Managing Miracles: Policy for the Network Society

Things Have Been Quiet Around Here

2011-03-16T20:14:00.004-04:00

My rate of posting here has slowed down in the past year as my day job at Princeton's Center for Information Technology Policy has consumed more of my time. I've also been posting more regularly on the Freedom to Tinker blog. If you're looking for my latest thoughts, head over there. Here are some of my recent posts:

I Got Interested in Web Authentication and Security

2010-08-18T23:59:00.006-04:00

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:

Adam Langley's overview of DNSSEC and TLS
Dan Kaminsky's Slides on the Domain Key Infrastructure
EFF's Slides on their SSL Observatory project
Jason Roysdon talking about how "SSL CAs should become hierarchical, the same as the DNSSEC trust model is."
My rantings on mozilla.dev.security.policy
My rantings on the brand new IETF list, keyassure

[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.]

Private Information in Public Court Filings

2010-07-27T15:10:00.001-04:00

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.

New Post at FTT on FCC Drama

2010-06-24T13:42:00.002-04:00

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...

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

2010-05-29T18:26:00.071-04:00

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.

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	% Change	Change
Electronic Public Access Program (PACER)	$26.5m	$105.6m	+298.49%	+$79.1m
Court Allotments	$143.9m	$102.7m	-28.63%	-$41.2m
Court Administration and Case Management	$22.1m	$2.6m	-88.24%	-$19.5m
Telecommunications	$88.8m	$76.8m	-13.51%	-$12m

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.]

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

2010-05-27T15:19:00.013-04:00

[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.

E-Government Oversight Committee Writes Appropriators About PACER Fees

2010-03-25T15:50:00.009-04:00

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
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

March 25, 2010

The Honorable Richard Durbin
Chairman
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.

[...]

Sincerely,
Joseph I. Lieberman
Chairman

My Latest Thoughts on the PACER Debate

2010-03-18T11:53:00.002-04:00

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...)

How Do You Trust On the Web?

2010-02-22T14:01:00.004-05:00

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...)

Google Buzz Blowback

2010-02-13T20:42:00.003-05:00

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.

The Internet and Common Carriage

2010-02-01T16:37:00.012-05:00

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.

The FCC Releases an Improved Electronic Filing System: ECFS 2.0

2009-10-23T14:06:00.004-04:00

This is a super-wonky item, but I am truly excited. This morning, the FCC went live with a new version of its Electronic Comment Filing System (ECFS). Anyone who has worked on policy issues that touch the FCC is probably familiar with this system. Any time the Commission solicits comments on an issue, ECFS is used for filing and lookup. ECFS is the venue for a great deal of data and debate on the core issues of communications policy in the United States. However, the earlier version of ECFS didn't allow very sophisticated searching, direct-linking to search results, RSS feeds, or the like. As such it was often a pain to get a sense of what was on the record or to follow a particular issue or docket.

These limitations were nothing, of course, compared to the physical limitations that existed before ECFS 1.0 (and, thankfully, before I ever had to work on FCC issues).

In the era of ECFS 1.0, I actually spent many hours building a system for automatic download and RSS-ification of dockets. However, this was an extremely painful process, fraught with errors. ECFS 2.0 introduces a series of improvements, which are detailed in the following video of this morning's FCC presentation. Good job FCC! I'm sure we'll have suggestions for improvements, but this is a huge step forward.

Let's Hear it for Renegade Law Librarians!

2009-10-07T18:00:00.005-04:00

Video: Interview with Stephen Schultze, co-creator of Recap

Today, Stephen Schultze and Harlan Yu from the Center for Information Technology Policy at Princeton, and two of the creators of the Recap project, presented Recap at Yale Law School. Afterwards I had a chance to record a short video interview with Stephen Schultze about issues related to Recap and online access to government records. My hand was a little unsteady, so it’s a little Blair Witch, but think it’s an interesting interview, enjoy.

Here’s the links for the petition to improve PACER and Fedthread, both of which he discusses.

