When I was away from NY last year, sitting in a hotel room halfway around the world, I found myself checking Gothamist.  It has a certain flavor.  Here's a recent entry:  The Most Inconvenient Commute Contest.

My commute, between my bedroom and my living room, was not all that bad during the transit strike.  There was a shoe in the way at one point, but I made it through.  That's because I'm just writing papers and grading exams; I don't have to leave home.

But these have been tough days for millions of other people.  BlogNYC.net is selling commemorative t-shirts:

There are many many pictures of the transit strike atmosphere.  Newyorkology has many useful strike-related posts (sample). It took people hours and hours to get home. NYCMetblogs is full of stories.

The big story has got to be, though, that lots of people stayed home and huddled around their broadband connections.  Or maybe I'm just feeling slightly guilty for having avoided the entire thing. 

Not to be tendentious, but it really does seem that we're lurching from one crisis of leadership to another here in the U.S.  And none of them, for whatever reason, are sticking -- so we go on lurching.

What went wrong?

I'm reading a biography of Lincoln by Doris Kearns Goodwin called Team of Rivals: The Political Genius of Abraham Lincoln.  Lincoln managed to travel some very difficult political roads in his life, and I thought the book might be helpful in understanding political dirty pool -- surely 19th-century dirty pool was just as dirty (maybe dirtier) than 21st-century dirty pool is. 

Here's a paragraph that struck me yesterday:

It was a country for young men. "We find ourselves," the twenty-eight-year-old Lincoln told the Young Men's Lyceum of Springfield, "in the peaceful possession, of the fairest portion of the earth, as regards extent of territory, fertility of soil, and salubrity of climate." The founding fathers had crafted a government more favorable to liberty "than any of which the history of former times tells us."  Now it was up to their children to preserve and expand the great experiment.

Great experiment?  Peaceful possession? And, the big one:  a government more favorable to liberty than any other in history?

What went wrong?

One of the big problems with the enormously problematic E911 Order [warning: very large and very strange pdf file] is that it required VoIP providers to hook into the legacy E911 system controlled by the Baby Bells without mandating that the Bells allow the VoIP guys to connect.

This was a tailor-made holdup situation for what was already an enormous holdup.  (Remember that it took the wireless industry more than ten years to figure out how to work with the legacy E911 world, but the FCC only gave the VoIP companies a few months.)  The Bells had full authority to give the appearance of being helpful while slowly dragging their feet and pushing the VoIP providers (their competitors) closer and closer to a deadline that (initially at least) was supposed to trigger mass cut-offs of VoIP customers for whom E911 service wasn't available.

Diabolical, right?.

Well, the scheme is even worse than that.  The Bells are required to let local competitors (the people who know the acronyms call them CLECs) connect.  CLECs can, therefore, provide VoIP guys with the access to the E911 system that they need to avoid being subject to enforcement actions by the FCC.  

So this paragraph in a recent Drew Clark column caught my eye:

‘That [selling retail access to VoIP providers to selective routers] is probably a business opportunity for many of the carriers that are out there,’ [FCC Chairman] Martin said . . . ‘I have continued to believe that the competitive carriers are going to play an important role and many of our rules and regulations should be viewed as actually an opportunity for people.’

What?  Let's get this straight.  This means that the FCC is not only pushing for VoIP providers to be obligated to go through the legacy system—a solution that is bad enough in itself—but further ensuring that they must work with middlemen to do so. (If the Commission had wanted to open the legacy hardware to the VoIP people, the FCC could have done that.)  And, to boot, FCC is propping up the middleman-market as an “opportunity” for their familiar regulated entities, telephone companies.

I'm pretty cynical about the entire E911 debacle, but this is breathtaking.

Let's go for BPL and hand it over to FERC.  Soon.

(like the acronyms?)

If you are looking around for places to park your tax-deductible contributions, I want to recommend two to you:  Public Knowledge and Greenwood.

They don't compete with one another, so they can't be miffed about being included in the same post.

Public Knowledge had some great victories this year, and has more battles ahead.  They won their case about the broadcast flag, they're fighting tech mandates on the Hill, and they're digging into a host of telecom issues.  You can go here to donate to them.

Greenwood is a music camp in western Massachusetts that is dedicated to teaching kids about chamber music.  It's a generous, kind place and you'd like anyone who ever went there (this is not a plug -- I didn't go there).  You can go here to donate to them.

I can't really pretend to tie these two things together.  But these are tough times for telecom policy and chamber music and both causes should be supported.

In the ICANN context, it seems to me that we could benefit in many ways by having between-meeting discussions, asynchronously, using visual tools that incorporate text. 

We might be able to come to decisions -- something that is almost impossible to do in an email stream.

We might be able to continue communicating, rather than letting things sit for three months while we gather our strength for the next eight-day meeting.

We might be able to get quick input from people other than those who are able physically to attend meetings.

And, finally, we might make more visible ICANN's policy processes -- something that is needed.

I received a few email messages after my last post about this subject, but I'm looking for more.  Send word if you've worked with an online application that seems to facilitate this kind of work and is easy to use.  And is free (or inexpensive).

Particularly in an era in which our own President doesn't seem to care much about what laws say, it seems important that at least the people drafting the laws -- senators and representatives -- have a pretty good fix on what they're writing down.

So I want someone to call both Mr. Sensenbrenner and Mr. Conyers and ask them to explain how the Analog Hole bill (introduced late yesterday - 35 page PDF) works.

