without a warrant, an ISP must own its network, law enforcement must be involved in a lawful investigation, and only the suspect's communications can be intercepted. While the police must have "reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to the investigation," the law is not specific to hacker terrorists and can be applied to any computer crime investigation.

ISPs are not compelled to furnish facilities or technical assistance without being "reasonably compensated."

FCC may toss Bells a bone

The Federal Communications Commission in August started a market review of broadband services that by February could result in the FCC suspending so-called unbundled network element access rules as a means to spur faster broadband adoption, says David Rohde, an analyst with The Yankee Group.

The Bells had been backing the Tauzin-Dingell broadband bill, which would have allowed local providers to carry long-distance data traffic. With that bill basically dead, the FCC could turn to authority derived from Section 706 of the Telecommunications Act of 1996 to issue a forbearance of rules it believes hinder broadband rollout.

The Bells argue that the real broadband competition isn't between competitive local exchange carriers (CLEC) and incumbents, but rather it's between the Bells, cable Internet services and wireless broadband.

Rohde doubts FCC Chairman Michael Powell will open long-distance data to the Baby Bells because of the predictable backlash from AT&T and other long-distance rivals.

However, he says the FCC might find that the Bells could speed up broadband if they didn't have to let competitors pick apart their network elements.

The separation of the Bells' network backbone gear from their last-mile connections to consumers creates a jumbled and inefficient mess in phone switching facilities, the Bells say. Competitors say dropping the network access rules would sacrifice local phone service competition for faster broadband rollout.

The Oct. 1 deadline came and went for wireless service providers to meet FCC rules for Enhanced 911 services. Not a single carrier met the requirements. The FCC issued waivers for the lot, with some strong rebukes influenced by the events of Sept. 11. Carriers now are operating on a revised schedule to roll out the location-based services for emergency response personnel to find endangered callers. No carrier is expected to begin anything like broad implementation until the middle of next year.

The U.S. Supreme Court heard arguments on Oct. 10 between local phone service carriers and competitors over rules for local competition pricing and network element combination.

Local carriers say the methodology used to judge how much competitors should pay for access to the network is unfair, and it uses historic metrics rather than looking at future costs.

Competitors say the local carriers have been trying to price them out of business, asking the court to judge the Baby Bell's anticompetitive effectiveness by the CLEC "train wreck" of 2001.

The court has heard arguments but has yet to hand down a decision.

Chidi is a correspondent with IDG News Service's Boston bureau.

Read why there are concerns about the FBI's diagnostic software technology called Carnivore.