Archive for January, 2006

Back in November 2005, Reps. Barton and Upton floated a telecom bill that appeared to have nice language in it about network neutrality. 

But it also would have allowed providers of high-speed (fiber optic) broadband video services to offer “enhanced quality of service to subscribers through the [network provider’s] utilization of network and routing management or customized hardware.”   

“Broadband video services,” were in turn defined as those services “delivered directly to subscribers over facilities the service provider owns and controls.” 

Now, this may sound perfectly rational:  we built the high-speed network, we can use it to provide enhanced services for subscribers.  And, indeed, the draft legislation goes on to provide that broadband video services “may not block or unreasonably impair or interfere with . . the use of any lawful content, application, or service provided over the Internet.”  

But it has finally become clear to me that the telephone companies are planning to ensure that subscribers never see “the Internet” at all over these high-speed connections.  Instead, subscribers will see the “broadband video” offerings of the network owner, to which particular paying web sites and paying VoIP services have been added.  They’ll be able to access “information derived from the Internet,”  in the words of the bill, but not the internet itself.  Only those willing to pay for slower access speeds (and perhaps willing to pay more for these slower speeds than for the high-speed access) will be seeing “the Internet.”

“We built it, and so we own it, and we won’t block access to the internet,” the telcos say.  But this is rhetorical legerdemain.  “We built it,” means “We built high-speed access.”  “We own it,” means “We own our high-speed access fiber networks.”  “We won’t block access to the internet,” means “This high-speed network will let you see information derived from the Internet from partners who have paid us.  It isn’t purporting to carry ‘the internet,’ and so we aren’t blocking access to ‘the internet.’  If you want ‘the internet,’ go buy another, slower service, from us or someone else.”

In a nutshell, in the Bells' minds refusing to provide access to the public internet via their high-speed networks is completely compatible with network neutrality.  Sure, they'll be neutral — when it comes to slower, 2001-era speeds that (eventually) no one will want.

Phooey.

In early 2001, after the French court had issued its interim order mandating that Yahoo! take reasonable measures to disable access by people located in France to particular material on yahoo.com, and after Yahoo! had challenged the enforceability of that order in a U.S. district court, Yahoo! took a prudent business step:  It announced a change in its policies. 

It said that Yahoo! users would no longer be allowed ”to offer or trade in items that are associated with or could be used to
promote or glorify groups that are known principally for hateful and violent positions directed at others based on race or
similar factors.” 

Yahoo! has always maintained that this change in policy was unrelated to the issuance of the French orders.  It was about to start charging a fee for auctions, and it didn't want to be making money (even indirectly) from sales of these kinds of materials.

Now the Ninth Circuit has finally ruled [warning: 99-page pdf] on the Yahoo! matter, and a majority of judges have taken what they view to be a prudent step:  They don't want to issue an advisory opinion.  To the extent that Yahoo!'s early 2001 change in policy brought Yahoo! into rough compliance with the French orders, it is unclear (according to the 9th circuit) how much of a dispute remains.  They don't think this case meets the requirements of “prudential ripeness.”  Courts don't want to get involved with abstract cases.

Because enough judges on the 9th Circuit thought that the case wasn't ripe (three judges) and thought that the district court didn't have jurisdiction over the plaintiffs in the French case (three judges), Yahoo!'s suit has been dismissed (six judges) – even though eight judges thought the district court did have jurisdiction over the French actors.  There is a veritable riot of opinions on the personal jurisdiction question.  (You would enjoy law school.)

It all boils down to this statement in the majority opinion:

First Amendment issues arising out of international Internet use are new, important and difficult. We should not rush to
decide such issues based on an inadequate, incomplete or unclear record. We should proceed carefully, with awareness
of the limitations of our judicial competence, in this undeveloped area of the law.

(Somewhat bizarrely, the majority finds BOTH that personal jurisdiction was proper over the French actors, AND that the case was sufficiently alive to be considered ripe, but goes off on “prudential ripeness” to avoid deciding this delicate international issue.)

