I've written in the past about the risks to as-yet-unborn inventions and applications posed by CALEA.

(Note:  Cheer up!  Conservatives should care about this issue.  It's all about right to life -- in the CALEA context, the right of new innovations to come into being without asking permission.  Can't we all just get along?)

I want to point out that the recently-issued CALEA Order has language that extends its application to absolutely everything.

Any application that is "capable of" connecting to the traditional telephone network is covered.  ("To be clear, a service offering is “interconnected VoIP” if it offers the capability for users to receive calls from and terminate calls to the PSTN; the offering is covered by CALEA for all VoIP communications, even those that do not involve the PSTN.")

Any network connected to either the PSTN or the Internet is covered.  ("To the extent . . . [that] private networks are interconnected with a public network, either the PSTN or the Internet, providers of the facilities that support the connection of the private network to a public network are subject to CALEA.")

See how broad this is?  The internet has been redefined as "a public network," and any VPN that touches it is potentially subject to law enforcement design.

The fundamental reading of the CALEA statute's exclusion of "information services" is wrong -- but all Congress has to do is fix that.  The breadth of this Commission's claim to power over applications and networks is breathtaking.

Who will have the courage to fight back?

There was a roundtable discussion this morning here in Manhattan that was, on its face, about the relationships between and among bloggers and journalism.  Several BigMedia moguls were there -- and it's easy to tell why and how they got to where they are.  They were curious, charming, thoughtful, and well-spoken.

Yet they seemed stuck -- particularly the print journalists. 

These are not slow, out-of-it captains of industry.  They'd probably like to figure out a way to run truly online businesses that are successful.  (Although they have a way of saying that they want to "use" or "leverage" bloggers that can make you feel a little nervous.)  But it's extraordinarily difficult for them to hire top techies and find ways to get new products, new ways of delivering knowledge, out the door.

The TV guys are much more comfortable with the future.  They have global networks that will be very hard to replicate, seemingly indestructible brands, and the visceral human attraction of moving faces and objects to keep them in business. 

The print guys are very proud of their priesthood, and the culture of journalism is just about the strongest professional bond I've ever seen.  The emotional energy that filled the room when the print guys started decrying the "potentially deadly" inaccuracy of bloggers was remarkable.  We Are The Truth, they seemed to think -- We Have Standards.  Those bloggers, they're just typing.  We do so much more.

That's the part -- the pride -- that made me worry about beloved print journalism.  It seemed like a hallmark of descent.  We were the best, we were the truest, and even though the blood is running thin and our chins are weaker and our shoulders are rounder, we come from the finest stock.  (Speaking of stock:  not a diverse group.)  I'm familiar with this kind of thinking -- I myself am a lawyer and a WASP, two groups that have priesthoods and enormous pride.  And are no longer what they used to be.

Everything is changing, the bloggers told the journalists. Play to your strengths in this new world.  Give us authentic voices, associative trails, membranes of stories, predictions of impact on the world, visualizations -- do all of that, and you'll survive.

But BigMedia, and particularly the print parts of it, are acknowledging that they are slow to change and stuck with enormous staffs and built-in distributor relationships (not to mention staggering newsprint costs).  I felt great sympathy for them, even as I struggled to understand their view of the world.

Of course, neither the bloggers nor the journalists will win in the end.  The computer will soon cease to be a technician and come into its own as an artist, showing us patterns of meaning based on all of our contributions.  It's evolving faster than we are.  BigMedia needs to get into the business of writing algorithms rather than news stories. 

That's a big change.  Under its surface, this well-dressed roundtable discussion (complete with waiters) was really about a future that none of us can hope to control. 

Someone said to me recently that he liked the music posts best.  So here's my latest viola adventure.

There's a place called the Baggot Inn on W. 3rd that has a bluegrass jam session every Wednesday night led by a guy who calls himself Sheriff Bob.  It's a scene.

In the back room of the bar on Wednesday nights, there are twenty or so people standing in a circle playing banjos, guitars, and a couple of other instruments.  They're playing LOUD.  Some of them play really really well. They've chosen a key, and a song, and they're off.  As they get to the next eight-bar section, there's a signal (ineffable, but firm) to the next person who's supposed to take off and play.

I went there a couple of weeks ago to show a friend of mine that I could play there too (he's been having a lot of fun playing there), and I plunked myself right down in a chair in the middle of the room.  There was a guy next to me playing the violin who kept saying, "Oh, I love the sound of the viola."  And every once in a while someone would signal to me and yell VIOLA and then I had to play.

But I don't know a thing about how to play bluegrass, and mostly all I could do was play long foghorn-like interludes (that's the viola for you).  At least they had the right notes in them.  The guys seemed pleased. 

It was great, it was loud, it was late, it was was steamy hot in that back room.  It was fun to be in the middle of all that synched sound. 

But, truthfully, I don't think the viola is a bluegrass instrument.  It's more of a humming kind of instrument.  Accompaniment.  Off-beats.  That's the viola for you.

Bob Shaw, Internet strategy and policy adviser at ITU's Strategy & Policy unit, ties together many strands in today's Washington Internet Daily [not available online, but a fine publication nonetheless].

He sees Barton-Dingell as an "Internet-era type regulation."  He sees the Television Sans Frontiers directive as the same kind of thing.  I'm confident that he sees ITU's NGN initiatives the same way. 

We're heading into a world in which network providers want more control over competitive services.  For those of us who are loath to encourage governments to get involved in network management, this is a difficult moment.  In a world without choices, what does it mean if no network manager wants to provide (or is allowed to provide) access to an open internet?  How can the market fix this problem if no market actors are interested in fixing it?

