Here are five frequently-asked questions about net neutrality.  Your challenge: answer each in 150 words or less.  Here's my cut.

1.  What does net neutrality actually mean? Is it a meaningful protection for the web, or, as some say, a romanticized ideal that's getting in the way of progress?

Think of the pipes and wires that you use to go online as a sidewalk.  The question is whether the sidewalk should get a cut of the value of the conversations that you have as you walk along.  The traditional telephone model has been that the telephone company doesn't get paid more if you have a particularly meaningful call -- they're just providing a neutral pipe.

This argument is about whether companies selling highspeed transport mechanisms for the internet should be allowed to price discriminate -- charge different "content providers" (like YouTube) for the privilege of reaching you and me.  Because Americans have so few choices of broadband access providers, allowing these providers to leverage their market power over transport in order to have exclusive control over "programming" online is a matter of great concern. 

The risk is that the network providers will keep everyone who hasn't paid protection money to them at 2001 speeds.

2.  The cable and telephone companies argue that they need additional revenue to build 'the internet of the future' and so the Googles and Amazons of the world (who will benefit from that new internet) need to pay their fair share. Is that a legitimate argument?

What they mean by 'the internet of the future' is a cable system -- not the internet.  They'll be using their market power over broadband access to force us all to accept their cable-ized version of 'the internet' and to force nascent Googles to pay protection money.  Those nascent Googles may never come into being -- so net neutrality is a right-to-life movement for new technology.

These incumbents don't have competition.  We have no real information about their costs or how their networks work.  We're having this argument about "need for additional revenue" in the dark.  They've been promising to build broadband networks for a long time, and we're falling behind as a country.

We know from Japan that competition for broadband access (lower prices, higher speeds) comes when you force the incumbent to "unbundle" (let competitors use its facilities on nondiscriminatory terms).  That's the real 'internet of the future.'

3.  Net-neutrality's supporters are concerned that if you give the cable and telephone companies latitude to control who travels through their pipes (and at what speed), it puts those gatekeepers in a position to favor their own products and services over their competitors'. The fear is that innovation will suffer. Is that a concern you share?

Emphatically yes.  The whole point of price discrimination (the goal of the cablecos and telcos) is that you get to choose who pays more to travel your network.  Network providers will have every incentive to favor their own services and make exclusive deals, and in the absence of a simple rule of separation between transport and services ("you're only a pipe") we'll be trapped in litigation for years over what discrimination is appropriate and what isn't. 

Innovation happened online because the transport (the pipes) were largely "dumb."  This allowed new things to be developed without anyone having to ask permission of the telcos.  The deepest pockets are not the deepest sources of innovation -- to the contrary.  The telcos think of the internet as a "broken network."  They only know about networks over which they have perfect control.  When was the last time a new telephone service was introduced?  Call-waiting? 

4.  Why do you think this issue has taken off with such a fervor in recent months?

The telcos almost got away with this -- communications law is arcane and full of acronyms.  But it's easy for people to understand that the greater social good is to keep the internet open.  The benefit to private companies of being able to maintain their business plans is not worth the burden on the rest of us.  True, we don't know exactly what these larger social benefits of an open internet will be.  But the history of the internet has just begun, and it is already a remarkable story. 

Americans aren't "consumers" of the internet (the way we are of cable programming).  We are "users," and almost 50 million of us have posted material online.

People want broadband internet access to be treated like a utility.  Government may have a role in ensuring that this happens -- it's like keeping the highway system working.

5.  Could you sketch out what groundrules you'd like to see govern the internet of the future?

This debate isn't about internet governance.  This is about who gets to make decisions about prioritizing particular packets as they get close to broadband subscribers.

I'd like to see blazing competition for broadband access and have us catch up to Japan.  We'll continue to only have a few transport providers in this country, because it's expensive to build a broadband network.  This means that those basic providers (the cablecos and telcos) will have to open up their facilities to others -- the ISPs who connect to them.  

I'd like to see many different choices of ISPs, all of whom can make whatever decisions they want about prioritizing particular packets.   

We may need to pay back the cablecos and telcos for their reasonable costs of building these broadband networks.  But we should not let them control our future.  The best and richest future for all of us is the unpredictable future.

[Update:  For Christopher Yoo's replies to the same questions, go here.]

Is it possible that the U.S. could be violating its World Trade Organization commitments (under the WTO Basic Telecommunications Agreement) by supporting the efforts of AT&T and Verizon to bar new entrants from providing broadband access services using their networks?

The U.S. and its trading partners have promised to require "major suppliers" of public telecommunications services (entities with significant market power) to allow interconnection to their networks "under non-discriminatory terms, conditions (including technical standards and specifications) and rates and of a quality no less favourable than that provided for its own like services
or for like services of non-affiliated service suppliers or for its subsidiaries or other affiliates."

Verizon and AT&T don't want to allow anyone to connect to their fiber networks to provide competing broadband access services.

Back in 2001, the office of the United States Trade Representative cited those obligations when it strenuously objected to Deutsche Telekom's obstructionist approach:

Concerns raised in this year's review [by USTR of Deutsche Telekom] relate to (1) unbundled loop rates, (2) excessive co-location conditions and provisioning delays (i.e. relating to access to space in DT buildings), (3) absence of a reference interconnection offer [a standard fee for connection], and (4) excessive licensing fees. Additional areas of concern involve alleged moves to lift price controls on DT in certain sub-markets, continued backlogs on interconnection requests, pricing of Internet services, and lack of transparency in judicial proceedings. . . . .

USTR welcomes the progress Germany has made over the past few years in developing a competitive telecommunications market. It would be unfortunate if that progress were defeated by further efforts by DT to stifle competitive entry. We urge Germany to remain vigilant in its efforts to prevent anticompetitive practices. 

This may be where all the confusing talk about "private networks" being provided by Verizon and AT&T comes from.  Arguably, if these networks are public (and they are), and if these actors have market power (and they do), then the U.S. can't release them from interconnection requirements without violating its own treaty obligations.

Tomorrow -- back to something less fraught.  Like the weather.  Oh -- right -- the weather is fraught too. 

The puzzle fits neatly together.  MSN will never support an open internet.  It's making far too much money from European walled gardens, and it plans to move its act to the U.S..  Here's how this works:

Deutsche Telekom's revenues are being undermined by the growth of VoIP services.  (DT is the monopoly incumbent telcom provider in Germany.)  And its traditional model is threatened by new fast-growing municipal networks:  Both Amsterdam and Paris are making great strides in laying their own fiber and avoiding the incumbent telecom operator.  DT’s responsive tactics are very similar to what incumbent telcos here in the U.S. are working towards:  acquire legislative protection for complete control over their broadband infrastructure. 

