Stewart is general counsel to the Commission on Intelligence Capabilties or the US Regarding WMD, but he’s speaking on behalf of himself.

CALEA was pretty good as written, he says. “The problem with the FCC’s tentative conclusions is that it takes a statutory set of standards and turns it into a kind of commission mush.”

“The one fundamental thing about regulating to give law enforcement access to new technology is that there’s a big cliff effect.” At some point the regulations stop. Are you going to tell Intel how to design their chips and Cisco how to design their routers? Eventually you got to a spot in the economy that’s beyond regulation. Where do you put the cliff? CALEA said they’d put it in rate-regulated industries. The FCC instead said that information services are exempt “sometimes.” That “mushy” response gives the FCC what it really wants: “Discretion to reach out and regulate a little more” to accommodate all the stakeholders. That means you can’t really know whether you’re regulated or not.

CALEA sets a performance standard for companies as opposed to a type of input-output regulation. It says you must make your telecommunications — every call — isolatable and deliverable to law enforcement. We don’t care how you do it. You won’t be challenged until a law enforcement agency comes to you, which gives you some time to establish your business. The FCC, under pressure from enforcement agencies, instead demands that on Day One you have to have all the CALEA features the FBI wants. That will discourage innovation: You first have to sit down with the FBI and figure out how you’re going to meet every CALEA requirement from the beginning.

The “substantial replacement” test that the FCC has adopted is “dangerous.” The original statute says that if your tech is going up as the PSTN is going down, then you are subject to CALEA. The FCC instead says that “substantial replacement” can be “decided in the abstract.” Anything that connects to you to the Internet is now a potential substantial replacement…wireless, maybe even private pbx connections, can be treated as covered by CALEA.

“The FCC makes a big deal” out of the few things it rejects, e.g., the FBI’s desire to have the right of approval over any new technology. The FCC says that if you have any doubts, you can go to FCC and they’ll them. So, innovators will do it because they don’t want to find out otherwise after they’ve built it. So, you’ll talk with the FCC and the FBI, and they’ll assume the worst, so you’ll launch anywhere but the US so you can see how it works, get the bugs out, have some money to go back to the FCC to go through the regulatory process. “What this does to innovation in the telecommunications in the market in the US is disastrous.”

[This and John Rogovin’s were excellent presentations, IMO I.e., I understood over 50% of what they said.]

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