CommunityFDL Main Blog

Late Nite FDL: Was the Showdown in Ashcroft’s Hospital Room Over Internet Spying?


I have always believed that a guy like Jim Comey was not going to stage a mass resignation over some small disagreement involving a slight parsing of words. Nor do I think he is the sort to substitute his own policy judgements for that of an elected president.

Nope, I have always believed that the showdown had to be over some black and white, “plain meaning” issue related to either a statute or a Supreme Court decision. Jack Goldsmith’s public statements since his book came out, saying that he did not disagree with the activity, just with the fact that there was no legal basis for it, reinforced that belief.

I have previously written about CALEA (the Communications Assistance for Law Enforcement Act) and the fact that a petition was filed by DOJ, FBI and DEA dated March 10, 2004 asking that the FCC interpret CALEA to make it cover Internet communications.

This is the day after Ashcroft agreed with Comey not to re-authorize a particular program. It is the same day as the confrontation in Ashcroft’s hospital room, and although it is the day the petition was DATED, I suspect that this date was chosen as a sort of legal fiction, so that there would be some continuous coverage and the activity would not have to be interrupted.

I’m no FCC expert (by a long shot) but with some types of agency applications, you can go ahead and do something while your petition is pending, and that may be the case here.

The thing is, CALEA really doesn’t seem to cover Internet, at least not according to 3 of the FCC Commissioners.

From the statement of FCC Commissioner Kathleen Q. Abernathy:

While the Commission must do its utmost to enable law enforcement agencies to combat crime and promote homeland security, it would be a mistake to gloss over the possibility that the existing statutory framework does not apply to broadband Internet access services or other IP-enabled services that are classified as information services. The NPRM we are issuing proposes a plausible interpretation of the “substantial replacement” provision in CALEA that would extend the assistance-capability requirements to broadband access services and IP telephony.

But such an extension clearly would be fraught with legal risk. The Commission thus would benefit greatly from further congressional guidance in this area. While the text and legislative history of CALEA make clear that the march of technological progress should not hamper law enforcement’s ability to conduct lawful wiretaps, the statute also explicitly exempts information services from its reach. The Commission has proposed a means of resolving this tension, but it remains to be seen whether our attempts to do so would pass judicial muster.

[emphasis mine, but ain’t the quote a doozy?]

From the statement of Commissioner Michael J. Copps:

I believe today’s item asks many of the right questions, but I also believe that too often it gets the reasoning wrong. It is flush with tentative conclusions that stretch the statutory fabric to the point of tear. If these proposals become the rules and reasons we have to defend in court, we may find ourselves making a stand on very shaky ground. It would be a shame if our reliance on thin legal arguments results in the CALEA rules being thrown out.


To me, it strains credibility to suggest that Congress intended “a replacement for a substantial portion of the local telephone exchange” to mean the replacement of any portion of any individual subscriber’s functionality. Capturing VoIP under the rubric of substantial replacement, ignoring the Ninth Circuit’s decision in Brand X, and trying to slice and dice managed and non-managed services is not the way to proceed here. Making the statute bear this heavy burden denies carriers, equipment manufacturers and technology entrepreneurs the clarity they need. But more importantly, our law enforcement authorities need that clarity.

[emphasis mine] How much does that remind me of the whole CIA interrogators need a memo of law to shield them from liability for torture, thingy? Did the FBI need an FCC ruling to shield them from future liability?

And from Commissioner Jonathan S. Adelstein:

This item begins to tackle the increasingly important issue of whether CALEA applies to broadband and VoIP services.


Rather than seeking comment on the most stable footing for law enforcement’s request, the item seizes upon notable but thin distinctions between definitions in CALEA and the Communications Act. Moreover, the item does not acknowledge fully and seek comment on existing precedent that is in tension with the tentative conclusions here. For example, whether or not the Commission ultimately appeals the decision in the Ninth Circuit’s Brand X case, which concluded that broadband access via cable modem includes a “telecommunications service,” this Notice’s failure to seek comment on a legal analysis that would comport with the Circuit’s holding is an unnecessary failing.

It’s only (you can’t expose your nipple ring during a half time show at the Superbowl) FCC Chair Michael Powell who seems gung ho to give DOJ what it’s asking for:

Previous Commission action on CALEA has focused primarily on circuit-mode technology. Today’s item takes a major step in implementing CALEA, particularly with respect to new packet-mode technologies, by tentatively concluding that broadband Internet access services and managed voice over Internet protocol (“VoIP”) services are subject to CALEA.

So, could this be it? If so, there seems to be yet another John Yoo, ahem, “quality decision” here; at least according to the Electronic Frontier Foundation, who had some thoughts of their own on the “FBI Plan to Surveil Net”

EFF believes that the main reason for this and other CALEA compliance issues is simple: CALEA was neither intended nor written to apply to the Internet. Given the pace of technological innovation, attempting to apply CALEA to the Internet creates enormous legal, technical, economic and social problems.

This Commission has been committed to lowering government barriers to innovation and the deployment of innovative services. The FBI’s proposed “solution” to its CALEA problems would raise those barriers by putting this Commission and the FBI in the role of technology gatekeeper. Even if the Commission and the FBI had the resources to attempt to play this role, which EFF seriously doubts, there is every reason to believe that the effort would be futile for law enforcement, dangerous to civil liberties, and prohibitively costly to innovation and the U.S. economy.

Somebody needs to tell Congress, before the FISA telcom immunity vote, cause I’m guessing it’s not just telcos, it’s ISP providers too. Or as Rayne said in a previous thread:

Rayne says:

November 26th, 2007 at 10:58 am
LHP — if you’re coming back here…you need to realize that the ISP’s are not separate from the telcos.

AT&T is the best example. All other ISP’s that aren’t already partly or fully owned by a telco run their traffic over telco toobz, so the ISP’s are not the gatekeepers.

Qwest was not an old school telco; I am beginning to think they believed they stood to gain more in an open, competitive market against the older telcos. They didn’t see the need to yield to a quid pro quo arrangement. Verizon may be newer than AT&T or MCI, but they had too much already on the line in sunk costs into traditional toobz-aligned technology.

There’s another player that is a major market disrupter, which has a vested interest in leaving the old school technology behind — and the gov’t is pounding on them to yield. It’ll be interesting to see what happens over the next 2 months for this reason.

[photo via]

Previous post

Hillary Leaves Off The T

Next post

Wilkes Gets His Subpoenas



In rugby, the looseheadprop is the player in the front row of the scrum, who has the ability to collapse the scrum, pretty much at will and without the referee knowing who did it.
While this can give the LHP's team a great tactical advantage, it also exposes scrum players from both teams to the dangers of catastrophic spinal cord injury.
Consequently, playing this position makes you understand your responsibility to put doing the right thing ahead of winning, and to think beyond your own wants and desires. It also makes you very law and order oriented.