Why You Should Care Very Much About a 26-Page Legal Filing: And Thank a Bunch of Associations
On April 13, a coalition of higher education associations filed a 26-page legal
brief known as a "comment" with the Federal Communications Commission
(FCC) opposing a Justice Department petition which asks the FCC to allow it
to apply the same rules regarding wiretapping that it currently enjoys with
traditional telephony to all types of broadband Internet access. Hooray for
the coalition! And, thanks.
If the Justice Department loses within the FCC, as I hope it d'es, the same
issues will show up on the legislative calendars in the Congress and the Senate.
If you feel strongly about these issues, please use the link provided at the
end of this article to express your concerns to your elected officials. (The
link will tell you who they are and provide contact information instantly, based
on your zip code.)
I am personally grateful for the
coalition's filing (PDF) and hope its work to oppose this end run around
the legislative process is successful. I also hope that it keeps its eyes on
future legislation, in 2005 or 2006, which the Bush administration is likely
to bring before Congress to achieve the same goals. At least that would be the
appropriate route, but I hope it fails there, too.
The basic argument is that the Justice Department is attempting in
its petition to bring all broadband access within the scope of previous
legislation that was intended to apply only to traditional telephony would inhibit
innovation, compromise privacy, and impose needless costs at a time when higher
education budgets, especially, are already strained.
The FBI perspective
on this is that "The bottom line is that law enforcement must not lose
its ability to do lawfully authorized electronic surveillance merely because
of changing telecommunications technology." Law enforcement officials are
convinced they can do a better job with these new powers.
Well, it's hard to argue with that. But it's a little disingenuous to argue
that widening the scope of federal wiretapping laws developed with traditional
telephony in mind to include all broadband Internet access is something that
should be done simply in an administrative branch procedure without congressional
oversight. The argument here is over whether or not these are new powers or
simply clarified powers, and few outside the Justice Department believe this
is a clarification.
Some
believe that this FCC petition is merely the first wave of a series of efforts
to reduce privacy expectations among the American public so as to soften up
the opposition for future legislative actions - and that the motivation is not
national security but pressure from the burgeoning surveillance tool industry
that would love to see the $3-5B it has earned since CALEA was passed balloon
into some much larger figure if the entire Internet industry has to comply.
This patriotic Vietnam veteran agrees with the higher education coalition that
it "understands law enforcement's dilemma.
" But, as the coalition
says, a proper solution involves the full and open participation of the Congress
and the technology community," not just an administrative process within
the FCC. And it should consider the serious, potentially negative consequences
on the Internet and the development of new technologies in a balancing fashion,
which isn't something I hear as a major concern in the Justice Department's
petition.
The coalition urges the FCC to understand that (a) the legislative branch considered
Internet access at the time, in 1994, when CALEA was first passed, and specifically
exempted it from CALEA; and (b) that if there is to be a change in CALEA that
would bring Internet access within its purview, such a change should be done
legislatively, not by Justice Department fiat.
The higher education additionally believes that the FCC's acceptance of the
petition would: "inhibit innovation, compromise privacy, and be costly
at a time when budgets are already strained to the breaking point." Where
d'es some of that expense come from? Well, anyone who provides Internet access
(including libraries, universities, and colleges) would have to bring existing
equipment into compliance within 15 months, and set up and staff 24x7 security
offices.
Further, the petition asks for acceptance of the proposition that any new advancement
in technology should (a) include a surveillance solution within the technology
itself and (b) get Department of Justice and FCC approval before it is implemented.
Just imagine what that could do to hundreds of initiatives on our campuses,
including things like the Internet2 and the Sakai Project.
The higher education coalition also notes that the department's petition to
the FCC d'es not adequately address encryption and that advances in encryption
will make what the Justice Department really wants to do impossible anyway -
but not without first costing everyone involved a lot of time and money.
You may disagree with the coalition, or with me. That's fine. But this piece
of administrative branch security work can greatly affect the life of anyone
in higher education IT. Think about reading some the links above and these more
general articles from the Washington
Post and ZDNet,
and see how you feel about this issue. A site with a negative perspective on
the petition in general is that of the Center for Democracy and Technology;
one with a positive perspective is AskCALEA.
I know that when my trusted colleagues at the American Association of Community
Colleges, the American Council on Education, the Association of College and
Research Libraries, the National Association of College and University Business
Offices, and EDUCAUSE oppose the petition, I very much trust their perspectives
on its consequences.
If you are moved to take the time to communicate with your elected officials
about it, which I hope you are, then use this great League of Women Voters Web
site, the Democracy Net, which
can instantly tell you who they are and how to contact them.
