I live at Hallowe'en central.  People are screaming, bands are playing -- the Greenwich Village parade is in full swing.  Meanwhile, I'm having trouble posting the FCC press release [warning, word doc] about its approval today of the ATT/SBC and Verizon/MCI mergers, because my home DSL upload speed is so slow.  So there's something about the sounds around me and the slow internet connectivity in front of me that provides the perfect sensory backdrop here. 

We've moved into a new era of Web 2.0 meets Telco Squared.

The 1996 Communications Act was all about competition and opening things up, and we've dismantled that.  In 1996 we could imagine protecting the internet from special-purpose legislation.  We couldn't imagine needing to protect it from the telcos, because it seemed impossible that they could ever interfere with it.  But now the internet is exposed, and at risk.

Today's mergers signal that the big carriers are now even bigger, and it's increasingly difficult to imagine real competitors for broadband internet carriers emerging (although I keep hoping -- go, BPL!).  They're becoming confident that complete dominion over the internet, complete control, is possible.  That's the big news from today.

Sure, there are some concessions - but they're tiny and probably welcomed by the merged entities.  The weak-at-the-knees policy principles adopted by the Commission in August are now part of the conditions imposed on the merger applicants -- but only for two years, and only in a wishy-washy way ("The applicants committed for a period of two years to conduct business in a way that comports with the Commission's Internet policy statement").  There may be a lot of breathing room between "comply with" and "conduct business in a way that comports with."

They have to provide naked DSL for a couple of years.  Probably something their customers are screaming for.

They have to post their peering policies for two years.  That's a good idea, but it doesn't mean that de-peering won't happen.  (They agree to keep the same number of backbone peers for three years.)

But that's it.  They don't have to allow competitors to use their networks.  They don't have to allow all devices to attach. They're free of any form of must-carry requirements.

Commissioner Copps, whose colloquially-phrased statement will be remembered for a long time, has this to say about the mergers:

I think we ought to be concerned. Thanks in part to our actions, the wireline market became increasingly the province of the few.  More than half of the wireless market came under the control of incumbent wireline providers.New services like VoIP have been held back by the high cost of broadband in this country.  And now the Internet backbone seems headed in the same direction of control by a favored few. . . . .

The more powerful and concentrated our facilities providers grow, the more they have the ability, and perhaps even the incentive, to close off Internet lanes and block IP byways.  I’m not saying this is part of their business plans today; I am saying we create the power to inflict such harms only at great risk to consumers, innovation and our nation’s competitive posture.  Because, in practice, such stratagems can mean filtering technologies that restrict use of Internet-calling services or that make it difficult to watch videos or listen to music over the web. . . .

[I]t may be that we are tacking back in time toward an era when concentrated power dictated what limited services we could and could not have and we had no recourse but to accept what was offered.

Copps calls for a "real national dialogue" on the issues of internet openness, consumer rights, broadband deployment, and other issues.  He's right.  We cannot assume that the Commission he serves is ever going to take a hard look at these problems.

Now is the time for all good antitrust lawyers to come to the aid of the internet.  There doesn't seem to be much hope that Congress will care about these problems.  As painful as litigation is, it may be the only way to straighten out the competitive situation that now obtains.

I can hear helicopters above the yelling crowd, police whistles being blown rhythmically, snare drums, screaming, bagpipes.  It's not an orderly marketplace out there -- and it shouldn't be. 

After two days of impassioned speeches about network neutrality, I am beginning to think that we've been drawn onto the wrong battlefield. 

The network owners can always talk about the benefits of vertical integration and the impossibility of calling network providers "essential facilities" ("we're not essential, because competition is always possible!").  They can say that although there's a duopoly in each local market (at best -- sometimes there's only one choice of broadband provider), there's no concentration in the national market.  They can say they have every incentive to promote innovation and interconnect.  They can point to other regulatory structures mandating interconnection and nondiscrimination that appear to have impeded competition rather than encouraged it.

To talk in response about the glories of the end-to-end principle and the importance of facilitating end-user choice sounds weak.  All we're saying is that we like the norms of our network better then the norms of their network.  They have invested $1.1 billion over the last few years in lobbying designed to support their network. 

I don't think the fight over "network neutrality" is one we're going to win. 

We need to find higher ground.  I think the real fight should be over rights of way and platform competition.  There's a clear lack of competition in the last mile -- that's where choice has to exist, and it doesn't now.  Even the FCC's own figures reveal that cable modem and DSL providers are responsible for 98% of broadband access in the U.S., and two doesn't make a pool.  If the FCC is getting in the way of cross-platform competition, we need to fix that.  In a sense, we need to look down -- at the relationship between the provider and the customer -- rather than up at the relationship between the provider and the bits it agrees to carry or block.  

Let the dinosaurs block applications.  Listen to SBC CEO Edward Whitacre:

Q: How concerned are you about Internet upstarts like Google, MSN, Vonage, and others?

A: How do you think they're going to get to customers? Through a broadband pipe. Cable companies have them. We have them. Now what they would like to do is use my pipes free, but I ain't going to let them do that because we have spent this capital and we have to have a return on it. So there's going to have to be some mechanism for these people who use these pipes to pay for the portion they're using. Why should they be allowed to use my pipes?

The Internet can't be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo!or Vonage or anybody to expect to use these pipes [for] free is nuts!

That's the voice of someone who doesn't think he has any competitors.  Competition in the market for pipes has to be the issue to focus on, not the neutrality of those pipes once they have been installed.  We'll always lose when our argument sounds like asking a regulator to shape the business model of particular companies.

Let's not assume that competition is impossible.  There has to be a move towards higher ground that we can collectively make. 

I'm focusing on the online implementation of three FCC "social policies" these days:  E911, CALEA, and Universal Service. 

