For an entire generation after the telephone was introduced, the Bell system managers resisted its use for social purposes.  Yes, there are memos and reports from the early years saying that managers were trying to get people to stop gossiping on the telephone.  The president of Bell Canada, in 1890, complained he couldn't stop trivial conversations, and a manager in Seattle in 1909 wanted to limit use of the telephone for purely idle gossip.

By 1928, a frustrated advertising guy said that this approach of treating the telephone seriously "is about as commercial as if the automobile people should advertise: ‘Please do not take out this car unless you are going on a serious errand. . . . ‘ We are faced, I think, with a state of public consciousness that the telephone is a necessity and not to be trifled with, certainly in the home."  In other words, the telephone was being sold as something necessary and serious, rather than conversational.

The Bell System felt that the need for telephones should be created by focusing on emergency uses, not sociability.  (These managers weren't at all confident that people actually needed these magnificent instruments, and wanted the surest sales pitch they could find -- particularly one that would be effective on anxious parents and farmers.)  Sales manuals from the 1920s to 1935 focused on emergencies.  Not until the late 1920s did advertising begin to even mention sociability.

Why did it take an entire generation for a shift to advertising sociability to occur?  Not, according to Claude Fischer's terrific essay "Touch Someone:  The Telephone Industry Discovers Sociability," because of economics.  Many of the big cities were pay-by-calling-volume from the beginning.  And many of the flat rate rural areas stayed flat rate, even after sociability was recognized.  Nope -- this lag can only be explained because of the cultural background of the telephone men.

The first telephone men, you see, had been telegraph men.  They thought of telephones as just like the telegraph -- something you used for urgent business messages and alarms, never for chatting.  Only when the telegraph tradition loosened its grip on management did sociability become a selling point for the telephone.

Now we live in a world where some very powerful companies with connections to sell to the internet are made up of telephone men.  Or cable men.  They see the internet as just another network, and they're used to a world of competing proprietary networks that sell packaged services to passive subscribers.  They think of the internet as just like the telephone.  In the meantime, in a span of years far shorter than a generation, some other people have shown up who don't have this mindset.

And now we're having a tussle.  Not only are these new non-telephone men used to a lot of sociability, they're also used to helping themselves (who needs E911?) and building resources collaboratively.  A new kind of consumer is online, with different expectations and different abilities. 

Unfortunately, the telephone men and the cable men have a pretty strong hold on policymakers. 

We've finally gotten to the point at which the idea of "professional" fact-filtering no longer makes sense.  Adam Liptak noted yesterday in the Times that blogging culture may be undermining the idea that reporters are specially privileged.  Lawrence, Kansas, is now the home of an all-community online paper -- the Newspaper of the Future.

Meanwhile, Yahoo! is launching a "social" search engine that allows you to cooperate with people you know in pinning down information you -- and they -- care about.  David Weinberger dreams about collaboratively filtering news.  Dreamcard (from Runtime Revolution) lets people who can't code write software that brings objects alive.

If we can just stay insatiably curious for a few more years (long enough to get past the bumpy parts and get to the point where real tools work really well and really simply) the pros will become amateurs, the amateurs will become pros, and we'll all be handling information much more effectively.  Just a few more years to go.

Largely unnoticed (except by Eric Goldman) in the parade of pontification yesterday about Grokster and BrandX was a very nice decision by the Second Circuit about trademark "use in commerce."  The decision is 1-800 Contacts, Inc. v. WhenU.com, Inc, 04-0026-cv(L), 2d Cir. June 27, 2005.

Although, as Eric points out, there are some strange things in this opinion (most notably its attempts to avoid dealing with the legality of search engine keyword sales generally), the bottom line is truly commonsensical and laudable:  listing a keyword in a directory that the public doesn't see is not "use in commerce" of a trademark for purposes of an infringement claim. 

There's also some nice language in the opinion about the pop-up ads triggered by WhenU's software.  The court understands that these ads don't alter or affect the underlying web site at all. 

