All posts in internet policy

Weird boxes

By On April 7, 2008 In communications policy, fcc, internet policy With No Comments Permanent Link to Weird boxesPermalink

With the help of one of my colleagues, I’ve been going through the history of the Computer Inquiries and all of the regulatory muttering that goes into the “information services”/”telecommunications services” dichotomy.

What a strange story of subversion.

We started off, back in the 60s, with a real fear of dominant telephone companies manuvering/leveraging their way into data processing businesses.  So we (basically) cordoned off data processing as a separate business and kept the telcos out.

Then, about 20 years later, the telcos pointed out that they needed to use computers to run their managed networks, and so we let them into the (unregulated) data processing business on the condition that they operate these businesses using separate subsidiaries – at about the same time, we set up a distinction between “basic” transmission services and “enhanced” everything else, and solemnly declared that everything was either one or the other.  (That same distinction gets enshrined in the Communications Act as the “information”/”telecommunications” dichotomy.)

Then, about 20 years after that, we decided that internet access was an “information” service and so not covered by any nondiscrimination obligations.

What?

The entire early history of this basic/enhanced distinction was based on the premise that of course there would be common carriage transmission services – they’d always be around – and all we were doing was making sure that those carriers wouldn’t be able to leverage their position in society (and their market power!) into new markets.

Now we’ve got carriers with enormous market power, none of which provides naked internet access.  They’re all selling bundles of services. So competition for this access is mild at best – no one can compare prices and speeds across varying bundles.  The telcos are getting rid of copper.  There’s no regime of common carriage.  We have no nondiscrimination rules for any form of internet access at this point.

We took a distinction designed to retain the key role of common carriage and subverted it – all carriage is now proprietary and discretionary, because everything has been jammed into the “information service” box.  That box was created to shield a new industry from the depredations of an older one.  Now the older one has managed to get into the box itself!

The “data processing”/”new market” idea is completely lost.  The definitions in the 1996 Act of “information services” etc.  are now construed with care as magical/determinative language, with zero context or history.

It would be good to start over.

Freedom to Connect — remarks today.

By On March 31, 2008 In fcc, internet policy, music, one web day With 3 Comments Permanent Link to Freedom to Connect — remarks today.Permalink

Many thanks to David Isenberg for inviting me to speak today.  Here is a copy of my notes for today’s talk.

Life is short, so I have put on the screen an image of a clock whose hands are close to midnight.

It’s always good to have a sense of urgency, both in movies and in talks like this one.  And to face the big questions.

Here’s one:  What makes a life significant?  There’s an essay by William James with this title that I look back to.  James says that some inner ideal is necessary – and that the ideal should be a product of the intellect somehow, and be the subject of conscious reflection, and be novel rather than everyday.

An ideal by itself doesn’t make a life significant. It has to be joined with active will – courage – endurance.

These kinds of ideals, and that kind of will, are present in each of us, and in the people we deal with (no matter what company they work for).  And so it is never a good idea to have disdain for the person you meet based on his/her affiliation; that person probably has ideals of his/her own, and a significant life.

Here’s another image of that clock whose hands are close to midnight.  My father’s life is slowly drawing to a close, not this month, not next month, but someday.  When I visit we listen to music together – Mahler’s 10th symphony, or Beethoven piano sonatas, or Bach organ pieces.  He is a composer, and for him the ideal is music – pure human expression.

So I’d like to try to draw together (1) music as an ideal and (2) the great subjects of this conference, while making my short talk as human as possible.  There is nothing more human than music; every culture has it.

The key questions on which people here often focus are prompted by the fact that access to the logical architecture that is the internet is now provided in this country by very large companies that we broadly call “network operators.”
It’s well known that there is inadequate competition for network access, but it’s also pretty clear that there is no single provider of these services in the U.S.

Instead, we have a condition of oligopoly.  This means that there are few sellers of this access, and all of them act while considering the profits of their industry as a whole.  Any one firm may cut its prices slightly, and all the other firms will likely follow, but we will never see real price competition, or price wars, because that would destroy this industry.