Two of these three FCC adventures are already under attack: 

Nuvio is saying it will sue over E911 ("'No service provider is going to be able to provide a nationwide solution for nomadic VoIP users,' Nuvio chief Jason Talley said in a statement, noting wireless phone providers were given 10 years to meet their E911 obligations.")

CDT and universities are suing over CALEA.

Who will take on universal service? 

In his address to the TELECOM 05 conference yesterday, Chairman Martin blithely said [pdf] that the Commission "needs to revise the way in which it collects universal service monies."

Revise collection methods?  Why not reexamine the entire fund's operation?  Who will question what's being funded, and who will reveal where the money is actually going? Who will ask whether there are better, more modern ways to assure that people in rural areas and schools and libraries get the services they need?  Who will do the investigative reporting that is needed to shed light on this entire subject?  (This is where big media companies really come in handy.)  The Federal-State Joint Board on Universal Service is at work -- who will have the resources and the stamina to watch the details?

Because it's even more about money than the other two social policies are, universal service is a fraught subject. But continuing the current plan without rethinking it for the digital age would be shortsighted.

The agile and perennial-nodes-in-the-network team of Jonathan Askin and Jeff Pulver have put together Peripheral Visionaries for November 10.  If you're a student of mine who wants to go to the conference, let me know.  It's in DC, but there are trains.  And Jeff is flying in from Seattle some band named Herding Cats that you might like.  Schedule is here.

I'm on the academic panel that will discuss important regulatory issues intently, intelligently, and earnestly from 4:30-6pm.  Sure, the bar may be open then, but (of course) no one will want to miss our session.

Seriously, this is a well-timed and important conference.  I feel very privileged to be included.  See you there.

A great group of companies and organizations filed with the D.C. Circuit today a petition for review challenging the FCC's CALEA order. 

The case will be called COMPTEL  v. FCC, and the petitioners are the American Library Association, the Association of Research Libraries, COMPTEL, the Center for Democracy and Technology, the Electronic Frontier Foundation, the Electronic Privacy Information Center, Pulver.com, and Sun Microsystems.

The American Council on Education yesterday filed a separate petition for review of the same order.

It's great to see this initiative get under way.  The FCC has arguably overstepped its statutory authority, likely under extreme pressure from law enforcement.  More fundamentally, it's time to address whether the extraordinary costs of surveillance to innovation and economic growth are always worth it. 

There's been no demonstration that the FBI is having trouble implementing wiretaps, and it cannot be that every other interest in America comes second to security -- particularly when the government agencies involved don't appear to be skilled at actually working with the data they already gather.

A catalyst reduces the activation energy needed for reactions.  How does it do that? 

"In two ways:

• It forms bonds with one or more of the reactants and so reduces the energy needed by the reactant molecules in order to complete the reaction

• It brings the reactants together and holds them in a way that makes reaction more likely. When molecules come together in the correct orientation for reaction there is a big reduction in entropy.

• In other words, catalysts change the path of a reaction; they change its mechanism."

Hmm.  If catalysts reduce the energy needed to get a reaction going, and all spheres of human endeavor require speedy reactions in order for evolution to occur, we'd better be looking for catalysts in new places.  What's a "catalyst" for music?  Could it be rhythmic proximity?  What's a "catalyst" for economic growth?  (Let's assume catalysts are different from conditions, and worry about how to show that later.)  What's a "catalyst" for creativity online?

I'm on a hunt for catalysts.

This week, the Times reported that colleges (at least) have woken up to the fact that the FCC's broad understanding of CALEA (applicable to all providers of broadband internet access service) covers them.  This could cause colleges enormous expense as they reconfigure their systems at DOJ's request to allow them to be easily tappable.

Here's how the FCC's reasoning works:  Although CALEA's language clearly excluded internet services (like email and other "information services"), and although the FCC itself has defined wireline broadband internet access service to be an "information service," broadband access is covered by CALEA. 

Why?  Because it is a "replacement for a substantial portion of the local telephone exchange service."  

What does broadband access have to do (necessarily) with local telephone service?  Well, people used to use local telephone service to get dial-up access to the internet.  Now that particular function of local phone service -- internet access -- has been taken over by broadband internet access service.  So under the "replacement" provision of CALEA (which the FCC lawyers are apparently reading while standing on their heads), anyone who is part of the chain of moving end user packets to the internet over their own facilities is covered by CALEA.  No exceptions.

Additionally, the FCC argues that the place where law enforcement would necessarily want to intercept communications would be where "access to the public switched network" occurs.  They say that the internet is a "public switched network," even though Congress was clearly intending to talk about THE public switched network of 1994 -- the telephone network.  This is a huge logical step to take. 

It will be very costly for universities to do this.  According to the Times story: 

Technology experts retained by the schools estimated that it could cost universities at least $7 billion just to buy the Internet switches and routers necessary for compliance. That figure does not include installation or the costs of hiring and training staff to oversee the sophisticated circuitry around the clock, as the law requires, the experts said.

More broadly, the effects of CALEA on innovation and new services cannot be overstated.  In a second part of the order that deals with VoIP services, the Commission is saying that any services that provide the "capability" for users to connect to the traditional telephone network (whether they actually do or not) are covered by CALEA. This means these services will have to be designed so as to be easily tappable and generate familiar data for DOJ.  This means that the FBI/DOJ will be involved in product design.  This includes Skype.  Jeff Pulver and Wired are noticing this too.

In a crucial footnote (we academics love footnotes), the FCC states that the "concept of 'PSTN' is one that can evolove over time" -- which signals that services that have the capability to connect to the internet will likely eventually be covered by CALEA.  Of course, there is no principled distinction between Skype and any other online application.  Bits are bits.

A cab driver yelled at me last night (I was inside his cab, it was pouring rain, he was Russian) that Americans never fight back against government.  He said "It's worse than communism here.  I haven't seen a demonstration in 25 years." The Commission's interpretation of CALEA takes several sentences to explain, and its implications may not be obvious.  But it's worth demonstrating about.