The dissent strongly disagrees, saying that the French orders cannot be enforced in the US because they violate the First Amendment, and that it is important that we be clear about a country's ability to enforce an order outside its borders:

[T]he question we face in this federal lawsuit is whether our own country’s fundamental constitutional guarantee of freedom of speech protects Yahoo! (and, derivatively, at least its users in the United States) against some or all of the restraints the French defendants have deliberately imposed upon it within the United States.

That's the question that the Ninth Circuit has now prudently refused to reach.

I have sympathy for both the court and Yahoo! here.  Yahoo! is certainly operating under the cloud of an order that would be (or should be) unenforceable in the United States.  At the same time, the tangled web of opinions in this case makes clear that the Ninth Circuit was deeply unsure as to whether it should act at all.  And a very political question was in front of the court.

It would have been cleaner if Yahoo! had never changed its policies in 2001.  Its self-restraint on this point is similar to the court's self-restraint.  Neither wanted to go out on a limb in a way that might undermine its institutional legitimacy.  As a result, a very important question has gone unanswered. 

I just participated (yesterday) in my first conference call as an ICANN board member. 

It's clear to me that the Board members are all dedicated, trying to do the right thing, and struggling mightily with a host of imponderables.  (One of the imponderables was the phone connection — it's hard to get a call going all around the world without hurricane sounds in the background.)

We didn't get to all of the items on the agenda, which was disappointing.  The discussion was very thoughtful and careful, but we had a hard stop at the end of the time period — two hours — and couldn't reach everything, including some of the most important issues now before the Board.

A lot happens on email between calls, but email has severe limitations when it comes to actually making a decision and moving on.  So the calls are vital.

What I'd like to do for the next few days on this blog is get input on the new gTLD issues.  Here's the background:  the Generic Names Supporting Organization within ICANN is working on a “policy development” process for new TLDs.  The terms of reference are here, and the Supporting Organization has called for people to send it papers (here) by the end of this month.

This is a vital set of issues, and one that is central to ICANN's agreement with the Department of Commerce (which calls for ICANN to “[d]efine and implement a predictable strategy for selecting new TLDs using straightforward, transparent, and objective procedures that preserve the stability of the Internet”).  

My personal question, one asked not on behalf of anyone else (and of course you are welcome to reject the question) is whether there is strongly-held opposition to the following points:

We could change the process to one of “accreditation” rather than “approval.”  It would be more straightforward to require technical capacity and escrow and financial standing (minimal requirements). 

All applications could be subject to a “quick look” for objections based on real semantic harm to established interests.  How would that test be formulated?  Is it possible to have an “accreditation” process that also has an element of checking for harm to others (and what harm would be relevant)?

I hope for comments.

Let's say Congress decided that it would make sense for highspeed (truly highspeed — at least 45 Mbps both up and down, not 200 Kbps) access to the internet to be considered a public utility.  (Public utilities are subject to rate control.  Their earnings are established by a public commission.) 

Such a decision would clearly advance a legitimate government interest.  Indeed, the current Administration has said that broadband access for all is a crucial government policy.  Congress would be saying that beachfront property should allow reasonable access to the ocean — the self-owned commons — and there are some nice beachfront cases that Congress could rely on here.

Now, the companies that have built fiber networks in the U.S. would quickly claim that such a Congressional action would constitute a “taking,” because they wouldn't be able to charge premium rates for each service an end user wanted.

Our government can regulate private property, as long as it does so for public purposes, and as long as it acts reasonably/fairly/justly.  But there are limits in the Fifth Amendment on what the government can do.  That Amendment says that private property can't be taken without just compensation. 

A unconstitutional “taking” can happen when the government physically appropriates private property or deprives its owner of all beneficial or economically productive use of it.  That wouldn't be happening here.  The Baby Bells would still be running these access points, presumably, and making some market rate for doing so.  Indeed, they could use this access to sell their own content services to customers. 

In the absence of this kind of categorical action, which is unquestionably a “taking,” you have to analyze the economic impact of the government step to see whether compensation is required.  The Baby Bells would have a strong argument that their reasonable “investment-backed expectations” had been stymied by Congress. 

