The FCC internet policy working group held a roundtable discussion [pdf] today about international approaches to IP-enabled services. 

Michael Binder, of the Canadian government, had some interesting things to say.  (Binder's title: Assistant Deputy Minister, Spectrum, Information Technologies and Telecommunications Sector.  Binder says he's "not a regulator" but is nevertheless part of the government.)  

He said [paraphrasing]:  "As a government official, I don't see what the urgency is here [to regulate IP-enabled services].  This is very very early in the game.. . . One can argue that we should wait to see how it unfolds.  The notion of governments and bureaucrats and regulators actually designing a regulatory scheme for the future is hard for me to understand.  How to go into a back room and figure out how industry will go forward -- that's an interesting view.  Maybe once there are bottlenecks, regulation will be needed." 

When Bob Pepper of the FCC asked what government policies could foster the development of VoIP, Binder responded (again paraphrasing):  "Our regulator decided not to regulate the internet a few years back.  This was a major proceeding at a time before VoIP emerged, and we've stuck to this decision.  . . . Sprint and Vonage and others are all providing VoIP services.  One might ask, if they're all coming in, what is it you [regulators] want to change? . . . I think the market will take care of itself. If it's not a good service, no one will subscribe to it.  There should be regulation only if necessary.  What's the necessity?"

Jeff Pulver made some very useful remarks, including (paraphrasing):  "Around the world people have trouble believing things [some services] are really free.  This is radical for people, and certainly for regulators.  The real generation we need to think about is the IM generation.  Presence plus voice plus social networking creates a new era of online communication.  My role is to help protect the future, and make sure that innovation can happen.  Don't think of these services as substitutes for telephony -- think of the future."

This was a complex and interesting morning; the UK and Japanese regulators take quite different approaches than Canada may be taking (UK looks at whether something is a telecommunications service, and appears to be in about the same position as the US -- trying to figure out whether there is a market around which lines can be drawn; Japan has already decided that VoIP is a telecommunications service and is regulating accordingly), and several companies cried out for regulatory certainty. 

Nortel, in particular, said balefully that if regulators didn't provide this certainty businesses would have no reason to invest in the vastly improved and increasingly secure broadband networks that Nortel apparently believes must eventually supersede the internet.  Paraphrasing: "The internet is the wild wild west from a security standpoint . . . in order to scale, to make this a dependable, real-world network, companies need to come to commercial agreements about how to treat each other's traffic. This can happen without regulation, as it has with wireless carriers for treatment of roaming customers. . . . The empowerment of consumers to have control over how communications coming their way are treated and routed is key. The only way to make this scale -- the internet is fun but we need to get to scale -- is to create a network that is much more reliable and predictable than the internet will ever be."  I may be naive, but this seemed to me to be a pitch by Nortel.

The key tension here appears to be between BT's call for internationally consistent rules that allow companies to sell services, and Canada's point that it seems awfully early to be doing anything at all. There did not appear to be a clear call for emergency services, disabled access, privacy mandates, or any of the other policies discussed in the IP-enabled services NPRM, as far as I could tell -- particularly for services that don't interconnect with the traditional telephone network. On the other hand, there wasn't a huge push against them, and CALEA didn't really come up at all (except for an oblique mention of "safety"-oriented policies that would be discussed by the FCC in the near future).

Net impression:  Canada seems like a good place.  Even though this summary comparing the Canadian and US proceedings suggests that Canada is both more focused and more likely to regulate than the US is, Binder left the impression that Canada won't do anything at all.  But, again, he's not a (or "the") regulator.

I'm waiting for the FCC's NPRM on CALEA for VoIP to drop.  I am in acronym heaven.

Ed Felten has a nice description of John Morris's presentation at the PFIR conference here.  It's likely that FCC is going to try to thread the needle and describe some CALEA regime for VoIP that attempts to ensure that the regime doesn't apply to IM and email.  But, still, it's a big step for the FCC to reach the services that are somewhere in between ATT (little bit of IP added in) and Pulver.com (all IP) with CALEA.

And The New York Times is certainly noticing.  Today's story is worth reading.  CALEA is only part of the story.  The rest -- the implementation of the "social policies" that I've been pointing to -- is equally fascinating.

Have you downloaded Skype yet?

 

I'm here, having finally (with Froomkin's help) found a way to get online.  In exchange, I gave Froomkin a route map for the No.3 busline.

What's this conference about?  It may be about network security -- holding people liable for using legacy hardware and software that can be used to attack others.  It may be about spam and whether or not anonymity continues to make sense.  It may be about the glory of self-organizing systems and netizenship (it was for about 10 minutes, when I was talking.)  It may be about ICANN (although several people have professed to not be interested in bashing ICANN).  It may be about WSIS.

