Digital telephone networks work in the same way as the Net. Packets of information are spewed across the system. As with the Internet, nothing ensures that they will travel in the same way, or along the same path. They take the most efficient path, which depends on the demand at any one time.

But this creates the problem that the Communications Assistance for Law Enforcement Act of 1994 (CALEA) was designed to solve.¹ As telephone networks have moved from analog to digital, and as switching technologies have moved from central switching to distributed, this change (in the code regulating networks) has had an important consequence for law enforcement. Because there is no longer a predictable path through which a telephone call will pass, it is no longer an easy matter to tap a phone. Whereas tapping telephones was once relatively simple, it is now quite difficult.

This is the case at least with one version of the architecture of a digitally switched telephone network. Other versions would be less difficult to tap. The question that regulators faced was which version the telephone network should adopt. And the difference between versions is just a choice of code. Some codes cost more than others, and some codes protect privacy better than others. So the choice among codes becomes a choice among values. Congress asked whether this choice should be solely private (made by telephone engineers) or partially public (influenced by Congress). It chose the latter.

Of course, regulating the network code is not the only means of regulation that Congress had. Congress could have compensated for any loss in crime prevention resulting from the change in the network code by changing the punishments. If a change in network architecture made it more difficult to catch criminals, Congress could simply increase the threatened punishment or devote more resources to investigation.

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.² Professor William Stuntz has made a similar point.³ 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.

When the constraint is imposed by code, however, Congress has a more direct way to respond: it can legislate to change the code. Congress can require that telephone companies adopt a code architecture that makes the network wiretap-accessible.

This is just what CALEA did. No doubt CALEA’s ultimate aim in requiring this architecture is to reduce crime, but it pursues this aim indirectly, by modifying the code to constrain individuals who might want to engage in crime. Because the government can once again tap when it has authority to tap, digital networks are no longer as helpful for criminals. Hence, the payoff from crime is reduced.

This is law regulating code. Its indirect effect is to improve law enforcement, but it does so by modifying code-based constraints on law enforcement. It selects an architecture that distributes the burdens of code in a collectively valued way.⁴

Regulation like this works because telephone companies are few. It is relatively easy for the government to verify that the telephone company is complying with its rules; it would be hard to establish a rogue telephone company (outside the context of Internet telephony at least). Thus, indirect regulation depends on there being a useful target for regulation. But if there is such a target, and that target can control the code of the network, then the government can regulate the code.

Telephones: Part 2

Footnotes

¹ Communications Assistance for Law Enforcement Act, Public Law 103–414, 108 Stat 4279, 47 USC 1001 et seq., and in scattered sections of 18 USC. Edit Delete

² See Richard A. Posner, “The Cost of Rights: Implications for Central and Eastern Europe—and for the United States,” Tulsa Law Journal 32 (1996): 1, 7–9; cf. William J. Stuntz, “The Uneasy Relationship Between Criminal Procedure and Criminal Justice,” Yale Law Journal 107 (1997): 1, 4. Edit Delete

³ “Without such limits, the government’s natural incentive is to evade or exploit the procedural civil-criminal line by changing the substantive civil-criminal line”; Stuntz’s point, made earlier, is about overcriminalization, not increased punishments; see William J. Stuntz, “Substance, Process, and the Civil-Criminal Line,” Journal of Contemporary Legal Issues 7 (1996): 1. Edit Delete

⁴ From an economic perspective, this kind of regulation makes sense if it is the cheapest means to a social end. Obviously, if the government simply mandated this change in architecture, it would be inexpensive for the government. What is interesting about the act is its mandate that the government pay for the change in architecture. The government is thus internalizing the costs of change, and we might think about this as a useful technique to ensure that social value is increased by this type of regulatory technique. Put another way: the government is “taking” the regulatory power of the telephone network’s code, and as is generally true with takings, it might make sense to require that this taking be funded by the government. Edit Delete