One judge at a time
So you can educate a judge. Bravo to EFF, ACLU and their colleagues for reminding Judge White about the First Amendment and persuading him that a take-down order for an entire bulging web site when you’re worried about a few pages isn’t constitutional. (EFF press release, Judge Dissolves Wikileaks.org Injunction: First Amendment Rights of Internet Users Upheld in Today’s Hearing.) And bravo to the judge for having the grace and judgement to learn and back down.
Media coverage said that Judge White’s initial order was a “prior restraint.” I have to say that this puzzles me. What’s a prior restraint once something has been posted online? EFF and the ACLU had to educate this judge about the impracticality of his order - the Wikileaks.org material was echoed, copied, cached in hundreds of places. Yes, Wikileaks.org itself may have gone dark, but the substance was everywhere. The order was a post restraint and an unconstitutional adventure, but we’ve got to come up with some internet-specific language that adequately expresses our distate for censorship while recognizing the futility of the Wikileaks move.
Maybe the shorthand can simply be “Remember Wikileaks.”
Raising the stakes
The first panel discussion during Monday’s FCC hearing in Cambridge provided a useful summary of the first stages of what will be/already is a much bigger battle.
I think it would be a good idea to raise the stakes in this discussion. Even the most pro-public interest of the five commissioners, Cmmr. Copps, talks only about a case-by-case adjudication by the FCC of the “rules of the road” for “reasonable network management.” But that won’t get us faster, more open high-speed internet access. Commr. Adelstein makes more headway - he’s suggesting that we need to explore a “comprehensive solution” for this issue. Commr. McDowell, by contrast, slides way way back, saying internet access is (to him) “new media” that is mostly made up of people passively watching video. Even Vuze asks only for better disclosures of network management practices.
Although nothing goes away, it seems to me that these older “media” modalities of cable and telephone “services” are melting gradually (like the Wicked Witch of the West) into simple transport of bits. (Broadcast has melted into cable and scarcely counts as a separate category any more.)
Now, these modalities, these silos don’t want this, don’t have any use for such a change, and so they are hanging on to friction, management, control - and they’re saying that self-regulatory efforts are all that is needed to ensure that the public interest is served by their management efforts. We know they’re competing with the internet. They want to stay “media” companies and avoid commoditization. They’ve got enough market power to make this happen, and if the system can stay just about the way it is until the people inside these silos reach retirement age, that’s a fine goal.
Will we have a future shaped by the choices of these particular informational gatekeepers? Or will we have a general-purpose network that anyone can use for his/her own reasons? Will we replicate the models of the past, just because we’re used to them?
The witnesses keep talking about “services” - but these aren’t services, this is just access, transport, commodity roads on which unimaginable complexity can flourish. These gatekeepers have every interest in maintaining scarcity, when we could have abundance - with an injection of leadership, national planning, and will.
The stakes couldn’t be higher. The idea of keeping these networks subject to nondiscrimination obligations isn’t some crazy newfangled heavyhanded overreach - it’s the way we have run communications for hundreds of years. These are communications networks (or should be), transport functions - not “media.” We subject communications networks to regulation for the good of all; if we hadn’t acted that way, the internet would never have come into being. (Remember, the internet is not the same thing as the World Wide Web - it’s a logical architecture for transport, not a vessel from which we download streams.) If these few duopolist actors get away with “management,” the promise of the internet will not be fulfilled.
The European super-agency
I personally have been cheering in support of Viviane Reding’s proposed plans to set up a Europe-wide oversight body and mandate functional separation of telecommunications providers. But it looks as if national regulators in Europe are fiercely fighting back. This Reuters article suggests that Ofcom and others are opposed to a pan-Europe regulator on the ground that such a body would be a top-down, single-answer entity. Ofcom’s Ed Richards also points out that functional separation (well, for DSL, not fiber) has been achieved in the UK without a Europe-wide mandate.
This is all very interesting from a U.S. perspective. Reding seems to have the right ideas, and they’re big ideas, but the national regulators are resisting the notion of an overlord - and seem from this article to be beefing up an existing (but insufficiently strong) group-institution-for-national-regulators as an answer to her plans. (This is the “you can’t fight something with nothing” move.)
Here in the U.S., by contrast, we *have* a regulator overlord, but the big ideas are absent within that institution and the out-manuevering by the incumbents is impressive.
====I spent the morning listening to Monday’s FCC hearing and will report tomorrow. The seat-blocking by Comcast isn’t so interesting to me, but the substance of the hearing is.
Cambridge yesterday
I wish I could have gone to the FCC hearing yesterday - it sounds as if it was substantive and thoughtful. I’m a big fan of David Reed’s, too, and I hear that he had some great moments. (It’s always nice to know what you’re talking about, and David exceeds that standard every time.)