Deutsche Telekom has persuaded the German government that its investment in fiber needs to be protected from regulatory intervention -- including any obligation to interconnect on mandated terms with anyone else.  DT has threatened (sound familiar?) not to build a planned 50-city fiber network unless it gets the protection it wants.

The European Commission has reacted strongly to this suggestion, threatening legal action against Germany.  Viviane Reding, the EC commissioner for information society and media, said "We cannot afford to create new monopolies out of short-term political opportunism."

In response, DT is saying (sound familiar?) "We cannot possibly invest €3bn [$3.9 billion] in setting up a network without receiving adequate protection for our investment in return."

DT, and its friends in the German government, takes the view that (sound familiar?) "new and emerging markets in which market power may be found to exist because of ´first-mover´ advantages, should not in principle be subject to ex-ante regulation."

DT has announced that it intends to remain Europe’s “number one” telecom operator, and it is poised to buy other network operators to hang onto this status.

MSN recently made a deal with DT that was MSN's second biggest deal ever. Under this deal, MSN will provide IPTV software to Deutsche Telekom.  DT will use this software, and boxes provided by Cisco, to provide packaged services to consumers -- starting this month.  (This will be the biggest roll-out yet of triple-play services.)  Consumers will be offered about 100 channels, including existing satellite and cable feeds, and video-on-demand movies.   This MSN platform will also offer web surfing, VoIP, and “other interactive entertainment services.”

MSN has similar deals in place with British Telekom, Telecom Italia, Swisscom, and the new combined AT&T entity. 

So -- that's it.  This is when the internet becomes an "interactive entertainment service," with help from legislators around the world who will lift regulatory requirements of access and interconnection.  All of this is very very good for MSN and Cisco and network providers. 

Yes, DT has more market power than our telcos here do.  But that's only a matter of degree, not a matter of kind. 

Of the seven Baby Bells formed after the breakup of Ma Bell in 1984, only four remain.  The old AT&T, Southwestern Bell, Ameritech, SNET, Pacific Bell, and BellSouth are now collectively “AT&T.”  Similarly, GTE, Nynex, Bell Atlantic, and MCI have joined together to form Verizon.  Two Baby Bells, the new AT&T and Verizon, control telco access around the country.  The vast majority of Americans have at most two choices of broadband provider wherever they are, and competition between these providers is not intense.  Prices have stayed high and speeds have stayed low.  In effect, the industry is re-monopolizing.

The European Commission is vehemently opposing what DT wants to do.  In years past, the U.S. government hasn't looked kindly on anticompetitive actions by MSN.  We should wake up and recognize that the DT approach is coming to our shores, and notice what the European Commission is saying. 

It's a warm night in Greenwich Village, NYC.  Suspiciously....warm.

Along with a lot of other people this weekend, I went to see Al Gore's movie.  You should see it, too.

Although I'd love to see Sen. Gore get involved in the net neutrality debate, he's got this other problem to work on -- global warming.  He's making people see this issue -- visualize it -- in a very persuasive way.

He's got pictures.  He's got film.  He's got charts (and all the lines on all the charts go up and to the right).  He's got animations.  He's got a key prop -- a levitating platform that lets him physically show just how sharply up and to the right some of those lines are going.

Earth Day, and the environmental movement, didn't take off until we saw a picture of the earth from space.  Sen. Gore makes this point at the beginning of "An Inconvenient Truth," and it's clear that he's trying to create the same kind of motivating visualization.  But this time, the picture has a thousand different aspects.  It also has a time element, the key driver for any thriller.  The picture shows us that we're running out of time.

Today's Senate hearing on net neutrality was more than a talking-point recitation.  The witnesses (most of them, anyway) knew what they were talking about and scored strong points.  Here's the key idea we should take away from the hearing:

Don't let Sen. Stevens mash ten people representing "stakeholders" in a room and command that they emerge with a bill in a week.

It's clear that the issues raised by the proponents of net neutrality are real and difficult and that momentum is building to "do something" about this issue.  (The House Judiciary Committee also passed the Sensenbrenner bill today.)  It's also clear that Sen. Stevens is frustrated and wants to get a bill passed right away.  He's looking for a "consensus" that will provide a "fertile investment climate for network operators."  In other words, he'd like to give these operators some assurance that they can recoup their investments.  Sen. Stevens is inadequately aware of the risks to the future of the internet that this approach poses. 

The risk that a hand-picked group of lobbyists will compromise away this future is too great, in my view.  The only standard that will keep the architecture of the internet optimized on innovation (instead of billing) is to ensure that all broadband pipe providers (cable as well as telco) are required to unbundle their facilities so as to promote competition.  That's a huge step from where we are now, and it will take work.  But my hope is that we'll get there eventually.  We shouldn't be rushed.

The telcos' central argument, which came across very clearly from Tom Tauke of Verizon, is that their investments in fiber needed to provide new communications services must be paid back, and that the only way to do that is to allow them to price-discriminate.  These new communications services won't be the internet, he assures us.  They'll be private networks that are controlled, end-to-end, by Verizon.  Internet access will still be available, and won't be blocked or degraded.  "We should be able to offer new services that don't affect internet access over that same fiber connection," he says.  Again and again, he said that regulating "access generally" shouldn't happen (by which he means access to the new "communications network" that-is-not-the-internet).

Tauke's argument is that in an "old world" of limited capacity, you need to require nondiscrimination.  But his new fiber has unlimited capacity.  He'll provide 30Mbps of internet access (not upload, but download), but he wants to provide "things beyond internet access."  And he thinks that's different.  He claims we've had a "real change in the paradigm."

(If these communications services aren't the internet, how will this help us in the much-ballyhooed global "broadband penetration" debate?)

(And if a newspaper spends an enormous amount building a new color printing plant, should it expect to have legislation passed that will enable it to recoup its investment?)

Timothy Regan, of Corning, made the point that the legislators are trying to solve a problem that hasn't been clearly defined.  He and Tauke both claim that there is ample competition for broadband access in the U.S. 

Ben Scott, of FreePress, noted that an extraordinary grassroots coalition has arisen in connection with this issue that spans the political spectrum, and that getting rid of nondiscrimination principles would undermine the primary reason for the internet's success.