I bet they won't be able to do it.  Oh, maybe they'll say something about "protecting digital content in a terrifying time," but they probably won't be able to go farther down the rhetorical ladder.

It's not an easy bill to parse.  It looks as if two marking schemes, CGMS-A and VEIL, are going to be required to be acknowledged and adhered to through all analog-digital conversions of video.  That's just my guess.  The bill will probably affect an enormous variety of devices that have analog inputs.

Now, the existence of analog inputs has been heavily relied on in Hollywood's discussion of why the broadcast flag was such a dandy idea -- "plenty of room for fair use!  you've got all of those analog outs that we're leaving alone!" -- so if these things disappear that has to affect the fair use balance.  The bill appears to carve out private copying of broadcast television, but that's not very clear, and even that will presumably disappear as DTV is phased in.

More to the point, this bill has the appearance of a snarling, heavily-detailed technical mandate.  It even has a Table W at the back, where the marking system is (impenetrably, to me) tied to a particular approved device response. 

I await the responses of Messrs. Sensenbrenner and Conyers.  Surely the proponents of such a technical bill will be able to explain it to us.

There's an article [requires registration, sorry] by Hiawatha Bray in the Boston Globe from a couple of days ago making the rounds.  It reports on yet another assault by incumbent telecom providers on the open internet.  We need to leave these dinosaurs in the dust.

Here's their plan: to provide tiered access to online services.  "Regular" internet access would be pokey; "premium" access would be fast enough to allow for a good video experience; and no competing services would be allowed on the "premium internet."  Of course, the "premium" whatever -- let's just go ahead and call it a "channel," because this is just a dumb broadcast model plunked onto online life, borrowed from the mobile phone world -- would not be the internet.  There would be no place for start-ups who couldn't afford to pay their way in; consumer choice would be sharply limited; and walled gardens would be the order of the day.

BellSouth says this:

''When costs are being driven into an equation, they have to be recovered somewhere," said Bill Smith, chief technology officer of BellSouth. ''Why do fundamental business economics not apply to the Internet?"  

BellSouth and the others say they won't be able to provide high-speed access unless they can be confident they can monetize their networks -- and avoid competition for their video and voice services.

They wouldn't be able to do this if we had more choices for broadband access.  These companies are able to act like monopolists -- raising prices for what should be commodity services -- because they don't have competition.  That's why the first move has to be to find alternative routes online. 

The hard question is:  how unhappy will Americans be with comfortable, broadcast-style, fully-packaged-and-protected highspeed access?  Maybe not unhappy enough to revolt.

Meanwhile, Chairman Martin plans to take yet another legacy disaster, the Universal Service Fund, and have it siphon off funds from online applications.  It's unclear how this will work, but recently proposed legislation would levy fees on any use of IP addresses.

According to the CNET story,

The mammoth fund--$4.7 billion was distributed during the first nine months of this year--has been beset by charges of mismanagement and fraud during its seven-year history.

So:  Graft, fraud, taxes, slowed services, and walled-garden control.  Someone on Capitol Hill needs to remember that the internet came to be the economic engine that it is because we restrained ourselves from acting this way.  America should be leading the world in its enlightened approach to the internet -- instead, we seem to be falling farther and farther behind.

I spent part this evening as part of a panel talking about Google Book Search. 

The publishers take the view that any effect on any prospective market they might want to enter into fatally undermines a finding of fair use.  The logical outgrowth of this position is that because there are innumerable possible markets out there, mass uses of any kind can't possibly be fair -- to the publishers, scale matters enormously.

Translated:  Google makes a complete scanned copy of books.  That copy isn't made available to anyone else (other than the libraries with which Google has arrangements, and their uses are in turn sharply limited.)  That reproduction is fair use, in my view, and doesn't require permission from the publishers.

Why?  Because it's an essential step towards the transformative "snippet" view -- can't get there without making a copy.  And even though it's a complete copy, that doesn't mean the use isn't fair (see the "multiple copies for classroom use" part of Sec. 107).  And the existence of this reproduction doesn't undermine sales of the book.  In fact, the snippet view may actually lead to many more sales.

Well, that doesn't satisfy the people who have sued Google.  They point to the fourth factor in Sec. 107, and say, "Google's possession of this copy is having an effect on the POTENTIAL MARKET for the work.  Google is working itself into a position to be the world's bookstore for e-books.  We won't be able to create our own market along those lines, and so our potential revenues are being undermined."  Q.E.D.

The world is sufficiently unpredictable that anything could happen, right?  So fair uses that threaten any possible secondary market can't exist, according to the publishers.  In effect, they'd like to use copyright law to protect against network effects and first-mover advantages that they can't personally monetize.

I very much hope that Google won't settle this case.  We need these issues decided.

In the US, we are dangerously close to requiring indecency limitations on cable channels -- next will come calls to similarly regulate satellite, and eventually online streaming video, all in the name of maintaining a level regulatory playing field.  All of this is probably unconstitutional, according to the Congressional Research Service. 

(Recent joke:  Kevin Martin is so conservative that he wants to take the "F" out of "FCC".) 

In Europe, the Television Sans Frontieres initiative continues to steam along, with a new draft directive coming out from the Commission by the end of 2005.  Draft language from July 2005 read::

Member States shall take appropriate measures to ensure that audiovisual content services are not distributed in such a way that might seriously impair the physical, mental or moral development of minors.