So this is just a post to point to other posts about the hearing: David Weinberger’s live-blogging, Andy Oram’s columns, David Reed’s statement, and Free Press in general.
My current project is historical - looking closely at where the bizarre idea of internet access as an “information service” came from, and showing why the whole current structure subverts the original idea and no longer makes sense. It seems to me that it’s time to rewrite the Act and make clear what our national priorities are. I’m hoping that those priorities include open, nondiscriminatory (or at least clearly-explained!) internet access.
More filtering and blocking in more places
As the FCC convenes its hearing today in Cambridge to address Comcast’s degradation of BitTorrent packets, two other blocking/filtering stories are playing out.
First, the Pakistan government (probably nudged by President Musharraf, who heard that some YouTube videos are critical of him) ordered that YouTube be blocked. An over-zealous ISP owned by the state sent out a redirect for YouTube’s IP address to some other more suitable site. But that redirect was somehow propagated all over the world - removing YouTube from view for everyone.
Second, the infamous Clean Feed approach is under attack. A Finnish programmer published the government’s domain blacklist in order to prove that the system is being abused.
You can’t tell who’s on the list, why they’re there, or what the process is for getting off, and ISPs are supposed to block the sites on the list. Sites with many pages are blocked as a whole, even though only a small portion of the site is arguably unlawful (as in Wikileaks).
It’s the meta-issue: under what circumstances should ISPs be used as private police to block or filter sites? What’s “reasonable network management”? How much should users know about what’s going on? How do we manage the spillover effects of all this filtering, which can be quite harmful to overall social interests?
This isn’t just about the future of the First Amendment. It’s the future of the internet.
Rushing ahead
At a meeting tonight, someone talked confidently about a “Web 4.0 consulting business,” without really explaining what that meant.
This versioning is going by awfully quickly.
If Web 2.0 is collaboration and creativity, and Web 3.0 is the apotheosis of Second Life (although there’s an alternative view that 3.0 is the arrival of the Semantic Web), then Web 4.0 is….the space-time continuum collapsed? Virtual reality in holographic form?
I decided I could risk asking what Web 4.0 was. The answer I got wasn’t entirely clear. It seemed to have a certain amount of handwaving associated with it. So I went online after I got home. Here’s one definition:
Web 4.0 involves two-way individually-aggregated communal infocommerce predicated upon the six human senses!
An Intel-related blog says
Web 4.0 is the impending state at which all information converges into a great ball of benevolent self-aware light, and solves every problem from world peace to why Lost stinks this season. All humans will begin working 24×7 to feed our new data overlord on a steady diet of email, PowerPoint foils, and cute pictures of our grandkids and/or dogs.
Sounds good. Sounds busy. And my favorite comment so far:
If Web 2.0 is the rounded corners and the Internet as a platform, and Web 3.0 is seamless integration of the various tools built on the platform, Web 4.0 must be algorithmic incorporation of that data into something useful.
Finally!
Why regulate cable internet access
The cable guys have their way of saying it: “What do you want to do, nationalize our businesses?”
Another way of seeing this issue is: We have a very few very large providers of highspeed internet access in this country. They have sufficient market power to decide how and when to prioritize internet communications. And all of these providers are competing with the internet in some way - they are all (or are becoming) old media and old telecom companies that want to maintain control over their distribution channels. The internet disrupts this control, and so they are competing with it.
This market power over access, and prioritization power, is good for these few providers but not good for the rest of us. It threatens overall economic growth and the development of new kinds of businesses and new ways of making a living.
Yes, we limit the powers of our government, and we’re proud of that, but those limits do not forbid us from meeting modern conditions.
Even ten years ago, the thought of requiring nondiscrimination of cable providers would have been rejected as arbitrary and oppressive. Well, the thought of zoning regulations would have been unthinkable in 1910. The thought of regulating the upbringing of cows would have been unthinkable in 1920. But we did these things because it was better for the rest of us.
I understand that Comcast saves a dime or two a month per subscriber by doing the kind of peak-time traffic shaping that is the focus of the current uproar. That’s not insignificant - it may add up to between $5 and $20 million dollars a year. But the service they’re selling brings in over $5 billion. And the savings to Comcast is an incalculable cost to Vuze and other new video-distribution businesses that can’t rely on a stable transport platform. It’s also an incalculable cost to the rest of us, even if we’ve never heard of BitTorrent, because we can’t rely on a fast, non-discriminatory internet connection for our future.
This wouldn’t matter if we had enough choices of internet access providers in the U.S. We don’t, and so the uproar continues.
Comcast isn’t acting as just some old private business when it provides constrained internet access. It’s providing communications infrastructure, and we don’t (and shouldn’t) expect our communications sidewalks to rise up and choose winners and losers.
