I spent today in the Lisbon airport, waiting for a flight to take off.  I can see from emails and blog posts that the "what is ICANN?" question is getting some thought, and that's a good sign.  We need to re-examine what the organization is up to and on what basis it should be making decisions about new TLDs.  There's a major process underway to define how we go about opening up new TLDs, as I've mentioned here in the past, and I'm hoping that will suggest an objective way forward that doesn't involve so many Board judgment calls.

In my eight hours in the airport, a lot of different groups of ICANN-meeting people came through the lounge as they waited for their flights.

The ICANN Board voted today 9-5, with Paul Twomey abstaining, to reject a proposal to open .xxx.  This is my statement in connection with that vote.  I found the resolution adopted by the Board (rejecting xxx) both weak and unprincipled.

I am troubled by the path the Board has followed on this issue since I joined the Board in December of 2005.  I would like to make two points.  First, ICANN only creates problems for itself when it acts in an ad hoc fashion in response to political pressures.  Second, ICANN should take itself seriously as a private governance institution with a limited mandate and should resist efforts by governments to veto what it does.

Role of the Board

This decision, whether to admit a particular non-confusing, legal string into the root, is put before the ICANN Board because (1) we purport to speak on behalf of the global internet community and (2) the U.S. Department of Commerce defers to the judgments of that community when deciding what to tell its contractor to add to the authoritative root zone file.

As a Board, we cannot speak as *elected* representatives of the global internet community because we have not allowed elections for Board members.  This application does not present any difficult technical questions, and even if it did we do not as a group claim to have special technical expertise.  So this is not a technical stability and security question.  It seems to me that the only plausible basis on which the Board can answer the question in the negative (“a group of people may *not* operate and use a lawful string of letters as a top level domain”) is to say that the people affected by this decision have a broadly shared agreement that the admission of this string to the root would amount to unjustifiable wrongdoing.  Otherwise, in the absence of technical considerations, the Board has no basis for rejecting this application.

Let me explain.  The most fundamental value of the global internet community is that people who propose to use the internet protocols and infrastructures for otherwise lawful purposes, without threatening the operational stability or security of the internet, should be presumed to be entitled to do so.  In a nutshell, “everything not prohibited is permitted.”  This understanding, this value, has led directly to the striking success of the internet around the world.

ICANN’s role in gTLD policy development is to seek to assess and articulate the broadly shared values of the internet community.  We have very limited authority and we can only speak on behalf of that community.  I am personally not aware that any global consensus against the creation of an .xxx domain exists.  In the absence of such a prohibition, and given our mandate to create TLD competition, we have no authority to block the addition of this TLD to the root. 

It is very clear that we do not have a global shared set of values about content online, save for the global norm against child pornography.  But the global internet community clearly *does* share the core value that no centralized authority should set itself up as the arbiter of what people may do together online, absent a demonstration that most of those affected by the proposed activity agree that it should be banned.

Process

More than three years ago, before I joined the Board, ICANN began a process for new sponsored top level domains.  As I have said on many occasions, I think the idea of “sponsorship” is an empty one.  *All* generic TLDs should be considered “sponsored” in that they should be able to create policies for themselves that are not dictated by ICANN.  The only exceptions to this freedom for every TLD should be, of course, the (very few) global consensus policies that are created through the ICANN forum.  This freedom is shared by the country code TLDs.

Notwithstanding my personal views on the vacuity of the “sponsorship” idea, the fact is that ICANN evaluated the strength of the sponsorship of xxx (the relationship between the applicant and the “community” behind the TLD) and, in my view, concluded that this criteria had been met as of June 2005; ICANN then went on to negotiate specific contractual terms with the applicant.

Since then, real and “astroturf” comments (filed comments claiming to be grassroots opposition that have actually been generated by organized campaigns) have come in to ICANN that reflect opposition to this application.  I do not find these recent comments sufficient to warrant re-visiting the question of the "sponsorship" strength of this TLD which I personally believe to be closed. 

No applicant for any “sponsored” TLD could ever demonstrate unanimous, cheering approval for its application.  We have no metric against which to measure this opposition, and thus we have no idea how significant it is.  We should not be in the business of judging the level of market or community support for a new TLD before the fact.  We will only get in the way of useful innovation if we take the view that every new TLD must prove itself to us before it can be added to the root.

It seems to me that what is meant by “sponsorship” (a notion that I hope we abandon) is to show that there is enough interest in a particular TLD that it will be viable.  We also have the idea that registrants should participate in (and be bound by) the creation of policies for a particular string.  Both of these requirements have been met by this applicant.  There is clearly enough interest (including more than 70,000 pre-registrations from 1,000 or more unique registrants who are members of the adult industry), and the applicant has undertaken to us that it will require adherence to its self-regulatory policies by all of its registrants.  To the extent some of my colleagues on the board believe that ICANN should be in the business of deciding whether a particular TLD makes a valuable contribution to the namespace, I differ with them.  I do not think ICANN is capable of making such a determination.  Indeed, this argument is very much like those made by the pre-divestiture AT&T when it claimed that no “foreign attachments” to its network (like answering machines) should be allowed, in part because AT&T asserted there was no public demand for them.  The rise of the internet was arguably made possible by allowing many “foreign attachments” to the network – called modems.

We established a process for sTLDs some time ago.  We have taken this applicant through this process.  We now appear to be changing the process.  We should not act in this fashion.

