Archive for July, 2006

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.

In a Net Neutrality Great Debate today with Dave Farber, Vint Cerf said he'd like to see an internet basics comic book.

I'm all for that — great idea.  We need much simpler ways to get the message across about this transformative change in our lives.  It would be great if more people understood that the internet wasn't a giant telephone system, with someone controlling all the communications standing in the middle blowing a whistle.

Plus, there could be superheroes.  Clearly Cerf and Kahn would be superheroes, wearing “IP on Everything” t-shirts.  There could be great battles, triumphant time-markers (“birth of Craigslist!”), and thought-bubbles from regulators (“how do I deal with this crazy thing?“). 

The “democracy” arguments in the telecom policy world go both ways.  You can point to caselaw saying that getting information from diverse sources is “essential to the welfare of the public” and is the bedrock on which democratic government rests.  This language seems to support keeping access as neutral and open as feasible.

On the other hand, the access providers themselves want to make sure THEIR speech is respected, and will often co-opt these words for their own purposes — don't regulate us, we want to be heard!  It makes sense to them to give the conduit editorial control over the information being sent down the tubes.

On the third hand, the access providers will reasonably say that proponents of the “democracy” theory have to prove that the benefits produced by making the widest possible diversity of sources available exceed the economic costs (to them) of doing so.

And you can't quantify democracy. 

Without giving up on democracy, can we come up with an additional principle that would support a decision in favor of openness/diversity of the online experience of real people?  One that can lead to quantifiable results?

Well, if you think of all online communications as a system (it's all converging, after all), it's clear that this system is more like the weather or the economy than a railroad network.  The future of this system is going to depend on giving it enough information to let it evolve (to have selection and adaptation run their course).  That evolution will create longterm value for everyone — not just the access providers. 

To have the best possible evolutionary search mechanism that leads to this wealth (which may be nonmonetary wealth, just to warn you), we need to provide the best possible background/substrate/environment.  Rather than have the access providers provide the “fitness environment” (picking winners and losers), it will be better to have human attention provide the measure of fitness. More minds are better than one.  If we're paying attention, you'll win.  We'll back up our attention-paying with money.  We'll pick the winners and the losers.

To get this information flow going (users paying attention to other users, users paying attention to applications), some policy suggestions present themselves: 

1.  Make sure all Americans have access.  Fund Universal Service through a common pool of revenue.  Eliminate cross-subsidies and hidden sludge — and have the end result be broadband internet connectivity.

2.  Don't enact video or audio flags.  They're another way of artificially controlling evolution in devices and content.

3.  Make spectrum available for competitive access services.

4.  Make video franchises available easily. 

5.  Mandate structural separation of access providers by layers. (If you're a pipe, that's all you should be.  We may have to pay you back for your stranded costs.)  It's clear that “unbundling” was a disaster, so we have to keep it simple.

6.  Don't impose unreasonably high charges for necessary inputs, like spectrum or access to telephone poles or rights of way.

Democracy will certainly be helped by all this.  Plus we'll be able to count up our wealth generated by this richer, self-ordered network.  Whatever that wealth is, it has to be greater than the returns expected by a few network access providers under a non-neutral regime. 

On the Telstra story, I received a note pointing out that both Telstra and the group of nine are bluffing mercilessly.  Telstra isn't really investing in its network (currently, at least) and seems to be ignoring the public interest.  The group of nine are probably just trying to make sure they get access — bluffing in turn — by talking about their (pretty soft) plans.

What Telstra is doing is similar to the Deutsche Telekom move that I've written about here before.  Give us complete freedom to exclude, or else we won't build the network.

On the Dandelife project, I received a few notes about the Timeline portion of the Simile project at MIT.  The website says:  “Timeline is a DHTML-based AJAXy widget for visualizing time-based events. It is like Google Maps for time-based information.”

I can't see a way to neatly pull these two additions together except by making some awkward joke about “lying about your age” (bluffing plus timelines), so I will close here.

We're not great at standard, everyday ways of using the graphical, networked screen — blog posts are just text, and they disappear below the fold; pictures get posted, but you have to know the tag or run through huge slide shows to find anything — all in all, many ordinary user applications seem pretty primitive. 