Earl Comstock, of CompTel, pointed out that we have lots of experience with the cable industry.  They don't let competitors use their facilities, and they don't let consumers pick what they want.  (Sen. McCain, it's good to know, has had some bad experiences with his cable company.)  Comstock noted that Verizon essentially wants to say:  here is a line into your home.  "You can buy a second line if you want to -- but for that second line we're going to control what you can do with it and what you'll see.  You can't buy a second uncontrolled line."  Comstock made the key distinctions (and I hope the Senators were listening):  "This fight is about regulation of transmission, not content.  No one wants content regulation.  What we're worried about is having providers of broadband access leverage their market power over transmission into content."

Tauke responded, strongly, that Verizon has no interest in discriminating against internet content.  His point is that he wants to discriminate in providing other, "new" services over fiber.  He frequently used the example of medical operations -- hospitals should be allowed to choose a VPN that one provider controls to assure that they can monitor heart patients.  "When we talk about these special arrangements, they're not being delivered over the internet."  At one point, Tauke said passionately that [paraphrasing] "We're being forced not to differentiate.  If you can't differentiate you can't innovate.  You become a commodity.  There is no business case for fiber to the home under those circumstances.  The key to getting competitive markets moving is to be able to differentiate.  Those new networks need to differentiate.  Nondiscrimination means commoditization and no innovation for consumers."

Comstock's response on this point is a very strong one:  There are many VPNs out there.  Why should Verizon be allowed to use its privileged position to be a gatekeeper for a single VPN that all of use will have to use? 

He points out that we know how difficult it is to negotiate with an incumbent who doesn't want to sell to you.  We need help to have competition for broadband services.  We need more networks -- but we're facing entrenched incumbents.  So we need to force them to share their networks for now.  Network providers should be doing just that -- selling us transmission.  They're not prevented from selling other content to us.  Comstock notes that what the network providers want to do would un-do the internet.  They will impose different protocols ("not the internet") to protect their own material.

Comstock's key point was that what the network providers want to do is turn the internet into a cable system.  Ben Scott also made this point well.  Comstock noted that the network providers are [paraphrasing] "trying to reserve capacity for their exclusive use.  They'll make deals. They'll always provide some capacity that's unrestricted -- like leaving one lane of an eight-lane highway open."  Comstock said that the network providers should be required to make whatever capacity they have available on a nondiscriminatory basis."  "My companies provide VPNs every day, but we can only do that if we can resell to consumers."

Sens. McCain, Snowe, Dorgan, Boxer are all very concerned about concentration in the market for broadband access.  Sen. Inouye called the testimony "extraordinary" and seemed very appreciative (and very frail).  Sen. Boxer, in particular, asked good questions about what Verizon should be paid for.  She understands that Verizon has gotten public rights of way, and notes that they come with certain obligations.  She thinks that Verizon should be paid for transferring information -- and wonders why they should get more than that. 

Regan, finally, said that this new service of Verizon's won't be an "internet connection."  Instead, it will be a "communications connection."  Sen. Boxer, to her credit, thinks that the network providers are making up this distinction.

It was a good day -- and we shouldn't be pushed to speed along a bill.  We need to get this right.

I was inside the criminal justice system all day today (and will be all day tomorrow too):  jury duty in state criminal court.  Nothing much happened until about 3:30, when ninety of us slowly shuffled down the corridor to a courtroom to hear that a man had been accused of a series of heinous crimes.  There was a slight audible gasp from the group of ninety when these crimes were described.  The defendant stood up and turned towards us all, and smiled gently. 

The judge asked if anyone had any reason why they couldn't serve as jurors.  About thirty people lined up and explained why they couldn't, and they were all excused.  I couldn't hear all of the excuses clearly -- some had to do with the nature of the heinous crimes, and some with the nature of the business that the potential juror ran.

Then some of us were sent up to sit in the jury box and explain how many friends and relations we had in the criminal justice system.  More people were excused at this point, including me, so my dramatic story ends here. 

You may not believe this, but New Yorkers are pretty tolerant and civic-minded.  They'll show up, sit quietly, and pay attention when a judge is talking.  They'll follow orders and they're nice to one another.  I've seen them squashed into subway cars, stoically, silently taking it when a guy decided to play his enormous boombox and yell that he's selling CDs -- just swaying back and forth with the motion of the car, waiting for the next stop and the end of the noise.  Today I saw them mildly, quietly waiting to be called, rolling their eyes at each other every once in a while when the jury clerk was scolding people for one thing or another -- but otherwise being very patient.

The jury clerk got particularly noisy when people apparently detached the public computers from their power sources so that they could plug in their own devices.  "These computers are really, really old," she said.  "So whenever you do that, we have to call in the network guy so he can fiddle around with the computers and get them started up again.  That's completely annoying.  So don't touch anything except the keyboards."  She said this in an increasingly loud voice, hands on her hips, glaring at us. 

This must happen every day.  I bet she wishes computers had never been invented.  The people around me just kept reading their magazines and napping.

Even if Al Gore showed up and tried to explain to his former colleagues how the internet works, there's a good chance that a bunch of them wouldn't understand.  It's not that they're dumb or Gore is dumb.  It's just a problem of communication.

Many geeks, policy wonks, and policy geeks (the geeks who care about policy and wish they could be wonks) just aren't capable of persuading non-geek/non-wonks that the details of the issues they care about are important.  If you took your average cyber-utopian and plunked him down in a bar in Milwaukee and told him to get everyone excited about net neutrality, he'd be lucky to get out of there unscathed.  (Possible reality show?)

This fact of geek life is a frustrating one.  You can count up all the lies told by the telcos, you can tick off all the world-changing benefits of the internet, you can be amazed by the serendipity of online life, but you cannot convince the guy in the middle seat flying with you from Atlanta to Chicago that his elected representative is going the wrong way when it comes to giving telcos control over the internet.  

Some people think Al Gore has this same communication problem.  They say Gore can't reach the average man-on-the-street when he talks (unless that man-on-the-street went to St. Albans or Harvard).  I hope that's not true, because when Gore gets warmed up about global warming he's remarkable -- and it would be great if he could be similarly passionate about the future of the internet. 

But the problem is a big one.  People understand telephones, they understand investment in property and infrastructure, and they don't like being told that online companies are just trying to shift costs to consumers.  In order to get the point across in 2007, we're going to need an affirmative campaign that is neither geeky or wonky or particularly detailed.  Something about protecting America's future, or the importance of public investments in critical resources (water, electricity, internet access) -- those kinds of messages might work. 

