(And you thought I’d given up on anything but Net Neutrality, didn’t you?)
So last week proved a busy one for the Communications Assistance to Law Enforcement Act (CALEA). CALEA requires that anyone building a “communications network” build it in such a way that law enforcement agencies (acting pursuant to a proper warrant, of course), can monitor individual sbscribers/users. Last fall, the FCC extended CALEA to include broadband access providers and voice over IP (VOIP) providers. For various reasons, this pissed me off. Meanwhile, a group of folks including the Center for Democracy and Technology and EFF Petitioned the DC Circuit to declare that the FCC had overstepped its statutory bounds in extending CALEA in this way.
Last Wednesday, the FCC issued its Second Order on CALEA, basically affirming the First Order and giving some new details (or at least it will when the text of the Second Order is released). Friday, the FCC defended its First Order in court. Reflections of yr hmbl obdnt below.
As frequent readers know, CALEA annoys me no end because, in addition to being terribly expensive for network operators, anti-competitive, a damper on innovation, and all the usual nonesense, IT DOESN’T WORK. CALEA cannot stop criminals or terrorists from using encryption and other means to ensure that conversations don’t get monitored.
Sure, there are possibly some criminals who will get nabbed because CALEA required a company to construct a network in a specific way, who might not have been nabbed otherwise. But the notion that this justifies a couple of billion in additional expense and a serious damper on innovation is ludicrous.
Many years ago, there was a Bloom County cartoon in which perennial vice-presidential hopeful Opus was debating Milo on the national speed limit of 55 mph. “Absolutely,” said Opus. “Saves lives.” Milo responded “But you don’t support a national speed limit of 45 mph, which would save even more lives. What about a speed limit of 35 mph? No, you’d rather be on time to your hair-dresser appointment than save a few lives, wouldn’t you, Mr. Murderer.” Taken aback, Opus can only respond “Bush (Sr.) is a wimp.”
So, to my mind, this isn’t “civil liberties” v. “security,” it’s “at what point does the argument that ‘if it saves even one life or stops one crime it’s worth it’ finally become moronic beyond belief.”
Not everyone hates CALEA, of course. For example, if you are large companies with CALEA compliant networks already in place, you looooooooove CALEA. After all, it imposes massive expenses on your smallest, nimblest competitors. But many of the rest of us that end up footing the bill, both through lost competition and lost innovation, or through what the monopoly providers charge to pay for CALEA compliance, think it sucks rocks.
Still, it was not any great surprise last Wednesday when the FCC brushed aside any objection to its decision last fall to expand CALEA to broadband providers. The one minor note of clarification was that colleges and other “private networks” can rely on the third-party providing back-haul to the broader internet cloud for CALEA compliance. Of course, the private network provider still has to disagregate traffic in a way that will permit the third party provider to monitor individual conversations — or so I judge by the press release and comments. Until the FCC actually releases the order, it is a little hard to tell what actually happened. At the least, however, it appears that the FCC made no real change and that everyone now has about a year to get complaint with CALEA, as soon as industry standards groups figure out what that means. Because, of course, that should be good enough for everyone, right? I mean, you’re all members of IEEE reading this, aren’t you? You can all pay the dues and participate on equal footing with the likes of Verizon and Verisign, yes? You can’t? Well heck, I guess that’s just your problem then, isn’t it? Lord knows it’s not anything the FCC thinks it needs to worry about when making rules that impact us “consumers.”
Which brings us to Friday. I attended the oral argument at the D.C. Cir. court house. As many of you may have read, the panel split between Judge Edwards and Judge Sentelle. Judge Brown, who gained noteriety last year as one of the “controversial” Republican judges whose nomination nearly caused a total meltdown in the Senate, said nary a word.
The issue in the case is a fairly straightforward one. The CALEA statute provides an explicit exception to CALEA for information services. If something is “an information service,” then it cannot be subject to CALEA mandates. So says CALEA Section 103(b)(2). But CALEA also contains a provision called the “substantial replacement provision” or “SRP.” CALEA Section 102(8)(b)(ii). The SRP says that the FCC can include any service that constitutes a “substantial replacement” to telecommunications service. But, lest Congress seemed unclear, the very next sentence (Section 102(8)(c)(i)) says that the SRP does not apply to “information services.”
Things are complicated for the FCC because, back in 2002, it classified broadband cable access as an “information service.” When the FCC lost in 2003/2004 in the Ninth Circuit, it wanted to appeal to the Supreme Court. But Federal agencies must get permission from the Solicitor General’s Office before going to the Supreme Court.
The Department of Justice lobbied heavily to prevent the FCC from appealing, because they wanted broadband to remain calssified a “telecommunications service” (and therefore subject to CALEA). The agencies agreed to a compromise wherein the FCC would conduct a separate rulemaking on how to apply CALEA to broadband access as an information service, and the Solicitor General appealed the case to the Supremes. This ultimately concluded in the “Brand X decision, which started us on this whole deregulation mess now culminating in the Network Neutrality fight. Indeed, the very day the FCC classified DSL as an ”information service“ rather than a telecom service, it also released its First Order on CALEA applying CALEA to broadband.
So how does the FCC get around the ”information services exception?“ Through some rather inelegant handwaving. The FCC concluded that although CALEA used exactly the same words and definitions as the Communications Act of 1934, it could still interpret the phrase ”information service“ differently for each statute. After all, the Supreme Court in Brand X had agreed with the FCC that the term ”information service“ was ambiguous, and therefore the agency had the power to define it as including both the transmission component of broadband access and the service component of broadband access.
