Hiatus
It's time for the Susan Crawford blog to take a break. I'll be back in a couple of weeks after a series of (mild, but offline) adventures. Thanks for the emails and the comments.
Sometimes someone should be in charge
I talked last night to a string player in a conductorless orchestra. He had spent six hours earlier yesterday in rehearsal with the group, and he had had more than enough. “It's hell,” he said.
The idea of a conductorless orchestra is effortlessly cyberian. Beautiful music, made without anyone in charge! Through listening and reacting, through feedback and awareness, the net becomes intelligent and produces order for free. No one has to direct its growth.
But listen to my conversational companion from last night: “There are these people that just love to hear the sound of their own voices. They can't even explain what it is they want. They say, 'More like THIS,' and bend an elbow or something, and no one knows what the heck that means. The people I respect never say anything. No one shuts anyone else up. It's just awful.”
He also said that music by committee ends up being bland. Not all chamber orchestra works can be played without a conductor, so you pick particular things that you think the group can cope with. And then during rehearsal those things are smoothed and simplified, by necessity, so that they sound coherent. Without someone at the helm, making demands, no sound can startle.
Scale matters to this story, of course. A string quartet doesn't need a conductor. Not even a brass quintet needs a conductor. But an orchestra — it needs someone in charge.
I'm not going to draw any grand conclusions here. Software can do a lot to create order. It can facilitate as well as constrain. No one needs to tell the developer what he/she is allowed to do, and the internet doesn't need a conductor. The synchronous accuracy that makes or breaks an orchestral performance isn't even relevant online.
But the face of my jaded, punchy friend, emerging from six hours of consensus-building, told a story in itself. He had had more than enough of earnestness, and was longing for a conductor and a drink.
911 and VoIP
Reuters reports that the FCC tomorrow will adopt rules for VoIP 911 services. When will the first lawsuit be filed?
I am not looking for litigation work, but it seems to me that this entire charade is purely political. The Bells have had enormous trouble implementing 911 for cellphones. They're still having trouble. And now we're going to ask VoIP providers (nascent businesses! competing with the Bells!) to do this in 90 days? 120 days?
And we're not going to require the Bells to allow the VoIP guys to access their equipment for these services? What?
This is crazy. It's not even clear what the Commission thinks its source of jurisdiction is. Non common-carrier VoIP service providers surely don't fit under Title II. And the DC Circuit has clearly told us that Title I isn't the ever-expanding golden purse that the FCC thought it was. So just what gives the Commission the power to do this?
It has to be that the FCC has become convinced (tell me this isn't the case) that independent VoIP services have to be squelched. Run out of town. Diminished so that they can't cause trouble for the big guys.
Luckily, there are many Article III judges who will be available to look hard at this set of issues. The FCC should find some principles — fast.
What Makes a Life Significant?
In John Markoff's wonderful book, “What the Dormouse Said,” Doug Engelbart runs across an essay by William James that changes his life. The essay is entitled “What Makes a Life Significant,” and I ran right out online and found it. It's well worth reading.
James tells us that a significant life is a life lived in the service of ideals — particularly when those ideals are combined with pluck and will, “dogged endurance and insensibility to danger.” Because we can never know which ideals someone holds dear, without knowing that person well, it is not right to dismiss him or her as a fungible member of a human category. No life lived for an ideal is insignificant.
The Lloyd Cutler memorial service yesterday was captured by the Post here. The article is accompanied by a picture of Justice Breyer laughing with AG Gonzales. They're laughing at a verbal dagger thrown by Sen. Clinton. It was quite an afternoon. It was an extremely long afternoon. Cutler engaged intensely with many many different institutions — the Metropolitan Opera, Yale, the American Law Institute, the Salzburg Seminar, the Presidency, his law firm, the Supreme Court, his family — and it was nearly impossible to fit it all in.
