Bush's FCC forces ISPs to spy on you

[davidbikman]

The most important shifts often happen in the most obscure places. In an AP story carried by the Washington Post and the Times, a divided D.C. Circuit Court defended the FCC's decision to require internet service providers to install or otherwise design methods for the government to listen to internet voice traffic. The White House wants to apply existing wiretap regulations to the internet, but they don't want to involve Congress or the public, so the Bush machine has colluded with FCC and a federal court to enlarge the FCC's enforcement authority through judicial and regulatory fiat.

The Communications Assistance for Law Enforcement Act (CALEA) was passed in 1994 to mandate that telephone companies actively collaborate with government to enable wiretapping on their networks. CALEA, however, applies only to "telecommunications carriers," not to "information services." But in 2004, the Department of Justice, the FBI, and the DEA filed a joint petition whining that "he ability of federal, state, and local law enforcement to carry out critical electronic surveillance is being compromised today by providers who have failed to implement CALEA-compliant intercept capabilities." In other words, the government was frustrated that private industry was not performing the work of the FBI for them.

Basing their ruling on the existence of VoIP, the FCC and the D.C. Court have now effectively decided that broadband providers are now also "telecommunications carriers"-- that Comcast has the same obligation as AT&T to help the government listen to your calls. Interested readers are referred in particular to pages 15 and 16 of Court's http://caselaw.findlaw.com/data2/circs/dc/051404A.pdf">decision, which uses a clever bit of sophistry to justify its decision to defer to the FCC's interpretation of CALEA, even though the petitioners employ what, in the D.C. Court's view is a better (and contrary) one.

On page 18, the Court goes so far as to argue that "he fact that the Commission treated components as an integrated service-offering under one statute does not preclude the Commission from reasonably treating those differentiable components differently under a different statute." The FCC, in other words, can pick and choose which parts of which laws it wants to apply, whenever it wants. How convenient!

Judge Edwards' dissent characterizes the FCC's interpretation as "directly at odds with the statutory language" and concludes that:

CALEA does not give the FCC unlimited authority to regulate every telecommunications service that might conceivably be used to assist law enforcement... What we see in this case is an agency attempting to squeeze authority from a statute that does not give it. The FCC’s interpretation completely nullifies the information services exception and manufactures broad new powers out of thin air.

As Judge Edwards notes, if the FCC wants more statutory authority, they need to ask us for it.