Forbes has this story about the U.S. cities that are the most wired.

Atlanta!

Atlanta, like many major U.S. cities, is planning a citywide wireless network, aiming to bring free or affordable Internet access to all residents and small businesses, with trial stages in early 2007.

Hello to Atlanta, with its tightly-packed downtown.  Don't have Culver City access -- that's your challenge.  Southern hospitality means (or should mean) an open, non-discriminatory, unfiltered network.

Congratulations to CDT (and particularly to John Morris) who, with the ACLU, bookstores, independent artists, and ISPs challenged the constitutionality of Utah House Bill 260 -- and won.  (June 2005 post about the complaint is here.)

House Bill 260, like the Pennsylvania statute challenged in the Pappert case, would have mandated that ISPs block sites deemed "harmful to minors" by the State AG.  And that AG could have acted without any judicial review, just deciding on his own that particular sites were "harmful."  The ISPs, in turn, would probably have blocked those sites by blacklisting IP addresses -- which would have blocked an enormous amount of perfectly lawful content (because sites are routinely co-hosted).

It's nice to have some good news once in a while.

It's time to be actively concerned about a proposed DOJ draft amendment to CALEA -- posted here by EFF.  (Here's a post I did about this a short while ago.)  Remember the outrage about the Hollings bill?  Well, this is worse.

Quick review:  back in 1994, the FBI had evidence that it had had trouble carrying out wiretap orders 183 times.  So the FBI asked that telecommunications providers be required to design their equipment so as to be easily tappable -- to make digital telephony as tappable as analog phones.  At first, the FBI wanted all communications (including internet communications) to be subject to these design mandates -- but that attempt was flatly rejected by Congress.  We ended up with the current Communications Assistance to Law Enforcement Act of 1994.

CALEA requires telecommunications providers (not online services) to be able to get "call-identifying information" to law enforcement in a standard format.  (Half a billion dollars was tagged to help these telecom providers redesign their systems to make this possible.)  Call-identifying information doesn't include location information -- it's pieces of information that could have been obtained in the old trap and trace/pen register days of traditional telephony, like the numbers dialed and the length of the call.

Although there is zero evidence that law enforcement has had problems carrying out wiretap orders since 1994, and indeed DOJ has only carried out a dozen or so interceptions of computer communications a year since 2003, DOJ has never liked the deal it got from Congress back in 1994.  They want the internet.  And so they've written a telephony-style bill and are trying to slap it on top of all online applications.

The draft bill is astounding.  Here are five reasons why:

1.  It covers all online communications services you can think of -- instant messaging, gaming, peer to peer service providers, calendars, VoIP, search, and anything the FCC decides should be covered.  In some narrow instances email may be excluded.  But if the FCC decides email should be included, it'll be included.  As I've said before, this would have enormous impacts on innovation if passed.  Every single service would have to be redesigned to meet the compliance requirements of CALEA.

2.  It forces all of these services to have a point of presence (servers) in the U.S.  This is a very big deal.  This means that any entity that allows people here in the U.S. to communicate has to have servers here.  Remember ICQ?  They started in Israel.  They didn't have servers here.  This means that no startup in any other country can help us communicate without being subject to the design desires of U.S. law enforcement.  What?

This point of presence requirement is now found in China -- they, too, want to make it easy for law enforcement to listen in and then arrest people. 

3.  It broadens the definition of "call identifying information" to include items that are content, and that will require deep packet inspection by ISPs. Example:  "user authentication and logon information."  That's content -- it's like the moment when you're on the phone and you tell someone your mother's last name.  In order to get that information, you'd have to open up the communication and look inside.  Example: "post cut through digits." That's content -- it's like the moment when you're on the phone and you press number commands to make your voicemail system do something.  (And, boy, what a telephony-style concept in the internet age.)

4.  It says that law enforcement's interception needs trump every other interest, including (implicitly) getting communications to their destinations in a timely way.  Think about it -- if law enforcement wants real-time interception of VoIP calls and other online transactions, what do you think will happen to those communications?  Right -- they'll be slowed.  And privacy concerns will go out the window.

5.  It puts the cost of all of this squarely on the shoulders of online services.  Sure, the big guys will be able to comply.  But no garage startup is going to be able to handle these demands.  Every tiny business needs 24/7 responsiveness to law enforcement (required in the bill)?  Every tiny business copes with ever-changing law enforcement or FCC requirements?  Every tiny application developer that helps its customers communicate in any way (every mesh network) has to comply with CALEA?  Every dial-up system? Every private network that FCC decides should be covered?

Those are just the five big screaming headlines of what's wrong with this draft bill.  I'm sure others can list more.

Reading more telecommunications scholarship today, I'm struck by how analog the discussion is.  Broadband networks are analogized to department stores, bridges used by railroads, road systems -- it's as if interactivity never happened, and we're all just part of a global production chain.  We consume, they provide, the only question is who gets to charge for what.  Whoof.

Well, so if broadband access is a department store (sure, I'll play on your field) is it all Macy's?

Effectively, yes.  We have very few choices here in the U.S.

According to the FCC's July report [pdf]:  about half of us have two choices of broadband provider (DSL and cable); a third only have one choice; and about 13% have no broadband service from either DSL or cable.  Satellite, wireless, and the much-hoped-for BPL (broadband over power line) make up about .5% of residential broadband access.

Verizon is confident enough about the situation for its subscribers that it wrote to me (and millions of other people) saying it intended to charge a new fee.  I wrote back saying "inappropriate and unlawful" but they weren't taking messages.

