David Carney publishes the Tech Law Journal Daily E-Mail Alert and the Tech Law Journal web site, which cover legislative, legal and regulatory developments affecting the Internet, communications and computing. He can be reached at [email protected].
This article speculates on some of the possibly consequences of the events of September 11 for federal law. Major policy debates over the budget, stem cell research, and the Tauzin Dingell bill, have been pushed to the back burner in Congress. Instead, Congress will pass measures to authorize the use of force, increase defense spending, and increase airport security. However, there may also be some other profound affects on domestic law. This article examines what might be the consequences in the areas of heightened federal law enforcement authority (and the concomitant reduction in privacy), encryption rights, racial profiling, combating cyber terrorism, antitrust enforcement, communications, broadband Internet access, and domestic energy production.
I. Introduction
II. Law Enforcement Authority, Civil Liberties, and Privacy Rights
A. Background
B. Wiretaps
C. Pen Registers and Trap and Trace Devices
D. Carnivore
E. CALEA
F. E-911
G. ConclusionsIII. Encryption Rights
VII. Law Enforcement and National Defense
VIII. Cyber Terrorism
XII. Energy Sources
The week of September 10 through 14 was Congress’ first full week in session following its long August recess. It would have resumed consideration of issues like the budget, the Tauzin Dingell bill, and stem cell research. Now, everything has changed. All of these issues are off the table. The events of September 11 are the focus of attention of the Congress.
Congress is in the process condemning the events of September 11 and passing authorizations for the use of force. The Congress will also take up legislation to increase defense spending, and to provide for greater airport security.
The events of September 11 also affect many areas of legislative activity. One of the most important may be in the area of increasing law enforcement agencies’ powers to enable them to more effective combat terrorism. Whenever Congress addresses such topics, it weighs the competing interests of law enforcement in detecting and prosecuting terrorists against individual rights to privacy, and not to be subject to unreasonable searches and seizures. The events of September 11 have shifted the balance towards law enforcement. This may affect the outcome of legislative battles over tech topics such as electronic surveillance, wiretaps, the Carnivore email surveillance system, and CALEA.
II. Law Enforcement Authority, Civil Liberties, and Privacy Rights
Sen. Ron Wyden (D-OR) has long been advocating legislation to protect online privacy. He has a favorite metaphor. He has said many times that an “Exxon Valdez of privacy” is just waiting to happen. That is, because there are no rules or regulations governing the use of customer data collected by online business, some e-commerce company with vast amounts of personally identifiable data is going to release it to unsavory companies or characters, and millions of consumers will be hurt. He has said that if Congress does not legislate beforehand, it will certainly do so after the Exxon Valdez of privacy hits the rocks.
Sen. Wyden was correct that there was an impending catastrophe that would profoundly affect privacy. He just got the specifics, and the consequences, wrong. Simply put, the crashes of the four jets will cause the Congress, and other governmental entities to restrict, rather than sustain, the current level of privacy in America.
There are two distinct types of privacy rights. First, there are the privacy rights of individual consumers, patients, and web surfers as against the corporations and other entities that collect data about them. Second, there are the rights of individuals as against the government entities that monitor, investigate, and prosecute them. Before September 11, the majority of people advocating privacy rights — people like Sen. Wyden — focused their attention on privacy in the private sector. Those who focused on the government sector — people like Rep. Dick Armey (R-TX), Rep. Bob Barr (R-GA), and Rep. Jerrold Nadler (D-NY) — constituted a smaller contingent.
This has all changed. Privacy in the government arena has been thrust to the forefront of the legislative process. In less than a week, everyone has forgotten the private sector side of the issue. It is going to be long time now before the Congress passes any privacy bill regulating businesses or online commerce. In contrast, Congress has already begun the process of passing legislation with profound impacts on law enforcement authority.
The Senate debated and passed a bill on Thursday, September 13, that demonstrates that there is much less inclination in the Congress now to limit law enforcement authority in order to preserve civil liberties and privacy.
When the bill get to the House, one Congressman to watch will be Rep. Nadler. The World Trade Center is in his district.
