Wednesday, August 18, 2010

I Got Interested in Web Authentication and Security

Lately there have been some interesting developments in the fundamental structure of web security, and I've gotten involved in discussing how they are coming together. I did a post earlier this year on "Web Security Trust Models", and recently added an update called "A Major Internet Milestone: DNSSEC and SSL." This whole topic area is a fascinating convergence of technology and policy. If you want to geek out, here are a few good links:

[Update: oops, forgot to mention that I got a quote in the NYT. It's actually an awful quote... I sound like a valley girl ("This is, like, totally important, you know?"). Other than that, the gray lady got the story right.]

Tuesday, July 27, 2010

Private Information in Public Court Filings

Court proceedings are supposed to be public. When they are public and easily accessible, citizens know the law and the courts are kept accountable. These are the principles that underpin RECAP, our project to help liberate federal court records from behind a pay-wall.

However, appropriate restrictions on public disclosure are equally critical to democracy-enhancing information management by the judiciary. Without protections on personal data, trade secrets, the addresses of cooperating witnesses, or other harmful information the courts would become a frightening place for many citizens in need of justice. Peter Winn has described this challenge in detail.

Thus, somewhat counter-intuitively, it is important to restrict some legal information in order to set the rest free. That is why our courts have a strong legacy of sealing cases when, on balance, their disclosure would do more harm to justice than good. When the risks don't require the entire case to be sealed, portions of documents can be redacted. Federal Rule of Civil Procedure 5.2 and Federal Rule of Bankruptcy Procedure 9037 define these instances.

But what happens when mistakes are made or negligence occurs?

Read the rest over at Freedom to Tinker.

Thursday, June 24, 2010

New Post at FTT on FCC Drama

I just posted over at Freedom To Tinker.

Broadband Politics and Closed-Door Negotiations at the FCC
The last seven days at the FCC have been drama-filled, and that's not something you can often say about an administrative agency. As I noted in my last post, the FCC is considering reclassifying broadband as a "common carrier" service. This would subject the access portion of the service to some additional regulations which currently do not apply, but have (to some extent) been applied in the past. Last Thursday, the FCC voted 3-2 along party lines to pursue a Notice of Inquiry about this approach and others, in order to help solidify its ability to enforce consumer protections and implement the National Broadband Plan in the wake of the Comcast decision in the DC Circuit Court. There was a great deal of politicking and rhetoric around the vote. Then, on Monday, the Wall Street Journal reported that lobbyists were engaged in closed-door meetings at the FCC, discussing possible legislative compromises that would obviate the need for reclassification. This led to public outcry from everyone who was not involved in the meetings, and allegations of misconduct by the FCC for its failure to disclose the meetings. more...

Saturday, May 29, 2010

What Does It Cost to Provide Electronic Public Access to Court Records?

US Courts have long faced a dilemma. Public access to proceedings is essential to a well-functioning democracy. On the other hand, providing public access requires expenditure of funds. Charging for access works against public access. Traditionally, these costs have been considered to be part of the general operating cost of courts, and there have been no additional fees for public access. The cost of the courthouse, the public gallery, and the bailiff are included. The administrative cost that the clerks incur in providing free public inspection of records is also covered, although the clerk may collect fees for filing actions or making physical copies.

I have been trying to understand how these practices have been translated into the networked digital era by exploring PACER, the US Courts' system for "Public Access to Court Electronic Records." Digital technologies have a way of pushing the cost of information dissemination toward zero, but as I observed in a recent working paper, this does not appear to be the trajectory of public access fees. Congress has provided a statutory limitation that states that the "Judicial Conference may, only to the extent necessary, prescribe reasonable fees... to reimburse expenses incurred in providing these services." In short, you can only charge for public access services if those fees are used to, at most, cover the operating expenses for those same services. What's more, in an accompanying conference report, Congress noted that it "...intends to encourage the Judicial Conference to move... to a fee structure in which this information is freely available to the greatest extent possible."

