Coming up in about an hour -- the public ICANN board meeting.  Although there are big issues swirling around, most of our discussions this morning will probably be about incremental developments. 

This is frustrating for people who would like to be proposing new top-level domains.  As of yet, we don't have a process for them to enter.  Back in March 2006, we passed a resolution about our intent to advance the implementation of such a process.  A lot has happened since then, and the organization within ICANN that gives policy advice about generic top-level domains (the GNSO) plans to finish its own process in time for the board to consider the process in Los Angeles in October. 

But it's difficult for anyone to say when the process will be implemented.  It should include internationalized domain names (non-ASCII names), in my view, and there may still be policy questions about that.  Many people wish that we could be clearer and more deterministic about deadlines for processes.  I share that wish.

=== my favorite picture from this morning, taken by Joi Ito.

Today is the Public Forum -- schedule is here.  It will be webcast and we are actively soliciting online participation.  There are some very important topics being discussed this week, including the idea of having different tracks for different categories of new generic top level domains and the progress we're seeing on internationalized domains generally.

We're trying to avoid reading any reports or presentations as much as we can.  Instead, the Board committee chairs will be available to answer questions, and we'll have ample open mike times.

For Los Angeles (the next meeting - in October 2007), we're trying to think of ways to change the format of the public forum to make it even more interactive and meaningful.  Much of the work of this week has happened in constituency and cross-organization meetings -- how can we get that word out to the world in the best and clearest way?  I'm personally very interested in making progress in this direction, so please do let me know (here in comments or via email) how we change things in an effective/efficient way.

So the Yale Law School alumni office has been sending out a zillion emails about my talk on July 9 in New York City.  And, right at this same time, we've hit a really dry spell on this blog.  I'm at a truly arcane and self-involved meeting, circling around and talking about internationalized domain names and how to reform the GNSO. 

Yikes.  You may be saying this to yourself.  Why would I ever go hear her talk?  Well, I see your point.  I really do.  It looks from these last entries as if things are really boring in the Susan Crawford Blog land.

I swear it isn't always like this.  It's just ICANN!  It has this way of sucking you in and making you sit squirming for hours and hours, as the globe spins and your life goes by without you.  You can't leave the room, you can't even go outside, because you're supposed to be there for a solid week, paying rapt attention, all alone in a sea of circular policy-talk.

I promise not to talk about ICANN on July 9.  Nope, I'm going to have a lot of interesting things to say, one or two of which you will remember until July 10 if I do my job right.  I predict there will be some reflections on the digital life, a few cave-dweller-lawyer jokes, some thoughtful asides about human reaction to overwhelming change, a neat set of stats, and a little Second Law of Thermodynamics riffing.  It will not be a waste of time to attend, and my talk won't last long.

So -- do come, okay?  July 9, 6:30-8:30 p.m, 42 West 44th Street, New York City.  Go here to register.  There will probably be great snacks.

After I wrote yesterday's post, I went up and moderated a two-hour workshop on "protection of registrants."  Transcript here, agenda here.  The idea behind the workshop was to make sure ICANN is making the right kind of progress in dealing with failing registrars and registries.  We've got a Registrar Accreditation Agreement that doesn't allow for sanctions other than cutting off an accreditation entirely - which is a pretty blunt instrument that ICANN doesn't use.  And it has a data escrow provision that hasn't been enforced (although some registrars have been doing escrow on their own).

A key problem is communication.  Registering a domain name can still be confusing for end-users, although some registrars make an effort to explain what's going on.  It can be hard to tell who you're dealing with or what will happen if you don't pay on time.  ICANN and its many parts (and its millions) could do a lot more to ensure that various actors make clear what the different roles are and what registrants should watch out for.

I was also part of a workshop on changes to the Generic Names Supporting Organization structure (agenda).  I'm a member of a working group drafting suggestions for consideration by the Board.  I think we made some progress during the workshop, but re-structuring something that is under way and working very hard to make policy is tricky.  One of my goals is to just make clear (communication again) what each "level" (working group to council to board) is supposed to be doing, what questions they're supposed to be answering, and who has discretion to do what.  I'm hopeful this kind of information will emerge from the process we're working on now.

Between those two workshops was a third, focusing on new generic top-level-domains.  This is a subject I care about a great deal, and the portion of the discussion I heard was very lively.  When the transcript is available I'll post some portions here.

