No Reason for Optimism
When the FCC met in open session late last Friday morning, everyone on camera seemed exhausted. Commissioner after commissioner thanked staff for their tireless, late-night efforts, and at least one Commissioner said his staffer would need to reacquaint himself with the family at the beach this weekend.
Late-night regulation is always risky (remember the DMCA?), and vacation schedules may have driven the deal-making for this series of items. The FCC both substantially undermined existing U.S. internet policy and got everyone to Rehoboth on time.
I hope they all had a pleasant weekend. We won't have the operative texts (the actual Order and NPRMs and policy statement) until later this month, so perhaps we should reserve judgment. But let's review what happened Friday:
1. The FCC pounced on Justice Thomas's dicta in BrandX, and declared that it has authority to make whatever rules it wants to about Title I information services. (Any online application or IP-enabled anything is an information service, if you take the FCC's perspective.) Title I, in turn, says nothing about the subjects that are appropriate for FCC action.
So we are now in a world in which, notwithstanding Congress's instruction in the Telecom Act that it is the “policy of the United States” that development and use of the internet be “unfettered by federal or state regulation,” the FCC is applying whatever “social policies” it believes are appropriate to internet services. To whom is the Commission accountable? It's not clear.
2. The Commission adopted a policy statement which seems to embrace the “everything not permitted is prohibited” view of traditional proprietary network providers when it comes to the internet. I'm confident that Yahoo! and Google and eBay and others tried hard to get stronger language on network neutrality (and maybe even an enforceable rule), but what we got isn't very persuasive. Indeed, the language we have so far is Janus-faced:
a. ”consumers” (not creators!) are ”entitled to access lawful internet content.” Entitled? Access? Lawful? Content? Who decides what's lawful? As I've said in the past, providers' terms of service may set the bounds of what's lawful.
b. “consumers” can run applications and services “subject to the needs of law enforcement” – which means only permitted, CALEA-compliant applications will be allowed. Can we hope that “consumers” will rise up and object if their every click is surveilled? Unfortunately, we can't.
c. “consumers” can connect “legal” devices that “don't harm the network.” What happened to Carterphone? A network provider can claim that anything unauthorized harms its network. Any open PC can be claimed to harm a network because it makes unlawful activities possible. Remember the broadcast flag? Part of the rationale for that order was “protecting the broadcast signal.” Those same rationales will come up again.
d. “consumers” are entitled to competition among network providers. Whoop-ti-doo. Chairman Martin views the current access situation as “characterized by multiple platforms that are vigorously competing for customers.” So ”you have two choices” is competition.
Watch for this language to be used by network providers to mean “consumers' ability to choose our customized services means competition exists.” Choice is such an easy concept to abuse. For example, the RIAA has long said that mandated DRM will make many more consumer choices available. Remember that the controlled ability to offer many choices carries with it the ability to offer just one.
[David Isenberg compares this statement to Powell's famous “four freedoms” here.]
3. The FCC is requiring application providers who happen to use the telephone namespace to get pre-approval from law enforcement — to make sure that their applications are easily tappable. This is the CALEA part of the order. At the moment, it appears that the FCC has only said “this new category of things is covered,” and hasn't said exactly what procedures or standards will apply. But this is a huge step that is not bounded by any particular principles. The Commission has already indicated (in its E911 order adopted earlier this summer) that it wants to expand the definition of “interconnected VoIP,” and that it wants to ensure that all VoIP-capable devices — including PCs — automatically report their location by next summer. So now we have an unknown set of law enforcement pre-approval requirements that will apply to an ever-expanding set of devices and applications.
More generally, law enforcement and homeland security (these last two words are beginning to sound too familiar — what happened to the frightening chill they initially triggered?) are driving the Commission's plans. Like the Coast Guard, the FCC will someday be part of DHS.
We can talk about “lines in the sand” that are drawn by the open access principles adopted by the Commission; we can talk about burgeoning competition that will be encouraged by broadband providers; but it's all talk. There are no limits here. We are racing towards a new controlled online future, and the network providers will be implementing packet inspection technologies that will make blocking all unapproved activities a reality.
But thank goodness the staff will be on vacation for a while.