In my earlier posts this week, I was trying to understand why the FCC would issue such a potentially broad, difficult to implement, and possibly illegitimate enhanced 911 order for certain IP-enabled services.

Having watched the webcast of the Commission's open meeting of May 19, I think I get it.  It's clear that the Chairman and at least two of the other commissioners put the staff under enormous pressure to produce a draft as quickly as humanly possible (and possibly even more quickly -- references to 3am were made) because he thought he had to act on an emergency basis.  What a victims' panel.  Unbelievable. 

Three couples testified.  One of the couples' children had died, possibly because the mother had been unable to reach a working emergency number.  One couple had been assaulted by a man with a gun and had not been able to call 911.  Another had had a child pass out -- and had been unable to reach an emergency operator.

This was disturbing testimony.  It was very clear, though, that each of the families had thought that the service provider SAID they had 911 service.  The parents of the dead child were particularly clear about this -- the mother had set up a Vonage 911 service two months before her emergency happened, and had been completely panicked, frustrated, and surprised when she couldn't get through.

But this is a problem of deceptive advertising.  That's the issue.  If you lie to people (or at least mislead them) about whether or not you have a particular service, then you should be liable.  Commissioner Abernathy seemed in particular to be focused on this labeling/advertising issue, and I think she believed that the FCC's order would immediately (as in now, not 120 days from now) require VoIP providers to make very clear what emergency services they provided and what they didn't.

(Isn't going after deceptive advertising by online services what the FTC is supposed to do?  They've certainly been active in the past.)

Leaving aside for the moment who has jurisdiction over what, how do we get from a deceptive advertising problem to a broad, difficult-to-implement, and possibly-illegitimate order? I guess we get there because a child died.  Many statutes and rules are passed or adopted at times of high emotion and in the middle of the night that we later come to regret.

PS:  I've said in the past that SkypeOut could be covered by the FCC's order.  But I'm wrong about that -- unless and until SkypeOut also allows people with traditional phones to call SkypeOut subscribers, it's not covered. For the moment.  The FCC is seeking comment on whether its initial order is sufficiently inclusive. The Commission is also planning to require automatic location information for all interconnected VoIP services.

I've been struggling to understand why the FCC thinks it has jurisdiction over any internet application that makes a deal to send and receive data from traditional telephone numbers.  Let's take SkypeOut.  (David Weinberger, among millions of other happy customers, loves SkypeOut.) [The following applies only if SkypeOut both allows calls in from and out to the traditional phone network, or (potentially) if different Skype services could be used together by customers to allow both in and out calls].

On SkypeOut's main web page, it says in bold type:

Skype is not a telephony replacement service and cannot be used for emergency dialing. (Thanks to commenter Frankenstein for pointing this out.)

But it doesn't matter what SkypeOut says.  Although the Commission has determined "that customers today lack any expectation that 911 will function for non-voice services like data services," it's absolutely convinced that consumers expect 911 to work for voice services that allow calls to and from the traditional phone system.  (Voice is apparently hugely, clearly, distinguishably different from data.)

Having decided that consumers expect 911 to work for voice services that use traditional phone numbers, the Commission then elaborates on its sources of power. 

The abridged version:

1.  We have power to decide what entities should provide 911 services. (citing Title I; Section 251, which is FCC's numbering authority over common carriers; and a December 2003 order about various kinds of wireless services and their responsibility to provide 911 services)

2.  Congress is clearly worried about public safety, and so are we.  (citing 1999 wireless E911 act.)

3.  We have power under Title I to regulate all radio and wire communications worldwide. Here, "interconnected VoiP" applications are necessarily radio and wire communications.  And Congress has asked us to promote public safety (citing that 1999 wireless act again).

4.  Also, because these applications use traditional telephone numbers, we have authority over the entities that provide these services.

Ergo, we're in charge and SkypeOut has to provide enhanced 911 services -- which means telling an emergency call center where the caller is.  (Result:  SkypeOut is crushed by the costs associated with determining that piece of information reliably; consumers, who never thought 911 was provided by SkypeOut in the first place, are up in arms about the privacy impacts involved; and the incumbents swoop in to maintain control.)

The problem with this argument is that it is both circular and unlimited -- a sort of moebius strip of jurisdiction.  We have power because we say we do; we have power because Congress hasn't said we don't; we have power because wire and radio communications and transmissions are involved.  And, over and over again, we have power because Congress said we should have one 911 number for wireless services in 1999.  (The legislative history of that 1999 Act says nothing about VoIP or the internet.)

There's no limiting principle here.  There's no difference, really, between voice and data.  All online applications involve radio/wire communications.  And any of them, apparently, could be subjected to any rule that the FCC decided on. 

This is just the first "social policy" rule, this E911 step, coming out of the FCC's March 2004 IP-Enabled Services NPRM (the subject of Bellhead/Nethead nearly a year ago).  Also on the list of "social policies" the FCC is thinking of imposing on IP-enabled services under Title I:  CALEA, disabled access, universal service, consumer protection.  Stay tuned.