This opinion is a good thing to have around, because several states have taken to calling things "spyware" that are simply keyword-triggered-applications.  At least from now on we can put a stop to the ridiculous argument that listing a company's name in a set of keywords is in itself "use in commerce" of a trademark that can form the basis of an infringement claim.

Another very important good thing that happened yesterday:  CDT proudly unveiled its Congressional Research Report database.  (Post story is here.)  This is a huge, life-affirming event, made possible by the hard work of CDT staffer Joshua Ruihley. 

These very useful CRS reports are usually hidden from public view unless a member of Congress releases them.  Now everyone can see them, and everyone can add to the collection.  Great news. 

[Cross-posted to SCOTUSblog]

If someone asks you what the Supreme Court thinks about the internet today, you've got a couple of responses.

1. In Grokster, the Court seems to understand that the case before it isn't just about P2P, and that the development of technology is really at issue. It doesn't want to let one industry -- the content industry -- use its statutory copyright monopoly to control the growth of another industry. On the other hand, the Court also recognizes that going after individual filesharers is very difficult, and that it may be necessary to go after intermediaries where sufficient evidence of intent is present. (This could be called the "There Must Be Liability In Here Somewhere" argument.) Result: some risk of liability for copyright infringement by technology providers, and a roadmap for what evidence is relevant when those cases come up.

2. In BrandX, the Court takes an entirely different approach. Using homespun analogies to pizza and dogs, and based on some fundamental misunderstandings about technology, the Court defers to the FCC's determinations about internet services. (This could be called the "This is Really Hard And We Want Out" tack.) Result: unfettered discretion lodged in the FCC to do what it wants with all internet services.

Now, the BrandX case is about a classification question. Should cable modem services be classified as "telecommunications services" or "information services"? If cable modem internet access is a telecommunications service, then many common-carrier obligations kick in -- like the obligation to allow others to plug into your network, to charge only set rates, and to contribute to the costs of rural telephone systems. The FCC didn't want to impose all of those costs on the cable industry, and so they said that cable internet access is really an "information service." This means that the FCC can apply "social policies" to the service (which can be very onerous and costly -- just as costly as the common-carrier rules), but won't set prices or require interconnection.

The problem with this classification by the FCC is that the statutory definition of "information service" doesn't fit with what internet access actually is. Information services are supposed to be things that generate, acquire, store, transform, process, retrieve, or make available information across telecommunications connections. The FCC reasoned that cable modem service is an information service because it gives people the ability to manipulate information using the internet across high-speed telecommunications. But that's not really right. Cable modem service allows people to reach online information, but doesn't necessarily allow them to manipulate it.

Your browser software allows you to see graphical online pages. Your email program allows you to receive and send email. Your IM client allows you to chat with friends. None of these things are necessarily provided by your cable service company. The 1996 telecom act, which contained these definitions, didn't foresee what the internet would become or how it would be used.

The Court defers to the FCC's classification, and along the way drops some very powerful dicta that gets ahead of the rewrite of the telecom act that is now in progress. Federal telecommunications policy, the Court says, should be set by the Commission. Everything accessed online is an information service. The Court says "the Commission has jurisdiction to impose additional regulatory obligations [on information service providers] under its Title I ancillary jurisdiction to regulate interstate and foreign communications."

The opinion has no limiting principles. The FCC can call anything that processes information an "information service," including any application you can think of. And it can impose any rules it wants to on that information service. We'll be relying on the Commission's self-restraint from now on.

That should be good cocktail-party banter.

[UPDATE:  In response to emails and comments -- I agree with the Court's holding to the extent that it will result in freeing both naked DSL and cable modem access from Title II obligations.  What I'm arguing about here is the FCC 's assumption that the world is divided neatly into two things -- information services and telecommunications services -- that it has jurisdiction over all of 'em (including web sites), and that it can impose "social policies" without limit.  The Court's dicta in BrandX supports this FCC adventurousness.  I understand that many people believe the 1996 Act did this in the first place, but I don't agree with that assumption for reasons I've explained in Shortness of Vision.]

