Yet another terrific post, this one debunking the exaflood.
Archive for April, 2008
Transitional moment
Today was gadget day. I managed to misplace my cellphone on Monday night in my sheer excitement over a visit from a friend, and my ThinkPad is choked-up and crawling. So today I decided to solve both problems. And now … I’m in transition.
The phone (a Blackberry Pearl, via Verizon) seems fine, but I haven’t had time to figure out how it works. I have taken many pictures by accident today. And it’s almost out of battery (again, no time to charge). I suppose if you called me it would ring, but I’m not sure I would know how to answer your call.
Then, with the significant help of OneWebDay NYC producer and Apple-expert Laurence Koret, I became the owner of a new Mac. It looks lovely. But it doesn’t have any of my email or other files on it yet, and I’m not sure I’ll have time for a while to move all of that over. If only the PC-Mac transition was simple. This isn’t Laurence’s fault – he did a great job in all possible ways. (Hint: you should hire him for your NYC technology needs – take a look at his site.)
It’s just the transition time. These two new objects have come into my life, but it will take a substantial investment of time to make them useful.
(This is why people like devices that are single-purpose appliances with simple interfaces. Let’s not give in! That’s the message of Jonathan Zittrain’s The Future of the Internet. Tonight’s Zittrain book talk at the very classy Tribeca Grand was a great occasion, and I was honored to be a co-host.)
Retrograde inversion
Going backwards upside down. That’s what we’re doing with telecommunications policy in the U.S.
The Comcast affair should prompt a re-examination of many decisions the FCC, Congress, and the courts have made over the last few years. When the FCC reports on its reactions to Comcast’s activities, the right response will be “You’re asking the wrong question.”
“What is reasonable network management” isn’t the question we should be asking. Instead, we should be asking ourselves “Why do the dominant network operators always win?” We don’t need retrospective fault-allocation – instead, we need a prospective legislative/structural plan for digging ourselves out of the hole we’re in.
The relevant precedent for the Comcast fracas is not Madison River. Instead, it’s the history of Ma Bell. (Yes, I know Comcast is a cable company. I’ll connect the dots.) AT&T’s enormous market power, vertical integration, skill at using regulation to avoid competition, and opacity (no one could figure out what was actually cross-subsidizing what) led the Department of Justice to investigate and ultimately recommend divestiture of its local phone companies from the rest of its business. In approving that consent decree, Judge Greene made very clear that these local phone companies should continue to be nondiscriminatory, and should not be allowed to be in the business of controlling information — news services — made available across their lines using computers.
The Judge Greene principle (common carriage, no involvement in information provision) has been entirely subverted over the last few years. Assisted by a deregulatory FCC, a quiet Congress, and deferential courts, we’re now moving backwards.
When it comes to highspeed internet access, we’re back in the land of dominant providers (multiple, but dominant), uniform vertical integration, and opacity.
Rather than having proprietary “information services” be the exception to a general rule of common carriage, all forms of access to the internet are now “information services.” The FCC has morphed and stretched (and sometimes ignored – see CALEA) the definition of “information services” to cover all the forms of communication we now care about. Meanwhile, Congress has given almost no guidance and the courts have shied away from interfering (see BrandX). This is neither wise nor efficient.
So even if the Commission says something sharp to Comcast about what practices amount to reasonable network management, that will not be a victory. It will just be a beginning. We need a thoroughly revamped approach to communications law: a revised statute that treats internet access as the general communications network it was supposed to be (as the framers of communications law thought telephone networks should be); a revised approach to judicial review, embedded in that statute, that revitalizes the role of the courts in telecommunications law; and far better information about what network operators are actually doing.
The next Administration could make bipartisan progress on telecommunications policy, given how much interest there is in this subject around the country. I know, it isn’t the Iraq war, but a better approach to this subject could conceivably help this country’s economic growth.
And at least we won’t be going backwards upside down.
PdF essay contest
Personal Democracy Forum (June 23-24, NYC) is a key annual meeting in this country. You must go.
This year the theme is “Rebooting America,” and PdF has been soliciting essays from people like Clay Shirky, Yochai Benkler, Beth Noveck, Craig Newmark, danah boyd, Scott Heiferman, Tara Hunt, Josh Marshall, Howard Rheingold, Brad Templeton, Mike Turk, James Rucker, Morra Aarons, Patrick Ruffini, Lisa Stone, Joe Trippi (and me) about how to reinvent democracy in the U.S. using the internet.
Now PdF has emerged with the bright idea of asking everyone for their ideas – and they’re planning to hand out free passes to PdF for the best ideas that emerge.
