Interlude
One of the many good things about having a voice of my own on this page is that I can break patterns of my own making.
It’s time for a music post.
Yesterday I spent a couple of hours remembering my life before there was email and before I had heard of the internet. I’ve been lucky over the last three weeks to play chamber music in four very different semi-public contexts, and the third of these events was last night. Probably stemming from Somewhere In Time (a very romantic movie that came out when I was in high school), I had the idea that if I really thought of myself as a musician I would indeed be one, if only for the period of time that the concert was going on.
(This was only a semi-silly notion - I discovered during the second semi-public musical event that trying to play a concert 45 minutes after I stopped teaching a very serious class about online surveillance wasn’t a great idea. It wasn’t awful, but it wasn’t as much fun as it should have been. I just wasn’t quite with the program - I was still in surveillance-land rather than in Beethoven-land.)
So I tried a kind of inner time-travel experiment. I remembered people that I played with in high school, college, summer festivals, music school, and afterwards. I remembered conductors and teachers - what they looked like, what their voices sounded like - and I did my best to remember what it felt like to play without constraint. My mind slipped again and again - without realizing it, I’d be thinking about the Verizon announcement this week or about CALEA. No kidding. But I’d nudge myself back to some performance 25 years or more ago, some musical event that was satisfying, fun, and deeply felt.
Of course, I’m only writing this post because it worked. For just a few minutes, yesterday and then again today, I did feel like someone who plays an instrument (rather than someone who plays at playing an instrument). It was genuinely fun.
As you may remember, there’s a terrifying moment in Somewhere In Time when our hero (who has successfully transported himself to 1912) suddenly sees a modern-day coin that got left behind in a pocket of the rented 1912-era pants in which he time-traveled. He stares at it, instantly vertiginous, and sweats ferociously as his memories of his own era overtake him. Blam - he’s out of 1912.
So my secret trick yesterday and today was to close the laptop and pretend it didn’t exist. There’s a lot of email pouring in these days, most of it list-mail, and much of it interesting to me. But the laptop doesn’t fit with the inner time-travel.
The self-regulatory two-step
Self-regulation is a great move to forestall legislation. “Here,” you can say, “we’ve solved your problem. We don’t have all the details yet, but we’re making progress. Don’t try to write rules for this markeplace - you’ll just make mistakes and embarrass yourself. Let us help consumers by doing it ourselves.”
The second step of this particular dance is enforcement - in the form of results that real people can understand.
We don’t have all the details of the first Verizon self-regulatory step yet. A lot will depend on how reasonable Verizon’s certification standards are and what testing VZ requires from application and handset developers.
Notwithstanding Verizon’s announcement yesterday, the issues surrounding internet access via wireless handsets (and any other modality) remain. The fact is that granting network providers the right to exclude (or degrade) unwanted uses of their systems will very likely interfere with unanticipated, as-yet-unborn, and socially valuable developments. The default rule that grants that right is still in place, and can only be removed by legislation. It’s undeniable that network owners will tend to systematically undervalue the social/economic benefits of open access.
VZ’s statements make clear that customers will be able to stick any application they want to on their devices. But will it work? Will some applications be prioritized over others? On what basis? The ability to price by tiers carries with it enormous power to define the tiers in the first place - and then to decide what fits within a particular tier. The right to degrade communications carries with it the right to — effectively — exclude and can be exercised in an anticompetitive manner.
The Verizon move is well-timed to signal intent to dominate the upcoming auction. Will it lead to real openness? We can’t tell. The move also may be intended to forestall legislation along “no-locking, no-blocking” lines.
But we know that the risks of non-neutrality haven’t gone away. The second step of this particular move isn’t part of today’s story.
Verizon Volte-face
So this morning my communications law class was earnestly discussing the 700 MHz auction rules when, suddenly, one of the students lifted his head from his screen and said, “Verizon just announced they’re opening everything up!”
(I’m always a fan of internet access in the classroom, and this gives me a good story to use with other teachers. “See, it’s useful, not just a distraction.”)
We immediately started discussing why Verizon is doing what it’s doing. And the context was clear, because it was the subject of the class: it’s the auction. The short form applications are due on Monday, and the rules for the C Block (limited as they are, see yesterday’s despairing post) require some form of openness to applications and devices. VZ probably doesn’t want to see Google win that C Block, so it will need to be in there acting open. So it might as well actually try some openness.