At the same time, the geeks don't really want to lose the details.  The details are important, because they make up the difference between a telephone system and the internet.  I personally (I'm not a real geek, I just go to meetings with them) don't want to give up on the details.  And that's why I'll never be a politician.

Whatever job you have, it's a good one if you learn something new every day.  I'm lucky to have a job like that. 

Don't stay on the 9th floor at the Sheraton Delfino in Santa Monica, because the dance floor is right above your head. 

There's a good recent BusinessWeek article about the upcoming wireless auction.  Lots of money, mystery, and new entrants. Let's hope they don't go bankrupt trying. There are rumors that some large online companies are interested in the auction as secondary players.  Becoming a network provider would be a major change in an online company's DNA.  But stressful situations can lead to just these kinds of changes:

[E]volution by natural selection has led to the construction of mechanisms that alter DNA in response to the signals that cells receive from other cells or from the environment.

[Evolution in Four Dimensions, by Jablonka and Lamb, MIT Press 2005].

Om Malik points to a startup that wants to get in on the action -- but with free spectrum.

Wouldn't it be great if Al Gore showed up and started explaining to his former colleagues in Congress how the internet works?

Tomorrow I'll be leaving the Sheraton Delfino and its dance floor, and I'm hoping that will give me a chance to return to longer-form thoughts.

On this blog and in other contexts I've said that IMS is important because if adopted widely it would allow for all the billing glory that the telcos are looking for.

It's a formless thing, though, this IMS, but I understand that it includes use of SIP as the signaling standard.  That's a very telco standard.

I'm wondering if readers of this blog have links to useful resources about IMS and its adoption that would be helpful to a general audience.  I'll also be looking around, but the collective undoubtedly knows more about this than I do.  I'll post links here that you tell me about.

A key goal of the telcos internationally is to find a way to "upgrade" the internet from a network optimized on innovation (layer independence, unauthenticated use allowed, open interconnection) to one optimized for billing (IMS, NGN).

Hardware manufacturers also like upgrades (and billing), so it's no surprise that 34 hardware makers sent a letter to the House yesterday in opposition to network neutrality.

It's unfortunate that these manufacturers can't take the long view.  They can't because their shareholders want quick results, and because they need to sell more and more boxes all the time.  The long view might be that an open, innovative internet is ultimately good for society (all of those positive externalities) and good for the company -- because they'll be part of a more innovative world.  But that's too far off, and too speculative, their advisors will say.

In other news, there's a new House Judiciary telecom bill (Public Knowledge comments here) and the second CALEA order from the FCC is out (here).  The second CALEA order may become moot (or much of it may), depending on what the D.C. Circuit says in the next few months.

============================ 

As for me, I'm in LA for an ICANN board retreat.  Oddly (only for me), we're meeting across the street from my old high school, Santa Monica HS ("Home of the Vikings").   In my day, we had the highest truancy rate in the nation -- an open campus, a few blocks from the beach.  My year had more than 900 people in it.  Emilio Estevez was in my class and was voted "Prettiest Hair" our senior year.  I spent most of the time in the band room.  This was before personal computers.  Now the kids who go there are probablybeyond personal computers -- it's all texting, all the time. 

There are lots of people out there saying "we need to treat all VoIP alike, all video alike, and all blogs alike."  For them, that's network neutrality.

That's not what I hope we'll end up meaning by net neutrality.  That would require a heavy-handed regulator enforcing a provider's determination of what packets are "like" other packets.  I am not in favor of that approach.

I have a different vision.  I hope, someday, we'll treat broadband access like the utility it is.  That would mean separating transport from other activities, and separating access from backbone and backhaul transport.  That doesn't require a great deal of discretion to repose in any particular actor.

Yesterday's debate at PDF seemed to be focused on the fuzzier definition of network neutrality ("treat all VoIP alike").  That definition plays directly into the arguments of the telcos.  It would give the FCC an enormous amount of discretion and power.

Given enough bandwidth, all the need for prioritization in the last mile goes away.  The question is who will provide that bandwidth and at what cost.  In other countries it has been treated like a utility, unbundled and open to competition, and speeds are much higher and costs are much lower.  That's the model I'm working towards.

Martin Geddes left a great comment on the entry below that I'd like to promote to primary blog fodder.  (His very good blog is here.)  I'd like to take the chance to talk about internalizing externalities (what did you have for dinner tonight?).  Martin is a very clever guy, and I'm listening carefully to him.  He says:

Where common carriage means "no discrimination between destinations within a service type", it would be reasonable to start charging telcos who don't provide this for rights of way. Rather than compaigning for network neutrality, you can then campaign for a telco tax, which should find plenty of happy takers in Congress -- there's no shortage of public debt to service. In fact, reframing this around "no right-of-way subsidies to telcos" makes a lot more sense than "network neutrality".

I think common carriage means offering service on a nondiscriminatory basis, neutral as to use and user.  If the innkeeper's customer has red hair, he shouldn't charge him more than his blond customers.  These are just bits we're talking about.  Making them into "service type" decides the question up front -- they're not services until the carrier decides to call them that.  And it also seems to me that if the second customer speaks more quickly than the first customer (because he's done the equivalent of hiring Akamai or some other private middleman to help him out), the innkeeper also shouldn't discriminate. 

But discriminating between classes of application (or even specific applications) is a different think. Lumping it into "common carriage" doesn't make sense to me.

It does to me.  Martin continues:

And if they want to price discriminate between them, what's the big problem with sending out "Monopoly rents over here -- come and get it!" price signals? Why pass laws that entrench the status quo forever by undermining the scope of possible competing business models that may rely on such application price discrimination?

Ah, but in the U.S. we just don't have competition for broadband access.  Americans don't have real choices in this area, and the upfront costs of starting an alternate national network are too high for anyone to do it realistically (unless Sascha Meinrath has his way and we all start forming ad hoc local networks right and left).  Monopoly rents won't be an occasion for competition to arrive -- monopoly rents will just be monopoly rents.  And we'll all be paying them.

And what if your assumptions on how networks are run and finances slowly become obsolete, just as the definitions of the '96 Telecom Act became? (Think of how different Skype Zones are from traditional network payment methods, for example -- should this be illegal? I don't think so.)

Aha.  This is where we get to the internalizing externalities point.  Telcos want to be sure to be able to monetize their networks by discriminating in favor of particular services and applications, and claim that if they do that they'll have incentives to build more broadband in the U.S.  In other words, they want to internalize the externalities created by these networks. But the network neutrality side of things doesn't think this makes sense.