Dale Hatfield's 2002 report [pdf] on issues affecting implementation of wireless E911 is a precise and thoughtful piece.  It's astonishing that with that report in hand (and with knowledge of what VoIP service providers were working on themselves [VON Coalition 2005 white paper pdf]) an independent agency would demand that E911 be implemented by "interconnected VoIP" services in 120 days.

Translated:  Hatfield presented E911 for wireless carriers as an overwhelmingly complex undertaking.  He says, "I did not fully appreciate the complexity of the task facing the Nation until I undertook this inquiry.  There is complexity in every direction."

Which directions was Hatfield talking about?  Well, there are thousands of emergency call centers (PSAPs).  The wireless carriers were using several different technologies across several generations of equipment and many different frequency bands.  The wireless industry was having a tough economic time.  And, perhaps most importantly, the PSAPs were underfunded and sometimes unsophisticated, and the local telephone companies were standing right in the middle between the PSAPs and the wireless carriers.  Standing there controlling access to relevant databases, equipment, routing decisions -- and charging whatever they wanted for it all.

When you take all of that complexity, all of those thousands of inputs, and move it into the nomadic world of IP telephony, it has to be exponentially more complex to create a seamless 911 system for internet users. 

Hatfield, judging from his 2002 report, never expected such swift movement on mandatory VoIP 911.  He says:

Clearly, the long term network architecture and other issues associated with the movement towards VoIP could be addressed by the Advisory Committee or other entity with overall system engineering responsibilities that I recommended . . .   As I envision it, that entity would work with the Commission and the various wireless, wireline, and Internet standards groups to facilitate the necessary exchange of information to reach the necessary consensus to ensure a seamless E911 system in an increasingly IP-oriented national infrastructure.

As far as I can tell, there hasn't been time for this facilitation, information exchange, and consensus development to happen, and no one is telling the local telephone companies to charge reasonable rates or work more efficiently.  So we've got an overwhelming and unbelievably complex systems engineering problem for which the emotional stakes have been ratcheted up unbearably ("people will die if we don't mandate this"). 

Most attempts at solving most highly complex systems engineering problems fail dramatically, particularly where (as here) there is a broken legacy system in place.  The odds against anyone being able to comply with the FCC's order are steep indeed.

As Hatfield said, "There is complexity in every direction."

I'm playing in a one-day new music festival here in NYC next Saturday, June 18.  It's called New Paths in Music.  The music director is David Alan Miller, who is well known both for his work with the Albany Symphony and as a champion of new music generally.  The festival is presenting works by living composers from Portugal, Australia, and Lithuania.

To get tickets (and please do get tickets), call 212-868-4444.  $30 for both performances (2pm and 8pm), at St. Peter's Church, 346 W. 20th St.  (My role is to play the viola in the last piece on the 8pm program.)

The FCC's recent "interconnected VoIP" order is a remarkable piece of drafting.  The order, in a nutshell,  requires "interconnected VoIP" providers to deliver their customers' 911 calls to a "local" emergency operator, and to provide that operator with the callback number and location information of the customer.

The Commission says it will decide later what its basis for jurisdiction is (while asserting strongly that it of course has jurisdiction over "interconnected VoIP" providers).  It says it won't shield "interconnected VoIP" providers from liability under state laws.  It doesn't set rates or otherwise control what the essential facility provider -- the incumbent local telephone company -- may do to hold up VoIP companies seeking  access to special emergency communications equipment.  The VoIP provider will need that access in order to meet the order's requirements.

What's "interconnected VoIP"?  Just four elements:  (1) the service enables real-time, two-way voice communications; (2) the service requires a broadband connection from the user’s location;(3) the service requires Internet Protocol-compatible equipment (a PC); and  (4) the service offering permits users generally to receive calls that originate on the traditional telephone network and to make calls to the traditional telephone network.

So, even if you're providing a free VoIP service, and even if you don't give your users a traditional telephone number, if you make it possible for your users to call traditional telephone numbers (and receive calls from that network), blam -- you're covered.  The beloved SkypeOut may be covered if it allows calls both to and from traditional telephone numbers.  (Skype is rumored to be considering a merger with Yahoo!.)  Any IM service that uses traditional telephone numbers is covered.  No matter where your customers are -- even if they're traveling at 90 mph down a lonely Montana freeway -- you better be able to tell the right someone exactly where your customer is. 

Eventually, the FCC says, that location information will have to be automatically available.  For now, the customer will need to tell the provider where he/she is.  Which is unworkable and shows how silly the application of E911 requirements to nomadic VoIP is.

Most people seem to think that meeting the order's requirements in the required 120 days will be impossible for all VoIP companies other than Vonage.  VoIP providers in the US will have to negotiate separate contracts with 6000 emergency answering points, persuade the Bells to give them access to the necessary facilities at a sensible cost, and load up routers and databases with the right information.  And compliance will be sufficiently expensive to make it no longer worthwhile to do business -- unless you're Vonage.

AOL, MSN, and Yahoo! are all offering or planning to offer various VoIP products, seamlessly integrated with their IM platforms.  If they've made deals to get calls to traditional phone numbers (and receive them), blam, they're covered by this scheme.

