The Eyre Affair
New favorite book, by Jasper Fforde (the first “F” is silent). From a Salon review:
“Thursday's job is to track down stolen original manuscripts and spot forgeries, but in “The Eyre Affair” she gets recruited by another department in SpecOps, which is trying to capture the world's Third Most Wanted criminal, Acheron Hades. It turns out Thursday is one of the few people able to resist the hypnotic effect of Hades' infernally persuasive voice. Hades steals a device that allows people to enter into literary works, and he begins kidnapping characters from great novels, starting with a minor figure from “Martin Chuzzlewit” and moving on to Jane Eyre.”
It's escapist literary detective fiction. Beach reading for people who don't really want to be sitting on a beach.
CALEA and push-to-talk
What are push-to-talk services? And why should they be subject to CALEA? And why should we care?
From what I understand, push-to-talk are services offered (at the moment) by cellphone companies that allow you to communicate with a group immediately by pushing a button on your phone. It's like walkie-talkie communication. But there's no requirement that the underlying carrier be a cellphone company; you could do this over WiFi on the internet.
These services are just like instant messaging, with voice added in. The services don't use the traditional telephone system or traditional phone numbers (necessarily). Instead, they use lists of devices — like a buddy list — to allow people to talk to one another. They're half-duplex, which means only one person can talk at a time.
And yet, in the Declaratory Ruling that the FCC issued on August 9, it said that commercial wireless push-to-talk services are subject to CALEA: “CMRS [commercial mobile radio service] carrier offerings of push-to-talk service that are offered in conjunction with interconnected service to the PSTN, but may use different technologies, are subject to CALEA requirements.“
Why is this interesting? Because CALEA has an express carveout for “information services,” and something that doesn't connect to the traditional telephone network and doesn't use traditional phone numbers — but does manipulate data — would seem to be an information service. Email, specifically, is an information service.
How does the Commission avoid this carveout? By saying that CMRS carriers who offer push-to-talk must by definition be doing so “in conjunction with interconnected service to the PSTN,” even if they're only using packet-mode technologies for the service.
Now, this all seems like very inside baseball. But it's important. Deciding this push-to-talk element means that the Commission has already made the determination that things that don't connect to the traditional telephone system or use phone numbers are nonetheless subject to regulatory control.
There really isn't much of a difference between push-to-talk and instant messaging, except that the former is offered by cell companies who are happy to comply with CALEA (including Verizon), and the latter is offered by zillions of companies who are probably not closely following what the FCC is doing.
Bellhead invitation
Here's a pdf file to print out and look at. We're pretty much full of speakers, but audience members are warmly invited! Only 20 bucks.
Ninth Circuit Gets It Wrong in Yahoo!
Although the Grokster opinion was clearly right, yesterday's Yahoo! decision [pdf] is weak as a matter of both law and policy.
We have declaratory judgment proceedings to avoid the situation where someone who is acting like they want to enforce their rights can constrain the activities of someone else.The court can issue a declaration saying “yes, these rights should be enforced,” or “no, these rights shouldn't be enforced,” without waiting for the threatening actor to actually ask for their rights to be enforced.
Without this avenue, people who are threatened by worthless claims are stuck — they have to act to protect themselves from the ever-present threat of suit, without ever getting things resolved.
In the Yahoo! case, Yahoo! asked the federal courts of California to declare a French judgment against Yahoo! to be unenforceable. Yahoo! was the threatened party; it had received letters in California telling it that the threatening party planned to enforce its rights.
The federal trial court found that the threatening party was acting in a way that was antithetical to our First Amendment, and declared the French judgment unenforceable.
But the Ninth Circuit yesterday decided that the district court hadn't had personal jurisdiction over the threatening French party in the first place. It said that the letter from the party arriving in France, plus the use of the California marshal's service to serve Yahoo!, plus the threatening party's request of a French court to ask Yahoo! to comply with the French order, weren't enough “minimum contacts” with California to support the exercise of personal jurisdiction.