So for those of you who wonder why I'm concerned about networks blocking Skype (after all, why can't networks managers be free too?) here's my answer:  it's a difficult time.  Asking for nondiscrimination (simple rules) is better than giving up.

Bottom line:  There is no principled distinction between VoIP applications that are "capable" of connecting to the traditional telephone network and any other online application.  If VoIP has to be designed in advance to meet the requirements of law enforcement, including demands for standard forms of data and back doors of various kinds, all applications -- email, IM, everything -- will have to be designed this way.

A little review:  Under the federal wiretap statute, all electronic communications -- no matter whether they are in the form of faxes, emails, or VoIP calls -- can be intercepted legally by law enforcement if a wiretap order has been obtained.    

Under the 1994 CALEA, telecommunications providers --common carriers of telephone communications -- must provide certain specific capacities and capabilities to make wiretapping easier for law enforcement.  Congress specifically elected to leave out of CALEA's coverage "information services, such as electronic mail services, or on-line services, such as Compuserve, Prodigy, America On-line or Mead Data, or Internet service providers."  There's a good deal of legislative history making clear that CALEA's application was narrowed to telephone carriers in order for it to pass.

On Friday, FCC released its CALEA First Report and Order [warning, large pdf] covering broadband access providers and "interconnected VoIP" providers. 

Using what Comm'r Copps labels a "stretched" and "pushed very hard" interpretation of the CALEA statute (Comm'r Abernathy pleads for Congressional help because "some might not read the statute to permit [this] extension of CALEA"), the Commission has taken a statute that excluded information services and read it to include them -- without any empirical demonstration that there is a need to do this.  The implications of this quasi-legislative move are enormous, and litigation over the Commission's authority to trump Congress is more than likely.

The Commission has found a couple of ways to avoid the "information services" exclusion.  If this document could talk, it might say (I'm providing the words):

First.  "It doesn't matter whether something is an information service, even though we've fought very very hard in other contexts to keep things in the category of information service, because CALEA should cover things that are 'substantial replacements' for traditional telephone service. We're not going to require empirical evidence that anything is supplanting telephone service -- instead, we're going to look at the traditional functions of telephone service and see whether they're being provided by something new.  Here, broadband access is functionally just like dial-up access that used to be provided by local telephone companies.  And VoIP services that are capable of interconnection with the telephone network are just like traditional telephone service.  Packet switching and circuit switching are just the same, functionally, so by using the word 'switch' Congress must have meant to include transmission to and over the Internet.  So both broadband access and interconnected VoIP are covered under CALEA."

Second.  "Even if broadband access and interconnected VoIP aren't substantial replacements for traditional telephones, they're still 'telecommunications carriers' for CALEA purposes because 'information services' should be read more narrowly under CALEA than it is under the Telecommunications Act.  These two sets of terms -- 'telecommunications carriers" and 'information services' -- are mutually exclusive  Both broadband access and and interconnected VoIP services are providing switching and transmission services to the public, so they're covered by CALEA."

This order is only about coverage. It doesn't say anything about how CALEA's mandates as to design of services will be applied to broadband or VoIP providers.  The Commission's plan is that entities that know they're covered by CALEA will start thinking that way now, and in 18 months they'll be in full compliance with whatever CALEA requires.

Scope -- the idea is that CALEA will apply to all forms of broadband access, whether now known or later developed.  So broadband over power line and satellite and other access notions are covered ahead of time.  (Broadband is very broadly defined to cover any kind of access any of these actors might be providing.)  And, as the Commission announced in an accompanying Further Notice, it will be thinking about whether other VoIP services should be subject to CALEA.  (It is also, of course, thinking about whether other VoIP services should be subject to E911 obligations.)

Level playing field.  The Commission (somewhat disingenuously) says that the application of CALEA won't distort competition in any way, because all VoIP and access providers will have to do it.  "They're all saying they're complying with law enforcement already," the Commission points out. 

But, once again, the field isn't level when it includes large incumbent telephone and cable companies who are already working through CALEA issues for their own offerings.  New entrants will be crushed by having to ask permission and await responses from law enforcement.  What's required will remain negotiable.

The permission culture continues.  Congress will have to grapple with this issue once the inevitable lawsuit is resolved.  There must be better ways to get law enforcement the data it needs without also giving it veto power over the design of online applications.

References to terrorism abound here.  To oppose this Order is to be on the side of criminals.  As in the E911 context, the level of implied rhetoric is very high.  If you're against this, you must want to kill people.

The FCC's recently-issued "Policy Statement" is a thing of beauty.  It's like a bonsai garden, revealing in its miniature structure timeless themes of humanity and despair. 

The substance of the statement hasn't changed since FCC first anounced it on August 5.  It's only three pages long, but it has fifteen footnotes.  Watch what the Commission does.

Subvert.  First, the Commission points to Section 230 of the 1996 Act for authority as it extols the glories of the internet.  But Section 230's findings include the following statement of U.S. policy:

(b) POLICY.  It is the policy of the United States . . . (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation . . .

The Commission ignores that part, because it is well on the way to regulating Internet services.  

Bootstrap.  The FCC is delighted with dicta in BrandX that it believes gives it authority to do anything it wants to under Title I of the 1996 Act.  Next, it takes the opportunity of this Policy Statement to quote the dictum ("has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction to regulate interstate and foreign communications") on which it will be leaning very heavily in the months and years to come.

Gut.  Finally, the very last footnote says, "The principles we adopt are subject to reasonable network management." 