So far, the blogosphere is cautiously optimistic. Om Malik, Harold Feld, Public Knowledge - they’re all weighing in. There’s some suspicion, deep-seated suspicion, about how this will all play out in practice. We may get cheap phones but expensive network access. Verizon may still be providing a very-non-neutral network. Who knows if you’ll actually be able to use the applications you want to on that network - will the packets be transmitted?
But it’s a move in the right direction, and my class is confident that it was done all for them.
The Auction, the Cops, and Comcast
The 700 MHz auction is just ahead. Bidders will soon be filing their applications, and the auction itself is supposed to start by Jan. 24.
This is the big event for telecommunications policy in the U.S. One recent online story says that “it’s almost like the powers-that-be decided to auction off the land in the Grand Canyon or Central Park in New York City.” It could affect the competitive landscape for U.S. wireless providers and change the way broadband reaches rural areas in this country.
Re-reading the final rules [warning: enormous PDF] in light of recent events, though, makes for a little less optimism. You’ll remember that Chairman Martin at the last minute succeeded in slipping in limited “no locking, no blocking” elements into the rules.
In particular, as long as the reserve price for the C Block is met the first time it is auctioned, “a C Block licensee may not block, degrade, or interfere with the ability of end users to download and utilize applications of their choosing on the licensee’s C Block network, subject to reasonable network management.” And the FCC “will require only C Block licensees to allow customers, device manufacturers, third-party application developers, and others to use or develop the devices and applications of their choosing in C Block networks, so long as they meet all applicable regulatory requirements and comply with reasonable conditions related to management of the wireless network (i.e., do not cause harm to the network).”
The Cops
The Department of Justice has filed a “deficiency petition” (explanation here) in connection with CALEA compliance. This deficiency petition is likely to become an FCC document requesting comments (an NPRM). This NPRM will cover providers of any type of broadband internet access service (phone, cable modem, wireless, whatever) - the entities that the FCC has already said are covered by CALEA.
It will also cover “interconnected VoIP services,” which include any applications that are capable of connecting to the traditional phone networks.
The NPRM, if it follows the DOJ’s request, will suggest (among other things) that all of these providers should build their routers and network hardware to provide “packet activity reporting” for all packets crossing their networks, and physical location information for all of their customers at all times. It will also suggest that very fine-grained timing information is needed - something that the internet and its applications don’t provide at the moment. “Packet activity reporting” means that the broadband provider will need to know the destination IP address and port number for everything happening on its network.
The idea is that these designs will help law enforcement when they want to carry out a request for call-identifying information.
Here’s the tie-in to the auction rules: if these CALEA requirements are adopted by the Commission, there will be at least two consequences for the C Block auction winner. First, the winner will need to allow for the cost of the upgraded routers/switches etc. that are capable of providing this CALEA information as part of their bid. For a new entrant, this will be a big deal. Second, the winner will be able to say that it cannot permit any applications or devices to be used on its network that frustrate the network provider’s ability to provide this information to law enforcement.
(This is clear in the auction rules: “Wireless providers [subject to the C Block conditions] are not required to permit attachment of any device or application that would interfere with the provider’s obligations to comply with applicable regulatory requirements…” - at paragraph 216.)
So much for lowering barriers to entry for a new wireless competitor - and for making the platform truly “open access.” If the network provider has to be completely answerable to law enforcement for detailed information about everything that travels across its wireless network, then nothing will be done without the network provider’s permission. That’s where we are today, and that’s the situation that the open access rules have been touted as changing.
Comcast
Apologies to Comcast - everyone else is probably doing it too - but “reasonable network management” can cover a host of activities. We’re seeing that right now. The auction rules say that “C Block licensees cannot exclude applications or devices solely on the basis that such applications or devices would unreasonably increase bandwidth demands,” but there may be many other reasons for applications or devices to be degraded or mistreated. The use of the word “solely” makes that sentence provide slim (or no) protection. Here’s another sentence from the auction rules: “Wireless service providers may continue to use their own certification standards and processes to approve use of devices and applications on their networks so long as those standards are confined to reasonable network management.”
Through the skillful use of ad hoc, one-off certification standards and “reasonable network management,” a lot of openness can be avoided.
===No great conclusions here - just watching the threads knit together. With any luck, any CALEA and “reasonable network management” opining will be done by the next FCC, not this one.
Blog break
Back next Monday. May the travel gods be with you all.
Grading the candidates
Useful post from TechPresident here — assessing how the Democratic candidates do against the technology metrics suggested by the site six months ago.