But there would be a very strong response that they have plenty of money to keep going (a fair return!), and that they'll be able to raise investment money based on their other businesses (including their competing IPTV business).  Mere economic impact isn't enough to make something a taking, and the Bells can't have expected that they'd be allowed to monetize all this access.  No explicit government guarantee was ever provided along these lines.

Without doubt, the Baby Bells will say that a “fair market” price doesn't capture their immense investments in fiber.  They'll also claim that they're being denied the opportunity to make an enormous amount of money, and that anything short of that enormous amount of money makes any regulation an unconstitutional taking.

The Baby Bells might even claim that providing highspeed access in a regulated fashion is going to be such an unprofitable business that they'll have to stop providing this access.  This would be their death threat:  allow us to reap all the profits we can, or we'll rip out the fiber and leave the U.S. in the dark ages.  But existing case law establishes that they can be forced to continue to run this unprofitable arm of their business, as long as they are profitable businesses as a whole (including phone services, equipment sales, etc.)

So, if they stayed in business, in the now-regulated highspeed access business, they might have to operate that business at a loss.  That's the way it goes. No taking has happened, according to a long line of cases. 

If they said they had to go out of business as a whole, or if for some reason Congress decided to simply convey the highspeed access business to someone else to prevent it from being abandoned, the Baby Bells wouldn't get all possible future profits.  They'd get whatever a willing buyer would pay for the networks they had built — their salvage value.  This would be litigated for years, but in the end there would be a number.

So — if we regulated access, it probably wouldn't be a taking.  If it was a taking, we could pay them back.

Maybe we should take it. 

This morning I took a cab from Georgetown to Union Station in DC.  It struck me as we went through the streets just how tranquil a place Washington is.  There was almost no one on the sidewalks.  There are more and more gleaming enormous post-modern apartment complexes on wide clean empty streets, with no one around.  The cab driver laughed; yes, he said, it's very very calm.  It was a beautiful cold sunny morning, and Union Station was just glowing, with the big wreaths and bows still up on its columns.

This evening I took a walk up Fifth Avenue, and around 23rd street I fell in with a guy who apparently walks up and down Manhattan as a hobby.  “Are you on a short walk or a long walk?” he asked.  He was full of information about the buildings we passed and the things you could find on sidewalks if you looked closely enough.  He had come from Greenpoint (Brooklyn) and was on his way to the Upper East Side. 

We walked along for quite a while.  “I hate it when people don't know how to walk,” he grumbled when some loitering tourists got in his way.

I'm very fond of both places.

Yochai Benkler gave a great talk tonight in DC.  He's talking about his new book, The Wealth of Networks, coming out at the end of March from the Yale Press.

The book is going to have a big impact.  It focuses on the shared, gift economy that the internet makes possible — it's a big idea, this new way of working.  Benkler sees clearly how our world has changed out of recognition, and how embracing this shared, collective way of life may have an enormous effect on our future.

If we're allowed to continue working this way, that is.  Enormous incumbent industries are clearly disturbed by what happens on this network of networks, and are doing their best to fight back.

There are a couple of reasons why we have national parks and access to the seashore.  Some things are so much the gifts of nature that they should be reserved for everyone.  And some things (like the sea, and like the internet) are so important to each of us that keeping them freely available makes us a group of citizens rather than slaves.

In an 1824 case, someone claimed that he privately owned oyster fisheries under some navigable waters in New Jersey, and that the ownership of these things had come down to him through a royal grant made before the Revolution.

Chief Justice Taney (who hung on for an awfully long time and later decided the Dred Scott case) disagreed.  Listen to this:  “When the Revolution took place the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government.”

Taney was saying that the people were sovereign, and that they had given this common ownership of the oyster beds over to their government to run for them, as a kind of public trust.

Now — the internet wasn't created by nature; it's an agreement between machines made possible by the designers of that agreement (or protocol).  But it is a great gift, and it is very important to being a citizen, and for these reasons it is owned by all for common use.  It's a commons, like the Boston Common.  And no sovereign ever showed up to which the people who “own” the internet (that is, everyone) surrendered their ownership.

But sovereigns (governments) still have a duty, and it's a very old one.  It's in Roman law, and Greek law, and early English law — it's the duty to protect access to the seashore, which is the place where people can access the sea.  A very important common resource.