(via Jason the Content Librarian)

Android Open Source Model Has a Short Circuit

2009-09-26T15:12:00.002-04:00

Last year, Google entered the mobile phone market with a Linux-based mobile operating system. The company brought together device manufacturers and carriers in the Open Handset Alliance, explaining that, "Together we have developed Android™, the first complete, open, and free mobile platform." There has been considerable engagement from the open source developer community, as well as significant uptake from consumers. Android may have even been instrumental in motivating competing open platforms like LiMo. In addition to the underlying open source operating system, Google chose to package essential (but proprietary) applications with Android-based handsets. These applications include most of the things that make the handsets useful (including basic functions to sync with the data network). This two-tier system of rights has created a minor controversy.

A group of smart open source developers created a modified version of the Android+Apps package, called Cyanogen. It incorporated many useful and performance-enhancing updates to the Android OS, and included unchanged versions of the proprietary Apps. If Cyanogen hadn't included the Apps, the package would have been essentially useless, given that Google doesn't appear to provide a means to install the Apps on a device that has only a basic OS. As Cyanogen gained popularity, Google decided that it could no longer watch the project distribute their copyright-protected works. The lawyers at Google decided that they needed to send a Cease & Desist letter to the Cyanogen developer, which caused him to caused him to take the files off of his site and spurred backlash from the developer community.

Android represents a careful balance on the part of Google, in which the company seeks to foster open platforms but maintain control over its proprietary (but free) services. Google has stated as much, in response to the current debate. Android is an exciting alternative to the largely closed-source model that has dominated the mobile market to date. Google closely integrated their Apps with the operating system in a way that makes for a tremendously useful platform, but in doing so hampered the ability of third-party developers to fully contribute to the system. Perhaps the problem is simply that they did choose the right location to draw the line between open vs. closed source -- or free-to-distribute vs. not.

The latter distinction might offer a way out of the conundrum. Google could certainly grant blanket rights to third-parties to redistribute unchanged versions of their Apps. This might compromise their ability to make certain business arrangements with carriers or handset providers in which they package the software for a fee. That may or may not be worth it from their business perspective, but they could have trouble making the claim that Android is a "complete, open, and free mobile platform" if they don't find a way to make it work for developers.

This all takes place in the context of a larger debate over the extent to which mobile platforms should be open -- voluntarily or via regulatory mandate. Google and Apple have been arguing via letters to the FCC about whether or not Apple should allow the Google Voice application in the iPhone App Store. However, it is yet to be determined whether the Commission has the jurisdiction and political will to do anything about the issue. There is a fascinating sideshow in that particular dispute, in which AT&T has made the very novel claim that Google Voice violates network neutrality (well, either that or common carriage -- they'll take whichever argument they can win). Google has replied. This is a topic for another day, but suffice to say the clear regulatory distinctions between telephone networks, broadband, and devices have become muddied.

(Cross-posted to Freedom To Tinker)

AO and GPO to Host A Discussion on PACER Pilot "Lessons Learned"

2009-09-18T09:53:00.002-04:00

I'm curious about what this will entail.

At its September 2007 session, the Judicial Conference endorsed a joint pilot between the Government Printing Office (GPO) and the Administrative Office of the U.S. Courts that was not to exceed two years in length. The GPO sought volunteers to participate in the pilot from among its 1265 depository libraries. Forty-nine depository libraries responded to the call for volunteers. In consultation with the GPO, the Administrative Office selected seventeen depository libraries to participate in the pilot.

The pilot commenced in October 2007 and was suspended after 11 months for an evaluation. The data collected during that time suggests that the target population, a segment of the public that would be unlikely to go to the court house or establish a PACER account, was not reached as anticipated. In October 2009, the GPO and the Administrative Office will be holding a "Lessons Learned" focus group session with the librarians who participated in the pilot to pin point what worked and what could be improved.

Although the pilot was initially well publicized, the level of ongoing public outreach about the pilot did not reach the desired level. More fundamentally, PACER is a tool, not a program. Therefore, the American Association of Law Libraries (AALL) has been contacted to discuss ways the pilot could be reinvented to make PACER part of a legal research and training program for librarians and the users. The AALL strongly supports the GPO and the FDL program, and is willing to assist with developing a proposal to move forward. Once a proposal is developed, it will be submitted to the Judiciary's advisory groups and the Judicial Conference Committee on Court Administration and Case Management for consideration.