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Since "net neutrality" efforts seem to be striking up against "quality of service" memes, maybe a more fundamental and less collaborative effort is required.  I'm struck by Brough Turner's argument that the real fight should be at "Level 0," at the public right-of-ways that the broadband providers are controlling.

Remember that cable systems have been required to carry local broadcast programming.  Three rationales for this:  (1) must-carry regulations are content-neutral, so subject to lower First Amendment scrutiny; (2) cable is more like a conduit than a newspaper; (3) risk of monopolization is greater with cable than newspapers.

Couldn't all three of these rationales apply to access to Level O?  There's a great risk of monopolization of the home internet access point -- there will be only one per each home.  Home internet access is much more like a conduit than a speaker -- it's just getting information to the user.  And it's not as if we'd be requiring some kind of "right of reply" of these access providers.  Their editorial control wouldn't be restrained.  But if we cared about the vibrancy of online life (individual creative efforts, new applications, new forms of communication) with the same fervor that we once cared about protecting the broadcast industry, surely we'd apply a very broad form of "must carry" to broadband internet access.   

In other words, perhaps the debate needs to be reframed from one about "neutrality" to one about "must carry."  Just a thought.

According to a couple of people who wrote to me, depeering is a big problem that will get bigger as the two mergers (MCI-Verizon and AT&T-SBC) roll on.

The key issue is cost, not (necessarily) content control, although content/application control may be a byproduct.  Depeering will allow the two mega peers to make it very expensive for independent actors to reach the mega peers' subscribers.  Both Verizon and SBC have voice and video services they want to protect, so it's in their interest to make it expensive for new large voice or video providers to reach their huge numbers of users.

Briefly, backbones connect either through either peering or transit arrangements.  If they're peering, backbones agree to exchange traffic with each other (only each other's traffic) at no cost.  If they have a transit arrangement, one network pays another for the right to connect.  The transit provider then makes sure that the paying network's packets get to their destinations.

If the two mega-peers depeer, then other carriers will have to pay about twice as much to have other backbone providers carry their traffic.  This will give all the carriers involved lots of incentives not to allow unauthorized bandwidth hogs (like competing video services) to ride across their networks.

Peering was always a matter of private contractual arrangements, so it's not clear what hook a regulatory agency would have to second-guess a mega peer.  (There are no domestic or international regulations that govern how backbone providers interconnect.)  You'd have to argue that the mega peer was acting anticompetitively, using its market dominance to extract high prices and drive its competitors out of business.  But both MCI-Verizon and SBC-AT&T will argue they don't dominate the market for backbone access (although they may have the lion's share of internet subscribers).

And the mega peers can assert that they're changing the world by making the internet a "quality of service" network.  This is the new raging meme.  The internet never promised that your packets would get where they were going.  Now backbone providers can promise new services (video, voice, data) only to their subscribers, and say they're going to work blindingly fast.  Competing backbones won't necessarily provide the same services.  This will fracture the internet, if the backbone provider can find ways to survive without interconnection (or by only connecting to networks that agree to the backbone provider's policies).

In the absence of dominant backbones, none of this is a problem.  Markets will find ways to satisfy consumers, and users can believe that they're able to "see" the entire internet.  It used to be in the interest of backbones to have many many peering relationships to keep their customers happy.  But if one or two dominant backbones emerge, they won't feel the same pressure of externalities.

There are now only five Tier 1 (highest level) backbone providers (this is from a 2003 article by Michael Kende):  Cable & Wireless, WorldCom, Sprint, AT&T, and Genuity.   If the large ones get so large and powerful that they no longer feel the need to interconnect (and can charge high prices for their new services), they can depeer with all smaller backbones, exact high prices for transit, degrade the quality of their interconnection with the smaller backbones, or take any number of other anticompetitive steps to protect their private prerogatives.

So that's why depeering matters.

In a Sept. 14 filing with the FCC, a company called Broadwing [warning, high Flash content] said the following: 

We are concerned that the mergers of two significant Internet backbone providers (AT&T and MCI) with two of the largest providers of high-speed Internet access (SBC and Verizon) will result in two "mega peers" with the potential to de-peer competitors such as Broadwing and dominate the market.

Broadwing operates a fiber-optic network connecting U.S. cities, and offers services (VPNs, managed network services) to a variety of customers.  

Verizon responded on Sept. 21, saying that the "transaction will not give the combined Verizon/MCI market power in the Internet backbone business. The combined company will carry less than 10% of North American Internet traffic, it will rank fourth among seven comparable or larger backbone operators, and operators other than those seven will carry approximately 35 percent of Internet traffic."

What's the significance of a "mega peer"?  Wikipedia tells us that peering arrangements are private contractual arrangements that exist between peers that have "roughly balanced" traffic.  One peer doesn't charge another for carrying the other peer's traffic and handing it off to yet a third network.

What Broadwing is worried about is that extraordinarily large amounts of backbone will be controlled by two players, who will then decide to "de-peer" -- disconnect their networks -- from other networks whose favor or traffic they don't feel they need.  The result for Broadwing will be that life gets more expensive.  They'll have to pay the backbone provider -- just like small ISPs have to pay upstream providers -- to carry their traffic. 

In the words of the Wikipedia hive mind:  

De-peering usually results in degraded performance for customers as traffic is forced to take less optimal paths; in the worst case some parts of the internet can become unreachable to hosts on either side of the de-peered networks. This occurred in October 2005 when two backbone NSP's in the USA, Level 3 Communications and Cogent Communications, de-peered following a commercial determination by Level 3 that it was significantly larger and therefore Cogent should pay it to continue peering.

Another fear might be that sufficiently powerful backbone providers (especially those vertically integrated with major broadband providers) could just decide not to connect to the rest of the internet.  Verizon/MCI could decide to connect only to AT&T/SBC, and to create a gigantic (but limited) U.S. walled garden for their own proprietary services (no Skype; only approved video -- all the Barton-Dingell steps).