Politics

Discomfort with this application may have been sparked anew by (1) the letter from individual GAC members Janis Karklins and Sharil Tarmizi (to which Amb. Karklins has told us the GAC acceded as a whole by its silence), and (2) the letter from the Australian government.

I am not at all opposed to receiving advice from the Government Advisory Committee.  But the entire point of ICANN’s creation was to avoid the operation of chokepoint content control over the domain name system by individual or collective governments.  The idea was that the US would serve as a good steward for other governmental concerns by staying in the background and overseeing ICANN’s activities, but not engaging in content-related control.  Australia’s letter, and concerns expressed in the past by Brazil and other countries about xxx, are explicitly content-based and thus inappropriate, in my view.

If, after creation of an xxx TLD, certain governments of the world want to ensure that their citizens do not see xxx content, it is within their prerogative as sovereigns to instruct internet access providers physically located within their territory to block such content.  Also, if certain governments want to ensure that *all* adult content providers with a physical presence in their country register exclusively within xxx, that is their prerogative as well.  (I note that such a requirement in the U.S. would violate the First Amendment to our Constitution.)  But this content-related censorship should not be ICANN’s concern, and ICANN should not allow itself to be used as a private lever for government chokepoint content control by making up reasons to avoid the creation of such a TLD in the first place.  To the extent there are public policy concerns with this TLD, they can be dealt with through local law.  Registration in (or visitation of) domains in this TLD is purely voluntary.

If ICANN were to base its decisions on the views of the Australian (or US, or Brazilian) government, ICANN would have compromised away its very reason for existence as a private non-governmental governance institution.    

Conclusion

I continue to be dissatisfied with elements of the proposed xxx contract, including but not limited to the “rapid takedown” provision of Appendix S,[1] which is manifestly designed to placate trademark owners and ignores the many due process concerns that have been expressed about the existing UDRP.  I am confident that if I had a staff or enough time I could find many things to carp about in this draft contract.  But I am certain that if I complained about these terms my concerns would be used to justify derailing this application for political reasons. I plan, therefore, to turn my attention to the new gTLD process that was promised for January 2007 (a promise that has not been kept) in hopes that we will someday have a standard contract and objective process that can help ICANN avoid engaging in unjustifiable ad hoc actions.  We should be examining generic TLD applicants on the basis of their technical and financial strength, and we should avoid dealing with “content” concerns to the maximum extent possible. We should be opening up new TLDs.  I hope we will find a way to achieve such a sound process in short order.

Today's overarching issue: how ICANN educates and communicates.  The organization had trouble telling people that new top level domains had been opened up (like .museum and .info) and so for years some web sites and applications that asked for email addresses rejected any TLD that wasn't com/net/org or a recognized country code.

Today during the public forum we heard from a lot of people who want better education/communication efforts.  Registrants need to know about the risks of registering a domain name and not keeping their information up to date with a registrar -- and might need to understand how the system works and what they're really getting when they register a name.  Hardware manufacturers might want to know about IPv6 and that they'd save effort/money by dealing with it now rather than waiting for later.  Users might want to know about IDN and what it means.  IANA might want to find a way to describe what it does so that people don't send them 13,000 emails a month complaining about things that IANA doesn't do.

Oh, and we also discussed .xxx.  More about that tomorrow.

The room wasn't actually buzzing with energy (in fact you'd have to say it was near empty), but there was a big governance biological petri dish moment today:  the ICANN experiment may become a private international organization, based in the US.  There are lots of steps between here and there, but it's starting.

Needed:  much more detail about accountability -- without the backstop of the USG and litigation pressures, and with no ability to remove Board members or GNSO Council members, who's going to tell ICANN when they've overstepped in some way?

Most of the public forum this morning at the ICANN Lisbon meeting was taken up with presentations about what ICANN is doing:  the President's Report [not yet available online], the report on the organizational plan, reports about the new web site [coming soon] and the new public participation site.  The increased transparency efforts are very good indeed. [Joichi Ito is taking pictures.]

There was a discussion about the RegisterFly situation -- again, very good communications at this meeting, with a fact sheet available, and an experienced group of commentators available to speak from the stage (from the At Large Advisory Committee, the registrars, and the Security & Stability Advisory Committee, among others).

Now we're in a public forum about new top-level domains, and Bruce Tonkin is pointing out that "natural persons no longer necessarily associate themselves with countries, but with international communities of interest."

Well, today for me began with an early morning committee meeting, then moved into a "welcome to ICANN" panel, and now I'm in a Board meeting that will last all afternoon. 

The "welcome to ICANN" session, ably led by Paul Levins, had some interesting moments.  The chair-elect of the Governmental Advisory Committee, Amb. Janis Karklins, in answer to a question about why some GAC meetings are closed to the public, indicated pretty firmly that he was working on opening up those sessions.  That's good news.

"Top level domains" are things like .com, .net, .de.  Historically, we haven't had very many of them, and the process for creating new non-country-code domains (.de and .fr are country codes) has been slow and often inexplicable from the outside.

The policy advice arm of the generic top level domain world within ICANN is called the Generic Names Supporting Organization.  (Generics are domains other than country codes, in general.  Generically.)  That group has a leadership council called the GNSO Council.

The GNSO Council is right now working on a set of policy recommendations about how to create new top level domains in a standard way.  As you might imagine, there are many questions being raised about how to resolve conflicts among applicants and what strings (sets of letters and numbers) should be considered acceptable -- also which strings should be "reserved" (made unavailable for various reasons).  ICANN's current draft operating plan puts aside more than a million dollars for this process.

