CDT, EFF, the Media Access Project, Sun, and Pulver.com have asked the judges on the D.C. Circuit Court of Appeals to all sit together to reconsider the June 9 opinion upholding the FCC’s creative interpretation of CALEA.
In order for such a reconsideration request to be granted, the petition has to concern a “question of exceptional importance.” That’s certainly present here — the D.C. Circuit’s June ruling allowing the FBI to serve as a gatekeeper for online applications doesn’t fit with the statute and poses enormous threats to innovation.
Remember, everyone has to comply with lawful wiretapping/interception requests. Compliance is not the issue here. The additional cost-shifting burden imposed by CALEA is to require that things be built so that they are easily tappable by law enforcement.
In 1994, Congress unquestionably exempted the internet (both access to the internet and applications used online) from CALEA obligations. (That’s why there’s an awful CALEA rewrite in circulation now — DOJ wants to change the law.) Even though the statutory language is clear, the FCC decided to interpret the statute to include elements that had specifically been left out by Congress.
The FCC did this by saying that the statute was ambiguous — when it isn’t — and by arguing that because “interconnected VoIP” services are “replacements for a substantial portion” of traditional telephone services they must be covered by CALEA.
Their position was/is specious, in my view, because CALEA specfically excludes “information services.” And “information services” include internet access and online applications.
But backing up the frame from the statutory arguments (which the petition admirably presents in visual/analogy form several times) reveals a crucial and enormous legal issue. Congress hasn’t expressly delegated power to the FCC to “regulate the internet.” Who gets to do this “regulation” is very important to the future of this country. In the absence of an express delegation, no deference to the agency’s views is required. The D.C. Circuit is the group we depend on to rein in the Commission when it gets adventurous — or succumbs to pressure.
The FCC is far from independent of the wishes of the Executive Branch, particularly when it comes to national security and law enforcement desires. Incrementally, in a thousand definitional nuances and statutory-creep extensions, the Commission is becoming the de facto internet regulator. Surely we’d want to have told them to do this; surely we would have thought through the consequences of such a step. Because we haven’t, it would be wrong for a court to defer to what they have to say when it comes to the regulation of the internet. Particularly when it comes to getting FBI guys involved in designing new online applications.