Broadcast Flag: Good news and bad news
First the good news: It seems clear from published reports of this morning's argument that at least two members of the DC Circuit don't think the FCC has jurisdiction to issue the flag rules.
“You're out there in the whole world, regulating. Are washing machines next?” asked Judge Harry Edwards. Quipped Judge David Sentelle: “You can't regulate washing machines. You can't rule the world.”
That's great. And it has enormous implications for the future of internet regulation. The FCC is using the same “ancillary jurisdiction” argument to support its efforts in “social policy” regulation of IP-enabled services. Now the FCC will have to rethink — and will have to go up on the Hill to seek statutory authority. This will be a battle.
Now, the bad news. It sounds as if Judge Sentelle didn't think much of plaintiffs' standing (ability to claim injury and seek the help of the courts) to challenge the broadcast flag rules. It seems to me that the libraries certainly have special injury here — they won't be able to make fair use of materials in ways that otherwise are guaranteed them. Because the library association is a plaintiff in the flag case, there's a good chance that they can answer the standing questions that were raised today. And I'm also hopeful that the DC Circuit judges involved wouldn't have said so much about the merits of the jurisdiction arguments if there wasn't standing to begin with.
On balance, it's a great day for the internet. If only some consumer electronics manufacturers would see their longterm interests more clearly — it has to be more important to be able to innovate in ways consumers will like than to build to a required standard that no consumer wants. There is no market demand for the broadcast flag.
Whither WGIG?
Now, I don't like the word “whither” any more than you do. But this Reuters article was circulating today and it seemed to call for a “whither.”
It's a short story, so let's do a close reading.
A U.N.-sponsored panel aims to settle a long-running tug of war for control of the Internet by July and propose solutions to problems such as cyber crime and email spam, panel leaders said on Monday.
We're going to decide what “internet governance” is by July? And we're going to propose solutions to cybercrime and email spam? Wow. Here is the preliminary report [pdf] that Nitin Desai, Chairman of the Working Group on Internet Governance, has transmitted to the WSIS Preparatory Committee and the ITU. This report isn't as brave as the Reuters story; in fact, it seems to be quite limited — although WGIG is still planning to submit “proposals for action.. on the governance of the Internet.”
Right now, the most recognizable Internet governance body is a California-based non-profit company, the International Corporation for Assigned Names and Numbers (ICANN).
But developing countries want an international body, such as the U.N.'s International Telecommunication Union (ITU), to have control over governance — from distributing Web site domains to fighting spam.
“There is an issue that is out there and that needs to be resolved,” said Nitin Desai, chairman of working group and special adviser to U.N. Secretary-General Kofi Annan
It's clear that Desai has ICANN in his sights. But ICANN has absolutely nothing to do with “fighting spam,” and even having that subject reflected in the Reuters story reflects some deep confusion on someone's part.
ICANN doesn't do internet governance. ICANN makes recommendations about what gets added to the root (new TLDs) and has some role in allocating IP addresses, but ICANN absolutely does not approve new internet protocols. ICANN has nothing to do with how packets get routed or any other key internet agreements. ICANN gets the respect and deference of ISPs and network operators – a very thin (and unwritten) form of respect. There's no governance there — and, so, there's nothing for the UN to take over.
So, fine, solve cybercrime and spam by July. It will be interesting to see how this happens — and what on earth ICANN has to do with this effort.