The same communications principles/decisions keep coming up as part of this discussion.  What is ICANN's role?  Are new TLDs (that's the lingo) like spectrum allocation decisions (traditionally viewed as public resource management, in which the licensee takes on public trustee obligations) or like potential new newspapers (traditionally viewed as private actors subject to no particular licensing regime other than compliance with applicable law)?

My view is somewhere in the middle.  I think that the scarcity we now have in gTLDs has been entirely artificially created, and that it should be possible to have many more of them -- subject to the resource constraints of making sure that the applicants are technically and financially viable.  These resource constraints might require creation of a limited number of TLDs each year.  It's fine with me to have some kind of minimal "objections" regime to show whether there is some global consensus against the creation of a new string.  But in the absence of such a consensus, I'm not sure that ICANN has any particular legitimacy to serve as a gatekeeper for the content of particular strings.

I'm also not sure that the demand to create these things is limitless, and I think given the important roles played by search engines people will run out of energy to invest in a new TLD.  People "find" things online without searching for particular strings in their browsers -- instead, they search for names inside search engines. But for the moment, there are applicants who want to run new TLDs and they should have a predictable process to go through.  Once they're created, they'll need to be subject to global consensus policies about stability etc.

If you have any interest in this subject, follow the links above and you'll see where the GNSO is.

==update:  and there's a public forum on this topic on Monday here in Lisbon, from 2pm to 4pm (five hours ahead of NYC).  It will be webcast and you'll be able to send in comments before and during the forum.

Three years ago, EFF proposed a voluntary collective licensing system.  (The Progress and Freedom Foundation didn't like it.)  People who download music won't have to pay, but if they do pay some small monthly amount ($5), they'll be immune from infringement actions.  The fee will be bundled into monthly access bills, and you'll scarcely notice it.  If you're caught not paying, then you'll have to pay up.

This was/is similar to the fine work of Terry Fisher in Promises to Keep, first talked about several years ago. 

Both EFF and Fisher have some mileage to cover:  how to get all the music companies to sign up to a single collective rights society for online downloads, how to get the charges flowing, how to get the payments flowing back to labels (and maybe to artists, but we all know that labels get the royalties).

But it's clearly the answer, and we'll get there eventually.  Just a lot of mudslinging between here and there.  I realize that it isn't terribly bloggy to write about something that EFF and Fisher have been talking about for years, but it seems like a good moment to bring it up -- what with all the lawsuits these days.  Now that it's clear that other recording industry efforts just aren't working (WSJ headline:  Sales of Music, Long in Decline, Plunge Sharply), maybe collective licensing will start to look like a better idea.

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Speaking of mudslinging, I'm in Lisbon for the next ICANN meeting.  A huge list of issues:

Board decision on .xxx

DNS Root server attack

Management Operating Principles on Transparency and Accountability

MOU signings with new Regional At Large Organizations

President’s Strategy Committee final report

WHOIS data

Registerfly accreditation termination and broader discussion of accreditation processes

IDN laboratory testing and next steps

ICANN Operating Plan discussion

I'll try to keep up with things here, but check all of those more-open-these-days ICANN sites and blogs for information.

Today a federal judge in Philadelphia permanently enjoined enforcement of COPA.  This isn't, of course, the end; the statute has already been on two round-trips through the appellate system on the way to the Supreme Court.  But it's a good moment for the First Amendment.

Justice Kennedy's 2004 Supreme Court COPA opinion remains one of my favorite legal and data-visualization moments.  And now we have another judge reminding us that filters are less restrictive and more effective than vague government mandates.  Filters aren't perfect, of course, but they provide a way for every family to choose what online content they want their children to bump into.  And that's less restrictive than imposing criminal penalties on speech that is legal for adults.

===

I've just been watching the open FCC meeting online.  The big items so far were (1) reclassifying wireless broadband access as an information service, and (2) opening a Notice of Inquiry on network neutrality.

Commrs. Copps and Adelstein seem to feel they are in the uncomfortable position of having to vote for things that they don't really believe in.  Making wireless broadband an information service throws us (over and over again) into the featureless soup of Title I as the FCC makes rules about the most important economic engine of our time -- the internet.  We've never had a national debate about whether the Commission should be in the business of making rules for the internet.  It's just happening, through deference, design, and Congressional inactivity.  Copps expressed some of this, pointing out that the "indeterminate Title I limbo doesn't amount to certainty" for investors, businesses, or end-users.  And Adelstein noted somewhat sourly that no one had asked for this regulatory re-classification. 

Commr. McDowell made some very effective points about the Notice of Inquiry on network neutrality.  Sure, there's concern that an NOI just puts things on the back burner -- but no one has filed any NN complaints or petitions for rulemakings.  So this is the time to gather information about what's going on.  Adelstein said the true thing:  of course network providers are on their best behavior now, but we should be concerned about their public statements and their clear intent to discriminate. 

At any rate, it's to be hoped that there will be a lot of energy devoted to getting useful empirical information to the FCC in response to the NOI.  One enormously important point to be made:  We have no idea what's happening inside these networks because they're all proprietary.  No researchers are allowed in.  So how can we know whether discrimination short of outright blocking is actually happening?

Here's Jay Rosen's Wired piece on Assignment Zero. Here's the key blog that Jay says is the way to keep in touch with the project.