These principles aren't a policy statement.  They're not enforceable.  They're trumped by any network provider's Terms of Use.  They're nothing -- but they have given the Commission a chance to subvert and bootstrap.

Next -- CALEA.  The order comes in at 59 pages.

Rumor has it that the RIAA and the MPAA are joining forces to make sure that the FCC has statutory authorization to impose technology mandates covering both digital audio and video.

Look how broad this draft language is:

The Federal Communications Commission --

(a) has authority to adopt such regulations governing digital audio broadcast transmissions and digital audio receiving devices that are appropriate to control the unauthorized copying and redistribution of digital audio content by or over digital reception devices, related equipment, and digital networks, including regulations governing permissible copying and redistribution of such audio content....

That covers all possible home copying and transmission, all possible consumer devices, and all possible online audio services.  The DTV provision will be just as broad.

Everything you do with digital content will need regulatory permission.

What's really going on here is that the content industry and the network providers are joining forces to go backwards in time.  They're working on re-creating the era before CarterPhone (no unapproved devices!) and the 1996 Act.  They're working on reinstantiating the physical borders and boundaries that used to serve them so well before the internet came along.

The collective goal of these powerful actors:  Apartheid.  Technological separateness.  Online audio and video services will be cleanly categorized and billable.  Only permitted devices will be allowed to interconnect.  There will be no required interconnection to unauthorized services or devices.

The arguments of both content and network providers are the same:  "This is our property.  We own it.  We will have no incentives to produce more of it -- more broadband access or more movies -- unless our rights are protected."

This is the key battle.  As interesting as muni wireless is, it's a distraction from this central dispute over the future of the digital era.  (In fact, I'm even wondering whether ex-MPAA Jon Leibowitz's fiery statements about muni wireless yesterday were calculated to draw more attention to this briar patch.)

Surely it's too late to go backwards.

Today I'm talking at the Berkman Center (David Weinberger did a post here) and at the MIT Media Lab about OneWebDay. 

What's OneWebDay?

The internet has revolutionized the lives of people all around the world, who treasure the interaction and cultural richness they find online.  Because the internet is made up of machines, people sometimes think of it in a mechanical way – and, often, as a machine that needs to be “fixed.”   But the internet is as interesting and diverse as society itself.  It is also fragile.

Just as we have an Earth Day to celebrate and focus on the health of the Earth, we need a day to celebrate the health and diversity of the internet and our interactions online.  OneWebDay, planned for Sept. 22 of every year, will provide a chance to do that.

On Earth Day (April 22 of every year), hundreds of thousands of individual projects happen, uncoordinated by any central office.  People do all kinds of things on Earth Day, from planting trees to holding educational summits.  OneWebDay will be the same kind of broadly-planned day.  Just like Earth Day was encouraged by a picture of the Earth from space (a blue marble floating alone in a black void), a key element of OneWebDay will be a visualization of the interconnected web available for anyone to use.

But OneWebDay is not just about pictures.  It’s about action.  We’ll be encouraging global efforts to wire villages, connect schools, put up more hotspots, build collective online artworks, write and perform collective online music, show “days on the web,” and many other barn-raising and creative and connecting projects.  We will have a major offline component, with people telling stories about how the web has changed their lives, and showing each other special OneWebDay artifacts.  There’s no limit to what will happen on OneWebDay every year.

How is this going to happen?  Somone has to lead, at least initially, until the day has a life of its own.  I’m meeting with institutions and companies and the entities they point me to.  I’m looking for contacts at each institution to lead volunteer efforts to create infrastructure and spur projects.  Right away, I need help building a web resource at onewebday.org that will provide an easy way to attract, collect, and display information about OneWebDay projects.  Some of these projects, like oral histories of web influence on individual lives, should start right now.  I need help building international networks of institutions to work together on OneWebDay, once the architecture of onewebday.org is set.  And I want to get the word out to people all around the world.  It took seven years to get Earth Day going, and we have a year until OneWebDay.

There have been NetDays in the US and in other countries, and I am planning to coordinate with NetDay organizers.  I need help reaching these people.  The NetDay mission, which focuses on wiring up institutions, is very close to what OneWebDay is.  OneWebDay is also about celebrating individual human interactivity and creativity online – recognizing that the web is not (just) television, but also a human language; that the internet is not (just) machines, but also society.  People light up when we talk about OneWebDay, and my goal is to help that energy become a memorable day each year.

Email for me is scrawford at scrawford dot net. 

Get interested in GooglePrint.  It's one of the best plans that Google has, and it needs to happen.  No one is going to bring more books to the attention of the world -- and help more authors -- than Google.  Here are all the reasons that we should applaud Google for going forward with GooglePrint, and all the reasons why Google will prevail in the (sadly) recently-filed lawsuit.

1.  Google had a great idea. Let's make the books in the libraries of Harvard, Stanford, Oxford, and Michigan searchable.  (Note -- the idea wasn't "let's give the books away."  Not at all.  The point is to make them searchable, not takeable.)  There are all these wonderful books that these great libraries want to interest people in, but they're up flights of stairs, on dusty shelves, and in darkness.  Let's make them searchable so that people know they're out there. 

2.  The libraries have a great public mission: to bring knowledge to people.  (I love libraries.  I especially love reading rooms.)  But the libraries don't have the money or the resources to make their texts searchable.  Google, as it happens, does.  Google is great at manipulating enormous amounts of information in a user-friendly way.  If someone else were doing this, that would be great.  Sometimes libraries do make entire works available online -- the New York Public Library made hundreds of thousands of public domain images available for public searching.  But the great libraries of Harvard and Stanford and Michigan and Oxford looked over Google's plan to make snippets available and thought it fit their public mission.

