At Mike Madison's kind invitation, I'm in Pittsburgh. I passed what Mike identified as the largest free-standing Gothic structure in the world. I said, “I know what that is — that's the Cathedral of Knowledge.” Mike said, “No, that's the Cathedral of Learning.”
It's always a good idea to be mindful of death. Bach thought about death all the time; Sherwin Nuland wrote, beautifully, about how we die. An online ”death clock” can helpfully predict your last day, but I wouldn't trust it. The NRA has its own clock up, just to show how harmless firearms are. Just in case you might run into a disoriented doctor, or a misfiring shotgun, it's best to live as if each day was the last.
My old law firm sent out an email today saying that John Pickering had suffered a severe stroke and was in grave condition. I had an office next to John's for several years. I always enjoyed sitting down and talking with him.
The first time John Pickering ever appeared in court to argue a case was at the U.S. Supreme Court. Only a few years out of school, the former clerk to Justice Frank Murphy was appointed to represent an indigent defendant. Murphy's beliefs in protecting the rights of the individual inspired Pickering to develop one of the most influential and diverse records in Supreme Court advocacy. He played a major role in cases that defined the limits on presidential authority (Youngstown v. Sawyer), checks and balances between the branches of government (Powell v. McCormack), civil rights (NAACP v. Claiborne County, Mississippi), and physician-assisted suicide (Vacco v. Quill). More recently, Pickering has been a leading legal mind in the right-to-die debate, an issue he has repeatedly taken back to where he started: the Supreme Court.
Good news from the DC Circuit today, which issued an opinion asking for further facts about petitioners' right to be in front of them complaining about FCC's jurisdiction in the broadcast flag matter. Everyone (including, apparently, the FCC) assumed quite reasonably that the petitioners had every right to be there — in other words, everyone thought petitioners had “standing.”
But the DC Circuit wasn't so sure about it. Under the applicable legal standard, you have to show a concrete, particularized, actual/imminent harm from an administrative rule in order to complain about it. The petitioners in this case include the American Libraries Association, Public Knowledge, and EFF. (Things would have been simpler if a single consumer electronics manufacturer had wanted to face the ire of the content community and join the lawsuit.)
At oral argument, petitioners' concrete etc. harm was sharply questioned — how was one consumer's harm any different from that of the rest of the populace?
The court has given petitioners two weeks to provide statements of facts showing special harms caused by the broadcast flag rule – and has provided some helpful hints: show us whether any of your members are engaged in storing TV broadcasts and sending them to distant locations; show us whether you'll be hindered in lawful copying and distribution; show us whether your member-educators (if you have any) will be hindered in distance education efforts.
I think this court wants to find standing. Once this legal threshold is in place, the court can walk right in and declare that the FCC had no jurisdiction to adopt the flag rule. And we'll be back at Congress.
The implications of this case are much broader than they may appear on the surface. FCC is asserting very broad jurisdiction over anything associated with the overall circuit of messages sent and received via all interstate radio and wire communication. The Madison River flap of two weeks ago is part of this overall picture. I don't think the FCC's powers extend beyond what is specifically given them by Congress — and Congress hasn't given the FCC the internet, PCs, or consumer electronics devices.
When this hot potato is back in Congress's lap, it should act to lead the world in self restraint. Don't do it. Don't let one industry (content, law enforcement, or telecom) control another (high-tech innovation) without a strong social consensus to do so.
ICANN has posted its suggested .net agreement. The new draft puts the ICANN Board and the Names Council firmly in control of the registry's future, and represents a substantial change to the existing registry contracts. No one gave ICANN the power to do this, and it is strange that no approval by anyone — including the US Dept of Commerce — is being sought to make this happen. ICANN is taking the occasion of the .net rebid to restructure its entire relationship to the world.
It takes a lot — too much — to explain this issue to people who aren't closely involved with ICANN. This, of course, is part of the problem. ICANN can operate in great obscurity because it is simply too difficult (and too time-consuming) to understand what is going on. But I'm going to try to spell this issue out briefly.
The central deal behind the creation of ICANN was that the businesses who ran registries and registrars would agree, by contract, in advance, to new generally-applicable policies. This was a tremendously innovative approach taken to solve a difficult problem. ICANN has no delegated governmental power to act. Its role is to recommend additions to the root zone server, and work with IP registries on allocation of IP addresses. (Already the eyes of non-ICANN groupies are starting to glaze over. But stay with me — this won't take long.)
It was clear that changes to the ways registries and registrars operate might be needed someday. But how could ICANN ask registries and registrars to change the way they operate without any power? The answer that was dreamed up at ICANN's creation was that decisions could only be imposed on registries by consensus. This is the same way that actual technical standard-setting bodies operate.