Between applications that display overwhelming amounts of aggregated data presented as colors and lines and balloons (which you gawk at — the only reaction is “wow, that's interesting”) and applications that display simple text, there isn't much.

So I was pleased to run across Dandelife on Ross Mayfield's blog.  I like the idea of creating a timeline of a life — it could be about an imaginary life, it could be about an idea (an intellectual history), it could be about a writing project (“how my book came to life”), it could be about a building.  It's a way to visualize information that is just a little richer than what we have now.

In 1987, the Santa Fe Institute and Citicorp lined up ten leading economists to talk to ten leading physicists, biologists, and computer scientists.  Luminaries on both sides.

The physical scientists were astounded by the economists' old-fashioned equilibrium-based approach to problems.  One of the physical scientists later said that talking to them was like taking a trip to Cuba, where the streets are full of old cars.  The cars can be kept going by hard work and ingenuity, using salvaged parts.  But the entire system is out of touch with the modern world.

It's a great image, isn't it?  An entire discipline, cut off from the rest of the world by a sort of self-created intellectual embargo.  Very skilled minds can be hard at work, fixing the Packards with care and thoroughness.  And the cars will continue to work for a very long time.

As communications converge, continuing to have categories like “broadcast,” “radio,” “cable,” and “telephony” makes less and less sense — these categories are like the Packards.  We can tinker with them, believe in them, but the world will have moved on.  The system to be dealt with (all-IP, all-online) is a complex, evolving environment, characterized by nonlinear dynamics and self-created order.  How do you regulate that?

I sat next to someone on a plane recently who told me to look into the Telstra story. It seems that Sol Trujillo announced last year that Telstra would build a $3 billion fiber network — but only if the company had ”regulatory certainty”.  Sound familiar?  Then today Dave Burstein sent around a snippet saying that Australia's Communications Minister is supporting the notion that nine carriers should build a broadband network that would compete with Telstra's planned fiber network.  (The Australian government owns more than half of Telstra, which adds an interesting dimension to this story.)

A somehwhat snarky story by Stephen Bartholomeusz in the Sydney Morning Herald pooh-poohs the competitive idea.  The competitors would have to build on top of Telstra's existing copper network, so Telstra could strand them by simply building their replacement fiber network (access to which Telstra would never provide its competitors, according to Bartholomeusz). 

It's hard to tell from this distance what exactly is going on.  If the Communications Minister wants to separate Telstra's wholesale from retail services, that seems to be an invitation to gleeful gameplaying on the part of the incumbent.  It's awfully hard (this happened in the UK) to make this kind of abstract packaging result in real competition.  On the other hand, the Minister may want to impose something stronger.

I always listen to the prophetic things strangers tell me on planes.  The Telstra story is full of drama and prompts reporters to say things like “it's back to rock-throwing.” 

Telecommunications law in the U.S. used to be about serving the public interest by breaking up monopolies and assuring communication.  Now it seems to be mostly about protecting the investments of incumbents.  The monopolies are steadily re-combining.  All of this has enormous societal and economic effects.  Is this reframed purpose actually serving the public interest?  Perhaps the Australian Communications Minister can clue us in.

Thanks to Dave Burstein for the pointer.

Yesterday's post prompted a message saying, “What do you mean, private networks?”

In response to the first CALEA order last summer, the American Council on Education and many other entities and groups argued strenuously that imposing CALEA compliance on internal school networks would cost an enormous amount of money (and clearly was not contemplated by Congress in 1994).

The education groups had very strong statutory arguments on their side.  In CALEA, Congress exempted [look at (b)(2)(B)] from the assistance capability requirements all “equipment, facilities, or services that support the transport or switching of communications for private networks.”

In the 2005 order, the Commission noted this exemption, but seemed to take it away at the same time — saying that “[t]o the extent … that these private networks are interconnected with a public network …, providers of the facilities that support the connection of the private network to a public network are subject to CALEA…” 

What? Just about all colleges and libraries with internal broadband networks of their own are connected via a commercial ISP to the internet.  Did the FCC mean by its use of “support” that everything included in these internal networks had to be easily tappable by law enforcement?  The Commission seemed to be willfully ignoring the statute. A sort of “down means up” reading.