This seems to be an unprincipled and blatantly political order designed to protect the incumbents' ability to control the market for online voice services.  Although the Commission is coy about the basis for its jurisdiction (how strange is that?), to the extent it decides to lean on Title I the DC Circuit has already said harsh things about the FCC's overreaching in that statutory context.  It's a good bet that a good lawyer could attack jurisdiction effectively here.

No user of an IM client expects to be able to reach 911.  There, I've said it.  I don't, you don't -- we just don't.  Even if we're calling familiar phone numbers.  These online offerings are just not substitutes for phone service.  They're much better.  And they shouldn't be saddled with impossible, fantastical emergency response requirements in the absence of a clear Congressional statement.  We should be very worried about a Congress that would be willing to make such a statement.

CDT and the ACLU today filed a lawsuit challenging a recent Utah statute, House Bill 260 [pdf] (signed into law on March 21), that "imposes severe content-based restrictions on the availability, display and dissemination of constitutionally-protected speech on the Internet."

The complaint [pdf] carefully explains just what the internet is, why ISP blocking of sites deemed "harmful to minors" by the Utah AG (who will make his determinations without the benefit of any judicial review) will lead inevitably to the blocking of wholly innocent speech, why forced labeling and distribution liability and prior restraints and all the rest -- all the ugly and familiar machinery of censorship -- is violative of the First Amendment, and finally, why this entire ball of twine enacted by the Utah legislature violates the Commerce Clause.

It's good that the lawsuit has been filed, and it's clear that HB 260 is blatantly unconstitutional.  If the AG's office does its homework, they'll recommend to themselves and to their legislative client that this new law be taken out of service immediately.  But I have a sense of foreboding.

We live in an age of litmus tests and anger.  Facts don't mean as much as they should these days, particularly when it comes to facts about the internet.  Huge industries and incumbents of all kinds seem easily able to ignore fine arguments and good lawyering, and sometimes courts are willing to go along when the issues are particularly salacious. 

Here, Utah law enforcement authorities and politicians looking for re-election can say something like, "What do you mean, we can't protect our children? What do you mean, we can't make a local law about a communications medium that our citizens access?  Of course we've got community values. We have community values that regulate the width of our sidewalks and the quietness of our neighborhoods.  Are you telling us that we can't say anything about those values when it comes to the internet?  What's so magical about the internet?"  Think France and the Netherlands voting to hang on to their national identities.  This could be Utah's moment.

The complaint filed today is a work of art, no less than a painting or a symphony.  It echoes the ringing language of ACLU v. Reno.  The glory of the internet, its revolutionary impact on mankind, the ease of speech online -- every theme is heard, and it's uplifting (as well as right). 

CDT won a great battle in Pennsylvania, and they should win this suit as well.  But they and their co-counsel may need a great deal of support of all kinds, for a long time.  I'm afraid that this will be a long and bloody fight.

I talked last night to a string player in a conductorless orchestra.  He had spent six hours earlier yesterday in rehearsal with the group, and he had had more than enough.  "It's hell," he said.

The idea of a conductorless orchestra is effortlessly cyberian.  Beautiful music, made without anyone in charge!  Through listening and reacting, through feedback and awareness, the net becomes intelligent and produces order for free.  No one has to direct its growth.

But listen to my conversational companion from last night:  "There are these people that just love to hear the sound of their own voices.  They can't even explain what it is they want.  They say, 'More like THIS,' and bend an elbow or something, and no one knows what the heck that means.  The people I respect never say anything.  No one shuts anyone else up.  It's just awful."

He also said that music by committee ends up being bland.  Not all chamber orchestra works can be played without a conductor, so you pick particular things that you think the group can cope with.  And then during rehearsal those things are smoothed and simplified, by necessity, so that they sound coherent.  Without someone at the helm, making demands, no sound can startle.

Scale matters to this story, of course.  A string quartet doesn't need a conductor.  Not even a brass quintet needs a conductor.  But an orchestra -- it needs someone in charge.

I'm not going to draw any grand conclusions here.  Software can do a lot to create order.  It can facilitate as well as constrain.  No one needs to tell the developer what he/she is allowed to do, and the internet doesn't need a conductor.  The synchronous accuracy that makes or breaks an orchestral performance isn't even relevant online.

But the face of my jaded, punchy friend, emerging from six hours of consensus-building, told a story in itself.  He had had more than enough of earnestness, and was longing for a conductor and a drink. 

Reuters reports that the FCC tomorrow will adopt rules for VoIP 911 services.  When will the first lawsuit be filed?

I am not looking for litigation work, but it seems to me that this entire charade is purely political.  The Bells have had enormous trouble implementing 911 for cellphones.  They're still having trouble.  And now we're going to ask VoIP providers (nascent businesses! competing with the Bells!) to do this in 90 days? 120 days?

And we're not going to require the Bells to allow the VoIP guys to access their equipment for these services?  What?

This is crazy.  It's not even clear what the Commission thinks its source of jurisdiction is.  Non common-carrier VoIP service providers surely don't fit under Title II.  And the DC Circuit has clearly told us that Title I isn't the ever-expanding golden purse that the FCC thought it was.  So just what gives the Commission the power to do this?