In respect of non-linear audiovisual content services [e.g., streaming online video requested by users] Member States are encouraged to put in place systems of co-regulation or self-regulation as well [as] systems of filtering, age verification, labelling and classification of content.

It's not clear to me what the plan is for the end-of-December legislative draft, but I will wager that some restrictions on online video pronounced in the name of protecting children will be included ("in order to protect the public and to avoid the distortions of competition," in the words of a French official).  Mandated standards will likely be set by government, to be implemented by industry.

Migrating a Television Sans Frontieres-like regime (which includes rights of reply, advertising restrictions, and other elements as well as "protecting children") onto cable-satellite-internet in the US might have seemed unthinkable ten years ago.  But times have changed.

Many members of Congress think that pornography on the internet has to be regulated, and mere unconstitutionality probably isn't a good enough reason for them not to pass such laws.  And the FCC seems ready to break some kneecaps (= block some deals) in order to reach similar ends.

So here's what we need:  an idealistic, persuasive, charismatic, well-informed mogul of the First Amendment.  Someone who isn't conflicted by client representations or business interests.  Someone who can talk to the whole country about the importance of the free flow of speech online and off.  Someone who can lead.

Send word if you spot this person on the street or in a meeting.

James Enck does it here using this tool.

via Eurotelcoblog

Back in 2003, an analyst's report noted admiringly that Intrado provided more than 80% of the nation's 911 service (both traditional telephone and wireless).  But the analyst was cautious about Intrado's future:

It is popular to highlight the importance of emergency services at the state and local level, but to back the rhetoric with funding is another thing.

Since then, of course, things have changed -- the FCC has mandated that VoIP services very quickly find ways to provide E911 capabilities to their subscribers.  Intrado has found yet another source of funding.

Not that Intrado was doing badly -- far from it.  In several presentations to the FCC over the last year, Intrado emphasized that it counted as its customers all of the Baby Bells, over 40 wireless carriers, and more than 800 cities and government agencies.  It touted its "strong relationships" with over 7700 emergency call centers.  Intrado recently announced that it was now in a position to provide VoIP services with nationwide coverage, through its deals with telephone companies and public safety call centers. 

Intrado is 911 in America.

Here's how it works for VoIP: 

1.  A VoIP customer calls 911.

2.  The call goes to the VoIP provider's server, using SIP.

3.  The VoIP provider then queries Intrado's servers.  Why?  Because Intrado has an amazing database of subscriber address information -- 206 million records.  And often people in emergencies can't say where they are, so E911 (or "enhanced" 911) requires that there be a way to associate their location with the call.

4.  Intrado's servers then route the call to the relevant telephone company's "selective router" -- the physical piece of hardware that is dedicated to getting calls to the emergency call centers (or PSAPs). 

5.  At the same time, Intrado routes the customer's telephone number and address into the Automatic Location Information Database used for E911 calls in the US.  This is the legacy way of attaching address information to calls, with a twist:  Intrado forces new data into the ALI database at this point in the transaction, tagged uniquely in such a way (as I understand it) that the PSAP operator can pull it out and associate the data with the call.

Intrado is doing all of this for almost all emergency calls in this country -- running the database, connecting to the selective routers, associating the call with the address information.  And maybe that's fine.  We wouldn't want to confuse our emergency calls, and Intrado has been doing this for thirty years.

But the part I'm troubled about is the influence that Intrado appears to have had -- going slowly here -- over the entire E911 for VoIP situation.  Frequent readers know that my opinion is that it made no sense to force the old legacy E911 solution onto all VoIP providers, with its reliance on selective routers (hardware!) and its inflexibility.

But it did make sense to Intrado to have things go this way.  And so they met, month after month, with the Commmission staff, talked on the phone, did their best, and ended up with a lot more business.  AT&T's CallVantage uses Intrado.  Verizon uses Intrado.  Vonage uses Intrado.

Enter Intrado.

It has been great having David Post here in NYC this term.  David is working on a book called Mr. Jefferson's Moose: Notes on the State of Cyberspace, and I can't wait for him to finish.

In the prologue, David tells the story of Jefferson fighting against the Old World belief that animals and humans degenerated in the New World -- that every creature was smaller and less powerful in American than it was in Europe.  To prove his point, Jefferson had an entire [dead] moose shipped to Paris and reconstituted in stuffed form in his entrance hall.  There, see?  Things are large in America!  That moose was seven feet tall.  (You can read another account of this controvery here.) 

(This may be an elk, not a moose, but it is beautifully framed and I thought you might enjoy seeing it.)

David wants to put Jefferson's ideas to work in describing cyberspace as a new place -- he's writing his "notes on cyberspace" to reflect Jefferson's "notes on the State of Virginia."

The great question for me, and the question I put to my class today, is:  What is the moose of cyberspace?  What's the thing you'd show people to convince them that the internet is hugely different from a telephone network or a broadcast system and that entirely new things are possible there?  We've got this unbelievable group-forming-network-of-networks -- how do we show people what it is?

Several people said Wikipedia is the moose of cyberspace -- an amazing encyclopedia created by everyone.  There were also strong voices for eBay and Google.  Imagine having knowledge at your fingertips, 1/4 of a second away!  That's big.

So -- what do you think is the moose of cyberspace?