Starting August 26, 2006, Verizon Online will begin charging a Supplier Surcharge for all new DSL customers, existing customers with a DSL monthly or bundle package, and existing DSL annual plan customers at the time their current annual plan expires. This surcharge is not a government imposed fee or a tax; however, it is intended to help offset costs we incur from our network supplier in providing Verizon Online DSL service. The Supplier Surcharge will initially be set at $1.20 a month for Verizon Online DSL customers with service up to 768Kbps and $2.70 per month for customers with DSL service at higher speeds.

I don't think we've got a very competitive marketplace if this company can impose another fee on a commodity service.  Prices should be going down, not up.

In the Netherlands they're paying 7 euros for 30Mbps symmetrical service. 

I'm very grateful to Gordon Cook and his friends for many useful pointers.  A recent one went to a 2001 paper by Andrew Odlyzko called "Content is Not King." 

Odlyzko's central point is that content (broadcast, centralized) has generally been less important than point-to-point communication -- most of the money is in communicating, not being entertained.  Indeed, the contribution of "content" to the economy is not that large.

Each old form of technology has its strong adherents who see new things as simply modifications of the old.  When I was writing about the early history of telephony last summer I learned that the first telephony guys were actually telegraph guys.  They took telephony very seriously as a form of telegraphy -- crucial information-forwarding -- and were actually distressed when social use of the telephone became widespread.  And many of the first networked-computer guys were actually researching/timesharing guys, who were baffled when use of email became the killer application (and fewer people than anticipated were actually using the networks for research purposes).

Now, we've got online guys who see the internet as a platform for useful applications -- as a place where people will mostly watch delivered content -- and the tussle is over who gets to control the platform and whether companies should be able to introduce new applications without asking permission.  (Many of my beloved academic colleagues are in this camp.)

But it seems to me that just as content isn't king, applications aren't (really) kings either.  Applications are convenient vessels for human semantic communication.  We're glad there are applications around to help us communicate, but we'll be just as glad when there are even more common/free/open source interfaces that let us get down to the business of socializing effectively online.

Pattern recognition, looking for metainformational depth -- all of this is just socializing in different words.  Whatever layer-interference gets in the way of this human activity should be examined carefully, particularly if the layer-interference is made possible by leverage over crucial bottlenecks.  I have a feeling we'll pay more to socialize online than to watch movies.

A Berkeley professor recommended that I read "Self-Producing Systems:  Implications and Applications of Autopoiesis" by John Mingers. 

Basically, an autopoietic system is a "dynamic network of interacting processes of production" that is contained within a boundary and also produces that boundary -- where the boundary is "maintained by the preferential interactions of its components."  So you're looking for something that produces its own components and whose components in turn create its own boundaries.  This concept helps us understand life.

If all autopoietic systems are the same as "living" systems, then we'd have to say that online communities/societies are "alive."  They have components that are engaged in dynamic, interacting processes; they have boundaries that those components create (membership, activities); their boundaries are maintained by the preferences of their members.  A community, offline or online, creates itself.

Or you could say that some autopoietic systems are alive (like cells) and some (like computer networks) are not.  Or, finally, you could say that only physical living systems are autopoietic -- which seems wrong.  It seems to me that the first choice (all autopoietic systems are "alive") is the strongest. 

Autopoietic systems aren't closed -- indeed, they can't be, because they need energy flows (like new members) to do the work of creating themselves.  Wikipedia is an autopoietic system, arguably.  And it has a great entry on autopoiesis.

Yes, this is a little far-flung -- a "right to life" for online self-created systems.  But instead of always prioritizing the economics of infrastructure companies, we might want to look at the value (the liveliness) of what's going on online.

I was in DC earlier today, and I noticed that I wasn't able to send or receive email using Outlook.  I figured it was just Starbucks/TMobile bossiness.  But no. 

No blogging tonight because I'm trying to quickly clean up my mailbox before it stops working altogether.  The problem?  Nearly two gigabytes of mail -- sent mail, deleted mail, hoarded mail, yet-to-be-responded-to mail, mail I like to look back at, forgotten mail, funny mail.

It turns out (I didn't know this) that no Outlook "profile" can handle more than two gigabytes.  So that particular identity of mine had become nonresponsive.  The guy on the phone said that the profile might have been corrupted and urged me to leave all the mail behind.  With much ceremony, he walked me through creating a new profile -- a new me -- and then we said goodbye.

I'm hoping I can disobey his command because I don't think I can manage without this electronic memory.  I also don't want to rely on webmail because I can't always be online, and I don't like either the Google or Yahoo! interfaces for longterm use (although I use both frequently for list mail and other special-purpose mail).

It's been a sobering experience, this evening of mail.  My new "me" received a bunch of mail that may never be answered -- so forgive me.

Americans have no memory.  That's why it's possible for someone to be doing a remake of "Working Girl," which came out minutes ago.  (At least on my timescale.)

Well, for more than thirty years before Working Girl was first released, AT&T controlled all aspects of telephony in the U.S.  Long distance, local, all the equipment, and all the good research too.  (We're not faulting them for the research -- in fact, we miss it.)  They were an arrogant and clever company -- the largest in the world -- and when some aspect of their business came under some form of control that made it difficult for them to act in anticompetitive ways in that area, why, they just looked for another place to be anticompetitive in. 

AT&T used their monopoly over local service (the telephony last mile) to make it impossible for competition to emerge in long distance or the manufacture of equipment. 

It was all so complicated that the FCC was completely overpowered -- at the antitrust trial before Judge Greene, DOJ called a bunch of former FCC-ers to testify that they couldn't supervise the Bell System.  This wasn't market failure, this was regulatory failure.  Complete inability to cope.