I can't tell what it's about.  I've taken the mike a few times to ask the group to focus on a problem and build something.  I said at one point that being here was like watching a big football team sort of wander aimlessly around the field.  Someone responded -- maybe it was Brad Templeton -- that these guys are here because they sucked at football.  (It's mostly guys here.)  It's so hard to harness this energy and get it working on something concrete.

Karl Auerbach is here, and he's suggesting that some regulations are good -- governments have legitimacy that others don't.  He's focusing on the "dangerous software/hardware" problem, and also providing some ICANN criticism.  He's concerned that users are being forced to pay at least $6 a domain name.  Others pointed out that there are some registrars who charge less than $6, and make up the difference on services.

Wendy Selzer is here, and I wish I could stay to hear whatever remarks she's going to make.  Ed Felten is wise in the hallways.  I've been privileged to mutter with David Isenberg in the back of the room.

I'm noting that none of us bloggers have managed to encapsulate this conference yet.  We're all just announcing that "we're here."  I think that's indicative:  it's 4:15 and we're not quite sure where in topic-space "here" is.

I'm going to assert that this conference is about the rise of netizenship and the need for a lobby for netizens.  Just as Larry L. has found a way to represent the public domain, we need to find a way to represent the end-user, and the power of that user to shape his/her own environment -- given adequate tools.

PS:  In case you were wondering, the internet hasn't melted down and isn't in danger of doing so.

After the sultry days and nights in Kuala Lumpur, it's great to be in Southern California.  I'm here for the PFIR conference tomorrow.  The conference hotel is at the corner of Lincoln and Manchester, just north of the airport, and after I checked in I took the No. 3 bus up to my home town:  Santa Monica.

The No.3 is a spectacular busline.  It costs only .75 to go all the way from south of the airport to UCLA -- fast.  Along the way, you see a lot of Lincoln Boulevard (junky), ICANN's headquarters (anonymous), the high school I went to (huge), the pastel-colored stucco apartment buildings south of Montana, and a lot more -- including a glimpse of the city fishing pier and momentary ocean views. 

It's a great day here, and it's nice to be back, if only for 24 hours.

I'm not sure what to expect from tomorrow's meeting.  I'm looking forward to seeing Neumann, Weinstein, Farber, Bradner, and whoever else is planning to come.  The somewhat apocalyptic conference announcement ("A continuing and rapidly escalating series of alarming events suggest that immediate cooperative, specific planning is necessary if we are to have any chance of avoiding the meltdown") makes me want to tell a few jokes. 

Instead, I'll focus on netizenship. I'll talk about the glory of self-organizing networks (and the order that emerges from them), and I'll point out that someone is already in charge:  us.  "Governance" does not necessarily involve "governments."  And I'll tell a few stories about this past ICANN meeting, including what happened during my lengthy cab ride with the manager of Burundi's ccTLD, .bi.

Although I usually try to tie these posts up into a neat package, there really is no connection between the internet and the No.3 bus.  Except that both work really well.

Downtown Kuala Lumpur has the aesthetic of Santa Monica Boulevard in West LA ("Build it! Build anything! Right now!") and the street life of Times Square.  Plus women veiled in black from head to toe, silently flitting by, their eye-slits sometimes covered by spectacles.

Last night, with two friends, I was the happy recipient of a foot massage.  Both feet were well taken care of in a storefront place that also sold tea sets -- and featured cheesy Chinese warrior films ("hi-YAHHH").  My feet slid back and forth in my sandals afterwards, and I could hardly walk down the crowded streets.

Today, I will take my feet and my laptop on a 36-hour journey to Los Angeles.  I am a package from now on.  I will try to follow the advice of a veteran traveler and take this trip without emotion.  I have plenty of bottled water but not enough battery power to work on my latest article.  So I may not make much progress, academic-wise, but I will be carried across many oceans.

 

If I ever get out of Kuala Lumpur, I look forward to pressing forward on Bellhead/Nethead.  I was so pleased to run across this post from David Isenberg today.  Thanks, David!

For me, what's going on in the interim FCC proceedings on implementing the broadcast flag has links to my overall "black helicopter" concerns about this pivotal moment in internet history.

As Jonathan Krim of the Post reports today (it must be today somewhere):

Hollywood studios and the National Football League are seeking to block the maker of the popular TiVo television recorder from expanding its service so that users could watch copies of shows and movies on devices outside their homes.

In filings with the Federal Communications Commission, the organizations say the new technology could compromise the copyrights of shows that broadcasters send over the airwaves in digital form, which offers much higher sound and video quality than what viewers typically get today.

The flag was supposed to be about indiscriminate online distribution.  TiVo is trying to provide a device that allows 10 people within a personal network to copy TiVo-ed shows onto their PCs.  It's perfectly secure.  It's just not quite constrained enough for the studios. 

And Hollywood is asking [pdf] the FCC to make sure that this TiVo functionality never reaches consumers.