It has to be that the FCC has become convinced (tell me this isn't the case) that independent VoIP services have to be squelched.  Run out of town.  Diminished so that they can't cause trouble for the big guys.

Luckily, there are many Article III judges who will be available to look hard at this set of issues.  The FCC should find some principles -- fast. 

In John Markoff's wonderful book, "What the Dormouse Said," Doug Engelbart runs across an essay by William James that changes his life.  The essay is entitled "What Makes a Life Significant," and I ran right out online and found it.  It's well worth reading.

James tells us that a significant life is a life lived in the service of ideals -- particularly when those ideals are combined with pluck and will, "dogged endurance and insensibility to danger."  Because we can never know which ideals someone holds dear, without knowing that person well, it is not right to dismiss him or her as a fungible member of a human category.  No life lived for an ideal is insignificant.

The Lloyd Cutler memorial service yesterday was captured by the Post here.  The article is accompanied by a picture of Justice Breyer laughing with AG Gonzales.  They're laughing at a verbal dagger thrown by Sen. Clinton.  It was quite an afternoon.  It was an extremely long afternoon.  Cutler engaged intensely with many many different institutions -- the Metropolitan Opera, Yale, the American Law Institute, the Salzburg Seminar, the Presidency, his law firm, the Supreme Court, his family -- and it was nearly impossible to fit it all in.

What's the ideal that Mr. Cutler lived for?  Louis Cohen captured this in his speech.  His was the very last remembrance, at the very end of the day, after many people had hurried out, drawn by the call of cellphones and dinner engagements.  Lou said that Lloyd solved problems.  He didn't do just what the client said to do (too many lawyers see their jobs this way).  Instead, he found the high road, the right answer, and persuaded everyone else to go along.  He served the US over and over again, solving problems for Republicans and Democrats alike.  He lived a significant life.

The Supreme Court today struck down limitations on wine sales that had been created by states.  Good news for further commerce clause arguments about state spyware laws.

I'm in transit -- Boston yesterday, DC today -- and I'll have something more substantive to say tomorrow.

The BrandX transcript is worth reading, even though it's heavy sledding for the non-telecom-literate. To the extent the Court's intentions can be gleaned from its questioning pattern, the FCC surely lost this argument.  The Justices jumped all over the petitioners (TW and the DOJ), and let the respondent offer a calm tutorial -- barely interrupted by a question.  The Commission's logic: 

1. Phone companies have always been common carriers.  Cable companies have not.

2.  Phone companies have to provide separate pure transmission services ("telecommunications services").  Cable companies do not.

3.  Because of 1 and 2, cable companies offering transmission to the internet plus email ("enhanced service") over cable modems shouldn't be regulated as common carriers.

4.  Besides, it would be the wrong thing to do to impose interconnection/nondiscrimination obligations on cable modem service, and maybe we won't attach those obligations to naked DSL service (although, right now, we do).

The Commission's argument has to stem from the premise that the internet itself is an "information service" -- some kind of giant data processor -- and providing access to it is also an information service.  TW's lawyer, Paul Cappuccio, said that accessing a web site is different from making a phone call: 

[Accessing a site] is not simply sending bits over a line and having those bits not changed and not interfered with.  When you retrieve something from a server, you have to take it in form it is on the server, you have to then put it through the transmission system, and you have to reconvert it back into what you want to see.  It's an interactive process that is more than just sending information.

What? The browser does conversion, sure, but what's the cable operator doing? It's providing access -- transmission -- to a network.  So are ISPs.  So is everyone in the chain. 

So now that we know that everyone in the chain is potentially a common carrier, the thing to do is to take a Netcom-like approach to this issue.  Rather than make everyone liable for the traditional regulatory burdens of common-carrier-dom, let's dismantle the whole edifice.  As in Netcom, let's say that direct, physical access to the consumer/business (in the Netcom context, direct infringement) is the thing we'll regulate.  We'll turn it into a public utility.  And we'll leave everything above that alone. We did this with energy -- we can do it with online access.  Sure, there will be a few takings cases -- but that will be entertaining (and lucrative) for everyone.

It seems to me that the 1980 FCC proceedings (that talked about computers owned by common carriers doing data-processing) did not have the internet in mind.  But everyone involved in the telecom rewrite discussion -- cable companies, Commission, phone companies -- believe that there's nothing particularly special about the internet.  "Oh, we talked about that 25 years ago," they say. 

The internet is not a data-processor, and it isn't under the FCC's jurisdiction, and IP-enabled services are not (or should not be) "information services."  It's time to take this all apart.

Norbert Weiner famously hiked for hours.  And swam, belly up, with a lit cigar in his mouth.

Albert Einstein took a violin with him everywhere he went, and played every day.

Here's an Einstein reminiscence:

I sometimes ask myself, how did it come that I was the one to develop the Theory of Relativity?  The reason, I think, is that a normal adult never stops to think about problems of space and time.  These are things which he has thought of as a child.  But my intellectual development was retarded, as a result of which I began to wonder about space and time only when I had already grown up.  Naturally, I could go deeper into the problem than a child....

Three things:  First, Judge Marilyn Hall Patel is a confident, no-nonsense person.  Just look at the bold way she dashed off the date on this order [short pdf], issued yesterday.  She knows what she's talking about.