As described below, the Judiciary's financial reports appear to tell a different story: In the past several years, the Judicial Conference has consistently expanded the scope of its expenditures of public access fees such that the vast majority is now spent on other services.

The Judiciary Financial Plans

The first source for my analysis is the Judiciary's annual set of Financial Plans, submitted to Congress after their funds for that year have been appropriated. These are not made publicly available, but I have obtained the relevant excerpts from 2007, 2009, (appended to my working paper) and 2010 (here). I haven't yet obtained the 2008 Plans, so for two data points from that year I have to estimate based on averages for the prior and following years. You can download my Excel spreadsheet that combines the top-level data and drives the chart below (note the comments in the spreadsheet for details on how the numbers were derived).

EPA (Electronic Public Access) funds are collected solely via PACER fees, and are expended on a variety of programs. One of these expenditures is the PACER program itself, but many other expenditures are not. This includes things like "courtroom technology", "telecommunications", and "CM/ECF" (the electronic filing system). I described some of these in my working paper, but after I published that I had the opportunity to ask a panel made up of staff members from the Administrative Office of the US Courts and federal judges how these fees were used. At the 7th Conference on Privacy and Public Access to Court Records, the Hon. William E. Smith from the United States District Court for the District of Rhode Island explained that PACER fees:

"...also go to funding courtroom technology improvements, and I think the amount of investment in courtroom technology in '09 was around 25 million dollars. [...] Every juror has their own flatscreen monitors. We just went through a big upgrade in my courthouse, my courtroom, and one of the things we've done is large flatscreen monitors which will now -- and this is a very historic courtroom so it has to be done in accommodating the historic nature of the courthouse and the courtroom -- we have flatscreen monitors now which will enable the people sitting in the gallery to see these animations that are displayed so they're not leaning over trying to watch it on the counsel table monitor. As well as audio enhancements. In these big courtrooms with 30, 40 foot ceilings where audio gets lost we spent a lot of money on audio so the people could hear what's going on. We just put in new audio so that people -- I'd never heard of this before -- but it actually embeds the speakers inside of the benches in the back of the courtroom and inside counsel tables so that the wood benches actually perform as amplifiers. So now the back of the courtroom can really hear what's going on. This all ties together and it's funded through these fees."

Clearly, the costs of expensive multimedia systems for courtrooms are not part of the expenses incurred in providing PACER. The 2007 Judiciary Financial Plans delineate between EPA (PACER) and non-EPA programs, illustrating the substantial discrepancy in funds generated by the PACER program and the funds spent on PACER. As described in my working paper, the Courts can point to no statutory justification for spending PACER fees on these non-EPA programs. As of 2009, the Financial Plans no longer separate EPA and non-EPA expenses, but it is easy to reconstruct these totals based on the individual breakouts included in the plans. By doing this, I generated the following graph:

Income is in green, which consists of either direct collections or carryover from the previous year. Expenditures are in red. As you can see, according to the courts, the cost of running PACER has grown only slowly over time, whereas other services have grown dramatically. The carryforward peaked in 2008 at $44.5m, around the time that the courts decided to start spending more aggressively on non-PACER programs. Specifically, in March 2007, the Information Technology Committee of the Judicial Conference observed that, "In recent years, significant unobligated balances have accumulated," and proposed to, "expand use of Electronic Public Access funds for IT efforts, such as applicable network, courtroom technology and jury management requirements. The IT Committee did not support any reduction to the fee at this time." In 2010, expenditures on non-EPA services will actually exceed EPA revenues. As of 2011, the courts plan to have spent out most of the carryforward they had accumulated.

