Phweet
For the last couple of months I’ve been Twittering as much as I can about whatever’s going on with OneWebDay plans. (Hey, follow my tweets - OWD is the name.)
Now there’s Phweet, from Stuart Henshall and David Beckemeyer. It’s making it possible to launch voice sessions with your Tweet buddies. (For the Phweet tweets, go to their Twitter feed.)
All mellifluity aside (tweet! phweet! schreet!), this is quite interesting. I set up a session just to see what it would be like, and it seems very easy to use. They’re saying that it just sets up a single-session URL - you set up the connection by using the Twitter user-name of your correspondent, and you’re off. Just like IM chat interfaces, there’s no central server being used.
If you want to, you can leave a record of the session on Twitter - and other people can join in the talk-session. You won’t necessarily know the real identity of the person you’re talking to, just their Twitter identity. Right now this just works with Twitter (which is certainly good for Twitter and for the people who tweet), but there’s an API for other people to do mashups.
I’m pretty fond of the text-tweet interface, quite an art-form in itself, but I can see how this light, flexible way of talking could be addictive.
Who needs a phone?
Mr. Martin
So I’m a little lost in email these days - I fell behind a month ago, and since then it’s been like those game shows where people fight to stay on their feet as large objects roll inexorably towards them. They have to jump over these things, or swim under them, or whatever, but the large objects always seem to win. That’s me and email right now.
I’m grateful for all the lists I’m on. They’re particularly interesting these days, as we warm up for the FCC hearing on Friday and watch ICANN evolve. But, as I say, I’m a little overwhelmed.
So I’ll just go back to triage here and work through the box. Mr. Martin speaks to Saul Hansell, here:
For example, he said it would be acceptable for a network to give priority to Internet telephone calls over e-mail, because short delays affect the quality of voice conversations much more than e-mail.
“You have to have a very good reason for what you’re trying to do,” he said. “Your solution has to be narrowly tailored.”
It’s so interesting that Mr. Martin chose “narrowly tailored” at that moment of the conversation. That’s the test lawyers apply to content-based restrictions of speech by governments.
“Solution” is also an interesting word, because it implies there’s a problem. Skype seems to work fine without quality-of-service guarantees. This well-informed listserv message, from Dave Burstein, is persuasive on several key points:
1. Verizon and AT&T don’t have any congestion issues
2. Comcast does, but DOCSIS 3.0 may provide enough upstream bandwidth that congestion ceases to be an issue
3. Video is the growth area, not P2P, and
4. Much more sophisticated traffic shaping (and watching) gear is coming
So what’s the problem that Mr. Martin thinks the networkaccess providers should be solving? If it’s “maintaining scarcity,” that’s probably the wrong question.
Back to the box. More, and better, tomorrow.
Commr. McDowell in the Washington Post
Commr. McDowell’s opening lines sounded like a real thriller was coming:
The Internet was in crisis. Its electronic “pipes” were clogged with new bandwidth-hogging software. Engineers faced a choice: Allow the Net to succumb to fatal gridlock or find a solution.
So what happened in the year 1987?
The loosely knit Internet engineering community rallied to improve an automated data “traffic cop” that prioritized applications and content needing “real time” delivery over those that would not suffer from delay. Their efforts unclogged the Internet and laid the foundation for what has become the greatest deregulatory success story of all time.
What event - what Internet Crisis of 1987 - is Commr. McDowell talking about? A couple of lists I’m on spent some time trying to figure this out.
Hat tip to Scott McCullough, who pointed us to this thesis. Page 27 says:
‘The area of Internet congestion control was baptised in 1986-1987 when the then ARPANET suffered ‘congestion collapse’ [57]. Congestion collapse had been predicted by Nagel [89] in 1984. Congestion collapse occurs when mounting levels of traffic result in high packet loss inside the network, such that few or no packets are actually delivered to their destination, yet each link is highly loaded.’
‘The initial response to ARPANET’s congestion collapse problem was to increase the capacity of the network. This helped temporarily, but the ARPANET continued to suffer congestion collapses until a strategy to control the load of packets entering the network was developed. In 1988 Van Jackson enhanced the famous Transport control protocol (TCP) [57] so that the transmission rate was responsive to the level of network congestion. TCP was made to reduce the rate of transmission of hosts when it sensed the network load was nearing congestion collapse. Since the introduction of this enhanced TCP, congestion collapse did not reoccur.‘
So the problem was that TCP kept opening the window to allow more packets to flow out, and was insensitive to actual conditions - like the Sorcerer’s Apprentice story, where the wish to have help with the wash (or whatever it was) had no limits. Answer: fix TCP so that when it gets the feedback that packets are being lost it slows down the flow of packets. TCP is indifferent to the nature of the packets that are flowing - video, voice, or email, it’s the same.