In this order, she makes short work of the absurd suggestion that one of the statutory exclusive rights of a copyright holder -- the "distribution" right -- was somehow amended by the ART Act to include the right to "make available" electronically.  We knew this argument was going to be made, and it's nice to see it being knocked down so handily: "If Congress wanted to make clear that the distribution right was broad enough to encompass making a work available to the public without proof of actual distribution, it is perfectly capable of doing so."

(Thanks to Fred von Lohmann.)

Second, it looks like we're heading swiftly into deep broadcast flag legislative territory.  Drafts are being circulated now that would ratify the November 2003 order and give the Commission the authority to "adopt regulations governing digital television apparatus necessary to control the indiscriminate redistribution of digital television broadcast content over digital networks."  Does this include the authority to (attempt to) close the analog hole?

Third, I've been diving into telecom lore.  It feels as if this is going to be a transformative mental experience -- similar to what happens to you after your first year of law school.  Before:  a wifty music major (did you see this week's New Yorker cover?).  After:  a canny, jaded, argumentative employed person.  If you need a good reference/introduction to telecom policy, Jon Neuchterlein and Phil Weiser have put out a well-crafted book on the subject (highly recommended).

The Times today ran a delightful story on the front page about a sudden surge in successful lottery-number-picking that made the Power Ball authorities worry.  It turned out, on investigation, that more than 100 people had played a number that they had read on a fortune cookie message.  The cookie number turned out to be very very close to the winning number -- close enough to entitle the cookie-readers to a cumulative payout of almost $19 million.

Investigators visited dozens of Chinese restaurants, takeouts and buffets. Then they called fortune cookie distributors and learned that many different brands of fortune cookies come from the same Long Island City factory, which is owned by Wonton Food and churns out four million a day.

"That's ours," said Derrick Wong, of Wonton Food, when shown a picture of a winner's cookie slip. "That's very nice, 110 people won the lottery from the numbers."

Last night I was the happy recipient of a remarkable fortune-cookie future-life prediction -- undoubtedly from Wonton Food.

On the "A" side, it says:  There is a prospect of a thrilling time ahead for you.

On the "B" side, it says:  [try to] Speak Chinese:  I am a lawyer.

See?  Being a lawyer isn't so bad after all.  It could even be thrilling.

[numbers to play:  40  41  13  2  22]

Does anyone care that the customer agreements for Verizon's and Comcast's broadband services say You Can't Run a Server? (and We Reserve the Right To Change Any and Every Aspect of Your Online Access and This Agreement Without Notice?)

I know that internet users don't necessarily want freedom of action.  Heck, the internet looks dark and dangerous to many people.  But in light of the Markoff and Waldrop books I exclaimed over earlier this week, I'm feeling bolder.  How can the provision of online access be so easily constrained?  There isn't a whisper of a mainstream media murmur about this. 

Maybe it doesn't matter -- maybe running a server is something that only extremists would do.  But don't we want to defend the (lawful) actions of extremists? 

And if these limitations stem from bandwidth worries, why aren't there concerns about the absence of significant players who can both provide symmetric broadband access and support the freedom to run servers?  Why not have cheap "no server" broadband available to most of us, and slightly more expensive "you can run a server" broadband available for other (ordinary, non-enterprise) people? 

And how about those easily-amendable subscriber agreements?  The argument must be that Verizon-SBC/Comcast-TW have no incentive to make their customers angry -- so they'll be reasonable and we needn't worry.

But I'm worried anyway.

++++++ 

Verizon 3.6(E):  If you subscribe to Broadband Service. . .You may not use the Broadband Service to host any type of server personal or commercial in nature.

Comcast 5(b):  Without limiting the generality of the foregoing, the Service is for personal and non-commercial use only and you agree not to use the Service for operation as an Internet service provider, a server site for ftp, telnet, rlogin, e-mail hosting, "web hosting" or other similar applications, for any business enterprise, or as an end-point on a non-Comcast local area network or wide area network.

(by the way, how can Comcast ensure that no subscriber runs a "business enterprise"?  I'll bet lots of people do business using Comcast broadband.)

The TVWatch launch was last week, and it went extremely well - lots of press coverage.

TV Watch released a national poll which shows that the public clearly prefers parental responsibility to government control.  By a staggering eight to one ratio, respondents believe that “more parental involvement” is a better solution to keeping kids from seeing adult content than “increase [d] government control.” 

I am very proud to be associated with TVWatch.  Jeff Jarvis has shown us that a few people armed with fax machines can get the FCC to fine programs (hugely) for minor infractions of outdated rules.  This is a completely irrational state of affairs that deeply threatens free speech.  No Amendment is more embattled than the First these days.  The disease of indecency attacks is likely to spread unless we do something.  Go, TVWatch!

I remember coming back with Mr. Cutler from some mysterious Washington meeting.  It was lunchtime on a sunny day in the fall, and he was supposed to address the entering associate class in the boardroom.   We were walking along the front of the M street building - he was carrying a soft, supple (and thin) leather case, and I was lugging a big briefcase filled with binders and notepads and other paraphernalia.  I said something mild about the new associates, and he gave me his gimlet glance and said, gravel-voiced, "Are there any stars [in the associate class]?"  I don't remember what I said in return.