So Judge Greene drove them through discovery and trial with a firm hand, and after 11 months DOJ and AT&T came up with a consent decree. It separated the local telephone part from everything else (putting local service into the hands of seven operating companies made up of 22 former operating companies).  It specifically said that those operating companies couldn't get into offering content, or manufacturing equipment, or operating long distance service -- because they couldn't be trusted not to discriminate in favor of their own stuff.  After the decree and the complicated process of splitting up the company, long distance prices plummeted, a vibrant market for equipment emerged, and the internet arrived.

Here's Judge Green on the content restriction:

The Regional Companies argue at some length that they have no incentive to discriminate against competitors in the information service market because to do so would diminish use of the network and hence cause a reduction in their revenues. But in any market where the Regional Companies are in competition with independent information service providers, their economic interest lies in manipulating the system toward use of their own services, rather than in encouraging maximum use of the network by their information service competitors.

Sound familiar?

So where are we now?  The seven operating companies crept back into long distance service, got rid of the consent decree (and Judge Greene's firm hand) in the 1996 Act, manipulated/litigated their way out of allowing competitive local service to emerge, and now .... they're mostly reconsolidated.  We really have two phone companies in the US:  Verizon and AT&T.

And they don't really have competitors for broadband access -- just gentle telco/cableco giants.  Maybe colluding gentle giants -- the gentlest of all.

Finally, another bit of history:  the FCC was against structural line-of-business limits on the Baby Bells from the beginning.  Is the Commission now more capable of enforcing any rules against these guys than they were before the first "Working Girl"?

So I've decided to read about the AT&T divestiture -- and, boy, does Ma Bell's pre-breakup rhetoric sound familiar. Paraphrasing:

Everything is so much more efficient because AT&T is vertically integrated.  In fact, it would be dangerous to move away from vertical integration -- dangerous to universal service, to the price of local telephone service, and to consumers generally.  And, by the way, it would endanger our networks to allow foreign attachments...

Anyway, so here we are, lovely end of summer day in New York.  With a crash of suits, the students have returned.  The building doesn't seem to be quite ready for them -- a couple of floors are still under construction.  But, heck, classes don't start for four more days.  Dear students, welcome back.

Big and welcome news from Brussels today, as Viviane Reding follows through on her determination to force Deutsche Telekom to open up to competition.  I wrote about this a while ago (here).  Yes, a broad, persuasive, before-the-fact ("ex ante") rule mandating that the IP bitstream of DT be made available for connection.  So:

 Access to the broadband networks of Deutsche Telekom should be granted immediately and without further delay irrespectively of the underlying technology of the network. Any exclusion from the access obligation would jeopardise the working of competition in the market.

and the Commission explains that:

Bitstream access allows competitors to have access to the established operators' infrastructure in order to offer broadband services (for example high-speed internet, telephony) directly to end customers (households and business customers). This is of crucial importance for competition on the end user market.

The Commission also points out that lots of other perfectly respectable countries have mandated this kind of infrastructure access by competitors:

The vast majority of EU member states has mandated bitstream access some time ago. Bitstream access thus is today a reality on the broadband markets of Austria, Belgium, Cyprus, Denmark, Finland, France, Greece, Hungary, Ireland, Italy, Lithuania, Portugal, Slovenia, Spain. Sweden and the UK, with bitstream access in preparation also in the Czech Republic, while other countries (such as the Netherlands) are profiting from strong infrastructure-based competition.

Back to school, back to bitstream, back to remembering the AT&T divestiture.

From the OECD, a useful paper about interconnection online.  It turns out (surprise!) that inter-networking is working fine without intervention.  There are zillion networks out there, and as long as the local telecommunications environment is sufficiently open (all the way to opening up incumbent facilities to competitors), these networks are finding ways to connect on their own:

The greatest cost barriers to any country connecting to global networks are not traffic exchange relationships, in competitive environments, but monopolists charging high prices in the absence of such competition.

Also -- where there's facilities-based competition, broadband prices can plummet and services to rural areas can be profitable.  Global Broadband Battles makes the same point:  Reform to telecommunications regulation (opening up facilities to competitors) is the key to stimulating growth in access.

Thanks to Milton Mueller for the pointer to the OECD paper.

Tom Evslin recently spoke about the need for volunteer monitoring of broadband networks.  There's no question but that making network operation visible would help -- we'd be able to tell whether non-minimal discrimination targeting particular applications was going on.

But it's a tough logistical problem, requiring adept coordination of decentralized data and people:

Each volunteer would download software that triggers their computer to send out test packets called pings to various websites. Because pings automatically trigger a return packet, they can be used to measure the speed of a connection between two computers. Each probe PC reports its results to a central server that can then work out from all the ping times whether packets from certain websites are being deprioritised, and if so by which broadband providers, says Evslin.

The providers will have all kinds of sensible reasons why they're managing their networks in particular ways, and plenty of room for arguments about why any data gathered is inherently inaccurate. But I like the SETI approach, and Tom's idealism is inspiring.

It would also be good to involve actual network researchers to do controlled experiments with the cooperation of the broadband providers.   That's the kind of thing that CAIDA does well.  But it needs funding and support from the right players. It's a big step to require "private" network operators to support research about the operational nuances of their networks. 

We make progress when we can see what we're doing, but on this particular front we'll probably be operating in the dark for a long time.

A Bill of Rights follows the U.S. Constitution to protect us from the depredations of a powerful government to which we have ceded authority.  The existence of a Bill of Rights assumes that there's a powerful entity against which we need protection.