But then another writer chimed in and said, No, in fact in 1987 there was an effort to program the original internet backbone, NSFNet, to give priority to interactive (Telnet) packets over ftp requests. Hmm. Another writer said that there wasn’t a word about this prioritization in any NSFNET report.
So, what’s the true story, o readers? And was Commr. McDowell exaggerating?
Well, we know he was when he said the internet was a great deregulatory story. The whole thing was only possible because there was regulation — the carriers were forced not to discriminate against data flowing across their last-mile access points, and had to allow ISPs to connect to them, and the ISPs were expressly exempted from paying some special charges. Anyway, yes, lots of regulation.
But was there prioritization in NSFNet?
When the Man-In-The-Middle Wants Money
I drafted a post today for InternetEvolution that they edited.
Say you’re walking down the sidewalk having a talk with your best friend about all kinds of things. What if you found out later that the sidewalk you were using wasn’t really a sidewalk – but instead a kind of false-front giant copying machine, unobstrusively vacuuming up what you were saying and adding to its database of information about you? Or, say you send a letter to a client of yours (to the extent you still do this), and it turns out later that your letter was intercepted, steamed open, and the contents were read. Or, say you are having a telephone conversation with someone named Peter Brown and it turns out later that the voice you heard on the other end of the line wasn’t Peter Brown at all but instead some sounds aimed at convincing you that Peter Brown was still on the line.
All of these hypothetical situations have certain key elements in common: you’re communicating, and some intermediary that you thought was mutely, helpfully standing by to assist (the sidewalk, the postal system, the telephone line provider) turns out to have something else in mind. That intermediary may want to copy your datastream so it can target ads or different levels of pricing at you, or it may want to inject information into the datastream you’re seeing or hearing for its own purposes (that’s the phone example, analogous to what Comcast was caught doing late last year).
The ongoing flap about Deep Packet Inspection (DPI) has been triggered by just this kind of activity (or planned activity) by ISPs. . . .
The rest of the short post is here.
We won’t defer when you’re wrong
When should a court defer to an agency’s interpretation of its governing statute and/or its own regulatory actions?
I got interested in this question because deference by a flummoxed Supreme Court gave us Brand X, with its ahistorical “this looks really tricky so we’ll let the FCC categorize highspeed internet access” approach.
In this week’s Third Circuit opinion about the Janet Jackson Super Bowl incident, the court doesn’t defer much. At least three times, it corrects the FCC’s reinterpretation of past regulation.
1.
FCC: We gave notice of and a reasoned explanation for our new policy on “fleeting expletives” before the Superbowl in 2004 and the policy wasn’t much of a change anyway.
Court: “[W]e find the Commission’s unsubstantiated contentions in this regard contradict the lengthy history of the Commission’s restrained enforcement policy. While ‘an agency’s interpretation of its own precedent is entitled to deference,’ deference is inappropriate where the agency’s proffered interpretation is capricious.”
2.
FCC: Anyway, our old “no problem with fleeting imaterial” standard only covered words, not images.
Court: No. You admitted that there was a fleeting material policy. Now you’re “seek[ing] to revise the scope of the policy by contending the policy never included fleeting images. But extensive precedent over thirty years of indecency enforcement demonstrates otherwise. Our reluctant conclusion that the FCC has advanced strained arguments to avoid the implications of its own fleeting indecency policy was echoed by our sister circuit in Fox.…”
3.
FCC: A broadcaster is on the hook for indecent material, even if it didn’t know the material was going to be broadcast. We’ve always said so - we have a regulation that says so.
Court: No. “[T]he Commission’s proffered interpretation of [its rule], which appears to contradict the plain language of the regulation as well as the history of its adoption, would appear to be erroneous and inconsistent with the regulation.”
And more: “The FCC’s interpretation of its own regulation is, of course, entitled to considerable deference. But our deference to an agency’s interpretation of its own regulation is tempered by our duty to independently insure that the agency’s interpretation comports with the language it has adopted. Accordingly, we need not accept the agency interpretation if it is plainly erroneous or inconsistent with the regulation.” [many internal quotes and cites omitted in this last bit].
=====
It’s nice to see some limits to deference. Judicial deference and a sleepy Congress have gotten us to where we are right now in communications-policy land.