There are thousands of people who knew Lloyd Cutler far better than I did, and their stories are far more legitimate.  Mine are all about glancing interactions towards the end of his life.

The most sustained memories I have of him come from a week five years ago this summer.  Because someone more famous had suddenly become unavailable, he invited me to give a talk on The Future of the Internet in a castle in Salzburg.  This was a session of the Salzburg Seminar.  Mr. Cutler (I called him Lloyd to his face, but it took an effort) was in his element.  He gravely invited me for a pre-Seminar drink next to the lake, and it was immediately clear that this meeting was actually for fun -- there was very little planning to be done, and we just admired the castle (the Schloss Leopoldskron, used for exteriors in the Sound of Music) in the sunshine.  He took us and the other faculty members to the opera twice (Tristan, with seats in the second row, and Cosi Fan Tutte) and to dinner at the Goldener Hirsch, and we had formal meetings in the gorgeous castle rooms.  Music meant a great deal to him.  His favorite opera was Don Giovanni. 

He gave the same piece of advice to many people:  "Never have lunch with another lawyer."  He did not, let us say, possess the common touch, although he could certainly be charming when he wanted to be.  He never, ever, missed the forest for the trees -- he saw straight to the pragmatic heart of every issue.  He was a great lawyer.

Mitchell Waldrop's "The Dream Machine" and John Markoff's "What the Dormouse Said" are both enormously exciting books about the origins of personal computing.  Both describe in loving detail the lives of people who believed in the transformative power of interactive human-driven electronic environments.  (And Markoff unforgettably connects countercultural mid-Peninsula 1960s life to to the development of graphical interfaces.)

We need to do some succession planning -- or maybe just some succession PR.  The people described by Waldrop and Markoff were fearless and open to suggestion; they had enormous imaginations; and they didn't care what anyone thought about what they were doing.  Now people talk about the internet as either (1) utterly predictable and boring, or (2) full of danger and darkness.  Both of these rather smug approaches to electronic interaction lack imagination.  And they point towards a constrained electronic future.

This isn't a plea to return to the past.  Instead, it's a reminder that sometimes it's a good idea to just do things.  Go ahead -- today -- and build something useful and imaginative.  People will write about you later. 

Today's broadcast flag ruling [pdf] from the DC Circuit has significant implications for the future of internet regulation in this country.  As I've argued (plug for law review article -- why not download the article?), and as the court today found, the Federal Communications Commission does not have power to make rules about products and services that don't fall under its existing statutory authority over telecommunications companies, broadcasters, and cable companies.

The specific context for the flag ruling is the Commission's assertion of dominion over devices that are capable of receiving digital television signals -- a broad range of consumer electronics devices and PCs. The Commission adopted a rule back in late 2003 that would have required all of these devices, and the devices that interoperate with them, to recognize a marking scheme aimed at protecting particular content from widespread transmission over the internet.  The FCC felt it had to do this in order to "fulfill its responsibility of implementing the transition to digital television."

The DC Circuit (in a unanimous opinion) found that the Commission didn't have power from Congress to make rules about what devices do with content once that content has been received.  It also said that the court didn't need to defer to the FCC's statements about its jurisdiction because this delegation from Congress had not occurred.

The court reasoned that Congress has given the FCC power over entities engaged in "communication by wire or radio."  Making consumer electronics devices and computers recognize a particular marking scheme after they've received an electronic transmission (but when they aren't "communicating" in any way) is beyond those powers.

Although the DC Circuit didn't have to reach this question, my view is that when the FCC starts making rules about a VoIP application that doesn't terminate calls using a traditional telephone number, or an email application, or PCs, or anything else it hasn't traditionally made rules about, it will be acting beyond the powers given it by Congress.  This means we will have to have a sustained national conversation about the scope of the FCC's authority over the internet before the Commission can act.

From what I've been hearing, it's going to take several years for any rewrite of the Communications Act to happen.  In the meantime, today's opinion signals that the FCC should act with self-restraint.

There was a small flurry of messages today among cyberprofs about how students see the internet today.  The consensus seems to be that it's harder for young people to understand John Perry Barlow's Declaration or the notion that spam is a big problem.  But virtual property issues are all the rage.  Online access is just like electricity to this generation.

Internet exceptionalism makes sense to me, but not because of the "we can't be regulated" argument.  Electronic interaction augments what humans are particularly good at -- associating, talking, remembering, getting things done -- and makes visible what is often invisible offline.  It's a revelatory medium.  Ten years from now, we'll see this more clearly.  I don't think it's right to be curmudgeonly about the internet now ("harumph, no big deal, just a speeded up telephone network"), and I'll bet that our successors will understand much better than we do what impact it has had on life.

In Pattern Recognition, an absorbing William Gibson novel, the protagonist believes that when she travels a long distance it takes a while for her soul to catch up.  Jet lag, for her, is just a matter of the soul wandering above the Atlantic in the slipstream.

I spent the day (a long day) in DC watching seven panels of people (including one that had me on it) prognosticate about the future of communications.  I'm back in NY, but my soul is somewhere in Philadelphia, confused. 