The Senate passed a broad array of provisions on September 13, just two days after the World Trade Center attacks. The Senate passed HR 2500, the appropriations bill for Fiscal Year 2002 for the Departments of Commerce, Justice, State, and the Judiciary, and related agencies. It is sometimes called the “CJS bill” for short.
The Senate passed an lengthy amendment (Amendment Number 1562) which has nothing to do with appropriations, but everything to do with increasing law enforcement powers. This is the way the Senate often works. It fights over substantive bills at the committee level, which often never make it to the Senate floor. Then Senators slip in substantive amendments to appropriations bills just prior to final passage.
The bill contains several items that the FBI and other law enforcement authorities wanted for years, but which the Congress has declined to pass, for reasons related to protecting civil liberties and privacy. The bill also contains some new ideas tailored to the current situation.
Perhaps most importantly, it expands wiretap authority. Currently, there is a short list of criminal offenses that can serve as predicate offenses for the issuance of wiretap orders. This amendment would add two new offenses — terrorism and cyber crime.
Only sick individuals would oppose wiretapping of Bin Laden. But, others will be tapped. And these statutes will be invoked to obtain wiretap orders against other and lesser forms of terrorism. Moreover, the U.S. Code, as amended, will not provide extensive guidance as to what constitutes terrorism or cyber crime. Herein lies the diminishment of civil liberties and privacy.
C. Pen Registers and Trap and Trace Devices
Senate Amendment 1562 also expands law enforcement authority with respect to the use of trap and trace devices and pen registers. These are both old fashioned telephone industry concepts. The amendment brings these concepts into the world of Internet communications.
A pen register records the numbers that are dialed or punched into a telephone. The current law covers “wire” communications only. Specifically, a pen register is “a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached …” See, 18 U.S.C. § 3127(3).
Under the amendment just passed by the Senate, the concept of a pen register would be expanded from merely capturing phone numbers, to capturing routing and addressing information in any electronic communications, including Internet communications. Specifically, as amended, the statutory definition of pen register would read, “a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted …”
The amendment also expands the concept of trap and trace. Under current law, this is “a device which captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted.” See, 18 U.S.C. § 3127(4).
The amended language reads, “a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information relevant to identifying the source of a wire or electronic communication”.
This is not just a matter of expanding pen registers and trap and trace from phone to Internet communications. It also expands the scope and quantity of information collected. In the context of telephones, the information obtained is only the phone number, not the content of the phone call. In Internet communications, a significant amount of substantive content is included within “routing, addressing, and signaling” information.
This is all the more significant because the standard for obtaining pen register and trap and trace orders (for phone numbers), as opposed to wiretap orders (for phone conversations), is much lower. The current statute reads, “the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court if the court finds that the attorney for the Government or the State law enforcement or investigative officer has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.” Note the use of the mandatory — shall. Note also the low standard — mere relevance. The ease of obtaining pen register and trap and trace orders is based on the assumption that only phone numbers, rather than the content of conversations, is being obtained. Under the amendment, this low standard will be used to obtain some of the substance of communications.
Note also that the above quoted language states that pen register and trap and trace orders apply “within the jurisdiction of the court”. The amendment would also change this. It would add this: “The order shall, upon service of the order, apply to any entity providing wire or electronic communication service in the United States whose assistance is required to effectuate the order.”
Sen. Orrin Hatch (R-UT), the lead sponsor of the amendment, explained the problem. “Currently, a judge’s order applies only in the jurisdiction where it is issued. Typically, hackers go from computer to computer, leaving a trail that law enforcement has to follow. Investigators must go from jurisdiction to jurisdiction obtaining a trap and trace in every jurisdiction in order to follow a hacker’s trail.”
Nevertheless, Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee, was not impressed. He was the only one to speak directly against the amendment. This lead to rare breach of decorum in the debate between him and the bill’s lead sponsor,
Sen. Leahy said that he did not want just any “deputy sheriff of East Washtub” to be able to get an order that would apply nationwide. Sen. Hatch, was not amused. Wasatch County lies just to the east of Salt Lake City, Sen. Hatch’s home town. He replied: “Local sheriffs cannot apply for trap and trace under these new provisions. Only U.S. attorneys can. I get a little tired of that type of talk. I have heard the suggestion that anybody can go in, and anytime some local sheriff wants to, he can tap a computer. That is unmitigated bull.”