But this is absurd, isn't it? Wouldn't it be a terrible business decision for a backbone provider to cut off traffic?  Why would any ISP want to do business with a backbone that doesn't actually have arrangements that allow it to ensure the carriage of packets around the world?  Don't we have a flat world full of global transactions?

If email doesn't get where it's supposed to go, then people will find other ISPs and (indirectly) other backbone providers.

Laughable, right?  There will always be other ways to go to get on the backbone network.  If a "mega peer" tries to take advantage of its position to finally put a chokehold on the network of networks formerly known as the internet, people won't stand for it.  They'll find other ways to get their packets where they're going.  The thing about peering is that there are always other players to peer with.

Back me up here -- isn't there sufficient competition in the backbone market?  Won't it be impossible for any US "mega peer" to make our experience of "the internet" into a single huge walled garden?

VisualComplexity is hypnotic.  Someone told me recently about an idea relating the complexity of output/expression to the number of rules that generated the output.  Maybe there's an ideal proportional relationship between rules and complex output.

From the author of the site:

Complexity is a challenge by itself. Complex Networks are everywhere. It is a structural and organizational principle that reaches almost every field we can think of, from genes to power systems, from food webs to market shares. Paraphrasing Albert Barabasi, one of the leading researchers in this area, “the mistery of life begins with the intricate web of interactions, integrating the millions of molecules within each organism”. Humans, since their birth, experience the effect of networks every day, from large complex systems like transportation routes and communication networks, to less conscious interactions, common in social networks.

Each of these visualizations makes us say, "Gee, how interesting."  But is it possible to claim authoritatively that one complex network is "better" than another?  What makes a complex network great?  Are there proportionality rules?  Or are all complex networks equally interesting?

Jay Rosen of PressThink asked six of us to comment on CBS News President Andrew Heyward's thoughts about the future of network news. 

Here's the post:  "Andrew Heyward: The Era of Omniscience Is Over".

I want to expand on my remarks, which I've pasted in below.  What news organizations can do for us is aggregate, judge, visualize, and order -- use their expertise to make it easier for us to get reliable news.  But that may involve opening up to (and, indeed, encouraging) other sources of information that haven't been generated by the news organization itself.  This will take leadership (see yesterday's post).

===

The three points that Andrew Heyward made were delivered with firm emphasis and short phrases. He was hunched over the table, looking up at us as he read, and when he was done he leaned back definitively. He had been watching the proceedings with some bemusement, and he knew that he was saying something important.

Heyward understands that framing the discussion as one about how “bloggers” and “journalists” interact is hopelessly shortsighted. The role of media news is under assault from many directions – people don’t trust newspapers or even the evening news the way they used to. He understands that we now live in an age of networks that don’t belong to CBS. And so he is willing to suggest that we are far from the time of a trusted, omniscient Walter Cronkite, and he accepts that an authoritative, smooth-faced news voice no longer resonates with the American public. So he calls for authenticity, acceptance of complexity, and multifaceted coverage.

But he is not willing to acknowledge real changes. Heyward is a very smart man, but he’s being dragged into this new world and his strong beliefs were fixed some time ago. Notice that his three points shore up the role of “real” journalists (“accuracy, fairness, and thoroughness,” “reporting without fear or favor,” “strongest exemplars of mainstream commercial television news”). He believes that journalists will continue to do the job of news reporting, with some tweaking to ensure they’re using colloquialisms and having a point of view. He is willing to take one step down from the pedestal, but he still believes that the pedestal exists and is important. He does not understand that the “people formerly known as the audience” (in Jay’s lovely turn of phrase) now have the upper hand.

Heyward’s remarks came towards the end of a quite polite, almost clubby exchange of views between acceptably middle-aged and well-behaved bloggers and media executives. Most of the bloggers cared deeply about the culture of mainstream media, and were looking for ways to help out. Absent from the room were the twenty-somethings (much less teenagers) who could have brought life to the room via a few rude remarks or stories about their own relationships to “news”. In this context, Heyward’s three points sounded brave.

In the swirling world of bits and constant exponential technological change that exists outside that clubby room, Heyward’s three points may end up sounding like the last deep chants of a vanishing priesthood.

Someone told me today about a corporate leader who would, after making official remarks to the employees, throw his arms wide and say loudly, "The bar is open!" This signaled that the formal part of the program was over and the chatting was about to begin.  The people working for this guy would have walked over hot coals for him.  He would spot people across the room and shout their names.  He was a convincing manager.

It's not the shouting that makes a leader.  A conductor can be a great and inspirational leader without ever raising her voice.  It's something else -- some ineffable combination of strength and garrulousness and conviction.

The current astonishing Times crisis seems to have thematic links to the stories of cronyism [link will expire soon] in the Bush administration.  We know leadership when we see it, and we're not seeing it at the moment.  Leadership doesn't have to involve saying "the bar is open," but it does have to include making good management decisions, drawing lines, being willing to be questioned, and facing controversy.

In the last two days, I've been to three musical events:  a meeting of the board of a music camp in New England yesterday, a concert by the Orion string quartet earlier this evening, and a concert by the Cleveland Orchestra tonight.

The music camp makes playing string quartets seem like the coolest thing you could ever do as a teenager (at least for the kids who go there, I guess).  The string quartet gets to play some of the greatest musical literature around -- tonight, Beethoven Op. 132.

The Cleveland Orchestra combines all of this.  They play like cool teenagers and like a string quartet.  You can see the string players watching each other, and the wind players watching the string players. (This is unusual -- most of the time orchestral players look bored and pained.)  I have never heard a sound as soft as the entire Cleveland string section playing pianissimo pizzicatos.  Unbelievable.  Everyone in the hall just had to be still.  And then at the end (this was Brahms 1) the triumph was complete and joyous.  It was a thoroughly wonderful evening.