So yesterday was a big day, and today is bigger - we will visit several constituencies, have more committee meetings, and keep going all day.  There are things happening here that will provide lots of fodder for academic papers and work for lawyers - for years.

Today the public portion of the ICANN meeting begins.  Several of the Board Committees have already met, task forces have been working on WHOIS and new TLD policies, and the Board itself has already spent a long afternoon discussing what's going on.  But we start the public portion with a little ritual of welcome and speech-making. This is the 29th ICANN meeting.

Doug Brent, Chief Operating Officer of ICANN (presentation here), is noting that ICANN has net revenue of US$46.6 million, and expenses of $41 million.  But it looks as if revenue will actually be more like $50 million.  (!)  So perhaps ICANN should reduce transaction fees that it collects from registrars.  (Most of ICANN's revenue comes from registrants paying registrars, and registrars paying fees on to ICANN.)  And Doug is suggesting that a large reserve fund is being contemplated.  Are we doing meetings in the most cost-effective way? he asks.  Doug also says we could present data better to everyone.  What's driving our spending?  $1.6 million on new gTLDs, $1 million on ALAC and outreach, almost a million on IDN, compliance about $800K, $700K on legal, $530K on registrar data escrow, $400K on economic assistance (by economists).

Wow.  $50 million.  That's just enormous.  But no one's stirring in the crowd - just a lot of typing all around me.

The mike opens up now, questions for Doug, Tina Dam (re IDN), and Paul Twomey (CEO) are timely.  No one approaches the mike.  Now what?  I guess we'll close this session.  I start a workshop at noon on registrant protection.

AHA!  No, Amadeu Abril comes up.  He says it's a shame not to have public comments.  (Bravo!)  He asks what implementation process will be for IDNs - what sort of rollout will we have next autumn.  Vint says we'll be talking about that this week -- new gTLDs and IDN TLDs are the same.  We should treat them all as new TLDs.  "So the ensemble of TLDs expressed using internationalized characters needs to be treated as a whole..  this coalesces into a common expression."  (This is a point of view with which I agree.)  Vint goes on -- "I'm not sure that "translations" are a practice that we should endorse - I'd rather see proposals for new TLDs that are specific and unique."  I agree.

I leave tomorrow for another week-long ICANN meeting, and I'll report from there.  So today was a constructive Saturday.  Which meant a lot of talking and not so much reading or writing.  Hence -- nothing here except a link to Black Swans.

Big issues at ICANN:  new gTLDs, IDNs, protection for registrants, GNSO reform.  I'll try to translate.  We're meeting in Puerto Rico this time around.

The Lessig change is great.  It's always a good idea to do something completely different once in a while.  Every few years, re-examine the whole package.  Why are you doing what you're doing?  Is it fulfilling?

Most hated internet words here.  I'm giving a "talk about blogging" in a couple of weeks, and naturally the word "blog" is just about the most hated of all.  Perhaps I'll start by exploring what people think a blog is.  Snarky?  Self-satisfied?  Self-indulgent? Sappy?  Superficial?  Sanctimonious?  Other words that start with "s"?

Douglas Hofstadter's I Am a Strange Loop has my attention right now.  It's an unexpected book that seems to be operating on several levels at once, just as minds do; it is at once simple/anecdotal and obscure.

There's a division that Hofstadter sets up early on - those who enjoy and look for feedback (self-referential) loops, and those who flee from them, trying to set up worlds that don't involve things that fold in on themselves.  Hofstadter from a young age was obsessed with feedback loops (and music). 

His aim in this book is to explore how souls, selves, and consciousness develop.  The physical parts of the brain don't interest him - he's interested in structural/architectural abstractions like these:

long-term memory and short-term memory

episodic memory and melodic memory

analogical bridges

memes

. . . sense of humor

"I"

Pride in Chicago, where the Mayor’s Advisory Council on Closing the Digital Divide has issued a report that builds on the work of the Chicago Digital Access Alliance.  Congratulations to Michael Maranda and his colleagues in Chicago (and a few thoughts re wondering how things are going in New York City).

The Peer to Patent Project has officially launched.  Congratulations to Beth Noveck for her tireless and visionary work!  Now knowledgeable people have to get in there and review a few patents -- GE, HP, Intel, IBM, and Red Hat have posted several applications for review.

And Commr. Adelstein has come out in support of some flavor of open access requirement for the soon-to-be-auctioned 700 MHz licenses.  Harold Feld, who really understands this area, has the scoop here.