The theory behind internalizing externalities (or spillovers), is that if property owners are both fully liable for third party costs (the burdens their property creates, like pollution) and entitled to appropriate all the benefits of their property, their interests will magically align with those of society, and they'll make efficient decisions.  They'll have all of our best interests at heart, and their private welfare will line up with general social welfare.  If you believe this theory, you think that spillovers (values that aren't captured by property owners) are bad because they get in the way of these optimal decisions.  These un-appropriated spillovers won't give enough signals of what consumers want.  (There's a recent paper called Spillovers by Lemley and Frischmann that explains this in a very clear way.)

But, in fact, spillovers can be good!  Route 128 failed and Silicon Valley succeeded, because the Valley allowed things to move around and allowed other people to make value out of initial innovations.  There are lots of social values created by internet use that aren't adequately "paid for" by individual internet subscribers, and aren't appropriately appropriated by network owners.  Innovation is one of those positive spillovers that we don't want to allow a single property owner to own forever, because the second innovator might do a better job with the idea.  Same thing online -- the network owners shouldn't necessarily be allowed to internalize all of these externalities, because we can't assume that optimal social values will be the result.  Rewarding a single innovator isn't always the best thing to do.

This is a long way of saying that I disagree with Martin.  I don't think it should matter how Skype makes money.  I do think that transport -- the substrate, the common carrier -- should be treated differently than the layers above, because we don't have competition for transport.  So our costs are high and our speeds are low.

The idea that the telcos have zero competition (where there's no cable, for example) isn't true, because there's always (at a price) the option for users to collectively revolt and built their own access network. The proposed neutrality regulations are a tonic that soothes the pain of monopoly and ensures that the level of local political outrage never reaches a critical action threshold.

Don't throw me into the neutrality patch, Mr Fox!

I do think these guys have zero competition (or only gentle competition) because the upfront costs of an alternate network are insuperable.  I do think there's a risk of creating a "neutrality patch" that is a comfortable humid swampy environment for these monopolists, and that's why I'd rather treat them like any other utility.  Like a pipe.

For years and years (back to 1998 at least), the telcos have been saying that if we only gave them enough incentives and enough freedom, they'd install fiber-optic lines in the U.S.  Trusting in our Lucy-and-the-football way, we gave them concession after concession -- undoing unbundling, undoing interconnection, and (finally) giving them the same regulatory treatment as traditionally proprietary cable systems. 

The network neutrality battle is yet another plea for concessions by the telcos.  Give us incentives! they cry.  But why should we believe them this time?  Why would this next step - monetizing their networks - give them them any more oomph than they've had so far?  After all, with the exception of Verizon the Bells are spending less on capital investment than they're claiming as depreciation.  Which means, in translation, that they're already spending less than the assumed cost of maintaining their current networks. No oomph to speak of.

Why should we trust them now? We've already given them incentive after incentive, access to rights-of-way (presumably in exchange for common-carrier behavior, as Dan Berninger points out), and the regulatory shirts off our backs. 

Similarly, the cablecos often claim that they need incentives in exchange for their $100 million investment in broadband.  But that investment happened years ago.  Why would making them comfortable now make a difference? 

The incumbents' incentives arguments are very similar to those highlighted in the copyright wars, and particularly in the Eldred battle.  "Give us incentives or we won't create!" was the cry then.  The economists' amicus brief in Eldred made the point that the Sonny Bono Copyright Term Extension Act would provide no significant incentive to create new works. 

Same thing here:  given what we've already been through with the telcos, and the extensive concessions they've already obtained, there is zero evidence that they'll magically do better with broadband penetration if they win the net neutrality fight.  They're asking us to take a leap of faith and believe in their property rights argument, but we know there will be significant social costs if we give in -- and we have no reason to believe that the additional incentive will make any difference.

Thanks to Dave Burstein for talking to me -- he has some stories to tell about SBC that I won't reveal here, so watch for his next newsletter.

On Monday, May 15, Andrew Raseij and Micah Sifry are putting on Personal Democracy Forum 2006 here in NYC.  It's at the City University of New York’s (CUNY) Graduate Center, located at 365 Fifth Avenue at 34th Street, across the street from the Empire State Building.

Between 5 and 6pm, at the end of a long and interesting day of panels and plenaries and blogging and chatting, I'll be part of a debate about network neutrality.  Come by so that you'll be around when it's time to go out for drinks with the panel.

Suggestion for those who heads may be spinning and eyes may be glazing by 5pm:  consider playing NN bingo -- make up squares for words like "local loop" and "extortion" and "heavy-handed regulation" and "quality of service" and "let the market decide" and "permission" and "ecommerce giants" and "chokehold abuse" and "long tail".  Then play the game behind the panelists' backs, on the chat screen.  Should be fun! 

The XXX decision on Wednesday by ICANN's board, which voted 9-5 to reject the XXX contract, represents a low point for ICANN.  I am a member of ICANN's board, and I voted in favor of the agreement.

Here is the statement I made in connection with the vote on Wednesday afternoon:

We are asked today to approve a draft registry contract with ICM Registry, who is proposing to run a top-level-domain.  The string chosen by ICM and proposed by them to ICANN is “xxx”.

ICANN’s mission is to coordinate the allocation of domain names and numbers, while preserving the operational stability, reliability, and global interoperability of the Internet.  The vision of a non-governmental body managing key (but narrow) technical coordination functions for the Internet remains in my view the approach most likely to reflect the needs of the Internet community.

ICANN’s current process for selecting new gTLDs, and the artificial scarcity this process creates, continues to raise procedural concerns that should be avoided in the future. I am not in favor of the “beauty contest” approach taken by ICANN thus far, which relies heavily on relatively subjective and arbitrary criteria, and not enough on the technical merits of the applications. I believe this subjective approach generates conflict and is damaging to the technically-focused, non-governmental, bottom-up vision of ICANN activity.  Additionally, both XXX and TEL raise substantial concerns about the merits of continuing to believe that ICANN has the ability to choose who should “sponsor” a particular domain or indeed that “sponsorship” is a meaningful concept in a diverse world.  These are strings we are considering, and how they are used at the second level in the future and by whom should not be our concern, provided the entity responsible for running them continues to comply with global consensus policies and is technically competent.

We need to adopt an objective system for the selection of new gTLDs, through creating minimum technical and financial requirements for registries.  Good proposals have been put forward for improving this process, including the selection of a fixed number annually by lottery or auction from among technically-competent bidders.

