Archive for April, 2005

I'm an enormous fan of pervasive, free, open wireless broadband access.  Last week's news about Philadelphia's move towards city-provided broadband (including wireless access in public places, and access at up to 60 mph) was gripping.

But this message, posted to Dave Farber's Interesting People listserv, deserves attention.

You need a computer to access broadband.  Communities need libraries.  Streets need to be fixed.  Is broadband access a luxury that already-comfortable people — people who own laptops — are getting? 

Or is the pervasive presence of broadband something that will improve economic lives to such a degree — at comparatively little cost — that cities should invest right now in providing it?  (This was the point made by a follow-up message posted to the Farber list.)

I realize that this issue has been kicked around extensively, and that many people I respect decided long ago that municipal broadband should be a priority.  We are worried (perhaps incorrectly) that the US lags far behind other countries in broadband rollout, and we're looking for ways to encourage the growth of broadband penetration. 

But as each city approaches this problem, it must sometimes be a struggle to decide that already-thin resources should be dedicated to helping people with laptops. 

CFP just ended in Seattle.  That's a real conference, and I wish I could have been there. 

There are other, more mysterious conferences out there.  Every once in a while, I get messages about conferences in exotic places with weirdly long acronymic titles.  I'm told that all I have to do is submit something (anything!) for the crowd to read, and we'll all have plenty of free time together in the exotic place.  The people involved have unrecognizable affiliations and sometimes give only a country of origin.

Not too long ago, a group of MIT graduate students decided to fight back and submit a randomly generated paper to one of these conferences.  It was accepted.  Later, the students' glee at the idiocy of the situation prompted the organizer of the conference to rescind his invitation.

I'm sure this would be an impossible prank to pull on a law school symposium.

From the WSJ's Kevin Delaney:

In six of the past 14 months, Yahoo's news site has drawn more unique visitors than any rival, displacing longtime news leader CNN.com, according to research firm Nielsen/NetRatings. Yahoo has agreements to display or link to content from about 100 news organizations, from USA Today to French news service Agence France Presse. Users can search through about 7,000 additional online news sources that Yahoo catalogs for information. Yahoo's rise comes as some traditional news organizations rethink their online strategies. Some that have offered free content are now considering charging for some items. “Is Yahoo a threat to the business model of traditional news organizations? Yeah,” says Paul Grabowicz, director of the New Media program at the University of California, Berkeley Graduate School of Journalism. “But it's not a threat that's going to go away. And if it's not Yahoo, it's somebody else.”

I wish I could give you a link to the WSJ story, but it's only for subscribers.  And the only part of the NYT that I can link to with confidence is the front page — everything else may disappear in a couple of weeks, behind archival and subscription bars.  (I am exaggerating for emphasis.)

The suggestion I heard tonight is that mainstream newspapers need to show their strengths by breaking (and following up on) great stories that require great reporting and great investments of time and money.  We haven't had a Watergate recently.  Even 9/11 turned out not to be mainstream media's finest hour.

Would that do it?  Would doing a great job on a difficult, sustained story prove the worth of great newspapers?  Or have craigslist and grassroots journalism and aggregation services reached people in a way that a single magnificent newspaper cannot?

I love it when the Times arrives in the morning.  There's an audible series of thumps — all four apartments on my floor take the Times.  I don't know what the future holds; I'd be sorry for that thump to start sounding like nostalgia — like the sound of a calliope, or a church bell, or a train whistle.

I couldn't be in Argentina last week, but I've been trying to catch up on what happened there.  From this far-away perspective, it looks as if there has been some constructive progress on ICANN's strategic plan — initially, at least, in the form of discussing processes that will both tie ICANN's budget more tightly to its narrow mission and make the plan itself the product of real consultation.  (This transcript from a public session just before the group soccer game caught my eye.)

The November 2004 version of the plan seemed to drop from the sky, fully baked and ambitious and polished and ready to go, without any consultation.  The redline [pdf] released before the Mar del Plata meeting seems to be a genuine draft.  So far, no one has commented on it in the public forum that ICANN has created, but we're still early in the process.

Cautious optimism.  If ICANN (when strenuously pushed by people who are paying attention) can reconsider its strategic plan, maybe it can reconsider its approach to consensus.  

A Pew Internet Project report [pdf] suggests that email usage is not dying in a sea of spam, as some feared it would.  Yes, we're still getting spam — in fact, we may be getting more all the time.  But we don't mind as much as we did a year ago.

Maybe we've made our peace with spam.  We sigh, we delete, we move on. 

I'm a fan of the Staples “easy button” ad campaign.  Want to learn how to deal with spam or spyware?  Easy!  Find a vendor who can help you — the same way that Staples can help you with office supplies.

Want to get only the stuff you're looking for, and avoid phishing and pornography?  Easy!  Just get used to using the internet, and you'll be fine. Learn some commonsense good practices, and you'll have a fine online experience. 

I know, this is too simplistic.  But I found the Pew report very cheering. 

What's the intersection between takings jurisprudence and the current fights over regulation of online access?  The answer may be “none,” but the issue is worth exploring.

A little background.  The Fifth Amendment allows property to be taken for “public use” as long as “just compensation” is paid to the owner.  Regulations (like zoning rules) aren't usually viewed as “takings” unless they meet some or all of the following requirements:

1. they have an unduly harsh impact on an owner

2.  they are not substantially related to a legitimate public purpose

3. they interfere with reasonable investment-backed expectations

4. they amount to a permanent physical occupation, or

5.  they deprive the owner of any reasonable economic use of his/her property.

