more on FCC "declines" to investigate [notwithstanding laws requiring it to]

[David Farber <dave () farber net>]

Begin forwarded message:

From: Ethan Ackerman <eackerma () u washington edu>
Date: May 24, 2006 10:38:43 AM EDT
To: dave () farber net
Subject: Re: [IP] more on FCC "declines" to investigate  
[notwithstanding laws requiring it to]

Greetings Dave,

The media has caught wind of FCC Commissioner Martin's [[declining to
pursue meaningful oversight/waste commission time - depending on your
opinions]] but this is probably not the end of this particular FCC
mini-drama.
The Chairman's claim that the Commission doesn't have authority "to
compel the production of information relating to" telco violations
fails the smell test as readily as the Supreme Court saying it can't
hear an appeal of a First Amendment case or the SEC saying it can't
review the filings of a publicly traded company.

The FCC has very, VERY broad authority to investigate the financial,
operational, and technical aspects of phone companies under Title II
of the Communications Act - almost every other section empowers the
commission to investigate, or obligates a telco to report to the FCC.

Section 218 even _obligates_ the FCC to investigate these types of  
developments
"The Commission MAY inquire into the management of the business of all
carriers subject to this chapter, and SHALL keep itself informed as to
the manner and method in which the same is conducted..." [emphasis
mine]

So, ironically, the Commission NOT investigating is the only _clear_
violation of the Communications Act we know of so far...


Rep. Markey's request to Chairman Martin asked him to investigate
breaches of section 222 of the Communications Act, not to 'investigate
the NSA.'
(see http://markey.house.gov/docs/telecomm/iss_telecom_ltr060515.pdf )

Chairman (and trained telecom. attorney) Martin's response was roughly
' because there's the NSA somewhere in this, we don't have the
authority.' (see end of letter at
http://markey.house.gov/docs/privacy/iss_telecom_resp060522.pdf )

In contrast, Commissioner (and Ph.D historian, not attorney) Copps
seams to display a much firmer grasp on the FCC's legal authority and
responsibility.  He pointed out that the Communications Act requires
oversight of phone companies when they have allegedly violated the
Communications Act, and requested an investigation.  (see
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-265373A1.pdf )

It seems that such an investigation could be as simple as asking each
telco, under penalty of perjury/its regulatory equivalent, "Did you
turn over records to a 3rd party without court order or statutorily
required certification?" "If so, how many?" There doesn't need to be
an investigation into whether the NSA is doing link analysis-this, or
data-mining-that, OR EVEN IF it was the NSA that the phone companies
turned records over to - just ask the telco if they broke the law.  If
the NSA is so very worried, they've shown themselves wholly able to
assert the 'states secret' privilege in formal proceedings before.

-Ethan


On 5/24/06, David Farber <dave () farber net> wrote:
> http://www.capitolhillblue.com/artman/publish/article_8689.shtml
>
> FCC blocked from investigating NSA spying on Americans
> By JEREMY PELOFSKY
> May 24, 2006, 06:02
> Email this article
>
>
>
> The Federal Communications Commission will not pursue complaints
> about a U.S. spy agency's access to millions of telephone records
> because it cannot obtain classified material, the FCC chairman said
> in a letter released on Tuesday.
>
> Rep. Edward Markey, a Massachusetts Democrat, had asked
> communications regulators to investigate a newspaper report that AT&T
> Inc., Verizon Communications and BellSouth Corp. gave access to and
> turned over call records to help the National Security Agency fight
> terrorists.
> <snip>
>
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