Consensus is a hard word to understand. It doesn't mean that everyone agrees to go along. It means only that most people affected by a particular rule are in favor of it, and that opposition comes from people who are either unaffected or who are trying to hijack the process for unjustifiable or wrongful reasons. The ICANN deal was that registries would go along with policies adopted by consensus as long as that consensus was adequately documented. Registries would have a right to appeal if consensus didn't really exist.
ICANN staff never liked this deal very much. But in the intervening years, a number of policies that have been the subject of documented consensus have in fact been adopted. The consensus process has worked. The idea was, and is, that there would be very few global policies, and that most things would be left to local, registry control.
In recent years, ICANN has changed its bylaws to ensure that the ICANN Board can (with a vote of the Names Council in support) simply adopt policies. (I wrote about this here [pdf]) This didn't match the existing contractual scheme, but ICANN went ahead and did it anyway. ICANN didn't want to have to wait to adopt things that were demonstrated and documented. It wanted to have a relatively quick process driven in large part by voting.
Now ICANN is ready to take the next step: to conform the contracts it has with registries to match its view of itself as a regulator. That's what this net draft represents. Although the draft refers to “consensus policies,” that's an Orwellian reuse of the words — these new policies can be established if enough numbers of the Names Council want to beat up on a particular registry, and vote to do so. That's very different from the documented process established by the original contracts.
I'm an ICANN supporter. I think the ICANN experiment in governance is a good one. But ICANN needed to remain true to the idea of consensus (which was working, by the way) rather than move into simply imposing rules without accountability or legitimacy.
Whoever wants to run .net really has no choice — they have to sign this contract. This isn't negotiable, as a matter of reality. But I wanted to note that this particular element in this draft contract represents a substantial move into an unaccountable future for ICANN, and an unpredictable future for registries and registrars.
Patrick Radden Keefe has his first book out. It's called Chatter, and it's a page-turner. It forces us to focus on the longstanding, stop-at-nothing informational ties among Britain, the US, Australia, Canada, and New Zealand.
I knew that these countries cooperated closely on consumer protection and policing matters, but I hadn't realized how broad the relationships among the five were, and I didn't know about the unimaginable amount of data they make available to one another. (Constraints on local law enforcement's abilities to spy are dignified and appropriate, but irrelevant — constitutional protections aren't barriers when your cousins across the ocean can spy on your citizens for you.) The US seems to act in a somewhat hoggish manner, taking in more than it divulges, but there's plenty of activity all the way around.
Chatter forces a change of perspective. Most of our disputations about privacy and identity theft and the rest seem like the banter of hobbyists in light of the real information flows that Keene documents. Privacy legislation in the US might mitigate some private company uses of data, but it seems as if there is always a way for the highest levels of national security agencies to get access to whatever they need for whatever purpose. While citizens occupy themselves with the activities of legislators and regulatory agencies — and credit bureaus — the real conversation may be elsewhere.
What effect does all of this have on online life? As groups form happily online, doing their work and padding around chatting amiably, does it matter that they're being watched? Perhaps it doesn't. Perhaps there's just too much to watch, and the patterns that these useful groups create aren't of any interest to the watchers. Or perhaps the watched won't know they're watched until later.
Cardozo was visited by Seth Waxman this past week. Waxman did a number of great things — he gave a public talk about the SG's office, taught a class (about Roper v. Simmons, the juvenile death penalty case he successfully argued last fall), had lunch with students to talk about his capital defense work, and taught a moot court master class.
Waxman speaks in a measured way. (We had a distinguished French jurist visiting us who was absolutely captivated by Waxman in part because Waxman was so easy to understand.) You believe everything he says. He's not pedantic, but he never falters and he hardly needs notes. His sentences and paragraphs have structure and direction, and he is completely prepared. He even carefully prepared for the students' moot court class, taking the made-up problem very seriously and questioning the oralists closely.
He told us that he thinks of himself as teaching the judges (and Justices) before whom he argues. They're very smart students, and they'll take him apart if he says something too sweeping, but he something to convey to them that is worth their time.
Watching Waxman at work was a joy. I'm sure he prepares a great deal for every public appearance he makes, but he carries things off effortlessly. He is an exceptional teacher.
Brian Leiter's advice to people considering going on the law teaching market does say:
“Teaching is an enormous pleasure, as well as a wonderful learning experience; if you don't think you'll enjoy teaching, you probably want to re-think whether you want to pursue an academic career.”
But that's all that Leiter says about teaching itself. Most of his advice has to do with how to get a teaching job.
There are very very few Seth Waxmans out there who know what they're talking about and can convey their thoughts clearly. Waxman himself, of course, is busy in front of the Supreme Court. If he ever wants to spend more time in the classroom, he'll be quite a catch for the finest law schools in the land.