In the June 9 D.C. Circuit opinion that upheld the Commission's CALEA trajectory, the court refused to worry along with ACE about the FCC's use of the word “support” – pointing out that the Order expressly excluded “private networks.”  End of story from the court's perspective.  ACE is reading this as reaffirmation of the exclusion.  Right now, the CALEA obligations fall on commercial ISPs, and not on private networks.

It's clear, though, that the Commission is retaining the power to extend CALEA to any private network in the future.  In the Second Report and Order that came out in May, the Commission said it would clarify whether gateway routers or other equipment (even if owned privately) providing interconnection to the public internet for private networks was covered by CALEA.

In the meantime, it's still a little unclear how far “private networks” extend — do they include those gateway routers at the border of (let's say) a university network?  And what exactly constitutes a “private network”?  Does it include every homeowner with an unsecured wifi router at the end of their cable or DSL broadband service?  (I don't think so, but if anyone out there has an opinion please comment or email.)

A rehearing of the case by the entire D.C. Circuit might help.  Also, it may be that legislation will be introduced that will clarify that only commercial networks (offered to the public for a fee) are covered.  There will be news about CALEA's scope for months and years to come.

Not long ago, Brett Glass posted a message to Farber's list saying:

“The FCC Report and Order on CALEA (see http://cryptome.org/fcc070506.htm) appears to drag all broadband providers – including small, rural ISPs such as myself — into a messy regulatory regime, merely because one of my customers might choose to use a VoIP service. Worse still, the requirements are vague and potentially extremely onerous.”

Someone sent me an email asking “Is he reading the Order right?”  So I went off to look.

If you go to the August 2005 Order that asserted that CALEA covers “facilities-based” broadband internet access providers, you'll find that an entity can be covered if it:

1.  is engaged in providing wire or electronic communication switching service OR

2.  is engaged in providing wire or electronic communication transmission service AND

3. the Commission finds that such service is a replacement for a substantial portion of the local telephone exchange service AND

4.  the Commission finds that it is in the public interest to deem such a person or entity to be a telecommunications carrier for purposes of CALEA.

That August 2005 Order states that the FCC had already found that “switching” is the same as (or includes) providing “routers, softswitches, and other equipment that may provide addressing and intelligence functions for packet-based communications to manage and direct the communications along to their intended destinations.”  So, in other words, if you're providing routing services you fulfill condition #1.  You're “facilities-based.” 

The Commission found that broadband access services fulfill condition #3 because people used to use local telephone service to access the internet, and that such services fulfill condition #4 because deeming these entities covered by CALEA would “promote competition, encourage the development of new technologies, and protect public safety and national security.”

So — according to the Commission (whose interpretation has been deferred to by the D.C. Circuit), any entity providing access to the internet through a router (unless that entity is exempt for some other reason, for example because it is a private network operator) will need to assist law enforcement to tap its communications.  At its own cost. 

That means that every ISP falls under CALEA, because it operates routers.

So, yes, Brett Glass is arguably correct.

He continues:

“There is no rational reason to subject an ISP such as myself to the statute's expensive requirements. Yet, the FCC is trying to do so.  What's more, to add insult to injury, it has stated that it does not intend to allow ISPs to be compensated for the expense of making their networks tappable. In short, the FCC seems eager to impose requirements upon us which would do nothing to enhance homeland security but could well drive us and other independent ISPs out of business. This would ensure a cable/telco duopoly and hamper the expansion of broadband service to rural areas like ours.”

Yup.

It's a beautiful summer evening in New York.  Lorraine Hunt Lieberson would have poured herself into Samuel Barber's “Knoxville, Summer of 1915″ (unforgettable text by James Agee): 

…It has become that time of evening when people sit on their porches, rocking gently and talking gently and watching the street and the standing up into their sphere of possession of the trees, of birds' hung havens, hangars. People go by; things go by. A horse, drawing a buggy, breaking his hollow iron music on the asphalt: a loud auto: a quiet auto: people in pairs, not in a hurry, scuffling, switching their weight of aestival body, talking casually, the taste hovering over them in vanilla, strawberry, pasteboard, and starched milk, the image upon them of lovers and horsemen, squaring with clowns in hueless amber.

If the porches were stoops, and there were many many cars, this would be New York.  I remember hearing Hunt Lieberson back in November, in Boston, when she sang Pablo Neruda poems that her husband had set for her.  This Agee text seemed like her to me tonight.