There has been much discussion about Title II lately, but little recognition of how the FCC’s new Open Internet rules could legitimize government surveillance and its extension to new applications and services. To be sure, there is an important need for access to communications services in order to enable law enforcement and national security, but a number of organizations characterize such intelligence activities as excessive. Curiously some of the key supporters of Title II, including the Center for Democracy & Technology (0), the Electronic Frontier Foundation (1), and the American Civil Liberties Union (2) are some of the most vocal opponents of surveillance.
There are a number of laws governing national security and law enforcement in the US. Of particular importance in the context of Title II is the Communications Assistance for Law Enforcement Act (CALEA) (3). CALEA requires that communications networks, hardware, software, and equipment be designed so that they can be effectively “wiretapped” by law enforcement at local, state, and federal levels.
When Congress passed CALEA in 1994, it applied only to the public switched telephone network. In 2004, at the request of the Department of Justice, the FCC added broadband and VOIP networks to the types of communications providers that must comply with CALEA. From the perspective of law enforcement, this expansion makes sense. Authorities need to access communications to do their job, and as technologies evolve, authorities need to access these new communications tools and services.
In its argumentation for CALEA to apply to VOIP and broadband, the DOJ challenged the notion (4) that there should be different regulatory classifications for information services (Title I) and telecommunications (Title II), and said that for its purposes, all communications should be deemed a Title II service, noting that any “replacement for a substantial portion of the local telephone exchange service” should be a communications service and CALEA compliant.
Traditional telephone communications have been replaced with many Internet protocol services, including Facebook and WhatsApp (IP messaging), Skype and FaceTime (video chats), and Instagram and Snapchat (visual communications). These applications are effective communications services. The FCC’s new Open Internet rules – which invoke the rationale of the definition of a communication service being “transmission between or among points specified by the user, of information of the user’s choosing” – only bolsters the FBI’s case that such “information services” should be subject to CALEA. The FBI’s request (5) that CALEA be extended to cover web-based email, social networks, and peer-to-peer technologies will only be supported by a Title II regime in place for broadband.
While many law-abiding users want services that can’t be surveilled because they consider it an invasion of privacy, determined criminals and terrorists will also use the services for the same reason. As such, law enforcement can argue that all communication services must become CALEA compliant, for having some communication services that are compliant and others not, will only attract criminal activity to those services that are free from oversight.
In a world of converged technologies, many companies – including consumer favorites such as Google and Netflix – engage in both information processing (Title I) and transmission (Title II). Reclassification of broadband has opened the door to apply numerous rules and obligations – including CALEA – to a host of companies currently free from these requirements. Such companies could include content delivery networks (CDNs), messaging services, cloud services, and webRTC. Apple and Google have made a point to encrypt their services to avoid government surveillance, but the imposition of Title II may well undo those efforts. To many freedom and privacy advocates, the Open Internet is about being free of government surveillance, but with Title II, we may get the opposite.