Understanding COPA’s journey
Like a performance of John Cage’s ORGAN2/ASLSP (”As Slow As Possible”), in which the notes played change every year or so, the COPA statute has just fallen yet again. The statute, first enacted in 1998, has been strongly challenged on First Amendment and other grounds, and yesterday’s Third Circuit opinion announced a dozen reasons why it is unconstitutional. The statute has already made two trips to the Supreme Court and may well make a third.
If you are asked at a cocktail party what the statute is about and why it keeps traveling from Philadelphia to Washington DC and back again, here’s what you could say.
The bottom line is that the government failed to meet its burden of showing that COPA is the least restrictive means of advancing an interest in protecting children from being exposed to harmful material on the web. The 3d Circuit and the district court (as well as the SCT the last time around) have found that filters are more effective and less restrictive than COPA’s implementation. COPA would require all Web publishers that are arguably within the statute’s coverage (a big group whose outlines are blurry) to install protective covers of one sort or another, but filters (by contrast) are readily available to parents, inexpensive, easily modified, and getting better all the time. Given the current composition of the Supreme Court, it’s not clear that the Third Circuit approach will be greated sympathetically this time around.
COPA is known as the “son of the CDA,” which was pronounced unconstitutional in one of U.S. internet law’s keystone opinions, Reno v. ACLU. The Child Online Protection Act (pronounced COPE-ah), put in place after CDA was struck down, is wildly different from COPPA, KOPP-ah, which has to do with the privacy of personally identifiable information about less-than-13-year-olds.
COPA, which has never been enforced, created civil and criminal penalties (including six months in jail) for anyone who knowingly posts “material that is harmful to minors” on the web “for commercial purposes.” Web publishers that are prosecuted can claim affirmative defenses under COPA if the publisher
has restricted access by minors to material that is harmful to minors — (A) by requiring use of a credit card, debit account, adult access codt, or adult personal identification number; (B) by accepting a digital certificate that verifies age; or (C) by any other reasonable measures that are feasible under available technology.
COPA was immediately challenged when it was adopted because indecent speech that may be “harmful to minors” is legal for adults. Setting up criminal penalties for this legal-for-adults speech online puts the government in the role of censor - limiting access to speech on the basis of its content. Our law takes that kind of activity very seriously, and content-based restrictions of this kind are presumptively invalid.
Now, the government can rescue a statute like this, even if it’s content-based, by showing that it is “narrowly tailored to futher a compelling government interest.” (This is “strict scrutiny”.) Here, the government interest is protecting kids, and everyone seems to agree that that test is met.
The hard questions come with “narrowly tailored.” That test is a vessel for (or an alternative to) another test: whether the restriction is the “least restrictive alternative” for advancing the government interest.
The Third Circuit yesterday announced a host of reasons why COPA is insufficiently narrowly tailored, many based on the terms of the statute. The coverage of the HTM definition is vague, the court felt, and so publishers won’t be able to tell in advance whether their operations are all subject to the COPA constraint (what if only a tiny portion of a web site has arguably HTM material on it?) or what fits within the HTM definition (are you supposed to be protecting 3 year-olds as well as 16 year-olds?).
The court also found that having to implement credit card, debit account etc. shields would burden the providers of free web sites whose operations are nonetheless “commercial” and so covered by COPA. This was another instance of insufficient tailoring.
But the key element here is that the Third Circuit held that the government had to carry the burden of showing that filters were less effective than COPA, and it failed to do that. In fact, it appears that filters are both less restrictive and more effective than the operation of the statute, based on extensive findings of fact by the district court below.
This approach may be difficult for the current Supreme Court to agree with. It was difficult enough the last time. The analytical frameworkadopted by the Third Circuit follows what Justice Kennedy said then - that it is the Court’s job to consider what alternatives are out there in the world to help parents, and to decide whether they’re more effective/less restrictive than COPA.
The point, Justice Kennedy said, is to is ‘‘to ensure that speech is restricted no further than necessary,’’ not to consider ‘‘whether the challenged restriction has some effect in achieving Congress’ goal, regardless of the restriction it imposes.’’ So the court’s job is not to ask whether COPA would provide government with another tool to address harmful speech in the name of protecting kids. That standard would justify any restriction on speech. Instead, the inquiry should be ‘‘whether the challenged regulation is the least restrictive means among available, effective alternatives.’’ Right now, filters are more effective and less restrictive than COPA (or, at least, the government didn’t prove that they weren’t), and so the government loses. Never mind that filters are voluntary and that a lot of parents choose not to use them - that’s the parents’ choice. Filters are available.
The government’s argument to the Third Circuit, and probably to the Supreme Court, will be that this is a maddeningly flawed analytical approach. The government would like to see a more protective, quasi-parental approach (on the assumption that parents are busy shoring up the failing economy and can’t be counted on to be watching their kids or caring what they see).
