Archive for March, 2007

Back Tuesday March 20.  Notwithstanding the current “wintry mix” here in NYC, this is a time for a brief break.

ICANN announced today that it has launched (re-launched) its public participation site at a permanent URL:  http://public.icann.org.  The idea is that we'll (I'm on the ICANN Board) be able to have “proceedings” of meetings immediately available and will be able to get remote questions/comments made visible and available in a timely way.  It should make it easier to participate remotely in these meetings.

The ICANN Blog is doing well and deserves watching.  All in all, progress.

I will be on the Lehrer show tonight, during the last 20 minutes or so of the hour, talking about Viacom v. Google.  More tomorrow.

Looking back at the origins of universal service here in the U.S. (Reed Hundt's line:  when we say “universal” here, we mean “American”), it's useful to remember that it's always been used for purposes other than getting communications services to rural/needy areas.

Milton Mueller's fine book makes clear that when the Bell System's Theodore Vail made up the term “universal service” in 1907 what he was really trying to do was squelch competitive phone networks — there were a lot of them, and they were doing very well, and Vail wanted to convince everyone that one phone system would be a far better idea.  So the idea behind universal service in the early 20th century wasn't spreading phone connectivity (competition had been doing a good job at that) or underwriting costs (because costs were being pushed lower by competition).  It was, instead, the notion that being able to reach everyone on a single, centrally-managed phone network was a good idea.

Using the slogan “One System, One Policy, Universal Service,” Vail managed to get his monopoly established and stamp out competition.

In the modern era, “universal service” is a mysterious conglomeration of implicit subsidies and thinly-related programs, all funded by revenues on various telecommunications services.  The 1996 Act says that it's supposed to be funded by telecommunications carriers providing interstate telecommunications services — in other words, phone companies.  The phone companies pass the charges on to customers, and no one really pays attention to what's going on.  The school and libraries components of the companies have been particularly prone to graft and corruption.  In general, it's a mess.

About nine months ago now [pdf], the FCC both extended the contribution base for universal service (a program that spent $6.5 billion in 2005) to “interconnected VoIP” revenues and raised the expected contributions for wireless carriers.  This is the third leg of the “let's get VoIP” scheme — E911, CALEA, and now universal service.  Patient visitors to this blog have heard me talk about the E911 and CALEA elements of this program in the past. 

Well.

Instead of fixing the USF program as a whole, and making it rational/coherent/based on providing highspeed access to the internet (rather than subsidizing phone service), the Commission last June adopted an interim approach that charges “interconnected VoIP” with contributing to the same bloated/broken program.  The definition of “interconnected VoIP” will certainly broaden in the future — right now it means anything that enables real-time voice communications, uses IP equipment, and is capable of allowing users to connect to the traditional phone system.  But in the future, that definition could expand to cover anything that the FCC views as substituting for traditional phone service (like, say, virtual world voice) and the USF obligations imposed by the Commission would continue to apply.  (As usual, the jurisdictional basis for all of this is adventurously shaky — the FCC refuses to say whether VoIP is an information service or telecommunications service, and waves its hands and says 'ancillary' in a deep voice).

It seems to me that, once again, “universal service” is being used adventitiously.  It no longer is a program under which some phone subscribers underwrite other phone subscribers (the way we used to use long distance revenues to subsidize local phone service).  Instead, it's a program under which new forms of communications are being used to subsidize old ones, with hidden fees and impossible-to-calculate cross-subsidies.  And it's a mess that is expanding irrationally.
 
Surely we can do better.  If universal service means supporting internet access for all in this country, it should be a straightforward program that is paid for out of general revenues rather than out of a tax on innovative VoIP services.  Why punish VoIP?  Why support a program that is widely viewed as being entirely broken?

As it was for the early Bell System, “universal service” is a concept that can be useful in squelching competition.

I talked to an early computer guy this evening, just briefly.  He started working in the computing field in 1955.  He said that the computer science field is noticing that students seem to believe that there's nothing interesting left to do.

“But they're wrong,” he said.  “It's never been more exciting than it is now.  Things are moving so quickly.”