There are two unspoken conventions that exist:  never use price as a weapon, and ensure that there are significant barriers to entry for new competitors.  So the prices they charge don’t reflect the ebb and flow of user demand.  Also, the access products of these oligopolists are not completely substitutable – their bundles are not exactly alike.  Nonetheless, even oligopolists want to extend their market share, and so we see a great deal of emphasis on persuasion and advertising to make users choose their product.

These actors have enormous market power, different in degree only from that of a true monopolist.  It is the same kind of power.

What do we do about this?  Well, an antitrust remedy probably would not work; we would be indicting the entire fabric of the U.S. economy, which relies on many sets of oligopolistic players.  And these particular network operators are not colluding in classic antitrust fashion; instead, they are merely acting with the interests of the entire industry in mind.  Their prices are different enough to withstand antitrust scrutiny; they adhere to the letter of the law.

So what other actions could we take?  Perhaps we have been too stuck on the competitive model.  We have been too convinced that other companies will constrain these network operators to act in socially appropriate ways.

We need to think differently, and this is where both music and John Kenneth Galbraith come in.

He pointed out that although in the competitive world we think that other lateral competitors will ensure that action of market-dominant actors will ensure that behavior is socially desirable, instead in this oligopolist world restraint on private power comes from the opposite side of the market.  From retailers of the “product” (here, internet access is the “product,” so retailers are ISPs) or consumers or users of that product.  His name for this constraining power was “countervailing power.”

So let’s explore countervailing power.  Could it come from retailers?

No, not really.  In the network operator’s world, they are sufficiently vertically integrated, and have been sufficiently assisted by regulation in this vertical integration, that the retail level of ISP no longer exists.

So where should such countervailing power come from to protect all of us from oligopolist providers?

Whatever direction we end up going, be it structural separation or a nondiscrimination rule enshrined in a statute, we will need the countervailing power of users/consumers.

User power needs to be organized in response to the network operators’ power.  It needs to be aggregated and made visible.  Without it, we’ll have no votes, no policy changes, and the oligopolists will be able to continue to act with unfettered discretion.

We can be as smart as we want to be, but without user power we will have nothing.

How do we gather together this user power?  We need to have users tell their own stories  — not about technology, not about gadgets, but about how their own ideals have been joined to action (facilitated, made possible) by access to the internet.  Each of us has these ideals.  Our challenge is to show the world how access to the internet has made significant lives even more significant.

And here is the music tie-in – Galbraith, our friend with the countervailing power, always led the singing on New Year’s Eve.

Again, life is short.  And because it is, if I get hit by a bus tomorrow I want to have asked you to do some local act on OneWebDay.  OWD came out of a meeting much like this one.  It came from Isenberg, Weinberger, and Searls as well as me.  We’re now in the third year of OWD.  It’s out of character for me to be working on this.  It’s a simple idea, a soft idea, an idea that takes a lot of sales – and I am terrible at sales.  I’m not naturally suited to leading a movement, and I am unsure of everything except the idea that people are basically good.  Which is why I need your help.

The idea behind OneWebDay is that it is an Earth Day for the internet.  We are trying to create a global constituency that cares about the future of the internet. We’re emphasizing the positive impact of the internet on human lives, and reflecting on the threats to the internet around the world (censorship, controllers of different kinds) and what we can do about them.  It is a day for local concerns to be paramount, but there are events around the world and online.

Each talk can have only one idea in it, and here is the point of this talk.  We need to create countervailing power, and that power will come through users. OneWebDay gives us a chance to build the countervailing force that is needed.  We are lucky to have our work and our lives so intertwined; and in our short lives, there is a great debate about the future of the internet going on.  The key source of countervailing power that has not yet been called on yet – called to itself – is a kind of human music.  I am asking you to assist in drawing out those stories.

Needed: Votes

By On March 27, 2008 In fcc, internet policy With 2 Comments Permanent Link to Needed: VotesPermalink

I’m at the Tech Policy Summit. There was a particularly good panel yesterday that included Tod Cohen and Ken Kay talking about what it takes to do effective policy work. Tod’s quite blunt: “Do you vote?” That’s the question he asks people who want to do policy work with Ebay. You have to love politics, he says, to be in this business. It’s all about incremental advances and relationship-building.

Without votes, nothing happens. Just being smart or persistent won’t make any difference.

It’s sobering. Who has votes for an open internet?