Thanks to David Post for the idea and Catherine White for the elk/moose picture. 

Next Wednesday evening, December 14, I'll be part of a discussion about Google Book Search.

The other panelists are Allan Adler, of the American Association of Publishers; Paul Aiken, of the Author's Guild; and Cameron Stracher, of New York Law School.

It's free -- it runs from 6:30 to 8pm at the bar association building at 42 W. 44th in New York City.

We had our organizational call this afternoon to prepare for the panel.  It took no time and we were all very polite to one another.  I'm open to all suggestions for transformational arguments -- things I can say that will make the other side suddenly see a shaft of light descending from the ceiling, accompanied by a fluttering and well-read spirit from the future.

But I'll start by making sure we all have our facts straight.  Snippets, folks, snippets!  And the libraries are using their digital copies to make books available to the blind and disabled!  And it must be that the publishers have it in for libraries -- they can't stand the idea of all this free-form borrowing.  If that's the case, why haven't they sued the libraries?

Or is this whole fight just a holdup?

AP reported yesterday that the head of the European Publishers Council has Google on his mind.  According to the Publishers Council:

The value of content must be understood by consumers so that new business models can evolve. Industry must have legal certainty and the confidence that their intellectual property will be protected.

What Google does is respond to search queries by providing snippets -- thumbnail pictures and a line of text here, a line from a page there, a headline -- and helping people get to where those things were posted.  That's pointing, not copying, and it's a key element of Web 2.0. 

The publishers, and the news agencies, are having trouble with this evolution -- heck, they had enough trouble with Web 1.0, much less the groupness we're seeing now-- and are relying on incumbent laws (like copyright law) to protect their ability to charge for content.

But there's a great opportunity here that shouldn't be missed:  news companies can become not only providers of great stories (well-researched, well-written, unlike blog posts) but also  sources of order.  There is so much information now -- we need help!  We need priority, and sense of impact, and sense of global connections.  We need visualizations, and links, and commentary.  All of these things are valuable.  We'll pay -- with our attention, our loyalty to the brand, and maybe even with money if the reporters' own personalities are allowed out to play.

A search engine, alone, can't provide this kind of judgment.   Not even Google can say which story is likely to have an important impact on our collective future.  There is a Web 2.0 model for publishers, and they can only get there by letting go.

The ICANN official board meeting just ended.   During the morning, Vint Cerf read this statement about the com set of issues:

The board has listened long and hard this week to all constituencies with regard to the .COM agreements

We are deeply grateful to the efforts made by all constituencies to respond to the board’s invitation to organize comments on the proposals and to provide, where possible, concrete suggestions for improving them.

We are also very grateful for the time each constituency spent going over with the board their ideas and reactions.

We ask the staff to accept any further written comments until December 7 and to produce for the community a public report summarizing, analyzing and organizing the feedback provided on the .com and settlement agreements by December 11.

We recommend that staff approach VeriSign with the results of the report on the proposed contract and settlement. We remind all parties that the board has not yet agreed to the terms of the contract and settlement.

We also note the existence of a policy development process on new gTLDs and strongly believe that this PDP should be informed by the results of the comments received on the proposed contract for .com and settlement with VeriSign.

I am looking forward to the board's continued strong and detailed involvement in this process of dialogue, and I want to underscore the importance of the GNSO's policy development process in developing a framework for all of this.

Bret Fausett has been collecting podcast material.  Joi Ito has been busy blogging.  Me?  I've been in a very analog mode -- taking notes with pen and paper, standing around in the hallways talking to people, and thinking about paths forward. 

Jordyn Buchanan made a good point at the meeting between the Board and the registrar constituency this afternoon.  Why don't we have a policy framework for registry agreements?  Why can't the negotiators of those agreements have policy advice from the community in advance?  Just a question.

Wendy Seltzer at today's ALAC meeting said that it's really difficult to persuade people to be interested in ALAC -- here's the pitch --

If you form an organization, you can join ALAC.  You can't join as an individual.  And if your group joins ALAC, you can then work on forming a regional group-of-groups.  And if you do that, your regional group can work on getting someone on the ICANN nominating committee.

That doesn't sound gripping, does it?  There's got to be a way to facilitate individual participation in ICANN policy processes that will attract people. 

So I'll go back to analog mode now, and hope that the bloggers here are capturing what's going on.  The Public Forum will be webcast tomorrow, and will be worth watching. Go here to see the schedule.

September 22, 2006!  There are other logo colors too, for all the different moods of OneWebDay.  Try orange:

So I brought the viola to Vancouver.  It's nice to have it here, and it gives me something to do that is fully analog.  Wave forms. 

Although I have to say that it came to me tonight that I have been assiduously playing the same Bach partita, off and on, for the last 25 years.  I used to play it on the violin, now I play it on the viola, and I'm still not completely happy with how it sounds.

Give me another 25 years and I'll get it right.

The ICANN meetings are long.  This one runs Sunday to Sunday, with sub-meetings booked back to back.  It's as if all possible ICANN interactions take place face to face during these thrice-annual meetings.  I'm wondering whether there's a way to lighten the load of these meetings for everyone concerned.  It's expensive to attend (obviously) and time-consuming. 