What's the ideal that Mr. Cutler lived for? Louis Cohen captured this in his speech. His was the very last remembrance, at the very end of the day, after many people had hurried out, drawn by the call of cellphones and dinner engagements. Lou said that Lloyd solved problems. He didn't do just what the client said to do (too many lawyers see their jobs this way). Instead, he found the high road, the right answer, and persuaded everyone else to go along. He served the US over and over again, solving problems for Republicans and Democrats alike. He lived a significant life.
Supreme Court and Wine
The Supreme Court today struck down limitations on wine sales that had been created by states. Good news for further commerce clause arguments about state spyware laws.
I'm in transit — Boston yesterday, DC today — and I'll have something more substantive to say tomorrow.
BrandX argument
The BrandX transcript is worth reading, even though it's heavy sledding for the non-telecom-literate. To the extent the Court's intentions can be gleaned from its questioning pattern, the FCC surely lost this argument. The Justices jumped all over the petitioners (TW and the DOJ), and let the respondent offer a calm tutorial — barely interrupted by a question. The Commission's logic:
1. Phone companies have always been common carriers. Cable companies have not.
2. Phone companies have to provide separate pure transmission services (”telecommunications services”). Cable companies do not.
3. Because of 1 and 2, cable companies offering transmission to the internet plus email (”enhanced service”) over cable modems shouldn't be regulated as common carriers.
4. Besides, it would be the wrong thing to do to impose interconnection/nondiscrimination obligations on cable modem service, and maybe we won't attach those obligations to naked DSL service (although, right now, we do).
The Commission's argument has to stem from the premise that the internet itself is an “information service” — some kind of giant data processor — and providing access to it is also an information service. TW's lawyer, Paul Cappuccio, said that accessing a web site is different from making a phone call:
[Accessing a site] is not simply sending bits over a line and having those bits not changed and not interfered with. When you retrieve something from a server, you have to take it in form it is on the server, you have to then put it through the transmission system, and you have to reconvert it back into what you want to see. It's an interactive process that is more than just sending information.
What? The browser does conversion, sure, but what's the cable operator doing? It's providing access — transmission — to a network. So are ISPs. So is everyone in the chain.
So now that we know that everyone in the chain is potentially a common carrier, the thing to do is to take a Netcom-like approach to this issue. Rather than make everyone liable for the traditional regulatory burdens of common-carrier-dom, let's dismantle the whole edifice. As in Netcom, let's say that direct, physical access to the consumer/business (in the Netcom context, direct infringement) is the thing we'll regulate. We'll turn it into a public utility. And we'll leave everything above that alone. We did this with energy — we can do it with online access. Sure, there will be a few takings cases — but that will be entertaining (and lucrative) for everyone.
It seems to me that the 1980 FCC proceedings (that talked about computers owned by common carriers doing data-processing) did not have the internet in mind. But everyone involved in the telecom rewrite discussion – cable companies, Commission, phone companies – believe that there's nothing particularly special about the internet. “Oh, we talked about that 25 years ago,” they say.
The internet is not a data-processor, and it isn't under the FCC's jurisdiction, and IP-enabled services are not (or should not be) “information services.” It's time to take this all apart.
Problems
Norbert Weiner famously hiked for hours. And swam, belly up, with a lit cigar in his mouth.
Albert Einstein took a violin with him everywhere he went, and played every day.
Here's an Einstein reminiscence:
I sometimes ask myself, how did it come that I was the one to develop the Theory of Relativity? The reason, I think, is that a normal adult never stops to think about problems of space and time. These are things which he has thought of as a child. But my intellectual development was retarded, as a result of which I began to wonder about space and time only when I had already grown up. Naturally, I could go deeper into the problem than a child….
Distribution (II)
Three things: First, Judge Marilyn Hall Patel is a confident, no-nonsense person. Just look at the bold way she dashed off the date on this order [short pdf], issued yesterday. She knows what she's talking about.
