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.
Comments
5 Responses to “Unprincipled principles”
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Susan,
Thanks for posting this. Displaying my own bias, I think you missed out the most chilling statement:
One arguement that is telling of the drift of the document is the treatment of the network like any other public commons. I don't disaggree with this, but how much law enforcement does one put in a public place, and how much authority and latitude should they be given? Last time I was in Beijing, there were military platoons marching for formation it seemed everywhere, and their government all but openly trades in human organs from executed prisoners. That may be an extreme example, but I think it give cause to raise the question: are we brave enough for freedom? Or so we retreat frightened, bruised, and cowardly into the protective arms of a police state? Its true - you can walk with complete personal safety an any public place in Beijing at 3 in the morning - if you don't mind donating a kidney now and then.
Lastly, I
Dear Susan,
I feel privileged at being blog-worthy (to invoke a Seinfeldian notion). There isn't any intent to “smear.” The allegation seems a little over the top. It's simply to convey a different perspective, and that it would be really nice for the K-Street community to worry a little more about the protection of infrastructure and users. (The K-Street rubric was simply a term of convenience.)
[CALEA] clearly doesn't cover the internet
or information services generally.
My reading suggests that IP based platforms are clearly covered. Information services other than the narrow messaging exception in the CALEA definition are also covered. That's the way the Commission is reading it. That's how the House Telecommunications Subcommittee is reading it. My guess is that's how the appellate courts will read it as well. To do otherwise, pretty much guts the intent of the Act - which was to provide a continuing forensic capability to law enforcement as the technology evolved.
The Commission's reading of CALEA imposes
enormous burdens on a huge swathe of our
nation's economy, with no legal justification.
Nonsense. There are no huge burdens. The only study on record - which is in the proceeding and unrefuted - suggests the burden is a matter of millicents per subscriber per month. Like it was mentioned in the statement, the capabilities are already implemented in most major vendor products, and some even give the associated software programs away. The FCC has required a lot more in the way of infrastructure requirements.
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,
Much of the nations telecommunication infrastructure has been regulated under Title I for the past 70 years - certainly in the infrastructure protection and national security area. It will continue to be.
ad hoc regulatory approach to the internet that
has as its stated goal making the internet much
more like a mobile phone network.
You seem to impute some mystical set of properties to this abstraction you call The Internet. Maybe because Steve and I have been dealing with these technologies for the past 35 years that we just see it as pretty much the same basic protocols and network architectures, only with smarter devices hung off the periphery. Recall that those are computers in those cellphones. The regulatory approach is hardly ad hoc. You can identify most of the required capabilities as those imposed on public communication infrastructures worldwide for the past 150 years. TCP/IP is simply the latest ubiquitous middleware protocol.
Congress never said it wanted this. The people never said
they wanted this.
I sat in a hearing on this subject a few months ago where in fact every congress person said they wanted this. Take a look at the current cybercrime statistics sometime and try and make the case for no forensic evidence.
In other countries, the telephone system is often
owned by the government, and the providers of telephony
policies” like assistance to law enforcement and
emergency services.
When was the last time you were in another country? It's frankly a rather uninformed comment. In any case, the point was made to refute the incantation about CALEA damaging U.S. vendors and their ability to innovate in a global marketplace. Sorry, that argument doesn't wash. The rest of the world has even more stringent requirements - which is why the capabilities are already baked into most vendor's products.
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.
As I said, this seems a little over the top…again. Articulating a different perspective doesn't equate to smearing. The Geneva remark is also uninformed. Almost none of these developments are occurring in Geneva.
Lastly, I find Ben Reynolds reflections on anonymity to be worth substantial consideration. At the Georgia Tech Distinguished Lecture event a few weeks ago where I discussed this subject, one of the grad students persuaded me that limited resource useage could be a basis for anonymity. This would be analogous to using a car on a remote country road.
–tony
hihi, it