In the end, Sen. Leahy stood alone in opposition. The amendment, and the bill, were approved by the Senate.
Before September 11, most of the provisions contained in Senate Amendment 1562 had little chance of becoming law. But, everything has changed.
And, so much for the power of committee chairmen to stop or delay bills that fall within the jurisdiction of their committees.
The quick passage of Amendment 1562 by the Senate may also foreshadow future legislative developments.
Carnivore is one name for an e-mail surveillance system operated by the FBI. However, the FBI now would like it to be know as “DCS 1000.” It is deployed at the locations of Internet service providers (ISPs), and scans e-mail. Metaphorically, it is an Internet wiretap system.
Some civil libertarians, and their allies in Congress, have opposed its use, arguing that it violates the Fourth Amendment ban on unreasonable searches and seizures, intrudes on privacy, and is ripe for abuse. The FBI vigorously defends its use.
Prior to September 11, some ISPs were among the leading opponents of Carnivore deployment. But now, everything has changed. Some ISPs are welcoming the FBI into their facilities. Any legislative proposals to ban or restrict the use of Carnivore technology by the FBI would now appear unlikely to move in the Congress.
Congress passed the Communications Assistance for Law Enforcement Act (CALEA) in 1994 to enable law enforcement authorities to maintain their existing wiretap capabilities in new telecommunications devices. The Congress had cell phones in mind. It provides that wireline, cellular, and broadband PCS carriers must make their equipment capable of certain surveillance functions.
The FBI has since sought an implementation of CALEA that expands surveillance capabilities beyond those provided in the statute. The Federal Communications Commission (FCC), which has authority to promulgate regulations implementing the statute, sided with the FBI on most points when it adopted its Third Report and Order [huge WP file]. (See, CC Docket No. 97-213, FCC 99-230.)
Both privacy groups and phone companies challenged the Order by filing a petition for review with the U.S. Court of Appeals for the District of Columbia Circuit. Ted Olson argued their case — and won. The Court issued an opinion in August 2000 overturning parts of the FCC order.
Ted Olson now represents the government as the Solicitor General of the United States. His wife was on the jet that crashed into the Pentagon.
One could speculate that in the post September 11 environment, both FCC Commissioners, and judges of the U.S. Court of Appeals who review their orders, will also now weigh more heavily national security concerns when making judgments on the implementation of the CALEA.
Perhaps it is also worth noting that the Chairman of the FCC, Michael Powell, is an accidental regulator. He started as a carrier army officer, like his father, Colin. He had to settle for law when a serious training accident in Germany forced him to retire early. Early in his tenure as an FCC Commissioner he focused on communications issues affecting defense. He liked to be known as the “Defense Commissioner.”
The FCC also is conducting a proceeding on a similar matter, E-911. At issue is prodding wireless carriers to deploy more quickly call location information capabilities. Call location information is of immense interest to emergency medical care providers, such as ambulances responding to a cell phone calls of automobile accident victims who cannot identify their precise location.
Of course, location information, which is derived from Global Positioning System (GPS) devices in cell phones and other portable devices, has a wide range of law enforcement applications.
The FCC may now be inclined to move more urgently on this matter.
The events of September 11 have also lead many people and groups involved in civil liberties and privacy policy to caution against over reactions that could unnecessarily erode civil liberties and privacy.
“I think it is unwise to assume that Americans should trade freedom to obtain security,” said Marc Rotenberg (Electronic Privacy Information Center) the day after the Senate vote. He said that the United States should focus instead on airline security.
“It looks all too likely that we will have knee jerk reactions that will compromise Fourth Amendment Rights of Americans, and privacy rights of law abiding Americans,” said James Harper (Privacilla.org). “If we loose some Fourth Amendment rights, we will chalk that up as a small victory for the terrorists.”
In the second half of the 1990s there was a major battle in the Congress, and to a lesser extent in the courts, over encryption rights. The FBI, Defense Department, State Department, and intelligence community, and their allies in the Congress, maintained restraints on the export of encryption products. They also sought to impose limits on the use of encryption within the U.S.