Eliot Spitzer was sitting a couple of rows behind me tonight.  I hope he had a good time too.  I wonder what he thought of the pianissimos.  

There's a good argument that the two relevant mindsets in today's internet world are "cellhead" and "nethead."  Cellheads are happy with walled garden mobile networks, in which all services are approved, all devices are authorized, and spam isn't a problem.

Netheads, by contrast, are looking for open, public networks of user-generated (or at least -commented upon) content and metainformation, in which applications don't have to be approved and to which any device can attach if it knows the protocol.

IMS/NGN represents the standardization of the cellhead mindset and the suggestion that it will enter into the nethead world.  We need empirical evidence that cellhead approaches lead to less dynamic growth -- the mobile world is certainly growing quickly, but arguably won't provide as rich and interesting a future as the nethead network.  Back to layers again:  emergence and metainformational growth depend on the existence of independent layers that allow experimentation and mistakes.

On the other hand, as Martin Geddes says, asking for all  networks to be "neutral" networks (in which layer independence and nondiscrimination are mandated) can be extraordinarily pernicious.  We should only do it in markets for internet access that are clearly broken because they are dominated by one or two players -- where a choice of plain vanilla access just isn't available.  That appears to be the situation in the US generally (albeit not, perhaps, in San Francisco).

So let some network providers go into the IMS/NGN world (which will foster more ads like this one, asking you to tell your broadband provider to let you have a particular service).  As long as there are choices, we'll be fine.  If there aren't choices, we'll need to mandate nondiscrimination.  But it won't be easy.

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Planes are the new libraries.  On my way back to NY yesterday, a woman in front of me opened up her laptop and started watching a 1930s American musical with subtitles.  It was loud.  The people around me stirred uncomfortably.  They were all reading -- books, Bibles, magazines.  The man next to the laptop-lady removed the headphones from his ears and offered them to her, showing her where they could attach to her computer.  He then took out from his bag an extra pair for himself.  Planes are the places to read these days, and we all settled down again for a few more hours of quiet.

Now I'm at Willow Glen Coffee Roasting Company in San Jose.  Drop by if you're around - I'll be here for some time. [Tags: onewebday]

The Chairman of the FCC, Kevin Martin, recently wrote a brief letter to Sen. Frist:

You asked whether Congress should consider the scope of the Commission's authority to implement content protection rules for digital broadcast radio together with the scope of the Commission's authority to do the same for digital broadcast television.  . . .

The increasing use of digital technologies by both radio and television broadcasters raises almost exactly the same content security concerns.  Thus, while I respect that ultimately Congress will decide precisely when and how to legislate in this area, to the extent that Congress provides the FCC with authority to address content protection over one digital broadcast platform, it would be helpful for the Commission to have similar authority over the other broadcast medium, as well.

The rationale behind the broadcast flag was that it was essential to further the transition to digital television.  Digital radio doesn't have the same policy framework.  But now the two are tied together.  If Congress goes along and gives the Commission the authority it seeks (details here), we'll be in a brave new world of ad hoc technical mandates for devices promulgated by the FCC.

I appreciate the "it would be helpful" phrase used by Martin.  Sure, yes, it would be helpful to have the broadest possible powers over all possible devices that have anything remotely to do with digital content.  And all applications.  And all online access routes.  And all uses of data in connection with those services.  We're the FCC, and we're here to help.

I was really touched by the Battelle post a while ago about his visits to Google.  Today I got to make my own visit to Google, and it was just great.

Google has a parking problem.  There are far too many Googlers for the spaces available (8X the previous population of the same buildings, in some cases).  So Google has wifi-enabled buses running back and forth from SF, and special carpool parking places.  Plus parking attendants busily shuttling cars around to make room for (and block) other vehicles.

Google has busy people.  So Google has breakfast, lunch, and dinner available for them, including a huge selection of designer waters.  Hey, if you're sensitive...

This problem-solving, smooth-the-friction approach has a lot to recommend it.  Combined with great visualizations (I saw the electronic version of the Google globe -- beautiful), smooth interfaces, and an overall openness to doing good by users, it's irresistible.  I did not resist.  There appeared to be thousands of clever, bright-eyed people roaming around freely.  Yes, there were scooters.

One of the meetings I had was in an odd oval-shaped small conference room off the main lobby in the main building (there are many buildings).  It was a tight space, and the people in the room were tightly scheduled.  But they focused when they needed to, and we had a fine, short, tight brainstorming session.  Highly constrained yet effortless improvisation. Afterwards, I had to be careful to leave the room quickly right behind someone else -- you needed an official employee badge to get OUT of that conference room. 

Lots of double monitors.  Bright colors.  Glaring sunlight.  Yoga classes glimpsed through the window.  Many many shared cubes.   

Soon I'll be back in NY, where it's raining.  I hope I can visit again.

I'll be here at 4:30 tomorrow, Thursday, to meet with the OneWebDay staff (not a huge staff):

Amberjack, 1497 Church St, SF

Come by if you'd like to talk.

I'm speaking tomorrow at Boalt Hall's IP Scholarship Seminar.  Here's what I'm thinking of saying.

What’s motivating me to write in the communications area?  The copyright concerns that scholars have been focused on for the last ten and more years are proxies for the central problem facing the internet:  private control of our internet experiences.  We’re moving from the conceit of owning information (the problem of IP, the problem taken on by Jamie Boyle in his 1996 Shamans, Software, and Spleens) to the conceit of owning the public internet itself – or, in other words, the conceit of owning flows of information. 

The commodification of the internet may not happen, but there are plenty of people who want it to.  We are moving into an era of a vision of romantic ownership which exalts property above all and seeks to reward the company that provided the fiber we use to reach the public internet.  Telcos and cablecos would like to manipulate and distribute intentional, monetized internet experiences (connections we should by now be accustomed to making for ourselves) and are well along in creating a discourse of entitlement and justification.

