Language makes policy
Lessig's debate with David Boies is sold out tonight, and I've spent enough time on Bellhead/Nethead today (please do come — David Weinberger is the designated blogger, so you can influence what he blogs by saying something particulary eloquent at the mike), so I thought I'd take the opportunity to rise above it all and point out just how important words are to policy.
Yes, words. You may only care about clickable statutes and pictures of law. But policy is driven by phrases.
The Broadcast Flag. The broadcast flag is beautifully and effectively named, because it is neither about broadcast nor limited to the waving of a patriotic “flag.” Indeed, those who learn about the broadcast flag scheme quickly forget that it is focused on protecting digital television broadcasts and speak generally about the protection of digital content. And the “flag” is, in a sense, the least important part of the entire scheme. All it does is signal “the following content should be protected.” The heavy lifting — the encryption and locking-down of the content — is done by the FCC mandate and by the machines affected by the mandate.
“Unregulation” of IP-Enabled Services. As the internet world has continued to explode, some of the regional Bell operating companies — heavily regulated by the FCC — are supporting FCC's call for “social polices” (not economic regulation) to be applied to IP-enabled services. Chairman Powell, in a separate statement accompanying the IP-enabled services NPRM, said “rules designed to ensure law enforcement access, universal service, disability access and emergency 911 service can and should be preserved in the new architecture.”
When Pulver.com filed a petition for a declaratory rulemaking with the FCC, asking that its Free World Dialup (FWD) service (which is essentially an instant messaging service with voice capabilities that does not connect to the traditional telephone system) be declared not to be a “telecommunications service,” the FCC responded that FWD was an “unregulated information service subject to FCC's jurisdiction.” The Commission included some ringing language in its Memorandum and Order, saying: “This action is designed to bring a measure of regulatory stability to the marketplace and therefore remove barriers to investment and deployment of Internet applications and services.” Chairman Powell's accompanying statement read: “Our ruling formalizes the Commission's policy of 'non-regulation' of the Internet and, in so doing, preserves the Internet as a free and open platform for innovation.”
Some media outlets read this “unregulation” and “non-regulation” language to mean that internet applications would remain unregulated by the FCC.
But “unregulation” does not mean “no regulation.” Social policies,” including design mandates under CALEA for a subset of IP-enabled services, are envisioned by the FCC to be part of “unregulation.”
Other examples? send word.