Today focused on the same old deep conflict, but now I think I understand it better.  There are at least two sides to it.

First, the people who are used to owning and controlling networks see the internet as just another network.  They're used to networks competing, and they're looking forward to lumping "value propositions" and "user experiences" together for their subscribers.  They're investing hugely in their proprietary networks.  They're not used to "networks of networks."  There are only two actors in this category:  Comcast/TW and SBC/Verizon.  A duopoly.  Through the good graces of this duopoly, Americans are able to get online.

Second, the people who are used to interactive computing as a way of life can't imagine that anyone will show up and constrain their access.  Impossible to contemplate.  So impossible, in fact, that many large companies whose business plans depend on access to the internet don't put a lot of energy into the policy game in Washington. 

Both sides assume that their respective worldviews are indisputably accurate.  The cable/telco world is squabbling over the applicability of cable franchise rules to telcos.  The online world is squabbling over content issues and the liability of intermediaries.  Both worlds are closed, acronym-ridden, clubby places. 

It's time to get the access question straight, and it won't be easy -- particularly given the lobbying muscle of the incumbents.  I'll start to work when my soul gets in from Philadelphia.  It's been quite a day. 

There's a story from France quickly making the rounds:  A French court has said copy protection applied to DVDs is illegal, both for "privacy" (?) reasons and for consumer protection (inadequate disclosure) reasons.

The US content industry often cites the success of DVDs as evidence that consumers don't expect to make their own copies of this format -- and don't seem to care that they can't.  The DVD closed-circle, chain-of-licenses story is told over and over again in this country.  "See?" the industry says, "People just want to be entertained."

But in France, Germany, and Spain (three reasonable countries), people do apparently expect to be able to make private copies of things they take home with them -- and the law supports this understanding.  If this decision takes hold (and I can only imagine the resources being devoted right now to make sure that it is deep-sixed and tagged as downright un-European by some more captive law-making body), and is joined with some other European precedents on the consumer-unfriendliness of DRM, it might just cause a little wrinkle of change. 

But I have to say I'm not sanguine about this.  I'm sure there are treaties being whipped up that will enshrine DRM as a human right ("consumers require choices of content; such choices can only be made available if adequate legal controls are in place; private copying is in derogation of the Rights of Man" -- something like that), and those French people wanting to make copies for maman will be sent meekly back to the store to buy again. 

It really is war out there.  I just moderated a panel at the NY Bar Assn on P2P. 

RIAA:  Copyright law is about control.  Other Guys: Copyright law is about encouraging innovation.

RIAA:  Copyright infringement is immoral and is destroying small songwriters.  Other Guys:  The content industries should embrace online business models.

I had to be a very active moderator, so I couldn't take notes.  All I could do was write words in the margin of my pages -- words like "democracy," and "respect," and "infringement machine."  I didn't have to actually yell at any point, but it was close.

Yikes.

The audience had a lot of questions too.  The questions seemed to be coming from people who weren't very sympathetic to the record labels.  But, again, I couldn't take notes -- I was too busy keeping the panelists from jumping down the questioners' throats.

I can report that before things got really rhetorical Don Verrilli clearly said that he's proposing a Sony test that's narrower than the Aimster proportionality test (he'd protect a "business that is substantially unrelated to infringement").  He's also very sure that there is a great deal of evidence in the record about Grokster's bad behavior -- planning their business based on infringement, that kind of thing.

Adam Eisgrau responded to Verrilli on both these points, saying that Don's test would cast a pall on innovation, and that all of this "evidence" was under seal.  Adam also pointed to the DiMA brief [pdf] and asked whether the RIAA would agree to the very reasonable test proposed there (they did not respond).  Sonia Katyal made some very strong points about the risks to creativity posed by a fee-for-transaction approach to content, and the dangers of getting rid of fair use.

After the final bell, we all retired to our various corners and then went out into the rainy night.

So it turns out that Jane Jacobs was Le Corbusier's girlfriend, and he was brilliant but didn't pay enough attention to her, so when Robert Moses wanted to enshrine Le Corbusier's principles in a highway cutting across lower Manhattan unhappy Jane gathered a group of activists and brought Moses down.  There was a trial that was decided by a feat of physical strength, with Moses and Jacobs having a tug-of-war with Le Corbusier's body -- Moses's team shouting "Get things done!" and Jacobs's team yelling "Emergence theory!"

It's a musical (sort of) about urban planning ("single use zoning!"), with a lot of smoke effects and some earnest dialogue.  Jane Jacobs yells about the human need for sidewalks and neighborhoods (and organically-growing cities), and Robert Moses shouts about the purity and rightness of clean, wide highways (and a master plan).

We're not quite ready for a musical about the internet, but soon, soon -- we just need a few more songs.  

Retinal light receptors are unevenly distributed.  In the center of the retina (the fovea), there are mostly cone photoreceptors.  Cones are used mostly for color vision, and don't pick up on dim light.  (This is why you can't see the colors of things in a dim room.)  Rods (for black and white light) are highly concentrated in our peripheral vision, and are very sensitive to dim light.