Here's an English legal scholar writing a long time ago:

By natural law these are common to all:  running water, air, the sea, and the shores of the sea, as though accessories of the sea.  No one therefore is forbidden access to the seashore, provided he keeps away from houses and buildings [built there.]

It's fine to build a house on the seashore, or a wharf jutting into a lake, as long as you don't keep people from navigating that ocean or lake.  And, by the way, you can certainly have a privately owned thing on/in the sea, like a ship or a self-owned whale.  But access to the sea has to be available.  States cannot sell that off or otherwise dedicate it to private uses.  And no matter how elaborately funded and decorated a beachfront property is, it can't stop people from walking on the beach below high tide.

So — it's fine to build special services and make them available online.  But broadband access companies that cover the waterfront (literally — are interfering with our navigation online) should be confronted with the power of the state to protect entry into this self-owned commons, the internet.  And the state may not abdicate its duty to take on this battle.

I'd be at CES.  But I'm already having trouble doing a good job with my first life, and my second life is being completely ignored.

I just watched a few minutes of Bill Gates's keynote.  It felt a little too “Kitchen of Tomorrow,” but maybe MSN knows what they're doing and people will want surroundscreens on their desks.  And it would be kind of fun to drag your colleagues (virtually, anyway) into meetings.  I'm not so sure about the Play Table.  It feels like a very closed system. 

A comment on scobleizer:

Gates speaks at CES. Attendees doze off. Gates stops speaking, attendees leave to look at cool stuff not made by Microsoft.

Video is big!  Presence is big, big, big!

Thank goodness for engadget, gizmodo, and gear live.

When will there be a good ebook reader?  The arguments about Google Book Search seem to be driven by publishers' fears that a useful reader is just around the corner and they won't be able to keep their books from being read by it. 

Maybe next year.

I'm back from wherever I was, and I'm glad to see that the recent Wikipedia bashing (danah boyd had a great post on this) has been answered in the New York Times today by George Johnson. 

Johnson is responding to a recent Nature article that claimed that there were an average of four errors per Wikipedia article (using a sample of 42 articles, and asking experts to assess them) and three errors per Brittanica article.  He goes carefully through representative “errors” and find that they're not clearly errors much of the time.  And then he sums up, delightfully:

Whatever their shortcomings, neither encyclopedia appears to be as error-prone as one might have inferred from Nature, and if Britannica has an edge in accuracy, Wikipedia seems bound to catch up.

The idea that perfection can be achieved solely through deliberate effort and centralized control has been given the lie in biology with the success of Darwin and in economics with the failure of Marx.

It seems natural that over time, thousands, then millions of inexpert Wikipedians – even with an occasional saboteur in their midst – can produce a better product than a far smaller number of isolated experts ever could.

Meanwhile the competition has some catching up to do. While Wikipedia includes a good, balanced article on the history of Britannica, Britannica has not a word to say about Wikipedia, as it rapidly becomes one of the most significant phenomena on the Net

Great stuff. 

This debate underscores, yet again, the importance of thinking of networks differently.  We have this idea that there are only two ways to do anything — either you create and sustain artificial monopolies so that people will have incentives to create (that's the copyright story), or you open the doors so that competition will emerge (that's the market story).  But here, in Wikipedia, we have something not driven by market competition (as we usually understand it) or enhanced by artificial property incentives. 

Wikipedia, like so many other beloved online resources, is a group-”owned” and created thing.  The group has no boundaries except shared interests in particular pages.  It's doing very well.

We don't have to constantly choose between security and freedom — we have a third way to do things, and this way  involves shared values and collective activities.  Only networks that allow groups to form and people to post things can make this new form of governance and action possible.

Now that we have this network, this self-governed resource, it's very apparent that it is a pre-existing ecosystem (like the ocean) that no one can claim to own except the constantly-changing group that created it.  This makes cable/telcos into nothing but owners of beachfront property. 

In the US, you're not allowed to block people from walking across your beach near the waterline.  It's winter here in NY, so I'll post this picture as a reminder.