Everything Is Covered
I've written in the past about the risks to as-yet-unborn inventions and applications posed by CALEA.
(Note: Cheer up! Conservatives should care about this issue. It's all about right to life — in the CALEA context, the right of new innovations to come into being without asking permission. Can't we all just get along?)
I want to point out that the recently-issued CALEA Order has language that extends its application to absolutely everything.
Any application that is ”capable of” connecting to the traditional telephone network is covered. (”To be clear, a service offering is “interconnected VoIP” if it offers the capability for users to receive calls from and terminate calls to the PSTN; the offering is covered by CALEA for all VoIP communications, even those that do not involve the PSTN.”)
Any network connected to either the PSTN or the Internet is covered. (”To the extent . . . [that] private networks are interconnected with a public network, either the PSTN or the Internet, providers of the facilities that support the connection of the private network to a public network are subject to CALEA.”)
See how broad this is? The internet has been redefined as “a public network,” and any VPN that touches it is potentially subject to law enforcement design.
The fundamental reading of the CALEA statute's exclusion of “information services” is wrong — but all Congress has to do is fix that. The breadth of this Commission's claim to power over applications and networks is breathtaking.
Who will have the courage to fight back?
Not what it seems
There was a roundtable discussion this morning here in Manhattan that was, on its face, about the relationships between and among bloggers and journalism. Several BigMedia moguls were there — and it's easy to tell why and how they got to where they are. They were curious, charming, thoughtful, and well-spoken.
Yet they seemed stuck — particularly the print journalists.
These are not slow, out-of-it captains of industry. They'd probably like to figure out a way to run truly online businesses that are successful. (Although they have a way of saying that they want to “use” or “leverage” bloggers that can make you feel a little nervous.) But it's extraordinarily difficult for them to hire top techies and find ways to get new products, new ways of delivering knowledge, out the door.
The TV guys are much more comfortable with the future. They have global networks that will be very hard to replicate, seemingly indestructible brands, and the visceral human attraction of moving faces and objects to keep them in business.
The print guys are very proud of their priesthood, and the culture of journalism is just about the strongest professional bond I've ever seen. The emotional energy that filled the room when the print guys started decrying the “potentially deadly” inaccuracy of bloggers was remarkable. We Are The Truth, they seemed to think — We Have Standards. Those bloggers, they're just typing. We do so much more.
That's the part — the pride — that made me worry about beloved print journalism. It seemed like a hallmark of descent. We were the best, we were the truest, and even though the blood is running thin and our chins are weaker and our shoulders are rounder, we come from the finest stock. (Speaking of stock: not a diverse group.) I'm familiar with this kind of thinking — I myself am a lawyer and a WASP, two groups that have priesthoods and enormous pride. And are no longer what they used to be.
Everything is changing, the bloggers told the journalists. Play to your strengths in this new world. Give us authentic voices, associative trails, membranes of stories, predictions of impact on the world, visualizations — do all of that, and you'll survive.
But BigMedia, and particularly the print parts of it, are acknowledging that they are slow to change and stuck with enormous staffs and built-in distributor relationships (not to mention staggering newsprint costs). I felt great sympathy for them, even as I struggled to understand their view of the world.
Of course, neither the bloggers nor the journalists will win in the end. The computer will soon cease to be a technician and come into its own as an artist, showing us patterns of meaning based on all of our contributions. It's evolving faster than we are. BigMedia needs to get into the business of writing algorithms rather than news stories.
That's a big change. Under its surface, this well-dressed roundtable discussion (complete with waiters) was really about a future that none of us can hope to control.
Viola interlude
Someone said to me recently that he liked the music posts best. So here's my latest viola adventure.
There's a place called the Baggot Inn on W. 3rd that has a bluegrass jam session every Wednesday night led by a guy who calls himself Sheriff Bob. It's a scene.
In the back room of the bar on Wednesday nights, there are twenty or so people standing in a circle playing banjos, guitars, and a couple of other instruments. They're playing LOUD. Some of them play really really well. They've chosen a key, and a song, and they're off. As they get to the next eight-bar section, there's a signal (ineffable, but firm) to the next person who's supposed to take off and play.
