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about 25 percent of the total costs of the modification. House of Representatives, Subcommittee on Crime, Committee on the Judiciary, Testimony on the Implementation of CALEA.
Wednesday, October 23, 1997, Testimony of RoyUSTA (available at link #25).
7. Susan P. Crawford, Symposium, Law and the Information Society, Panel V: Responsibility and Liability on the Internet, Shortness of Vision: Regulatory Ambition in the Digital
Age, 74 Fordham Law Review (2005): 695, 72324.
8. Ibid., 720.
9. Susan P. Crawford, Someone to Watch Over Me: Social Policies for the Internet 37
(Cardozo Law School Legal Studies Research Paper, No. 129, 2006).
10. This is just what happened, Seventh Circuit Court of Appeals Chief Judge Richard
Posner argues, when the Warren Court constitutionalized criminal procedure. To compensate for the increased difficulty in convicting a criminal, Congress radically increased criminal punishments. See Richard A. Posner, The Cost of Rights: Implications for Central and
Eastern Europeand for the United States, Tulsa Law Journal 32 (1996): 1, 79. Professor
William Stuntz has made a similar point. William J. Stuntz, The Uneasy Relationship
Between Criminal Procedure and Criminal Justice, Yale Law Journal 107 (1997): 1, 4. The
Constitution, in this story, acted as an exogenous constraint to which Congress could adjust.
If the protections of the Constitution increased, then Congress could compensate by increasing punishments.
11. Initially, the CALEA requirements extended to facilities based VOIP services only,
though the push more recently is to extend it to all VOIP services. See Daniel J. Solove, Marc
Rotenberg, and Paul M. Schwartz, Information Privacy Law, 2nd edition (New York: Aspen
Publishers, 2006), they summarize the VOIP situation on pp. 28788: Voice over Internet
Protocol (VoIP).
12. See Federal Communications Commission, Further Notice of Proposed Rulemaking,
Released November, 5 1998, at p. 25 (In the matter of: Communications Assistance for Law
Enforcement Act) (J-STD-025 includes a location parameter that would identify the location
of a subjects mobile terminal whenever this information is reasonably available at the intercept access point and its delivery to law enforcement is legally authorized. Location information
would be available to the LEA irrespective of whether a call content channel or a call data
channel was employed.). The FBIs desire to gather this information was challenged by civil
liberties groups and industry associations. See United States Telecom Association, et al. v. FCC,
227 F.3d 450 (D.C. Cir. 2000). The Court permitted the cell tower information to be revealed,
but only with a more substantial burden placed on the government.
13. See Center for Democracy and Technology, FBI Seeks to Impose Surveillance Mandates on Telephone System; Balanced Objectives of 1994 Law Frustrated: Status Report,
March 4, 1999, available at link #26.
14. Declan McCullagh, ISP Snooping Gaining Support, CNET News, Apr. 14, 2006,
available at link #27. On March 15, 2006, the European Parliament passed a directive concerning the obligations of publicly available communications services with respect to the
retention of data. See Eur. Parl. Doc. (COD/2005/0182). Members of Congress have been
mulling over similar legislation. See Anne Broache, U.S. attorney general calls for reasonable data retention, CNET News, Apr. 20, 2006, available at link #28.
15. Directive on the Retention of Data Generated or Processed in Connection with the
Provision of Publicly Available electronic Communications Services or of Public Communications Networks and Amending Directive 2002/58/EC, available at link #29.
16. Declan McCullagh, Bill Would Force Websites to Delete Personal Info, CNET
News, Feb. 8, 2006, available at link #30.
17. For a good discussion of the Clipper controversy, see Laura J. Gurak, Persuasion
and Privacy in Cyberspace: The Online Protests over Lotus Marketplace and the Clipper Chip