So, in my mind, communications law has to become our central concern.  Communications law may bear the same relationship to the networked society as IP law bore to the information society and (as Boyle points out), labor law bore to the industrial age.

What follows draws heavily on the basic steps laid out by Boyle in 1996, and extends his work to the issue of network control.

I’m trying to create a normative map that will help reveal the assumptions at the heart of the network providers’ arguments.  The key issue should be:  is access to the internet a public goods problem, for which incentives are necessary to ensure buildout and maintenance?  or -- Is access to the internet a monopoly problem, for which you have to find ways to ensure frictionless competition?

Right now, we can’t tell what the right answer is. I am trying to reveal what is actually happening as a rhetorical matter.  It’s clear to me that this key tension between monopoly and public goods is being hidden. All that comes out in the public discourse is about the need to incent the heroic builder of the networks – the people rolling out fiber.  This is a powerful image, and governments (including our government) are going along.  The distributional, environmental, and innovation-related effects of this trend will be profound.

There’s of course very little empirical evidence either way on the monopoly/public goods issue.  It’s also not clear to me which way the public imagination is going.  Do most people feel that Comcast should/does get the right naturally to constrain their online experience?  Or is what they want access to the public internet, which is owned by no one?

It does seem to me as if the public internet, the space just beyond whatever default home screen you’ve neglected to change, is a public sphere.  It seems like sphere-crossing to commodify it entirely – to make it into a private sphere.  There are certainly areas that are commodified, but there is plenty of competition that seems to be interesting people more.

Indeed, there’s something special about a public communications network, a traditionally public network, that is different from a cable system.  This isn’t, perhaps, a rational view.  But this nonrational association between information networks and the public sphere – a place of debate and discussion and entrepreneurial creation – makes it easier to talk about access that is structured by equality and fairness.  Our intuitive sense about all this matters and shouldn’t be discounted.

I haven’t really worked out yet what’s public and what’s private about use of the internet.  It’s not clear whether commodification of the internet can be viewed as an unjust impediment to a better online future OR as essential to the future existence of the network at all.  We have different ways of reifying the internet, of understanding it as a picture.  Is it an intrusive, dangerous presence?  Is it the lifeblood of debate?  Must it be commodified?  Is it impossible to commodify? 

The network providers are getting very skilled at conflating access and interaction.  A DSL lobbyist takes two logical steps:  first, conflate these public and private realms, and then bring in the romantic, heroic builder, rolling fiber across the land.  That seems to do the intellectual trick, and successfully ignores the notion of user-created content in an almost invisible, incremental way.  (“For service purposes, we can’t allow you to use X port or Y application.  We’re sure you’ll understand.  You can use OUR application if you pay us for our premium services.”)  We’re at risk of being in thrall to an idea of romantic network ownership that should be questioned as dogma. 

For the users, these two things are wholly separate.  Access can be private – that’s fine --  but interaction is public.

A parallel with the IP issues that Boyle was focused on in 1996 is that developed nations are always saying how much better everything will be for developing countries if they adopt maximalist IP standards.  Companies will invest, so the reasoning goes, and the developing nation will be brought into the magic circle of riches and respect.  Same argument here:  the internet will be a backwater until it’s secure and commodified.  But, in fact, it may be that securing and commodifying the internet will mostly result in stifling innovation and missing out on enormous economic growth. 

Indeed, the IP analogy can continue:  the sources of user-created content, like the sources of indigenous cultural content, won’t be rewarded by the commodifying network providers.  In the meantime, all the riches will be taken out, and we’ll have no one to protect the network itself.

At any rate, it would be too bad if we decided to regulate the most important technologies of this century by relying on their formal similarities to the technologies of the last century – like telephones.  What’s better for society?  Wouldn’t it be better to think about that directly rather than merely bringing regulation through this filter of analogy?  The internet lets us reexamine fundamental legal principles, and it’s time to do this here.

I’ve been working on three puzzles:  E911, CALEA, and Universal Service.  All are steps towards controlling the public internet.  All are part of a much larger move, already well under way, to deregulate broadband access and remove any obligation not to discriminate against applications and devices.  That larger move is in turn part of a global move on the part of broadband providers to turn their networks into something much more like the what mobile phone carriers have – completely monetized services, allowing for packet inspection, and making it possible to block services they don’t want to have competing with them.

So that's why I'm paying attention to communications law these days.

A friend of mine sends an IM:  "There's so much going on in the [Bay Area] that I hate to leave, even for a few days."  She burbles (electronically) about three separate really great digital/business/social events that all happened last night. 

Here's one take on this burst of energy and enthusiasm: 

[T]he high-tech industry appears to be entering a vibrant new phase of both growth and upheaval. It is the Web's sober second act, characterized not by soaring stock prices but by forces that are challenging traditional industries - from publishing to telecommunications - to adopt new business plans. Consumers seem to be the only sure winners. The maturing of the Internet as an engine of the global economy is being driven by a handful of important forces: 1) shrinking sizes and prices, 2) "digital convergence" -- the fusion of computing with other traditional industries foreseen in the 1990s -- is happening in earnest, challenging traditional communications industries, and 3) wireless services are making the Web portable, not just a desk-bound tool.

Everyone is getting skilled at thinking up the next metainformational thingie (blog of blog of blogs!), but we're still so clearly at the beginning.  Someone told me last night that speed of access to hard drives hasn't changed in years, even though both storage and bandwidth are soaring.  We're still having problems getting at the mountains of data we have, even as we're creating more.  I wish I could see around the corner and understand where we're going.

At the moment, though, the best I can do is go to the Bay Area myself for a few days.  I'm going to be hanging around talking about OneWebDay (link coming before Thursday).  I'll post my coffeehouse whereabouts here.