I certainly believe in my side of the argument, and I even think that we’ll have all kinds of economic data that shows that having private gatekeepers with power over a general-purpose network won’t be good for the rest of us. But sometimes I feel like I’m part of the Folk Song Army. Do you remember that Tom Lehrer song?

Here it is:

We are the Folk Song Army
Everyone of us … *cares*
We all hate poverty, war and injustice
Unlike the rest of you squares

/ D – G – / A7 – D – / B7 – Em – / D A7 D A7 /

. . .

If you feel dissatisfaction
Strum your frustrations away
Some people may prefer action
But give me a folk song any old day

/ F#m – C#m – / / G – D – / Em – F#7 – /

….

Remember the war against Franco
That’s the kind where each of us belongs
Though he may have won all the battles
We had all the good *songs*

/ C# – D – / – - C# – / :

So join in the Folk Song Army
Guitars are the weapons we bring
To the fight against poverty, war, and injustice
Ready, aim, sing!

To avoid being a kind of Folk Song Army, we need leadership, votes, and constituents telling stories.  FreePress, PublicKnowledge, and SaveTheInternet work at this very hard.

Google and the white spaces

By On March 24, 2008 In communications policy, internet policy, white spaces With 2 Comments Permanent Link to Google and the white spacesPermalink

The white spaces proceeding is the next big opportunity for experiments in alternative ways of providing wireless highspeed internet access. I’ve written about this here, here, here, and here.

When the DTV transition happens in Feb. 2009, channels 2 through 51 will remain allocated for television transmission.  Few of the nation’s television markets actually use 49 channels.  Indeed, most use less than half of that number.   The “white spaces” are these unused television channels, which amount to approximately 300 MHz of frequencies. According to Blair Levin, “[e]stimates vary, but most of the population (between 73% and 97%) lives in areas with access to 24 MHz or more of white space. Rural areas in particular, have a great deal of white space as they generally have fewer television broadcasters.”  Rules for the “white spaces” are now on the Commission’s agenda.

Rather than being sold at auction to the highest bidder, unlicensed spectrum is useable by anyone with wireless equipment that has been certified by the FCC for unlicensed frequencies.   A key advantage of unlicensed spectrum is that experiments in new technology can be carried out without asking the permission of spectrum licensees. To date, we have made very little spectrum available for unlicensed use and experimentation.

The FCC has the discretion to decide whether the digital television “white spaces” may be used on an unlicensed basis.   Its own Spectrum Policy Task Force recommended in 2002 that such a step be taken.   Indeed, in trying to stave off an auction rule in the 700 MHz proceeding that would have dedicated non-built-out spectrum to unlicensed uses, Verizon affirmatively argued that the Commission would be opening up the white spaces on an unlicensed basis – thus making such a rule for the 700 MHz auction unnecessary.

Beginning in 2004, the FCC asked for comments on uses of the white spaces, itself suggesting that unlicensed uses of these white spaces would be appropriate.   The Commission recognized that the “significant growth of and consumer demand for unlicensed wireless broadband applications” supported opening up the white spaces for broad ranges of unlicensed use.  Two years later, the FCC backtracked somewhat from its earlier wholehearted endorsements of unlicensed uses of the white spaces, saying (1) that, at the most, only “fixed” (non-portable) unlicensed uses should be allowed, and, even more disconcertingly, (2) that it is not confident any unlicensed uses are appropriate in the white spaces.   The FCC is concerned about the possibility of interference among the transmissions of various users of the white spaces.

So this is a proceeding about almost 300 MHz of spectrum (and all the fighting over the C Block concerned just 22 MHz).   It will be in “swiss cheese” (non-contiguous) form, but there will be a great deal of it.  Using white space spectrum as a way to provide last-mile connectivity to wired Internet access nodes would be especially valuable in rural areas where those wired nodes are scarce and there is a great deal of vacant TV spectrum.

Today’s update is that Google is making concrete statements about its plans should the FCC allow for unlicensed use of some portion of the white spaces.  (Here’s the company’s filing with the FCC.)  Google suggests that there should be allocations for both portable and fixed unlicensed uses.  (We need portable devices – they’ll be cheap and there’s a huge market for them.  Without portable devices, this market just won’t take off.)