-- Pilot for PACER Access at Federal Depository Libraries, FDLP Desktop

My New Working Paper on PACER

2009-09-04T11:25:00.003-04:00

Electronic Public Access Fees and the United States Federal Courts’ Budget: An Overview

Stephen Schultze, Fellow, Berkman Center for Internet & Society at Harvard

Abstract: This draft working paper examines the role of user fees for public access to records in the budgeting process of the federal courts. It sketches the policy principles that have traditionally motivated open access, describes the administrative process of court budgeting, and traces the path of user fees to their present-day instantiation. There has been considerable confusion about motivation and justification for the courts charge for access to PACER, the web-based system for “Public Access to Court Electronic Records.” Representatives from the Administrative Office of the Courts describe the policy as mandated by Congress and limited to reimbursing the expenses of operating the system. This paper identifies the sources of these claims and places them in the context of the increasing push to make government data freely accessible.

Download here.

RECAP the law

2009-08-14T12:26:00.002-04:00

I'm proud to announce the launch of a new project that I've been working on with my colleagues at Princeton's Center for Information Technology Policy.

RECAP is an extension to the popular Firefox web browser that gives PACER users a hassle-free way to contribute to a free, open repository of federal court records. When a RECAP user purchases a document from PACER, the RECAP extension helps her automatically send a copy of that document to the RECAP archive. And RECAP saves its users money by notifying them when documents they’re searching for are already available for free from the public archive.

Check it out at http://www.recapthelaw.org

Can Parties Sue Counsel for Wrongful Publication of Personal Information?

2009-08-10T14:41:00.005-04:00

Spam Notes has a good summary of a recent decision on the matter.

The Killians filed for bankruptcy in 2005 and Green Tree (on its own, not through a lawyer) filed a proof of claim which attached a document containing the Killians' "social security numbers, full account number, and legal names." In 2008, Green Tree (this time, through its lawyer) filed a Motion for Relief from Stay, and attached Green Tree's original filing, which contained the Killians' social security numbers and account numbers. The Killians brought an adversary proceeding asserting claims under state law, Gramm-Leach-Bliley, and other statutes.

Read the rest of the analysis here.

I've uploaded the text of the opinion. There will be a hearing on October 15th to further address the matter.

Update: They settled. I guess we won't get to find out how the court would deal with this.

Balancing Access and Privacy: Free PACER

2009-07-29T11:55:00.009-04:00

The latest issue of AALL Spectrum has an essay on PACER. It's fairly conservative in its recommendations, but certainly captures the issues and suggests some positive steps.

Balancing Access and Privacy: Free PACER
By Susan Lyons
[...]
Release all court decisions and briefs in motions and appeals without restriction on the open Internet and make the files available in bulk to anyone requesting them. These two categories of documents pose little risk to privacy and are among the most used and valuable of the materials in PACER. Exhibits and attachments with private information could be excluded from the release.
Give attorneys and litigants free and unlimited access to their own dockets. Under the current system, when a new document is uploaded to the court’s electronic docket, parties receive an e-mail notice that allows them one opportunity to download the document to their own computer without charge. While large law firms may capture these documents in sophisticated case management systems, many smaller firms may need to log in to PACER and incur charges to view documents in their own cases. Free access is especially critical for pro se litigants, who may not have regular access to computers and need to access PACER repeatedly to view files in their own cases.
Allow scholars doing empirical research on court records full access to bulk data. The Judicial Conference could establish reasonable limits on the terms of this access that would protect sensitive data.
Reinstitute the PACER pilot program and expand the pilot to all federal courthouses. Full release of the database could be prevented by restricting the number of downloads permitted at any one site and instituting reasonable guidelines to prevent abuse. Access should be provided through IP authentication rather than passwords.
Read the full article.

Happy Broadband NOFA Day

2009-07-02T12:55:00.011-04:00

NTIA and RUS issued the Notice of Funds Availability (NOFA) for stimulus-related broadband grants.

Analysis:

Radio Moon Bounce

2009-06-27T16:08:00.038-04:00

Everybody loves a good moon bounce. Today's moon bounce didn't involve taking your shoes off and jumping, but it was every bit as fun (if you are a geek). Every so often, when the moon is in the right spot, amateur radio operators ("hams") organize a competition to see who can communicate with the most people across the world by bouncing signals off of the moon. Today was the "Echoes of Apollo Moon Bounce" event -- a global ham celebration of the 40th anniversary of the Apollo 11 mission. The NY Times did a decent overview of the event.