The Federal Communications Commission, our national communications regulatory body, is asking the wrong questions and heading in the wrong direction.  We need new leadership in this country that has the political muscle to implement radical change.  A key national priority, on a par with funding Head Start programs and adequate national healthcare, must be to ensure that access to an unfettered internet is universal, speedy, and cheap.

Thirty years ago, two-way communications in this country were controlled by Ma Bell.  After eight years of litigation, AT&T agreed to divest itself of its local telephone companies, and those local telephone companies (the “Baby Bells”) agreed not to leverage their local monopolies into the market for long distance service.

Where are we today?  The Baby Bells have re-consolidated.  Telephone service in this country is essentially controlled by AT&T (in the West) and Verizon (in the East), with Qwest filling in gaps.  And two-way communications in this country – which, these days, means highspeed internet access – are controlled by a duopoly of Big Phone and Big Cable.  Many Americans don’t have a choice of highspeed providers, and, as Consumers Union, Consumer Federation of America, Free Press, Media Access Project, and U.S. Public Interest Group recently told the FCC, “Americans pay 10 to 20 times as much [as people do in other countries] for far less service.”  The duopoly is something like Shamu and Godzilla on hire for televised wrestling – giant beasts gently swatting at one another for the cameras.  They aren’t competing, these giants.  There is a clear failure in the market for highspeed internet access in this country.

Even people who don’t often think about interactive communications have heard that the U.S. is lagging far behind many other developed nations when it comes to highspeed internet access.  As with other key infrastructure issues – like Head Start and healthcare – we just don’t seem to care about giving our people a firm foundation for life.

Network operators, the Shamus and Godzillas of interactive communication in this country, want to control and monetize highspeed access to the internet. They believe that they can and should control this complex system by, among other things, deliberately degrading upload speeds (so that we users can’t produce and host our own materials) and keeping highspeed access for their own content.  

Many other countries have taken a hard look at their communications policy and have understood that communications and economic growth are tightly intertwined.  Economic growth is driven by new ideas creating ever-newer goods and services and new ways of making a living.  We have never had an interactive communications platform like the internet before – it’s capable of producing enormously diverse ideas (in the form of new niches, new roles, and new understandings of information) and allowing them to be disseminated on a large scale.  Universal highspeed access to the internet could trigger crucial economic growth that would benefit U.S. society as a whole.

And this access has to be fast.  We are beginning to see the video future of the internet, and that future requires that information flow far more quickly over the now-monopoly-controlled local bottlenecks in this country than it does now.

We should care about the economic health of our country.  Access to the internet at high speeds should be something that we make available to everyone in the U.S. as a public infrastructure.  We don’t even know what we’ll be capable of using this access for – yet – because our expectations have been so dimmed by the craven practices of our local Shamus and Godzillas.

In an ongoing regulatory factfinding mission (undertaken because the Commission didn’t have the political will or sensitivity to actually act), the FCC is asking whether anyone using a U.S. network operator has been blocked from accessing particular sites.  That’s the wrong question, as Consumers Union and its colleague advocates have told the Commission.  The FCC should instead be asking why we haven’t mandated competition for highspeed access by requiring that all providers sell unfettered transport services at wholesale rates into a competitive market for retail transport.  Even better, Congress should take the reins and demand that the duopolies divest themselves of their transport services so that they aren’t tempted to try to monetize internet access in favor of their own movies and phone services.

But for the FCC and Congress to change direction and start asking the right questions will take leadership.  We don’t have that kind of leadership now.  All acts are incremental; all steps are taken with the advice and approval of the incumbents.  We don’t have a national economic policy that is tied to internet access because no one is willing to step up and lead.  Sen. Kerry made a good speech at a recent hearing about auctioning off key airwaves, but even if that auction is run as he suggests it won’t solve the larger infrastructural problem.

We need much more from our national leaders.  Who will be the candidate who will understand this central issue?  Mike Bloomberg has run networks, even if they are proprietary, and might be the guy.  We’re waiting, but in the meantime we’re moving excruciatingly slowly in the supposed American fast lane.

==Do read the CFA/CU/MAP/FreePress/USPIRG comments - they're excellent.

Big opinion [Warshak v. U.S.] from the Sixth Circuit on the Stored Communications Act today. (My perplexed cyberlaw students will be very relieved to read this.) We expect as much privacy in our email as in our phone calls.  So government agents will need to get a warrant based on probable cause before obtaining stored email from service providers.  EFF press release is here. 

