It’s the ad hoc nature of U.S. communications law these days that gets depressing. It seems only federal courts can help – except when they refuse to get involved.
Four very quick snippets of stories to watch:
1. Warshak. The Sixth Circuit said back in June that people have a reasonable expectation of privacy in email sent through ISPs, and so the loose-and-low statutory procedures for government access to these emails (found in the Stored Communications Act) have to be measured against Fourth Amendment standards. The government had used those loose-and-low procedures to obtain a court order giving it general access to Warshak’s emails stored by ISPs – and the government didn’t tell Warshak it was doing this for a year. That failed the Fourth Amendment test, according to the Sixth Circuit.
Although the particular loose-and-low procedure (a one-sided appearance before a judge stating “reasonable grounds” rather than probable cause, the Fourth Amendment requirement) has been declared unconstitutional, there are still plenty of other ways for the government to get access to these materials if they need it. They can get a warrant based on probable cause, or go in front of a judge and let the search-ee know that they want access and are asking for a subpoena. (Meanwhile, judicial steps can be taken to avoid having the emails disappear.)
But that’s not enough for our government, which wants to avoid any additional oversight or notice requirements in connection with access to email.
Everything’s in email – a complete dossier of our communicative lives is in email. What could be more personal? Years ago, we agreed that people had a reasonable expectation of privacy (triggering Fourth Amendment protections) in phone calls – why would we treat emails differently? But our government has successfully sought rehearing of the Sixth Circuit case by the full panel of judges, and it’s likely we’ll see some clever fight over the “ripeness” (liveliness, concreteness) of the claim that avoids the merits of the dispute but keeps the status quo of easy access in place.
Ripeness is a sophisticated way of saying to the courts: “Move along here, now, nothing for you to work on.”
2. Hepting. That’s the name of the lawsuit addressing the NSA surveillance scandal. At the direction of our government, telecommunications companies copied all online transmissions crossing their network — wholesale — and sent that copy on to the NSA for further processing. This likely violated the Fourth Amendment (clearly the telecom companies were acting on behalf of the government), the Telecommunications Act, the Wiretap Act, the Foreign Sovereign Immunities Act, the Stored Communications Act, and state unfair competition/deceptive practices laws. At the least.
Right now, Congress is considering whether to grant retroactive immunity to the telecommunications companies that participated in this warrantless vacuuming up of all possible communications. A Senate panel has voted against immunity today — a welcome development. Sen. Specter (R-PA) has argued that Hepting (and cases like it) need to proceed. “[C]ourt cases may be the only way Congress can learn how far outside the law the administration has gone in eavesdropping.” Specter wants to substitute in the government for the telcos, though, which seems problematic. Why should citizens have to pay for this illegality? A House bill on the same subject already rejected immunity.
Retrospective immunity is another way of saying to the courts: “Move along here, now, nothing for you to work on.”
3. Title I and Chevron Deference. At the same time all communications have become IP-based, the FCC has manuvered regulation of those communications out of the scope of its own delegated power from Congress. Instead of keeping things within Title II of the Communications Act (the home of some heavy-handed regulation, to be sure, but at least there were guideposts for the FCC’s action), the Commission has declared that just about everything having to do with the internet and access to the internet is within its power under Title I of the Act.
Title I says nothing. So the Commission has enormous discretion to do whatever it wants – it’s a swamp, a murky, bottomless realm of unaccountable action, that Title I.
Here’s the place where (unlike Warshak and, potentially, Hepting) the courts have deferred to the broad exercise of communications discretion. Somewhat enigmatically, Justice Thomas in 2005’s Brand X decision said:
Information-service providers . . are not subject to mandatory common-carrier regulation under Title II, though the Commission has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction to regulate interstate and foreign communications.
Justice Scalia thought that was weak, and said so:
This is a wonderful illustration of how an experienced agency can (with some assistance from credulous courts) turn statutory constraints into bureaucratic discretions.
I’d like to see another case that makes a court address the scope of the Commission’s power over the internet — surely the Commission can’t act without some kind of delegated authority. Surely there needs to be a guidepost in the swamp somewhere.
Right now, a combination of judicial deference and Commission brashness is keeping the courts – and Congress – from getting involved.
4. 70/70. Title VI of the Cable Act says:
[A]t such time as cable systems with 36 or more activated channels are available to 70 percent of households within the United States and are subscribed to by 70 percent of the households to which such systems are available, the Commission may promulgate any additional rules necessary to provide diversity of information sources.
We know that the Commission plans to say this “70/70″ trigger has been met. It’s true that cable has enormous market power and the empirical step makes sense.
But “any rules necessary”? I’d be worried, if I were the cable industry. Again, the issue here is a complete lack of boundaries. Not even a hint of limitations.
And, again, the argument from the Commission will be: “Move along here, courts, nothing for you to work on.”
These are all separate stories, each with its own history and set of acronyms. They all share, though, a certain open-endedness and ad hocery that is distressing. Not that every detail needs to be written down in legislation – but some checks, some examination has to happen at some point, provided by some institution that isn’t pressing for action.
Cross-posted from Susan Crawford blog