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.

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