This desperate quest for control, using the FCC as an apparently willing tool, will end its first stage next week.  The rumor is that Real and MSN have already caved in to the studios.  Only TiVo is still fighting.

The flag proceeding has convinced me that FCC is capable of almost anything.  That's why it seems important to let FCC know just how hard making rules about IP-enabled services will be.

We seem to be at a very interesting point in history.  We may be battling for the heart of the internet.  That's purple language, but that's what's going on. 

Telecom agencies all over the world and the UN would like to see some form of "internet governance" in place.  Their statutes or organizing principles are certainly broad enough to include the internet -- they look at IP addresses and say, "That's us!  We should be in charge!"

And, in the US at any rate, there's an unholy alliance between law enforcement and Hollywood that would like to help this regulatory development along.  There are some big companies that would like to sell authentication services.  Add this all together, and there is, right now, real pressure to change the way all of us look at this network of networks. 

It's going to be hard to make this shift to regulation happen -- after all, there really aren't many chokepoints in the system, and it's very difficult to say that citizens can use only particular IP addresses.  My hope is that it's already too late to cause this change.  The genie is out of the bottle.

But every time anyone says that "governance" necessarily involves "governments," a tiny link in the chain is forged -- and a telecom regulator, somewhere, looks up and smiles.    

Today is IDN Day.  John Kleinsin is up talking about just how hard IDNs are.

In the back of the room, there is muttering about the budget.  It looks to me as if it's likely to go through at $15 million.

My view on the budget has changed over time.  I've talked to several board members who assure me that ICANN has no interest in broadening its mission.  They're focused on limiting what ICANN does.  I've talked to registries who are frustrated with the communications problems with ICANN staff.  It seems to me that staff is trying, and that they're ... swamped.

Given all of this, I'd suggest not focusing on the $15 million number, and talking about structural approaches to future budgets that will help with these two problems:  risk of mission creep and staff non-responsiveness.

Let's not allow ICANN to spend, immediately, money it makes from auctioning TLDs (a likely step) or charging registrars.  People are talking about foundation approaches -- putting the money beyond ICANN's immediate reach.  People are talking about task force examination of ICANN's spending habits.

Let's constantly back up the frame on ICANN's mission.  My sense is that organizations hardly ever do this.  It would be a good idea for ICANN to articulate its job description in a way that avoids the generalities (hinting at things much greater) of the 2002 mission discussions.  Let's be specific.  Let's not just describe -- let's have a watchdog group (that has resources) take a hard look at how ICANN is or may be straying.  

If ICANN means what it says -- if it's not actually interested in becoming an attractive chokepoint for the desires of governments -- then let's hold them to that promise through structures that constrain future budgets. 

This morning Markus Kummer was here to address ICANN about the Working Group on Internet Governance within the UN.  He said at several points that it was still not clear what "internet governance" means, and proposed that answering this question would be the work of his Working Group.  Nor is it clear what "multi-stakeholder group" means.  But there's a process and he is right now (with one other person, and without funding) the Secretariat for that process.  The goal is produce a paper by June 2005.

Wolfgang Kleinwachter made an argument that "basic services" -- like infrastructure and the DNS -- don't require governmental involvement, but "enhanced services" -- like applications -- require a great deal of government involvement.  He's trying to use the telecom structure, flip it upside down, and then have it ensure that the DNS doesn't get touched by this group.  I'm not convinced that this makes sense -- particularly because the government view of this issue would insist that basic services need regulation too -- perhaps even more so.

Another comment:  "What ICANN is doing is very much philosophical, not really technological. . . We intend to compete with you. .  You're not improving. . . We would like to compete."  This was an individual speaking.

Network security, IP rights, data protection, spam, and multilingualism -- that's the list that Kummer gave for internet governance.  Cerf comes up and says that ICANN is focused on low levels, enabling components of the internet.  [paraphrasing] "The part that stimulates interest in governance lies at the edge of the net.  So -- spam is a consequence of email.  It has little to do with the underlying network.  It strikes me that a great deal of the governance debate has to do with the edge.  This is outside ICANN's purview.  We could help explain technical things to you.  Eg, with multilingualism -- internet can carry any form of script -- so we'll help explain that to you."

Twomey then says that these issues link back to technology and also to geopolitical issues.  [paraphrasing] "So even if ICANN wished it could do something simple in the multilingual or country-name arena, the reality is that there's a treaty that we have to look to.  Even if it would be nice to have a one-stop place to fix all problems, you still have to go out and look at the rule of law and go to other organizations -- complex web over last hundreds of years."

Paul Wilson says that MOU now in place is the last one.  Question is whether before the end of WSIS there could be some clear statement of relationship between ICANN and USG.  It seems to Wilson that if ICANN needs to overcome WSIS concerns it should clarify this relationship.

