"A whole virtual network out there"
It's morning in Redmond, Washington. I was just watching CNN, and the anchor from New York was doing a story about the crisis in the Middle East. He was leading into a segment about videos that people are making and posting online — the sound of the air-raid sirens, a trip to a shelter, an explosion and its aftermath.
With a voice of slight amazement and disbelief, stumbling a little, he said to the correspondent, “It's like a … whole, virtual network out there.”
The correspondent humored him and did a little spot about YouTube videos from the Middle East. He said, soothingly, “These aren't getting thousands of hits, but they're getting hundreds. People are definitely interested.” He also noted that people were using cameras in their cellphones to capture video. “There are thousands of these things [devices] out there!” he said.
Yet another understanding of “network,” then — when a telco says it, they mean managed pipes; when an engineer says it, he means logical architecture; and when a TV news anchor says it, he means CNN. Those little videos are subversive.
Changing the focus of attention
The challenge for the future of telecommuncations policy is to shift attention from telecom providers to the communications they carry. This isn't easy — there are legions of telecom lawyers in what Nicolas Lemann famously called “FCC World.” They're used to talking about “broadcast” and “cable” and “telephone” policy, but the secret is out: everything is going online.
This is like suddenly paying attention to the rest of copyright law — the part that isn't so author-centric. There's an awful lot left in the copyright code (all those complicated statutory licenses). Tim Wu made this point about copyright law very effectively in a Michigan Law Review article a couple of years back.
Interestingly, although we have a long statute about all the silo-ed communications providers, there isn't so much on the books about online communications We have a few key elements in place — safe harbors and immunities of various kinds for ISPs, rules about cybersquatting, special rules about children and information about children – and we wouldn't want to start writing special-purpose laws covering online activity. We have plenty of straightforward statutes that can be applied online.
There's a new balance to be struck next year (or in the years to come — this may take a while). Market concentration in broadband providers may dictate that they be forced to not “manage” their networks and to be commoditized. General purpose laws should continue to be enforced with respect to online activity. But we shouldn't enact a flurry of “internet laws” just to give the communications lawyers something to do. Instead, the complex, group-forming and order-creating ecosystem online should continue to be given a chance to evolve. Indeed, we'll need to actively protect it. Communications lawyers can become conservationists.