Archive for February, 2007

This post was prompted by draft paper sent to me by Moran Yemini, a student at NYU.  Many apologies for not crediting him.  Watch for his paper — it will be great.

What do you think of the First Amendment rights of broadband providers? 

The providers may think they have what lawyers might call a “bootstrapping” argument:

1.  Because there is no common carriage requirement for broadband access now

2.  We network providers are speakers (look at our IPTV!)

3.  And so you can't impose network neutrality on us without violating the First Amendment.

If network providers can successfully argue that they are actually “speakers” (like cable companies), then a network neutrality statute would have to survive “intermediate scrutiny” as a First Amendment matter.  (For legal beagles:  government would have a strong argument that network neutrality is content neutral, so “strict scrutiny” wouldn't be called for.)

To survive this scrutiny, the government imposing network neutrality would have to show that “the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”

In the cable context, the broadcasters were able to provide substantial evidence of harm — that, absent a “must carry” rule, broadcasters were realistically likely to be hurt.

Here, network neutrality proponents are (arguably) conjecturing about harm.  And all the network providers have to do is hold on and not do anything too obvious.  If a neutrality statute passes, they can say that it can't survive this “intermediate scrutiny” and that the statute is therefore unconstitutional.

Of course, because we have no data whatsoever about what happens inside these networks, we'll have trouble providing substantial evidence of harm.

In the long term (and if a neutrality statute passes) this will become an important battleground.  It seems to me that making a huge fuss NOW about the lack of data is important.  That might persuade a court later that it is
impossible to show actual harm and that conjecture is the best anyone can do (it was good enough for the broadcasters), using the van Schewick argument that these guys have every incentive to discriminate in ways that help them.

I bet the telcos think of themselves as speakers, just like cable providers — they're working on intertwingling their internet access with their IPTV, so that the whole thing will provide a First Amendment facade.

I'm off for ten days.  See you back here on Feb. 16.

I've been looking into IP address filtering by content providers.  I understand that IP addresses can be attached with confidence to geographical locations (at the country level, at least) about 80% of the time.  You have to make up the rest with heuristics.  So there are companies that are in the business of packaging those geolocation heuristics for sites.

Quova has a patent (No. 6,684,250) for

A method and an apparatus operates to associate a geographic location associated with a network address. At least one data collection operation is performed to obtain information pertaining to a network address. The retrieved information is processed to identify a plurality of geographic locations potentially associated with the network address, and to attach a confidence factor to each of the plurality of geographic locations. An estimated geographic location is selected from the plurality of geographic locations as being a best estimate of a true geographic location of the network address, where the selection of the estimated geographic location is based upon a degree of confidence-factor weighted agreement within the plurality of geographic locations.

Quova's competitor Digital Envoy has a patent (No. 6,757,740) for

A method of determining a geographic location of an Internet user involves determining if the host is on-line, determining ownership of the host name, and then determining the route taken in delivering packets to the user. Based on the detected route, the method proceeds with determining the geographic route based on the host locations and then assigning a confidence level to the assigned location. A system collects the geographic information and allows web sites or other entities to request the geographic location of their visitors. The database of geographic locations may be stored in a central location or, alternatively, may be at least partially located at the web site. With this information, web sites can target content, advertising, or route traffic depending upon the geographic locations of their visitors. Through web site requests for geographic information, a central database tracks an Internet user's traffic on the Internet whereby a profile can be generated. In addition to this profile, the central database can store visitor's preferences as to what content should be delivered to an IP address, the available interface, and the network speed associated with that IP address.

Both of these issued in 2004. 

Quova also has a 2006 patent (No. 7,072,963) for

A method and a system perform geolocation activities relating to a network address. A database of network addresses, and associated geographic locations, is maintained. A query, including a network address, is received against the database for a geographic location associated with the network address. Information, concerning the query received against the database, is logged. Geolocation activities relating to at least the network address are modified based on the logged information.

That's pretty broad — a patent covering the modification of geolocation information based on queries.

So here's the question:  How widely are these services used?  If they are in wide use (and I bet they are for advertising services), does it now make sense to put content sites to the burden of complying with the laws applicable to the people/machines they know are visiting them?  Hmmm?

In the famous Yahoo! case, Yahoo! argued that it couldn't know where people were coming from and that therefore it couldn't block/filter usage of Yahoo.com based on geographical location.  Is that still true?  Google has its own geolocation heuristics. According to this press release, 35% of US online merchants were using geolocation tools as of the end of 2006.

All comments more than welcome.

(to find these patents, search this database)

I spent part of the morning today at a Women In Technology Summit at Harvard.  It wasn't a law professor crowd; it was a group of us older women talking to undergraduates.

Someone asked the members of my panel to talk about something interesting we'd worked on.  So that allowed me to spend a few moments telling them how much fun it is to be a law professor.  Everything I do is interesting — at least to me — and I learn something new every day.  Either I have an alarmingly low “interesting” threshold, or it really is a good job.