Twomey responds:  [paraphrasing] "Kofi Annan told me that you can't wish away history.  This MOU represents a policy statement that USG wishes to transition out of a 30-year history of their role.  As was made clear in December in 2003, the countries that will most lose if this technology stops working are those that are least likely to support a government-only solution to this problem.  So the MOU is a due-diligence document -- checking to make sure that multistakeholder work actually happening.  We are ahead of timetable on our milesones, but I can't say whether we'll be able to pass the test for the transition.  USG now saying that they're satisfied with us and committed to the transition.  MOU is not some sort of charter/legislative something -- it's due diligence.  You'll find that as ICANN becomes more businesslike we're making contingency planning for failure (we showed this plan to the GAC), and the USG plays no special role on failure in taking functions forward.  Govts, cctlds, RIRs, techies will do that."

Peter Dengate-Thrush reinforces what Vint said about layers -- ccTLDs can handle their own local policies.  Govts should not necessarily be managing ccTLDs unless there's a relationship that already exists.   

Izumi Aizu says [paraphrase] "there are many issues inside ICANN that are relevant to the working group -- new gTLDs, whois privacy, multilingualism.  Users are difficult to self-organize, and we need money in order to be part of ICANN meetings." 

 

"While escaping war-torn China, a group of Europeans crash in the Himalayas, where they are rescued and taken to the mysterious Valley of the Blue Moon, Shangri-La. Hidden from the rest of the world, Shangri-La is a haven of peace and tranquility for world-weary diplomat Hugh/Richard Conway. His ambitious brother, George, sees it as a prison from which he must escape, even if it means risking his life and bringing destruction to the ancient culture of Shangri-La."

Shangri-La.

That's where the ICANN team is today, in the Shangri-La Hotel in downtown Kuala Lumpur, Malaysia. It's a very nice hotel.

The big item on ICANN's plate right now is the budget. I've heard that at least one large registrar hasn't signed on yet. I've also heard that ICANN has several backup plans in mind that may involve looking to the registries for funding.  Or may not. This will be a hot item of discussion over the next few days. 

I saw a plaintive email from Elisabeth Porteneuve that said ICANN had deleted all of the old wwwtld records for the ccTLD organizations from its website.  From what I can gather, there remains some concern and confusion about the ccNSO's legitimacy and standing in the ccTLD community.  Their meeting here will be dedicated to process.  I'm sure there will be bloggers in the ccTLD meetings to tell us more.

Other substantial issues to be discussed include the .net contract, IDNs, ongoing WSIS issues, and how to approve new registry services for registries under contract with ICANN.  VeriSign may or may not have something to say about the Sitefinder report [pdf] of July 9.  At the moment, the GAC is meeting behind closed doors, and the rest of the crowd is touring the city or chatting in the capacious lobby.

The conference website is up:  www.cardozobellhead.net.

Send suggestions to us about resources we should add to the site, and they'll be added right away.

I'm on my way to Kuala Lumpur (slowly).  So no blogging for a while.  I'll send a report when I get there.

If you were given the chance to give full attention to two (or more) things at once, all the time, would you do it? 

From Distraction, by Bruce Sterling:

"The deal is this:  that old man was thinking of two things at once."

"What do you mean?" Kevin said.

"I mean that it's a neural hack.  He was fully aware of two different events at the same moment.  He didn't let that little kid hurt himself, because he was thinking about that kid every second.  And even though he was carefully working that hammer and chisel, he wouldn't let that bottle overflow.  He didn't even have to look at that bottle to realize it was full.  I think he was counting the drops."

"So it's like he's got two brains," Kevin said slowly.

"No, he only has one brain.  But he's got two windows open on the screen behind his eyes."

"He's multitasking, but with his own brain."

"Yeah.  That's it.  Exactly."

Earlier this week, Vonage persuaded a SDNY magistrate judge to stop the state Public Service Commission from treating Vonage like a telephone company.  We need to pay attention to this development, because it may put the FCC in a position to require many things of many online services.

The NYPSC had sought to require Vonage to obtain authorization to provide telephone service in New York and to file a schedule of its rates.  This is a clear victory for Vonage.  For the moment, and for the second time, it has staved off inconsistent state regulation of its services.

The SDNY will keep this injunction in place until January, and the judge indicated that he is trying to give the FCC time to come up with its own rules for IP-enabled services.

In its comments [pdf] to the FCC, Vonage has said that "Vonage's service is an information service because it performs net protocol conversion and because it accesses and processes stored information, which are characteristics of information services."

Vonage goes on to say,

Thus, as an information service, the Commission should only subject these IP-enabled services to the regulations necessary to protect social goals, but should also recognize that keeping the Internet free from regulation is another important public policy goal.

Vonage is signaling that "social policy" regulation for IP-enabled services -- emergency services, access for people with disabilities, contributions to universal service, law enforcement access -- may make sense. In its filing, it urges the FCC to "wait to see if the marketplace is able to deliver these social goods without heavy-handed regulation."