In the last week, 650 people have joined the team.  They're looking for assignments and ready to go -- the first meta story is about the crowdsourcing phenomenon itself.  So yesterday someone noted that the 3,000 US Attorney-firing-related emails had been extensively dug through by the online world just after their release.  That's a story. And they're planning to interview key crowdsourcing people and entities.  It's a sprawling, lively, idealistic, graphically-pleasing project, and it's just getting started.

I love it when the NY Times arrives at my doorstep every morning, and I never want to miss it.  But Jay's "pro-am" work is inspiring and will likely produce unexpected and rich results.  As he says:

In this project, we're trying to crowdsource a single story, and debut a site that makes other such reports possible down the road. But we don't know yet how well our site and our methods work. Our ideas are crude because they are untested. By participating, you can help us figure this puzzle out.

This is exciting, but it needs critical mass.  They've got professionals there to sift, assign, and help edit.  If you've got any interest, try the amateur role.  Help Assignment Zero collectively figure out how to harness the power of minds online to produce a new kind of journalism.

1.  Yesterday I heard a talk by Gunther Teubner.   Teubner is the key person who writes about law and autopoiesis.  Some key snippets from my perspective (paraphrasing mine):

We're always tempted to say that there are democratic deficits everywhere.  We look for delegation and binding to political processes.  But we've gradually exhausted our democratic imagination through all of these experiments.  Maybe we should turn things around and look outwards at social institutions that are not necessarily democratic and yet are making great contributions to the world in their various sectors. . ..

By "self-regulation," I don't mean a closed field that doesn't look at the outside world.  Regulation is only possible when external pressure persuades/moves a system to change its direction.  Regulation only works with inclusion, so law does of course include political processes but re-understands and reconstructs them.

Teubner says that modernity is characterized by a lack of embeddedness/connection to particular nations or regimes.  He's not particularly easy to understand -- this was a very dense talk -- but the links between what he says and the internet are fascinating. 

It may be that we are at an interesting juncture in our history of explanations as to why some people get to tell other people what to do.  Online, there is no sovereign to whom we owe allegiance; things are all very modern in Teubner's terms.  But we still have regimes/systems online that have rules that we pay attention to because we've joined in.  These non-state actors are often given deference in various ways, and could be said to have "constitutions."  All in all, a thought-provoking time with Teubner.

2.  When I was spending time on E911 last year I was very grateful for a 2003 paper [pdf] by Dale Hatfield that explained exactly why 911 was so hard for wireless carriers to implement.  So I was troubled to read last week that the FCC had apparently squashed a 2006 report by Hatfield about more E911 implementation issues.  Here's the squib:

Satellite-based emergency 911 technology often can't pinpoint the location of cellphone users dialing 911 from homes, offices, sports arenas and other indoor locations, a never-released report commissioned by the Federal  Communications Commission concluded last year. More than 60% of wireless usage now takes place inside buildings. The report's author, Dale Hatfield, found that the rush to embrace wireless has only exacerbated the problem with the 911 service designed for mobile phones. So what happened? Hatfield's report says the public never heard about his concerns because the FCC decided to terminate the study a few days later. His report, details of which were presented to FCC staff, was never finished or released. He never presented the report directly to Chairman Kevin Martin or the other commissioners. "(The study) was terminated," says Hatfield, who performed the work on contract.. . . Hatfield says the unpublished report was supposed to be a follow-up to a 2003 report he did for the agency on the same subject.

A Pennsylvania Congressman, Mike Doyle, recently asked the FCC why this happened.  My personal theory is that the Commission doesn't want anyone to know just how hard it is to provide mobile 911 service -- and how much harder it is for VoIP providers to do it.  VoIP providers were given a few months to figure this out, while wireless providers have had a decade or more. [Here's the paper I wrote about all this.] 

Just another day at the FCC.

Back Tuesday March 20.  Notwithstanding the current "wintry mix" here in NYC, this is a time for a brief break.

ICANN announced today that it has launched (re-launched) its public participation site at a permanent URL:  http://public.icann.org.  The idea is that we'll (I'm on the ICANN Board) be able to have "proceedings" of meetings immediately available and will be able to get remote questions/comments made visible and available in a timely way.  It should make it easier to participate remotely in these meetings.

The ICANN Blog is doing well and deserves watching.  All in all, progress.

I will be on the Lehrer show tonight, during the last 20 minutes or so of the hour, talking about Viacom v. Google.  More tomorrow.

Looking back at the origins of universal service here in the U.S. (Reed Hundt's line:  when we say "universal" here, we mean "American"), it's useful to remember that it's always been used for purposes other than getting communications services to rural/needy areas.

Milton Mueller's fine book makes clear that when the Bell System's Theodore Vail made up the term "universal service" in 1907 what he was really trying to do was squelch competitive phone networks -- there were a lot of them, and they were doing very well, and Vail wanted to convince everyone that one phone system would be a far better idea.  So the idea behind universal service in the early 20th century wasn't spreading phone connectivity (competition had been doing a good job at that) or underwriting costs (because costs were being pushed lower by competition).  It was, instead, the notion that being able to reach everyone on a single, centrally-managed phone network was a good idea.

Using the slogan "One System, One Policy, Universal Service," Vail managed to get his monopoly established and stamp out competition.

In the modern era, "universal service" is a mysterious conglomeration of implicit subsidies and thinly-related programs, all funded by revenues on various telecommunications services.  The 1996 Act says that it's supposed to be funded by telecommunications carriers providing interstate telecommunications services -- in other words, phone companies.  The phone companies pass the charges on to customers, and no one really pays attention to what's going on.  The school and libraries components of the companies have been particularly prone to graft and corruption.  In general, it's a mess.

