CALEA: When is an Information Service Not an Information Service?
When the FCC says so, that's when.
Today, the D.C. Circuit ruled 2-1 that the FCC's views on CALEA coverage should be deferred to. (I've posted many times about CALEA here.)
The brief background about CALEA is that it is a 1994 statute written to ensure that telecom carriers would build their facilities so as to be easily tappable by law enforcement. “Information services” were explicitly left out of its coverage — and were understood to include online applications like email.
Now, although the FBI has made no showing that it's having problems enforcing subpoenas or warrants for information, law enforcement badly wants to extend the coverage of CALEA to include broadband access and VoIP services that connect to the traditional phone network.
The problem? Congress didn't write the statute to include what law enforcement wants. The FCC has helped law enforcemet in two recent orders that re-read CALEA to cover “information services” to the extent they are “substantial replacements” for local telephone service. This is a weak legal argument, but the FCC has persisted.
Today, Judge Sentelle, writing for the majority, points out that the CALEA statute and the 1996 Act are different (in particular, the 1996 Act doesn't include a “substantial replacement” element). The FCC has interpreted CALEA to cover information services in some circumstances. The D.C. Circuit is saying that it should defer to the FCC's interpretation when it is making a “reasonable policy choice.”
Judge Edwards's thundering dissent notes that deference isn't appropriate when Congress hasn't delegated authority to the Commission in the first place. (Last year, I wrote an article saying the same thing.) In a nutshell,
In determining that broadband Internet providers are subject to CALEA as “telecommunications carriers,” and not excluded pursuant to the “information services” exemption, the Commission apparently forgot to read the words of the statute.
He's right. Only Congress can revise CALEA. That kind of work isn't within FCC's mandate.
I hope the petitioners in this case will seek certiorari — it's vital for innovation, the future of the internet, and the future role of administrative agencies in this country that the Supreme Court weigh in.
Austin: DorkBot
I was delighted to be present at the first meeting of the Austin chapter of DorkBot tonight. You would have loved it.
DorkBot's history is here. The tagline: “People doing strange things with electricity.”
Tonight we were standing around in a mysterious parking lot area outside a funky coffee place. It was a sweaty hot night. The group I was with got there late, so we missed the theremin demo (apparently someone made a 1984 Mac into a theremin). Think Spellbound.
But the demos we saw were just great. First there was software for a Nintendo DS2 that makes it really really easy to paint and squiggle and do a million things. Really easy for a kid, really easy for an adult. Cheers from the crowd.
Then there was a serious electrical show with Frankenstein-like zapping sounds and sparks:
Also cheers from the crowd. Some members of the group backed up quite a bit from the display. Usually techie demos aren't quite this….dynamic.
Before DorkBot we went to see the bats swarm out from under the Congress Avenue Bridge at dusk. No one we asked knew the collective noun for bats. A bevy of bats? A belfrey of bats? Do you know?