In the meantime, I am not persuaded that there is any good technical-competency or financial-competency reason not to enter the draft registry agreement between ICM and ICANN that has been posted for public comment.  I therefore vote “Yes” on the motion to approve the draft agreement. 

Additionally, ICM is saying that it will establish elaborate registration requirements for second level domains using this top-level-domain string, will comply with the promises it has made as an applicant, and will, among many other things, “create automated tools to monitor registrant compliance with registry policies related to labeling and the prohibition of child pornography.”  I have carefully reviewed the concerns raised by the Governmental Advisory Committee in its 28 March 2006 communique, and have compared them to the draft contract, and I am satisfied that these concerns have been addressed by this draft contract.  Indeed, I believe we may have gone too far in addressing these concerns.  Policies as to the use of domain names, as opposed to the registration of domain names, are not appropriate subjects for ICANN decisionmaking.  By keeping such a short leash on ICM’s development of its policy organization, which will in turn make decisions about the use of names at the second level, ICANN may be getting into dangerous territory.  We should not run the risk of turning ICANN into a convenient chokepoint for the content-related limitations desired by particular governments around the world.  Governments have many powers within their territories, and are free to use them there.

Added later:  Veni Markovski posted his statement here.  The entire voting transcript is here.

Let's start with a local betrayal, just as a warm-up.  Michael Maranda and Sascha Meinrath told me this afternoon that the Illinois Citizens Utility Board recently proposed (in the company of AT&T) that consumer protections for telephone services be eliminated -- in exchange for a price cap for the next four years.  Even though prices should be going down anyway.

The Illinois CUB is supposed to be a public advocate for Illinois consumers, representing their interests before the Illinois Commerce Commission.  Now they look like they're on the other side.

Here's a national betrayal -- the NSA scandal-on-scandal reported by USAToday this morning.  The Administration has, with the cooperation of Verizon, AT&T, and BellSouth, been collecting call information on the cell, landline, and internet use of everybody they possibly can, since Sept. 2001.

This is illegal.

It was done without a court order (needed under FISA if there was real-time interception going on).  It was done in derogation of the CPNI provisions of the Telecommunications Act (under which telephone companies are supposed to protect the proprietary information of their customers).  It may also be illegal under ECPA.

Some people may say -- aww, FISA, CPNI, ECPA, what does it matter, we have to catch that Osama bin Laden just in case he is hiding in Ohio. 

It does matter, and the hope is that the uproar will be sustained enough that it will catch the attention of everyone from the far left to the far right.

=====

Speaking of uproar, but at a much lower volume level than the NSA furor, I am abiding by the ICANN Board's decision not to comment on the XXX decision until all director statements are reviewed and published by ICANN.  I am personally distressed by my inability to comment. 

The FCC has a practice of allowing statements to come out simultaneously (whether dissenting or agreeing), before the order comes out.  This is possible because the Commissioners there have worked out the order in advance of the public meeting, but haven't finalized it.  So they can comment on it at the public meeting and their statements can be released then.  This is also possible because the FCC is an enormous government agency, with regulatory powers and Commissioners who are paid to be aware of the details of what they're doing (and are presumably made aware of those details by their staff).

Because the ICANN Board meetings are actual discussions (and they should be public discussions -- working on that too), it is difficult to get statements out at the same time the decisions are made.  Thus the 48 hour waiting period, so that directors can review what they have said and correct any transcription errors.  There should be a way to allow dissenting detailed views to be made clear at the same time the majority detailed views are made clear.  Both are part of the decision.

I am not questioning that the decision has been made and that my vote was in the minority.  I am concerned that the full picture of the decision is not made available to the public, and I hope we can find a way to make this possible in the future.  All suggestions welcome.

This is a post about taking the train.

I take the train a lot.  I live in New York, and I go to Boston and Washington frequently.  The Boston trips have a different rhythm to them - no serious businessperson takes the train to Boston, because it takes too long.  The DC trips are like getting on a bus with a lot of student council types.  Very earnest and programmed.

The secret to the Boston trips is:  it's a beautiful ride.  You've got your coastline, your villages, and your train-elevating-over-water moments, when you can't even tell that there's a track underneath you.

I took an early train down from Boston this morning and worked most of the way in complete peace.  There was no one within two rows of me, there were no phones ringing, and it was a sunny morning.  I got off in NY feeling just fine -- not dehydrated and soul-departed, the way a plane ride will leave you.

But in the middle of the ride, maybe around Groton CT, I got the sudden sense that this couldn't possibly last.  Everyone on the train was asleep, as far as I could tell; everyone had plenty of room; and no one had paid too much to take the trip.  This must be completely unsustainable for Amtrak -- not the sleeping part, but the part about the half-empty train and the low fares.

So I wanted to write this post as a kind of marker for myself.  This can't go on, these lovely placid train rides.  There aren't enough people who want to do it, and it's too slow.  But if it ever ends, I will miss it acutely.

Last Friday the D.C. Circuit heard argument in the CALEA case.  The estimable Matt Brill, representing the entities and associations challenging the FCC's August 2005 order, did a great job on all accounts.

According to Reuters, Judge Edwards didn't think much of the FCC's argument that CALEA, which excludes "information services" from its coverage, should properly be read to include information services.  He used words like "gobbledygook" and "ridiculous," and at one point flatly told the Commission that its argument made no sense.  (The Commission, after all, has been steadfastly maintaining since 2002 that broadband access is an information service -- to take the opposite view for purposes of CALEA made for a very strained legal argument.)

The primary reason that Japan and Korea do so much better than the U.S. on any measurement of broadband (availability, penetration, price, speed) is that there is fierce competition in the market for broadband internet access in these countries.

That's pretty simple.

How do you increase competition in the U.S. for broadband access?  Right now, we have giants fighting with each other -- cable and telephone companies.  Small numbers of these companies control 80%-90% of the market for broadband access.  After the BellSouth merger, AT&T, Verizon, and Comcast alone will control 49% of the market.  This competition couldn't be described as disruptive in any way -- in fact, there seems to be a tacit agreement among these Shamus and Godzillas not to provide unfettered (unprioritized) internet access.  In Japan, the incumbent controls only about a third of the DSL market -- two-thirds of the market is made up of new entrants.

