Unchecked and Unbalanced -- But Now (Somehow) Lawful

Last Friday, a divided 2-1 panel of the D.C. Circuit let the Bush administration get away with one of its seemingly countless efforts to circumvent Congress' lawmaking authority, dealing a blow to privacy interests in the process. Written by Reagan appointee David Sentelle and joined by controversial Bush II appointee Janice Rogers Brown, the majority opinion upholds an administration-requested Federal Communications Commission order saying that an act of Congress – the Communications Assistance for Law Enforcement Act (CALEA) – forces broadband internet providers to make it easier to tap into broadband transmissions. In a heated dissent, Carter appointee Harry Edwards persuasively showed that Congress and CALEA had done no such thing. He called the order "gobbledygook," said the FCC was "trying to squeeze authority from a statute that does not give it" and accused the agency of "manufactur[ing] broad new powers out of thin air." If that weren’t enough, the decision immediately raised the hackles of CALEA’s chief Congressional sponsor.

CALEA requires telecommunications carriers to ensure that their networks are technologically capable of being accessed by law enforcement authorities for the purpose of conducting electronic surveillance. But the law expressly exempts “information systems” from its wiretap capability requirement. Under both prior FCC rules and related Supreme Court precedent, “information systems” have always included broadband internet services. Until 2004. At that time, rather than going to Congress to have CALEA amended, John Ashcroft's Justice Department asked the FCC to require broadband providers, among others, to accommodate wiretaps. The FCC did as it was asked, using its rule-making process to force certain previously exempted “information systems,” including broadband, to comply with CALEA’s wiretap capability requirement.

Universities, libraries, industry groups, and privacy and technology organizations vociferously criticized the new rule, warning of “CALEA creep.” Opponents of the rule told the Washington Post that it would impose new costs on private university networks connected to the world-wide web, “threaten the privacy rights of innocent Americans” and hamper “the ability of technological companies to innovate freely.”

A number of opponents brought suit, arguing that the FCC exceeded its lawful authority by issuing a rule directly at odds with the statute it claimed to interpret. Under federal law, an agency is not at liberty to offer its own interpretation of a statute when Congress’ commands are clear. Agencies may promulgate interpretive rules only when a statute is silent or ambiguous on an issue, and any interpretation must be reasonably consistent with the meaning and purpose of the law. Despite the fact that CALEA’s definition of exempted “information systems” clearly covers broadband service, despite the FCC’s previously-held consistent view that such exempted systems include broadband service, and despite the FCC’s failure to offer any statute-based rationale for changing its tune, Judges Sentelle and Brown held that the FCC’s order was a reasonable interpretation of CALEA.

Observing that the FCC “apparently forgot to read the words of the statute,” Judge Edwards had, you might say, a different take:

There is absolutely no permissible basis for this court to sustain the FCC’s convoluted attempt to infer broad new powers under CALEA. The agency has simply abandoned the well-understood meaning of “information services” without offering any coherent alternative interpretation in its place. The net result is that the FCC has altogether gutted the “information services” exemption from CALEA. Only Congress can modify the statute in this way.

The chief sponsor of CALEA, Sen. Patrick Leahy (D-VT), agreed with Judge Edwards, saying the court flouted congressional intent and stretched a law written for “the telephone system of 1994 to cover the Internet of 2006.”

There is, of course, nothing inherently wrong with making the Internet of 2006 wiretap-accessible. And if the Bush administration wanted to do that, all it needed to do was ask Congress to rewrite the law. But as has now become clear (warrantless wiretapping, unauthorized data-mining, environmental de-regulation, anyone?), that’s not something the Bush administration is particularly fond of doing. Easier just to do it themselves, or, as here, to look to pliant regulatory agencies to get the job done. Problem is, that’s not how our constitutional democracy, with its ever-inconvenient checks and balances, works. To make sure it keeps working, the courts are supposed to step in sometimes and say “nuh uh.” Curiously (or perhaps not), uber-conservative Judges Sentelle and Brown, erstwhile judicial cheerleaders for checking regulatory power (see for example here, here and here), were not up to the task the other day.

American Council on Education v. Federal Communications Commission, No. 05-1404, slip op. (D.C. Circuit June 9, 2006).