In their defense, the courts argue that all of the programs on which they spent PACER funds are somehow generally related to electronic public access. The current PACER site notes that PACER fees are "used to finance other expenses related to electronic public access to the courts in areas such as courtroom technology and the Bankruptcy Noticing Center." Nevertheless, the fact remains that many of those do not represent "expenses incurred in providing [the charged for] services." Programs like CM/ECF or Telecommunications represent, at best, ancillary programs. However, most if not all of their expenses would exist regardless of the PACER program. What's more, parties have always had to pay filing fees for certain actions, and although CM/ECF has saved them time and money compared to the days of couriers, public access fees are instead paying for the entirety of the system's development. Likewise, the Telecommunications program extends far beyond anything required to support PACER, and would be necessary regardless of any EPA-related use. Bankruptcy Noticing ($9.7m planned for 2010) is a free service that creditors use to monitor incoming bankruptcy claims.

Long Range IT Plan for the Judiciary

My second source for a big-picture perspective on IT spending by the courts is the annual "Long Range Plan for Information Technology in the Federal Judiciary." The 2010 version is available from the US Courts website, but the link to the 2009 version was broken in the recent upgrade of the site (which was, ironically, intended to make information more easily accessible). Fortunately, I have it. [Update: the 2010 link is now also broken, but I posted a copy here.]

The Long Range Plan covers IT financing of the entire Judiciary, and as such it describes far more than just EPA (PACER) fees. That being said, there is a fascinating shift from the 2009 Plan to the 2010 Plan. Each year, the Judiciary forecasts costs for many different IT-related program areas. We can therefore compare the projections for FY 2010 that are found in the 2009 Plan with the FY 2010 projections found in the 2010 Plan. Four of these program areas immediately pop out in such a comparison: Electronic Public Access Program, Court Allotments, Court Administration and Case Management, and Telecommunications. You can see the changes from one year to the next reflected in the chart below:
Program Costs
FY 2010
in 2009 LRP
FY 2010
in 2010 LRP
% ChangeChange
Electronic Public Access Program (PACER)
Court Allotments$143.9m$102.7m-28.63%-$41.2m
Court Administration and Case Management$22.1m$2.6m-88.24%-$19.5m

Somehow, the projected costs of the Electronic Public Access program in 2010 grew by about 300% between 2009 and 2010. The cost of Court Allotments, Court Administration and Case Management, and Telecommunications shrank by an equivalent amount. It is hard to imagine that the actual plans of the Judiciary changed so dramatically from one year to the next. Rather, it seems far more likely that they simply decided to change their accounting practices to portray a cost for the EPA system commensurate with the amount they are collecting.

What Should PACER Cost To Run?

The FY2010 Financial Plan represents the lowest estimate from the Judiciary that I can find for current PACER costs, listing "Public Access Services and Applications" at $21.9m. But is that a reasonable number for what PACER should cost to run? Even if the Judicial Conference believes so, there are several reasons why it could be run far more efficiently:

PACER is run on a highly inefficient decentralized infrastructure
Every court runs its own instance of PACER software, requiring its own hardware, network connection, and support staff. This means that, between district, bankruptcy, and circuit courts, these resources are duplicated approximately 200 times. I have heard various theories for why this is the case, including the notion that control of records has been traditionally delegated to local jurisdictions. It may also be true that at the time PACER was first deployed this was the only technical and operational way to implement it. However, a modern system administrator would never choose to implement a system that exhibited these inefficiencies. Fortunately, the Administrative Office of the Courts already controls the whole network and a first step of physical (if not logical) centralization should be fairly straightforward.

PACER costs include maintaining a staff in San Antonio, TX to answer phones
Although the average PACER user may not be aware of it, there is a full-time staff at the PACER Service Center just waiting to answer their various PACER-related questions (In 2009 this included 135,000 help desk calls, and almost 30,000 support emails). This service helps to overcome some of the more confusing usability barriers of the current PACER system, because these people will walk users through the process. This service is funded out of basic PACER access fees, which are based on per-page access rather than phone calls to the support staff.

PACER costs ironically include overhead from fee collection itself
Every quarter, PACER staff must prepare and physically mail bills to all PACER users that have incurred a billable level of fees. They must deal with all of the administrative overhead of managing these collections, including chasing down delinquent debtors and prosecuting them, if necessary. This portion of costs is a self-fulfilling prophecy.