Many congratulations to superlative cyberprofs Tricia Bellia and Susan Freiwald for their key amicus brief:

Because government agents intrude upon users’ reasonable expectation of privacy when they acquire private e-mails, they conduct a search under the Fourth Amendment. That expectation of privacy obtains whether the e-mails acquired are stored or in transit, and whether or not their recipients have accessed them. Nothing in the private contracts between users and their internet service providers affects the application of those constitutional protections. . . .

Email messages, unlike transactions disclosed to a bank, are the kinds of things that we expect are and will remain private.  Katz is still alive, and the mere involvement of an intermediary doesn't destroy this expectation of privacy -- one that the Constitution protects.  As Bellia and Freiwald said, "A service provider’s policy of complying with legal process . . .  cannot defeat a user’s reasonable expectation of privacy. E-mail users must be entitled to presume that agents will present appropriate legal process, not that they will present any legal process."

The Sixth Circuit is tackling a question that is central to law enforcement, and we can expect that this decision will be challenged in a hundred ways.  We depend so much on intermediaries, and the Sixth Circuit decision stands firmly on ground the government won't like:

Like telephone conversations, simply because the phone company or the ISP could access the content of e-mails and phone calls, the privacy expectation in the content of either is not diminished, because there is a societal expectation that the ISP or the phone company will not do so as a matter of course.

In an era in which telephone companies routinely cooperate with law enforcement without asking for legal process, in which law enforcement routinely claims that every request for information it makes has something to do with terrorism or espionage, and in which my students routinely say they have no reasonable expectation of privacy (in anything), it's a fine moment.  The courts are making clear that they still have a role to play. 

The Fourth Amendment can't be overwritten by either broad language in a cooperative provider's terms of service or by the hopeful interpretation of a statute -- here, the Stored Communications Act -- by the Executive Branch.

Today was a very full day on all fronts -- ICANN, OneWebDay, digging through everything recently filed in the 700 MHz proceeding (this week's favorite filing is here, from Google), and...viola.

I have a feeling you read that last word as voilà. You probably thought that I had fallen once again into the conceit, the blogging cliché, that any three disparate items can be tied together in a breathless post. 

Here she goes yet again, you sighed, rummaging through your feed reader, looking helplessly for something interesting to read. She's saying XY about ICANN and flogging OneWebDay, saying that it all relates somehow to spectrum policy. 

No, I'm spending a lot of time with the viola (the VYE-ola, as many lawyers call it) and with my new friends Tim and Alexa getting ready for an elaborate way-out-of-town concert on Sunday.  I can't put it together with technology, it doesn't fit.  Here are blogs of real musicians:  here, here, here, and here.

I have a friend who tours worldwide as an in-demand opera singer.  He asked me whether he should start a blog - he said everyone seems to have one.  I replied, too quickly, "Yes, you definitely should, it will give you a voice."  He gave me an odd look.  He thought he had a voice.

--Update:  four more music blogs recommended by a reader
1.  Alex Ross, New Yorker critic
2. Steve Smith, Time Out New York critic
3. Opera Chic, Milan-based opera gossip
4. Helen Radice, harpist

Let's see if this works.  Watch this video, and try translating its captions into another language.  (You'll have to register with dotSUB to do this.)

dotSUB's tool is very easy to use, and suddenly makes it possible to make a piece of video understandable around the world.  It's a wiki for translation.

Thanks to Michael Smolens for introducing me to dotSUB and for arranging for the transcription of the OneWebDay video!  I'm looking forward to seeing how we can encourage people to upload their own videos about how the web has changed their lives - and then encourage other people to translate them.  It's a great OneWebDay project.

Today's Senate Commerce Committee hearing on the 700 MHz auction, in a nutshell:

The auction is broadly seen as critical to our shared communications future, but there's very little agreement about how all the pieces fit together.  My prediction:  some delay in the promulgation of the auction rules.  There's too much at stake and too little shared territory.  Sen. Rockefeller noted that the consequences of the auction are enormous, but the public doesn't understand the issue and committee attendance is sparse.

1.  Public safety.  Although many agree that a national broadband network controlled by public safety would be a good idea, not everyone does.  The NYC witness, Paul Cosgrave, says that NY has already built its own network, and he doesn't want to be forced to adopt nationwide standards and choose particular spectrum.  He doesn't think one size fits all.  On the other hand, he agrees with the notion that a national network won't happen without a substantial assist from private industry, and he concedes that cooperation among public safety actors isn't currently optimal.  McCarley, from Texas, thinks that a public-private partnership makes sense as long as the network is built to public safety specifications and controlled by a strong public safety (unitary) actor.