[Cross-posted to SCOTUSblog]

Ed Felten is right to focus on Footnote 12. That's the key footnote that technologists will be waving to say "don't allow the content industry to get into the business of designing our products and services." If there is no other evidence of intent and the device is capable of substantial noninfringing uses, you can't tag a technology with secondary infringement liability based on mere reluctance to filter.

Another legal-beagle point on this "don't design" argument is that the Court specifically says it is not talking about vicarious infringement. Vicarious infringement is based on "profiting from direct infringement while declining to exercise a right to stop or limit it," according to the Court. Vicarious liability doesn't require intent.

But we're in the contributory infringement box, which is based on "intentionally inducing or encouraging direct infringement." So the Court focuses on evidence showing an "affirmative intent" that the product be used to infringe. Contributory infringement looks at active steps evidencing intent, while liability for vicarious infringement might only require a failure to act (such as failure to filter). The classic example given by the Court of active steps is advertisement -- which is a corporate message encouraging infringement.

I read the decision as saying that IF there is evidence of advertising AND other marketing and promotional indicia of intent, THEN failure to filter might be relevant. But failure to filter on its own (as Footnote 12 suggests) would never be enough.

Now, of course, it's not hard to do discovery and find evidence of intent. So this gives the content industry substantial ammunition. And that's why this is a balanced opinion that doesn't completely please either side.

[Cross-posted to SCOTUSblog]

Humble metaphors make for bad internet policy. The Grokster 9-0 opinion doesn't use them.

But the BrandX guys -- my, all that talk about pizzas v. pizza delivery and dogs v. leashes. Just painful. And the use of this simplifying (but really obfuscating) set of metaphors indicates that the Court really didn't know what it was talking about when it started defining everything online as "information services" provided by the access provider.

So I'm hoping that we can categorize everything said about "information services" other than cable modem access as "dog dicta."

In my next entry, I'll go back to musing about Grokster, and, in particular, the meaning and import of fn. 12. We may have another fn. 4 of Carolene Products in the making.

[Cross-posted to scotusblog.] 

The consequences of BrandX (also decided today) are more important than those of Grokster. Grokster keeps the status quo in place. BrandX opens up a whole new world of regulatory power.

"What?" you ask. "I thought BrandX was just about the access of little ISPs to big mean cable systems."

No. In fact, both opinions are the reverse of what they purport to be. The Grokster opinion gives certainty to tech companies. And the BrandX opinion takes it away again.

In BrandX, Justice Thomas gets very confused about the internet and ends up essentially announcing that everything a user does online is an "information service" being offered by the access provider. DNS, email (even if some other provider is making it available), applications, you name it -- they're all included in this package. And the FCC can make rules about these information services under its broad "ancillary jurisdiction."

This is very very big. This means that even though information services like IM and email don't have to pay tariffs or interconnect with others, they may (potentially) have to pay into the universal service fund, be subject to CALEA, provide enhanced 911 services, provide access to the disabled, and be subject to general consumer protection rules -- all the subjects of the FCC's IP-enabled services NPRM. I've blogged about this a good deal, and now it's coming true: the FCC is now squarely in charge of all internet-protocol enabled services.

The implications of all this are staggering. This is the real news from today. After the DC Circuit's ruling in the broadcast flag case, people may have thought that the FCC's "ancillary jurisdiction" was in trouble. No longer -- the FCC has been given an enormous jurisdictional surge in power.  Even though its statute -- in my view, at least -- doesn't really give it this authority.

Whoof.