3.  Hear that word, "snippets"?  That's all that Google proposes to do.  In response to search queries, people will be able to browse the full text of public domain materials (material no longer protected by copyright).  But when it comes to books that ARE still covered by copyright, users will only be able to see a few sentences surrounding the search term.  That's a key fact that people seem to be missing.  You won't get the whole book.  In fact, you won't even get a whole page (unless the holder of copyright has affirmatively allowed Google to show entire pages).  And you'll only get three results for any given book's use of a particular term.

4.  Sure, I guess, people could carefully search and search for hours, and attempt to build up an entire book, but that's both painful and silly.  And unavoidable.  Google has created a system that has checks in place that these great libraries thought were fine.  I think they're fine too.  The aim, goal, purpose, thrust, point of the program is to reveal resources that might have something to do with the search term you're interested in.  (Try GoogleScholar -- it's pretty neat.)  Then you'll go and get the whole book from your local library if it looks really relevant. And your library will be delighted to help you!

5.  Everyone does research online.  What author wouldn't want to be part of the pool that we look to for research information?  Who wouldn't want to be noticed?

Here's what a screenshot looks like from the libraries project:

See?  That's all you get.

6.  When Google first heard last month that some publishers were unhappy about GooglePrint, they stopped scanning books and said they wouldn't scan any more until November.  And Google said that if a publisher told them that they didn't want particular books to be part of the library project, they'd honor these requests.

7.  It's impossible for Google to say to all publishers (what a big world!) "tell us which books you WANT us to scan, and we'll do it."  (Imagine running a search engine on this basis.) So Google is doing the next best possible thing -- giving people an easy way to opt out of the project.

8. Now, some authors are upset, and they have sued.  They're saying they're not upset about the snippets.  They're saying they're upset about the complete scanned copy that Google has made in order to make the snippets available.  These complete scanned copies aren't public.  Google has to make these copies in order to make the snippets happen.

9.  All computers do is copy.  Copyright law has this idea of strict liability -- no matter what your intent is, if you make a copy without authorization, you're an infringer.  So computers are natural-born automatic infringers.  Copyright law and computers are always running into conflict -- we really need to rewrite copyright law.  But even without rewriting copyright law, what Google plans to do is lawful.

10. What makes Google not an infringer is the affirmative defense of fair use.  Google says, in effect, "yes, a copy is an infringement.  But it's justified."  There is no way that Google can make the Great Library of Alexandria open its doors to curious outsiders without (initially) making a private, unsold copy.

11.  Under the Sec. 107 fair use factors, there's a well-known 2003 9th Circuit case called Kelly v. Arriba Soft that fits the Google facts extremely well. Arriba made thumbnail (small) versions of online pictures available in response to search requests.  Like Google, Arriba had to make copies of the original material in order to do this.  And the 9th Circuit found that Arriba's use was privileged as a fair use.

12.  Like Arriba, Google is not trying to sell copies of these original books.  Google, like Arriba, is providing a useful tool.  Google, like Arriba, is copying entire books in order to make the library project happen, but it has to do that in order for its search engine to function.  In fact, Arriba was making a tiny version of the whole work available -- Google isn't doing that.  It's only making a tiny portion of the whole work available.  In the course of doing that, it has to make an intermediate copy -- like many other transformative processes, this one starts with a chunky first step. 

13.  The authors who are suing are claiming that they'd like to license their works for online searching themselves -- and they're free to do that.  They can simply ask Google not to include them in Google's pool.  Their claim is that that's too much of a burden.  Phooey.  Google's inclusion of their books in the searchable pool can only help these authors, not hurt them.

14.  What Google plans to do with books is worth cheering for.  Sure, they're ambitious.  Sure, they're rich.  But I don't think this project is aimed at supplanting purchases of books.  Far from it -- these dusty tomes will see the light of the digital age because of the Google scanners.  People are buying more and more books these days because of Amazon, and I see no reason why that effect won't be amplified by having Google make searchable texts available.

=====

I know it's fashionable to be dubitante about Google these days, but I refuse to do it with respect to this program.  I love books, I love libraries, and Google is serving the best interests of both with snippets framed by clear (lovely, really) interfaces.  Go, Google. 

Drumbeat. Drumbeat.

Verso announces ways they want to help networks filter out Skype (my school has already done this to me quite successfully).

Michael Geist lets us know that Telus (Canadian backbone provider) has blocked more than a million people from seeing a Telecommunications Workers Union site.

We still haven't seen the FCC order confirming that network providers can do anything they want to in the course of their efforts to monetize the internet.  But it's coming.

On Friday, Thomas Friedman sent in another column from Singapore.  The column begins with the words "Singapore is a country that takes the Internet seriously," and ends with "...American parents had better understand that the people who are eating their kids' lunch in math are not resting on their laurels." 

In between, Friedman writes about math and science education in Singapore, and specifically an online math teaching program called HeyMath whose "library of animated online lessons, interactive activities and assessment modules" helps both teachers and students.

Friedman's The World Is Flat also focused on how the internet is changing the world, and had the same implicit message as his recent column from Singapore:  America is falling farther and farther behind, in part because it doesn't take the internet seriously.

How would we take the internet seriously?  We'd understand that the nondiscriminatory, layered model of internet communications has made enormous economic growth possible, and we'd do anything we could to stop bills like Barton-Dingell from becoming law.  We'd celebrate the power and innovation unleashed by the internet rather than (or at least in addition to) condemning the spam and spyware that travel online.  And we'd subsidize builders of broadband networks in exchange for agreements not to engage in higher-level packet meddling.

