I hadn’t intended to do much in response to the FCC’s Order extending the Communications Assistance to Law Enforcement Act to broadband providers and VOIP providers. I was just gonna kibbitz my buddies at EFF and CDT. But then I reread the Order, got mad, and filed this Petition for Reconsideration. As it was due November 21, I ended up pulling a late night right before Thanksgiving.
What pissed me off? See below.
It was an accident of technology that allowed law enforcement to “tap” phones. Because of the way phone networks work, law enforcement discovered they could arrange to listen to phone conversations without the people on the call knowing that law enforcement folks were listening in and (once tape recorders were invented) recording every word.
But time marches on and technology changes. By the 1990s, it was clear that digital fiber networks would alter the way phone calls happen. Network architecture, left to its own evolution, could easily move to a form that did not allow law enforcement to listen in to phone calls. So in 1994, prompted by the complaints of law enforcers that mother rapers, father stabers, and terrorists (yes, we even had them in 1994) could plot nefarious crimes while John Law stood by helpless, Congress passed the Communications Assistance to Law Enforcement Act (CALEA).
CALEA requires all “communications carriers” to construct their networks in such a way that law enforcement agencies (armed with a proper warrant, of course) can tap into the lines and monitor conversations. CALEA exempted what were then known as enhanced service or infromation service providers — like the folks that provide internet access.
Time marches on. We move from dial up to cable modem and DSL. The FCC wants to deregulate these services by redefining them as “information services” as opposed to “telecommunications services.” The FCC also wants to define the new voice over IP (VOIP) services as “information services” so that they can stay deregulated.
Enter the the Department of Justice. DoJ protests mightily that defining these things as “information services” will make CALEA useless and allow all the terrorists (who have moved to the top of the “bad guy roster”) father rapers, mother stabbers and the rest of the Group W bench to communicate freely with each other.
Things come to a head in 2004 after the Ninth Circuit held that cable modem was a “telecom service.” The FCC wanted to ask the Supreme Court for review. The DoJ opposed the idea. Finally, they reached a compromise. The FCC got to appeal to the Supreme Court (in a case known as Federal Communications Commission v. Brand X Internet which, to my shock and dismay, the FCC won). In exchange, the FCC started a seperate rule making on whether CALEA could apply to broadband access providers and VOIP providers anyway.
In September, the FCC decided that, sure enough, CALEA applied to all “facilities based broadband access providers” and any VOIP provider. It decided that the definition of “telecommunications carrier” in CALEA was different and broader than the definition of “telecommunications service” or “telecommunications provider” in Title II of the Communications Act. So broadband can be completely deregulated from the Communications Act requirements to interconnect with other networks and not mess with people’s content, but still must design their networks so that the FBI can monitor your downloads.
The worst of all possible worlds, you say? Well sure. Unless you are a major telco or cable co, in which case you realized this was a great way to get out from under regulation you hated and impose crippling costs on your rivals. Or if you’re Verisign and expect to make a bundle building CALEA compliant equipment and certification of CALEA compliance. Then it all works out for the best, wedding the efficiencies of monopoly economics with the security of a police state.
But wait, I still haven’t gotten to the offensive part.
To get where it wanted to go, the FCC relied on a provision of CALEA called the “substantial replacement provision” (SRP). The SRP says that if something “substantially replaces” the phone network and it is in the public interest to apply CALEA (and it is not excluded as an information service), then the FCC can extend CALEA.
So the FCC said “you might think ”substantially replace“ means a lot of people are using it instead of the phone system. But we decide that ”substantially replace“ means could be used in place of the phone system. Since VOIP and broadband access let you get rid of your phone, it is covered by SRP.
But wait, I’m still not offended enough yet. Sure, the logic has been tortured so far, but EFF and CDT can handle this on their own. Why do I have to get involved?
Then I got to the public interest analysis.
The FCC breezily dismisses the idea that CALEA could have any impact on either deployment of broadband or innovation. Why? Because it will apply to everyone equally, so no one willhave a competitive advantage. Whether you are a giant cable company or a giant phone company, you will have the same giant costs, so no harm no foul. Nor will it harm innovation, because the companies innovating, the telcos, the cable cos, the well funded start ups like Vonage, the tech companies like Google, all tell us they are working with law enforcement anyway.
That got me pissed. Does the FCC care about community wireless networks that are busy deploying free or low cost broadband networks? No. Do they even NOTICE them? No. And what about the small commercial wireless ISPs? You know, the folks who bring wireless to areas where Telcos fear to tread because it just ain’t worth it? Who may be the only source of broadband for 100 miles? Does the FCC even NOTICE these little guys?
No. Because they don’t have lobbyists or even enough money to pay law firms to monitor the FCC and write comments. They do have us at MAP, but between media ownership, network neutrality, spectrum reform, low power FM, etc. etc. we were a little swamped.
So because no association of community wireless networks or WISPA or PArt-15.org filed, they don’t exist. Oh, the FCC did promise to have a further rulemaking on what systems should be exempted and whether to have an exemption process or or ”CALEA-lite“ for small and rural ISPs. But if you read the Order, the FCC thinks a ”small ISP“ can afford the time and money to get federal funding or even know what is going on before law enforcement types come knockin’ on the door with warrants demanding to listen in on people’s broadband lines. And when the community wireless network that operates on donated equipment, volunteers, and maybe $5K in grant money and charitable contributions looks up and says ”huh? We can’t do that.“ They will get shut down or pay fines of $10,000 a day until they comply.
Oh yes, the final kicker. All broadband providers have 18 months to come into compliance with CALEA, whatever compliance might mean (the FBI needs to determine that). So even if you think you might get exempt or have ”CALEA-lite“ rather than CALEA apply when the second rulemaking is done, you need to start comming into compliance with full CALEA now.
So I’m pissed. I’m pissed because the FCC, as a federal agency charged with protecting the public interest, has an obligation to look out for those people who are too small to know what is going on and participate, but who stand to get majorly screwed.
In the Passover Hagaddah service, there is a a parable of four children ”one who is wise, one who is wicked, one who is plain, and one who does not even know how to ask a question.“ The Hagaddah ascribes various questions to the wise, wicked and plain children, and provides suggested answers suitable to their nature.
When the Haggadah reaches the ”one who does not even know how to ask a question,“ it instructs the reader ”And you must open for him.“ As a protector and transmitter of the Passover tradition, the celebrant has the responsibility to reach out even to one who does not know how to participate.
The FCC has an obligation to protect those ”who do not know how to ask a question“ or, more accurately, ”do not know their ass is on the line and don’t have the resources to make huge filings.” They failed in the CALEA Order. Creating some cumbersome exceptions process or a pot of money that takes hours of forms (if you even find out about it) won’t help. The FCC needs to reconsider and go back to square one.
Stay tuned . . .