In this order, she makes short work of the absurd suggestion that one of the statutory exclusive rights of a copyright holder — the “distribution” right — was somehow amended by the ART Act to include the right to “make available” electronically. We knew this argument was going to be made, and it's nice to see it being knocked down so handily: “If Congress wanted to make clear that the distribution right was broad enough to encompass making a work available to the public without proof of actual distribution, it is perfectly capable of doing so.”
(Thanks to Fred von Lohmann.)
Second, it looks like we're heading swiftly into deep broadcast flag legislative territory. Drafts are being circulated now that would ratify the November 2003 order and give the Commission the authority to “adopt regulations governing digital television apparatus necessary to control the indiscriminate redistribution of digital television broadcast content over digital networks.” Does this include the authority to (attempt to) close the analog hole?
Third, I've been diving into telecom lore. It feels as if this is going to be a transformative mental experience — similar to what happens to you after your first year of law school. Before: a wifty music major (did you see this week's New Yorker cover?). After: a canny, jaded, argumentative employed person. If you need a good reference/introduction to telecom policy, Jon Neuchterlein and Phil Weiser have put out a well-crafted book on the subject (highly recommended).
Good fortune
The Times today ran a delightful story on the front page about a sudden surge in successful lottery-number-picking that made the Power Ball authorities worry. It turned out, on investigation, that more than 100 people had played a number that they had read on a fortune cookie message. The cookie number turned out to be very very close to the winning number – close enough to entitle the cookie-readers to a cumulative payout of almost $19 million.
Investigators visited dozens of Chinese restaurants, takeouts and buffets. Then they called fortune cookie distributors and learned that many different brands of fortune cookies come from the same Long Island City factory, which is owned by Wonton Food and churns out four million a day.
“That's ours,” said Derrick Wong, of Wonton Food, when shown a picture of a winner's cookie slip. “That's very nice, 110 people won the lottery from the numbers.”
Last night I was the happy recipient of a remarkable fortune-cookie future-life prediction — undoubtedly from Wonton Food.
On the “A” side, it says: There is a prospect of a thrilling time ahead for you.
On the “B” side, it says: [try to] Speak Chinese: I am a lawyer.
See? Being a lawyer isn't so bad after all. It could even be thrilling.
[numbers to play: 40 41 13 2 22]
Access
Does anyone care that the customer agreements for Verizon's and Comcast's broadband services say You Can't Run a Server? (and We Reserve the Right To Change Any and Every Aspect of Your Online Access and This Agreement Without Notice?)
I know that internet users don't necessarily want freedom of action. Heck, the internet looks dark and dangerous to many people. But in light of the Markoff and Waldrop books I exclaimed over earlier this week, I'm feeling bolder. How can the provision of online access be so easily constrained? There isn't a whisper of a mainstream media murmur about this.
Maybe it doesn't matter — maybe running a server is something that only extremists would do. But don't we want to defend the (lawful) actions of extremists?
And if these limitations stem from bandwidth worries, why aren't there concerns about the absence of significant players who can both provide symmetric broadband access and support the freedom to run servers? Why not have cheap “no server” broadband available to most of us, and slightly more expensive “you can run a server” broadband available for other (ordinary, non-enterprise) people?
And how about those easily-amendable subscriber agreements? The argument must be that Verizon-SBC/Comcast-TW have no incentive to make their customers angry — so they'll be reasonable and we needn't worry.
But I'm worried anyway.
++++++
Verizon 3.6(E): If you subscribe to Broadband Service. . .You may not use the Broadband Service to host any type of server personal or commercial in nature.
Comcast 5(b): Without limiting the generality of the foregoing, the Service is for personal and non-commercial use only and you agree not to use the Service for operation as an Internet service provider, a server site for ftp, telnet, rlogin, e-mail hosting, “web hosting” or other similar applications, for any business enterprise, or as an end-point on a non-Comcast local area network or wide area network.
(by the way, how can Comcast ensure that no subscriber runs a “business enterprise”? I'll bet lots of people do business using Comcast broadband.)