Digital Telephony and the Net

[Declan McCullagh <declan@eff.org>]

It's late and I'm about to go home, but my search through the text of the
Digital Telephony legislation comes up with the attached definitions the
law uses. 

If I were, say, Jason "The Weasel" Baron (who's my fave DoJ attorney) and
I wanted to really screw over some netizens, I might try to argue that an
ISP should be a "telecommunications carrier." If the FCC bought my
argument and thought that an ISP could in some cases substantially replace
telephone service, then DT would apply to ISPs. 

Then ISPs must -- at the request of "authorized" Feds acting even without
a warrant -- cough up all data coming to and from a person on their system. 

I'm probably wrong here and I hope I am, so I'm copying this to Marc who
can point out the holes in my reasoning. 

-Declan



// declan@eff.org // I do not represent the EFF // declan@well.com //


            (4) The term `electronic messaging services' means
              software-based services that enable the sharing of data, 
              images, sound, writing, or other information among computing
              devices controlled by the senders or recipients of the messages.

   (6) The term `information services'--
                    (A) means the offering of a capability for generating,
                  acquiring, storing, transforming, processing, retrieving,
                  utilizing, or making available information via
                  telecommunications; and
                    (B) includes--
                        (i) a service that permits a customer to retrieve
                      stored information from, or file information for 
                      storage in, information storage facilities;
                        (ii) electronic publishing; and
                        (iii) electronic messaging services; but

    (8) The term `telecommunications carrier'-- [...]
    (ii) a person or entity engaged in providing wire or
                      electronic communication switching or transmission
                      service to the extent that the Commission finds that
                      such service is a replacement for a substantial portion
                      of the local telephone exchange service and that it is
                      in the public interest to deem such a person or entity
                      to be a telecommunications carrier for purposes of this
                      title; but

 (C) does not include--
                        (i) persons or entities insofar as they are engaged 
                      in providing information services; and
                        (ii) any class or category of telecommunications
                      carriers that the Commission exempts by rule after
                      consultation with the Attorney General.

  SEC. 103. ASSISTANCE CAPABILITY REQUIREMENTS.
            (a) Capability Requirements: Except as provided in subsections
          (b), (c), and (d) of this section and sections 108(a)  and 109(b)
          and (d), a telecommunications carrier shall ensure that its
          equipment, facilities, or services that provide a customer or
          subscriber with the ability to originate, terminate, or direct
          communications are capable of--
                (1) expeditiously isolating and enabling the government,
              pursuant to a court order or other lawful authorization, to
              intercept, to the exclusion of any other communications, all
              wire and electronic communications carried by the carrier 
              within a service area to or from equipment, facilities, or
              services of a subscriber of such carrier concurrently with 
              their transmission to or from the subscriber's equipment,
              facility, or service, or at such later time as may be 
              acceptable to the government;