About nine months ago now [pdf], the FCC both extended the contribution base for universal service (a program that spent $6.5 billion in 2005) to "interconnected VoIP" revenues and raised the expected contributions for wireless carriers.  This is the third leg of the "let's get VoIP" scheme -- E911, CALEA, and now universal service.  Patient visitors to this blog have heard me talk about the E911 and CALEA elements of this program in the past. 

Well.

Instead of fixing the USF program as a whole, and making it rational/coherent/based on providing highspeed access to the internet (rather than subsidizing phone service), the Commission last June adopted an interim approach that charges "interconnected VoIP" with contributing to the same bloated/broken program.  The definition of "interconnected VoIP" will certainly broaden in the future -- right now it means anything that enables real-time voice communications, uses IP equipment, and is capable of allowing users to connect to the traditional phone system.  But in the future, that definition could expand to cover anything that the FCC views as substituting for traditional phone service (like, say, virtual world voice) and the USF obligations imposed by the Commission would continue to apply.  (As usual, the jurisdictional basis for all of this is adventurously shaky -- the FCC refuses to say whether VoIP is an information service or telecommunications service, and waves its hands and says 'ancillary' in a deep voice).

It seems to me that, once again, "universal service" is being used adventitiously.  It no longer is a program under which some phone subscribers underwrite other phone subscribers (the way we used to use long distance revenues to subsidize local phone service).  Instead, it's a program under which new forms of communications are being used to subsidize old ones, with hidden fees and impossible-to-calculate cross-subsidies.  And it's a mess that is expanding irrationally.
 
Surely we can do better.  If universal service means supporting internet access for all in this country, it should be a straightforward program that is paid for out of general revenues rather than out of a tax on innovative VoIP services.  Why punish VoIP?  Why support a program that is widely viewed as being entirely broken?

As it was for the early Bell System, "universal service" is a concept that can be useful in squelching competition.

I talked to an early computer guy this evening, just briefly.  He started working in the computing field in 1955.  He said that the computer science field is noticing that students seem to believe that there's nothing interesting left to do.

"But they're wrong," he said.  "It's never been more exciting than it is now.  Things are moving so quickly."

We also talked about Doug Engelbart and JCR Licklider and John Holland and Stuart Kauffman.  Of ourse, he knew or knows all these people.  I said it would be great to have a cultural history of the Santa Fe Institute.  He said he knows of a novel being written about it.  And he twinkled.

That was the title of a presentation I heard a couple of years ago at a Gruter Institute meeting called "Law, Behavior, and the Brain."  It was a lively conference, with top-flight chimp people, neuroscientists, and a few law professors.  There were neurological skits after dinner.  (You'll just have to imagine.)

The heart and soul (and brain) of that conference and many other similar conferences was/is Owen Jones of Vanderbilt.  Today the NYT Magazine ran a piece by Jeff Rosen about Owen's work and its implications:  "The Brain on the Stand."  Rosen captured the gee-whiz character of some of the discussion very well -- many of the people involved are very excited about their work and can't wait to tell you all about it.  But he also conveyed the fascinating potential of neurolaw.

If it turns out that humans strongly, fundamentally want to cooperate and share (and take a look at "A Brain for All Seasons: Human Evolution & Abrupt Climate Change," a wonderful book by William Calvin, in this connection), then maybe expanding intellectual property law doesn't make cognitive sense.  Now, how will we know about this human desire?  Will we really look at pictures of the brain reacting to IP claims?

Perhaps. That's the thing about neurolaw.  A lot of the work now focuses on pictures of the brain in action, reacting to various stimuli. Right now we're seeing blotches of color, and people make arguments about what those blotches mean.  Rosen focuses on brain-oriented defenses to liability, criminal and otherwise, and his story about seeing his own brain light up in response to scenarios and punishment choices is worth remembering.  We don't know a lot about the import of those blotches ("just a lot of pretty pictures"), but we're making progress. 

Whether to blame the behavior or the brain is an enormous question.  (A related question comes up in cyberlaw-- whether to blame the technology or how it is used.)  Owen Jones's work may help us answer the question. (Bravo to him for all the grants and the years of focused research.)

Rosen wisely winds things up by reminding us that judges will make the decisions in this area.  It's clear that they'll be looking at a lot of visuals.

My cab driver slammed his hand against the wheel in frustration.  Nothing was moving, and we were inching our way up Massachusetts Avenue -- plus, some eastern European (diplomatic plates) driver near us was blasting bad techno-polka music on his car stereo with the windows open.  The problem turned out to be a power outage in Northwest DC, and the absence of traffic lights at rush hour was causing a lot of congestion.

The techno-polka guy finally crept away from us, and after a long time behind a belching bus we ended up at Ward Circle.  "It's that building, the new one," I said.  "No lights there either," he replied.

I gave him a big tip and dragged my many bags up to the American University recital hall building.  The hall's stage manager was standing outside, moodily smoking a cigarette.  "No power.  Generator lights only."  The stage lights took so much power to run that they'd been cut off at some central point.  So there wouldn't be any way to read the music.

I was there for a birthday concert (pianist had the birthday) that had been elaborately planned, to the point of bringing us down from NY to play (surely there are musicians in DC?) and hiring a caterer.  I decided that my top priority at that moment was putting down all the bags I was carrying, and the stage manager seemed happy to have something to do so he let me into the dim hall.  I headed toward the green room.  "No lights there.  And no lights in the bathroom," he said.