Google suggests that *all* devices for unlicensed use of the white spaces should be required to receive an “all clear” signal for the particular channel where they wish to operate, by using geolocation, checking a database of licensees in that location, and getting permission in advance.  Wireless mics could send a signal (called a “beacon”) saying “don’t transmit here” that would be adhered to by these unlicensed devices.  Google further suggests that no unlicensed device would be permitted to transmit at all in channels 36-38.  The company makes the rural argument, pointing out that Android-powered handsets would be a good way of providing low-cost mobile broadband coverage for everyone.  And it’s promising to provide technical assistance to people and manufacturers who want to exploit unlicensed white spaces.

Interestingly, the company is suggesting that this combination of geolocation, beacons, and databases will allow the FCC (eventually) to be comfortable with unlicensed devices that just use spectrum sensing.  They’ll have so much data about interference successes etc. that they’ll see that interference can be dealt with just by spectrum sensing.

Once we’ve done all this experimentation with the white spaces, we may be in a better position to use *licensed* spectrum more wisely without causing interference.  Google points out that they could use dynamic auctions to allocate spectrum on a real-time basis – the idea is that the licensee could grant the right to transmit an amount of power for a specified unit of time, subject to a cap.

Bottom line:  This is a compromise proposal designed to assuage objectors and nudge the country down a path towards more efficient use of spectrum, both licensed and unlicensed.  It will be interesting to see how the Commission responds.  I’ve heard that there’s a welcoming mood over there for unlicensed uses.

Why Block C matters

By On March 20, 2008 In communications policy, fcc, internet policy With 8 Comments Permanent Link to Why Block C mattersPermalink

Today the FCC announced the winners of the 700 MHz auction – and you can see from pp. 62-63 of this document that Verizon won Block C. (Block C was set up in two nationwide paired blocks of 11 MHz each, which were auctioned off in very large geographic areas—12 licenses, each covering a “Regional Economic Area Grouping”. Verizon won seven of the twelve licenses, covering all of the US except Alaska, Puerto Rico, American Samoa, Guam, and the Northern Mariana Islands.)

Why does this matter?

Context. The 700 MHz auction happened at a particularly interesting time in communications history. Traditional telephone use is shrinking and the cultural sway of broadcasters is diminishing, while Internet use and cellphone use are growing quickly. Although the telecommunications industry has long been divided up into different silos (cable, broadcast, telephony, data), all of these segments are arguably converging into one packet-switched communications realm. Highspeed packetized communications are becoming the key communications medium.

The central question is which model of packetized communications will prevail: Will we converge on a set of proprietary, walled-garden networks, in which the network provider acts as a gatekeeper by deciding which communications (in terms of content, application used, protocol used, how expensive they are) move easily across its network and onto the (authorized) handsets of users (the cellphone model), or will we converge on the Internet model, in which the network provider makes available an interconnected, commodity, nondiscriminatory transport service (essentially, a utility connectivity product) on which competitive communications travel that can be introduced without the knowledge or permission of the network provider and can be accessed via any handset?

The answer. Verizon’s victory in obtaining the C block in this auction means that, for a while at least, the “cellphone” model of Internet access will hold sway – particularly as we move in greater numbers to experiencing Internet communications via mobile handsets.

More background – Verizon was already an almost unbeatable oligopolist. Verizon already had national spectrum licenses before this auction began. The commercial wireless industry in this country began in 1981 when the FCC issued two free cellular licenses in the 800 MHz range for each “cellular marketing area” (or “CMA”) in the country. There are 734 CMAs in the U.S., and this regulatory limitation to relatively-small geographic areas for the licenses (and to only two competitors for each geographic area) meant that cellular technology remained expensive and not widely used. But the operators that were handed these early free “beachfront” 800 MHz licenses retained them, and now (through mergers and sheer staying power) Verizon Wireless and AT&T have most of them.