Four questions:

1.  In the rush to ensure preemption, will both sides -- the FCC and providers of IP-enabled services that happen to concern voice data -- make deals about "social policies"?  Will FCC tie preemption to a menu of things it may want to  ensure -- like application of CALEA to IP-enabled services? 

Something similar happened when new TLDs wanted to be admitted into the root:  ICANN staff created a host of new contractual provisions and requirements as a condition of entry.  In the Vonage case, Vonage needs protection from the states in order to survive.  (Of course, it also needs protection from slow-moving broadband providers in order to survive.)  The same thing happened to the new TLDs:  they acceded to the invented ICANN contracts in order to go into business. 

2.  Does FCC have jurisdiction to impose these "social policies" on IP-enabled services? 

3.  What is the limit of these policies?  So far, the ones listed above are under consideration.  What is the principled line between these and other socially desirable policies -- such as filtering to identify infringement of intellectual property rights (using watermark systems)? 

4.   How broadly does the definition of IP-enabled services sweep?  Vonage in its filing talks sometimes about services that use the public switched telephone network (as Vonage does), but sometimes about services that don't (like Pulver.com).  It identifies both as "IP-enabled services" that are "information services" and thus subject to "light" regulation by the FCC.  Why isn't any email application an "IP-enabled service"? 

Yesterday's COPA decision represents a milestone in the era of data visualization:  citation to histograms created by a politically diverse group looking together at a screen.  And those histograms turn out to have been critically important to the majority opinion in the case. 

 

David Johnson, who wrote the program that encouraged the group to come up with those histograms, should be feeling very proud today.  (He's now an esteemed professor of law at New York Law School.)

 

Here's the story:  One part of COPA that wasn't declared unconstitutional created an (unfunded) Congressional commission to study technologies and methods designed to reduce access by minors to "harmful to minors" material on the internet.  The Commission's report is here. 

 

Congress directed the Commission to evaluate the accessibility, cost, and effectiveness of protective technologies and methods, as well as their possible effects on privacy, First Amendment values and law enforcement.

 

The COPA Commission worked hard.  It met in person several times (all without funding).  It held regional meetings.  It examined a wide range of child-protective technologies and methods, including filtering and blocking services; labeling and rating systems; age verification efforts; the possibility of a new top-level domain for harmful to minors material; "greenspaces” containing only child-appropriate materials; internet monitoring and time-limiting technologies; acceptable use policies and family contracts; online resources providing access to protective technologies and methods; and options for increased prosecution against illegal online material. 

 

It was hard work even coming up with this list of technologies and methods to examine.  And then an even tougher task was confronted by the Commission:  how to "evaluate" all these disparate things along the axes suggested by Congress.  David Johnson and I were staff to the chair of the Commission, Don Telage, for this effort, and I'd like to thank our former law firm, Wilmer, Cutler & Pickering (now WCP Hale Dorr) for supporting our work on this task. 

 

David came up with the idea, and coded the program, that allowed the Commission to complete its work.

 

What David did was to build a software program that displayed a separate screen for each technology and method that was the subject of the group’s study. On that screen, he put a histogram consisting of bars that could be higher or lower based on a set of scores for effectiveness, cost, accessibility, privacy-compatibility, and impact on First Amendment rights. The screen also contained a numeric rating given to the technology by every member of the Commission. The overall state of any given bar in the histogram, on any given screen, reflected the average views of the group.

 

We passed out scoring sheets to the members of the group (which included people with a wide spectrum of different views – everything from prosecutors and anti-porn crusaders to civil libertarians).  We had them tell us their ratings individually, without compromise or log-rolling or speeches. 

 

At the next physical meeting, we showed the Commission the resulting pictures.  Each member of the Commission saw how his/her ratings compared to those of his colleagues.  This allowed us to focus on scores that were quite different from the others, and gave those scorers a chance to persuade the rest of this group that he/she was right.  Sometimes this led to changes by scorers.  Sometimes, the group agreed to disagree.  But the most remarkable effect of this shared screen was that the group worked well together.  No one talked about irrelevant subjects or tried to derail the discussion.  The question was the picture on the screen.

 

The Court cited the results of this histogram work, saying what the ratings of the Commission were for use of filtering technologies, and citing with approval the overall work of the Commission.  The answer that was reached by the group:  filtering technologies are more effective, with less adverse impacts, than any of the other technologies and methods considered.  And that's what the Court found.