Edwards and Obama get A- marks. Biden gets a B. Clinton gets a B-. As the group hunkers down for those public-candidate Thanksgiving festivities, perhaps each of these Democratic players will take a moment to reflect on all of this. There’s always room for improvement. And maybe they’ll remember Lyndon Johnson bringing electricity to the Hill Country. After Johnson did that, the people there would have voted for him forever.
Unbridled discretion and prior restraint: the Verizon and Comcast stories
Let’s say that providing communications infrastructure is an inherent function of a state. Most people think of the internet as a telephone system, and most people think the telephone companies aren’t supposed to choose which calls will go through based on their content. People think that because they think internet access, like telephone access, is a utility — like electricity conduit, water pipes, etc. — that has something to do with the government, and the government isn’t supposed to discriminate.
If it’s true that there’s something about communications infrastructure that is government-like, or government-related, then the companies involved in providing that infrastructure may have obligations to the public not to interfere with the speech of those using their facilities. This makes sense in the current market context, which isn’t very competitive.
(These obligations wouldn’t extend to the applications used by people online. If the infrastructure is the water pipe, then online applications are the soup made out of the water. Or something like that.)
These obligations include, under U.S. law, a respect for free speech.
Even if the network providers don’t have a legal obligation to respect free speech under current law (because they’re not “state actors,” a term that has a thicket of caselaw surrounding it), the role they play in society carries with it an obligation to respect this legal regime.
And yet. The network providers want to have complete control over what speech goes through and what doesn’t (BitTorrent v. streaming video from their partners). They want some speech to arrive more efficiently than other speech (tiering v. the “best efforts” network that is the internet). They want to have, in effect, power over a licensing regime. But that licensing regime carries with it the power to offer no choices at all. It has no objective limitations.
If a state government did this, we’d be horrified. We’d say that allowing the government to pick and choose which speech goes through allows that government to engage in viewpoint discrimination. We’d say that the government was engaging in prior restraints on speech. We’d say this is unconstitutional censorship.
We’re usually deeply skeptical of licensing schemes that grant unbridled discretion to government officials. Why be unsuspicious of the filtering actions of these state-like network providers?
The petitions filed in connection with the Comcast spoofing are asking, in essence, for narrow, objective, and definite standards to guide the licensing authority of the network providers. If they have to have “network management” control, then let’s say what constitutes legitimate network management.
Otherwise we’ve just set up a system of uncontrolled discretion in the hands of a few large companies that grant us access to the internet.
Boundaries
It’s the ad hoc nature of U.S. communications law these days that gets depressing. It seems only federal courts can help - except when they refuse to get involved.
Four very quick snippets of stories to watch:
1. Warshak. The Sixth Circuit said back in June that people have a reasonable expectation of privacy in email sent through ISPs, and so the loose-and-low statutory procedures for government access to these emails (found in the Stored Communications Act) have to be measured against Fourth Amendment standards. The government had used those loose-and-low procedures to obtain a court order giving it general access to Warshak’s emails stored by ISPs - and the government didn’t tell Warshak it was doing this for a year. That failed the Fourth Amendment test, according to the Sixth Circuit.
Although the particular loose-and-low procedure (a one-sided appearance before a judge stating “reasonable grounds” rather than probable cause, the Fourth Amendment requirement) has been declared unconstitutional, there are still plenty of other ways for the government to get access to these materials if they need it. They can get a warrant based on probable cause, or go in front of a judge and let the search-ee know that they want access and are asking for a subpoena. (Meanwhile, judicial steps can be taken to avoid having the emails disappear.)
But that’s not enough for our government, which wants to avoid any additional oversight or notice requirements in connection with access to email.
Everything’s in email - a complete dossier of our communicative lives is in email. What could be more personal? Years ago, we agreed that people had a reasonable expectation of privacy (triggering Fourth Amendment protections) in phone calls - why would we treat emails differently? But our government has successfully sought rehearing of the Sixth Circuit case by the full panel of judges, and it’s likely we’ll see some clever fight over the “ripeness” (liveliness, concreteness) of the claim that avoids the merits of the dispute but keeps the status quo of easy access in place.
Ripeness is a sophisticated way of saying to the courts: “Move along here, now, nothing for you to work on.”