Is there a way to use the key goal of transparency to inform this -- to have more happen online, in a visual way?  Docket sheets, ways to track what's going on visually (think small policy-wagons going horizontally across a time line, with moments when comments are coming in demarcated with vertical lines and flags)?  There should be a better way to get things done than to have all interactions be face to face.  There's always a need to have part of communications as close to full-bandwidth (in person) as possible.  But if that's making it difficult for people to participate, why focus so much energy on in-person only, to the exclusion of other lower-bandwidth ways to communicate? 

Speaking of meetings, there are lots of meetings tomorrow, Tuesday, that potentially conflict.  So I want to underline a couple that I'll do my level best to attend.  I may not be able to stay for the entire time, but I'll be there at some point.

1.  From 12:30 to 2:30pm tomorrow, in the Grand Ballroom A-C, there's a meeting about the VeriSign settlement.

2.  From 2:30pm to 6:30pm tomorrow,  in the Stanley Park Ballroom 3, there's a meeting about whois questions.

More later.

I'll be in Vancouver at the ICANN meetings from now until next Sunday afternoon.  I took a walk this afternoon that looped around this:

I've recently been reading these (q&a about the VeriSign settlement agreement) and these (the proposed new VeriSign agreements) and this (the current MoU) and this (the original NSI Amendment 11) and this (the current IANA agreement) and this (which describes ICANN's view of the IANA services) and many many other related documents.  I'll blog this week, but I won't be able to do a play-by-play -- it is shaping up to be an enormous swirl of events.  I'll be walking around and finding people to talk to.  I'm not an official board member until the last minutes of the meeting on Sunday.

(Thanks to Joi Ito for the Vancouver picture)

I heard something wonderful this afternoon.  It had a dramatic back-story:  the singer had been ill this year, and kept canceling concerts.  People wondered anxiously whether she was going to cancel this one.  Was she still sick?  Was she dying?

The music:  settings of glowing Pablo Neruda poems by the singer's adoring husband. 

The conductor:  scarcely moving, beloved by the crowd, conjuring astonishing sounds from the players.

Okay, okay:  The piece was Neruda Songs by Peter Lieberson, the singer was Lorraine Hunt Lieberson (who started off as a violist but has gone on to much better things), the conductor was James Levine, and the orchestra was the Boston Symphony.  Everything came together for an unforgettable span of time this afternoon.  Hunt Lieberson was luminous.  Before the applause there was a time of silence that seemed to go on forever.

The BSO will repeat this program (totally delightful programming, too:  Til Eulenspiegel and Mahler 4) on Monday the 28th at Carnegie Hall.  If I could, I'd go hear it again.

Within the last ten days or so, the key vendor of CALEA compliance services (VeriSign) has taken a very stern tone [pdf] with the FCC, saying that the Commission has read CALEA far too narrowly.  VeriSign wants any SIP-using service to be part of the program, and suggests that interconnection with the traditional telephone network shouldn't necessarily be the standard for compliance.  Translation:  any possible multimedia application (whether connected to the phone network or not) and all connections to the internet should be designed in advance so as to be easily tappable by law enforcement.

(What's a SIP-based service?  It's any service using the Session Initiation Protocol, an IETF signaling protocol that can be used in connection with any multimedia or voice or gaming application.  GoogleTalk will use SIP; MSN Messenger already does; a host of VoIP applications already do.  It's a very broadly used peer-to-peer protocol.)

VeriSign is also arguing that the rest of the world is moving smoothly along the vendor-assisted interception path, and that "the only impediment to implementation domestically principally lies in the Commission's actions" in the CALEA proceeding.  We are ready, sayeth VeriSign (describing itself as a member of the "entrepreneurial and innovative global lawful interception industry") to provide these compliance services at minimal cost, but the Commission is getting in the way.  Really, how could you, Commission? 

Similarly, the DOJ has also taken a very stern tone [pdf] with the FCC, saying that the Commission has read CALEA far too narrowly.   They'd like CALEA to cover any application that is capable of connecting to the traditional telephone service, whether for receiving or making calls, and they want all services (not just broadband services) to be covered, no matter what equipment they use. 

What's extraordinary about all this firmness on the part of the sole listener (DOJ) and the key vendor (VeriSign) is that the FCC has reached very far indeed to do their bidding already.  By virtue of a less-than-weak reading of CALEA (which doesn't apply to "information services"), the Commission has gotten up the nerve to act like Congress and proclaim that a huge range of actors have to be CALEA compliant within 18 months, without saying what compliance means.  Non-compliant firms will be subject to fines of $10,000 a day.  So entities have to start complying without knowing what to do, and they won't even know whether they're covered -- because the FCC is sometimes flip about whether they are.  Enormous, arbitrary, capricious, and aggressive confusion is in the air.

It's all pretty astonishing and pretty abusive, and the DC Circuit will have its say soon.  The CDT coalition just filed a very strong request for a stay of the CALEA order with the FCC, and will file a similar request in court on December 7 if the Commission doesn't respond.  The stay request points out that the FCC has effectively delegated its authority to decide how CALEA will be complied with to the DOJ.  A key line: 

With the looming deadline, the FBI can say in its “discussions” with industry representatives, “Define call-identifying information our way and you’ll be fine, define it a different way and we may bring a civil action against you for non-compliance in 18 months."

But if you listen to VeriSign, we're all being silly, the world has moved on, and we should just shape up and get with the program.  I feel sorry for the well-meaning professional staff at the Commission.  They're under tremendous pressure.