There was an impassioned talk (sorry, no links available apparently) by Debra Rolison of the U.S. Naval Research Laboratory about just how bad it is to be an aspiring female academic in math or science.  Terrible discrimination, terrible prospects.  She's suggesting (as has the GAO in a 2004 report) that math and science departments undergo Title IX compliance reviews.  She points out that Title IX has been used for sports equipment/funding issues, but that its language isn't limited to sports.  (Under Title IX, all entities receiving any form of federal financial assistance have to
prohibit sex discrimination in their education programs and activities.) 

The women next to me had, like me, a background in private non-technical services industries (for them, investment banking; for me, law) and I think we all felt lucky that we hadn't tried to get tenure in a math department.

Coverage of Thursday's hearing in front of the Senate Commerce Committee has been fascinating.  Some nuggets:

Sensing the new climate, Mr. Martin in his opening statement
steered clear of every difficult issue facing the commission by making no
mention of the debate over the Internet discrimination legislation, indecency
standards, the media ownership rules, universal service fees paid by telephone
consumers, or the agency’s policies on consolidation in the telephone industry.  (The New York Times)

Here's Martin's belief that you can draw sharp lines between different online “services.”  This is possible only if you think of the internet as a content delivery supply chain:

The FCC chairman's well-known aversion to sweeping Net
neutrality regulations drew sharp questions from Sen. Byron Dorgan (D-N.D.),
one of the chief sponsors of a bill that would require network operators to
follow nondiscrimination rules. By failing to include network operators in the
scope of nondiscrimination requirements traditionally placed on telephone
companies, “does that mean you favor discrimination?” he asked.

Martin said he might be able to handle such a requirement if
nondiscrimination meant, “if you offer a service to one, you have to offer
that same service to all.” (CNET News.com)

And this odd bit:

One Republican senator, who vowed recently to propose limits
on the FCC's authority to require so-called technology mandates like the
“broadcast flag” copy protection scheme proposed for digital
television, admitted he was somewhat unprepared to face the regulators–although
it wasn't clear whether he was being completely serious.

“My staff had come up with a list of highly
confrontational questions, but I somehow misplaced them this morning,”
said Sen. John Sununu of New Hampshire, adding that he promised to “make
it up to (the commissioners) next time.” (Instead, he peppered the
regulators with questions about the technicalities of a seemingly
uncontroversial topic: making “white spaces”–that is, unused chunks
of spectrum that rest between TV channels–available for potential unlicensed
use by wireless providers.) 
(CNET News.com)

Aha, CNET!  That last part isn't uncontroversial.  In fact, it may end up being quite important.

Comments were due recently in the white spaces rulemaking.  A lot to read, and no time to do it tonight.  But here's a first thing — a report from the New America Foundation says:

This report answers the following question that is central to the FCC’s current rulemaking about whether to open the unused TV-band channels in each market for wireless broadband and other innovation: Can unlicensed TV-band devices using cognitive radio techniques completely protect licensed broadcast TV services? Some published reports have postulated an affirmative response to the question, while others have claimed the opposite. This report provides the engineering support to definitively resolve this question in the affirmative: cognitive radio techniques can be used by unlicensed TV-band devices to protect licensed broadcast TV services.

It's nice to see Dell, Google, HP, Intel, Microsoft, and Philips weighing in:

[T]he Commission should ensure that the TV white spaces are used for unlicensed operation; spectrum should not be allocated on a licensed basis. The Commission has concluded correctly that unlicensed operations may be better suited to adapt to the “shifting spectrum environment” characterized by low power operations in the TV bands. Indeed, the phenomenal success of the Wi-Fi industry is merely a prelude to the benefits the country can expect from making unused television spectrum available on an unlicensed basis.

I have a lot to learn about the engineering details, but I have a feeling this is going to be another rulemaking that (once decoded, once the acronyms are taken apart) will reveal a great deal about who is trying to shape the future of internet access in this country, and why.

Today was the first of several indecency days in my communications law class.  So just why do we treat broadcast and cable differently? 

At the end of it all, after we had carefully taken apart Pacifica and ACT III and decided that the whole construct was pretty incoherent and vague, I asked the class how they felt about having broadcast indecency rules eradicated.

I got a mixed reaction.  Sure, the legal part doesn't make sense, but if the rules go away the market will probably want more and more adult material.  And that'll be disturbing both to the people who have kids and to the people who don't have kids but want “safe” television and radio during the day.

This is not a generation of First Amendment absolutists.  In other classes, I've also found that this is not a generation of privacy/civil liberties absolutists either — they're often comfortable with searches and surveillance of various kinds.  In some cases (definitely not all) they're willing to believe that all of that apparatus is likely to make us safer.  No big conclusions here, just noticing.

(I think my students are great.  Hi, students!)