In the draft Stevens bill, the Consumer Internet Bill of Rights assumes that the broadband network access providers are powerful -- but it's not clear that the IBR provides much protection.

First, labeling:  users are "consumers" (not creators) or "subscribers" (think packaged content), and the IBR doesn't apply to video services "in which Internet service is not the primary service."  Because the chief goal of this amendment is to put the incumbent telcos in a position to become broadband video service providers, this exception substantially lessens whatever protections the IBR creates.

The preamble re-uses language that leads into Section 230 -- a section that shields interactive computer services like Yahoo! and eBay from liability for material created by others -- to suggest that network providers should not be subject to regulation.  This is the call of the network companies:  protect us from regulation, and you'll be protecting the internet!  If there were true competition for broadband access, that call might make sense -- as it is, it seems cynical.

But that's just the preamble.

The IBR itself "allows" "subscribers" to access applications of their choice.  That's fine as far as it goes, but it doesn't go nearly far enough.  As Ed Felten has made clear in his thoughtful explanation of the technical issues animating the network neutrality debate, "non-minimal discrimination" by network providers could make for a negative user experience of non-prioritized packets.  Users wouldn't be providing their own attention-feedback for those non-prioritized packets -- rather, the network providers would be choosing winners and losers.  This could have (in my view, would have) negative effects on the evolution of the online ecosystem. 

Again, if there was competition in the market for broadband access, this kind of non-minimal discrimination wouldn't be such a problem.  As it is, however, we have gentle competition among like-minded giants - and very few choices.

The IBR states that "subscribers" can "connect any legal device of that subscriber's choosing to the Internet access equipment of that subscriber, if such device does not harm the network."  Way back, AT&T used to claim that any foreign (not manufactured by them) device would harm their network -- they kept that up for years, and the FCC went along.  AT&T even claimed that non-AT&T covers on telephone books might be included in this argument. Not until 1968, eight years after a court decision asking the Commission to re-examine its policy, did the FCC admit that these restrictions were "unreasonable, unlawful and discriminatorily applied."  

There's no telling what the network providers could claim harmed their networks -- and it would take years to litigate such a dispute.  In the meantime, the device manufacturer would have knuckled under.

Subscribers, the IBR says, will be free to exercise these "rights" as long as they fit with the limitations of the internet service the subscriber has bought.  Through their terms of service, the network providers will simply be able to say that they don't offer pure internet service -- so some applications, some devices, some uses are off limits. Yes, to the extent a provider offers pure internet, they'll have to do that without requiring that the subscriber purchase other services from them -- but they don't have to offer pure internet.

A network provider will be free to do whatever it wants to in the name of "maintenance" or "network management" or "unlawful" uses -- and what those terms mean will be within the discretion of the network provider. 

The FCC will enforce the IBR, according to the draft bill, through its own litigation process.  The Commission is prohibited from issuing any rules or generally-applicable litigation results -- everything will be one case at a time, one drawn-out piece of litigation after another.  This means that most mild irritations/latency/jitter that would cause a user to fall back into the comfortable services provided by the network operator itself will never be made public. 

The bottom line:  The IBR doesn't shift the current situation.  Network access providers have all the power and discretion they want -- and, indeed, this bill if enacted would codify their right to packet-discriminate.

Without visibility as to what's going on (no neutral studies allowed!) or true competitive pressure, users will simply take what they can get, will buy the network providers' packages, and will settle back into their couches.  That's not ideal.

On the other hand, as I've said in the past, the only ex ante rule that will make unfettered internet access a reality is mandated structural separation.  We'd need to turn transmission into a utility in order to change the environment. 

There's a plain-spoken opinion out of the Eastern District of Michigan today. 

The bottom line:  There is no such thing as "inherent power" to violate the Constitution or the laws of Congress:

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution.

The court sees the public interest here -- to uphold the Constitution -- and has granted plaintiffs an injunction stopping the wiretap program.

A set of plaintiffs had the courage, led by the ACLU, to challenge the Bush Administration's warrantless wiretapping program.  A federal judge has had the courage to find that the "state secrets privilege" doesn't knock the case out, that plaintiffs have suffered concrete enough injury to allow them to have standing to sue, and that the National Security Agency has acted in contravention of FISA and the Constitution.

The opinion is squarely and simply written, and careful in its exegesis of "state secret" and standing cases.

This Administration has successfully used the "state secrets privilege" in several cases during our never-ending War on Terror. Their claim is that they can't defend this case without revealing state secrets. Courts have very frequently allowed this privilege to result in having entire cases thrown out. 

In this matter, however, plaintiffs are using only evidence that the Administration has stated publicly -- that for the last five years (1) the President has authorized (and reauthorized) a wiretapping program that (2) operates without warrants, and (3) "targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda."

This can't be secret -- the Administration keeps confirming the existence of this program publicly, almost defiantly.

Although the plaintiffs can't establish their data-mining claims without the use of secret information, the court found that they can certainly establish their case questioning the legality of the wiretap program. And the defendants, our government, has arguments about the legality of the program that don't rely on secrets (but do rely on incorrect legal arguments).

The next big hurdle for the plaintiffs was standing -- their ability to show that they've suffered injury that is concrete and particularized and results from what the defendants did. This could have been tricky -- because no one knows who has been surveilled or how that information is being used.

But the court deals with this easily, because among the plaintiffs are lawyers whose foreign clients will no longer speak to them on the telephone or online for fear of wiretapping -- and so the lawyers have to travel. Expensive, particularized, and concrete injury.  There are also scholars and journalists in the group who have been unable to communicate because of these same fears, and must travel to conduct research and interviews.