Here's an announcement from CDT.  This is a wonderful opportunity that has been established in honor of Ron Plesser, someone who befriended many many people over the years and was a joy to be with:

RON PLESSER PUBLIC INTEREST FELLOWSHIP IN PRIVACY LAW AND INTERNET POLICY

The law firm of DLA Piper Rudnick Gray Cary has established a public interest fellowship at the Center for Democracy and Technology (“CDT”) in honor of Ron Plesser, a senior partner at the firm who died suddenly last fall.  Ron was a leader in the fields of e-commerce, freedom of information, and privacy law who began his career as a public interest lawyer. Over the course of his legal career, Ron helped frame the still-evolving legal standards for information policy in the digital era.  In order to encourage new lawyers to follow in his path, the first fellowship will be awarded in 2006 to a recent law school graduate to practice in the areas of privacy law and Internet policy at CDT for two years under the direction of the organization’s senior attorneys.

CDT works to promote democratic values and constitutional liberties in the digital age. With expertise in law, technology, and policy, CDT engages in a variety of strategies to enhance free expression and privacy, including advocacy, public education and research.. CDT works on legislation, participates, participates in agency rulemakings, engages in litigation, and fosters consensus building among public interest and private sector stakeholders. www.cdt.org

Ron Plesser worked closely with CDT from its founding a decade ago.  The fellowship will honor his memory by identifying and nurturing the careers of young lawyers interested in learning the consensus building approach to policymaking that Ron’s career exemplified.  The Plesser fellow will work on projects offering an opportunity to exercise leadership, and will broadly participate in the organization’s legal and public policy activities, in order to provide the fellow with a strong foundation upon which to pursue a public interest legal career in the privacy and Internet policy field.  www.ronplesserfellowship.org

How to Apply:  Third year law students and recent law graduates with exemplary academic records, an interest in privacy, information policy, civil liberties and technology policy, and a demonstrated commitment to public interest law are encouraged to submit applications to dani at cdt.org by January 31, 2005. Individuals completing other fellowships are welcome to apply. Applicants should include a cover letter explaining their interest in the field of privacy and Internet policy and two writing samples. Two letters of recommendation will be required of leading candidates, but may optionally be submitted with the application. CDT is an equal opportunity employer, and women and minorities are particularly encouraged to apply.

Important Deadlines:

January 31, 2005- All applications must be submitted

February – March- Semifinalists selected and interviewed
Late  March-  Plesser Fellowship Committee reviews one or more finalists, selects Fellow and  extends offer

June- September 2006- Fellow commences work at CDT, on a date to be agreed between CDT and the Fellow

Fellowship Candidate Evaluation Criteria:

• The candidate’s demonstrated or stated commitment to public interest generally and specifically to the area of privacy and civil liberties;
• The candidate’s academic record, professional/ volunteer activities, subject matter expertise indicating that s/he possesses the relevant skills, initiative to make the Fellowship a success;
• The candidate’s legal writing and research skills;
• The candidates commitment and ability to fulfill the two-year term required by the program; careers of public interest careers;

Terms of Fellowship:

The Plesser Fellowship requires a two-year commitment from the Fellow.  The fellowship will pay a salary of $50,000 plus health care and other benefits.

Sometimes the Commission can be a little flip, a little offhand.  This happened in the CALEA order [pdf] that was released in late September.  After saying that educational networks like those operated by universities and research libraries (including Internet2) probably wouldn't be subject to CALEA, the Commission stated:

To the extent, however, that these private networks are interconnected with a public network, either the PSTN or the Internet, providers of the facilities that support the connection of the private network to a public network are subject to CALEA [because they are substantial replacements for local telephone service].

There's a lot in the text of this footnote snippet.  (It's note 100, for those of you who like footnotes.)

First of all, defining the PSTN and the internet as [roughly equivalent] "public networks" is a big rhetorical step.  It seems as if the internet is being reframed as another flavor of telephone network.  Rhetoric matters.  That's why they called it the "broadcast flag" -- who could possibly be against a patriotic flag waving in a friendly way to protect beloved broadcast programs?  As it turned out, of course, the broadcast flag was a massive cost-shifting and innovation-squelching effort of which the flag (the marking scheme) was the smallest and most inoffensive part.  Names set the initial terms of debate, and there is reason to worry about setting up the traditional telephone network and the internet as peers -- both "public networks" that need to be protected and regulated like public libraries and public highways.

Beyond the naming scheme, it's quite a step to say that any private network (say, any enterprise VPN) that is capable of connecting to the internet must be CALEA-compliant -- if that's what the footnote is saying.  If it's not saying that, what is it saying?  What entities "support the connection of [a] private network to a public network"?  Arguably all actors involved in making it possible for one network to connect to another -- all device manufacturers, all access providers, anyone who leases a line that connects to an ISP, all technicians. 

An enormous consortium of associations calling itself the Higher Education Coalition recently filed comments in the CALEA proceeding.   The Higher Education Coalition points out that private networks are exempted from CALEA, and that CALEA's coverage is specifically limited to common carriers. 

But beyond the legal-beagle analysis, the Coalition's points on burden are very strong:  since 2004, only one higher education institution has received a wiretap request, and it was complied with very swiftly -- within 24 hours.  So what's the problem?  Why would law enforcement need this subset of private networks to change all of their systems in advance so as to make them easily tappable?   And here's what the vendors say (remember the new form of regulatory capture):  "if the Commission or DOJ adopted an expansive reading of the [CALEA] Order, higher education and research institutions would have to replace much--if not all--of their network equipment."  Even doing this with software would be "costly," according to these vendors. 

