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« Cisco's Emergency Solution: Great step Forward | Main | pulver.com Joins Public Interest and Business Groups to Challenge FCC¹s Internet Wiretapping Rules: »

October 25, 2005

FCC Digs Hole by Redefining Telecom Services; Buries Internet. It is now our job to dig us out.

Today, pulver.com joined forces with the Center for Democracy and Technology (CDT), Electronic Frontier Foundation (EFF), CompTel, the Electronic Privacy Information Center, and Sun Microsystems to challenge the FCC’s Internet Wiretapping Rules. pulver.com is the only privately held company to join in and support this initiative.

I know that it is a touchy issue to be critical of regulatory bodies these days (frankly I miss the recognition that an essential component of effective governance within a democracy is critical debate). It is particularly difficult, in this circumstance to challenge the FCC, when it might believe (and certainly has an arsenal of soundbytes) that its extension of CALEA to the Internet is necessary to protect national security. "Protection of national security" and "ensuring that no network can aid terrorists" are easy soundbytes, but serve only as mindless bully tactics that cow the industry into submission, miss the point and detract from the more nuanced discussion that government should be having with industry.

There was no need to regulate the Internet to achieve any law enforcement purpose, and certainly no need for the FCC to go beyond the request of the US DOJ, the DEA and the FBI, which, in hindsight, made a much more reasonable request to extend CALEA to "managed" communications services that could tend to look like replacement services for traditional, regulated communications services. Government had CALEA power over telecom services and government has ordinary subpoena power that would satisfy government when necessary to ensure national security and public safety. The problem was that, when the FCC played its definitional shell-game and redefined DSL, cable modems, and other Internet access services as "information services" rather than "telecom services" the FCC lost its ability to impose CALEA and other Telecom-related regulations within its jurisdiction. As a result, the FCC felt compelled to play some linguistic and regulatory gymnastics to ensure continuation of CALEA. The end result was catching a lot more voice communication than Congress ever intended to catch within its net (and missing every other form of communication that rides on what were formerly telecom services.

The end result is an over-broad inclusion of the Internet within the scope of CALEA. The end result does not adequately balance the worthy goals of catching criminals and simultaneously promoting innovation and economic growth. Some might say we should give government EVERY tool it needs to catch criminals. To me, that is an overly broad simplistic approach to promoting the public good. Sure, if we had government officials posted at every American's home, we would probably catch a few more criminals, but at what price? And could we post a soldier at every home of every would-be criminal in the world (allegedly beyond US borders)?

Why not shut down the Internet? Why not shut down the PSTN? Why not prohibit anyone from leaving their homes? Why not lock up everyone? These mechanism would certainly curb criminal activity. Doesn't the FCC care about protecting us?

We could devote the entire GNP to ensuring national security. Many of those dollars would be wasted, and certainly we would lose out on many other public goods, crush the US economy, and fail to advance national security. Where do we draw the line between national security, on the one hand, and government interference with individual autonomy and economic growth on the other? And who gets to draw that line? It is not the FCC's place to erase or fudge the statutorily-drawn line, simply because it redefined "telecom services" as "information service" and now has to dig itself out from the hole it which it dragged itself, the telecom industry, the Internet, and America.


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Posted by jeff on October 25, 2005 11:31 AM | Permalink

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I think you've crossed the line into sensationalism.

As I've pointed out many times already, if they can't stop spam, they certainly can't bug VoIP... Best approach, from my viewpoint, is to ignore them; they're getting too much attention already.

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