If we said that all regulations were takings even if all they did was diminish the value of private property, our government would be stuck with paying everyone compensation for everything.  So it's quite difficult to claim successfully that any particular regulation amounts to a taking.

Let's say that an ISP went into business assuming that their connections to the internet were not subject to FCC regulation.  Then the FCC adopts a rule saying, for example, that no P2P connections may be permitted by any ISP.  Or that no ISP may block any ports for business reasons.  Or that all ISPs have to allow third party CALEA service providers access to their networks.

Is there any possibility of a legitimate takings claim based on any of these regulations?  It's not clear that any one internet user or ISP has a property interest in its online connection from which they could exclude everyone else.  But if you could show a cognizable property right that was constrained by these new regulations, would any of these rules amount to a compensable taking?

How about the blocking of ports?  If an ISP wanted to deny access to particular online services (for its own legitimate business reasons), could that ISP claim that rules prohibiting it from doing so amounted to a wholesale interference with its investment-backed expectations?  FCC can't say that allowing the ISP to act without constraint creates a public nuisance — something noxious and harmful.  FCC might say that constraining the ISP from proceeding to block any ports will confer benefits on the public at large — but the ISP could respond that it was trying to protect its investment, and its actions were both legal and essential.  (This argument of the ISP's likely would not be persuasive under current caselaw.)

Is there a claim that some ISP-related rules might amount to “exactions” that prohibit development unless an owner meets certain conditions?  Exactions are demands made by cities — property owners have to comply in order to obtain a government permit to build on their land. 

Now, ISPs don't (yet) need licenses to do business.  But if the FCC takes the position that ISPs do need to be licensed in some way, rules the Commission adopts may amount to takings if they're substantially unrelated to the original reason for the permitting regime.  So, for example, rules barring P2P services, or requiring different flavors of filtering, or furthering other “social policy” goals that aren't related to the reasons for ISP permits might amount to takings.

Takings claims seem quite unlikely at this point, I agree.  But if the Commission goes beyond requiring a framework for competition, and indulges in detailed rulemakings about the provision of online access, some providers (and even some end-users) may begin to think that their property is being unfairly taken away.

I went to a wonderful string quartet concert tonight (the Brentano).  They played Op. 132, and the slow movement was particularly beautiful.

Stanley Sadie, editor of the New Grove, died last month.  His obituary (just the beginning):

Stanley Sadie, a musicologist, writer and editor whose prodigious output included editing the last two editions of the titanic and authoritative New Grove Dictionary of Music and Musicians, died on Monday at his home in Cossington, England. He was 74.

Mr. Sadie had spent three weeks at a hospital in London, but was intent on returning home in time for the first concert in a music series that he and his wife run in a church near their home. The concert, on Sunday evening, was an all-Beethoven program performed by the Chilingirian String Quartet. Mr. Sadie was able to stay for the first half, but felt unwell and went home to bed. At the conclusion of the performance, the quartet went to Mr. Sadie's house, set up quietly in his bedroom, and performed the slow movement of Beethoven's Quartet No. 16 in F (Op. 135) as he drifted in and out of sleep.

He died the next day.

What does it mean when the vast majority of people subject to a law don't agree with it?  ”[O]ne of the philosopher kings of Internet law” (an epithet bestowed by the Times in an article today), said this more gracefully on Thursday night:

 ”What does it say about our democracy when ordinary behavior is deemed criminal?” Lessig asked.

Same question for internet gambling.  The US has largely prevailed in a trade dispute with Antigua, in which Antigua claimed that US interpretation of its laws to bar internet gambling amounted to an illegal restraint on trade. The US claims that these laws are “necessary to protect public morals.”

But the US makes online gambling work.  Half the money bet online ($7.4 billion in 2004, according to the Times today) comes from US bettors.  This is an enormous amount of criminal behavior going on in US homes.

If it's so wrong, why do so many people do it?  And if it's not wrong, why do we prohibit it?  I'm sure there are complicated reasons for this — something about powerful lobbies for horseracing and offline gambling casinos ensuring that the online versions of these things are illegal. 

But such dissonance can't be good for democracy.

It's conference time in the law school calendar, so just a short post today:  So many people seem to want someone to be in charge.

Hans Klein and Milton Mueller suggest that ICANN be overseen by an international body — and that ITU and ICANN compete with each other in managing registries.

Jon Zittrain suggests (at today's excellent Fordham conference [[pdf] organized by Joel Reidenberg — sorry, no link to JZ's presentation, but you really should have seen it — Jon was terrific) that that an international body be in charge of security for the internet.

Meanwhile, EFF suggests how to blog anonymously.  Just in case the people who are in charge of you don't want you to say anything provocative.

In-boxes overflowed today with screeds and rants (and other messages) about ssrn.com's tournament rankings of law professors and schools. 

We must have more important things to do than discuss this.  Obviously there's data out there about what gets read on this particular service.  Clearly that makes ratings possible.  So?

We can't control this, it's not worth gaming, and it's just one of many indicators of online intellectual life.  There are plenty of offline indicators that aren't captured by these ratings.  I realize I'm just adding to the number of screeds and rants about this, but the emails keep crashing in, thumping against the shore of my limited (see last entry) attention, and I felt the need to voice my incredulity.

Meanwhile, in other (non)news, I hear that some people at the ICANN meeting in Argentina are waking up to the fact that the process for the strategic plan was severely flawed.  What about the substance?  Is anyone talking about the drastically-changed contracts ICANN is demanding from new registries?  Bret – send word!