PACER costs include expenses from upgrading the user interface, when third-parties could do a better job for free
The courts could publish all PACER data in bulk-downloadable format with relative ease and at a low cost. In this scenario, it is very likely that third parties would make the data more easily accessible in a variety of formats, at no cost to the courts. This general principle is laid out by my colleagues in a paper entitled "Government Data and the Invisible Hand."

If providing electronic public access can be grounded in free bulk access, the costs might well be manageable even within a no-fee system. The courts might also find it easier to avoid straying from their statutorily constrained requirement to, "only to the extent necessary, prescribe reasonable fees... to reimburse expenses incurred in providing these services."

[An advance copy of this post was sent to the Administrative Office of the Courts, which declined to provide comments, corrections, or additional documentation.]

Thursday, May 27, 2010

Summary of "The FCC’s Authority Over Broadband Access"

[Update: the video and transcripts for Panel 1 and Panel 2 are now posted]

Today I attended the "The FCC’s Authority Over Broadband Access" event in DC. These DC policy events tend to have more talking points than I'm willing to tolerate, but today's event was both balanced and substantial.

[A disclaimer, this post is fairly hastily written and assumes some deeper background knowledge of some of the terms. I recommend Harold Feld's recent blog post if you find unfamiliar language or concepts in here. Susan Crawford also has good stream-of-discussion notes of the first panel.]

Session 1: The History and Context of the Debate

The first panel was mostly a history of how we got here, hitting many of the points I explored in my post on Freedom to Tinker yesterday, "Regulating and Not Regulating the Internet". The panelists were certainly well qualified. John Nakahata is a former FCC Chief of Staff who lived through many of the relevant policy decisions in the late 1990s. Jessica Rosenworcel is the current Senior Counsel for the Senate Commerce Committee (which has authority over the FCC). John Windhausen is one of her predecessors, former Senior Counsel for the committee, who lived through the 1996 Telecommunications Act.

Nakahata reminded the audience that in the mid-1990s, the administration had proposed a new Title VII to the Communications Act that would have explicitly set policy for broadband. However, this approach never progressed and instead the 1996 Act simply codified a version of the Computer Inquiries "basic"/"enhanced" services distinction in the form of "information"/"telecommunications" services... without explicit reference to the internet. This is a layered model, in opposition to the silo-like approach of the Act's overall structure. He also observed that the 1998 "Stevens Report" (to which Brand X refers extensively) noted that if placing broadband under Title II was too onerous, the FCC could forbear from much of it (essentially what Chairman Genachowski is proposing today -- Nakahata seemed to think this was ironic, but it seems more like evidence of good research and historical consistency on the part of the Charman's office). He also noted that since that time there have been changes in the market -- including the elimination of mandatory unbundling or line-sharing -- that alter the broader policy calculus (presumably toward greater regulatory intervention). Finally, he observed that although there may be limited precedent for defining a separate telecommunications portion of an integrated service, pursing this approach on a large scale would be a revolutionary rather than evolutionary development.

John Windhausen confirmed Nakahta's telling of the 1996 Act's "information"/"telecommunication" service legacy in the Computer Inquiries. He laid out two basic principles which he thought had guided regulation of communications going all the way back to common law: 1) Common Carriage and a non-disciminatory duty to serve of public transport providers and 2) The principle of not regulating the communications that are transported. We are having today a variation of the age-old discussion of where to draw the line between the two. He also noted that some of the ambiguity of the 1996 Act was intentional. Congress sought to defer to an expert agency on the details. He emphasized that his reading of Brand X was that it quite clearly concluded that the categorization of broadband services was up to the determination of the FCC under the Chevron doctrine. He also indicated that the Commission had already demonstrated the possibility of classifying a portion of internet service as a telecommunications service when it issued the wireline broadband order and noted that ISPs could still voluntarily offer the service as a common carrier.