More fundamentally, the court sees beyond the formal standing requirements to this essential point:

Although this court is persuaded that Plaintiffs have alleged sufficient injury to establish standing, it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President's actions in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny.

It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights.

This court believes it has a real case or controversy before it.  Denying standing would render the plaintiffs' claims unreviewable and unreviewed.

The strongest part of the decision, and the call to remind all of us why the rule of law matters, comes near the end. FISA was set up to balance executive needs against the privacy rights of United States persons. We've established many special procedures to make it easy for the executive to get approval for wiretaps. To ignore this statute is to ignore Congress -- and that's not allowed.

The wiretapping program here in litigation has undisputedly beeen continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.

Here, the President has ignored statutory instruction -- and so his powers are at their lowest ebb. The Authorization for Use of Military Force on which the Administration relied said nothing about wiretapping.

This may be too plain and workmanlike an opinion to survive the intellectual legerdemain of the best hired-gun appellate lawyer -- but it's right.  It's a good day for the rule of law. 

Today, some juicy and strange legislative provisions in the draft Stevens bill.

"Misleading words or images on the Internet."  That's how the section that begins on p.226 starts.  It's a mighty big subject -- but we do have a focus, and acts defying this language will trigger fines and imprisonment:

It is unlawful for any person knowingly to embed words, symbols, or digital images into the source code of a website with the intent [to deceive another person into viewing material that is obscene] [to deceive a minor into viewing material that is harmful to minors].

I'm guessing this is a repeat of the old meta-tag worries -- "secret" codes designed to fool search engines into listing a site, much to the horror of the inadvertently clicking consumer.  This seems to be a legislative solution in search of a problem.  First of all, many search engines rank according to linkage, not according to those ol' secret codes.  And the engines will give a few lines of text -- which won't be in the source code for a site but will instead be visible.  So what's the problem?

The "harmful to minors" definition is interesting -- it attempts to create a nationwide "community standard" for this material:  

[Harmful to minors material is material that] is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors

COPA targeted speech that was harmful to minors according to "contemporary community standards."  The government argued that that standard wasn't problematic online because most places in America have the same standard.  In the summer 2002 Supreme Court decision, Justice Thomas said that a web publisher had the burden of compliance with the most restrictive jurisdiction into which material was sent.  Justice Breyer didn't agree:

"To read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler's Internet veto affecting the rest of the nation. . . The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious."

Justice O'Connor also agreed in COPA that the use of "community standards" might be problematic online. 

Faced with the oddness of the Thomas position and the concerns raised by Breyer and O'Connor, the drafters of this Stevens bill decided to throw "communities" overboard completely.  The government must be assuming that "prevailing standards of the adult community as a whole" are obvious enough to avoid an overbreadth challenge.  It's easy to predict that there will be substantial and well-grounded complaints about this language.  I don't think the people in my neighborhood (Greenwich Village) have the same standards for what is "harmful to minors" as everyone else, and I don't think there's a "prevailing standard" nationwide.  Who prevails?  What on earth does that mean?

The next section prevents children's programming from presenting interactive commercial matter.  I know that children are big marketing targets, but why not let them interact with the cereal?  How can that hurt? If parents don't like the programming, can't they just turn it off? (ducking) 

The last bit suggests a study of "bus-casting" -- broadcasting on school buses.  Now, I'm against being forced to watch anything -- on planes or buses or in taxis.  So I'm all for looking closely at this.  But I still wouldn't mind interacting with the cereal (or licensed character) if I were six.  Heck, children are exposed to so much media they'll be totally jaded -- they won't care if the licensed character can wave to them.  Stifling interactivity is likely to have negative economic effects on this programming -- look what COPPA did to children's web sites.

Tomorrow:  the vaunted Internet Consumer Bill of Rights.

We are still in the middle of the mammoth Stevens bill.  The world is spinning around us -- interesting things are happening, summer is ending in the U.S., back-to-school ads are everywhere -- but those in Congress are still on vacation.

The next section of the bill (starting on p.206) requires televisions to have digital tuners after March 1, 2007 and begins the process of setting energy standards for the converter boxes that analog TVs will use. 

Starting on p.208, the bill requires cable operators to carry TV stations that are being transmitted in the cable system's locale.  Until 2014, the cable operator can take high definition TV and transmit it as "standard definition" television.  Small cable systems can offer digital TV programs in analog format.  Satellite carriers will have to do the same things that cable systems do.

Section 702 (p.216) reinstates the video description rules that were overruled by the D.C. Circuit in MPAA v. FCC (2002).  Take THAT!

A final section in this Title VII exempts Spanish-language TV stations close to the US-Mexico border from making the transition from analog to digital. 

Title VIII (beginning p. 221) is titled "Protecting Children."  It requires video service providers to comply with future FCC regulations on child pornography. 

Preventing the abuse of children is one of the few almost-international norms we have.  But the next section requires a very careful look:  it requires "warning labels for websites depicting sexually explicit material." 

This is an old, bad issue.  Congress keeps working on laws that will have the effect of limiting access by adults to speech that is legal for adults.  This is an incredibly broad new entry in this old, bad story.  The definition of "sexually explicit" is vague -- it covers "material that depicts sexually explicit conduct."  That could be almost anything in any popular movie today.  The FTC is supposed to develop labels that "will inform any person who accesses that website of the nature of the material and to facilitate the filtering of such pages or screens." 

