The new regulatory capture
We know that incumbents often use regulation as a tool to raise the costs of their competitors. What's new about the E911 and CALEA regulatory capture stories at the FCC is that a whole new set of actors saw the opportunity to help incumbents raise competitors' costs and make money by moving telephony social policies over to the internet: vendors of outsourced compliance services.
It's a much more sophisticated game. Rather than urge the FCC to issue an impossible-to-comply-with-and-unbelievably-costly regulation (like, say, either E911 or CALEA), help the FCC to draft an impossible-to-comply-with-and-unbelivably-costly regulation while helpfully pointing out that there are plenty of third parties out there who can help you comply. You, young whippersnapper competitor, don't have to reinvent the wheel — just use the vendors' wheels that are already out there.
The ex parte filings before the FCC tell the whole story. It's a case study in capture, facilitated by very well-meaning (and steeped in telephony culture) civil servants who were told they had serious problems to solve. Vendors showed up to explain exactly how these problems could be fixed by regulated entities in standard ways that didn't involve reengineering their systems (”just outsource!“). And the result, in both the E911 and CALEA contexts, is crushing for new online businesses and entities that didn't think they were regulated — like universities.
There's an echo here of recent efforts to get rid of fair use in copyright. We don't need it, so the argument goes, because the digital age makes it possible to charge for these kinds of uses. Well, the power to charge for something doesn't necessarily carry with it the right to charge for it. Similarly, that there are ways to pay for compliance with a particular policy doesn't mean that the policy is a good idea.
What with ICANN, and WSIS, and the FCC, there's an awful lot to do to protect the free flow of information online. Thank goodness Doc is getting a movement together to save the net.