Jessica Rosenworcel didn't speak to the issues in as much depth as her fellow panelists, but such reticence to make public pronouncements is to be expected from an actively employed congressional counsel. That being said, she identified some high-level themes. First, technology changes quickly, making it difficult for regulators let alone legislators to keep up. Second, she observed that in the past ten years there appears to have been an effort to (understandably and logically) treat like services alike, regardless of the different technologies used to provide those services. However, this approach is perennially made difficult because of the "siloed" structure of the Act.

Session 2: The Third Way - What Happens Next?

The second panel was a bit more rough-and-tumble as it addressed the current debate over broadband reclassification. First up was Jim Speta, a Northwestern law professor who has long argued for a more antitrust-like approach to communications law. Second was Susan Crawford, a Cardozo law professor who recently did a stint advising the Obama Administration on technology issues. Third was Yochai Benkler, the primary investigator on the Berkman Center's Next Generation Connectivity Report for the FCC (which I contributed to). Finally, there was Jon Nuechterlein, an attorney for the broadband companies (representing only his personal views), who observed that he was the only practicing lawyer on the panel. Nuechterlein is one of the more fun people to critique, because he is so very smart and often so very wrong. You can see my stream of consciousness thoughts about Jon's position in my tweets.

As the panel began, I predicted: Speta: "antitrust!", Crawford: "infrastructure!", Benkler: "innovation!", Nuechterlein: "determinacy!". I meant that Jim would continue to push his antitrust-oriented view of Communications Act reform, Susan would remind us that broadband is general-purpose infrastructure and not just another market, that Yochai would argue that oversight of the broadband market is essential to all sorts of innovation, and that Jon would emphasize that any attempts to reclassify broadband would result in drawn-out court battles that would cast a pall of indeterminacy over the market, chill investment, and slow growth. I was not disappointed.

However, the panel focused far more on the intricacies of whether reclassification would hold up in court, what arguments would hold the day, and whether there were respectable policy justifications for these arguments. I love that stuff, so I can't complain. Speta started by observing that he thought it likely that reclassification would survive, given the Chevron-based deference articulated in Brand X. However, he was not sure that this was a good policy outcome. In particular, he said that he does not agree with the portion of the Schlick memo that claims that forbearance is difficult to reverse. Thus, he's worried about subsequent regulatory overreach. His prescription is a new governance structure based entirely on analysis of whether one firm has unreasonably foreclosed business of another. Susan agreed that reclassification should prevail, and made her typically well-articulated case for precedentially and empirically grounded government oversight of public communications carriers. She also observed that the reclassification position being advanced is that only the access portion of internet services be classified as a Title II service. Yochai began by observing the across-the-board agreement on the legal viability of reclassification, and provided some comparison points from around the world where defer-to-the-market approaches failed (such as New Zealand).

Then came Nuecterlein. His comments might serve as a clue on what might be included in a petition for reconsideration on the FCC's ultimate reclassification order. I was expecting something new and challenging, but frankly I was disappointed. He of course didn't think that reclassification would survive legal challenge (given that he'd be on the side arguing against it). His argument followed the predictable pattern: There is no "telecommunications" component of internet access, and in any case the service offered to end users is integrated with an information service component which is mutually exclusive with any telecommunications component (thus transforming the service into merely an information service). His policy argument was that if reclassification succeeded, many higher-layer services (such as web applications) would be poisoned with overbearing regulation because they inevitably would be classed as telecommunications services as well (I critiqued his first stab at this argument over here). What's more, according to Jon, other portions of the internet might not be classified as telecommunications services and thus bad things could be done there with impunity. I suppose this final point is somewhat new, but the others are rather standard fare and don't really account for the counterpoints already in circulation. The success of his legal arguments will likely hinge on a series of finely focused distinctions in the web of service definitions found in the 1996 Act. He referred briefly to Harold Feld's recent fantasy FCC predictions, but thus far I am far more persuaded by Harold's position than Jon's (especially in the deference-rich environment of Chevron). You can get a sense for my opinion on a few of his specific points in my tweets.