Yes, uncontrolled government regulation (the “nationalize our business?” horrible) is wrong. But we do regulate, when we need to, when it’s for the common good.
Prior restraints
The odd story of the Wikileaks.org injunction is described here by the Berkman Center’s Citizen Media project. We still don’t know exactly why the site was ordered taken down - it seems like a trade secret issue - or why this was done ex parte, or why the court initially ordered wikileaks.org’s registrar/host to “immediately clear and remove all DNS hosting records for the wikileaks.org domain name and prevent the domain name from resolving to the wikileaks.org website or any other website or server other than a blank park page, until further order of this Court.” (That part of the order seems to have been revised - now it’s just a takedown order.) We’d like to know more about this court action.
Speaking of prior restraints, don’t tell EFF that retroactive immunity for the telcos is necessarily constitutional. As Cindy Cohn of EFF told Farber’s IP list, “[t]here are serious due process and separation of powers problems with the bill, which effectively grants the Executive the power to demand that pending court cases come out a particular way that favors the Executive. This is an extraordinary thing to do, especially when the constitutional claims of millions of Americans are at issue.” EFF has a chart of its responses to common arguments in favor of immunity, and has posted a set of documents relevant to the allegations made in its lawsuit.
ICANN Friday
Calling all interested civil society groups, universities, and academics - please be involved in ICANN working groups. There’s a worry - it’s a personal worry of mine, and I’m speaking only for myself - that ICANN isn’t getting enough input from these actors. The GNSO restructuring will include a broadening of the “stakeholder group” for noncommercial registrants as well as a focus on open working groups as the atomic unit for policymaking. This means that thoughtful, persuasive people from the noncommercial side (as well as the commercial side, of course) will have an opportunity to get involved in a single-issue working group without having to navigate all the complexities of ICANN’s structures and politics.
Friday was the public board meeting. Our new Chair is efficient and the Board wasn’t given anything substantial to actually *decide,* so we zoomed through the agenda and finished before the mid-morning coffee break.
As I said during the meeting, I’m worried about the new gTLD process recommendations, particularly the idea that ICANN is going to decide which strings are “contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law.” (During the week, both “blasphemy” and “sedition” were added to these norms.) And the idea that an application will be rejected if “an expert panel determines that there is substantial opposition to it from a significant portion of the community to which the string may be explicitly or implicitly targeted.”
These are just strings without context, limits on the use of these strings can’t be enforced, and it’s a big, diverse world out there that doesn’t harmonize on content or communities. (What does “implicitly targeted” mean, anyway?) But the next step is for ICANN staff to narrowly interpret the recommendations in some way that makes them implementable in staff’s view, and for that implementation to be discussed with the GNSO council. I’m hopeful that this can happen in short order; I’d like to see us going ahead with new gTLD applications.
I’m also worried about the “fast track” for IDNs that would be subject to the approval of governments (that’s the GAC’s view, anyway). ICANN has been well-served by being able to point to the ISO 3166-1 list for the authoritative reading of “what is a country or territory, and what code stands for that country or territory.” Trying to create IDNs on the fly as an exception to the ongoing IDN policy process (that’s the “fast track”) without an authoritative list may put ICANN in the middle of definitional disputes, may undermine ICANN’s existing policy processes, and suggests that *all* ccTLDs should be subject to governmental approval - which is not the current situation. I’m all for IDNs, and ICANN should have rolled them out sooner in my opinion, but it won’t make sense to over-correct for the slowness by adopting an arbitrary policy.
After the board meeting I did indeed visit the Univ. of New Delhi Law School, and it was a treat to be there.
ICANN Thursday
Big, big, long day. I’m catching up now on the news from the U.S. about the draft Markey bill and the FISA wrangling, and I’m looking forward to being in the same general time zone as the DTV transition, just to see how badly it turns out.
Today was the public forum - huge relief to do it differently, no longer in the form of approaching a priesthood from a great distance, but now as an actual public forum, with everyone on the same level and all comments addressed at everyone. (I agitated for this a while ago but it couldn’t happen until now.) Now all we have to do is make sure that it’s actually a forum during which we all hear from unfamiliar voices. Translation is also making a difference, but, again, not yet complete. Steps, anyway.
Then, after a break for another workshop, the Board met for several hours to talk over strategic issues for the coming months and years. Huge relief not to be working into the early hours of the morning - huge - and to have a relatively civil and constructive meeting. Tomorrow, Friday, is the Board meeting during the morning, and then I have the honor to talk to the Delhi Law School in the afternoon. That’s all I’ll see of India, unfortunately - I have to leave late tomorrow night to get back to New Haven.