A recent letter by the Center for Democracy & Technology makes clear why this is such a bad idea.  The labeling requirement will hurt voluntary labeling efforts, won't prevent kids from accessing porn originating from outside the U.S., is tied to a disproportionate criminal sanction, and will prompt sites to self-censor.  Enacting such a provision will lead to years of litigation and won't help to protect children.

That's enough for today.  The next section, which targets "DECEPTIVE WEBSITE DEVICES [designed] TO TRICK INDIVIDUALS INTO ACCESSING MATTER THAT IS OBSCENE OR HARMFUL TO CHILDREN" looks too depressing to deal with until tomorrow.

I'm at the San Francisco airport.  Kudos to them -- it took five minutes to get through security.  I'm not quite sure why this was so easy.  Maybe everyone gave up on flying today.  This gives me a moment to look at the next section of the Stevens bill, starting on p.195.

It's called the Wireless Innovation Act of 2006, but it doesn't seem very innovative.  It says that "certified unlicensed devices" (oxymoronic) may use "eligible broadcast television frequencies."

The certified unlicensed devices have to submit to Commission testing ("to protect licensees from harmful interference from certified unlicensed devices") and have to be remotely disable-able if the Commission decides they're dangerous.  That is a big deal -- that means that these devices always have to be controllable.  A PC isn't remotely disable-able, but it could certainly be something that could use broadcast frequencies.  This requirement could have substantial chilling effects on whatever newfangled "certified unlicensed devices" the Commission has in mind.

It's a step in the right direction to open up spectrum for uses by wireless devices, but the testing and disabling requirements seem to be wrong-footed.  This means that all of these devices will be subject to Commission approval/testing, and that they be hardwired in some way to a central facility.  Not the most flexible approach.

The next section makes more sense -- it requires manufacturers of analog TV sets to let buyers know that starting in Feb. 2009 we'll be cutting over to digital broadcasting and they'll need a converter.  Because a huge majority of Americans already get their television over cable facilities, this transition should work smoothly -- and we have a couple of years to get the news out.  The bill requires both the Commission and broadcasters to help publicize the transition.  Yet another reminder that the Commission continues to mandate that broadcasters control content in particular ways (even though the justification for this is increasingly weak).  

There's an interesting provision requiring TVs to be able to block "programs with a common rating."  As long as the TV owner gets to choose what and whether to block, having this capability makes sense (if the form this capability takes isn't mandated).

Yet another multi-stakeholder group is suggested by this section -- the DTV Working Group.  This is like the group that's supposed to recommend "audio flag" rules.  Who's in this group, and who they claim to represent, will be a source of interest and concern.   

Tomorrow -- p.205 -- the "requirements for digital television sets and certain other equipment."  Yes, this deregulatory bill gets complicated.

After a short break for an incredibly dense and interesting IP conference (thanks, Berkeley -- 84 papers in two days!), we're back to the Stevens bill.

The next section (starting on p. 184) is titled the Community Broadband Act.  What it does is throw up roadblocks for communities that want to provide their own broadband services.

The section does preempt laws that prohibit cities from providing broadband of their own.  But then it goes on to make it quite difficult for the public entity to do this -- taking away with one hand what the bill appears to give with the other.

The city/municipality can't give itself any preferential treatment with respect to rights of way or permits of any kind (even though the city presumably controls those access points). 

The city/municipality has to open up a bidding process to private companies, has to publish all the details of its plans, and has to act as if (as far as I can tell) it was merely an alternative bidder for the provision of these services.  As a final warning to cities, the bill provides that no federal funds will be available to bail them out if things go wrong.

The goal of all of this is to make it tricky for cities to avoid the costs and gatekeeping associated with incumbent local telephone companies when providing broadband services.  These incumbents want to make sure that cities find it very difficult to do for themselves what the local phone companies would like to do.

The Video and Audio Flag portions of this draft bill are among the most pernicious.  (The draft is here.)

The first part of the bill claims to be aimed at protecting digital broadcast video content, but is actually directed towards controlling devices that attach to the internet.  (Plug for article.)   The idea is that all devices will acknowledge and adhere to digital "flags" placed in content.  The flag itself is noncontroversial.  The problem comes when you force all devices to listen to the flag and ensure that flagged content can't be sent online.  So far, the FCC's own approval process has arguably been heavily controlled by the "content industry" -- smothering in the cradle technologies for content protection that were viewed as insufficiently powerful.  The bill provides very few limits on the FCC's discretion to create rules and procedures -- and the FCC's track record in this area so far is not a good one.

The digital audio broadcasting section is curious -- earlier versions of the bill prohibited personal copying.  Now the draft vests complete discretion in the Commission to promulgate regulations about all kinds of digital transmissions.  There's a Digital Audio Review Board established that will advise the FCC and is supposed to work towards a proposed regulation.

When did the FCC become the internet lawmaker?  Why should the Commission be making rules about content online?  There seems to be no limit to the power granted to the Commission under this section:

[T]he Commision may promulgate regulations governing the distribution of audio content with respect to --

(1) digital radio broadcasts;

(2) satellite digital radio transmissions; and

(3) digital radios

What's not included in this description?  Anything and everything can be a "digital radio" - a bit is just a bit.   If the goal of this bill is to be "deregulatory," it's hard to see how that goal is being served. Why create technical mandates in this area?

And, by the way, isn't this bill about telecommunications reform?  What's radio doing in here?

(Apparently the audio flag is essential to Sen. Frist.)

More tomorrow -- plus auction news.

Let's take a look at the section of the draft Telecom Act of 2006 that starts on p.112.  It has to do with "phantom traffic."