There are three routes towards increasing competition in broadband access:  (1) "local loop unbundling," which means requiring the incumbent to physically open its facilities to new entrants, who then find new ways to provide services to end-customers; (2) "wholesale access," which means requiring the incumbent to sell a wholesale broadband access product to all comers; and (3) encouraging other kinds of broadband access ("facilities-based competition"), which means helping new entrants have their own networks without having to deal with the incumbents at all.

Let's look at these routes.

Facilities-based competition would be desirable here in the U.S., but the up-front costs are enormous.  Even MSN/Google/Yahoo! would have to join up together in order to make this happen, and doing so admittedly wouldn't be playing to their strengths as companies.  Plus, while you're waiting for the mystical additional modality to arise (wider wireless, for example), customers may have already made their choices and tied their identities to some vertically-integrated telco behemoth - so the switching costs will be very high.

Wholesale access sounds facially attractive (give the incumbent the dignity of control over its own facilities!) but it turns out to lead to astounding game-playing by the incumbents.  The U.K. has adopted this approach to BT, and found [large pdf, at 65] (a while ago, in 2004 -- things may have changed) that BT wasn't really giving equal access to its competitors:

Without regulation to ensure equality of access, the incumbent has an incentive to provide this link [last mile access to customers] on inferior terms compared with the service it provides to its own retail activities, disadvantaging its competitors in the retail market. In the UK this is particularly so because price controls on wholesale access to BT’s network limit the returns BT can make at the wholesale level. As such, BT has few incentives to respond to the demands of other wholesale customers, and strong incentives to undermine competition at the retail level by restricting the ability of retail operators to compete on a fair basis.

Allowing the incumbent to package wholesale access doesn't necessarily lead to increased competition.

Unbundling is the hardest of all, but perhaps the only route likely to be effective.  Both Japan and Korea have taken this approach, using fierce regulatory mandates, and competition has erupted there (prices have gone down, speeds are 100mbps).   

The U.S. 1996 Act tried mandating unbundled "network elements" for sale to competitive carriers, and  it's fair to say that the Baby Bells were quite successful at making this regime a nightmare for all concerned.  Through a variety of steps, unbundling obligations in broadband markets in the U.S. have been eliminated.

So what's the answer?  Governmental willingness to get involved to improve broadband infrastructure -- that's what's needed, in the absence of non-incumbent modes of getting broadband access. A simpler, stronger way of mandating unbundling will be key.

But the first point, the most important point, is that ferocity of competition is predictive of a better broadband picture.  The policies we have now won't get us there.  We have something to learn from Japan and Korea on these points.

It's not easy:  you have to find a way to give the incumbent enough of a return on its last-mile investments so that maintenance/upgrading continues, and you have to find a way to make that price low enough so that new market entrants are willing to take the plunge.  Right now, we're focusing only on one side of the equation - the investment side - and not enough on the new market entrant side.  We're falling farther and farther behind as a result.

Book recommendation:  Global Broadband Battles, Martin Fransman, ed.

When I was in New Zealand a few weeks ago, I heard an awful story about Telecom -- the local monopoly phone company.  It seems that a law firm in New Zealand suddenly noticed that their online connection was barely working.  They called Telecom.  Telecom said:

I'm sorry, but you've exceeded your monthly bit allowance.

The law firm protested and asked for additional bandwidth (and would have paid for it).  Answer:  No.

So now we have some good news out of New Zealand (a country that has been worried about its broadband penetration standing):  Telecom's lock on online access is being broken by regulation, in a few ways.

1.  The incumbent is going to have to permit ISPs to interconnect with its network -- the local loop will be unbundled.

2.  The incumbent will have to separately produce accounts (and have those accounts monitored) concerning its wholesale business.

3.  The government will encourage investment, both private and public, in alternative online access methods, and will work on making spectrum available for wireless alternatives.

4.  The government will continue to analyze structural separation -- considering making Telecom act like "only a pipe" by separating its wholesale from its retail operations.

The entire (very large) Cabinet paper is here.  Those Kiwis could teach us a thing or two.

Remember CALEA?  In a brief, pious open meeting on Wednesday, the FCC said that the costs of making wiretapping easy for law enforcement should be shifted to everyone other than law enforcement.  There's an argument in the D.C. Circuit about this on Friday, and we'll see whether the FCC had any legal basis to take this step.

Background.  Back in August of 2005, the FCC issued an order that said that CALEA required all broadband providers and "interconnected VoIP" providers to make their services easily tappable by law enforcement.  Lots of problems:

1.  The 1994 CALEA statute expressly, vividly, and intentionally excluded "information services" from its coverage.  The FCC has taken the view that broadband provision is an "information service," and that online applications are "information services."  The August 2005 order's legal argument (charitably described as a "stretch" by Commr. Copps on Wednesday) is that CALEA's facial exclusion of "information services" can be ignored because these new services are "substantial replacements" for phone service.  The D.C. Circuit case (see CDT page here) focuses on the weakness of this argument.

2.  The August 2005 order said that these new actors had to comply with CALEA (making their services easily tappable by law enforcement) by May 2007.  A big catch:  the order didn't say what compliance meant.  Law enforcement filings made clear that they wanted to deal with compliance via "deficiency" proceedings -- in other words, "you go ahead and invest in your new businesses, and if we don't think what you've done is compliant, we'll make you retrofit your application to our desires or just take it down."  The threat to innovators is clear:  you should go talk to law enforcement first, before you launch, so that they don't bring you down later.  You should ask permission.

3.  The August 2005 order also made clear that the Commission planned to extend the reach of CALEA to other services (like all VoIP services, whether or not they're capable of connection to the public telephone network), and to require that all devices running VoIP be "location-aware" -- capable of telling law enforcement where they're being used.

What happened on Wednesday.  On Wednesday morning, the FCC met in public session.  No comments from the floor are allowed, and the FCC doesn't issue the actual order until later.  So what you get are Commissioners reading their comments on a yet-to-be-issued order.  Each one of the Commissioners said about the same thing (save for the Copps quip about the legal weakness of the FCC's reading of CALEA):

1.  FCC's support of law enforcement and Homeland Security goals is primary, and the primary goal of the Order is to ensure that law enforcement agencies have everything they need.  Each Commissioner solemnly emphasized the key Homeland Security goals of the FCC ("our highest calling" in the words of Commr. Adelstein).  (Prediction:  someday FCC will be part of DHS.)

2.  We're not going to extend the May 2007 deadline for anyone.

3.  We're not going to tell you what compliance means -- we'll rely on standard-setting activities to do that.  (My understanding is that these standards activities are not well advanced -- and there are many hard questions to be answered.  What, for example, is "call identifying information" online?)