In any case, I'll do a follow-up post on Freedom to Tinker outlining my fantasy FCC reclassification predictions. Sorry about the inevitable typos and harried prose above, but I've got some real baseball to attend to -- I'm about to get off the train to Citi Field to watch the Phillies beat the Mets.

Thursday, March 25, 2010

E-Government Oversight Committee Writes Appropriators About PACER Fees

The Senate's Committee on Homeland Security and Government Affairs has oversight over the implementation of the E-Government Act of 2002. Chairman Lieberman just sent a letter (PDF) to the Senate appropriators for the Judiciary explaining that the courts are using PACER fees to fund unrelated expenses, which is "against the requirement of the E-Government Act."

The Judiciary presented its budget request to the House appropriators last week. This letter suggests that the unrelated expenses should be funded via direct appropriations rather than out of PACER fees.

The committee had written an initial letter to the courts in February 2009, asking whether they were complying with the Act. The courts replied in a letter the following month. Evidently their answer was not satisfactory.

For context, you might find my working paper on PACER finances illuminating, as well as my recent thoughts on where the PACER fee debate is going.

United States Senate

March 25, 2010

The Honorable Richard Durbin
Subcommittee on Financial Services and General Government
Committee on Appropriations
184 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Susan Collins
Ranking Member
Subcommittee on Financial Services and General Government
Committee on Appropriations
125 Hart Senate Office Building
Washington, DC 20510


Public Access to Court Electronic Records (PACER)

I have concerns about how the Administrative Office of the Courts is interpreting a key provision of the E-Government Act relating to public access to Court records. Given the transparency efforts that have been made a priority across the Federal Government - as well as the recent call in the FCC's Broadband plan for increased online access to court records - I believe more attention needs to be paid to make these records free and easily accessible.

As you know, Court documents are electronically disseminated through the PACER system, which charges $.08-a-page for access. While charging for access was previously required, Section 205(e) of the E-Government Act changed a provision of the Judicial Appropriation Act of 2002 (28 U.S.C. 1913 note) so that courts "may, only to the extent necessary" (instead of "shall") charge fees "for access to information available through automatic data processing equipment." The Committee report stated: "[t]he Committee intends to encourage the Judicial Conference to move from a fee structure in which electronic docketing systems are supported primarily by user fees to a fee structure in which this information is freely available to the greatest extent possible... Pursuant to existing law, users of PACER are charged fees that are higher than the marginal cost of disseminating the information."

Since the passage of the E-Government Act, the vision of having information "freely available to the greatest extent possible" is far from being met, despite the technological innovations that should have led to reduced costs in the past eight years. In fact, cost for these documents has gone up, from $.07 to $.08-per-page. The Judiciary has attempted to mitigate the shortcomings of the current fee approach in a variety of ways, including limiting charges to $2.40-per-document and the recent announcement that any charges less than $10-per-quarter will be waived. While these efforts should be commended, I continue to have concerns that these steps will not dramatically increase public access as long as the pay-per-access model continues.

To move closer to the mandate of the E-Government Act, the Administrative Office of the Courts should reevaluate the current PACER pay-per-access model. Even to retrieve free materials such as opinions, PACER currently requires the individual to establish a PACER account. One goal of this review should be to create a payment system that is used only to recover the direct cost of distributing documents via PACER. That review should also examine how a payment system could allow for free bulk access to raw data that would allow increased analytical and oversight capability by third parties.

Additionally, in 2007, the Judiciary asked for and received written consent from the Appropriations Committees to "expand use of Electronic Public Access (EPA) receipts to support courtroom technology allotments for installation, cyclical replacement of equipment, and infrastructure maintenance." As a result, funds collected by the $.08-per-page charge have been used for initiatives that are unrelated to providing public access via PACER and against the requirement of the E-Government Act. The Appropriations Committee should review the Judiciary Information Technology Fund Report provided each year to ensure the funds generated from PACER are only going to pay for the direct costs of disseminating documents via PACER, and not for additional items which I believe should be funded through direct appropriations.