I went there a couple of weeks ago to show a friend of mine that I could play there too (he's been having a lot of fun playing there), and I plunked myself right down in a chair in the middle of the room. There was a guy next to me playing the violin who kept saying, “Oh, I love the sound of the viola.” And every once in a while someone would signal to me and yell VIOLA and then I had to play.
But I don't know a thing about how to play bluegrass, and mostly all I could do was play long foghorn-like interludes (that's the viola for you). At least they had the right notes in them. The guys seemed pleased.
It was great, it was loud, it was late, it was was steamy hot in that back room. It was fun to be in the middle of all that synched sound.
But, truthfully, I don't think the viola is a bluegrass instrument. It's more of a humming kind of instrument. Accompaniment. Off-beats. That's the viola for you.
WSIS/Barton-Dingell/Television Sans Frontiers
Bob Shaw, Internet strategy and policy adviser at ITU's Strategy & Policy unit, ties together many strands in today's Washington Internet Daily [not available online, but a fine publication nonetheless].
He sees Barton-Dingell as an “Internet-era type regulation.” He sees the Television Sans Frontiers directive as the same kind of thing. I'm confident that he sees ITU's NGN initiatives the same way.
We're heading into a world in which network providers want more control over competitive services. For those of us who are loath to encourage governments to get involved in network management, this is a difficult moment. In a world without choices, what does it mean if no network manager wants to provide (or is allowed to provide) access to an open internet? How can the market fix this problem if no market actors are interested in fixing it?
So for those of you who wonder why I'm concerned about networks blocking Skype (after all, why can't networks managers be free too?) here's my answer: it's a difficult time. Asking for nondiscrimination (simple rules) is better than giving up.
CALEA: Divide and conquer
Bottom line: There is no principled distinction between VoIP applications that are “capable” of connecting to the traditional telephone network and any other online application. If VoIP has to be designed in advance to meet the requirements of law enforcement, including demands for standard forms of data and back doors of various kinds, all applications — email, IM, everything — will have to be designed this way.
A little review: Under the federal wiretap statute, all electronic communications — no matter whether they are in the form of faxes, emails, or VoIP calls — can be intercepted legally by law enforcement if a wiretap order has been obtained.
Under the 1994 CALEA, telecommunications providers –common carriers of telephone communications – must provide certain specific capacities and capabilities to make wiretapping easier for law enforcement. Congress specifically elected to leave out of CALEA's coverage ”information services, such as electronic mail services, or on-line services, such as Compuserve, Prodigy, America On-line or Mead Data, or Internet service providers.” There's a good deal of legislative history making clear that CALEA's application was narrowed to telephone carriers in order for it to pass.
On Friday, FCC released its CALEA First Report and Order [warning, large pdf] covering broadband access providers and “interconnected VoIP” providers.
Using what Comm'r Copps labels a “stretched” and “pushed very hard” interpretation of the CALEA statute (Comm'r Abernathy pleads for Congressional help because “some might not read the statute to permit [this] extension of CALEA”), the Commission has taken a statute that excluded information services and read it to include them — without any empirical demonstration that there is a need to do this. The implications of this quasi-legislative move are enormous, and litigation over the Commission's authority to trump Congress is more than likely.
The Commission has found a couple of ways to avoid the “information services” exclusion. If this document could talk, it might say (I'm providing the words):
First. ”It doesn't matter whether something is an information service, even though we've fought very very hard in other contexts to keep things in the category of information service, because CALEA should cover things that are 'substantial replacements' for traditional telephone service. We're not going to require empirical evidence that anything is supplanting telephone service — instead, we're going to look at the traditional functions of telephone service and see whether they're being provided by something new. Here, broadband access is functionally just like dial-up access that used to be provided by local telephone companies. And VoIP services that are capable of interconnection with the telephone network are just like traditional telephone service. Packet switching and circuit switching are just the same, functionally, so by using the word 'switch' Congress must have meant to include transmission to and over the Internet. So both broadband access and interconnected VoIP are covered under CALEA.”
Second. “Even if broadband access and interconnected VoIP aren't substantial replacements for traditional telephones, they're still 'telecommunications carriers' for CALEA purposes because 'information services' should be read more narrowly under CALEA than it is under the Telecommunications Act. These two sets of terms — 'telecommunications carriers” and 'information services' — are mutually exclusive Both broadband access and and interconnected VoIP services are providing switching and transmission services to the public, so they're covered by CALEA.”