Today's Grokster opinion is a victory for content AND for technology. I was afraid that Sony would be undermined -- and it wasn't. The content guys were afraid that they wouldn't be able to go after bad guys -- and they've been given ammunition. What we've got is an opinion that is balanced and middle-of-the-road. It leaves Sony's "substantial noninfringing use" standard alone (yes, the concurring Justices snipe back and forth about what that standard means, but that doesn't matter), it doesn't adopt any formless Aimster balancing test, and it says strongly that you can't impute intent to technology. A good day for innovation. And a good day for Congressional staff, who won't have to deal with some request for Induce legislation -- we're done.

Now, that's not to say that there aren't some clouds here for technology companies. If you've got a stated intent to help others infringe, and a bunch of "bad" ads, and lots of other evidence of culpable intent, and THEN someone writes to you and encourages you to adopt their filtering technology, and you don't -- well, then you might be liable for inducement. There are certainly ways that this opinion might spark litigation.

But for the moment, tech companies can breathe easy. Distribution of a general-purpose copying device, by itself, is simply not an infringing act. And that was the right decision. Happy summer vacation, Justices.

[Cross-posted to SCOTUSblog]

[I'm proud to have been part of the team that worked on an amicus brief arguing for the same middle ground adopted by the Court today in Grokster. The brief was filed by the Digital Media Association, Netcoalition, CDT, and the ITAA.]

Still waiting for the opinions.  A big day for the future of the internet.

FCC's victory in BrandX means that it will be pushing ahead with classifying IP-enabled services as "information services" over which it has jurisdiction for "social policies" purposes. 

And the content industry's victory in Grokster means that inducement is officially recognized as part of contributory infringement.  I'm hopeful that the test for inducement is straightforward enough that technology innovators have some certainty.

But we really need those opinions to say more.

In advertisements spanning the years between 1907 and 1958, the Bell System used emergencies as a key sales point to get people to buy telephones.  Much of the usefulness of the telephone, as advertised, was that it was there, that it was watching over you.  You weren't so much interacting as being guarded.  The telephone, that magnificent instrument, was silently keeping you safe. 

But it is in a dangerous crisis, when safety seems to hang upon a second, that the telephone is at its best. It is the instrument of emergencies, a sort of ubiquitous watchman. . . .  And it is at such moments, if ever, that the users of a telephone can appreciate its insurance value. No doubt, if a King Richard III were worsted on a modern battlefield, his instinctive cry would be, ``My Kingdom for a telephone!'

An advertisement from the 1910s has a drawing of a maiden in a nightdress nervously clutching her throat and looking anxiously out the windw.  The text reads:

When You Need a Neighbor – or a doctor or assistance of any sort at any time, a reliable telephone is a friend in need.It is a time-saver when time is most valuable; often a life-saver in illness – a property-saver in fire or theft..But you cannot get the full service, value and benefit of a telephone unless you have a reliable telephone – buy and use only Standard “Bell” Apparatus and Equipment.

From the 1930s, there's an ad showing a picture of a little blond girl, arms innocently flung out in sleep.  The narrative:

Sleep Soundly, Little Lady...Mother and Daddy are near and the telephone is always close by. It doesn’t go to sleep.  All through the night it stands guard over you and millions of other little girls and boys.

There's much more of this.  Fear sells.  More to the point, this idea of the telephone guarding you is fascinating.  You'd better get one, because you just ... might ... need it tonight.

The ties to the E911 controversy I've been focusing on are obvious.  An important part of joining the telephony network was gaining the ability to tell other people when you were in trouble. 

Here's the question:  when someone uses an online application that doesn't look like a phone or (only) act like a phone but that does use telephone numbers, do they think they're being guarded?

Maybe not.  Unless, of course, they're TOLD they're using a 'phone.'  

I can't resist telling you that the word "phony" implies that a thing so qualified has no more substance than a telephone talk with a supposititious friend.

While you look up "supposititious," I'm going to go buy another phone to watch over me. 

I've been reading about the history of telephony.  There are lots of buffs out there..

Here's an excellent scary (very short) movie about the revenge of the PSTN on VoIP systems.

