Archive for June, 2006

Someone called me today to ask me what I thought about the connection (if any) between privacy and the recent CALEA ruling.

There are at least three possible responses I came up with — only two of which I gave on the phone (things are always clearer after you hang up, aren't they?).  One is that CALEA is just about how things are designed, not whether law enforcement is entitled to ask service providers for data.  CALEA says “assuming a lawful warrant is being implemented, we want to make it easier for law enforcement to get access to data.”  On this reading, extending CALEA to more services and more connections shouldn't make a difference to individual privacy vis-a-vis governmental requests for data — government has to go to a judicial officer to get authority to ask for the data in the first place.

A second response, though, is that we have no idea how the FCC's adventurous extension of CALEA will change the privacy landscape.  The ongoing NSA scandal reveals that we don't know what this Administration is willing to do without a warrant.  We don't know how closely service providers are already cooperating with law enforcement/national security requests without needing the entire apparatus of warrants and judges.  We are in the dark.  In the dark, you can't see the change between one privacy regime and another — it all looks the same.

A third response is that it's likely that extending CALEA's scope diminishes our privacy.  If it's easier for government to get access to data, because things have been designed in advance so as to be easily tappable, they'll get more data and will know more about us.  At the least, extending CALEA clearly doesn't heighten privacy protection in this country.

What do you think?

Net Neutrality is Bad for National Preparedness, says Center for Advanced Studies

NEW YORK, June 12 /U.S. Newswire/ — In a research brief published by the World Policy Institute's Global Information Society Project, K.A.Taipale, executive director of the Center for Advanced Studies, Science & Technology Policy, asks whether imposing strict net neutrality regulation on telecommunications providers could put public safety and economic recovery at risk in times of national emergency.

How quickly can an innovation policy question be morphed into a security issue?  Answer:  Almost instantly.

All the incumbents familiar to us in internet policy questions — law enforcement, Hollywood, and the telcos — share an interest in deep packet inspection.  They all want to protect their existing, old-world business models. 

Law enforcement wants deep packet inspection because they have an insatiable desire for information (even if they have trouble parsing what they get).  Hollywood wants it because they want to know who's watching their movies, so they can shield their distribution windows.  And the dominant telcos want it so they can prioritize traffic and cableize internet access.

Watch this move.  We'll be seeing much more of this.  DHS would like to ensure that its packets get priority.  They'd like to change the essential internet protocols to make this possible.  As a society, we have to decide whether ensuring security (of DHS, of Hollywood, of the telcos) is worth the costs to our future such tinkering will cause.   

I was one of the crowd who helped Esther Dyson move out of her old office space last weekend.  My focus was the conference room.  Hundreds of internet business books, books about the brain, books about complexity, books about visualization, books (in short) that I either wanted to read or already had read were stacked on shelves in that room.  It was like a reunion of old pals, that set of books. 

Each one of those authors had big ideas and wanted to change the world.  The familiar covers were so attractive and hopeful.  Be an internet bazillionaire!  See everything differently!  Throw away every preconception!  Find wisdom in others!  Understand string theory!

Probably one of those books tells us that there aren't going to be books any more.  Books are so limiting, the book says.  They don't link.  They don't have streams of meaning that we can follow with our friends.   I probably packed up that book, without knowing it, sealing its fate along with hundreds of others. 

I packed up box after box.  I wonder if those boxes will ever be opened again.  Maybe a historian of the boom-bust-boom will want to reconstruct what it was like to be in the middle of those books, and to be sent an advance copy of “Smart Mobs.” 

Several strong reactions to the D.C. Circuit ruling on CALEA coverage the other day. 

First, the Information Technology Association of America (ITAA) has put out a major study [pdf] saying that “government attempts to impose a poorly conceived wiretap surveillance regime on domestic Voice over the Internet Protocol (VoIP) phone traffic could destroy American leadership in telecommunications. Such a move could stall Internet innovation, introduce new cyber security concerns, and expose hundreds of thousands of unsuspecting Americans to law enforcement surveillance.”

The study has distinguished parentage – Susan Landau, Vint Cerf, Whit Diffie, Steve Bellovin, Matt Blaze, and others.

Second, the Center for Democracy & Technology (CDT) (of which I am a proud Policy Fellow) says that the CALEA decision is a “major setback for civil liberties.”  Their full analysis is here.  CDT notes that, quite apart from its many legal weaknesses, the ruling leaves unanswered how exactly we're supposed to define “call-identifying information” on the internet.

For Tony Rutkowski's reaction, see his comment.

In a case filed in the Supreme Court of British Columbia about a month ago, the chief executive of the company that owns Kazaa has sued Jon Newton of p2pnet for libel.

The Register's Ashlee Vance has a story about the lawsuit here, including a link to the underlying complaint.  From the Register story, it looks as if what Newton did was quote from an AP story about the chief executive's actions.  And then a couple of people commented anonymously. 

Newton has put up a plea for legal help here. 

Given that many American IP law professors are about to descend on Vancouver this week, there should be some way to get Newton's case additional attention in the North American press.

[This is not a set-up for a joke about the competency of law professors.]

From the telco point of view, “consumers” are connected to “content” over the internet by three different pipes: (1) the big connection between “content provider” and a backbone; (2) the backbone itself (the biggest pipe of all); and (3) the connection between the “consumer” and the backbone. 

The network neutrality debate is about the third segment — the piece between home and backbone.  That piece is offered by (at most) a duopoly in the U.S. — large cable and phone companies who aren't competing very hard.  The Bells are the result of anticompetitive behavior (and are quickly re-monopolizing), and the cablecos have been the beneficiaries of exclusive franchises for a long time.