Joseph I. Lieberman

Thursday, March 18, 2010

My Latest Thoughts on the PACER Debate

Over at Freedom to Tinker:

Round 2 of the PACER Debate: What to Expect
The next round of the PACER debate will be over whether or not we make a fundamental change in access to federal court records, or if we concede minor tweaks and call it a day. (more...)

Monday, February 22, 2010

How Do You Trust On the Web?

Over at Freedom to Tinker, I've done a post outlining different models for web security trust models. This issue intersects with policy because it helps determine who we trust with our communications.

Web Security Trust Models
I will try to lay out the different types of models on a high level, and I encourage corrections or clarifications. It's worth re-stating that what we're talking about is how you as a web user know that who you are talking to is who they claim to be (if they are, then you can be confident that your other security measures like end-to-end encryption are working). (more...)

Saturday, February 13, 2010

Google Buzz Blowback

The story of the week from my perspective has been Google Buzz and the various privacy concerns it raised. It seems clear that Google did not think this one through entirely. The best critique of the issues I've seen so far was Harry Lewis' "What Was Google Thinking?" post.

The latest blog post from the Gmail team may not fully answer this question, but it does demonstrate a willingness to listen to users and try to fix mistakes... and kudos to them for admitting that they made a mistake.

We quickly realized that we didn't get everything quite right. We're very sorry for the concern we've caused and have been working hard ever since to improve things based on your feedback.

That's about as close to "we screwed up" as you're going to get from a large corporation.

For what it's worth, I see promise in Google Buzz. I haven't yet deleted my profile, and if Google sorts out the issues then I might actually keep using it.

Monday, February 1, 2010

The Internet and Common Carriage

I spent this past weekend at the Silicon Flatirons broadband conference in Boulder. The gathering draws telecom lawyers, academics, and advocates for a discussion about policy issues in broadband. The Silicon Flatirons community is also responsible for a very good journal (now open access!), and the 2005 book Digital Crossroads (co-written by former Executive Director Phil Weiser and his friend Jonathan Nuechterlein). Nuechterlein is a brilliant telecom attorney, and although Digital Crossroads is fundamental to my understanding of internet law, I find myself in eternal disagreement with his policy positions.

We are all currently awaiting the conclusion of the Comcast/Bittorrent case in DC Circuit Court, which will determine whether the FCC has jurisdiction to enforce its so-called "four internet freedoms" (I described the issues way back when this fight started a year and a half ago). In parallel, the Commission is conducting a proceeding to determine whether it should more explicitly establish "open internet" rules. Neuchterlein generally does not like anything resembling ex ante regulatory obligations on telecom infrastructure providers -- certainly not from the perspective of his clients (like AT&T), and apparently not as a matter of personal opinion either. I disagree, as I have described elsewhere (footnote 161, etc.).

But that's old news. This year there's a new twist. Historically telecommunications were regulated under Title II of the Communications Act, and were referred to "common carriers" (or "telecommunications services"). Under this regime, carriers had to remain non-discriminatory in their service, and were subjected to a host of arguably overbearing price controls and the like. Between 1998 and 2005, the FCC effectively "deregulated" broadband by classifying it under the vague Title I (redefining it from a "telecommunications service" to an "information service"). This took seven years due to a series of court cases that ultimately put the issue in front of the Supreme Court, which affirmed the FCC's authority to classify broadband however it wished. If the FCC loses the Comcast case, it will likely consider whether to re-classify broadband under Title II so as to regain authority to regulate. Susan Crawford has a great description of the state of play.