In addition to all the other things you're doing, it's time to start spending part of your life in virtual worlds.  No longer -- never again -- can you go to a serious online conference and not know what it's like to have relationships with other avatars.  Joi will be a Level 60 soon in WoW.  Millions and millions of people in Korea and China are waaaay ahead of you.

More importantly, beyond getting your competitive juices going, it's becoming clear that the talk about virtual worlds is very similar to the talk about the internet in 1995.  Something very exciting is going on.  If you don't want to be a space miner or an orc, that's fine -- go create things in SecondLife (free accounts!) or There.  Try fooling people in Eve Online ('the largest online game in the world').

The next move (as Richard Bartle suggests) will be towards open source worlds that you form on the fly for your friends.  To get ready for all of that, you'll need to put in your time.  Starting no later than now.

Right now the Great Debate is going on.  Some winning points from Bartle, Post, and Johnson. 

Bartle:  Virtual worlds can be better than real worlds.  I like to call it intelligent design.

Johnson: We're dealing here with the collective actions of our minds.  Who better than the inhabitants of a world to create their own rules?

Post:  Why lose the opportunity to do better at making law?  The rule of the "place of the server" is odd and arbitrary.

Michael Froomkin did an unbelievably graceful job of summing up and judging the Great Debate -- truly brilliant.  Webcasts are here.

It's been a fine conference.  Impossible to blog.  It's been great talking to discourse.net, freedom-to-tinker, balkinization, isen.blog, smart mobs, and terranova.

There was an interesting discussion today at lunch about what we'll end up calling 3D virtual worlds that aren't universal enough (or, perhaps, self-conscious enough) to be called "the metaverse," but are more than "just" games.

I suggested "other lives" -- as in, "In my other life I'm a doctor," but now referring to virtual lives.  Someone else suggested "second homes."  (Nice!) "Domains"?  "Dream Spaces"?

It seems as if "online" won't quite capture it.  An online life might be as simple as a voice chat.  But you'll be living there.  "Alt space"? (as a response to "meat space")?

For much, much more of this kind of talk, go to New York Law School this weekend.

Here's a status report:  after the meetings in Boston a couple of weeks ago, I went down to DC for an enthusiastic and high-quality brainstorming session.  Next week I'm going out to SF to meet with companies.  The site is coming into its own (still under wraps for the moment), and the logo is under development.

Every day I try to spend at least an hour on OneWebDay.  It's an exciting project.  I've gotten emails from all over the world about it, it looks like I'll get some free PR advice about how to get the word out, and once there's a site to point to I'll be asking all of you to point to it.

Thanks for all the encouragement.

The new Google VPN client is interesting.  As James Enck suggests, no monopolistic broadband provider in its right mind will want to block VPN transmissions.  But there's no telling what kinds of things could be inside -- the "triple play" in a tunnel, perhaps?  Voice, video, data, file trading, all streaming along (and through Google's servers at some point, by the way) without the network provider's being able to charge for special services.

It's the Darknet doing double-duty as a business plan.  Go, Google.

It's a great story, and it's even true. The MIT Media Lab is launching an initiative to get tens of millions of inexpensive laptops into the hands of children in developing nations around the world.  We like the details, like the handcranked power and the instant mesh networks that the kids will form using these devices.

With the help of AMD, Brightstar, Google, News Corporation, and Red Hat, the Media Lab is planning to ship these things in batches of no less than a million units at a time to ministries of education around the world.

The idea is that the devices will be so distinctive (and so numerous) that anyone who isn't a kid and is carrying one will feel conspicuous -- which will make a the arrival of a greymarket in these laptops less likely.  They're also going to be indestructible. (As somone who recently accidentally drowned her cellphone, I applaud this design mandate.)

They're going to be cheaper because they will have cheaper displays, use less software (and more open source software), and will be manufactured in enormous numbers. 

Prediction:  adults will want them too.  But we won't be able to buy from the Media Lab source -- no individual purchasers welcome there -- so we'll need another vendor.

Right now, the MPAA and the RIAA are asking for additional statutory authority for the FCC.  These groups want the Commission to have the power to put technical mandates in place covering all the devices that attach to our internet. 

This is a bad idea, not just because such rules will constrain every imaginable consumer electronics and personal computing device, but also because the MPAA and RIAA will be in the driver's seat when it comes to choosing and implementing the rules the FCC promulgates.  In effect, they'll be dictating the designs of all technology manufacturers.  We can't let this happen.

Here's the MPAA's language.  (They recently succeeded in getting twenty members of Congress, twelve Rs and eight Ds, to write to the relevant committee asking for the flag to be put in place [LATER: letter is here]):

“The Federal Communications Commission --

(a) has authority to adopt such regulations governing digital television apparatus that are appropriate to control the indiscriminate redistribution of digital television broadcast content over digital networks, and shall issue forthwith, as final rules and interim certifications pursuant to such authority and effective on ______ , the rules and certifications contained in the Report and Order in the matter of Digital Broadcast Content Protection, FCC 03-273 and certifications contained in the Digital Output Protection Technology and Recording Method Certifications, FCC 04-193"

Bottom line:  The MPAA wants the November 2003 flag rules raised from the crypt into which the DC Circuit placed them in May 2005.  Sure, the FCC can change these rules once they're reincarnated, but they won't. 

As you probably know, the impact of these rules would be breathtaking.  MPAA's talking points say that no consumer will be prohibited from copying content, but don't make clear that under the flag scheme flagged DTV content may only be received by devices that (1) use "authorized" content protection technology, (2) connect only with other devices that also use "authorized" technology (thus creating a closed handshake of devices and forcing a lot of consumers to upgrade), and (3) don't allow pieces of that content to be sent out over the internet.  There's no limitation in the proposed legislative language to devices that "demodulate" (directly receive and make visible to humans) TV signals.  Any device that connects to these devices will be covered too.  And all PCs with tuner cards will be part of the scheme -- all of their digital outputs will have to be "protected" by "authorized technologies."

