Navigating Communications Regulation in the Wake of 9/11
Gorelick, Jamie S., Harwood, John H., II, Zachary, Heather, Federal Communications Law Journal
I. THE GOVERNMENT'S ENHANCED SURVEILLANCE AUTHORITY A. Changes to the Surveillance Statutes 1. Application to New Providers 2. New Classes of Surveillance Targets and Increased Access to Information 3. Lower Thresholds for Authorization 4. Expanded Voluntary Disclosure B. Effects on Communications Providers 1. Practical Consequences of the Government's Enhanced Surveillance Powers 2. Considerations When Responding to Government Surveillance Requests 3. Voluntary Disclosures II. COMMUNICATIONS ASSISTANCE FOR LAW ENFORCEMENT ACT A. Obligations under CALEA B. CALEA Issues Arising after 9/11 1. Expansion of CALEA to New Services 2. New Standards for Broadband Technologies 3. Deadline for Compliance 4. Defining the Meaning of "Call-Identifying Information". 5. Who Bears the Burden of Paying for CALEA Compliance? III. CRITICAL INFRASTRUCTURE INFORMATION A. Critical Infrastructure Initiatives B. Factors to Consider When Disclosing Information IV. APPROVAL OF FOREIGN INVESTMENTS IN U.S. COMMUNICATIONS COMPANIES A. CFIUS Review Process B. FCC Approval of License Transfers C. CFIUS and FCC Approval after 9/11 D. Considerations When Seeking Approval V. ECONOMIC SANCTIONS AND EXPORT CONTROLS A. Taxonomy of Export Control Rules B. The Evolution of Economic Sanctions and Export Control Rules after 9/11 C. Ways To Minimize Potential Liability VI. INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004 VII. CONCLUSION
In no industry has the impact of the events of September 11, 2001 ("9/11") been felt more strongly than in the communications industry. After 9/11, as the American people demanded a greater sense of security, Congress and the executive branch agencies reacted with new laws, new regulations, and new practices designed to protect our nation's critical communications infrastructure and enhance the ability of law enforcement and intelligence agencies to investigate those who would do us harm.
The U.S. communications industry has long been a partner of the government in its efforts to carry out appropriate governmental functions, so long as communications providers could do so consistent with their responsibilities to customers and to shareholders. That partnership, based upon rules developed over decades, has been strained by the vast changes since 9/11. In the few years since the attacks of that day, the industry has had to digest innumerable new and untested obligations. At the same time, the government has struggled to develop procedures for addressing the legitimate privacy and other concerns implicated by its new powers. The reach of these changes--from new authorities to demand customer information, to more stringent scrutiny of proposed mergers--has affected nearly every aspect of a communications provider' s daily work. The review that follows attempts to look across the regulatory environment at the scope of these changes to identify the issues that have arisen for both the government and industry participants.
I. THE GOVERNMENT' S ENHANCED SURVEILLANCE AUTHORITY
Through the Patriot Act (1) and other post-9/11 legislation, Congress substantially expanded the government's powers to conduct electronic surveillance and obtain information about users of communications services. All providers of communications services are receiving requests for assistance, including demands for information about their customers, that are far greater in number and scope than in the past. These changes present burdens as well as questions about the standards that law enforcement agencies must meet in order to demand assistance or information, and about the scope of the information that law enforcement may obtain. …