The internet takes us very seriously.  It reflects the best (and, sometimes, worst) of humanity, and it keeps creating better and more interesting metainformation about society.  Surely this should be a two-way street.

[Thanks to GreaterDemocracy blog]

How would Barton-Dingell work for mesh broadband networks? 

Clive Thompson has a nice piece in tomorrow's Times Magazine about wifi meshes, and how they might be awfully helpful in emergencies.  They might be awfully helpful for basic connectivity too.

The basic idea behind a mesh network is that cheap small devices are smart enough to automatically detect access points and other cheap small devices.  Together, these cheap small devices can form an ad hoc wireless network, using unlicensed spectrum.  "Devices" and "routing" become synonymous, because your network is self-configured.  Any open wireless point can serve as a beginning for a mesh network. 

We can assume that local bandwidth will continue to grow, and that open places will exist for wireless access.  Mesh networks capable of dynamically updating and "healing" themselves -- while providing high-speed internet access for free -- are inevitable. 

Under Barton-Dingell, a node in a mesh network (anyone participating in that network) would be categorized as a "BITS Provider":

1.  A "provider" is anyone who offers to provide BITS.

2.  "BITS" are packet-switched services that are offered to the public (as mesh networks certainly are), "with or without a fee."  So free networks fit into this.

3.  A BITS has to be able to provide to "subscribers" the ability to send and receive packetized information.  Yup.

4.  A "subscriber" is "any person who consumes goods or services" even if the services are free.  Yup. 

So the first step is that in order to be legal, the mesh network would have to apply to be a BITS.  (Who applies on behalf of a headless, ad hoc, ever-changing cooperative arrangement?  It's anyone's guess.)

And here's the kicker:  The FCC could say You Can't Be A BITS.  The headless, ad-hoc mesh could fail to provide information that the Commission thinks it needs (no limitations in the bill as to what that information is).  Or -- even more likely -- the Commission could simply determine that the the "BITS provider’s offering of BITS would harm consumers."  End of story. 

Even if the mesh somehow got through this process (which it wouldn't), being a BITS is hard work.  Many of the old Title II common carrier obligations have been moved over to BITS.  The FCC will be mandating all kinds of consumer protection requirements (and what are the "terms of service" for a mesh?), access to the disabled, privacy terms -- a thick regulatory web.

A mesh, if it could talk, would say, "I'm going over to the darknet.  They'll never approve of me."  If Barton-Dingell is the law of the land, ad hoc won't be permitted.

Every day I look forward to reading a bit more of The Singularity Is Near.

Today's excerpt:

We will continue to have human bodies, but they will become morphable projections of our intelligence.  In other words, . . . we will be able to create and re-create different bodies at will.  However achieved, will such fundamental shifts enable us to live forever?  The answer depends on what we mean by "living" and "dying."  Consider what we do today with our personal computer files.  When we change from an older computer to a newer one, we don't throw all our files away. . . . . Ultimately software-based humans will be vastly extended beyond the limitations of humans as we know them today.  They will live out on the Web. . . .

Kurzweil doesn't believe that death is inevitable or desirable.  Chew on that for a while.  Maybe we believe that death is a good idea because the only way of existence we've known always ends in death -- it's the ultimate is-ism argument. 

I'm just beginning to digest Barton-Dingell [warning, large PDF].  My initial reaction is that although there are some positive signs in the bill -- elements of non-discrimination and encouragement of municipal broadband -- the bill's vision of the internet is made up of cleanly-categorized services provided by large registered entities whose activities are closely watched by the FCC.

The bill uses the acronyms BIT and BITS to mean "broadband Internet transmission" and "broadband Internet transmission service" (very clever -- no one ever gets to refer to bits again in a simple technical sense).  A "broadband Internet transmission service" is defined, in turn, as "a packet-switched service that is offered to the public . .  with or without a fee" and is "transmitted in a packet-based protocol" and "provides to subscribers the ability to send and receive packetized information."

At first I thought that a BITS was any online application.  The definition includes all the machines and functionalities and everything else connected to a BITS ("any features, functions, and capabilities, as well as any associated packetized facilities, network equipment, and electronics, used to transmit or route packetized information").  But that can't be right -- they must really mean providers of broadband access to the internet. 

What happens to BITS under the bill?

Well, the first step is to register.  All service providers have to sign up with the FCC and with all the states.  Then they're subject to interconnection and nondiscrimination obligations (but only with respect to "lawful" services), with exceptions for special service plans, video services, protection of their networks, and the need to provide quality of service guarantees (many many bodies buried there).

Same approach for VoIP services.  This time, Skype is clearly covered -- the bill defines VoIP to include free services that allow calls to be made to the PSTN (or to be received).  Oddly, VoIP doesn't include cable services.  Again, the first step is to register and then be subject to a multitude of obligations.  It's striking that one of those obligations is to exchange traffic with other VoIP providers. Plus required number portability.  More sniping at Skype.  Lots of E911 requirements, and a quick hard look at universal service before it is applied to VOIP.

Same approach for broadband video services.  No matter what size they are, no matter what they're up to, they'll need to register.  A bunch of former cable obligations will be applied to broadband video (including closed captioning).

