I may be old-fashioned, and I may be prone to overreacting where it comes to things like free speech and the FCC. My numerous posts about Howard Stern are a good example; I tend towards an absolutist, untrammeled view of free speech.

BUT....

I think that the ability of citizens to freely communicate is the essence of free speech. The Internet, with all its problems, foibles, spam, viruses, is the pinnacle of human communication right now. More than simply free speech, it is no understatement to call it the highest and best use of free human communication in the history of man.

Thus, I feel personally threatened by developments like this:

SAN JOSE, Calif. - Before 8x8 Inc. launched an Internet phone service in late 2002, it drafted a business plan, set up its equipment, posted a Web site, and began taking orders from customers. As with most online ventures, U.S. government approval was not needed.

That would change if the Department of Justice succeeds in persuading federal regulators to require new online communications services - such as Internet calling - to comply with wiretapping laws.

Critics, including some online businesses that are working with authorities to make their services wiretap-capable, say the Justice Department proposal is not just unprecedented and overzealous, it is also dangerously impractical.

It would chill innovation, they say, invade privacy, and drive businesses out of the United States.

"No one in the Internet world is going to support this," said Bryan Martin, chief executive officer of 8x8, which sells the Packet8 phone service. "It's counter to everything we've done to date in terms of building the Internet as a free, anonymous and creative place."

The Justice Department, the FBI and the Drug Enforcement Administration are seeking what they call a clarification to a wiretap law called the Communications Assistance to Law Enforcement Act.

As the article states, law enforcement wants more than what they got in 1994:

The Justice Department says that, as the nature of telecommunications changes, [CALEA] is simply not working.

Without citing examples, the agency's lawyers say some providers of new communications services are not complying and, as a result, surveillance targets are being lost and investigations hindered.

"These problems are real, not hypothetical, and their impact on the ability of... law enforcement to protect the public is growing with each passing day," according to a petition sent to the Federal Communications Commission recently signed by Deputy Assistant Attorney General John G. Malcolm and colleagues from the FBI and the DEA.

It’s complicated but understanding packet mode switching is the key to understanding the problem – which goes to the nature and heart of the Internet.

If you don’t feel like reading all 83 pages, the Center for Democracy and Technology has an excellent position paper here, which explains why the proposal will harm the country by shackling Internet development and interfering with user privacy.

I hope I am not overreacting, but I think this may be the biggest threat to the Internet so far. Because the regulation of packet mode switching is not possible without a wholesale rewriting of the very structure of the Internet.

Such a drastic and draconian remedy, with the direst possible consequences to free speech and continued economic health of this country, should not, in my opinion be something that should be accomplished by a preemptive bureaucratic surgical strike -- with the following result:

the architecture of the Internet will depend on the permission of the F.B.I.

I don't think so.

I think that even if Congress were to pass a new CALEA law, there'd be plenty of debate, and many would argue that it would be unduly burdensome, a prior restraint of free speech, and a lot of other things. It might be held unconstitutional, as was the Communications Decency Act.

But at least in the case of the CDA, Congress had to pass the damned thing. This looks more like a sneaky end-run around the legislative and judicial process to me.

And the consequences are far greater. Back to my local newspaper:

....[The petition] argues, in effect, for establishing a government approval process that would be required before any new communications services launch.

"If the FBI had this power all along, would we even have the Internet today?" said Lee Tien, senior staff lawyer at the Electronic Frontier Foundation.

[C]ompanies outside the United States would not have to cooperate.

He mentioned Skype, a peer-to-peer-based telephony service with offices in Estonia and Sweden. Unlike major U.S. providers, Skype scrambles conversations, making it nearly impossible to decipher conversations quickly. Skype spokeswoman Kat James, reached via e-mail, declined to comment.

Justice Department officials declined to comment beyond the filing, which requested and appears to have received expedited review by the FCC.