2.  Frontline.  Sen. Stevens, it's fair to say, is irritated by the very idea of auction rules that would condition award on agreement to the Frontline plan.  His "dialogue" with Barksdale was surprisingly uninformed - Frontline has clearly said that compliance with CALEA and E911 is part of its plan, and no one thinks that an auction using the Frontline-proposed rules for just 10MHz of the spectrum will result in less competition on any metric.  There will be bidders other than Frontline. Barksdale was emphatic and authentic - a busy, experienced guy who seems to be doing this because he actually cares about the subject.

Stevens would rather have NO auction rules and give $5 billion to public safety to start building their own network. Barksdale shot back that $5 billion wouldn't be nearly enough.

Sen. Dorgan took his time understanding the Frontline proposal, and seems to appreciate that it's complicated and clever.  I didn't get the sense that he would embrace the plan right now. 

The Frontline plan was framed by a few speakers, particularly Lynch from Verizon, as supporting "net neutrality" (told you this would happen).  Verizon's view is that the Frontline plan won't help innovation or consumers.  Lynch points out that public safety doesn't like open access, "and as an operator I don't like these rules either.  They'll reduce interest in spectrum, and won't allow us to manage our networks" to prevent spam, viruses, and monopolization of the network by hogging-devices.  Verizon likes band plan 3 (in the weeds - I'll describe someday).

3.  Entrepreneurial energy.  The only real entrepreneur who spoke was Amol Sarva of Txtbl, who is pointing out that wireless carriers are constraining innovation along many vectors.  He wants open access rules applied to 10 MHz, and dynamic auctioning rules applied as well.  He suggests that America lead the way in innovation.

Bottom line:  many pieces to play with, and not a lot of time.  According to the statute, the auction has to start in late January 2008, and players need several months to get ready.  A nationwide new-energy wireless broadband network faces many obstacles at this point.

Network operators, the gatekeepers of the internet, will often say something like this:

Sure, we'll leave the 'public internet' alone.  We just want to be able to apply differentiated prices to our private network - we're investing a lot in installing fiber, and we need to be able to recoup our investment.

Lots of people understand this argument. Maybe the "public internet" will be a little slower, but it will still be there.  Won't it?

Think about it.  If somehow there's a line drawn by an operator between the machines it uses for the "public" part and the "private" part, what incentive will a provider have to maintain the "public" machines? 

There's a cautionary tale out there about how one telephone company, Verizon, seems to treat its old-fashioned copper wires.  A lot of people depend on copper to make phone calls.  The Communication Workers of America are claiming that Verizon has essentially abandoned longterm maintenance on its copper phone lines in Virginia.  They're flooded with complaints that Verizon is directing its resources towards installing (unregulated) fiber optic lines instead of fixing the old copper connections.

Verizon, for its part, steadfastly denies the CWA claims.

Sen. Claire McCaskill's remarks at a Senate Commerce Committee hearing on universal service this morning were memorable. 

Universal service is broadly believed to be a swampy mess.  Billions are collected from all of us to pay carriers for services that may be (1) the wrong services (i.e., not highspeed internet connections) provided (2) inefficiently to (3) the wrong people by (4) bloated and canny telephone companies. Let's paraphrase:

Universal service needs fundamental reform.  You [Commr. Tate, chair of the Federal-State Joint Board on Universal Service] keep telling us that if we want to see reform we have to ask the next panel about it.  [The next panel of witnesses was peopled by employees of rural, wireless, and wireline telephone companies.] 

But that's an acknowledgement that the cart is driving the horse here.  The next panel is filled with people who make money with universal service support.  You're essentially saying that "the FCC is incapable of moving forward on reform unless everyone tells us it's okay." 

We thought you, the FCC, had statutory authority to act!  You don't have to wait for all the people making money here to join hands and agree! 

Commr. Tate responded that, well, the Joint Board did take a step - it made a recommendation.  The Senators seemed not to be persuaded.

Here's what I (the blogger, not Commr. Tate) understand the recommendation to be.  It's not comprehensive reform. On May 1, the Board recommended that swiftly-growing "high cost" support given to competitive carriers (for serving areas that are expensive to serve) be subject to an interim cap.  From what I can tell, this cap won't be applied to the incumbent local phone companies.  So it will constrain what wireless providers in rural areas will be able to do.  And the incumbents will be able to continue along their merry way.

