Two privacy groups asked the Federal Communications Commission this week to reject
a proposal that would give the Justice Department sweeping new powers to eavesdrop
on cell phone calls and Internet usage by airline passengers.
The Justice and the Homeland Security departments submitted several proposals
to the FCC in May and July seeking authority to monitor the electronic communications
of airline passengers. The proposals would allow Justice to record all electronic
activity without a court order, identify any user by seat number, and automatically
interrupt or shut down any communication.
In a petition filed Wednesday, the Center for Democracy and Technology and the
Electronic Frontier Foundation argue that the FCC does not have jurisdiction
to address the full range of constitutional, privacy and civil liberties concerns
that are raised by the proposal. The groups also say the proposal would place
undefined burdens on industry to comply.
CDT and EFF say that any action by the commission would violate the Constitution
as well as the Administrative Procedures Act and the Communications Assistance
for Law Enforcement Act. The groups claim that Justice is trying to do an end
run around Congress and get the FCC to give it new authorities without proper
The Justice Department did not return a telephone call seeking comment Thursday.
"The commission should decline DoJ's requests, and should instead defer
to Congress, which is the only body that can in the first instance consider
the constitutional and policy problems raised by such unprecedented proposals,"
the groups wrote.
"We do not dispute the fact that law enforcement is able, under existing
laws and without any action by the commission, to obtain a court order that
permits the interception of the electronic communications of people in airplanes,"
the groups added. "Instead, the critical issues are whether the commission
has any statutory authority whatsoever to impose anticipatory, full-time and
warrantless interception of information about all communications of all airline
passengers--a proposal seemingly drawn directly from George Orwell's 1984--and
whether law enforcement should be given extraordinarily invasive design control
over air-to-ground communications."