Unprincipled principles
A reader of this blog sent me this statement [short pdf] written by Steve Lucasik (head of DARPA during the 1970s) and Tony Rutkowski (of VeriSign, but not speaking for VeriSign).
Here's the essence of the statement — three points:
1. It professes disbelief that anyone after 9/11 could dare question the FCC's legitimate authority to impose law-enforcement-derived design requirements (CALEA, for the insiders) on the internet.
In the past, this kind of challenge [suits filed challenging FCC's interpretation of the CALEA statute] by such groups was part of the “fun and games” of the Washington K-Street scene. Today, however, in light of the enormous scaling of network vulnerabilities, attacks, and cybercrime, as well as the events of 9/11, it is difficult to believe that such challenges to responsive, responsible FCC actions would continue.
2. It picks up on the Brand X dicta and claims that FCC has any and all powers it wants under Title I of the Communications Act.
The FCC in its [CALEA] Order took the right steps under its CALEA authority. The reality is that the Commission could also require the same capabilities entirely under its Title I authority and responsibilities, if not other longstanding authority provided by Congress.
In fact, proceeding to exercise Title I authority has become increasingly important as the Commission moves away from common carrier regulatory models, and puts into place needed public infrastructure capability requirements for open Next Generation Networks. This includes everything from public safety and emergency preparedness requirements to consumer protection to competitive unbundling and Universal Service Fund reform.
3. And it says that other countries are far ahead of the U.S. in meeting the forensic needs of law enforcement.
The [legal] challenge [to the CALEA order] also stands in stark contrast to other countries where far more extensive forensic requirements have been cooperatively and effectively established and implemented among government authorities and network providers.
Here's a brief response:
1. Congress has been explicit about what CALEA covers, and it clearly doesn't cover the internet or information services generally. The FCC can't rewrite a statute. Only Congress can do that. We dare to question the FCC's jurisdiction because we can read the statute for ourselves. The Commission's reading of CALEA imposes enormous burdens on a huge swathe of our nation's economy, with no legal justification. So, yes, we dare. And the snide tone of this statement (”fun and games”), together with the reference to 9/11, only makes us more suspicious of the legal arguments made by the Commission.
2. The events of 9/11 have not given the FCC (or law enforcement authorities) carte blanche to rewrite existing law. If Title I is your authority for CALEA, Title I is being stretched out of recognition. Title I imposes no specific requirements on anyone. It's being abused to provide a vessel for imposing former common-carrier regulations (like CALEA, E911, and USF) on the internet and internet applications, but at some point the Supreme Court (or Congress) will be re-awakened and will notice that this abuse is taking place without any explicit delegation from Congress. I'll keep writing, and other people will keep litigating, until the unprincipled use of Title I is reined in.
In the meantime, it's interesting to see the quick and easy move to NGN made by the authors of the statement. This, then, is what's really going on: we're leaving the (relatively) principled arena of common carriage regulation and moving into an entirely unprincipled, ad hoc regulatory approach to the internet that has as its stated goal making the internet much more like a mobile phone network.
Congress never said it wanted this. The people never said they wanted this. The FCC doesn't get to do this by itself, without any authority from the rest of us.
3. In other countries, the telephone system is often owned by the government, and the providers of telephony are anxious to crush their internet competitors with the costs of “social policies” like assistance to law enforcement and emergency services. So what? The U.S. is different. It should be different. It should decide, in a sustained national conversation, how to treat internet services. All of this regulatory sleight-of-hand is distasteful, unprincipled, and corrupting.
This statement reveals the battleground. It's not a safe and well-lit place. The terms of engagement appear to involve McCarthy-esque smears of lawyers and companies who dare to question the legitimacy of any act taken in the name of “security.” The statute we're looking at — Title I of the Communications Act — has no details or limits that might protect against the depredations of law enforcement. And we're being out-manuvered by people who have a lot of time to spend in Geneva.
We can't afford to be as smug as this statement.