It's all very hard to believe, and the Senators seemed both frustrated and well-informed. 

Back to Sen. McCaskill (paraphrase):

It doesn't matter what the Joint Board says.  You at the FCC have the authority to fix this.  But the people who have figured out how to access this money are driving the train, not sound public policy.
 
Look, this really is a fetid, arcane area in the dark basement of FCC regulation.  Universal service is complex and graft-ridden and tied to political patronage.  People say we can fix the collection mechanism by tying it to phone numbers - VoIP and otherwise - and fix the distribution mechanism by making everything a reverse auction. But there are miles and miles between this solution and where we're standing (or sinking).  Meanwhile, an amazing technological age is passing people by, because USF doesn't fund highspeed internet access. 

Luckily, the numbers are staggering (it's almost beyond count - they'll have to switch to the latter-day McDonald's formulation of billions and billions spent because it's getting hard to tell how many), so people should stay interested in this one for a while. 

Commr. Tate seemed a little taken aback.  She said, "I’ve never seen this much attention focused on this issue."  Let's hope the focus continues.

I heard a talk last week by Walter Isaacson that was a tour de force.  He spoke without notes - granted, the subject of Einstein is part of Isaacson's life right now, but still it seemed so graceful and communicative on his part to be looking at us instead of an index card. 

I'd like to give a talk (also without notes) that persuaded everyone listening that they are part of a story that is just as creative and visual as Einstein's mind.  Something profound is going on in the world of communication that can't be finitely explained in advance.  Talking about email and VoIP and blogs is just skimming the surface.  We're inside a phase change in communication that is hard to see - there are small avalanches of changes in the form of email and blogs, but the bigger change is more fundamental.  There's a push into novelty, into the "adjacent possible," that is speeding along, catalyzed by global digital communications.

But starting this way, with handwaving and appeals to profundity, won't be memorable.  I'll need to tell stories.  What stories put across the thought experiment of a global brain?  Why would anyone want to be told they're a neuron?  ("No, not moron, neuron.")  Maybe the global brain solves a universal problem, in a way that brings makes people see things differently.  Anecdotes, web pages, videos - but is that like looking down at an index card? 

The couch potato is dead, and we're in the midst of a history of surprises. 

Isaacson had it easy, in a way; he's talking about a life that has ended, and he can look back and tell stories about how it went.  I'd like to convince people listening to my talk that we have absolutely no idea how things are going to go with the internet, and that that's as it should be.  Mind-blowing diversity is actually good, because out of sufficiently dense diversity life emerges.  Whoof - hard to visualize.

I like graduation ceremonies.  It's a ancient ritual with a now-common tune:  Pomp and Circumstance.  The poor people playing the tune have to play it over and over and over as the class files in.  But it's a great tune and I hope they don't mind.

Last Friday I went to my niece's high school graduation in Los Angeles, and today was Cardozo's graduation in Avery Fisher Hall.  It's too bad that the energy of commencement speeches can't be harnessed somehow, made to do work, because both of these events featured fine speeches.  Both speakers (Jim Newton, LA Times editorial page editor; Sen. Chris Dodd in NYC) spoke plainly about the need for leadership right now in America; both spoke about the honor of a fine education; and both exhorted their listeners to avoid apathy and generally fix things.  Both had personal stories about activism that had inspired them, and both hoped to inspire us.  Both were authentic and persuasive.

But then their speeches ended, and there weren't any levers to pull or actions to take.  Both speakers waited politely until it felt like the right time to leave, and then left, whispering thanks to their decanal hosts.  These events just end.  The faculty and graduates file out to greet their families. 

I'm not saying these rituals are empty - far from it.  But if only we could bottle it:  "Essence of Commencement."

===sorry I inadvertently deleted a trackback from this fine blog. it's the spam that clouds my vision.

In the 700 MHz auction filings (my current obsession), Frontline draws [warning, large pdf of reply comments] a sharp distinction between its suggested "open access" rules for a fraction of this part of the airwaves, on the one hand, and "network neutrality," on the other.

This is in response to (apparently) poisonous language from Verizon (and others), saying that "Frontline is a stalking horse for net neutrality and other unprecedented and unjustified mandates."