2. Hepting. That’s the name of the lawsuit addressing the NSA surveillance scandal. At the direction of our government, telecommunications companies copied all online transmissions crossing their network — wholesale — and sent that copy on to the NSA for further processing. This likely violated the Fourth Amendment (clearly the telecom companies were acting on behalf of the government), the Telecommunications Act, the Wiretap Act, the Foreign Sovereign Immunities Act, the Stored Communications Act, and state unfair competition/deceptive practices laws. At the least.
Right now, Congress is considering whether to grant retroactive immunity to the telecommunications companies that participated in this warrantless vacuuming up of all possible communications. A Senate panel has voted against immunity today — a welcome development. Sen. Specter (R-PA) has argued that Hepting (and cases like it) need to proceed. “[C]ourt cases may be the only way Congress can learn how far outside the law the administration has gone in eavesdropping.” Specter wants to substitute in the government for the telcos, though, which seems problematic. Why should citizens have to pay for this illegality? A House bill on the same subject already rejected immunity.
Retrospective immunity is another way of saying to the courts: “Move along here, now, nothing for you to work on.”
3. Title I and Chevron Deference. At the same time all communications have become IP-based, the FCC has manuvered regulation of those communications out of the scope of its own delegated power from Congress. Instead of keeping things within Title II of the Communications Act (the home of some heavy-handed regulation, to be sure, but at least there were guideposts for the FCC’s action), the Commission has declared that just about everything having to do with the internet and access to the internet is within its power under Title I of the Act.
Title I says nothing. So the Commission has enormous discretion to do whatever it wants - it’s a swamp, a murky, bottomless realm of unaccountable action, that Title I.
Here’s the place where (unlike Warshak and, potentially, Hepting) the courts have deferred to the broad exercise of communications discretion. Somewhat enigmatically, Justice Thomas in 2005’s Brand X decision said:
Information-service providers . . are not subject to mandatory common-carrier regulation under Title II, though the Commission has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction to regulate interstate and foreign communications.
Justice Scalia thought that was weak, and said so:
This is a wonderful illustration of how an experienced agency can (with some assistance from credulous courts) turn statutory constraints into bureaucratic discretions.
I’d like to see another case that makes a court address the scope of the Commission’s power over the internet — surely the Commission can’t act without some kind of delegated authority. Surely there needs to be a guidepost in the swamp somewhere.
Right now, a combination of judicial deference and Commission brashness is keeping the courts - and Congress - from getting involved.
4. 70/70. Title VI of the Cable Act says:
[A]t such time as cable systems with 36 or more activated channels are available to 70 percent of households within the United States and are subscribed to by 70 percent of the households to which such systems are available, the Commission may promulgate any additional rules necessary to provide diversity of information sources.
We know that the Commission plans to say this “70/70″ trigger has been met. It’s true that cable has enormous market power and the empirical step makes sense.
But “any rules necessary”? I’d be worried, if I were the cable industry. Again, the issue here is a complete lack of boundaries. Not even a hint of limitations.
And, again, the argument from the Commission will be: “Move along here, courts, nothing for you to work on.”
==
These are all separate stories, each with its own history and set of acronyms. They all share, though, a certain open-endedness and ad hocery that is distressing. Not that every detail needs to be written down in legislation - but some checks, some examination has to happen at some point, provided by some institution that isn’t pressing for action.
Immunity
The House passed tonight a bill called the RESTORE Act of 2007 (Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective), H.R. 3773. No immunity for telcos.
On the Senate side, the bill coming out of committee also does not provide for immunity.
This is big news for tonight. More tomorrow.
Tech President
The Obama campaign’s announcement of a comprehensive technology plan is worth noticing today. It’s refreshing to see a campaign focusing on the relationship between technology policy and economic/industrial policy:
Barack Obama will encourage the deployment of the most modern communications infrastructure. In turn, that infrastructure can be used by government and business to reduce the costs of health care, help solve our energy crisis, create new jobs, and fuel our economic growth.
When asked how Sen. Obama would implement this plan if he became President, given the power and persuasiveness of the incumbents’ lobbyists, campaign representatives responded, in effect: “This could be handled by regulatory action - watch who he appoints to the FCC!”
I’m optimistic, and it is uplifting to see the plan’s careful treatment of key issues. No fees to be charged by network providers to privilege some applications over others. Empower parents to protect children from content the parent doesn’t want the child to see. And, most importantly, maximize the power of technology to help the country as a whole.
It’s just a campaign document, we’re reminded. No implementation plans here, no transition plan, just an outline. But I’m cheering all the same.