This order is only about coverage. It doesn't say anything about how CALEA's mandates as to design of services will be applied to broadband or VoIP providers. The Commission's plan is that entities that know they're covered by CALEA will start thinking that way now, and in 18 months they'll be in full compliance with whatever CALEA requires.
Scope — the idea is that CALEA will apply to all forms of broadband access, whether now known or later developed. So broadband over power line and satellite and other access notions are covered ahead of time. (Broadband is very broadly defined to cover any kind of access any of these actors might be providing.) And, as the Commission announced in an accompanying Further Notice, it will be thinking about whether other VoIP services should be subject to CALEA. (It is also, of course, thinking about whether other VoIP services should be subject to E911 obligations.)
Level playing field. The Commission (somewhat disingenuously) says that the application of CALEA won't distort competition in any way, because all VoIP and access providers will have to do it. “They're all saying they're complying with law enforcement already,” the Commission points out.
But, once again, the field isn't level when it includes large incumbent telephone and cable companies who are already working through CALEA issues for their own offerings. New entrants will be crushed by having to ask permission and await responses from law enforcement. What's required will remain negotiable.
The permission culture continues. Congress will have to grapple with this issue once the inevitable lawsuit is resolved. There must be better ways to get law enforcement the data it needs without also giving it veto power over the design of online applications.
References to terrorism abound here. To oppose this Order is to be on the side of criminals. As in the E911 context, the level of implied rhetoric is very high. If you're against this, you must want to kill people.
Subvert, Bootstrap, Gut, Repeat
The FCC's recently-issued “Policy Statement” is a thing of beauty. It's like a bonsai garden, revealing in its miniature structure timeless themes of humanity and despair.
The substance of the statement hasn't changed since FCC first anounced it on August 5. It's only three pages long, but it has fifteen footnotes. Watch what the Commission does.
Subvert. First, the Commission points to Section 230 of the 1996 Act for authority as it extols the glories of the internet. But Section 230's findings include the following statement of U.S. policy:
(b) POLICY. It is the policy of the United States . . . (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation . . .
The Commission ignores that part, because it is well on the way to regulating Internet services.
Bootstrap. The FCC is delighted with dicta in BrandX that it believes gives it authority to do anything it wants to under Title I of the 1996 Act. Next, it takes the opportunity of this Policy Statement to quote the dictum (”has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction to regulate interstate and foreign communications”) on which it will be leaning very heavily in the months and years to come.
Gut. Finally, the very last footnote says, “The principles we adopt are subject to reasonable network management.”
These principles aren't a policy statement. They're not enforceable. They're trumped by any network provider's Terms of Use. They're nothing — but they have given the Commission a chance to subvert and bootstrap.
Next — CALEA. The order comes in at 59 pages.
Separateness and permission
Rumor has it that the RIAA and the MPAA are joining forces to make sure that the FCC has statutory authorization to impose technology mandates covering both digital audio and video.
Look how broad this draft language is:
The Federal Communications Commission –
(a) has authority to adopt such regulations governing digital audio broadcast transmissions and digital audio receiving devices that are appropriate to control the unauthorized copying and redistribution of digital audio content by or over digital reception devices, related equipment, and digital networks, including regulations governing permissible copying and redistribution of such audio content….
That covers all possible home copying and transmission, all possible consumer devices, and all possible online audio services. The DTV provision will be just as broad.
Everything you do with digital content will need regulatory permission.
What's really going on here is that the content industry and the network providers are joining forces to go backwards in time. They're working on re-creating the era before CarterPhone (no unapproved devices!) and the 1996 Act. They're working on reinstantiating the physical borders and boundaries that used to serve them so well before the internet came along.
The collective goal of these powerful actors: Apartheid. Technological separateness. Online audio and video services will be cleanly categorized and billable. Only permitted devices will be allowed to interconnect. There will be no required interconnection to unauthorized services or devices.
The arguments of both content and network providers are the same: “This is our property. We own it. We will have no incentives to produce more of it — more broadband access or more movies — unless our rights are protected.”