The pianist arrived and marshalled her many friends into getting candles and flashlights together.  My job became to get dressed in the dark.  (Not easy, I can report.)  Eventually the audience arrived -- they'd been stuck in traffic too. 

So we decided to play with candles and flashlights.  Suddenly the generator lights went off too, and the audience was in complete darkness, in a dark hall, looking at us (presumably -- nothing else to look at), our faces and music lit up with tens of candles and carefully-placed flashlights set up on flattened music stands.  The stands were perilously close to our elbows, but we didn't knock any of them down and we didn't catch on fire.  But it was very very hot up there with all the candles.

The lights went on and off a few times, and then triumphantly and finally on at the beginning of the second movement of the second piece.  The audience murmured and we kept playing.

In the end things turned out fine.  The music was better than techno-polka, the birthday celebrant was happy, and there were lots of lawyers on hand to discuss the romance of the power outage.  Driving back down Massachusetts Avenue was easy.

1.  Verizon's injunction against Vonage seems like a death blow, from what I can understand.  Verizon has no reason to settle or otherwise buy out Vonage; Vonage may have insufficient resources to challenge the validity of Verizon's patents.  It's been a strange story from the beginning.  Vonage is brave and popular, but they depended on the kindness of the network owners to exist.  By rights they should exist, and their customers will be sorry to see changes.  Do all "independent" VoIP products escape this cloud?

2.  We could really use data showing that the incentive to invest in highspeed internet access networks isn't dampened by regulatory neutrality (or other related) requirements. Is the UK a possible source?

3.  Barack Obama had a fundraising event in DC last night and I decided to go.  He didn't mention telecommunications policy, but he had a lot to say about health, education, and serious US financial problems.  His voice is compelling, and his law school friends say he's always been exactly like the way he is now -- earnest, smart, committed, listening.  The crowd was enthusiastic and asked good questions.  My favorite line from Obama: 

Q:  How do you compare yourself to Hillary Clinton?
A:  [pause] I'm taller.

Sen. Obama's presidential announcement included these words: it's time to "lay down broadband lines through the heart of inner cities and rural towns all across America. We can do that."  Can he carry out his plans?  Will he get roughed up by the Clinton juggernaut?

Along with about 700-900 tech policy people, I saw Bill Gates speak tonight at CDT's stupendous celebratory dinner tonight.

The most memorable part of his talk tied access to knowledge and the affordances of the internet together.  I think what he's done with his foundation is honorable and worthwhile, and the slightly snarky comments near me stilled when he talked about micro-investments in other people's efforts online.

He looked both younger and older than I thought he would -- hair darker, but one shoulder visibly stooped.  You can see what he might look like in twenty years.  Slightly nasal voice.  He got off a good joke:  Time's approach to the Person of the Year this year (the reflective square on the front cover, celebrating user-generated content) effectively made him Man of the Year two years in a row -- he just had to share it with others this year.

Microsoft's attacks on Google right now seem aimed at deflecting attention away from MSN's antitrust problems in Europe.  I don't charge Mr. Gates with these attacks; he seemed above the fray this evening.

Theirer:  Scarcity no longer a useful rationale for regulating broadcast.  Even FCC has said this in 2005 -- staff paper, overlooked, but they said it!

Pacifica/seven dirty words; broadcasting "uniquely pervasive" for children..that was the rationale for second-class treatment of broadcast.

So now we've got abundance and policymakers are trying to figure out how to catch up and regulate anyway.  Don't make fun of them -- they're working on this.  Efforts underway to apply old rationales of Pacifica to new technologies under the theory that everything is pervasive and uniquely accessible to children.  In a way, that's true, and it is strange to impose sterner rules on broadcast (protecting adults from themselves).  At any rate, playbook is to expand old rationales to include new technologies.  So many proposals I can't even list them all (go look at cdt.org).  It's stunning.  New one would require NTIA and DoC to create labeling regime for all new web sites; mandatory XXX zoning; COPA; data retention and age verification...

That's where the real threats are -- data retention.  It's likely that something on this will come out of Congress, and something on age verification from state AGs.  This is grave.  We have been relying on courts to hold the line, and they've been doing well (but COPA could go either way). 

I'm trying to take big tent approach to this issue, fighting for freedom of expression across all media platforms.  Regulation of one platform means ALL will be regulated.  So we need to work together.  Policy makers are not stupid and they want to reach all of these new platforms.  "We either hang together or hang separately."

Question:  What do you mean by data retention?

Theirer:  ISPs and site would have to collect data on their customers, like IP address, for at least a year and maybe longer.  It's already in place in EU, DOJ is enthusiastic.  We don't know what problems this will create.  There are agreements to retain for six to nine months or longer (voluntary agreements).  Most of these sites will preserve on official request if there's a bad guy.  Do we go from preservation to fullblown retention model?  Good chance of this.

Age verification:  requiring social network sites to authenticate identity of individuals for age.  Even though nation has no infrastructure for identity.  It won't work, will create false sense of security, but protecting kids is popular.  Just debating AGs about this.  They honestly believe that social networks are essentially evil.  You have a moral panic out there.  Adults have no idea and don't understand.

Peter Swire (talking about Yochai Benkler's "Wealth of Networks").

Overview:  doing a project re how internet changes "consumer protection," and it morphed.  These words "consumer" and "producers" are economic words.  Two critiques:  why claimed shift from market to nonmarket is overstated.  Why an economics-based alternative is pragmatically useful.