All the details are here.
PdF is also inviting people to read the various submissions and help decide which ones are worth including, by voting them up or down. It’s not a pure Digg model, since PdF is going to make the final choices, but they’re going to be paying close attention to that feedback loop.
The time to write in is now: your submissions are due by May 1.
Comparative internet law
Alan Davidson visited Yale Law School today, speaking to my Internet Law class and to a large lunchtime group. Key takeaway for me: the center of gravity of internet policy is not so much in Washington any more. Discussions of Issues like ISP filtering and data retention are taking place in Europe with enormous energy. There things we might take for granted here – like avoiding online content regulation, or the undesirability of using ISPs as private police – are actively considered.
At the same time, Alan points out, architectural constraints that we also used to take for granted, like “it’s too difficult to look at the packets that are crossing our networks,” or “we can’t know with any reliability where people are coming from who visit our sites” are melting away.
So it’s a time of tremendous upheaval in internet policy, and storm clouds are gathering over Europe (not to be too bombastic, but it does feel like that from here).
It was absolutely wonderful to have Alan here. We need more comparative internet/telecommunications experts – I’m hoping that some of these terrific students will take up that challenge.
Weird boxes
With the help of one of my colleagues, I’ve been going through the history of the Computer Inquiries and all of the regulatory muttering that goes into the “information services”/”telecommunications services” dichotomy.
What a strange story of subversion.
We started off, back in the 60s, with a real fear of dominant telephone companies manuvering/leveraging their way into data processing businesses. So we (basically) cordoned off data processing as a separate business and kept the telcos out.
Then, about 20 years later, the telcos pointed out that they needed to use computers to run their managed networks, and so we let them into the (unregulated) data processing business on the condition that they operate these businesses using separate subsidiaries – at about the same time, we set up a distinction between “basic” transmission services and “enhanced” everything else, and solemnly declared that everything was either one or the other. (That same distinction gets enshrined in the Communications Act as the “information”/”telecommunications” dichotomy.)
Then, about 20 years after that, we decided that internet access was an “information” service and so not covered by any nondiscrimination obligations.
What?
The entire early history of this basic/enhanced distinction was based on the premise that of course there would be common carriage transmission services – they’d always be around – and all we were doing was making sure that those carriers wouldn’t be able to leverage their position in society (and their market power!) into new markets.
Now we’ve got carriers with enormous market power, none of which provides naked internet access. They’re all selling bundles of services. So competition for this access is mild at best – no one can compare prices and speeds across varying bundles. The telcos are getting rid of copper. There’s no regime of common carriage. We have no nondiscrimination rules for any form of internet access at this point.
We took a distinction designed to retain the key role of common carriage and subverted it – all carriage is now proprietary and discretionary, because everything has been jammed into the “information service” box. That box was created to shield a new industry from the depredations of an older one. Now the older one has managed to get into the box itself!
The “data processing”/”new market” idea is completely lost. The definitions in the 1996 Act of “information services” etc. are now construed with care as magical/determinative language, with zero context or history.
It would be good to start over.
More on Section 230
Feeling spiky and prescient for writing about Section 230 *just yesterday,* because today the 9th Circuit came down with a big en banc decision: Fair Housing Council v. Roomates.com. This time around, the Fair Housing Act trumps the broad immunity of Section 230 – and the majority’s approach may dramatically change our current understanding of how Section 230 works.
Roomate requires subscribers to create a profile – in effect, answering a series of questions about gender, sexual orientation, and presence of children (as well as other questions). The Fair Housing Act prohibits any “statement. . . with respect to the sale or rental of a dwelling that indicates . . . an intention to make [a] preference, limitation, or discrimination” on the basis of gender, family status, and sexual orientation. Subscribers can’t leave the answers to Roomate’s questions blank if they want to use its service.
Section 230 immunizes “interactive computer service” (ICS) providers (like Roomate) from liability for third party content. But if the ICS itself is “responsible, in whole or in part, for the creation or development of” the offending content, then it can be on the hook. In today’s decision, the 9th Circuit is suggesting that Roomate’s multi-question questionnaire makes it responsible for the discriminatory answers that are revealed in response to search queries by users.
Roomate needs to be limited to its facts. Otherwise, this opinion (read for all it’s worth) might suggest that online services can be liable for categorizing or channeling information provided by third parties if the outputs of that categorizing are somehow illegal. Indirectly providing the illegal content could be enough to create liability. Does this mean that search engines – which categorize – are liable for the content on sites that can be found through particular queries? The opinion suggests that “neutral tools” won’t be liable, but all search engines tweak their results to some extent – there is no such thing as a neutral search engine. The opinion also suggests that search engines generally don’t encourage illegal searches or the publication of illegal content and should therefore be immune for third party content revealed by searches, but also conceded that “there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality.”