Frontline's argument is that its suggested "open access" rules aren't "network neutrality" because (1) NN would operate retrospectively, affecting entities who have already invested in particular network setups, (2) NN would be broad, affecting all internet access.  "Open access," by contrast, isn't either - it would operate only prospectively, because any applicants for this part of the airwaves would know about this license condition, and it would apply to only this little bit (10 MHz) of the auctioned spectrum, not all highspeed internet access.  So far, so clear.

So what is open access, in Frontline's view?  It doesn't necessarily mean that any particular device could simply hop onto the network, as far as I can tell.  All devices (and perhaps all users) would have to be authenticated and authorized for particular uses of the network. 

Why?  To ensure compliance with law enforcement needs like CALEA and E911.  There's an appendix to the Frontline set of comments I've linked to above that makes that clear.  I'm not saying this is a problem - not at all - but it is interesting.  It appears that Frontline anticipates that, ultimately, a single national actor will have the ability to isolate and provide to law enforcement the packet stream coming from a particular device.

"[A]ssuming a single entity were in operational control of a given open-access network [like the one proposed as a license condition for these 10 MHz], all packets in a given stream could be easily captured [for law enforcement purposes].  This would not, however, necessarily be the case in an uncoordinated network, such as the Internet."

The advantage of this approach from an innovation point of view is clear:  it means that rather than design devices and applications and other parts of the ecosystem to match law enforcement's needs, you simply provide law enforcement with a stream of packets (after they've presented an appropriate warrant) and let them figure out what's going on.  But the downside is that there will be a single entity who will be in operational control of the entire nationwide network, and will be uniquely in the position to authenticate and authorize devices.

The proposed rules drafted by Frontline provide:

So here's the question:  what specifications will the new licensee state?  Does it matter?  Maybe not.  After all, right now it's very tricky to get incumbent wireless carriers to approve a particular handset.  Maybe it's better to have everything filed with the FCC and public, rather than secret and private.

But it's pretty clear that Frontline does anticipate a lot of authentication and authorization in the future.

Vastation -- this word sticks with me although I hardly ever use it.  I found myself using it tonight.

Henry James Sr. had a "vastation" that changed his life.  Wikipedia quotes James describing it as

a perfectly insane and abject terror, without ostensible cause, and only to be accounted for, to my perplexed imagination, by some damned shape squatting invisible to me within the precincts of the room, and raying out from his fetid personality influences fatal to life.

More on this part of James's life:

James's "vastation" initiated a spiritual crisis that lasted two years, and was finally resolved through the thorough exploration of the work of Emanuel Swedenborg (1688-1772), the Swedish scientist, religious visionary and teacher, and mystic, who held that "We are part of one another; the crime of one is the crime of all; the virtue of one is the virtue of all."

I didn't personally experience a vastation today, and I certainly hope you didn't either. Vastations can be avoided through human contact -- James was sitting alone, staring into the fire, when he had his.

==Lots of human contact last night, at the warmest chamber music concert I can remember.  Apparently the air conditioning in the Baryshnikov Arts Center has been a problem from the beginning.  It was like attending a very serious event in a rain forest -- everyone was dripping, but steadfastly paying attention.  Soprano Lucy Shelton (miraculous) doing George Crumb's Walt Whitman cycle, "Apparition," and Brahms's Piano Quintet with the Brentano Quartet.  It got hotter and hotter; the string players kept having to re-tune, and ladies in the crowd fanned themselves with their programs; motions seemed slow and gluey.  All credit to the audience for staying in their seats.  The key:  it was a free concert complete with complimentary glasses of wine and little round tables for seating.  Vastation is impossible in such a setting, however warm the room.

There's an arcane communications issue out there that involves Time Warner and a two-lane highway mandated by a communications gatekeeper -- but has nothing to do with the internet.

Stumped?

This story is about what it costs to mail a magazine using the U.S. Postal Service.  There's only one mail service, so the USPS is a gatekeeper of sorts when it comes to postal mail. 

For years and years, newspapers and other publications were charged especially low postal rates -- dissemination of knowledge and all that.  These rates have gone steadily up, but periodicals were able to plan for the higher rates.  Indeed, this year most people expected that periodical mailing rates would increase by about twelve percent across the board, for everyone.  (That's what the Postal Service itself suggested back in May 2006.)

But then Time Warner submitted an elaborate plan (described here) that in effect created two classes of service:  one for the large conglomerate publishers that could afford to do things like pre-sort their mail and drop it off at convenient centralized locations, and the other for all the little publications that couldn't afford those sorts of moves.