People here are cheering for Yochai's vision.  And that's all good.  But I read the book and I have some thoughts.

Here's outline:  Your laptop is a personal mainframe.  About the processing power of 10 years ago that was in a mainframe.  We own an information age factory. Consumer is an owner of the means of production, which is "economic" language.

Linked to a global distribution network.  So if we use words "consumer" and "producers" opposites converge.

Consumer protection law -- changes all kinds of legal regimes.  

What party cares about consumers -- Democrats.  What party cares about small business?  Republicans.  But both are becoming the same.

Link to wealth of networks -- shift to "non-market" he'll poke at:

Social production -- increases relative efficiency of non-market production.  Benkler rests his argument on a shift to social away from proprietary and market.  Swire doesn't think shift to nonmarket is proven, and he suggests we'd want to deploy an economics-based approach.

I think nonmarket is defined too broadly.  IBM and others investing billions in open source.  And there's been a big source to market with these things.

Second:  This book was about startup phase of Web 2.0.  Early adopters are passionate people.  As niche grows, then division of labor, and paid professionals show up.

Domain names:  Used to be Jon Postel.  Now ICANN.  And bug hunters expect to get paid.

PR etc. going to wikis etc.

The internet:  from non-commmercial (1993) to commerce (today).  Certainly commercial.

Third point:  economist would agree that costs have gone way down, supply curves going up, more production happening.  We expect a lot of market things to follow from this!  

Even if you don't agree that the shift has happened, here's a way to think about this.  An exciting transformation, but market is an alternative description of what we're seeing.

Technological exceptionalism is a dificult claim.  Change in technology hasn't shifted us to nonmarket relationships.
That's contestable.  And complicated.  Simpler to say usual market view that reduction in cost leads to expansion in supply.

Third:  Pragmadics:  what audiences matter.  You should care about policymakers and people in business, who are market involved.  We want to have a persuasive market-based way to get to the outcome.

I do agree that exciting things are happening online, but shift to nonmarket is overstated and we need economics-based rhetoric to convince people.

Benkler:  This isn't inconsistent with what I've been saying, just means you're functioning through a system other than price system to allocate effort.  What's that system?

To use a system that is not directed (direction, intensity) by price system, and call that "market," you're using "market" as a metaphor and a security blanket.  

My claim is that price mechanism occupies a smaller portion of the totality of motivations in the world.  Whether you're a business or another actor, that should matter; you need to accept a distinct system of motivations and symbols that is outside the price system.

And to claim that I'm not using economics in this book is surprising.

Second, this idea of Occam's Razor.  To say when you change cost to economically significant actions affects production -- that's NOT technological exceptionalism.

Yes, costs matter, human capital and physical capital etc. all matter -- this one component has changed dramatically, the cost of production.  This decline has declined in such a way that a whole set of behaviors are BECOMING the economy.

When I talk about "nonmarket," I'm interested in freedom and justice; having a diverse set of motivations is what gives us change in these domains.

Swire:  Yochai is clarifying what I understood of his book.  But I'm still right that we're moving from hobbyist to professionalism.  So we shouldn't wonder at Web 2.0.

Benkler:  If this happens, is it a natural organic move or because a consequence of policy.  Look at 1920s amateur radio hobbyists.  Hoover cooperated with big industry to move them off spectrum and prioritize big transmitters.  And moving DNS from Postel to ICANN wasn't necessary or inevitable -- it was a policy decision and it was a mistake.  So commercialization "natural" and we should push policy towards it, or an output?  I suggest we need to direct policy in the other direction.  There's no reason to think a "natural" progression.

Swire:  Stick with DNS.  As economic importance of root servers increased for commerce, a level of "assurance" and low tolerance of risk came in.  So we tend to pay people who are going to promise performance.  To think that companies will do it as volunteers is not realistic or appropriate.  It would be surprising to have DNS run by individuals doing on a non-paid basis. 

Isenberg:  Thanks.

paraphrased -- word choices all mine

Frankston:  Can you focus on bits instead of services?  We don't need phone companies.

Adelstein:  Someone has to build these networks.  We're using limited tools to ensure internet remains open and free but these businesses have to be able to attract investment.  Infrastructure isn't adequate enough to support traffic that will appear.  True we do hear a lot of fluff about what that investment needs to be, but we still have infrastructure needs.  Seee AT&T/BellSouth merger.  Title I is questionable area of legal authority in which to be doing this, so we have to replace nondiscrimination elements in Title II with new Title I requirements.

Isenberg:  What's the FCC's power here, and your power?

Adelstein:  I'm one of five Commissioners.  535 members of Congress.  And they leave a lot of responsibility for big decisions to us.  I'm often surprised by how much power and responsibility we have, particularly given the legal authority we have.  An awesome responsibility.  Sometimes I'm in the minority.  We prefer to be unanimous -- we did that in AT&T merger.  So we can have a positive influence; others to judge whether we're doing a good job.

Brough Turner:  What about other ways of using unused spectrum?  Most of it unused most of the time.  Look how much can happen with small slivers being made available -- cognitive radio could be key.  What's your response?

Adelstein:  I've talked about cognitive radio in the past.  Key to spectrum policy.  Transform how we use it; revolutionary.  We need to find ways of allowing radios to reach their full fruition. We're experimenting with testbeds and new service rules.  Have to take what we have and do more.  Same time we have to worry about harmful interference.