Here's what the foreign companies are already doing:

Skype, built by the same people who brought us Kazaa, is a totally distributed peer-to-peer network, with no centralized routing computers. (That's possible in part because Skype calls can only be sent and received by computers—you can't call a friend with an analog phone.) As a result, the company's network looks more like a tangled spider web, and the packets that make up your voice in a Skype call are sent through myriad routes to their destination. Part of the brilliance of the Skype software is that it has learned to use desktop PCs as "supernodes," each sharing some of the load needed to route Skype calls quickly to their destination. From the caller's perspective, this is all invisible: The call just works.

Since it's exceedingly difficult to follow the path that a Skype call makes through the network, law enforcement agents would be hard-pressed to figure out where to place a tap. But even if they could, the company has built in such strong encryption that it's all but mathematically impossible with today's best computer technology to decode the scrambled bits into a conversation. Here's how Skype explained it: "Skype uses AES (Advanced Encryption Standard)—also known as Rijndel—which is also used by U.S. government organizations to protect sensitive information. Skype uses 256-bit encryption, which has a total of 1.1 x 1077 possible keys, in order to actively encrypt the data in each Skype call or instant message." The point of all this mumbo-jumbo is that Skype uses an encryption algorithm* known as 256-bit AES. The National Institute of Science and Technology states that it would take a computer using present-day technology "approximately 149 thousand-billion (149 trillion) years to crack a 128-bit AES key." And that's for the 128-bit version; Skype uses the more "secure" 256-bit standard. Since computers have a way of quickly getting more powerful, the institute forecasts that "AES has the potential to remain secure well beyond twenty years."

Moreover, Skype says, the company does not keep the encryption "keys" that are used to encode each Skype transmission—each one is generated and then discarded by the computer that initiates the call. So government agents couldn't force Skype to turn over the keys needed to decrypt a call either.

Last Thursday the FCC held an open hearing on the future of VoIP telecommunications. In a 4-1 decision, FCC commissioners, supported by Chairman Michael Powell, voted that a VoIP provider called Free World Dialup should not be subject to the same regulations as traditional phone companies—including the particulars of CALEA compliance. Instead, the FCC decided to put off the issue, stating that it would initiate a proceeding "to address the technical issues associated with law-enforcement access to Internet-enabled service" and "identify the wiretapping capabilities required." One commissioner, Michael J. Copps strongly dissented, calling the postponement "reckless."

But even if the FCC had ruled differently on Thursday, mandating specific rules for Internet phone calls and CALEA compliance, it couldn't have been the definitive word on the subject.

Last night I wrote a very emotional and long-winded post about this thing, and I was so upset I didn't post the draft. I am glad I didn't, because this kind of thing requires much thought and reflection, and by a lot more people than the FBI and the FCC. (Or a few upset bloggers like me.....)

Freedom is too important to be left up to the whims of a few bureaucrats. Free communication is increasingly being seen as a "loophole."

Yes, free speech. And the FCC. It isn't just whether Howard Stern gets to talk on the radio. It's anyone with a computer.

I am reminded of the Clipper Chip showdown, when the government wanted every computer owner who wanted to use encryption to be forced to provide a "back door" to facilitate government snooping.

It's one thing if the government has evidence of crime and obtains a warrant. They can then search, and in some cases they might have to work a little harder than in others. But what they want here is to force everyone to make their search as easy as flicking a switch. Should the government be able to prohibit locks on doors which might make it tougher for their agents to break in? Or prohibit flashpaper which self-destructs before police could seize it and read it? Require sewer traps on all plumbing to prevent immediate flushing in the case of drug raids? Force firearms manufacturers to build in mechanisms to render all firearms unfireable if the government suddenly didn't want people to use them? What's the difference in requiring citizens to make their speech freely monitorable? I can't think of a more clear prior restraint of citizens' free speech rights, because the Internet is nothing more than a vast communications network. If you cannot communicate any way you please, then speech is no longer free.

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NOTE: For all who are interested, I have many more links on this and related matters, and in the interest of brevity I'll just list them.