The rock star, the Christian Coalition, and NN
Yesterday’s House Judiciary hearing (witness statements and archived video here) had a deeply political angle - what committee should have jurisdiction over network neutrality issues - but also revealed to me that:
We’re seeing the moment when Hollywood, law enforcement, and the network access providers publicly attempt to join hands in favor of monitored/monetized network access.
I loved meeting Damian Kulash and hearing him testify. His opposite number (for purposes of the hearing) was the president of the Songwriters Guild, Rick Carnes. Carnes was there to talk about piracy, p2p file-trading destroying his industry. Here’s the angle, from Carnes’s point of view: isn’t it true mandating neutral internet access won’t allow network access providers to watch for copyrighted files?
And then there was the “but what about pornography” line of questioning. Although the Christian Coalition representative, Michele Combs, was there to testify about the importance of neutral network access for speech of all kinds (and it was great to see the alliance with the ACLU), the direction of questioning seemed to be: isn’t it true that mandating neutral internet access won’t allow network access providers to watch for nasty files of various kinds?
There are many responses to both of these points.
Copyright infringement is a judgment call, not something that can be figured out automatically at the network level;
screening for infringing files will make the last mile grind to a halt;
network access providers will lose their immunity from copyright claims if they search for these files;
given the concentrated market for internet access, the idea of screening for (and filtering out) particular content creates the opportunity for a great deal of anticompetitive mischief;
content-layer applications are a far better place for this kind of screening - they know what artists they have licenses with, and they can actually respond to notices under the DMCA structure.
On the indecency etc. front, same kinds of arguments:
there’s a dramatic risk of overblocking, threatening innocent speech;
it’s impossible to tell in advance which packet bears the “wrong” kind of flesh tones;
screening will cause the last mile to grind to a halt;
network access providers already cooperate with law enforcement;
we should go after behavior, not tech mandates that will burden all uses of the network;
etc.
But it’s a concerted theme. Avoid network neutrality by summoning up all the evils that it will loose upon the world. Never mind that law still applies online, and that the idea of neutral access is not predicated on facilitating unlawful activity; never mind the costs to all users of creating a carefully (and invisibly) filtered access regime; never mind the outright impossibility of the task - just do it.
It seems to me that it is not in the long-run interests of network access providers to be too closely tied to any particular content industry representative, or set of representatives, given the dramatic change in liability risk that such a partnership represents; it also seems to me that it is not in the long-run interests of law enforcement to push users towards a dramatic uptick in the use of encryption technologies; and it seems clear that it is in no one’s interest to establish a kind of private police force in this highly-concentrated market for highspeed internet access. Mischief, unaccountability, arbitrariness, censorship for commercial reasons - why would we want this?
I had my picture taken with the guys from OK Go. It was an interesting hearing. I’m hoping that these various industries discover their differing interests soon.
Meta moment
I did a short segment on NPR’s Bryant Park Project with Rachel Martin this morning - for broadcast tomorrow, Tuesday. The plan had been to talk about the Cuba OFAC story from last week. But when I got there they had switched gears - they really wanted to talk about net neutrality instead.
So we did an interview about everything. We talked about registrars freezing web site registrations at the direction of the Treasury Department, about a judge knocking Wikileaks off the internet, and about network access providers filtering/managing internet access. All in about eight minutes.
What’s the meta story? Well, all three of these vignettes involve gatekeepers of various kinds whose direct or indirect control over private assets within the U.S. gives them the power to affect how we use the internet. The Wikileaks judge understood that he had inadvertently blocked a lot of innocent speech, and so he reversed himself. But OFAC and the network access providers aren’t backing down. Sites/protocols/uses go on lists of various kinds, we sometimes can’t see the lists, we don’t know what the process is for changing the lists or getting off them, and users are stuck - without adequate choices in many case.
When it comes to net neutrality, it seems to me this is a constitutive moment in American communications. When we have created general-purpose communications networks in the past, we have designed liberty into them - think about the post, the telegraph, and the telephone - even though they have often been controlled by private parties. We don’t allow private parties to use their own commercial interests to decide how we’ll use these general-purpose networks. Charging for use is fine, and charging for heavy uses is fine too - but picking and choosing among letters or telegraphs or phone calls based on their content is something we haven’t allowed.
And ISPs shouldn’t want to be in the position of picking and choosing because they’ll lose their conduit protections from liability, be treated as a kind of private police, and set the precedent for being a hammer-for-hire for all kinds of various content-related desires.
Prior restraints
The odd story of the Wikileaks.org injunction is described here by the Berkman Center’s Citizen Media project. We still don’t know exactly why the site was ordered taken down - it seems like a trade secret issue - or why this was done ex parte, or why the court initially ordered wikileaks.org’s registrar/host to “immediately clear and remove all DNS hosting records for the wikileaks.org domain name and prevent the domain name from resolving to the wikileaks.org website or any other website or server other than a blank park page, until further order of this Court.” (That part of the order seems to have been revised - now it’s just a takedown order.) We’d like to know more about this court action.
Speaking of prior restraints, don’t tell EFF that retroactive immunity for the telcos is necessarily constitutional. As Cindy Cohn of EFF told Farber’s IP list, “[t]here are serious due process and separation of powers problems with the bill, which effectively grants the Executive the power to demand that pending court cases come out a particular way that favors the Executive. This is an extraordinary thing to do, especially when the constitutional claims of millions of Americans are at issue.” EFF has a chart of its responses to common arguments in favor of immunity, and has posted a set of documents relevant to the allegations made in its lawsuit.
Filtering holiday
In preparation for the Olympics, China announces that it is thinking about weakening the Great Firewall. And that it may allow access to the BBC.
Meanwhile, the Federal Times reports that our U.S. State Dept. is planning to hand out $15 million to developers to “produce ‘Internet technology programs and protocols’ that enable ‘widespread and secure Internet use’ in countries where the Internet is now heavily censored.” As one of my colleages said today, it’s Voice of America in software form.
But - wait - it’s not all free-flow-bliss out there. There are strong rumors that a concerted effort is underway in the EU to mandate ISP filtering for (at the least) copyright issues and indecent material. (It’s always things that start with “P”: pornography, P2P file trading….) Clean Feed is on the march.
So, what is it, Western World? Are some kinds of filtering fine (like AT&T’s plans) and others labeled “censorship”?
China may be watching for clues. It will undoubtedly start its observation engines again as the air darkens over Beijing in September 2008.
If, indeed, it ever really turns them off.