JH Snider from New America:  FCC is mostly carrots, few sticks.  Lots given away in spectrum flexibility; but boy no demands.  MMDS band, given to incumbents.  No buildout yet.  Many promises, nothing done.  Where is the stick?

Adelstein:  So I'm not very effective....  You're right, it's easy to give away carrots.  Spectrum policy has been like that.  I think we need to be held accountable.  Stick could be:  we'll take away spectrum if you're not using it.  That could be reasonable spectrum policy. We should be doing this.

Alicia McDonald:  AT&T merger was highly contentious; please reflect on how it worked politically.  Fine that we have an NN definition in it; is it useful, will it be enforced?  And you said you wanted better policy analysis -- what do you mean?

Adelstein:  Talks for merger didn't get going until we know who players were going to be in the debate.  [McDowell made final decision to stay out.]  I think good conclusion should really work; areas where most concern was expressed.  Concerns about last mile, eg.  Less debate about whether backbone is competitive.  We were able to get beyond question of whether NN can be defined.  Good discussion, contentious, but broke new ground, smashed old myths.  We can use this as a baseline going forward.  Opens possibility of having further rational discussions.

As for enforcement -- Chairman says he'll enforce NN provision.  He's committed that to Congress as well.  But he doesn't think it should be FCC-wide policy.

As for policy advice I [Adelstein] could use:  industry doesn't want public to know what their data is.  Eg, in advanced service penetration report we go on zip codes and 200Kb.  All inadequate.  We know this analysis is completely faulty.  (See Kentucky Connect reports.)  We should figure out where our problems are and where people aren't getting it and why.  Far too shallow data right now.  Hopeful that upcoming NPRM on data collection will help that.

Isenberg:  Thanks.

Very nice post from Om Malik about Bells losing control over the voice market here.  So AT&T is racing to roll out that ol' AT&T Yahoo! High Speed Internet U-verse Enabled before it's too late -- and they want to make sure it doesn't have to be neutral.  It's their plan for a revenue stream.

The cable guys don't seem to have the same prioritization plans for the internet that the telcos do, but they're also not saying they won't prioritize, and soup-to-nuts network management is in their DNA.  They're upgrading to higher download speeds (15 Mbps! sigh) but uploads remain a low priority for them.  Which will keep us all in the basement of progress.

The history of technology adoption tells us that the old guys will always see something new through the lens they know.  Telegraph guys became "new" telephone guys, and as a result the telephone wasn't marketed (or treated) like a social medium for thirty years after its introduction.  So now that telcos and cablecos are "new" internet guys they're treating it like a cell phone delivering content.  If there was another reliable way to get online quickly and symmetrically we wouldn't care, but at the moment there isn't.

Last throes or serious threat?  It's hard to tell.  But it's clear that the AT&T, at least, is just desperate to find ways to make new forms of money.  This isn't about "incentivizing broadband deployment."  It's about staying alive.  There's no guarantee that the money (if any) made from "IPTV" monetization will go into greater broadband deployment.  They'll need it to fund their pension plans.

Claude Fischer's "America Calling" has a nice comparison between the early history of the automobile and the history of telephony.  He quotes an AT&T vice president grousing about government investment in roads back in the early days of the automobile -- there was a "Good Roads" movement (started by bicyclists) that encouraged municipalities and agencies to get involved in paying for road surfaces. 

This was a big help for the automobile industry, which continues to be a competitive one.  The AT&T vice president quoted by Fischer was jealous:

In 1928 Vice President Page of AT&T noted that the automobile industry financed the campaigns for good roads and that 'the money spent on good roads was the greatest subsidy an industry ever had.'

By contrast, the governmental investment story for telephony has been more limited.  Yes, they got access to public rights of way, and more recently (as Teletruth reveals) telcos received regulatory subsidies to build advanced services.  But at the start, private companies operated without much government assistance.

Perhaps that was a mistake.  The car companies don't control the roads these days.

Having been on trains traveling out of town each weekend of the last five, I can say that it certainly cuts down on my blog-availability.  I could tell you all about my many train trips, but most of you have been on trains before. 

Today is a dress rehearsal for a private chamber music event I'm part of on Friday 3/9 in Washington, and the first piece starts with a substantial viola solo.  Not much to tell about there either.  It's been fun to work on, though.

I'm hoping that I'll be back in blog-form tomorrow.  I want to follow up on some spectrum issues and nail down some economic growth data.  Until then.

Commr. Copps on universal service:  suggesting that broadband be at the heart of the universal service program.

Sir Tim Berners-Lee on the importance of net neutrality.

Chairman Martin looking for authority over violence as well as indecency.

The Economist on researchers-as-developers -- "please fail very quickly - so that you can try again.'

I'm still investigating leadership today, and it's been a busy time.  It has a lot to do with vision, commitment, communication, some aptitude for humor, some capacity to admit error, ability to listen, and awareness of mortality.

It's simple, really.

"All that he would have to do," continued the worried bug, "is travel through miles of harrowing and hazardous countryside, into unknown valleys and uncharted forests, past yawning chasms and trackless wastes, until he reached Digitopolis (if, of course, he ever reahed there).  Then he would have to persuade the Mathemagician to agree to relase the little princesss -- and, of course, he'd never agree . . .

"From there it's a simple matter of entering the Mountains of Ignorance, full of perilous pitfalls and ominous overtones -- a land to which many venture but few return, and whose evil demons slither slowly from peak to pak in search of prey.  Then an effortless climb up a two-thousand-step circular stairway without railings in a high wind at night (for in those mountains it is always night) to the Castle in the Air."