The pro encryption crowd in the Congress was led Rep. Bob Goodlatte (R-VA), Rep. Zoe Lofgren (D-CA), Sen. Conrad Burns (R-MT), Sen. Pat Leahy (D-VT), and former Sen. John Ashcroft (R-MO). The anti-encryption bunch included former FBI Director Louis Freeh, former Attorney General Janet Reno, and former Defense Department official John Hamre.
In 1999, with the House on the verge of passing a pro encryption bill, the Clinton administration essentially capitulated on the issue. Reno dissented, but by this point, she was isolated and powerless within the Clinton administration on this issue.
A week ago this was a dead issue. Ashcroft is now Attorney General. John Hamre, once the administration’s lead arm twister on Capitol Hill on encryption, switched sides on this issue when he left the government to join the Center for Strategic and International Studies. Freeh is gone. Janet Reno is considering a run for Governor of Florida.
But, everything has changed. There is once again serious talk on Capitol Hill about imposing stricter controls on encryption export, and restraints on the use of encryption products in the U.S. The talk about mandating backdoors is back.
There may also be a consequence for the Export Administration Act of 2001, sponsored by Sen. Mike Enzi (R-WY). The bill would modernize export control laws. It would ease restraints on most dual use products, such as computers and software, but increase penalties for violations. The Senate Banking Committee passed the bill in March with only one negative vote. The Bush administration endorsed it. The Senate passed it earlier this month, over the opposition of a small group of Senators who assert that it would harm national security. The House passed a much different version just before the August recess.
The events of September 11 greatly strengthen the hand of the national security proponents on this issue.
There are efforts in the Congress (as well as in state legislatures) to ban racial profiling. See, for example, S 989, the End Racial Profiling Act. It defines racial profiling as “the practice of a law enforcement agent relying, to any degree, on race, ethnicity, or national origin in selecting which individuals to subject to routine investigatory activities”. The bill would also provide a private cause of action against any officer who uses a profile, as well as that officer’s supervisors and law enforcement agency. See also, HR 2074.
As the names and pictures of the terrorists of September 11 were released, it became obvious that they all fit a tight profile: young men of middle eastern origin with Islamic names flying on large aircraft. Every law enforcement officer from Logan Airport in Boston, to the deputy sheriff of East Washtub, Utah, is going to employ similar profiles.
Until recently it looked as though some form of anti profiling legislation might be passed. Bills were pending in the Congress. Both Al Gore and George Bush endorsed the concept during the 2000 election campaign. But now, everything has changed. The Congress is not about to pass any legislation that would stand in the way of law enforcement officers stopping further terrorist attacks.
The intelligence entities of the U.S., and particularly the Central Intelligence Agency (CIA), once engaged in a wider range of foreign operations than they do today. Intelligence operations today emphasize the gathering and processing electronic and photographic information by the National Security Agency (NSA) and other entities. There is now little emphasis on human resources, including informants and infiltrators. There is even less on covert operations.
Some of this shift occurred as a result of Congressional hearings during the 1970s on CIA operations. Some conservatives were distraught that CIA efforts to topple Castro had failed. Some liberals were angry that its efforts to depose Allende had succeeded. The CIA had covertly assisted in the Shah’s rise to power in Iran. But then, in the late 1970s, it merely watched as Islamic fundamentalists deposed him.
Everything has changed. Now that Islamic fundamentalist terrorism has struck the U.S., the gloves will come off.
For example, Executive Order 12333 states that “No person employed by or acting on behalf of the United States government shall engage in, or conspire to engage in, assassination.” (See, Section 2.11.) This section may soon be history (as may current CIA Director George Tenet). As several Members of Congress have stated in the last few days, the U.S. will not allow terrorists and their supporters the benefit of the Marquis of Queensbury’s rules.
As another example, the CIA will likely be given freer reign in the hiring of informants. The CIA is currently barred from recruiting as informants people who commit crimes or violate human rights. But, this is the very essence of terrorists. This rule has impaired the CIA’s ability to infiltrate terrorists groups.
