The Congress shall have the power...

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
U.S. CONST., Art. I, Sec. 8, cl. 7

CALEA is not a case of copyright or patent infringement. However, it does have a significant relation to innovation—or the "Progress of Science and useful Arts," particularly in the "hottest" areas of intellectual property around today. On the other hand, the government has undeniable interests in the protection of the nation and its citizens. It seems, however, that the former is not always considered to be as weighty an issue as the latter. But the very fiber of the nation is at stake. If economic history teaches us anything, it is that the U.S. is the nation innovation built. Deterrents to innovation should be taken very seriously.

Congress seems to have taken the role of innovation very seriously. "It is the policy of the United States ... to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services." 47 U.S.C. § 230(b)(3) (emphasis added). It seems apparent that Congress did not intend for the blocking and screening of offensive material to be subject to law enforcement approval. But it was not to be an issue of mandatory, unbridled orders to the private sector, either. The process of blocking and screening was to be encouraged, but it was to emphasize user control, not censorship. What is the proper balance between prohibiting illegal material (e.g. child pornography) and laws that end up proscribing large quantities of legal (even if offensive) speech? See e.g., the Pennsylvania Internet Child Pornography Act, 18 Pa. Cons. Stat. §§ 7621-7630 and CDT v. Pappert (.pdf)(finding unconstitutional the prior restraints imposed by the act).

Of course ISPs and any others involved in the delivery of internet service should be expected to cooperate with law enforcement officials. But cooperation need not require the blocking of vast swaths of protected free speech just because a small portion of the material sharing the same address is illegal. If the technology is unfeasible, then innovations that make it feasible should be investigated. But why should providers be forced to fundamentally alter the way that they function just because law enforcement cannot otherwise track criminals? Who really bears (or should bear) the burden or enforcement?

Of course, the law enforcement officials are not the "bad guys" beyond the pale of decency in this story. They doing their job and trying to do it vigorously. And we should all want that and applaud them for it. But sometimes the proper boundaries can be passed. The U.S. model is an adversarial one, one where each side is supposed to do the best they can at their assigned task. But for this model to work—and not devolve into a tyrannical regime—we also need the law enforcement adversaries that will stand up for free speech, even in its most extreme forms. That's how we reach the "proper" limits.

Balancing the interests of government monitoring, intervention, and prosecution against free speech values is certainly not easy, but neither is it something new. Two competing, but strong, interests are at stake. To the extent that the FBI and DOJ intend that technology be designed with their interests in mind and, effectively, subject to their approval, it is a very sad day for values of free speech. Innovation is a powerful weapon, one that makes powerful demands of all those that stand against it. To censor innovation, rather than innovate in response, is not acceptable.


For more information see:
FBI/DOJ joint petition (.pdf) (March 2004)
Center for Democracy and Technology's April 2004 comments to the FCC (.pdf)

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