The bill includes a laundry list of FTC-like consumer protection rulemakings that the FCC will go through, including this doozy:

(a) NATIONAL STANDARDS REQUIRED.—The Commission shall by rule establish national consumer protection standards with respect to BITS, VOIP services, and broadband video services, individually or collectively. Such standards shall—

10) prohibit the use of any equipment used for the provision of BITS, VOIP services, and broadband video services for obscene or indecent communication made—

(A) with the intent to annoy, abuse, threaten, or harass another person; or

(B) knowing that that the recipient is under 18 years of age

Sure, we've been litigating over this for years, but now the FCC will be in charge of rules about using computers to annoy people with legal indecent materials.

Plus many provisions about privacy and advertising.

At first blush, this bill is about guaranteeing sources of revenue for network providers.  They'll have control over video packages and VOIP services.  All independent VOIP providers will go out of business, crushed by universal service, disability access, and E911 requirements.  Independent video offerings won't survive, because there's no requirement of nondiscrimination with respect to them.  And the FCC will become the internet consumer protection agency.

Lots of work to do.

Yesterday's Public Advocate election in NYC should be remembered.  It's important because of what didn't happen.  Andrew Raseij ran on a platform of "wireless for all."  Tom Friedman raved, the blogosphere went into paroxysms of joy.  One of us!  Someone with a clue was running for office!  Someone who knew all about tagging and Technorati and Flickr was going for mainstream appeal!

In the end, Raseij got only 5% of the vote.

How do we react to this unbelievable event? If we have an ounce of humility left, we realize that the clueful are out of touch.  People don't care (enough) about progressive wireless-based platforms.  People riding on the subway just want to get home and aren't thinking about the collective conversation.  The most transformative of transformations, the electronic excitement of our age, has not touched the hearts and minds of the voting public.

This is bad news for our collective online future.  If no one cares about openness, about connectedness, about interaction, it can all be quietly taken away. 

We have some choices to make.  We could keep going to conferences (boy, are there a lot of conferences).  We could keep recognizing the coolest of the cool A-list blogcasters, and we could really get into the people's video.  We could moan about how Skype doesn't have open APIs.

Or -- we could start working on true grassroots appreciation of the open internet and all it makes possible.  That's what I want to do. I supported Raseij and his campaign, and I bet his team has learned a lot about electioneering.

This election should be remembered.  The blogosphere couldn't sweep a new Public Advocate into office (trust me, it's a pretty obscure position), and we're not making progress on the Hill or at the FCC.  It's time to make a big public deal out of access to the open internet. 

National Journal's Insider Update reports today that Amazon, eBay, Google, Yahoo!, and others are working on inserting "net neutrality" provisions into any updated Telecommunications Act.

The principles preliminarily adopted by the FCC in August didn't give us much reason to hope that incumbent telcos and cablecos would ever allow true "net neutrality" to be written into law.  True net neutrality would simply say:  don't discriminate against any application; allow any device to attach to your network; disclose upload/download speeds and the scope of the "internet" to which you're providing access; don't evade any of the foregoing principles through your EULA.  No caveats, no hedging, no surprises.

(By the way, where are the many orders and final principles promised us on that hectic early August day?  Is it possible that the Commission is worrying about its legal arguments?)

The key problem, as the National Journal article points out, is that in order to require "net neutrality" you have to make explicit rules about bit carriage by private networks.  From the telcos' perspective, "net neutrality" is "You can't put the kind of radio you want in the car you're building.  You have to allow any kind of radio to be put into that car."

Sen. Sununu, reportedly the most clued-in Senator we have, is dubitante. He's been convinced that people won't use networks that discriminate.  I'm not so sure that's true, only because the choices of access providers are so few and consumers' expectations are so easily dampened.  It's hard to vote with your feet when there's nowhere to go.

It's a hard problem.  Asking for statutory "net neutrality" means that we'll end up with language in some queasy middle of the issue.  It puts the Commission in the position of arbiter of non-discrimination.  And it doesn't fit with the overall deregulatory, pro-competition stance of the current Congress.  On a meta level, the compromises required to squeeze "net neutrality" into words won't fit the idea of the original open internet.

Not having statutory "net neutrality" puts all higher-level net functions at the mercy of network providers who have every incentive to monetize every transaction that uses their infrastructure.

Can't we be bolder?  Can't we change the facts on the ground? Why are we stuck with only these variables?  Why can't we treat internet access like a subsidized utility?  If that's a bad idea, could discussing it lead to better ideas?

=====

As I walked by my polling place this evening, a guy tried to hand me a leaflet.  I waved him off (politely), saying I'd already voted.  He said:  "You could use it as a coaster or something."  He'd had a long day.  I assured him that I had voted for the leafletted person -- we cheered -- I went on.

In the new world, says the Prophet of Boom, what's a library?  What's a classroom?  What's a newspaper? 

Jeff Jarvis is carrying out plans to join the new CUNY school of journalism.  He's ideally suited to help us figure out what a newspaper is in this new age, and to help train the young journalists who will make these new newspapers come alive.  And he's going to webcast his classes!  Congratulations to Jeff on his eminently sensible move.  We're all lucky that he left BigMedia. 

It's a big question that Jeff is going to be working on.  I love The Times.  The day after John Roberts was nominated they published an enormous, careful, detailed story about his background.  Just amazing.  Their coverage of the Discovery launch (including the run-up to it) was great.  More stories than I can believe are coming out every day about the Katrina aftermath.  It's a truly great institution.  But how can it survive this new era of fractured, personalized, man-on-the-street news-blogging?  Even if it succeeds in changing itself to meet its changed electronic context, will other, smaller newspapers be able to make the transition? 

Jeff is lining up to help train people to do good journalistic work in this new age, and I honor him for it.  He says he wants to work on the "future of media."  I wonder how many of his students will end up working for themselves. 