 

The COPA Commission, chaired by Don Telage, was made up of the following people: 

 

Stephen Balkam, Internet Content Rating Association

John Bastian, Security Software Systems

Jerry Berman, Center for Democracy & Technology

Arthur H. DeRosier, Jr., Rocky Mountain College

J. Robert Flores, National Law Center for Children and Families

Albert F. Ganier III, Education Networks of America

Michael E. Horowitz, Department of Justice

Donna Rice Hughes, Author, Kids Online/Founder, Protectkids.com

William M. Parker, Crosswalk.com

C. Lee Peeler, Federal Trade Commission

Gregory L. Rohde, Department of Commerce/NTIA

C. James Schmidt, San Jose State University

William L. Schrader, PSINet Inc.

Larry Shapiro, Walt Disney Internet Group

Srinija Srinivasan, Yahoo! Inc.

Karen Talbert, Nortel Networks

George Vradenburg III, America Online, Inc.

 

I have been working on the questions I'd like the panels to debate on September 28.  The first panel will deal with justifications for regulation.   

Consider the following text from a May 1998 World Information Technology and Services Alliance (WITSA) paper, Statement on Convergence:

"WITSA believes there are three legitimate justifications for regulation. The first is to foster or stimulate competition. In most cases, the WITSA believes that general competition rules will suffice, and markets should be allowed to operate free from government intervention. However, when dominant suppliers exist in a given market, or when market forces - for whatever reason - are not able to ensure discipline, then some form of regulatory oversight may be required.

A second justification for regulation is to protect and enhance the public good. However, use of this condition must be made lightly and sparingly. Instances where this justification may traditionally apply may even be disappearing in the face of competition. For example, the build-out of telephony networks to provide ubiquitous access to basic services has long been considered a legitimate reason for regulation. However, this view is now being challenged with the introduction of the new technologies.

A final justification for regulation is the equitable allocation of scarce public resources. Spectrum, for example, has long been considered a scarce resource and regulation was used to insure its distribution in an orderly and reasonable manner."

Consider also this statement from the Department of Homeland Security, filed in the IP-enabled services proceeding:

"[National Security/Emergency Preparedness] NS/EP considerations provide a compelling rationale for applying a certain amount of regulation to IP-enabled services. The purpose of such regulation would be to ensure the prioritized availability of certain communication services to Federal, state, and local officials and first responders in times of emergency or national crisis."

What is/are the justification(s) for FCC regulation of IP-enabled services, as those services are defined in n.1 of the NPRM?  How persuasive are these justifications?What are possible responses to these proposed justifications?

So -- that's the first panel.  I'll be sending out emails asking for links to materials that should be posted in connection with the conference.  We're planning to have a must-go-to conference web site that collects these resources.

In working on these paragraphs, I've been struck by what DHS is asking for.  Scott Bradner pointed me to this a week ago, but it has taken me some time to actually climb the learning curve (thanks, Scott!).  I've linked to their statement above. 

They say, "In times of emergency or network congestion, [National Security/Emergency Preparedness] NS/EP priority treatment may be required for certain communications such as electronic mail, instant messaging, video feeds, or video conferencing sessions.  The Commission's rulemaking process must keep this in mind."  (This is on p. 8 of their filing.)

And, "In the event of crisis, NS/EP national leadership must receive end-to-end priority treatment over other users. . . . NS/EP traffic must be identified with its own class of service -- above and beyond "best effort." (p.9)

And, on p. 10, "It is the intent of DHS to take advantage of the technology developed by the industry to achieve its objectives of  assured NS/EP communications during crises.  The NCS intends to continue to work with the industry through voluntary and contractual arrangements, subject to Congressional budget constraints, to support NS/EP services and features [including standard priority markings of NS/EP communications].  If these voluntary and contractual arrangements are insufficient to achieve assured NS/EP IP-enabled communications services, the NCS would request the FCC consider imposing regulatory constraints on all providers of IP-enabled services. . ."

So:  One of the possible reasons we need regulation of ip-enabled services is to assure priority of national security communications.  And, whatever we do, we should not interfere with CALEA for ip-enabled services.

The FCC is clearly under enormous pressure.

There are reasonable people walking on this earth who will say that the IICA is not a big deal.  Rather than jump down their throats, I'm going to suggest that we slow things down, have some hearings, and try to get to the bottom of what's going on.  Three kinds of arguments, all of which interrelate, are being thrown back and forth:

1.  The bill will cripple the development of new technology.  Counterargument:  The RIAA says that the legislation "was meant to be narrowly tailored to address companies that build technology focused on illegal file sharing." And Sen. Hatch says the bill "protects existing legitimate technologies and future innovation in all technologies – including peer-to-peer networking," and maintains that "all agree that non-piracy-adapted implementations of P2P could have legitimate and beneficial uses."

Let's assume, for the sake of this argument, that both sides have good points.  But there is a great deal of fear on the IT sector side, and there's no limiting language in the bill that focuses on "illegal file sharing."  It's all about copyright infringement, which can be said to occur all the time in all kinds of digital and analogue devices. 