Back in November 2004, representatives of the MPAA said that they were interested in working with Internet2 to find ways to manage illegal filetrading on that network.
A few days ago, Jon Ippolito posted a manifesto claiming that the MPAA/Internet2 collaboration “could give media conglomerates a chokehold on the 21st-century Internet.”
Then someone else responded, saying that Ippolito had all of his facts wrong. Routers remain dumb in Internet2. Sure, multicasting is possible, but that's also part of Internet1, and no digital rights management is built in.
So what is the nature of the collaboration between MPAA and Internet2? It's at least interesting to wonder.
PS: A helpful person writes to me to say that there's nothing glamorous about Internet2. It's just a collection of big pipes between particular destinations. Same address space, same DNS space, same protocols.
More than 650 people are going to gather tonight in Washington to celebrate CDT's last ten years. Legislators, lawyers, friends, lobbyists, visionaries — it will be quite a crowd.
CDT has played a key role. Just this week, they questioned a new state bill that would create ISP blocking obligations, and suggested to the FTC that they sue deceptive download sites. They're at the very center of the spyware debate. They're at the very center of the debate over law enforcement's request to have online applications built to be easily tappable. They're fighting for online privacy legislation. They're writing amicus briefs. They're defending the First Amendment. All with just a few people involved.
Several things set CDT apart from any other policy group I know of. They know what they're talking about, they serve a crucial convening role, and they care about the future of the internet. Bravo to CDT!
Back in December 2004, Apple sued several John Does for allegedly releasing confidential information about a new Apple product. Under the auspices of that lawsuit, Apple had requested subpoenas for information from three web sites (ThinkSecret, AppleInsider, and PowerPage), asking for information about the identity of the source of the leak. According to EFF (counsel for two of the three sites), Apple has asked for a subpoena to be issued to PowerPage's ISP, Nfox. Last Friday (three days ago), the judge in the case preliminarily ruled that these subpoenas should not be quashed.
EFF is arguing that a blogger is entitled to a reporter's privilege (under the First Amendment and the California shield law) not to reveal his sources. So far, the judge isn't convinced – or is of the view that even if the reporter's privilege applies, Apple's need for the information outweighs the reporter's need to protect his sources.
It seems to me the outcome (if not the reasoning) of the judge's preliminary ruling is right. Bloggers are certainly journalists. There is no principled distinction between one and the other. (Gillmor on this.) But as long as we're being principled, breaches of trade secret confidentiality are not the stuff of democratic transparency. It's important to protect sources who are leaking government information — that's democracy at work. It's not as important to protect sources who are allegedly breaking promises to keep information confidential.
In my view, the reporter's shield (like anti-SLAPP motions in California) should be reserved for information/sources that actually have something to do with the democratic process. Let's allow judges to carry out this weighing of the importance of the reporter's privilege. An absolute rule (“never force reporters to divulge sources”) will weaken that privilege when we need it the most — when reporters are reporting on government corruption.
The lists were alive today with messages and stories about the FCC's consent decree [doc] with Madison River Communications, LLC. This is an extremely troubling development, in my view.
From Madison River's site, it looks as if most of its operations are common carrier telephone companies. But at least part of the LLC is an ISP (a broadband provider), and FCC has fined that ISP for blocking VoIP services — by blocking ports so as to interfere with the connectivity between equipment people have at home to use Vonage, and Vonage's servers.
Three major points here:
1. There are many reasons why an ISP might want to provide different levels of service or block particular ports. If the ISP fails to disclose that to customers, that's a problem. But if the ISP does disclose, and does block, customers who are unhappy can just go somewhere else (provided adequate competition exists).
2. FCC has no jurisdiction over ISPs. (Although the parent company here is a telephone company, the ISP is not a common carrier.) It seems to be hanging its hat on that familiar weak (now buckled) reed: ancillary jurisdiction. But FCC has not been delegated power by Congress [lengthy doc] to make rules about what ISPs can or cannot do, just as it hasn't been delegated power to make rules about what PC manufacturers and consumer electronics companies can do.
3. This may seem like a benevolent thing to do — force an ISP to carry VoIP traffic. But the power to do this benevolent act carries with it the power to do anything to an ISPs service. That “power to do anything” is an enormous regulatory stretch for the FCC that should not be assumed. It could lead to: “don't allow devices to be attached to a broadband connection that permit copyright infringement,” or “don't allow an ISP to provide broadband service unless it is piped directly to law enforcement,” or other rules that no one gave FCC the authority to make.
It's clear that FCC's intent is to stop this ISP from blocking VoIP for purely anticompetitive reasons. But the consequences of the FCC's assertion of power are enormous. They shouldn't have done it.