Nuechterlein thinks that reclassification would be horrible. First, he is afraid of the many onerous elements of Title II that are unrelated to the policy goals of the "open internet" crowd. The FCC has the power to "forbear" from enforcing any or all of these, but Nuechterlein doesn't think they would. Second, he claims reclassification would confer very comprehensive regulation on FCC for "all corners of the internet ecosystem." In particular, he claims that application and content providers like Google and Netflix would fall within reach of the long arm of common carriage. You can see him make the case in the video below, starting at 1:23:00:

Even if Nuechterlein is right, these developments can be seen as direct backlash for years of chipping away at anything resembling regulation. After winning the battle to reclassify broadband, these entities continued to push against the notion that the FCC retained any authority at all to regulate. Harold Feld has argued that keeping oversight in a vaguely defined ex post arena serves incumbents' goals of maintaining the appearance of jurisdiction without any practical authority. However, the Comcast case threatens to expose this ruse (assuming the FCC does lose the case) and re-introduce the specter of Title II.

To be fair, opponents of FCC jurisdiction or ex ante regulation have proposed theoretical alternatives. Weiser, Nuechterlein, and others in the Silicon Flatirons community have long argued for antitrust-like ex post enforcement. Their proposals for how it would be implemented evolve from year to year, but more importantly the practical hurdles to achieving it seem very hard to overcome. [Edit: Speta just came out with an article suggesting yet another variation on the antitrust-like approach.] I have described elsewhere (pp. 118-122) how I think that framing this solely as an antitrust question misses the point, and in my most pessimistic moments I am sympathetic with those that claim it is just a euphemism for doing nothing.

I do agree in part with Nuechterlein's first point -- that bringing the full force of Title II to bear on broadband would be a bad thing. Perhaps he is better at predicting how forbearance will play out than I am. Given that he wrote the book on the matter, I suppose this is likely. On the other hand, we do have ample evidence of Commission forbearance. Indeed, even as the FCC reclassified all broadband services under Title I, it noted that some operators may wish to continue to operate under Title II, and it preemptively chose to forbear from tariffing (see paras. 89-94). Maybe it is a bit like chipping away at Pike's Peak in order to carve a statue, but we are left with few alternatives. In any case, Title II at least carries a rich legacy of non-discrimination norms... even if it also carries baggage.

I am not remotely convinced of his second major claim -- that bringing broadband under Title II necessarily implicates a host of higher-level services in its regulation (like Netflix, Google, and VoIP [edit: although in the case of VoIP there may already be some limited jurisdiction]). We have a very rich history of distinguishing between transport providers and the services that are delivered over that infrastructure. The 2005 Supreme Court Brand X decision affirming the FCC's classification decision mangles these distinctions and is frankly a mess. To the extent that the description of the technology made sense in its time, it is largely inaccurate today, as described by Public Knowledge. In the course of the Brand X litigation, MCI had been making the argument that any information service that made use of a telecommunications service would necessarily be subject to common carriage. The majority opinion notes,

[Respondents] claim that the Communications Act unambiguously classifies as telecommunications carriers all entities that use telecommunications inputs to provide information service. As respondent MCI concedes, this argument would subject to mandatory common-carrier regulation all information-service providers that use telecommunications as an input to provide information service to the public.

Nuechterlein claims that reclassification would necessarily validate this argument. There are two problems with this. First, the MCI argument on its merits is at odds with decades of precedent that distinguishes between regulatory treatment these two types of services. Second, the Court was discussing this argument in the context of whether the FCC had unreasonably interpreted statute, rather than proactively determining what would necessarily follow if the Commission decided to classify broadband under Title II. In that sense, Nuechterlein and I both agree with the Court: MCI's argument isn't going to fly.

If the Commission were ultimately to classify broadband under Title II, it might be a workable means of gaining necessary jurisdiction to do good policy. It is not without its risks, but I think that the risks are far less severe than Nuechterlein's straw men.

In the final panel of Day 2, Marc Berejka of the Commerce Department observed (starting 2:17:00 in the video) that the hardest thing about doing good internet policy is that we don't have good governance tools. Regardless of what the Commission does in the short run with respect to broadband classification, we need to seriously reconsider the structure of communications regulation, all the way back to first principles and enabling statute.

Bonus: Yesterday, CITP hosted Chris McDonald, who talked about "The Computer Utility and the First Computer-Communications Policy Debate." He gave a very good overview of the first round of debates in this area. The audio is now available.