In a lengthy and careful dissent, Judge Brunetti disagreed. He said that the dispute was already ripe enough to be heard, because there was a real controversy between the parties. He said that the threatening party had sufficiently “purposely availed” itself of California's affordances to justify the exercise of personal jurisdiction. The majority opinion seems formalistic and weak in comparison to Judge Brunetti's dissent, which unpacks the cases in detail.
But the larger point here is that both lawsuits are legitimate. France has the right to declare entities within its physical jurisdiction to be violating its laws, and to attempt to enforce that judgment. Yahoo! has the right to seek a declaration that that judgment is unenforceable under US law. If a foreign party does everything it can to sue a non-physically-present party, then its judgment is legitimate but may not be enforceable against that party. If that non-physically-present party attacks the enforceability of that judgment, then it can use its own laws to do so.
Our laws allow for declaratory judgments when someone hangs a threat — a sword of Damocles — over someone else. The threatening parties in this case did just that. The Ninth Circuit should have allowed such a declaratory judgment to be issued. Instead, it read its own personal jurisdiction precedents too narrowly.
Enforceability is where the rubber meets the road in these international online cases, and we should allow disputes over enforceability to be heard and decided. Otherwise, online businesses all over the world will be unable to be certain that they can continue to act. They'll be effectively constrained, even without actual judgments being enforced against them.
Quicksilver
During oral argument in the Grokster [pdf] case, one of the three Ninth Circuit judges asked the appellants (paraphrasing):
If you shut down these services, infringement will continue — people will continue to share files with no interruption. Do you agree with that, and if it's true, aren't we chasing the wind here?
The appellants' lawyer responded that, no, that wasn't accurate, that if the services (paraphrasing) ”simply walked away, the system would eventually degrade and disappear, it would close down.” The judge persisted:
But if these are opensource programs, they are very difficult to control even if we do issue an injunction.
The Grokster case raises the same fascinating questions about institutional competence that were dealt with in the Sony Betamax case. Only Congress, the court suggests, can reshape liability theories for copyright infringement. And the panel's questions suggest why this is so: a judge's order is likely to be unenforceable in the quickly-changing world of technology. No judge wants to chase the wind.
In the opinion itself, Judge Thomas uses a lovely word: “quicksilver.” He says:
[W]e live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation.
What does quicksilver mean? It's defined as something that's liable to sudden unpredictable change; “erratic behavior”; “fickle weather”; “mercurial twists of temperament”; “a quicksilver character, cool and willful at one moment, utterly fragile the next.”
In other words, online technological development is yet another example of a complex adaptive system. Small changes made in response to feedback lead over time (in a permeable system through which energy is flowing) in nonlinear ways to unpredictable orderings that are far from equilibrium. The universe is a complex adaptive system; even the laws of physics change over time.
Bravo to the Ninth Circuit for neither trying to catch the wind nor freeze the quicksilver changes in technology. And for using such evocative language.
INDUCE: Call for Copyright Advice
The Senate is asking [pdf] the Copyright Office for advice on the Induce Act.
“Specifically, we would like your assistance in identifying key concerns that have been raised about S. 2650 and serving as our principal copyright adviser in a series of meetings designed to resolve any remaining issues.”
These should be interesting meetings. They may turn out to be similar to the roundtables that Rep. Tauzin held during the summer of 2002 at which he tried to convince industry representatives to agree to adoption of content marking technology that would be implemented by consumer electronics devices. Tauzin followed these roundtables by floating a broad draft bill. The Tauzin draft would have given the FCC authority to mandate recognition of a “broadcast flag” by all digital devices that were capable of receiving a digital television signal, and to require that no equipment with analog outputs would be manufactured after July 1, 2005.
It was never introduced.
Here, by contrast, there is already a draft bill out on the table — and a lot of legitimate concerns have been raised about it. Maybe these meetings will serve to assuage these concerns. We'll see.
Space and time
The New Yorker is not something you can link to casually. If only I could point you to an article by Oliver Sacks called “Speed: Alterations of time and movement.” Sacks meditates on speededness and slowedness in parkinsonism and tourettism, as well as the speed of perception in people who are in near-death situations, and the slowness with which William James perceived the world when he took drugs. He points out that “normal” people have a “remarkable latitude and resilient” balance between speededness and slowedness, and comes to the conclusion that most humans think and act at about the same pace.