This is the key battle. As interesting as muni wireless is, it's a distraction from this central dispute over the future of the digital era. (In fact, I'm even wondering whether ex-MPAA Jon Leibowitz's fiery statements about muni wireless yesterday were calculated to draw more attention to this briar patch.)
Surely it's too late to go backwards.
OneWebDay
Today I'm talking at the Berkman Center (David Weinberger did a post here) and at the MIT Media Lab about OneWebDay.
What's OneWebDay?
The internet has revolutionized the lives of people all around the world, who treasure the interaction and cultural richness they find online. Because the internet is made up of machines, people sometimes think of it in a mechanical way – and, often, as a machine that needs to be “fixed.” But the internet is as interesting and diverse as society itself. It is also fragile.
Just as we have an Earth Day to celebrate and focus on the health of the Earth, we need a day to celebrate the health and diversity of the internet and our interactions online. OneWebDay, planned for Sept. 22 of every year, will provide a chance to do that.
On Earth Day (April 22 of every year), hundreds of thousands of individual projects happen, uncoordinated by any central office. People do all kinds of things on Earth Day, from planting trees to holding educational summits. OneWebDay will be the same kind of broadly-planned day. Just like Earth Day was encouraged by a picture of the Earth from space (a blue marble floating alone in a black void), a key element of OneWebDay will be a visualization of the interconnected web available for anyone to use.
But OneWebDay is not just about pictures. It’s about action. We’ll be encouraging global efforts to wire villages, connect schools, put up more hotspots, build collective online artworks, write and perform collective online music, show “days on the web,” and many other barn-raising and creative and connecting projects. We will have a major offline component, with people telling stories about how the web has changed their lives, and showing each other special OneWebDay artifacts. There’s no limit to what will happen on OneWebDay every year.
How is this going to happen? Somone has to lead, at least initially, until the day has a life of its own. I’m meeting with institutions and companies and the entities they point me to. I’m looking for contacts at each institution to lead volunteer efforts to create infrastructure and spur projects. Right away, I need help building a web resource at onewebday.org that will provide an easy way to attract, collect, and display information about OneWebDay projects. Some of these projects, like oral histories of web influence on individual lives, should start right now. I need help building international networks of institutions to work together on OneWebDay, once the architecture of onewebday.org is set. And I want to get the word out to people all around the world. It took seven years to get Earth Day going, and we have a year until OneWebDay.
There have been NetDays in the US and in other countries, and I am planning to coordinate with NetDay organizers. I need help reaching these people. The NetDay mission, which focuses on wiring up institutions, is very close to what OneWebDay is. OneWebDay is also about celebrating individual human interactivity and creativity online – recognizing that the web is not (just) television, but also a human language; that the internet is not (just) machines, but also society. People light up when we talk about OneWebDay, and my goal is to help that energy become a memorable day each year.
Email for me is scrawford at scrawford dot net.
Why Google Is Right
Get interested in GooglePrint. It's one of the best plans that Google has, and it needs to happen. No one is going to bring more books to the attention of the world — and help more authors — than Google. Here are all the reasons that we should applaud Google for going forward with GooglePrint, and all the reasons why Google will prevail in the (sadly) recently-filed lawsuit.
1. Google had a great idea. Let's make the books in the libraries of Harvard, Stanford, Oxford, and Michigan searchable. (Note — the idea wasn't “let's give the books away.” Not at all. The point is to make them searchable, not takeable.) There are all these wonderful books that these great libraries want to interest people in, but they're up flights of stairs, on dusty shelves, and in darkness. Let's make them searchable so that people know they're out there.
2. The libraries have a great public mission: to bring knowledge to people. (I love libraries. I especially love reading rooms.) But the libraries don't have the money or the resources to make their texts searchable. Google, as it happens, does. Google is great at manipulating enormous amounts of information in a user-friendly way. If someone else were doing this, that would be great. Sometimes libraries do make entire works available online — the New York Public Library made hundreds of thousands of public domain images available for public searching. But the great libraries of Harvard and Stanford and Michigan and Oxford looked over Google's plan to make snippets available and thought it fit their public mission.