Justice Breyer was very sympathetic to that view the last time around. His point is that filtering doesn’t count as an alternative to COPA. (‘‘The presence of filtering software is not an alternative legislative approach to the problem of protecting children.”) Doing nothing, legislatively, will always be less restrictive than doing something. He also thinks COPA isn’t much stronger than the Miller obscenity test and would only modestly burden adult access to legal adult speech.
Veteran SCT-watchers will count noses, in this case as in Fox v. FCC, and try to figure out what will happen next. Last time around, Justice Kennedy’s majority opinion was joined by Stevens, Souter, Thomas, and Ginsburg, all of whom are still there. Justice Stevens wrote a concurring opinion, which was joined by Justice Ginsburg. Justice Scalia filed a dissent, as did Justice Breyer, who was joined by Chief Justice Rehnquist (now Roberts) and Justice O’Connor (now Alito). So maybe the 5-4 will stay in place. But if Thomas goes over to the dissenting side, and Justice Breyer’s analytic approach (”what do you mean, filtering is an alternative?”) gathers steam, COPA could survive its third trip to the SCT and be upheld.
This case is a big deal because it turns on the question whether private, edge-based solutions to speech issues should be taken seriously. I think they can, and I don’t want to see a lot of government tinkering with the sources of speech. (I don’t think highspeed access providers are speakers - they’re conduit.) Let’s hope the government drops the COPA effort, which has now stretched on for almost ten years.
Another key Third Circuit opinion today
and yet again I am unpacking boxes and unable to do it justice. I’ll catch up, I promise, but there are a lot of boxes (several marked, unhelpfully, “Memorabilia”) between me and rational accomplishment.
But in the meantime: COPA struck down, yet again. A good week for the First Amendment. CDT statement here.
The Third Circuit and the FCC
Nice post from Adam Thierer here. The opinion is available here in non-pdf form.
Summer Friday evening
Two things I’m grateful for this sticky summer evening - first, the Ann Arbor Art Fair [lots of pictures by Ryan Coleman, many of the law school], which brings big crowds to the streets of Ann Arbor. Tonight it was moving to see so many people peacefully walking along, enjoying the relief of the growing darkness. Street musicians, street-fair smells. Okay, yes, it was like Manhattan, just for a moment.
Second, the New Yorker story on a (sort-of) Lee Smolin protégé, Garrett Lisi. The story, Surfing the Universe, by Benjamin Wallace-Wells, isn’t linkable. (For shame!) But it’s terrific nonetheless, so go buy the July 21 New Yorker. Lisi dropped out of traditional academic-physicist life and has spent a lot of time thinking about a Theory of Everything that rejects string theory and has something to do with E8. What’s E8? According to the very game Wallace-Wells, it’s
[A] space whose symmetries are described by E8 has two hundred and forty-eight degrees of symmetry. One rought way to imagine it is as a dense and precisely symmetrical cloud of spiderweb, with thousands of threads exploding out from hubs of concentric spheres.
An Exceptionally Simple Theory of Everything (good Wikipedia entry here) and a lot of fearful symmetry. In a nutshell, “Lisi’s model attempts to describe all known fields—the gravitational spin connection, frame, Higgs, gauge bosons, and three generations of fermions—as different parts of a single superconnection over a four-dimensional base manifold.”
Presumably these fields would also include Art Fairs.
Deep packet inspection
Here is testimony from David Reed at a hearing today. Please read it - not only is it both excellent and thorough, it’s also only ten pages long.
David says (paraphrase mine - read the testimony) that because of the inappropriate surprise, disruption, and risks created by DPI, it shouldn’t be allowed. (Or we should move to all-encrypted communications.) He also makes the key and constant point that the internet has flourished because transport was, traditionally, predictable. This allowed innovative new protocols to be born. (This battle can sometimes be framed as a right-to-life tussle on behalf of as-yet-unborn technologies.)
Of course this tradition of predictable transport didn’t start with the internet. The challenge for the entire argument against DPI is to tie the meaning of predictable transport, and its contribution to economic growth, to a workable legal regime that politicians will be willing to endorse. Arguments from history are powerful (and there are certainly many of them here). Arguments for the future are harder, and David Reed’s contribution here is powerful.
Implementation is tricky - in this case, a “no DPI” approach gets involved (potentially) with national security, child porn, and copyright concerns. At the least, “no DPI by network operators for their own commercial benefit” has to be the rule. And for those other problems, legally-authorized (with probable cause) access to individual data streams has to be a better idea than inspecting every last packet.
This story is only just beginning.