One of Sacks's points is that parkinsonians don't perceive themselves to be moving slowly within a very confined space — although non-parkinsonians will be amazed at the tiny, achingly slow movements that parkinsonians make. And victims of Tourette's, similarly, don't know how fast they're going but pity the rest of us for our slow movements. Like Nabokov was, Sacks is a great observer of nature, and he sees glorious beauty in both slow and fast powers of perception.
But we need not be held back by our neural limitations, he suggests:
We have unlocked time, as in the seventeenth century we unlocked space, and now have at our disposal what are, in effect, temporal microscopes and temporal telescopes of prodigious power. With these, we can achieve a quadrillion-fold acceleration or retardation, so that we can watch, at leisure. . the femtosecond-quick formation and dissolution of chemical bonds…
We can, with the power of visualized data, watch movies of any trend in which we're interested. Maybe, in fact, in the online world we can continue to unlock space as we unlock time. With the visualization of information, we can “see” social spaces online that we can't see with our limited terrestrial neurons. And things can happen there — formation of social bonds, to carry this metaphor for just one more sentence – that we'll be able to see in as speeded or as slow a way that we want.
Now, all this visualization won't replace text, and the legal world is full of words that need to be parsed. But there's something to be said for virtual telescopes that show us new kinds of cinematic wonders.
Engineers
There's a documentary out now about Tom Dowd, a recording engineer. The guy lights up when he talks about music and when he talks about technology. He tells us that he was completely mystified when he first heard recordings by Les Paul, because Paul was playing four or five guitar parts at once. Les Paul had figured out how to do multi-track recording, and Tom Dowd had to be there.
Dowd went out and put together one of the first eight-track machines in the world. Ten years later, he was still way ahead of everyone else; he invented sliders for multi-track recordings; at the time, the Beatles were recording in (at the most) three tracks. There's this great reunion scene with Ray Charles, where Dowd and Charles tell each other how tricky technology used to be, laughing hard.
What was great about Tom Dowd, who died in 2002, is that he had a close, deeply musical rapport with the artists he recorded, and an equally close rapport with the machines he tinkered with. He could talk about the past – he was there — but he wasn't longing for it. In fact, he loved the flexibility and creativity of capturing sound digitally and manipulating every wave.
Here's the question: do the founding engineers of the internet have the same feeling about the future that Tom Dowd did? Many of them are still alive. Are they excited about what will be possible as more of life moves online? Or do they long for the early days, when they knew almost everyone online and hooking in another university was tremendously exciting? Do they think of the internet as a social place, or as a place that's been wrecked by commerce? Do they feel a Dowd-like kinship with the people using the network, or do they feel overrun and ignored?
And who's doing the documentary? Maybe EFF should do it. Or a perceptive blogger. Or someone who can explain to us how things work. The internet of the future will thank us.
Yet another reason why The New York Times is a great newspaper
I love the Times. I just filled out an email reader survey for them, but it was only about cultural events. (I told them I liked the gossipy stories — Just how sick is James Levine?). They didn't give me a chance to say nice things about the part of the paper I currently love the most: the serialization of Truman Capote's Breakfast at Tiffany's.
Every day this week, the Times is sending us a nice-sized portion of the book. It's just the right length to read over coffee. It's a great format: big print, wide margins, the size of the Book Review — very soothing. The writing is wonderful, there's no advertising, and it feels like a gift to readers from the newspaper.
They've done this before, with The Great Gatsby and at least one other book. But this is the first time I've experienced it, and I think it's great.
I can't link to it. You'll just have to go out and buy the paper.
Questions about CALEA application
FCC issued its NPRM today — it's a 100-page pdf file. I'm just beginning to study it, and I have four questions.