It requires that all "providers of voice communications services" (including any online application that's capable of connecting to the traditional phone system) preserve/present information -- like the calling and called parties.  This is supposed to allow "traffic identification" by other providers that transport the traffic.

The traditional telephone incumbents are hoping to be able to charge for all voice traffic, don't want to permit encrypted traffic that they can't inspect, and want to be able to perfectly discriminate between different voice services.

What's odd about this approach?  Well, a bit is just a bit.  A voice bit ordinarily wouldn't look any different from another kind of bit.  There's nothing illegal (now) about encrypting traffic, and forcing voice bits to self-identify is a major change.  The original design of the internet was based on "layer independence" - the idea was that the transport layer wouldn't discriminate with respect to what it carried.  Reinstantiating the complicated system of telephone payments online certainly helps the incumbent telephone companies -- but it's not clear who else it helps.

Traffic without a label isn't "phantom traffic."  It's just traffic.

Then, on p. 122, we get to the video services section.  We've been told by the incumbent telephone companies that this is what they really want.  They want to avoid having to go town-to-town to get franchises to provide broadband video services.  They're seeking to standardize and simplify the process. 

The key question is whether the telcos should get this treatment without having to give up on something else.  Why should they have access to public rights-of-way without having to act like common carriers for these broadband services?  How much subsidization is appropriate?  Why wouldn't we want to wait for real competition to emerge in the broadband access market before giving this central concession to the telcos?  If everything becomes cable-like, we'll end up with a private communications world -- is that what the country wants?

Tomorrow we'll continue -- this time with the Video and Audio Flag subsection.

Recess has begun, so all the Senators can go off on little (or big) trips together.  They'll have with them a new draft Telecom Act of 2006 (enormous pdf).

To all the Senators who are carrying the draft (and the greater number of Congresspeople who just got the ad about the draft) -- I just want to let you know that you can take the first 71 pages out of your notebooks.  That's a repeat of the House bill, which is replaced by the amended Stevens language.  Only 200 pages left!

Now you're ready to plunge into the Universal Service Fund section. (You may want to do some preparatory reading -- Thomas Hazlett, What Does $7 Billion Buy?) 

The key take-away from the USF section:  it vests unlimited discretion in the Commission and the States to assess USF contributions based on any mechanism they choose (phone numbers, revenue, or something else, including assessments based on international portions of service).  Any entity providing broadband service to the public is covered -- as is any online voice application that is CAPABLE OF connecting to the public telephone system, even if it doesn't. 

To keep the numbers from getting too visible, the bill says that the money flow associated with USF will be kept out of the USG budget.

Other provisions in the bill require voice services that are capable of connecting to the traditional telephone network to carry other people's traffic and comply with whatever disabilities-related regulations the Commission comes up with.  This is, of course, in addition to the E911 and CALEA obligations the Commission already said it would impose on VoIP services.  (Plug for recent academic paper on E911/CALEA.) 

So here we have an admittedly broken, bloated, graft-ridden funding system that supports traditional telephone services (largely) and won't help US broadband penetration statistics.  The money to support this system is going to come from free or lowcost or commodity applications of various kinds that happen to use IP and are capable of connecting to those old-fashioned telephone services.  That will lessen the economic viability of these new services, while failing to support the provision of broadband in the US (something we all thought was a national goal).  And all of this will happen under the radar -- in impenetrable FCC proceedings addressed to services the traditional telcos can't stand -- without facing up to our national, general need to fund internet access.

It's true that the Bill sets up a new separate program called the "Broadband for Unserved Areas Program," to be administered by the USF, but that's for a small portion of the money collected for USF.  The vast bulk of the funding is going to go to propping up the existing broken system.

That brings us to p. 111.  On p. 112 there's a section called "network traffic identification accountability standards" that cries out for attention -- but I'll let that wait for tomorrow.  You're on vacation, after all.

[Meanwhile, the D.C. Circuit has asked the FCC and the DOJ separately to file 15-page briefs responding to the recently-filed petition for reconsideration as to the court's affirmance of FCC's interpretation of CALEA.  This is (limited, be cautious here) good news -- it means that the court is taking the petition seriously.] 

I went to a showing of WordPlay tonight.  Afterwards the director (Patrick Creadon) and the puzzle constructor featured in the film (Merl Reagle) and the guy who did the graphics (Brian Oakes) stood up in front of the (smallish) crowd and talked to us.  Total delight.

Here's what Creadon said -- he made the movie because he and his wife (producer Christine O'Malley) are both puzzle fans.  It was originally going to be a movie about Will Shortz, his life, and the people who connect to him, but then it became a more intricate project about the Stamford tournament, the world of "solvers," and the business of constructing a puzzle.  Bill Clinton was great to work with, and once he was involved all the other celebrities showed up -- Jon Stewart, Mike Mussina.

Other tidbits in answer to the audience's questions:  The kid won the tournament again in 2006.  Al got a huge wave of applause when he came to Sundance ("we love you, Al!").  There is no dark side to the world of crossword puzzle solvers.  Scrabble people and crossword people are very different.  "Those Scrabble people are so weird."  Sudoku gets a cool response from crossword people.  Shortz calls his Sudoku books "wordless crossword puzzles."

The film reveals that the community of crossword solvers is very engaging -- Shortz loves getting together with them, and they love getting together with Shortz, and it all seems very warm.  There's a cabaret/talent show as part of the tournament which is touching.  Musicians are great puzzle solvers.