This could cost billions of dollars -- just for the universities.

Now, the most important point of all is that the FCC hasn't yet said what anyone subject to its expansive reading of CALEA will have to do.  All it has done is announce who may be covered by CALEA, and that these entities (any business with a private network that is capable of connecting to the internet? any free VoIP application that can interconnect?) will have just 18 months to comply.  The clock is already running on an entirely uncertain, and hugely expensive, mandate.

Washington Internet Daily puts it well:

Especially in the Internet governance debate [at WSIS], conflicting parties presented very different interpretations of what the cut deal including an Internet Governance Forum [meant]. . . .

The still-deep rift over the governance issue was exemplified by the contrast between visions on the future of the Internet. John Marburger, dir., White House Office of Science & Technology Policy, said the result was "to do no harm to a system that works so well." ITU Secy. Gen. Yoshio Utsumi, however, at the concluding press conference, spoke about a regionalization of the Internet, saying "the Internet in 5 years will be a very different network."

It sounds, from a great distance, as if the ITU is continuing to make a play to have some kind of "oversight" over ICANN.  And it's likely that the Governmental Advisory Committee wants to have more say as well.

The ITU's continued work on next generation networks (NGNs) seems to fit here.  They're drawing up specifications and pleading with industry to work with them -- they already have Cisco as a sponsor -- in an effort to show that they can work quickly.  It's hard to tell (as usual) exactly what is going on.  Certainly there's a big push on ITU's part for IPTV standards.

ITU may want to position itself as the source of standards for the internet as a whole.  Because what ICANN does (or should do) is approve global consensus-based standards for naming and addressing, the tensions will continue for the forseeable future. 

Here's a quote from a recent ITU NGN telco meeting, also from tomorrow's Washington Internet Daily:

Speakers were asked how to make NGN easy for consumers to use. One thing NGN might accomplish is creation of a self-sustaining network service that gives users a safer, simpler and more secure experience, [a UK trade group chair] said. With NGN and broadband access, he said, stable devices can be developed that "half-wits" can use.

That's one vision of the online future:  the online world will be designed in advance for half-wits.

Reps. Boucher and Terry have introduced a bill [pdf] that would support universal service (roughly, telephone service in rural areas) by imposing a tax on any entity providing voice communications over any platform.

So the bill defines "communications service providers" to include any entity that "uses telephone numbers or Internet protocol addresses, or their functional equivalents or successors, to offer a service or a capability (i) that provides or enables real-time voice communications; and (ii) in which the voice component is the primary function."

This must mean that any provider of free voice services is covered too, whether or not they connect to the traditional telephone network.  This must cover Skype.  The idea is that the FCC is supposed to begin a rulemaking that would lead to charging "communications service providers" for universal service. 

Section 4 (starting on p. 17 of the draft) says that another rulemaking is supposed to establish mandatory rules for tracking all services -- presumably so that USF can be assessed.  This section is truly startling.  It appears, among other things, to outlaw encrypted online traffic.  Take a look at this:

Communications service providers [this includes any application that uses IP addresses to provide real-time voice communications] shall ensure that all traffic that originates on their networks contains sufficient information to allow for traffic identification by other communications service providers that transport, transit, or terminate such traffic, including information on the identity of the originating provider, the calling and called parties, and the jurisdiction in which the traffic originates. . . .

This is outrageous.  This means that any voice application has to label its packets so that everyone else handling their packets can tell exactly what's going on.  Who's talking.  Where they are.  This is unbelievable.

Such rules shall include mandatory requirements for identification of all traffic by the originating provider and shall require that such traffic identification information is transferred to transporting, transiting, and terminating providers unchanged and unaltered. The rules shall also establish procedures for carriers to contest insufficiently labeled traffic in a prompt manner and shall establish appropriate enforcement and penalty provisions for carriers that insufficiently label traffic. The processes to adjudicate insufficiently labeled traffic shall require the relevant providers to demonstrate their compliance with the Commission’s traffic labeling standards.

Don't be confused by the sloppy label "carriers" in this section.  Communications service providers, again, includes anyone providing a voice service online, whether for a fee or not, and whether or not they've been a traditional telephone company.

Follow the money.  The USF "social policy" is the most important of the lot, because congressional constituents care about it.  This is only a bill, but it's even worse than what we've seen coming out of the Commission on E911 and CALEA.  We're taking a major step to tax the internet -- a huge step beyond assessing USF fees for use of telephone numbers, which was the standard policy suggestion not long ago.

If this bill passes, the FCC will be asked to make rules standardizing the identification of all online traffic.  You've never seen a tech mandate like this one.

Okay, the gloves are off.  The section-by-section analysis says only that the bill "[R]equires telecommunications carriers to identify all traffic which originates on their networks so carriers that terminate traffic can seek appropriate intercarrier compensation," but this bill is about much more than that.  Because the bill's definition of "communication service providers" is so broad -- because it includes Skype and maybe even Xbox -- the bill's twin goals are to outlaw unidentified packets and tax the internet.

Read the bill -- let me know if I've misunderstood it.