3. Hear that word, “snippets”? That's all that Google proposes to do. In response to search queries, people will be able to browse the full text of public domain materials (material no longer protected by copyright). But when it comes to books that ARE still covered by copyright, users will only be able to see a few sentences surrounding the search term. That's a key fact that people seem to be missing. You won't get the whole book. In fact, you won't even get a whole page (unless the holder of copyright has affirmatively allowed Google to show entire pages). And you'll only get three results for any given book's use of a particular term.
4. Sure, I guess, people could carefully search and search for hours, and attempt to build up an entire book, but that's both painful and silly. And unavoidable. Google has created a system that has checks in place that these great libraries thought were fine. I think they're fine too. The aim, goal, purpose, thrust, point of the program is to reveal resources that might have something to do with the search term you're interested in. (Try GoogleScholar — it's pretty neat.) Then you'll go and get the whole book from your local library if it looks really relevant. And your library will be delighted to help you!
5. Everyone does research online. What author wouldn't want to be part of the pool that we look to for research information? Who wouldn't want to be noticed?
Here's what a screenshot looks like from the libraries project:
See? That's all you get.
6. When Google first heard last month that some publishers were unhappy about GooglePrint, they stopped scanning books and said they wouldn't scan any more until November. And Google said that if a publisher told them that they didn't want particular books to be part of the library project, they'd honor these requests.
7. It's impossible for Google to say to all publishers (what a big world!) “tell us which books you WANT us to scan, and we'll do it.” (Imagine running a search engine on this basis.) So Google is doing the next best possible thing — giving people an easy way to opt out of the project.
8. Now, some authors are upset, and they have sued. They're saying they're not upset about the snippets. They're saying they're upset about the complete scanned copy that Google has made in order to make the snippets available. These complete scanned copies aren't public. Google has to make these copies in order to make the snippets happen.
9. All computers do is copy. Copyright law has this idea of strict liability — no matter what your intent is, if you make a copy without authorization, you're an infringer. So computers are natural-born automatic infringers. Copyright law and computers are always running into conflict — we really need to rewrite copyright law. But even without rewriting copyright law, what Google plans to do is lawful.
10. What makes Google not an infringer is the affirmative defense of fair use. Google says, in effect, “yes, a copy is an infringement. But it's justified.” There is no way that Google can make the Great Library of Alexandria open its doors to curious outsiders without (initially) making a private, unsold copy.
11. Under the Sec. 107 fair use factors, there's a well-known 2003 9th Circuit case called Kelly v. Arriba Soft that fits the Google facts extremely well. Arriba made thumbnail (small) versions of online pictures available in response to search requests. Like Google, Arriba had to make copies of the original material in order to do this. And the 9th Circuit found that Arriba's use was privileged as a fair use.
12. Like Arriba, Google is not trying to sell copies of these original books. Google, like Arriba, is providing a useful tool. Google, like Arriba, is copying entire books in order to make the library project happen, but it has to do that in order for its search engine to function. In fact, Arriba was making a tiny version of the whole work available — Google isn't doing that. It's only making a tiny portion of the whole work available. In the course of doing that, it has to make an intermediate copy — like many other transformative processes, this one starts with a chunky first step.
13. The authors who are suing are claiming that they'd like to license their works for online searching themselves — and they're free to do that. They can simply ask Google not to include them in Google's pool. Their claim is that that's too much of a burden. Phooey. Google's inclusion of their books in the searchable pool can only help these authors, not hurt them.
14. What Google plans to do with books is worth cheering for. Sure, they're ambitious. Sure, they're rich. But I don't think this project is aimed at supplanting purchases of books. Far from it – these dusty tomes will see the light of the digital age because of the Google scanners. People are buying more and more books these days because of Amazon, and I see no reason why that effect won't be amplified by having Google make searchable texts available.
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I know it's fashionable to be dubitante about Google these days, but I refuse to do it with respect to this program. I love books, I love libraries, and Google is serving the best interests of both with snippets framed by clear (lovely, really) interfaces. Go, Google.
Backbone/network filtering
Drumbeat. Drumbeat.
Verso announces ways they want to help networks filter out Skype (my school has already done this to me quite successfully).
Michael Geist lets us know that Telus (Canadian backbone provider) has blocked more than a million people from seeing a Telecommunications Workers Union site.
We still haven't seen the FCC order confirming that network providers can do anything they want to in the course of their efforts to monetize the internet. But it's coming.