1. What exactly is a “managed” VoIP service? Law enforcement says that providers of VoIP services that are “managed” or “mediated” are subject to CALEA as telecommunications carriers. Before we get to the awkwardness of saying that someone is a “telecommunications carrier” under CALEA even though they're an “information services” provider under the Communications Act as a whole (and CALEA has a large exception for information services), it would help me to figure out what's meant by “managed.” It doesn't seem to mean only those services ”connecting to the traditional telephone network,” necessarily, although services that do connect to the PSTN would be covered.
The FCC is trying hard to be clear, but I'm still confused. They say “those services that offer voice communications calling capability whereby the VoIP provider acts as a mediator to manage the communication between its end points and to provide call set up, connection, termination, and party identification features…” (at 19). They say that's different from disintermediated communications in which the VoIP provider has “minimal or no involvement in the flow of packets during the communication, serving instead primarily as a directory.” (So Pulver.com is not a managed VoIP service.) But the definition isn't limited to services that connect to the PSTN or use telephone numbers.
So is it true that if a company provides a private voice service that doesn't connect to the traditional telephone network or use telephone numbers, but does facilitate dedicated conversations somehow — perhaps by using a private namespace — it's subject to CALEA? Would this include services that don't use IP or the public internet? How can you tell if a service is a voice service or a service for carrying lots of other things, with just a little voice added in?
2. Does the Substantial Replacement analysis hold water? CALEA requires “telecommunications carriers” to make sure their services are capable of providing surveillance capabilities to law enforcement. (I thought this was a “who” question, not a “what” question, and that FCC had to make determinations one by one as to who was a telecommunications carrier under CALEA, but I may be wrong about this.) The FCC says there are two ways to be a telecommunications carrier under CALEA: first, by being someone who is “engaged in the transmission or switching of wire or electronic communications as a common carrier for hire,” and second, by being an entity that provides “a replacement for a substantial portion of the local telephone exchange service.”
Let's start with the second part first. The FCC is saying that if an individual, a person like me, is using broadband access instead of dialup access to the internet, that broadband provider is a telecommunications provider. Why? Because the functionality (the service of access to the internet) that used to be provided by traditional telephones is now being provided by broadband. (at 24) But does that make sense? Shouldn't “substantial portion” have something to do with market control in a particular geographic area? In other words, if local telephones just aren't being used any more in a particular state, that service has been replaced. Is it replaced one person at a time?
As to the first part, the switching part, FCC appears to be saying that “switching” includes routers and software (”softswitches”). (at 23) Equipment that provides addressing or intelligence functions is going to be subject to CALEA, even if it's not “technically” switching or transmission equipment. Does this make sense? Doesn't CALEA operate on switches understood the traditional way (as in telephone switches)? Does this reinterpretation cover more equipment than it should? Could it possibly cover home users, home networks, etc?
3. How can you be an “information service” provider (and thus exempt from CALEA) at the same time that you are a “telecommunications carrier” because of your “substantial replacement” (and thus covered by CALEA)? FCC says it's more important to look hard at CALEA's definition of “telecommunications carrier” than the rest of the statute, because this definition is broader than the Telecom Act definition of “telecommunications carrier”. They say that if they didn't read CALEA this way, they'd be stuck with an “irreconcilable tension.” (at 31).
Is this right? Doesn't the reading-of-telecom-carrier-for-all-it-is-worth part of this statutory interpretation create the tension? After all, if we read the whole statute equally, we'd see the blinking red light: No CALEA Application To Information Services — and stop there. We'd say that if we read more into “telecommunications carrier,” the exemption wouldn't make sense. Aren't statutes supposed to be read as if they make sense?
4. Is the FCC confident of its jurisdiction? There's an interesting paragraph on p.35 that suggests that even if this interpretation of CALEA doesn't work out, the FCC could always reach non-common-carriers under its ancillary jurisdiction — and impose on them law enforcement assistance requirements. Ancillary jurisdiction is the same hook being used in the Broadcast Flag rulemaking and the IP-enabled Services rulemaking. I'm finishing up an article about ancillary jurisdiction, so this paragraph caught my eye. Is this Plan B?
Looking forward to illumination. The FCC has clearly worked very hard on this and is being as careful as they can be.