Matthew Berry Joins FCC

June 22, 2005. Matthew Berry, one of the Department of Justice's (DOJ) leading authorities and advocates on law enforcement surveillance and seizure of electronic communications and records of service providers, will join the Federal Communications Commission (FCC) as acting Deputy General Counsel. Although, he has also held other positions, and worked on other issues, including First Amendment, school choice and vouchers, affirmative action, and others. And, the FCC has not stated what matters he will handle.

He is currently Counselor to the Assistant Attorney General in charge of the DOJ's Office of Legal Policy (OLP). (He starts at the FCC on Monday, June 27.) He previously worked as an attorney-adviser in the DOJ's Office of Legal Counsel (OLC).

He has recently been working at the DOJ, and with the Congress, on issues related to government investigations that involve surveillance in the context of electronic communications, especially the sixteen sections of the USA PATRIOT Act that are scheduled to sunset at the end of 2005. However, he has not worked on CALEA related issues.

He testified before the House Judiciary Committee's (HJC) Subcommittee on Crime on May 26, 2005. See, prepared testimony [PDF]. He has also accompanied senior DOJ officials on their trips to Capitol Hill. He has sat immediately behind other DOJ witnesses at other recent hearings related to extension of the expiring provisions of the PATRIOT Act.

Berry also worked as a law clerk for U.S. Supreme Court Justice Clarence Thomas and for U.S. Court of Appeals (DCCir) Judge Laurence Silberman. Judge Silberman has been a member of the Foreign Intelligence Surveillance Court of Review (FISCOR).

The FCC release [PDF] announcing his appointment does not state what Berry's job responsibilities or areas of focus will be.

The DOJ has filed numerous comments in various FCC rulemaking proceedings regarding imposing requirements upon communications and internet services providers. The Federal Bureau of Investigation (FBI) and other components of the DOJ want to be able to broadly and easily intercept and access communications that involve new information technologies.

For example, pursuant to a petition from the DOJ, the FCC opened a proceeding regarding the CALEA. On August 9, 2004, the FCC issued a Notice of Proposed Rulemaking and Declaratory Ruling (NPRM & DR) [100 pages in PDF] regarding imposing Communications Assistance for Law Enforcement Act (CALEA) like obligations upon broadband internet access services and voice over internet protocol (VOIP). See, story titled "Summary of the FCC's CALEA NPRM" in TLJ Daily E-Mail Alert No. 960, August 17, 2004. This NPRM is FCC 04-187 in ET Docket No. 04-295 and RM-10865.

The CALEA requires that telecommunications carriers "shall ensure that its equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications are capable of expeditiously isolating and enabling the government ... intercept, to the exclusion of any other communications, all wire and electronic communications carried by the carrier ..." That is, the CALEA provides that telecommunications carriers must design their equipment and networks to facilitate lawfully conducted wiretaps and other intercepts. Statutes other than the CALEA address what intercepts are lawful. The DOJ requests that the FCC, in effect, expand the scope of the CALEA to also cover broadband service providers, voice over internet protocol (VOIP) service providers, and others.

The DOJ has not been able to obtain from the Congress an amendment to the CALEA. It has turned to the FCC to obtain by rulemaking what it has not obtained by legislation. The FCC's statutory authority for providing the rules sought by the DOJ is questionable. Hence, if the FCC determines that it will write rules imposing CALEA like obligations on broadband service providers, and voice over internet protocol (VOIP) service providers, then it will need of someone with the background and expertise of Matthew Berry, not only to write new rules, but also to do so in a manner that might survive judicial review. And then, the FCC may need to actually defend those rules in the courts.

See also, story titled "Rep. Pickering Suggests Relationship Between the DOJ's Brand X Cert Petition and the FCC's CALEA NPRM" in TLJ Daily E-Mail Alert No. 974, September 10, 2004.

But then, the FCC has not stated that Berry will be involved in the CALEA proceeding. Moreover, Berry's background is far broader than electronic surveillance law.

He worked for the Institute for Justice (IJ) before clerking for Justice Thomas. The IJ is a policy oriented litigation group based in Washington DC that advocates individual liberty, limited government, and free markets. In May, the IJ won at the Supreme Court its constitutional challenge to state laws that burden internet wine sales. See, May 16, 2005 opinion [73 pages in PDF] in Granholm v. Heald and Swedenburg v. Kelly. However, the IJ's Chip Mellor told TLJ that Berry did not work on that case.

However, Berry played a minor role in the IJ's challenge to a protectionist state statute in Craigmiles v. Giles. See, opinion of the U.S. Court of Appeals (6thCir), and story titled "6th Circuit Buries Protectionist Statute in Tennessee Casket Case" in TLJ Daily E-Mail Alert No. 563, December 9, 2002. Swedenburg was a commerce clause case. Craigmiles was a due process and equal protection case. However, both cases set precedents that businesses involved in e-commerce might cite in challenges to state statutes or regulatory regimes that discriminate against e-commerce.

Berry was also involved in the IJ's opposition to the FCC's racial hiring goals for radio and TV licensees. And, he wrote an opinion piece for the July 9, 1999 issue of the National Review on the FCC's affirmative action rules titled "Race Rules the Air -- FCC's affirmative-action regulations".

Berry has also taught First Amendment and election law at William & Mary. See also, Department of State biography [PDF].