We also talked about Doug Engelbart and JCR Licklider and John Holland and Stuart Kauffman.  Of ourse, he knew or knows all these people.  I said it would be great to have a cultural history of the Santa Fe Institute.  He said he knows of a novel being written about it.  And he twinkled.

That was the title of a presentation I heard a couple of years ago at a Gruter Institute meeting called “Law, Behavior, and the Brain.”  It was a lively conference, with top-flight chimp people, neuroscientists, and a few law professors.  There were neurological skits after dinner.  (You'll just have to imagine.)

The heart and soul (and brain) of that conference and many other similar conferences was/is Owen Jones of Vanderbilt.  Today the NYT Magazine ran a piece by Jeff Rosen about Owen's work and its implications:  “The Brain on the Stand.”  Rosen captured the gee-whiz character of some of the discussion very well — many of the people involved are very excited about their work and can't wait to tell you all about it.  But he also conveyed the fascinating potential of neurolaw.

If it turns out that humans strongly, fundamentally want to cooperate and share (and take a look at “A Brain for All Seasons: Human Evolution & Abrupt Climate Change,” a wonderful book by William Calvin, in this connection), then maybe expanding intellectual property law doesn't make cognitive sense.  Now, how will we know about this human desire?  Will we really look at pictures of the brain reacting to IP claims?

Perhaps. That's the thing about neurolaw.  A lot of the work now focuses on pictures of the brain in action, reacting to various stimuli. Right now we're seeing blotches of color, and people make arguments about what those blotches mean.  Rosen focuses on brain-oriented defenses to liability, criminal and otherwise, and his story about seeing his own brain light up in response to scenarios and punishment choices is worth remembering.  We don't know a lot about the import of those blotches (“just a lot of pretty pictures”), but we're making progress. 

Whether to blame the behavior or the brain is an enormous question.  (A related question comes up in cyberlaw– whether to blame the technology or how it is used.)  Owen Jones's work may help us answer the question. (Bravo to him for all the grants and the years of focused research.)

Rosen wisely winds things up by reminding us that judges will make the decisions in this area.  It's clear that they'll be looking at a lot of visuals.

My cab driver slammed his hand against the wheel in frustration.  Nothing was moving, and we were inching our way up Massachusetts Avenue — plus, some eastern European (diplomatic plates) driver near us was blasting bad techno-polka music on his car stereo with the windows open.  The problem turned out to be a power outage in Northwest DC, and the absence of traffic lights at rush hour was causing a lot of congestion.

The techno-polka guy finally crept away from us, and after a long time behind a belching bus we ended up at Ward Circle.  “It's that building, the new one,” I said.  “No lights there either,” he replied.

I gave him a big tip and dragged my many bags up to the American University recital hall building.  The hall's stage manager was standing outside, moodily smoking a cigarette.  “No power.  Generator lights only.”  The stage lights took so much power to run that they'd been cut off at some central point.  So there wouldn't be any way to read the music.

I was there for a birthday concert (pianist had the birthday) that had been elaborately planned, to the point of bringing us down from NY to play (surely there are musicians in DC?) and hiring a caterer.  I decided that my top priority at that moment was putting down all the bags I was carrying, and the stage manager seemed happy to have something to do so he let me into the dim hall.  I headed toward the green room.  “No lights there.  And no lights in the bathroom,” he said.

The pianist arrived and marshalled her many friends into getting candles and flashlights together.  My job became to get dressed in the dark.  (Not easy, I can report.)  Eventually the audience arrived — they'd been stuck in traffic too. 

So we decided to play with candles and flashlights.  Suddenly the generator lights went off too, and the audience was in complete darkness, in a dark hall, looking at us (presumably — nothing else to look at), our faces and music lit up with tens of candles and carefully-placed flashlights set up on flattened music stands.  The stands were perilously close to our elbows, but we didn't knock any of them down and we didn't catch on fire.  But it was very very hot up there with all the candles.

The lights went on and off a few times, and then triumphantly and finally on at the beginning of the second movement of the second piece.  The audience murmured and we kept playing.

In the end things turned out fine.  The music was better than techno-polka, the birthday celebrant was happy, and there were lots of lawyers on hand to discuss the romance of the power outage.  Driving back down Massachusetts Avenue was easy.