So, said the FCC, for purposes of the Communications Act of 1934, and whether cable cos and telcos can do whatever they want with traffic riding on the network, we will conclude that broadband access is an ”information service“ because we cannot disagregate the transmission and the service ”offered“ to the subscriber (since the company chooses not to disagregate them). But, for purposes of CALEA, we will conclude that we CAN disagregate the underlying transmission from the service offered, and can require companies to construct their networks to give law enforcement access to the transmission (and, hence, to the content of the ”infromation services“). In other words, while we can’t require ISPs to give law enforcement the power to read email, we can require them to build networks that allow law enforcement to capture the email (because sending the email is transmission) and read it that way.
If this confuses you, don’t worry. That just means your critical functions work properly.
So Matt Brill, on behalf of the American Council of Education and the rest of the Petitioners. Made the argument that the FCC simply cannot have it both ways. When Congress uses identical words — even in different statutes — it intends them to have the same meaning unless it clearly states otherwise. Petitioners relied on a line of cases that make this point.
Sentelle took the role of inquisitor for Brill. What about the cases the government cites, that show that plain English meanings and contradictory meanings are permissible in statutes? Those cases rely upon clear indications of Congress to use non-common meanings, replied Brill. And, in any event, once the FCC settled on a definition, it must use the definition consistently. Why? Responded Sentelle. Isn’t it enough that the Supreme Court has found the words ambiguous? Because Congress often relies on agencies to define ambiguous terms, and must be able to rely on an agency definition when drafting legislation, answered Brill. As explained in the brief, the difference between ”information service“ and ”telecommunication service“ arose out of well understood FCC regulatory distinctions. Congress meant ”whatever the FCC defines as information services“ when it included identical definitions in 1994 CALEA statute and 1996 Communications Act on which FCC relied in Brand X .
”O.K. then,“ said Sentelle. ”Then what does the substantial replacement provision cover?“ This raised the tricky question of voice over IP (VOIP). Frankly, it’s damn hard to tell VOIP from traditional phone service. True, with regard to VOIP, the FCC has a somewhat clearer playing field, since it has not yet definitively ruled on whether VOIP is a ”telecommunication service“ or an ”information service.“ But several petitioners did not want VOIP covered and had raised a separate Administrative Procedure Act (APA) objection — that the FCC had included VOIP in CALEA without first declaring it was not an information service. So Brill hemmed and hawwed over this a bit, until Judge Edwards came in to say ”well, it really is VOIP, isn;t it?“ ”Not necessarily,“ said Brill, gamely making a go of it to save VOIP.
Personally, I think the right answer there was ”beats me your honor. That question is not before the court. Had the FCC not defined broadband access as an information service, we could have a very different case. But the question is not what could the SRP apply to as a wild surmise, the question is can you even get to the SRP analysis if you already declared this an information service.
But, just like playing “Jeopardy” at home, you are always 50 IQ points smarter when watching at home under no pressure than as contestant with all the pressure on. Brill acquited himself well, under reasonable pressure from Sentelle.
Next up came Jake Lewis for the government. Edwards made clear that he simply could not buy the government’s argument that it could define the same term in two statutes differently. Jake argued that CALEA directed itself to a network’s capacity, whereas the Communications Act directed itself to the commercial merketplace. Therefore, in construing the separate purposes of the two statutes, the FCC had leeway to decide whether Congress intended for it to focus on whether the transmission concievably could be disagregated from the content in CALEA — where the answer was yes and the FCC could therefore apply CALEA to the transmission component– or whether a provider chose to offer the combined service in the marketplace — the focus of the Communciations Act.
Frankly, I find the FCC argument nonesense for a couple of reasons, in addition to the reason given above, that Congress needs to rely on the fact that words in statutes will have consistent meaning unless Congress explicitly indicates otherwise, the FCC’s argument here runs afoul of the argument Scalia made in his dissent to Brand X. The only reason the provider refuses to disagregate the transmission component from the service is because refusal to do so lets the provider evade the protections Congress intended to apply to transmission of information (i.e., communications services). To pretend that in one case regulation can force providers to seperate the two components, but in another case regulation cannot require separation unless the provider voluntarily chooses to offer separate transmission capacity, allows companies to defeat Congress’ intent to regulate certain aspects of the industry. Or, as judge Edwards kept saying the FCC can’t have it both ways.
So what happens next? Well, as I’ve said before, you can never tell from oral argument. Certainly Judge Edwards seemed more adamant in his position than Sentelle did in questioning Brill. But that means nothing. Judges often press hard on points in oral argument but then, on consideration, decide another way. And, of course, Judge Brown did not indicate by any question or comment what she thought of either argument.
The court took this on an expedited schedule, so they will no doubt try to get an opinion out before the end of June. The conventional wisdom appears to be that the court will end up holding that CALEA can’t apply to broadband access providers because they are “information service” providers, while it does apply to VOIP providers that provide a service identical to regular telephone service. Me, I’m not nearly as confident. I think it could go 2-1 either way. If it goes 2-1, rather than 3-0, that increases the likelihood of getting an appeal either to the full court or the Supreme Court. Meanwhile, the clock is ticking for all broadband access providers to comply with CALEA, as soon as the FCC tells us how.
Stay tuned . . . .