Justice Department effort to eavesdrop on airline passengers challenged

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 public debate.

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."

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