We know that incumbents often use regulation as a tool to raise the costs of their competitors.  What's new about the E911 and CALEA regulatory capture stories at the FCC is that a whole new set of actors saw the opportunity to help incumbents raise competitors' costs and make money by moving telephony social policies over to the internet:  vendors of outsourced compliance services.

It's a much more sophisticated game.  Rather than urge the FCC to issue an impossible-to-comply-with-and-unbelievably-costly regulation (like, say, either E911 or CALEA), help the FCC to draft an impossible-to-comply-with-and-unbelivably-costly regulation while helpfully pointing out that there are plenty of third parties out there who can help you comply.  You, young whippersnapper competitor, don't have to reinvent the wheel -- just use the vendors' wheels that are already out there.

The ex parte filings before the FCC tell the whole story.  It's a case study in capture, facilitated by very well-meaning (and steeped in telephony culture) civil servants who were told they had serious problems to solve.  Vendors showed up to explain exactly how these problems could be fixed by regulated entities in standard ways that didn't involve reengineering their systems ("just outsource!").  And the result, in both the E911 and CALEA contexts, is crushing for new online businesses and entities that didn't think they were regulated -- like universities.

There's an echo here of recent efforts to get rid of fair use in copyright.  We don't need it, so the argument goes, because the digital age makes it possible to charge for these kinds of uses.  Well, the power to charge for something doesn't necessarily carry with it the right to charge for it.  Similarly, that there are ways to pay for compliance with a particular policy doesn't mean that the policy is a good idea.

What with ICANN, and WSIS, and the FCC, there's an awful lot to do to protect the free flow of information online.  Thank goodness Doc is getting a movement together to save the net. 

The UN Secretary-General has been invited to "convene a new forum for multi-stakeholder policy dialogue."   Everyone can see his/her hearts' desires in the WSIS deal:  ICANN can believe that it has survived for another day; governments can belive that they will have "an equal role and responsibility for international Internet governance"; and there will be an enormous meeting in Greece by the second quarter of 2006 to start the Internet Governance Forum going.

Here's the "oversight" paragraph:

77.  The IGF [Internet Governance Forum] would have no oversight function and would not replace existing arrangements, mechanisms, institutions or organisations, but would involve them and take advantage of their expertise. It would be constituted as a neutral, non-duplicative and non-binding process. It would have no involvement in day-to-day or technical operations of the Internet.

ICANN needs to strengthen its legitimacy so that it is apparent to the world that ICANN doesn't need oversight from a UN body or any other multi-government institution.  This will take a lot of work -- we're barely at the beginning.  I'm focused on paying attention to the steps that are necessary to get there. 

Early reports from WSIS, via Jamie Love, are that plans for an "Internet Governance Forum," a body that would have some relationship to the UN but would not itself make binding rules, are moving ahead.  ICANN's role remains the same, for the time being.  We'll need more detail about all this, so I'm reluctant to make any pronouncements about what this means.

I'm moving offices tonight, and my packing up revealed yet another copy of the August 2004 CALEA NPRM.  Back when it came out I marked it up -- and on the front page there's a note reading, "is there anything CALEA doesn't cover?"

The Mercury News had a fine editorial yesterday about this very subject.  The headline reads:  "Lawsuit reflects profound flaws in FCC rules for online eavesdropping."  Here's an excerpt:

The new rules would extend the Communications Assistance for Law Enforcement Act, or CALEA, to a wide swath of the Internet. The 1994 law currently requires telephone companies to design their networks so they can quickly intercept conversations at the request of law enforcement.

Under the new rules, ISPs or anyone else operating a network connected to the Internet -- a university, a city or coffeehouse offering wireless Internet access, a private company -- would be forced to install specialized equipment throughout their communications infrastructure. Internet phone firms and other innovators would have to engineer complex changes to their products to facilitate eavesdropping. . ...

[B]y forcing as yet unspecified design mandates on new communications products, the government would be killing the innovation goose. Products that could not accommodate the eavesdropping technology would never reach the market. And those that could, would be pricier. Free Internet telephones, for instance, may never be available if the government imposes high costs on service providers.

....When Congress passed CALEA, it specifically exempted the Internet from it. Any changes to the law to accommodate the needs of law enforcement should be carefully debated by lawmakers -- not imposed by the FCC in the form of dangerous and costly new mandates on the Internet.

That's right.  If Americans hope to lead the world in guiding the regulatory structure for the internet, we need to get our own house in order.  We need to talk this through -- slowly -- and think hard about what "social policies" (if any) should be lifted from the world of telephones and imposed on online life.  Right now, we're hurtling towards a controlled online future without evaluating the economic costs these regulations may impose on society as a whole.

I'm not there, and I haven't seen many messages about it.  I'm wondering what will come out of it.  Am I waiting for white smoke or black smoke?  What would the black smoke result be?  

It's hard to tell what's going on unless you're there, I have a feeling.  Send word!

But can what WSIS decides make a difference to our online lives?  It's our internet.  All of ours.  Of course we're all subject to local laws, and to contracts (some we sign, some our ISPs sign, some about which we don't have much choice).  But in the end, it's not law that matters.  What matters is how we choose to spend our attention.   

Our attention can't be arrested -- not even by an international governmental forum.

I suppose if the world decides to create a kind of global Ministry of Information, with perfect control over all evils that could possibly arise online, that might have an effect on our attention -- but that's a long way off.  Surely greater connectivity is what really matters, not greater control.

But, as I say, I'm waiting.