I spent a good chunk of the day listening to these signals. Growing up, my dad was often in the basement with his radios or on the roof tweaking his antennas. I was always fascinated by his equipment and the people he talked to from all over the world, but by the time I got old enough to really get into it I had been bit by the computer bug. My dad sometimes compared what I was doing at age 12 with BBS'es and my 2400 baud modem with some of his ham radio passions. I still remember my first VoIP experience in the early 90's, talking to an Australian guy over dialup.

I never did get my ham radio license, in part because of the pull of computers and the burgeoning internet. Nevertheless, in the years since then I've gained a greater appreciation of the radio spectrum. Spectrum is a valuable shared resource that we have allocated to different users for communication. Sometimes we have tried to choose who is the most important, sometimes we have auctioned use of it off to the highest bidder, and other times we have allowed a "commons" oriented unlicensed use. New technologies shape the way we are able to use this common good, and we have plenty of active policy debate over these issues. Just yesterday I watched a New America Foundation event that was "optimistically" titled "The End of Spectrum ‘Scarcity': Opportunistic Access to the Airwaves."

Amateur radio operators have traditionally operated via analog means as they communicate by voice or morse code. Over time, they incorporated packet radio, allowing computers to transmit over certain frequencies using special analog-to-digital hardware. In the time since my dad's basement tinkering and my first modem, the worlds of radio and computer -- analog and digital -- have converged. The latest example of this was of course the analog-to-digital transition for broadcast television in the United States, and the extent to which this opens up unused "white spaces" for broadband. The most important innovation in wireless digital communications has been the emergence of Software Defined Radio ("SDR") technology that allows tuning, transmitting, and receiving to be done in software instead of special hardware. This means that computing devices can become general purpose radios, and whereas my dad used to have to buy new transistors and diodes at the hamfest, I can just download and install a new radio image for my Android phone.

Receiving the Earth-Moon-Earth ("EME") transmissions requires a decent parabolic antenna, but I don't have one. So how did I spend the day listening to radio signals bouncing off of the moon? I tuned in via a Dutch dish that was streaming online. Now, it would be pretty cool if the operators of this dish were simply tuning around for signals and sending a single audio stream out to anyone who wished to listen. However, what they did was even cooler. They captured all of the data for a frequency band (1.24-1.3 GHz, what the hams call "23 cm" because of the wavelength) and then they published a web-based application for SDR decoding on that raw stream so that each person could tune to any transmission within that band! The interface includes a draggable tuner and live spectrum analyzer output of signals. You can actually see what location on the dial every other person is tuning to. This combination of SDR and internet-enabled interactivity just blew my mind. I chatted briefly with the folks in the Netherlands:

me: geek question: does websdr send all of the receiver data to the end-user and then the java app tunes locally, or is the java app instructing the server how to process before sending the stream?
them: The latter. The raw data stream would be about 3 Mbit/s, that would be too much for many home connections.
me: sdr is on the main cpu or other boards?
them: On the main CPU. The only external hardware is an analogue downconverter.

It really was fun to listen to the moon bounce, and the web-based experience just reinforced how much is possible in the radio spectrum when it is combined with computing. The traditional model of frequency allocation for a specific purpose needs to give way to more efficient spectrum-sharing techniques. The amateur radio operators have developed sophisticated social norms for sharing their radio waves, but they are highly inefficient when compared to something like WiFi, which is in turn highly inefficient compared to more modern approaches. As an example of what a bridging experience the moon bounce was for me, the signal was arriving in the 1.2 GHz band in the Netherlands, which then was piped over the internet to my house and then re-transmitted to my laptop over WiFi at 2.4 Ghz.

As a policy matter, digitization of the airwaves means that we need to re-think how we use them. Today, computers can directly connect and transmit more in a millisecond than an entire ham radio back-and-forth ("CQ, CQ, CQ..."). We need a map of the vast swaths of unused spectrum, and an automated digital means for sharing them. That's part of the upcoming National Broadband Plan being created by the FCC.