The telcos say:  Don't create regulation that is worse than the problem!  So far, all these abuses you're worried about are theoretical.  Google is well-armed — they can sue if there's a problem in the future. And “consumers” are used to reaching Google and other “content providers,” and they'll complain if they can't.

The two simple, sound-bite responses to the telco point of view:

1.  You've Told Us to Assume Abuses.  Ed Whitacre, CEO of AT&T, said:  “There seems to be a mentality [on the part of online companies] that they can put more and more through our pipes for free. . . We're the ones who built the network. You cannot make that sort of investment if you can't make a return on the capital. They're more than welcome to use our networks, but if they do, they're going to have to pay. It's not free.” 

This means that carriers plan to charge “content sources” for crossing their broadband access points to reach “consumers.”  That's differential treatment.  In the context of the market control that the telcos have, that will be immediately abusive — of course they'll favor their own content and try to make exclusive deals.

2.  Don't Turn the Internet Into a Cable System.  What's all this about “consumers” and “content”?  We know that Americans like to post material of their own online.  Almost 50 million of us have already done that, and teenagers have grown up with interactive media — almost 60% of them have created and shared content online. We're users, not consumers.  You're dimming our expectations — we don't expect to be able to upload with ease, and we wish we had the same kind of broadband access as South Korea.

A third, meta-is-bettah point is this:  The telcos are wrong to think of the internet as a combination of three pipe segments.  Instead, as David Weinberger says:

The Internet is a medium only at the bit level. At the human level, it is a conversation that, because of the persistence and linkedness of pages, has elements of a world. It could only be a medium if we absolutely didn't care.

When the FCC says so, that's when.

Today, the D.C. Circuit ruled 2-1 that the FCC's views on CALEA coverage should be deferred to.  (I've posted many times about CALEA here.)

The brief background about CALEA is that it is a 1994 statute written to ensure that telecom carriers would build their facilities so as to be easily tappable by law enforcement.  “Information services” were explicitly left out of its coverage — and were understood to include online applications like email. 

Now, although the FBI has made no showing that it's having problems enforcing subpoenas or warrants for information, law enforcement badly wants to extend the coverage of CALEA to include broadband access and VoIP services that connect to the traditional phone network.

The problem?  Congress didn't write the statute to include what law enforcement wants.  The FCC has helped law enforcemet in two recent orders that re-read CALEA to cover “information services” to the extent they are “substantial replacements” for local telephone service.  This is a weak legal argument, but the FCC has persisted.

Today, Judge Sentelle, writing for the majority, points out that the CALEA statute and the 1996 Act are different (in particular, the 1996 Act doesn't include a “substantial replacement” element).  The FCC has interpreted CALEA to cover information services in some circumstances.  The D.C. Circuit is saying that it should defer to the FCC's interpretation when it is making a “reasonable policy choice.”

Judge Edwards's thundering dissent notes that deference isn't appropriate when Congress hasn't delegated authority to the Commission in the first place.  (Last year, I wrote an article saying the same thing.)  In a nutshell,

I was delighted to be present at the first meeting of the Austin chapter of DorkBot tonight.  You would have loved it.

DorkBot's history is here.  The tagline:  “People doing strange things with electricity.”

Tonight we were standing around in a mysterious parking lot area outside a funky coffee place.  It was a sweaty hot night.  The group I was with got there late, so we missed the theremin demo (apparently someone made a 1984 Mac into a theremin).  Think Spellbound.

But the demos we saw were just great.  First there was software for a Nintendo DS2 that makes it really really easy to paint and squiggle and do a million things.  Really easy for a kid, really easy for an adult.  Cheers from the crowd.

Then there was a serious electrical show with Frankenstein-like zapping sounds and sparks:

Also cheers from the crowd.  Some members of the group backed up quite a bit from the display.  Usually techie demos aren't quite this….dynamic.

Before DorkBot we went to see the bats swarm out from under the Congress Avenue Bridge at dusk.  No one we asked knew the collective noun for bats.  A bevy of bats?  A belfrey of bats? Do you know?

It's sometimes hard to live in NY when all those issues and hearings and whatnot are happening in DC.

So:  I'm blind here!  There was a hearing about ICANN today before the House Committee on Small Business.

What happened? 

If the blogware comments don't let you in, send me an email at susancrawford at gmail and I'll post them for you. 

I've been working steadily for quite a while on a paper comparing the IP battles to the network neutrality battle.  As we've all discovered, these are very hard issues.  There aren't clear answers, although the social benefits of the neutral-substrate internet (like the social benefits of the public domain) seem to be ignored by the people claiming the need for protection of their property rights.

It's finally becoming clear to me that the social argument is the only real argument. 

Yes, the “incentives” argument made by the network providers is strange, in ways that are similar to the strangenesses of the IP incentives arguments.  (People build things without knowing they'll be paid back.  Some of these broadband access points have already been built.  Etc.)  And the market power of the current network providers is important and seems to trigger a need for government involvement.  The economic arguments are powerful as well — there are substantial positive externalities created by access to the internet that shouldn't be captured just by the access providers.

The key, though, is that neutrality (or unbundling, my preferred way of doing this) will be better for society as a whole.  Awarding very strong property rights to the network providers, like awarding very strong property rights to content companies, won't be as beneficial to society as tempering those rights somewhat.  We've done this in the IP context with things like fair use and “limited times” for copyright and patent protection.  Indeed, the whole point of IP law is to encourage the creation of useful things for society; benefiting IP owners is a means towards that end.

Now we need to do this more directly with communications law.  Tempering the property rights of the powerful broadband access providers will result in — overall — better results for society.  The short history of the youthful internet has shown us what can happen when a substrate is essentially neutral.

Okay — fire away.