MPAA's talking points will also say that the FCC will be sure to approve new forms of authorized content protection technology in the future that do allow DTV files to be sent online.  But the evidence is that MPAA has been effective in convincing technology providers to back off when seeking approval of new content protection technologies that have something to do with the internet. 

A recent CDT report (Broadcast Flag Lessons) should make us worry about the MPAA's ability to get the results it wants at the FCC.  In CDT's words:

One of the most important untold stories of the [interim content protection technology] approval process were the decisions of consumer electronics and IT companies to withdraw valuable proposed features from their products under pressure from third parties, before the FCC ever had a chance to rule. In several instances, the flag process gave the content industry undue influence over the technology offerings of several technology applicants, allowing it to shape product design in areas outside the explicit scope of the rules.

The CDT report carefully details what happened.  Four tech companies (MSN, Thomson, Real, and TiVo) proposed technologies that would have blocked indiscriminate internet transmission (the standard set by the FCC's rule).  Under pressure from the MPAA, three of them (all save TiVo) backed down and changed their technologies to match MPAA's technical specifications -- designed to allow transmissions only inside a house or just outside a house.  As CDT says:

That the FCC’s approval process could allow a third party to effectively write the design specs for the implementation of localization controls in several submitted technologies clearly raises the specter of, in the FCC’s words, “one industry segment exercising a significant degree of control over decisions.”

Nothing in the proposed legislative language will change this situation.  There are no objective standards, no standard processes for technology approval, no oversight of what the FCC does is created -- it's the same ad hoc, merciless swamp that we were faced with the first time around.  And the MPAA will be wielding enormous power behind the closed doors of the FCC.

If that doesn't make you want to write your Congressperson, perhaps this language from the RIAA will:

"The Federal Communications Commission --

(a) has authority to adopt such regulations governing digital audio broadcast transmissions and digital audio receiving devices that are appropriate to control the unauthorized copying and redistribution of digital audio content by or over digital reception devices, related equipment, and digital networks, including regulations governing permissible copying and redistribution of such audio content necessary to address issues such as those under consideration in the proceeding on the Notice of Inquiry In the Matter of Digital Audio Broadcasting Systems and their Impact on the Terrestrial Radio Broadcast Service,MM Docket No. 99-325, provided, however, that adoption of any digital audio regulations pursuant to this section shall not delay the adoption of final operational rules for digital audio broadcasting. . . "

This would allow the FCC to impose home copy protection mandates on digital radios -- something the Commission doesn't now have the authority to do.  No more unauthorized radio copies.

Both of these provisions would give enormous tech mandate power to content industry trade associations.  Very few technology manufacturers will be willing to fight back -- remember, no consumer electronics manufacturer was willing to sue the FCC over its lack of jurisdiction to enter the flag rule in the first place.  No one wants to upset the content industry.

Can't someone get the numbers to Congress?  The tech industry in this country contributes far more to our economy than Hollywood or the RIAA.  The designs of their devices shouldn't be dictated by movie producers and record labels.

Let's pause for a moment and look around.  First, domain names. Because ICANN is the only entity to shoot at in the "internet governance" realm (even though it really doesn't do internet governance), the ICANN experiment is under sharp attack from several directions.  Having lurched forward to give its advice about .xxx, the US government now has few friends when it maintains that ICANN should not be overseen by an intergovernmental organization. ICANN's legitimacy as a forum for discussion of name/address policies (and imposition of mandatory policies when they are supported by consensus) remains as strong as ever, but the intergovernmental sniping is clouding the picture.

Second, regulations drawn from the world of telephones and circuit switches are being applied without change to the internet.  The FCC's recent DSL deregulation order contemplates that the Commission will be empowered to require whatever “consumer protection, network reliability, or national security obligation[s]” it decides are appropriate for broadband access providers.  CALEA and E911 orders have already come out, and will be applied broadly to a wide range of applications as well as transmission providers.  Future orders will likely cover privacy, disability access, truth-in-billing, network reliability, emergency preparedness, national security, and law enforcement requirements.  And the FCC has sought comment on what obligations it should impose pursuant to its “Title I authority to further consumer protection in the broadband age.”  (Should we rename it the Federal Consumer Protection agency?)

Third, efforts are underway around the world to make it possible for network providers to substitute their walled gardens for what we now think of as our internet.  Barton-Dingell is an example of this; so is Television Without Frontiers; and the NGN standards efforts being pursued by the ITU with Cisco's help will make this possible.

Fourth, devices that attach to our internet are also (again) under attack, at least in the US.  Broadcast/audio/video flags are under discussion, and devices that don't adhere to the instructions of these flags will become unlawful.

Fifth, all kinds of abuses are being perpetrated in the name of "parity."  Webcasters want extra-copyright rights to transmit online because broadcasters have those rights offline.  DSL providers want to be treated the same way as cable companies, and want to ensure that they can exclude any potentially competing services from their networks.  Incumbent providers of VoIP services want to ensure that new entrant VoIP services are crushed by regulatory burdens -- all in the name of the mystical level playing field.

Pause.  Brave engineers assert that technology overcomes all of this.  "They can't stop us!" the engineers say.  "They'll never be able to track what we're doing." To put so much faith in technology alone, however, seems naive.  It also feels like a Faustian bargain:  we'll go underground, avoid all rules, sacrifice any faith in government, in order to satisfy our desire for knowledge and power.

Things aren't going particularly well.

David Weinberger's post today should be required reading for tech conference organizers.  (I'm focusing on tech/communications conferences because I have the sense, or I'm hoping, that other conference organizers have already figured this out.)

Mary Hodder started a good effort here to gather information about non-usual-suspect speakers.