Why You Should Care Very Much About a 26-Page Legal Filing: And Thank a Bunch of Associations

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Why You Should Care Very Much About a 26-Page Legal Filing: And Thank a Bunch of Associations

4/21/2004

By Terry Calhoun

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.