And from a Bell-System-lauding 1910 history:

In 1896 there came a most revolutionary change in switchboards. All things were made new. Instead of individual batteries, one at each telephone, a large common battery was installed in the exchange itself. This meant better signalling and better talking. It reduced the cost of batteries and put them in charge of experts. It established uniformity. It introduced the federal idea into the mechanism of a telephone system. Best of all, it saved four seconds on every call. The first of these centralizing switchboards was put in place at Philadelphia; and other cities followed suit as fast as they could afford the expense of rebuilding. Since then, there have come some switchboards that are wholly automatic. Few of these have been put into use, for the reason that a switchboard, like a human body, must be semi-automatic only. To give the most efficient service, there will always need to be an expert to stand between it and the public.

 

Whoof.  I'm not doing THAT again any time soon.  In case anyone saw the Lehrer segment, please read this:  Although the show mentioned an affiliation with CDT, I want to make absolutely clear that I never speak for CDT on any issue.  I'm just a loose cannon policy fellow.  It's very unfortunate that I caused that affiliation to be mentioned. 

The whole remote-TV setup is extremely alienating.  You can't see anyone, and you are in a tiny freezing room.  There's a earphone in your ear that is just about to fall out.  I'm staying inside, writing law review articles, from now on.

Jeff Jarvis does this so gracefully, so I'll take a page from him: 

I'm scheduled to appear on CNN's Lou Dobbs Tonight tonight at some (very brief) point between 6 and 7pm ET.  And I will also appear tonight on the Lehrer NewsHour, as part of the first segment (right after the opening).  The topic is electronic privacy.

The New York Times, the Washington Post, CNN, AP, ABC News, and innumerable other outlets are reporting breathlessly that credit card numbers belonging to 40 million people "may have been exposed to fraud."

Why is this story is getting so much attention?

Look, I'm not in favor of identity fraud.  But as far as I can tell this particular breach doesn't raise the risk of true identity theft.  The card companies say that personally identifiable information (like SSN, address, etc.) wasn't stored in these exposed files.  And these kinds of breaches happen all the time.  The wheels of commerce continue to turn.  Harvard Business School continues to admit students.  The sun rises; the sun goes down; and if a US consumer has a false credit card charge, he/she can contest it and never lose more than $50.

In fact, my sense is that the card issuers are unbelievably good -- maybe too good -- at detecting fraudulent patterns of card usage.  After all, pattern detection led MasterCard to suspect its vendor of having a problem, according to this CNN story.  

And when I traveled to Africa in 2004, American Express promptly cancelled my card.  Why? Because I had charges coming from Africa.  And when I called to complain that my card number (memorized over 20 years of faithful use) had been cancelled, they said, "But we tried to call you."

Me:  "I didn't get the message.  I was in Africa."

Anyway, I wonder whether this story is getting so much play (warning, black helicopters pulsing overhead) because there's some deep legislative desire to have mandatory security standards for all internet transmissions/storage of sensitive information. After all, DOJ is rumored to be pushing for ISPs to keep their logfiles on file.  Maybe larger meddling is afoot.   

Or maybe 40 million is such a big number that editors figure it has to be meaningful.

 

As a law professor, my job is to write law review articles.  It takes a long time for one of these pieces to come into being.  Everyone else's articles are such things of beauty, and I want to do a good job and help the overall enterprise.  I enjoy the work a great deal.

But I have to say it was fun tonight to do something different -- to have a single rehearsal with this amazing group of players and know that tomorrow we'll play for an audience.

It's going to be good -- and it's only going to happen once.  No reprints, conferences, editorial suggestions, or power point presentations.

On Sunday I'll be back to law review production again.

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 hope I'm wrong.

It's time for the Susan Crawford blog to take a break.  I'll be back in a couple of weeks after a series of (mild, but offline) adventures.  Thanks for the emails and the comments.

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.