The group that accepted the TW plan is called the Postal Regulatory Commission.  It makes recommendations to the Postal Service Board of Governors.  (Isn't this interesting? I had no idea.)  The Board of Governors has in turn accepted the PRC recommendation.

I heard today that the plan was so complicated that no one could figure out how much its implementation would cost small publications.  But it appears as if it will create rate hikes of 20 percent and up (way up) for the littler guys.

The little guys just simply could not afford to lobby the way TW did.  TW put enormous energy behind its plan, and got it through.  It will save TW money because they will be able to take advantage of discounts for the pre-sorting etc. that they do.  The littler guys now will be making editorial content decisions based on distance -- historically, they had faced a flat fee no matter how far within the US the content traveled.  That's no longer the case.

That's the story.  It's apparently a done deal.  The smaller magazines don't have the funds to reverse the decision.  They've been out-lobbied for access to what should be a resource managed in the public interest: the US Mail.

Restated as a friendly letter, today's decision from the Second Circuit Court of Appeals would go something like this:

Dear FCC,

Please don't make things up. 

For thirty years, in rulings and in testimony before Congress, you took the position that fleeting expletives were not indecent.  You said time and time again that broadcasters wouldn't lose their licenses for allowing people to swear once in a while.  In fact, it's fair to say that you yourselves found the Pacifica 'Seven Dirty Words' opinion embarrassing - you didn't come up with anything like it for many years.  You required something along the lines of "verbal shock treatment" before finding that actionable indecency had been thrust onto the airwaves.

(Do you remember Judge Pooler's disbelieving, somewhat irascible tone at the argument?  Well, it's all there in the opinion, sharp and clear.)

Now, without any evidence that anyone's harmed by fleeting expletives you've done an about-face -- you've announced a new policy saying that these words, even said one at a time, ARE indecent. But somehow they're not indecent if they have something to do with news programming (even reporting on a reality TV show), or they're heard at the right time of day, or they're heard as part of a famous movie with an appropriate lead actor. 

You're just simply making this up.  There's no reasoned analysis here.  Your rationales float free -- there's no evidence in support of them, and they don't actually connect to your policy.  Heck, Bush and Cheney swear, and no one's hurt!  You can't change your policies without having some analysis, and we don't see anything worth leaning on here.

And, by the way, if we ever have occasion to consider the constitutional arguments on this subject, you're in trouble.  (We know this is dicta, but dicta is helpful, right?  Let's all save some time.)  Your test for indecency is hopelessly vague, we think if the Supreme Court looked at the world now they wouldn't treat broadcast differently from newspapers or the internet, and boy you have given yourselves an awful lot of discretion.  Given all of this and the importance of protecting legal speech (reminder:  indecent speech is legal for adults in this country), we can't imagine that your indecency regime will survive constitutional scrutiny.

Technology expands our capacity to choose, and particularly in this time of history we shouldn't assume that government should make speech choices for us.  And that means you.  So don't make up rationales for protecting all of us from legal speech.

Yours truly,

Your Friends on the Second Circuit

Now, Chairman Martin has already responded, saying (weirdly, in my view) that "this really supports a la carte for cable."  Chairman Copps is unhappy too. 

The decision marks an important moment of straightforwardness in an otherwise twisted, strangely deferential time.  It's an administrative law opinion -- all it's saying is that the Commission didn't do its job in creating a changed policy.  But it signals that some key federal judges, at least, don't think much of the First Amendment thinking at the FCC.

====

How does this relate to net neutrality?  Well, the opinion underscores the importance of the Commission's Notice of Inquiry: in the absence of evidence of non-neutrality, network providers can argue that there's no reason to change the current FCC policy (on which they're relying) to require neutrality.  Other arguments are needed, chief among them the will to point out that these private networks are closed to investigation -- we can't in fact know whether there's any non-neutrality going on.  But more fruitful, perhaps, will be moving over to the spectrum auction battleground.

A stroll around my neighborhood tonight after a day on an airplane showed once again that it's nice to live in a real city.

I saw at least a hundred people I don't know and one or two I did; many glowing restaurant interiors, plus the sounds of someone playing the flute and some other people yelling at each other; plus many admirable small dogs (legion in my neighborhood) and brownstones with windows opened wide to the early evening. 

Often when I try to explain net neutrality or the importance of an open internet to people I use the idea of a sidewalk that is able to charge extra for the more interesting conversations that happen on it.   As if the sidewalk could rise up, in a sense, and listen in, and assess accordingly.  Tonight the sidewalk just brought me around the corner, home again.