And Merl Reagle, puzzle constructor, is the kind of guy who looks at a sign for Dunkin' Donuts and points out:  "If you take the 'd' from the beginning of 'dunkin' and move it to the end, you get 'unkind donuts.'  And I've had a few in my time."  He had some funny things to say in person tonight about Eugene T. Maleska.  He pointed out that Jon Stewart was a little cruel to say "Bring it on, Will!" when working the puzzle, because it was in fact Merl Reagle who built the puzzle in the first place.

Will Shortz, to his great credit, is the first Times puzzle editor to put the constructors' names next to the puzzle.

Reagle pointed out tonight that his name is printed in 6pt type -- but it's there.

The Atlantic Monthly published its own Wikipedia piece recently (online version here).   If you take the New Yorker profile and mash it together with the Atlantic piece, there's a certain amount of overlap on the plate -- most of the flavor will come from the New Yorker, but the Atlantic has more of the gory Sanger details.  Both are worth reading.

It does seem this month as if the mainstream writing about collective online activity is itself getting more measured and reasonable.  I agreed with just about everything Nicholas Lemann said in this week's NYker about blogging and journalism (even if it's all old news), although I wish he hadn't been quite so unnecessarily snarky and categorical at times.  Not all bloggers think they're journalists, and no one is gainsaying the skills of journalists who have the resources to do deep reporting.

When I was in law school, the institution had a one-year fellowship for a journalist -- he/she took some first year courses and generally became part of the place.  It was a great idea, and I think it served its purpose of revealing some of the mystery of legal thought to the journalists who went through the program. (Guilds are intentionally mysteries -- the point is to keep other people from being able to practice the skills that the trade requires.)

What's the online equivalent?  If journalists need to (do they?) soak up online life for a while so that they can practice its mysteries and not come off sounding hopeless, what's the program?  (In Lemann's words, "traditional journalists answering [the] challenges [of Internet cheerleaders] often sound either clueless or cowed and apologetic.")  Jeff Jarvis has some suggestions. 

But a better approach might be letting reporters have a personality online -- not just the occasional video, but a constant online presence that's more than a byline.  That's the place to learn, rather than in the traditional confines of a business school or a journalism school. 

In the meantime, I'm feeling sanguine about the future of "serious" writing about what's going on online.  Things are looking up. 

(I think learned to use "serious" in this way by going to musicology conferences.  The contemporary music that musicologists talk about is "serious."  The stuff that people actually listen to on the radio is . . . not serious.  There's a similar treatment going on in the blogger-journalist dynamic -- the journalists are "serious" and the bloggers aren't.  But it's all writing, just as the stuff being listened to is all music.  And the "serious" people sometimes have very small audiences.)

All wisdom is collective, right?  ICANN has issued a plea for help with its site.  I'm hoping we'll get a great deal of input.  I do think this is a good sign that ICANN is trying to become more understandable. 

What would you like to see the site do?

It's not easy to tell what ICANN is doing, so how can we make that easier?  What links should the site have to outside resources that could help with news/explanations/commentary about what ICANN is doing?  How can we make the policy process of the GNSO more visible and understandable?  How can the site help with remote participation?  How can we show who the people are that are involved with ICANN? (the ICANNWiki does a great job with this). 

It's a key question:  how can the site help people understand and get involved with ICANN issues without having to spend a year trying to figure out what's up? 

I know, I know, I'm asking for optimism and involvement.  But when it comes to the web site, it's all to the good.  This organization really should have a useable web site, and I do think that ICANN is committed to change in this area.

CDT, EFF, the Media Access Project, Sun, and Pulver.com have asked the judges on the D.C. Circuit Court of Appeals to all sit together to reconsider the June 9 opinion upholding the FCC's creative interpretation of CALEA.

In order for such a reconsideration request to be granted, the petition has to concern a "question of exceptional importance."  That's certainly present here -- the D.C. Circuit's June ruling allowing the FBI to serve as a gatekeeper for online applications doesn't fit with the statute and poses enormous threats to innovation.

Remember, everyone has to comply with lawful wiretapping/interception requests.  Compliance is not the issue here.  The additional cost-shifting burden imposed by CALEA is to require that things be built so that they are easily tappable by law enforcement. 

In 1994, Congress unquestionably exempted the internet (both access to the internet and applications used online) from CALEA obligations.  (That's why there's an awful CALEA rewrite in circulation now -- DOJ wants to change the law.)  Even though the statutory language is clear, the FCC decided to interpret the statute to include elements that had specifically been left out by Congress.

The FCC did this by saying that the statute was ambiguous -- when it isn't -- and by arguing that because "interconnected VoIP" services are "replacements for a substantial portion" of traditional telephone services they must be covered by CALEA.

Their position was/is specious, in my view, because CALEA specfically excludes "information services."  And "information services" include internet access and online applications.

But backing up the frame from the statutory arguments (which the petition admirably presents in visual/analogy form several times) reveals a crucial and enormous legal issue.  Congress hasn't expressly delegated power to the FCC to "regulate the internet."  Who gets to do this "regulation" is very important to the future of this country.  In the absence of an express delegation, no deference to the agency's views is required.  The D.C. Circuit is the group we depend on to rein in the Commission when it gets adventurous -- or succumbs to pressure.

The FCC is far from independent of the wishes of the Executive Branch, particularly when it comes to national security and law enforcement desires.  Incrementally, in a thousand definitional nuances and statutory-creep extensions, the Commission is becoming the de facto internet regulator.  Surely we'd want to have told them to do this; surely we would have thought through the consequences of such a step.  Because we haven't, it would be wrong for a court to defer to what they have to say when it comes to the regulation of the internet.  Particularly when it comes to getting FBI guys involved in designing new online applications.