CALEA and must-carry
This week, the Times reported that colleges (at least) have woken up to the fact that the FCC's broad understanding of CALEA (applicable to all providers of broadband internet access service) covers them. This could cause colleges enormous expense as they reconfigure their systems at DOJ's request to allow them to be easily tappable.
Here's how the FCC's reasoning works: Although CALEA's language clearly excluded internet services (like email and other “information services”), and although the FCC itself has defined wireline broadband internet access service to be an “information service,” broadband access is covered by CALEA.
Why? Because it is a “replacement for a substantial portion of the local telephone exchange service.”
What does broadband access have to do (necessarily) with local telephone service? Well, people used to use local telephone service to get dial-up access to the internet. Now that particular function of local phone service – internet access — has been taken over by broadband internet access service. So under the “replacement” provision of CALEA (which the FCC lawyers are apparently reading while standing on their heads), anyone who is part of the chain of moving end user packets to the internet over their own facilities is covered by CALEA. No exceptions.
Additionally, the FCC argues that the place where law enforcement would necessarily want to intercept communications would be where “access to the public switched network” occurs. They say that the internet is a “public switched network,” even though Congress was clearly intending to talk about THE public switched network of 1994 — the telephone network. This is a huge logical step to take.
It will be very costly for universities to do this. According to the Times story:
Technology experts retained by the schools estimated that it could cost universities at least $7 billion just to buy the Internet switches and routers necessary for compliance. That figure does not include installation or the costs of hiring and training staff to oversee the sophisticated circuitry around the clock, as the law requires, the experts said.
More broadly, the effects of CALEA on innovation and new services cannot be overstated. In a second part of the order that deals with VoIP services, the Commission is saying that any services that provide the “capability” for users to connect to the traditional telephone network (whether they actually do or not) are covered by CALEA. This means these services will have to be designed so as to be easily tappable and generate familiar data for DOJ. This means that the FBI/DOJ will be involved in product design. This includes Skype. Jeff Pulver and Wired are noticing this too.
In a crucial footnote (we academics love footnotes), the FCC states that the “concept of 'PSTN' is one that can evolove over time” — which signals that services that have the capability to connect to the internet will likely eventually be covered by CALEA. Of course, there is no principled distinction between Skype and any other online application. Bits are bits.
A cab driver yelled at me last night (I was inside his cab, it was pouring rain, he was Russian) that Americans never fight back against government. He said “It's worse than communism here. I haven't seen a demonstration in 25 years.” The Commission's interpretation of CALEA takes several sentences to explain, and its implications may not be obvious. But it's worth demonstrating about.
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Since “net neutrality” efforts seem to be striking up against “quality of service” memes, maybe a more fundamental and less collaborative effort is required. I'm struck by Brough Turner's argument that the real fight should be at “Level 0,” at the public right-of-ways that the broadband providers are controlling.
Remember that cable systems have been required to carry local broadcast programming. Three rationales for this: (1) must-carry regulations are content-neutral, so subject to lower First Amendment scrutiny; (2) cable is more like a conduit than a newspaper; (3) risk of monopolization is greater with cable than newspapers.
Couldn't all three of these rationales apply to access to Level O? There's a great risk of monopolization of the home internet access point — there will be only one per each home. Home internet access is much more like a conduit than a speaker — it's just getting information to the user. And it's not as if we'd be requiring some kind of “right of reply” of these access providers. Their editorial control wouldn't be restrained. But if we cared about the vibrancy of online life (individual creative efforts, new applications, new forms of communication) with the same fervor that we once cared about protecting the broadcast industry, surely we'd apply a very broad form of “must carry” to broadband internet access.
In other words, perhaps the debate needs to be reframed from one about “neutrality” to one about “must carry.” Just a thought.
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