Because it's hard to go after direct infringers, it makes chokepoint sense for the content industry to go after machine and software maufacturers.  (Note:  under the bill, Xerox copying machines look like much more attractive targets.  Those guys know they're making money from illegal copying.  They constantly advertise their copying services.)  The content industry has of course already done this, and they're disappointed with the district court decisions in Grokster and Napster.  But they did very well at the appellate level in Napster and Aimster, and they drove ReplayTV out of business.  Surely secondary liability is alive and well. 

Given the apparently well-founded fears of the IT industry, and the existing, ample, judge-made doctrine on secondary liability, why create a brand-new, seemingly unlimited cause of action that any copyright owner can bring against any thing or person or business he doesn't like?  It's worth having a hearing or two on this subject, at the very least.

2.  The bill will broaden secondary liability for copyright infringement in ways we cannot predict.  Counterargument:  This is a merely incremental statute, and nothing new.  "In the Criminal Code, Congress made it a federal crime to willfully infringe copyrights or to distribute obscene pornography or child pornography. Congress also made it a crime to induce anyone – child or adult – to commit any federal crime."  And, "The Inducement Act will simply import and adapt the Patent Act’s concept of “active inducement” in order to cover cases of intentional inducement that were explicitly not at issue in Sony."

Again, there are certainly good sources for "inducement" in both the criminal law and patent law.  But both are arguably inapposite sources:  criminal law has a higher standard of proof and requires the exercise of a prosecutor's judgment about what's worth suing on; patent law requires specific intent to induce infringement of a specific patent -- and it may be that "inducing" can't be found where the article is capable of substantial noninfringing uses.  So where are we?  We're puzzled and confused.  Again, it's worth having hearings.

The bill will render Sony irrelevant.  Counterarguments:  The bill says that "Nothing in this subsection shall enlarge or diminish the doctrines of vicarious and contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright."  This "savings" clause is said to save Sony, and MPAA says that "Enabling technologies have nothing to worry about as long as they are not inducing other people to violate the copyright law."

The people on the other side of this argument can point to the emptiness of DMCA's statement that fair use wasn't affected by that statute.  Yes, the doctrine of fair use isn't affected by the DMCA, but the anti-circumvention rules make fair use impossible.  It's a difficult problem:  "Fair use" is itself a court-created, after-the-fact balancing of many relevant factors.The fair use balancing does not occur until someone has brought a case charging infringement, infringement has been found, and the infringer has raised the affirmative defense of fair use.  In the anti-circumvention arena, all of this back-and-forth is inpossible. 

Similarly, so the argument goes, the IICA's creation of a new kind of secondary liability, triggered by "acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability," would leave judge-made theories of contributory liability in place -- but no one would ever use them again. 

Plaintiffs would have this brand new, clean-as-a-whistle cause of action to use, untainted by all that Sony history.  They could show that infringement is important to the commercial viability of a particular machine (like the copy machine), and then, poof, there would be enough "intent" to satisfy the statute.

So where are we?  We're worried enough to hold a hearing.  We don't need to scream or claim that the other side is witless or evil.  We just need to think this through. 

Here is the revised bill [pdf], introduced late last night.  Floor statement is here [word].

The content industry would like to overrule Sony, and sees an opportunity to do so before all legislative activity ceases for the election.  This is the Hollings bill in another guise.  It would potentially make some legitimate technology liable for secondary copyright infringement -- things you love, like the Apple iPod.

The industry will say "If you're not with us, you're against us," and if you're against this bill you must be in favor of child pornography.  The bill's proponents will claim that this is all incremental -- an application of patent standards that have worked well for years.  But the INDUCE Act is much more than that:  it is no less than an attempt to ensure that any equipment manufacturer that makes money in an atmosphere in which some copyright infringement may be occurring will itself be liable for infringement. 

It's very easy to show direct copyright infringement -- much easier than it is to show patent infringement.  So indirect liability will also be easier to claim under this act. 

I'm not saying it's the end of western civilization.  I am saying that this is bad legislation that will have a negative effect on a part of our economy -- the IT sector -- that contributes much more in terms of jobs and revenue to the country's economic health than the content industry does.

There's some good news and some bad news.  The good news is that "counsels" has been dropped from the bill.  (No copy of the bill is available at the moment.)

The bad news is that there are strong rumors that the bill will be introduced today or tomorrow, that there will be a hearing about it on Thursday or Friday, and that it will go to the floor quickly on a unanimous consent request -- a fast track.

For those who suggest that patent "inducement" claims haven't brought western civilization to a halt, three responses.

1.  You're right.

2.  It's much much harder to prove patent infringement than copyright infringement.  You have to be serious to bring a patent claim.  You have to hire experts.  It's a big deal.  Copyright infringement claims, by contrast, are a piece of cake to bring.  So the risk of unpredictable consequences to innovation etc. from secondary copyright "inducement" claims are higher -- because there will likely be more of them.

