telecommunications

Pessimism in Historical Perspective

Pessimism about potentially life-enhancing technologies is not new. The Twitter account Pessimist’s Archive (a favorite of the internet guru Marc Andreessen) chronicles the unending stream of pessimism with old newspaper excerpts. 

Pessimistic reactions range from merely doubtful (such as this response to the idea of gas lighting in 1809, or this one to the concept of anesthesia in 1839) to outright alarmist (such as this 1999 warning that e-commerce “threatens to destroy more than it could ever create”). 

In some cases, the pessimists insist that an older technology is superior to a new one. Some, for example, have claimed that an abacus is superior to a computer and a pocket calculator, while others claimed that horses are longer-lasting than the dangerous “automobile terror.” 

In Holding NSA Spying Illegal, the Second Circuit Treats Data as Property

The U.S. Court of Appeals for the Second Circuit has ruled that section 215 of the USA-PATRIOT Act never authorized the National Security Agency’s collection of all Americans’ phone calling records. It’s pleasing to see the opinion parallel arguments that Randy Barnett and I put forward over the last couple of years.

Two points from different parts of the opinion can help structure our thinking about constitutional protection for communications data and other digital information. Data is property, which can be unconstitutionally seized.

As cases like this often do, the decision spends much time on niceties like standing to sue. In that discussion—finding that the ACLU indeed has legal standing to challenge government collection of its calling data—the court parried the government’s argument that the ACLU suffers no offense until its data is searched.

“The Fourth Amendment protects against unreasonable searches and seizures,” the court emphasized. Data is a thing that can be owned, and when the government takes someone’s data, it is seized.

In this situation, the data is owned jointly by telecommunications companies and their customers. The companies hold it subject to obligations they owe their customers limiting what they can do with it. Think of covenants that run with land. These covenants run with data for the benefit of the customer.

Time to End the “Gore Tax”

When the Telecommunications Act of 1996 passed, section 254 was dubbed the “Gore Tax” by detractors of the policy and the then-Vice President whose project it was.

A system of cross-subsidy that was implicit in the old AT&T was made explicit as a tax on interstate telecom services—euphemistically referred to as a “contribution”—and expanded to reach to a small universe of sympathetic interests—more accurately, the telecommunications providers serving those interests.

Well-Worn Ideological Grooves II

The Consumerist relates the story of a potential Verizon customer who grew frustrated with his inability to get its high-speed FiOS Internet service. After resorting to emailing the CEO of the company, his service was promptly installed.

“Verizon is a corporation who cares about their customers and not only about the bottom line,” wrote the newly happy customer.

Now ask yourself: Just how separable are “caring for customers” and “the bottom line”?

Three Keys to Surveillance Success: Location, Location, Location

The invaluable Chris Soghoian has posted some illuminating—and sobering—information on the scope of surveillance being carried out with the assistance of telecommunications providers.  The entire panel discussion from this year’s ISS World surveillance conference is well worth listening to in full, but surely the most striking item is a direct quotation from Sprint’s head of electronic surveillance:

Who Reads the Readers?

This is a reminder, citizen: Only cranks worry about vastly increased governmental power to gather transactional data about Americans’ online behavior. Why, just last week, Rep. Lamar Smith (R-TX) informed us that there has not been any “demonstrated or recent abuse” of such authority by means of National Security Letters, which permit the FBI to obtain many telecommunications records without court order.

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