4.  Everyone can use "trusted third parties" (also called TTPs by Commissioners.  The FCC loves acronyms) to comply with CALEA.  This will reduce costs.

5.  Speaking of costs, although the 1994 CALEA statute called for carriers to be paid back for their costs of compliance, we will not be doing any of that.  All covered entities (including, potentially, free VoIP services) will be responsible for their own costs of compliance.  (Commr. Tate said that these costs are "speculative" and can't outweigh the requirements of national security.)

Then they all voted in favor of the order.

What this means.  This is a very big step that won't get as much attention as the Net Neutrality fight.  But it's very related to that fight, and very important.  What's going on here is that the FCC is independently reading a statute that embodied a particular Congressional undertaking ("we won't design the internet for the needs of law enforcement") to mean the opposite ("we will design the internet for the needs of law enforcement").  And the costs of making data look familiar to law enforcement, so that they can stay comfortable in their telephony-based understandings, may be enormous. 

There are costs to innovation -- having to ask permission before launching a new service.  There are costs to privacy -- having to design everything to have a back door for law enforcement.  And there will be powerful intermediaries (the Trusted Third Parties) with whom everyone will have to deal, who will have no constitutional limitations on their actions.  There is no principled limit to what the FCC feels it can do in the name of assisting law enforcement.

The Universal Service Fund: it's central. It gets federally required payments from providers of telecommunications services and allocates those monies to local providers who serve high-cost areas, low-income households, libraries, schools, and rural health care providers.

The fund is administered by an independent nonprofit corporation (the Universal Service Administrative Company), which is regulated by the FCC.  An enormous amount of money flows through USAC's books and out to the states:  $7.3 billion estimated for 2006. 

In 2005, $158 million went [pdf] to Alaska, Stevens's home state; $131 million to Arizona (McCain); $83 million to Montana (Burns); $242 million to Mississippi (Lott); $576 million to Texas (Hutchinson)...(all members of the Senate Commerce Committee).

As traditional telecommunications carriers (the Bells) lose revenue to VoIP providers, the amounts they'll be able to shuffle to the states and to gravy-train rural carriers will continue to diminish.  (This is a very complicated story, full of cross-subsidies and hidden incentives, so forgive me if in telling it simply I'm missing something key.)  It's generally accepted that the Universal Service Fund mechanism is broken and isn't necessarily serving the people it was designed to serve.  But that's not the important thing from a political perspective.

The important thing from a political perspective is that the money has to continue to flow.  So it has to come from somewhere.

The Stevens draft bill says clearly that new actors will need to contribute to USF funds:  all broadband service providers (including municipal providers of anything faster than 200 kbps, and cable broadband providers) and all IP-enabled voice service providers.

Who's an "IP-enabled voice service" provider?  Answer:  anyone who makes real-time 2-way voice communications available to the public, whether for free or not, as long as the service is capable of connection (both ways) to the traditional phone network.

This definition includes Skype, Yahoo! Messenger, and any gaming software that allows connection to traditional phones.

Every service in this category will be assessed USF fees.  The bill doesn't say how much.  But it does say that the FCC can base contributions on "revenue from communications service" -- in other words, if Skype is successful, the USF should benefit too!

(This is reminiscent of the Nokia director who was assessed $100,000 for a speeding ticket.  Finns do everything very fairly.)

Other bases for collection under the bill are "working phone numbers or any other identifier protocol or connection to the networks" (IP address blocks held? number of cable connections?), or "network capacity" (successful muni wi-fi or cable network?).

It will be very hard for legislators to ignore the possibility of an enormous revenue-save for a vital piece of pork within their districts.  The moral arguments in favor of USF are strong.  Explaining how broken the program is takes more than one sentence.

This will be a tough one.  To the extent network neutrality (which also takes more than one sentence to explain) might scuttle a bill that secures this new source of funds, legislators will likely follow the money and scuttle network neutrality instead.

It's 135 pages long, and the first Title is:  "War on Terrorism."  Sen. Stevens (R-Alaska) has issued his draft Communications Act of 2006, which is based on the structure of (and amends) the existing Communications Act.  Here is his floor statement introducing the bill (only five pages long).  He makes clear that this is a draft, and that he'll be holding hearings to take suggestions.

The draft contains a reporting requirement intended to address network neutrality concerns, but is careful to say that no new rulemaking authority will be accorded the Commission even if these reports show that there are problems.  Here is the reporting requirement:

Beginning 1 year after the date of enactment of this Act, the Federal Communications Commission shall report annually to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Energy and Commerce for 5 years regarding—

(1) the developments in Internet traffic processing, routing, peering, transport, and interconnection;
(2) how such developments impact the free flow of information over the public Internet and the consumer experience using the public Internet;
(3) business relationships between broadband service providers and applications and online user services; and
(4) the development of and services available over public and private Internet offerings.

Here's the part where the Commission's authority to do anything about these developments is sharply limited:

(b) DETERMINATIONS AND RECOMMENDATIONS.—If the Commission determines that there are significant problems with any of the matters described in subsection (a) the Commission shall make such recommendations in its next annual report under subsection (a) as it deems necessary and appropriate to ensure that consumers can access lawful content and run Internet applications and services over the public Internet subject to the bandwidth purchased and the needs of law enforcement agencies. The Commission shall include recommendations for appropriate enforcement mechanisms but may not recommend additional rulemaking authority for the Commission.

The distinction between "public" and "private" internet services is clear.  The "public" internet is the internet that won't be prioritized, and it will continue to be available to the extent private broadband providers make it available (subject to the needs of law enforcement).  The Commission wouldn't have the authority under this Act to do enact a generally-applicable rule covering degradation of carriage, but it might be able to (sometime in the distant future) bring an enforcement action about these issues -- although it's not clear from the bill what standard such an enforcement action would be enforcing.

This question is down the road and not as important, but:  What needs of law enforcement? Is this the place where law enforcement says that encryption is unlawful?  

In other news, Sen. Stevens's floor statement says that municipalities and local governments should be able to "offer their own broadband service, so long as they do not compete unfairly with the private sector."  The bill makes municipal provision of broadband quite painful -- a requesting private provider has to be allowed to create a broadband service using the same trenches, conduit, and locations, private providers get a right of first refusal before a municipality can provide broadband, and the municipality can only do it by itself if a neutral third party says that the private broadband won't be cheaper.  Very elaborate.