1.  Verizon's injunction against Vonage seems like a death blow, from what I can understand.  Verizon has no reason to settle or otherwise buy out Vonage; Vonage may have insufficient resources to challenge the validity of Verizon's patents.  It's been a strange story from the beginning.  Vonage is brave and popular, but they depended on the kindness of the network owners to exist.  By rights they should exist, and their customers will be sorry to see changes.  Do all “independent” VoIP products escape this cloud?

2.  We could really use data showing that the incentive to invest in highspeed internet access networks isn't dampened by regulatory neutrality (or other related) requirements. Is the UK a possible source?

3.  Barack Obama had a fundraising event in DC last night and I decided to go.  He didn't mention telecommunications policy, but he had a lot to say about health, education, and serious US financial problems.  His voice is compelling, and his law school friends say he's always been exactly like the way he is now — earnest, smart, committed, listening.  The crowd was enthusiastic and asked good questions.  My favorite line from Obama: 

Q:  How do you compare yourself to Hillary Clinton?
A:  [pause] I'm taller.

Sen. Obama's presidential announcement included these words: it's time to “lay down broadband lines through the heart of inner cities and
rural towns all across America. We can do that.”  Can he carry out his plans?  Will he get roughed up by the Clinton juggernaut?

Along with about 700-900 tech policy people, I saw Bill Gates speak tonight at CDT's stupendous celebratory dinner tonight.

The most memorable part of his talk tied access to knowledge and the affordances of the internet together.  I think what he's done with his foundation is honorable and worthwhile, and the slightly snarky comments near me stilled when he talked about micro-investments in other people's efforts online.

He looked both younger and older than I thought he would — hair darker, but one shoulder visibly stooped.  You can see what he might look like in twenty years.  Slightly nasal voice.  He got off a good joke:  Time's approach to the Person of the Year this year (the reflective square on the front cover, celebrating user-generated content) effectively made him Man of the Year two years in a row — he just had to share it with others this year.

Microsoft's attacks on Google right now seem aimed at deflecting attention away from MSN's antitrust problems in Europe.  I don't charge Mr. Gates with these attacks; he seemed above the fray this evening.

Theirer:  Scarcity no longer a useful rationale for regulating broadcast.  Even FCC has said this in 2005 — staff paper, overlooked, but they said it!

Pacifica/seven dirty words; broadcasting “uniquely pervasive” for children..that was the rationale for second-class treatment of broadcast.

So now we've got abundance and policymakers are trying to figure out how to catch up and regulate anyway.  Don't make fun of them — they're working on this.  Efforts underway to apply old rationales of Pacifica to new technologies under the theory that everything is pervasive and uniquely accessible to children.  In a way, that's true, and it is strange to impose sterner rules on broadcast (protecting adults from themselves).  At any rate, playbook is to expand old rationales to include new technologies.  So many proposals I can't even list them all (go look at cdt.org).  It's stunning.  New one would require NTIA and DoC to create labeling regime for all new web sites; mandatory XXX zoning; COPA; data retention and age verification…

That's where the real threats are — data retention.  It's likely that something on this will come out of Congress, and something on age verification from state AGs.  This is grave.  We have been relying on courts to hold the line, and they've been doing well (but COPA could go either way). 

I'm trying to take big tent approach to this issue, fighting for freedom of expression across all media platforms.  Regulation of one platform means ALL will be regulated.  So we need to work together.  Policy makers are not stupid and they want to reach all of these new platforms.  “We either hang together or hang separately.”

Question:  What do you mean by data retention?

Theirer:  ISPs and site would have to collect data on their customers, like IP address, for at least a year and maybe longer.  It's already in place in EU, DOJ is enthusiastic.  We don't know what problems this will create.  There are agreements to retain for six to nine months or longer (voluntary agreements).  Most of these sites will preserve on official request if there's a bad guy.  Do we go from preservation to fullblown retention model?  Good chance of this.

Age verification:  requiring social network sites to authenticate identity of individuals for age.  Even though nation has no infrastructure for identity.  It won't work, will create false sense of security, but protecting kids is popular.  Just debating AGs about this.  They honestly believe that social networks are essentially evil.  You have a moral panic out there.  Adults have no idea and don't understand.