So you can see dim stars in your peripheral vision that you wouldn't be able to see if you were staring right at them.

The eponymous conference is next Wednesday.

Frequent visitors to this blog know that I got all excited about a complexity class run at MIT by the New England Complex Systems Institute over the winter break.

I just spent spring break (spring break II -- a special year) in Washington, D.C., trying to understand a host of issues all at once.  Likely outcomes of the Grokster case, the telcom re-do debate, patent policy, the application of campaign finance laws to the internet, spyware, and on and on.  Everything was interesting, everything seemed connected, and the people I talked to were wonderful.

But if you really believed in and understood complexity, you'd have to think that it doesn't help to follow any of these quotidian internet policy issues.  News events don't make it possible (usually) to predict which way the world is going to go.  (This can be a very relaxing thought if you get a lot of email.) 

It may be that the best we can do is to look for areas of rigidity and, when we find them, to do our best to shake things up.  Or to work on creating systems that have lives of their own, because they keep referring back to themselves.  I've been struggling to understand Essays on Life Itself, and sometimes I think I have a faint glimmer of understanding about what life is.

At any rate, it was a fine week. 

The new FCC chairman, Kevin Martin, is calling for VoIP services to include 911 service.  What's a VoIP service?  Who's a VoIP provider?  Do online gaming applications count?  Do voice-enabled instant messaging clients count?  What about voice-enabled customer service applications for online commerce sites?  

And, to the extent we're worried about deceptive advertising by services (tricking people into THINKING they've got 911 service that hooks into an actual police station -- this connection to police is, by the way, is a hard thing to do) isn't the FTC in charge of that kind of thing?

There are so many swamps out there.  This one seems enormous.  Even if we can surmount the definitional and jurisdictional high hurdles, if Verizon has trouble providing 911 service to its wireless customers, how are small guys going to accomplish this (without going out of business).  Is the point to run them out of business?

So many questions, so many acronyms, so many lobbyists. 

Today the House Energy and Commerce Committee (Subcommittee on Telecommunications and the Internet) held the third of three hearings about rules for IP-enabled services.

The hearing started an hour later than scheduled, which gave the crowd a heck of a long time to chat.  We chatted.  Exchanged cards.  Prognosticated.  The room grew warmer.

And then, when a few congressmen trickled in, an enormous panel of people got up and said We want Congress to create a huge variety of rules, right now, for all IP-enabled services.  (IP-enabled services are everything you can think of that uses the internet protocol -- web servers, applications, newspaper web sites, the DNS, you name it.) 

The Alliance for Public Technology representative asked for "accessibility solutions" for "IP-enabled technologies."  Two mayors asked for control over public rights of way and local power over video services of all kinds.  A representative of a state Public Utilities Commission asked for rules that would "help the telecom sector recover" and would provide "certainty for investment" (always a request of incumbents).  Another state representative said that the internet was no different from an interstate highway, that new technologies are traps for the unwary, and that states need to be able to set speed limits and other rules.  Someone from the National Governors Association said that phones had become very complicated, and now involved things like the world wide web.

An underlying theme had to do with cable franchise rules -- apparently phone companies are looking for federalized rules that will allow them to provide video without being subject to franchising limitations. 

At one point there were more than ten representatives there, all busily checking their blackberries.  Gradually the congressmen present melted away, until only one was left.  He looked around, and suspended the hearing, hoping that more people would be around later to ask questions.  The crowd swung into chat mode again.

It's clear that there's already a draft bill out there that deals with these many desires.  I have no idea how this will all work out, but I have to say I'm worried -- there seems to be no push whatsoever in the other direction.  No one is saying Do Less.  And all the chatters have clients who want more.

"On Intelligence" is the title of a book by Jeff Hawkins.  Go right over to Amazon and get this book. 

Hawkins demystifies intelligence.  He takes apart the neocortex (schematically, at any rate), and shows us that making pattern analogies is what we do when we think at higher levels.  Any theory of intelligence that could be applied to machines has to take into account the extensive feedback provided by the operation of the many levels of the neocortex and the particular physical architecture of the brain.  Plus time.

We store sequences, associate them, and test our experiences constantly against these ideals.  When patterns change, we notice.  It's all practice.  When we're steeped in a subject or a world, we can do more and more of this at lower levels, without having to run things all the way up the cortical flagpole. 

So, for example, if you're talking to a first-rate First Amendment lawyer, he's made so many associations across so many years that he can instantly see patterns in facts that you wouldn't see.  He can draw analogies with the greatest of ease.  That's his intelligence -- his pattern manipulation -- working.

Hawkins reminds us that intelligence (like the ability to play an instrument) isn't magical.  It takes practice. 

at p. 168:  "Experts and geniuses have brains that see structure of structure and patterns of patterns beyond what others do.  You can become expert by practice, but there certainly is a genetic component to talent and genius too."

Hawkins suggests that machines could certainly be built that would allow for feedback, sequence storing, and time -- they might end up with very different "senses" than we humans have, but they'd be intelligent.  The book is a challenge to entrepreneurs and techies to build those machines.

In the meantime, I'm thinking of developing a better mental filing system.  If only office supplies for that were easily obtainable.