The most important service attribute for experienced cellphone users is coverage – the availability of reliable signals. Verizon Wireless and AT&T offer the best nationwide coverage, because they held onto those “beachfront” 800 MHz licenses and snapped up smaller carriers. As a result, Verizon Wireless and AT&T experience both much lower “churn” (dropped subscriptions) and much higher rates of “net adds” (new subscriptions) than the third largest carrier, Sprint. Indeed, Sprint is rapidly losing customers. The enormous barriers to entry involved in providing nationwide service, their vast spectrum holdings, and the substantial economies of scale of wireless service generally, make Verizon Wireless and AT&T almost unbeatable oligopolists.

The myth of the “third pipe.” When it comes to highspeed Internet access, current wireless offerings from Verizon Wireless and AT&T do not compete directly in terms of speed or cost with the dominant wireline (DSL, fiber, and cable) transport offerings – which explains why 96% of all residential highspeed Internet access connections are sold by regionally dominant DSL or cable companies. Existing (pre-auction) wireless highspeed Internet access connections cost at least twice as much as a DSL or cable connection, and operate at only a fraction of the speed. Residential highspeed Internet access subscribers simply do not cancel their subscriptions in order to sign up for wireless highspeed access via handsets, because these services are not (currently) substitutable.

At the same time, the dominant existing national wireless carriers, AT&T and Verizon, (1) are controlled by the same incumbent actors that control DSL access through regional monopolies across the country and (2) offer wireless services as part of packages that tie together traditional phone services, Internet Protocol Television (IPTV) access, and internet access. In a nutshell, the leaders in mobile wireless are owned by the same companies who control the DSL marketplace and are, like their corporate parents, choosing to avoid direct competition for highspeed Internet access by bundling three or four services together (voice, video, data) and differentiating their offerings based on their voice or video elements.

Given this situation, in which 96% of residential wireline highspeed internet access is provided by regionally dominant DSL or cable companies, and wireless communications are largely provided by two oligopolist players who are in turn owned by wireline companies, the dominant providers of internet access services in this country, both wireline and wireless, have ample market power to nudge users towards the proprietary, cellphone, managed model of packetized highspeed communications. These carriers, just like all makers of potentially-commodified information goods, have substantial incentives to both lock their customers in with high switching costs and to differentiate their informational offerings from those of other companies running across their network. They obviously also have great incentives to avoid cannibalizing their own wireline highspeed internet access market dominance.

It wouldn’t have been possible to create a “third pipe” competitor through the 22 MHz available in the national C block. That much spectrum just can’t carry enough data to compete with DSL or cable. But this 700 MHz spectrum might have been able to support long-range provision of wireless highspeed Internet access in (1) areas where faster “wired” DSL or cable Internet access is not available, or (2) for personal, portable wireless uses. And it might have been able to do this while requiring far less capital expenditure for the building of transmission towers than for higher frequency bands.

Most importantly, if someone other than Verizon or AT&T had won this auction, we would have seen a test case for non-cellphone model Internet access.

But we won’t. During the wrangle over the auction rules, Google and others proposed that this spectrum be made available on a wholesale basis – so that the licensee would be obliged to sell access to its network on a wholesale basis at commercial rates. This would mean that any ISP could come and buy bandwidth and build its own business. Everyone would share the same transmitter and neutral connection, but ISPs would compete on price and the services they offered to their customers.

This kind of approach has led to dramatic competition for the provision of highspeed Internet access in Europe.

But even though the incumbents (Verizon and AT&T) could have accepted this limitation, won the auction, and then priced wholesale access at a high level (thus discouraging anyone from using it), avoiding the precedent of wholesale access – and retaining the cellphone model of access – was their central goal. And they achieved that.

Now, the FCC did mandate that any winning licensee have in place “no locking” and “no blocking” provisions conditioning its use of this spectrum:

Licensees offering service on spectrum subject to this section shall not deny, limit, or restrict the ability of their customers to use the devices and applications of their choice on the licensee’s C Block network, except:
(1) Insofar as such use would not be compliant with published technical standards reasonably necessary for the management or protection of the licensee’s network, or
(2) As required to comply with statute or applicable government regulation.

As I’ve said here before, these no-locking, no-blocking requirements are hedged in by substantial limitations:  Verizon will be able to lock and block devices and applications as long as they can show that their actions are related to “reasonable network management and protection,” or “compliance with applicable regulatory requirements.” We’ve already seen how loosely “reasonable network management” has been interpreted in the Comcast fracas.

