what the fcc said you can run software, but ONLY "subject to the needs of law enforcement"]

[Dave Farber <dave () farber net>]

-------- Original Message --------
Subject: RE: [IP] you can run software, but ONLY "subject to the needs
of law enforcement"
Date: Wed, 01 Mar 2006 17:31:49 -0500
From: Lin, Herb <HLin () nas edu>
To: dave () farber net, ip () v2 listbox com
CC: declan () well com

> From what I can tell from a couple of phone calls to the FCC, the
excerpt is from a "Policy Statement" of the FCC
(http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf
<http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf> ).

The quotation in context says

The Communications Act regulates telecommunications carriers, as common
carriers, under Title II.  Information service providers, "by
contrast, are not subject to mandatory common-carrier regulation under
Title II."11 The Commission, however, "has jurisdiction to impose
additional regulatory obligations under its Title I ancillary
jurisdiction to regulate interstate and foreign communications."12 As a
result, the Commission has jurisdiction necessary to ensure that
providers of telecommunications for Internet access or Internet
Protocol-enabled (IP-enabled) services are operated in a neutral manner.
Moreover, to ensure that broadband networks are widely deployed, open,
affordable, and accessible to all consumers, the Commission adopts the
following principles:
. . .

  To encourage broadband deployment and preserve and promote the open
and interconnected
nature of the public Internet, consumers are entitled to run
applications and use services of their
choice, subject to the needs of law enforcement.


Two things to note:

1 - this is excerpted from a policy statement, not a rule.  Thus, it is
best read as a statement of intent about future rules, and has no
particular force of law or regulation at this time.

2 - there's nothing in the statement referring to software running on
YOUR computer.  The FCC is trying to regulate what's in between
end-users, and doesn't have jurisdiction on what *I* as an end user run.
Unless there's an argument that what is on my end "illegal" or "is
harmful to the network", this rule does't appear to touch it.

None of this changes the essential point Declan is making about what
they would *like* to be able to do.

Herb



-----Original Message-----
From: Dave Farber [mailto:dave () farber net <mailto:dave () farber net> ]
Sent: Wednesday, March 01, 2006 3:52 PM
To: ip () v2 listbox com
Subject: [IP] you can run software, but ONLY "subject to the needs of
law enforcement"



-------- Original Message --------
Subject: you can run software, but ONLY "subject to the needs of law
enforcement"
Date: Wed, 01 Mar 2006 12:37:01 -0800
From: Jim Warren <jwarren () well com>
To: Dave Farber <dave () farber net>
CC: Declan McCullagh <declan () well com>

http://news.com.com/2061-10804_3-5884130.html
<http://news.com.com/2061-10804_3-5884130.html>

FBI to get veto power over PC software?
September 27, 2005 11:37 AM PDT

The Federal Communications Commission thinks you have the right to use
software on your computer only if the FBI approves.

No, really. In an obscure "policy" document released around 9 p.m. ET
last Friday, the FCC announced this remarkable decision.

According to the three-page document, to preserve the openness that
characterizes today's Internet, "consumers are entitled to run
applications and use services of their choice, subject to the needs of
law enforcement." Read the last seven words again.

The FCC didn't offer much in the way of clarification. But the clearest
reading of the pronouncement is that some unelected bureaucrats at the
commission have decreed that Americans don't have the right to use
software such as Skype or PGPfone if it doesn't support mandatory
backdoors for wiretapping. (That interpretation was confirmed by an FCC
spokesman on Monday, who asked not to be identified by name. Also, the
announcement came at the same time as the FCC posted its wiretapping
rules for Internet telephony.)

Nowhere does the commission say how it jibes this official pronouncement
with, say, the First Amendment's right to speak freely, not to mention
the limited powers granted the federal government by the U.S.
Constitution.

What's also worth noting is that the FCC's pronunciamento almost tracks
the language of the 1996 Telecommunications Act. Almost.

But where federal law states that it is the policy of the United States
to preserve a free market for Internet services "unfettered by federal
or state regulation," the bureaucrats have adroitly interpreted that to
mean precisely the opposite of Congress said.
Ain't that clever?

Posted by Declan McCullagh

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