Every day I read news stories and blog posts about fights over VoIP and plans to create intelligent networks that will trap and trace our every communication.  Every day I write about how dreadful it would be if we couldn't use the open internet in the way we wanted to use it.

I need to confess that this set of issues has taken on new meaning for me:  I can't use GoogleTalk at work, and every other email I send doesn't go through.  Why, why? 

I suspect the university just heard about VoIP and decided to block it as a Dangerous Thing.  And I think that they've decided that anyone not authenticated to their mail server must be a Dangerous Spammer.

Sure, GoogleTalk doesn't have any features -- yet.  But it will someday, and I want to be there.  I'm frustrated that I can't experiment with it and build bristling buddy lists.  Sorry -- "friends lists."  I'm also getting very tired of re-sending email messages, hoping to sneak through the walls.

Oh, and the university locked the door of the coffee-machine room today too. 

Maybe I should stay home from now on. My place can't be described as palatial, but the wireless connection always works, I can send email messages all day long, and no one keeps me from using new applications.  And I can drink coffee. 

The real enemies of the net are not just yearnings for control on the part of BigNetworks, but also smug, squelching, and self-satisfied attitudes on both sides of the divide.

If you talk to an engineer and say "I'm worried about the regulatory trend in Washington," he'll say, "Where?  We'll just route around whatever they do.  They're irrelevant.  We've got some slick new open source telephony things coming out.  They'll never be able to stop us."  And that's the end of the conversation.

If you talk to a regulatory maximalist and say "I'm worried about cutting ourselves off from the development of new kinds of interactions and services that will be very useful to mankind," he'll say, "What?  The internet isn't working very well.  We've got spam and spyware and terrorists -- right and left.  It clearly has to be fixed for your safety. Why should the internet be any different from any other form of communications?"  And that's the end of the conversation.

Neither side is considering the amplifying, complex, non-linear events that follow from either too much randomness or too much rigidity.  From the regulatory maximalist point of view, we've got a completely random situation that requires amelioration; from the free-to-be technician's point of view, rigidity is simply impossible.  Neither side is right. 

The smugness is striking.  We need to inject some humility and some hard facts into the discussion (to the extent there is a discusssion -- which is another problem).  We need to solve the problems of law enforcement and emergency services and funding universal service without crippling the open internet.  This takes work.

There is a middle ground.  It's not (quite) impossible to imagine a better way forward.

In the Television Without Frontiers setting, Yahoo! filed some very thoughtful comments.  They noted that taking broadcast regulations from a 1980s context (characterized by spectrum scarcity and absence of user control) and applying them wholesale to internet audiovisual content would make no sense.  Broadcast TV is not the same as IP TV, and even IP TV will take on myriad forms in the coming years:

[I]n a very short time, IP TV will bear no resemblance to today’s broadcast world. . . . It will be a world of on-demand, streamed, live, pre-recorded and citizen-created services mixed into a melange of interactive information, education and entertainment. At the centre will be the consumer (not the broadcaster),  controlling his/her choice of content, the timing, format and so on, and also having the ability to restrict access to certain content for themselves and other family members. Already, Internet users have access to a host of filtering, parental control and other tools enabling them to decide what is appropriate viewing for them and their families. It is not unreasonable to expect similar market-driven solutions to be provided for IP TV.

That's not smug.  That's reasonable and forward-looking.  We need to get many more filings like Yahoo!'s in front of policymakers around the world.   

Two places where more light needs to shine:

1.  The ITU "next generation network" standards process.  ITU hosts a resource page here.  It looks as if telcos from around the world want to take the billing/tracing standards used by mobile carriers and graft them onto the internet.  This would allow them to know exactly what everyone is doing on their networks, and to charge for it. 

Standards aren't neutral.  The original internet standards had a definite bias towards openness, non-discrimination, and simplicity.  The ITU project is aimed at making the internet into (essentially) a circuit-switched operation, in which central control is far easier.  This is appealing to many powerful entities around the world, including law enforcement authorities. There are constant NGN-oriented meetings, and steady progress is being made.  Unless we pay attention -- actively -- the original internet standards won't always be with us. 

What can you do?  You can ask the techies you know to translate for you, and to help persuade internet advocacy organizations that are friendly to the original standards to get actively involved in the ITU process.

2.  TV Without Frontiers.  Just as the ITU wants to take mobile rules and stick them on the internet, the European Commission wants to take rules about broadcast TV (protection of minors, for example) and apply them to internet content.  This is a hopelessly pernicious idea.

What can you do?  If you work for a large company that has something to do with internet content, you can take a moment to flip through a few comments, understand why this is a bad move (I'll do this in summary tomorrow -- about to get on a train here), and publicize the substantial retrograde inversion that this step represents. 

When a clown shows up in a movie accompanied by slow, gently tinkling circus music, you know someone is about to get killed.  There's something about cheerful face paint that just lends itself to the horror genre.

Online companies with cheerful logos might want to think about this. 

What if the bite out of the apple is transformed into a cruel jaw?  What if the leaf-stem becomes an all-seeing eye?

What if the wackiness of the Yahoo! logo someday looks more sinister -- truly unbalanced, yearning for world domination?

And what if it turns out that we're all actually working for Google without knowing it?  What will those colors look like then? 

[Cue tinkling circus music] 

Wal-Mart killed Kmart with logistics.  Their control over their supply chain is second to none.  They control any market they get into.  They're the largest company in the U.S., the biggest political donor, and the largest importer from China.

They've got some PR problems.  They cut costs, lock up workers at night, don't pay enough, don't provide health insurance, don't promote women -- or so people say.