Judge Kozinski suggests that Section 230′s purpose is to immunize ISPs from liability for removing particular content, not for the creation of content, and that Roomate has asked discriminatory questions that could not be asked offline — and has made answering those questions a condition of participation in its service. Kosinzki also faults Roomate for the operation of its search system and its email notification system – both of which operate based on discriminatory criteria in his view.
In effect, “materially contributing” to the alleged unlawfulness (through solicitation, among other things) is enough to impose liability on the online service as a “developer” of the unlawful information. This opinion is to Section 230 as Grokster is to secondary copyright liability – it creates a softer test where online service providers had become accustomed to (and had fought for) a clearly protective line. Enhancing the illegality of a message, even automatically, may create liability. The opinion suggests that close cases must be resolved in favor of immunity and that sites shouldn’t be subject to endless litigation, but that’s not much comfort for close-case-companies.
There’s a stinging dissent from Judges McKeown, Rymer, and Bea:
The majority’s unprecedented expansion of liability for Internet service providers threatens to chill the robust development of the Internet that Congress envisioned.
That could be true if Roomate is read broadly.
Section 230
“Inevitably, when millions of people are speaking, some of that speech will be objectionable.”
Broad Section 230 immunity is under siege, but it’s useful to remember that this statute has been very helpful to have around:
Broad Section 230(c) immunity fosters freedom of speech and the development of the Internet. Without broad immunity, interactive computer services would lack the freedom to structure their websites in any way they want and to solicit and encourage user-generated content. They would run a high risk of being treated as publishers of objectionable third-party content and face liability for it. Broad immunity has allowed the flexibility for the eBays, Amazons, MySpaces, and blogs of the world to create unique sites that encourage the sharing and development of content, information, and speech by their users.
(From a recent CDT/EFF amicus brief.)
This statute might have application to the net neutrality battle as well – after all, it mandates that internet access providers (“interactive computer service” – defined to include any system that provides access to the internet) not be treated as “the publisher or speaker of any information provided by another information content provider.” So the netops can’t claim to be “speakers” of internet communications. Congress has made clear that they aren’t.
LAMP event
Yale Law School had its inaugural Law & Media Program event this afternoon. There was a print investigative editor and his lawyer (Jeff Leen, Investigations Editor, The Washington Post; and Eric Lieberman, Vice President and General Counsel, The Washington Post) and a broadcast investigative reporter and his lawyer (Brian Ross, Chief Investigative Correspondent, ABC News; John Zucker, Senior Vice-President, Law & Regulation, ABC News).
The internet just barely came into view at the tail end of the panel discussion. Wildly paraphrasing:
Q. Does the existence of the internet put pressure on the investigative reporting process?
A. [Brian Ross]: Naah! Drudge doesn’t have our resources. Sure, if we hear that the Washington Post or the New York Times is following a story, we’ll pick up the pace. But otherwise – no pressure! The internet provides us with a great alternative distribution channel for our work.
A. [John Zucker, Brian's lawyer]: Well, actually, online stories have a very different cycle than the regular evening news. Stories break at all hours of the day and night, and the online people want to get stuff up when they think there will be spikes in viewing. This puts tremendous pressure on our ability to do the lawyering job we need to do.
Otherwise, the (very good) discussion was about traditional investigative reporting. Jeff Leen is obviously thoroughly dogged, professional, careful, and respectful of the legal advice he gets from Eric Lieberman. Leen spends years guiding teams of investigative reporters on individual stories, and he’s very clear on what is appropriate behavior for reporters. Brian Ross (on the other hand) was clearly feeling feisty, and mentioned a few times that he has had a lot of tussles with Zucker. The use of confidential sources seemed to create tension for the ABC team – in particular, the exclusive use of such sources.
This afternoon I certainly felt the presence of the journalistic priesthood, but in this context the bond seemed justifiable. This kind of sustained investigative work (particularly on the print side) takes years, enormous resources, and real care in reviewing documents – all of this can, of course, be done by purely-online actors, but the institutional commitment of the Washington Post to investigative reporting is not something to disdain. To the contrary – it’s impressive, seemingly central to the paper’s overall mission, carefully curated and edited, and worth celebrating and supporting. Let’s say five great English-language newspapers survive the onslaught of the internet model. The Post should be one of them – we all need their investigative work.
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and in telecom news, a downward note: the Commission has denied Skype’s petition. Comment by Public Knowledge is here; background is here.