Monday, June 12, 2006

The problem with the courts ordering the wiretapping of the internet...

A divided appeals court ruled Friday that the FCC has the power to order broadband internet companies to make their networks wiretap friendly for law enforcement. In a 2-1 decision (.pdf), the U.S. Circuit Court for the District of Columbia found that cable modem providers and other companies are subject to the Communications Assistance for Law Enforcement Act, or CALEA, the 1997 law that requires phone companies to put law enforcement backdoors in their switching networks.

If Friday's ruling stands, universities and broadband ISPs will be on the hook for an expensive retrofitting of their networks with surveillance gear, while law enforcement agencies will enjoy much quicker and easier access to information like a user's e-mail headers and the websites they visit, or -- with a court order -- a real time feed of the target's entire internet stream.

Ok, here's the problem. Regardless of where you stand on government surveillance in the war on terror, this ruling has two major flaws. First, the jurisdictional dilemma is not addressed. The CALEA Act only applies to American-based service providers, which is inherently problematic for implenting these surveillance measures in the global internet forum. The surveillance means nothing towards finding terrorists because anyone with half a brain could simply use a service provider outside of the United States, rendering such policy largely symbolic and ineffectual.

Second, this ruling will create negative externalities in an economic sense. Requiring universities and broadband ISPs to retrofit their networks with surveillance gear is tremendously expensive and creates a huge economic burden. Conservatives should be concerned with such expansive government regulation of the private sector, and liberals ought o take issue with how ISPs with be discouraged from rolling out further services, particularly to less affluent consumers and neighborhoods who will be most affected.

Any architectural changes made to the the internet's physical infrastructure may perhaps be deemed desirable and measures can certainly be taken to move in any such direction. However, the FCC simply requiring universities and businesses to make such drastic changes at their own expense is a flawed top-down, command-and-control solution of the worst sort.
  

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