Before Aaron Broussard of Jefferson Parish in Louisiana broke down in tears on Meet The Press this past weekend, he said that Wal-Mart trucks carrying water had been turned away by FEMA.  

Maybe Wal-Mart could have done it better.  To rescue their image, they could have rescued hundreds of thousands of people on the Gulf Coast and in New Orleans.  They could have provided the necessities that make people feel like humans.  They could have used their unbelievable logistical know-how to move things along.

And we wouldn't be in this mess.

[how can Gilligan be dead?]

Excerpted from Kurzweil's The Singularity Is Near, at 297:

Friend of Futurist Bacteria, 2 Billion B.C.: So tell me again about these ideas you have about the future.

Futurist Bacteria, 2 Billion B.C.:  Well, I see bacteria getting together into societies, with the whole band of cells basically acting like one big complicated organism with greatly enhanced capabilities.

Friend:  What gives you that idea?

Bacteria:  Well already, some of our fellow Daptobacters have gone inside other larger bacteria to form a little duo.  It's inevitable that our fellow cells will band together so that each cell can specialize its function.  As it is now, we each have to do everything by ourselves:  find food, digest it, excrete by-products.

Friend:  And then what?

Bacteria:  All these cells will develop ways of communicating with one another that go beyond just the swapping of chemical gradients that you and I can do.

. . .

Friend:  Now, wait a second.  Sounds like we'll lose our basic bacteriumity.

Bacteria:  Oh, but there will be no loss. . . It will be a great step forward.  It's our destiny as bacteria.  And, anyway, there will still be little bacteria like us floating around.. . .

Friend:  You always were an optimist.

====

Take a look at the Primo Post Human.

The Flickr Flap has reached the BBC.  The Flickr community feels itself to be real, and some of its members resent having to use [free] Yahoo! IDs.  They're Flickr members, not Yahoo! corporate shills. 

The real problem, and the reason for the flap, is an essential mistrust of Yahoo!.  Yahoo! bought Flickr and owns the servers that house it.  So far, zip has happened to change Flickr's operations because of the Yahoo! purchase.  It would just make it easier to coordinate across the entire Yahoo! network (Yahoo! says) if everyone was logging in using the same system.

Flickr users might be saying:  "Yahoo! acts well now, but how can anyone predict how they will act in the future?  If Yahoo! is a content provider, won't they be in the business of somehow packaging and selling our content?" 

Google is having similar trust issues.  Sure, we like Google now, but why should we trust the Google of five years from now with such deeply detailed information about our online lives?

Both Google and Yahoo! have to persuade online communities of two key things:  (1) "they" are "us" -- they understand the value of user-generated online environments, and wouldn't try to sell them back to us, and (2) their DNA is already in place, is trustworthy, and is held dear from the top to the bottom of the company.  It's a hard problem.  Avoiding missteps is a crucial part of solving it, but it's hard to predict in advance which particular moves will be viewed as missteps. 

All trust is created through repeat interactions that involve some risks on both sides.  Maybe the Flickr Flap should be seen as a step that involves some risk.  If it goes the right way for Flickr, Yahoo! should be trusted just that much more.  If it doesn't, the Flickr community can make noise and many people will be listening.  Dropping out of Flickr in a symbolic "mass suicide" seems shortsighted.

Tulane will not have a fall semester.  What happens when a school can't meet? 

The solution for the moment is to have schools that take in the refugees (and there are many schools doing this) not charge tuition if the student has paid Tulane for the term.  The law schools are being extremely generous, offering housing, books, and help of all kinds.

Even before Tulane put up a white flag tonight, its law students were working away at finding places for themselves.  Interestingly, despite the obvious problems in holding classes at Tulane the Tulane LS dean was reluctant to release 1Ls and 2Ls to other schools.  (This idea of "releasing" students for visits at other schools was new to me, but I suppose the idea is that you need permission to visit.)  The interests of the students (very focused at getting on with their schooling) and the administration (very focused on figuring out how to keep the school afloat -- so to speak) were not aligned.

As of tonight it's clear that Tulane's law students will all be at other schools for the term.  What happens to Tulane?  It has a blog and a website, thanks to Eric Muller.  Stetson and Georgia State are offering an asychronous web course in international criminal law to Tulane students, thanks to Ellen Podgor.

For the next term, it might be prudent for Tulane to take its online presence very seriously.  If there are online Tulane courses with Tulane students who are physically at other schools, the school can retain its coherence as an institution.  The faculty can meet from all over the country.  The law review can put out its editions. Everything can go on.  Online.

It's a true test of the virtual law school.

This is a plug for a workshop that I am co-chairing with the estimable Ren Reynolds on Friday, Oct. 7 as part of State of Play III ("Social Revolutions").  The subject of the workshop is digital identity.  Here's the description:

As we move from the two-dimensional, text-based “web world” to more interactive and immersive social cyberspaces designed for human interaction, we must address how we will promote and protect the development of robust, persistent online identity. Social cooperation in any medium depends on trust. We need signals of commitment to support cooperative behavior. While, previously, cyberspace undermined our ability to create persistent, reliable and coherent measures of identity across a distance, the technology of virtual worlds holds out the promise for creating meaningful identity online. This workshop asks how we can use the interfaces and tools of virtual worlds to strengthen online identity and thereby produce social trust in cyberspace. We can create vivid, visual representations of personal identity independent of our offline attributes and, at the same time we can create reputations independent of social identity in real space. The aim of this session is to develop a dynamic, player-managed social reputation system(s) for the metaverse.

The whole weekend of events will be worthwhile.  To register, go here.