Verizon has said that all of its wireless operations will be “open” and that it will allow any device to attach to its network.  But.  Verizon has also insisted on retaining the ability (1) to privately “certify” applications and devices for use on its network (a process during which a great deal of mischief is possible, as we know from the pre-Carterfone days),  (2) to sell  heavily-subsidized handsets of its partners in its retail stores (which will make it unlikely for competing, full-price handsets to be popular), and (3) to prioritize its proprietary or charged-for content over “ordinary” Internet traffic.

The bottom line.  Verizon has won spectrum it arguably didn’t even need, given its existing spectrum holdings.  It retains the discretion to act as a traditional cellphone-model company – picking and choosing among applications and devices, underselling “open” devices, and discriminating against traffic that undermines its business model.  This isn’t great news for the Internet model of access.

On the other hand, openness is more popular and more talked-about than it used to be.  It may be that the pressure of consumer preferences makes Verizon provide a truly open Internet and truly open devices to the rest of us.  (The pressure of competition won’t be doing that – AT&T and Verizon have divided the U.S. between them, and the other players in the wireless space are far behind.)  The Android project, Verizon’s own words about openness, and concerns about the place of the U.S. in the international race for innovation may all push towards a more open future.

We’ll see.  The results of this auction don’t suggest that we’ll be seeing such a move any time soon.

Meta moment

By On March 10, 2008 In communications policy, fcc, filtering, internet policy With No Comments Permanent Link to Meta momentPermalink

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.

One judge at a time

By On February 29, 2008 In cyberlaw, internet policy With 1 Comment Permanent Link to One judge at a timePermalink

So you can educate a judge. Bravo to EFF, ACLU and their colleagues for reminding Judge White about the First Amendment and persuading him that a take-down order for an entire bulging web site when you’re worried about a few pages isn’t constitutional. (EFF press release, Judge Dissolves Wikileaks.org Injunction: First Amendment Rights of Internet Users Upheld in Today’s Hearing.) And bravo to the judge for having the grace and judgement to learn and back down.

Media coverage said that Judge White’s initial order was a “prior restraint.”  I have to say that this puzzles me.  What’s a prior restraint once something has been posted online?  EFF and the ACLU had to educate this judge about the impracticality of his order – the Wikileaks.org material was echoed, copied, cached in hundreds of places.  Yes, Wikileaks.org itself may have gone dark, but the substance was everywhere.  The order was a post restraint and an unconstitutional adventure, but we’ve got to come up with some internet-specific language that adequately expresses our distate for censorship while recognizing the futility of the Wikileaks move.

Maybe the shorthand can simply be “Remember Wikileaks.”

More filtering and blocking in more places

By On February 25, 2008 In communications policy, fcc, internet policy With 5 Comments Permanent Link to More filtering and blocking in more placesPermalink

As the FCC convenes its hearing today in Cambridge to address Comcast’s degradation of BitTorrent packets, two other blocking/filtering stories are playing out.

First, the Pakistan government (probably nudged by President Musharraf, who heard that some YouTube videos are critical of him) ordered that YouTube be blocked. An over-zealous ISP owned by the state sent out a redirect for YouTube’s IP address to some other more suitable site.  But that redirect was somehow propagated all over the world – removing YouTube from view for everyone.

Second, the infamous Clean Feed approach is under attack.  A Finnish programmer published the government’s domain blacklist in order to prove that the system is being abused.

You can’t tell who’s on the list, why they’re there, or what the process is for getting off, and ISPs are supposed to block the sites on the list. Sites with many pages are blocked as a whole, even though only a small portion of the site is arguably unlawful (as in Wikileaks).

It’s the meta-issue:  under what circumstances should ISPs be used as private police to block or filter sites?  What’s “reasonable network management”?  How much should users know about what’s going on? How do we manage the spillover effects of all this filtering, which can be quite harmful to overall social interests?

This isn’t just about the future of the First Amendment.  It’s the future of the internet.

Prior restraints

By On February 18, 2008 In filtering, internet policy, surveillance With 3 Comments Permanent Link to Prior restraintsPermalink

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

By On February 6, 2008 In filtering, internet policy, wiretapping With 1 Comment Permanent Link to Filtering holidayPermalink

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.

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