The Senate has already acted to change this. HR 2500, as amended by Senate Amendment 1562, provides that “The Director of Central Intelligence shall rescind the provisions of the 1995 Central Intelligence Agency guidelines on recruitment of terrorist informants that relate to the recruitment of persons who have access to intelligence related terrorist plans, intentions and capabilities.” Other changes are likely as well.
VII. Law Enforcement and National Defense
Historically, there has been domestic crime and foreign wars. It has been easy to tell the two apart. The government entities assigned to deal with each have been kept separate and distinct. The FBI fights crime, and the Defense Department stays out of domestic law enforcement.
This is not just an efficient division of responsibilities. It is a fundamental characteristic of open democratic societies. Nations in which armies are involved in law enforcement also tend to be non democratic nations.
The events of September 11 may have several consequences for this dichotomy. First, they blur the line between what is a law enforcement matter, and what is a national defense matter. Second, they create a policy argument for bringing defense entities into operations conducted on American soil.
The Congress has already begun the process of involving defense entities domestically. Four provisions in HR 2500, as amended by Senate Amendment 1562, are noteworthy. Although, each is merely tentative. They state the sense of the Senate, or call for studies. None creates substantive law.
First, the Amendment provides for a study on sharing of criminal wiretap information with the intelligence community.
Second, it provides for a study “of the legal authority of the agencies of the Federal Government, including the Department of Defense, to respond to, and to prevent, preempt, detect, and interdict, catastrophic terrorist attacks.”
Third, it calls for another study on the use of the National Guard to “preemptively disrupt a terrorist attack within the United States involving weapons of mass destruction”.
Finally, it expresses the sense of the Congress that the federal government should “prevent, deter, or disrupt the fundraising activities of international terrorist organizations”.
The perpetrators of the events of September 11 attacked buildings and aircraft, thousands of people, and symbols of American greatness. They did not launch cyber attacks on any critical information infrastructure, such as the computers and networks that are essential to the air traffic control system.
However, the viciousness of the attacks on September 11, and the scope, coordination, and technical training involved, has made key legislators revise upwards their assessment of the likelihood of serious acts of cyber terrorism.
The day after the attacks, while almost all previously scheduled hearings on Capitol Hill were cancelled, there was one notable exception. The Senate Governmental Affairs Committee held a hearing on cyber terror threats to America’s critical information infrastructure. Committee Chairman Sen. Joe Lieberman (D-CT) said that future terrorist attacks will also target critical information infrastructure. The primary witness, Joel Willemssen of the General Accounting Office, testified that “federal computer systems are riddled with weaknesses that continue to put critical operations and assets at risk.” He also said that the risks are “disruption and stoppages of operation”, “inappropriate disclosure of sensitive information”, and that terrorists might “change or modify or destroy data …” He also said that while some private sector industries, such as banking, finance, and electric power are in a good position, the public health sector is vulnerable to cyber attacks.
There are pending legislative proposals to remedy current weaknesses in cyber defenses. They have been languishing. Some of these bills may move now. For example, there is a bill to encourage businesses to share information with each other and with the government, a bill to create a federal Chief Information Officer, and proposals for more funding.
Moreover, the Senate has already passed a bill which addresses cyber terrorism. Senate Amendment 1562 expands wiretap authority, by including cyber crime as one of the predicate offenses for the issuance of a wiretap order. The bill also expands the power of certain Justice Department officials in emergencies to briefly install and use pen registers and trap and trace devices without court orders. The amended definition of emergency includes cyber attacks.
There is also HR 2435, the Cyber Security Information Act, sponsored by Rep. Tom Davis (R-VA) and Rep. Jim Moran (D-VA). They represent tech heavy districts in Northern Virginia. Their bill is intended to encourage companies to collaborate with each other and with the government in redressing cyber vulnerabilities.
First, it would provide that certain records are exempted from disclosure under the Freedom of Information Act (FOIA), and could not be introduced as evidence. It provides: “cyber security information provided by …. to the government shall be exempt from disclosure under the Freedom of Information Act (5 U.S.C. § 552(a)), shall not be disclosed to any third party, and shall not be used by any Federal or State entity, agency, or authority or by any third party in any civil action arising under any Federal or State law.”