3.  Sony depends in part on a borrowed patent analysis (staple article of commerce capable of substantial noninfringing uses), so you may be claiming that the INDUCE act is just one more borrowing.  But what you'd be doing is effectively overruling Sony by this much broader borrowing -- and creating liability rather than limiting it.  Different.

This proposed bill is part of a concerted effort [pdf] to make sure that P2P software is viewed as illegal stuff.  

Plans are marching on for Nethead/Bellhead:  The FCC Takes On the Internet.  Date:  Tuesday, Sept. 28.  This is a one-day conference, under the auspices of Cardozo's Floersheimer Center for Constitutional Democracy and co-sponsored by the Yale Information Society Project.

So far, representatives of MCI, BellSouth, Verizon, Level3, and Vonage have said they'll come.  We've got several people from the FCC signed up.  People from Public Knowledge, CDT, Cato, and PFF are coming.  David Isenberg, Kevin Werbach, David Weinberger, Jeff Jarvis, and Dave Farber are coming.  I'm still working on Google, Intel, AOL, and MSN and have high hopes.  Jon Weinberg, Jim Speta, and Rob Frieden are coming.

Excited as I am about who's coming, I'm more focused on the substance.  In its IP-Enabled Services rulemaking (WC Docket No. 04-36), the FCC appears to be asserting that although there isn't a compelling rationale for applying traditional "economic" regulation to providers of IP-enabled services (paying for universal service, paying interstate access charges, filing tariffs, etc.), they're considering using their ancillary jurisdiction to apply "social policy" regulations.

The rulemaking asks for comments about which social policy regulations make sense for which IP-enabled services.  Here's footnote 155:

"For example, one might question what it would mean to apply E911 obligations on an Internet retailer . . . . Similarly, some obligations may only be sensible in the context of VoIP service. However, to ensure that whatever distinctions we ultimately draw among different IP-enabled services are sound as a matter of law, technology, and public policy, we decline in this Notice to foreclose any particular approach, and therefore frame our questions in terms of all "IP-enabled services," though some may only apply to particular types of service."

 

This rulemaking is not just about VoIP.  It's about all IP-enabled services -- including email and IM.  All of these services are arguably "information services" in the FCC's lexicon, and thus subject to FCC's jurisdiction.

 

FCC recently found [pdf] that pulver.com's Free World Dialup (FWD) was an information service.  Although some commentators had asked FCC to make clear that FWD was just a software application, not a service, FCC took a different route.  As I understand it, things that use wires or radios in the US fall into one of two categories in the FCC's eyes:  you're either a "telecommunications" entity or service, or you're an "information service."  Since Pulver isn't a telecommunications carrier, it has to be an "information service."  

 

Pulver had tried to argue that, no, he wasn't offering an "information service" -- he was just offering a software product online that created a namespace.  But the FCC stuck to its guns: 

"[T]he statutory definition of an information service speaks only to the offering of various types of computing capabilities via telecommunications, not the offering of telecommunications itself. The fact that FWD’s computing capabilities, as described above, are available to its members via "telecommunications" – i.e., the  telecommunications underlying its members’ Internet connectivity; the telecommunications connecting Pulver’s FWD server to the Internet; and the telecommunications underlying the Internet backbone itself – is sufficient to meet the statutory definition of "information service."

With me so far?  This means that any computing capabilities offered via a connection to the internet are "information services."  Email, IM and the DNS fall in this category.  Although these things might not have to be tariffed, because they're not "telecommunications services," they might have to be subject to several different kinds of social policies -- including making their designs subject to FBI approval, making themselves accessible to the disabled, facilitating E911 services, and being subject to privacy rules.  That's what the IP-enabled services rulemaking is about.  It covers both applications and services.

 

The argument may be that these social policies are lightweight in comparison to treatment as a common carrier -- and that protection from a huge variety of state rules is worth giving the FCC authority to promulgate these social policy regulations.

 

Potential panel subjects are (still in the planning stages -- send advice):

 

1.  What market failure suggests the need for "social policy" regulation of IP-enabled services?  If market failure is not the basis for this suggestion (to the extent such a suggestion is being made), what is the rationale?

 

2.  FCC's ancillary jurisdiction to adopt the broadcast flag rule is under judicial review.  What are the arguments in favor of/against exercise of FCC's ancillary jurisdiction in the IP-enabled services rulemaking?

 

3.  Should the disability accessibility requirements in Section 255 and 251(a)(2) of the Telecommunications Act be applied to all IP-enabled services?

 

4.  What, if any, consumer protection requirements -- including privacy obligations, billing rules, prohibitions of obscene or harassing communications -- should be imposed on IP-enabled services?

 

5.  What, if any, obligations to contribute to universal service funds should be borne by the providers of IP-enabled services?

 

So:  Send advice and tips, and join us on September 28.