Second, it would provide an antitrust exemption. It provides: “the antitrust laws shall not apply to conduct engaged in, including making and implementing an agreement, solely for the purpose of and limited to (1) facilitating the correction or avoidance of a cyber security-related problem; or (2) communication of or disclosing information to help correct or avoid the effects of a cyber security-related program.”
However, the events of September 11 may also have another, and broader, impact upon antitrust matters.
For most of the 20th Century, the Bell System had a telephone monopoly covering local service, long distance service, and equipment manufacturing. Judge Greene and Assistant Attorney General William Baxter broke up the Bell System less than 20 years ago.
Previously, the federal government had supported and encouraged the monopoly. Nowhere was this support stronger than in the defense and intelligence communities. In fact, Ronald Reagan’s Secretary of Defense, Casper Weinberger, brought all the pressure he could bear on the Department of Justice (DOJ) to try to stop the Bell break up. The Bell system had been a trusted and reliable ally of the defense and intelligence communities in World War II and throughout the Cold War. For people like Weinberger, this was no way to treat a partner.
Today, the federal government needs the reliable support of technology companies in preparing for cyber attacks. It needs two things. First, it needs American companies to remain preeminent in information technology. Imagine if the U.S. government had to turn to Russia for software. Second, it needs close cooperation and information from leading companies such as Microsoft, Intel, and Cisco.
Yet, in recent years, the DOJ and the Federal Trade Commission have bludgeoned both Microsoft and Intel with controversial antitrust proceedings. The DOJ has also encouraged foreign governments to do the same. Cisco has to be watching nervously. Microsoft, and perhaps Intel and Cisco, may now trust the federal government with their proprietary information about as much as Republicans trust Hillary Clinton with their FBI files.
What we have here is a failure to communicate.
Antitrust has always been part law and part policy. With the events of September 11, and the reassessment of the risks of cyber terrorism, the federal government now needs much better relations with leading tech companies. This creates a policy argument for easing off on antitrust actions against the companies whose trust and support the government now needs more than ever.
X. Third Generation Wireless Services
This year, the FCC, National Telecommunications and Information Administration (NTIA), federal courts, and now the Congress, have been actively involved in issues pertaining to making spectrum available for use by Third Generation (3G) wireless services. This is just another one of those pressing sets of issues pushed out of the way by the events of September 11.
However, if the Congress or regulatory agencies try to proceed, there is now a new obstacle: the spectrum band heretofore being eyed most seriously for reallocation for 3G purposes is currently used by the Department of Defense (DOD) for, among other things, precision guided munitions, military command and control networks, and the USAF Space Ground Link Subsystem (SGLS) which controls military satellites.
The First Generation (1G) of wireless service was the original analog cell phone service, which of course, use radio spectrum to transfer information. 1G service involved analog signals at fixed frequencies, which was not very efficient. The Second Generation (2G) of wireless service, in use today, involves digital signals and technologies that enable putting more users on the same amount of spectrum. Several technologies enable this, including TDMA (Time Division Multiple Access) and CDMA (Code Division Multiple Access). Third Generation (3G), which is still being developed, will be a digital, packet switched, Internet protocol system. It will carry voice, music and data. It will also further increase the efficiency of use of spectrum, and enable each 3G capable device to have broadband data transfer rates.
The problem is this: the providers of the service will need spectrum allocated for its use. They cannot go out and buy it. There is no market for spectrum. The government owns it all, and licenses it. Almost all spectrum suitable for 3G has been allocated. So, the government has to reallocate spectrum currently used for other purposes, and then re-auction it to 3G service providers.
The FCC (which manages spectrum assigned for commercial use) and the NTIA (which manages spectrum assigned for use by the government) have focused on two spectrum bands. These are the 2500-2690 KHz and 1755-1850 MHz bands.
The incumbent users of these spectrum bands have adamantly opposed reallocation of spectrum that they use. The 2500-2690 MHz band is used by ITFS users, such as schools and churches, and MMDS users, such as Sprint, WorldCom, and Nucentrix. They plead the importance of providing children with an education, and providing communications services to underserved rural areas. The DOD uses the 1755-1850 MH zband, and claims that national security would suffer greatly if it had to give up or share this spectrum.
Before September 11, government agencies and members of Congress had been seriously considering phasing out DOD use of the 1755-1850 MHz band. Even Sen. Ted Stevens (R-AK), a military hawk, has spoken at two hearings about a possible quasi market solution. He has suggested gradually reallocating DOD spectrum from 1755-1850 MHz, and auctioning it to 3G service providers, with the proceeds of the auctions going to the DOD.
The events of September 11 change the decision calculus by greatly strengthening the position of the DOD. The likelihood of a resolution has decreased for the near future.
Some of the hottest issues in the Congress for the last few years have been how to speed the deployment of broadband Internet access services, and how to assure that rural and other underserved areas do get left out of any broadband revolution.
Some bills in the Congress seek to achieve these goals by tinkering with the regulatory environment in which phone, cable, and other companies operate. Some would provide government subsidies for companies deploying broadband services. Still other bills would create loan guarantees. And some bills are being marketed as broadband bills, regardless of their content.
One very controversial bill was likely to have come up for a heated debate, and vote, on the House floor as early as late September — the Tauzin Dingell bill. Now this and all broadband bills are on the back burner.
However, in the longer run, the events September 11 could provide a major new impetus for legislative action to spur rapid and ubiquitous broadband deployment.
The airline industry was hit hard by the hijacking and crashing of four jets. Airlines will resume service, but the costs of flying will increase. New security measures will result in higher ticket prices and longer delays at check in and security check points. There will now also be greater perceived risks of flying. Businesses and individuals will have a motivation to decrease their use of air travel, and increase their use of communications and Internet services. They will want to teleconference more, and transfer data electronically more.
Data was lost as a result of the collapse of the World Trade Center. Businesses will want more remote data backup services.
Finally, with skyscrapers and major landmarks being targeted by hijack terrorists, and major urban areas being targets of chemical and biological terrorism, operating a business out of East Washtub, Utah, looks more attractive than it did before September 11.
But, all of this means that there will be increased use of new and yet to be deployed broadband services. Hence, Congressmen may come under an altogether new sort of pressure for spurring affordable and ubiquitous broadband service.
The events of September 11 may ultimately lead the Congress and federal agencies to revise laws and regulations which affect domestic energy production.
One such issue is the development of oil resources located near Kaktovik on the coastal plain just to the east of Prudhoe Bay in Alaska. There have long been many opponents of this in the environmental movement, and in the Congress.
However, it is important to recall the historical circumstances under which the Purdon Bay oil field came to be developed. Purdon Bay is on land owned by the State of Alaska. Alaska acquired title to the land shortly after it was granted statehood. Some environmentalists have rued that day ever since. However, Kaktovik lies just to the east on federal land. It is not now subject to development.
Alaska and its oil company partners could not develop Purdon Bay because they could not get the oil out to market. Ice prevented the use of oil tankers. The overland route for a pipeline was over the land of the federal government, and Alaska natives, whose aboriginal land claims had never been resolved. Hence, federal legislation had to be passed to enable development of Purdon Bay. But, the votes in the Congress were not there.
Then came the 1973 Yom Kippur War, the oil embargo, and gas lines that stretched for miles. The environmentalists lost out. Although, it was close. The vote in the Senate was 50 to 50. Spiro Agnew broke the tie in favor of development. So would Dick Cheney.
Supporters of development of Alaska oil have been trying for two decades to pass legislation to allow this development. They have failed. The grounding of Sen. Wyden’s Exxon Valdez in Prince William Sound had much to do with this failure.
The election of President Bush and VP Cheney, both of whom are committed supporters of developing Alaska oil, has helped the Kaktovik cause. So, has California’s energy problems.
But now, things may change significantly, just as they did in 1973. The U.S.’s war on terrorism, as well as its support for Israel, put it at odds with many oil producing nations. America is dependent upon foreign oil. America’s reaction to the events of September 11 increase the probability that there will be some interruption or reduction of the flow of oil from certain Islamic countries to the U.S. or other industrialized nations. Even if there is no interruption, the mere recognition of this dependence affects the policy debate. The result may be legislation allowing development of the oil field at Kaktovik.