That's not to say that ham radio should go away. The thrill of finding a remote station in Russia, the Netherlands, London or Mexico and tuning it in for that brief moment is quite an experience. Everybody loves a moon bounce.

Here are a few excerpts I captured while I was listening (sorry about the lousy tuning in a couple places, it just makes it sound more like the Death Star attack from Star Wars):

Listen to the MP3

Petition: Improve PACER

2009-06-16T11:49:00.003-04:00

We ask the Administrative Office of the U.S. Courts to improve PACER by enhancing the authenticity, usability and availability of the system.

We the undersigned, urge the Administrative Office of the US Courts (AO) to make the following changes to the PACER system:
For verification and reliability, the AO should digitally sign every document put into PACER using readily available technology.
PACER needs to be much more readily accessible if it is to be usable for research, education, and the practice of law. Improved accessibility includes both lowering the costs for using PACER and enhancing the web interfaces.
Depository libraries should also have free access to PACER.

Sign now.

Sunlight on the Supreme Court

2009-06-12T09:52:00.005-04:00

Wow, I'm not sure how I missed this earlier. The Supreme Court is looking to revamp its web site, and the Sunlight Foundation did an extensive proposal. It's got a lot of great suggestions, complete with mockups. Recently I've been using the existing SCOTUS site to pull docket information (which works reasonably well), but there is certainly room for improvement. In particular, it would be great if the Court implemented an e-filing system and then made those filings publicly accessible. You can see the possibilities in the difference between the current docket pages and the proposed format.

The NYT article mentions PACER, but if the Court went that route I hope they'd have the sense not to lock the documents behind a pay wall. This effort by Sunlight is a case study in why the government should open data up so that third parties can help make it useful -- whether that's by building their own sites on the data or helping the government improve its own web presence. I'm happy to see Sunlight engaging the Judicial Branch.

1st Circuit Rules Against Courtroom Webcasts in a Specific Case, but Throws Open Access Proponents a Bone

2009-04-16T17:15:00.021-04:00

Lately I have been posting mostly about PACER, but today we had an interesting decision from the 1st Circuit that also addresses fundamental issues of public access to the courts. The back-story is complicated and interesting in its own right, but the relevant facts are:

Generally, federal district courts do not allow proceedings to be video or audio recorded or broadcast
Joel Tenenbaum, a defendant in the District Court of Massachusetts, requested that a hearing in his trial be webcast
The judge, Nancy Gertner, granted his request
The plaintiffs appealed (petitioned) the 1st Circuit, claiming that she did not have that authority under local rules (specifically 83.3). Plaintiffs also made some silly arguments about how people on the internet would make fun of them, which nobody took seriously.
There are some additional complications due to non-binding policies of the Judicial Conference, and a previously obscure statement from the 1st Circuit Judicial Council. Ultimately these are not dispositive but (according to the 1st Circuit) lend credence to plaintiff/petitioners' claim

At oral argument, the debate focused on very specific details about how to read those local District of Massachusetts rules. Tenenbaum's lawyer, Charlie Nesson (who I know, and who is also at the Berkman Center), also made a high-level argument for why the ban on recording and broadcasting was bad policy (for more detail on the history of these policy issues, see this excellent CMLP blog post).

The court sided with petitioners, explaining that the Judge Gertner's decision "was based on a palpably incorrect interpretation" of the rule. In doing so, the court explicitly side-stepped the question of whether or not this was good policy -- its task was to decide whether the rule as written had been followed. The decision was a blow to the specific goal of webcasting the upcoming district court hearing, and unless the rules are changed it will be binding in other cases. This is where Judge Lipez, in his concurrence, throws open access proponents a bone or two:

Indeed, in my view, there are no sound policy reasons to prohibit the webcasting authorized by the district court. Therefore, this case calls into question the continued relevance and vitality of a rule that requires such a disagreeable outcome.

In short, the rules are dumb. Indeed, he noted the same irony that I had been pointing out to my colleagues in the weeks leading up to oral argument: the circuit courts themselves have implemented a program in which they record oral arguments and make them immediately available as MP3 podcasts on the internet. Lipez continues:

When the motions hearing at issue occurs, only those physically present in the courtroom will hear the parties debate the merits of the motions before the district court. Ironically, however, almost immediately after the oral argument in this First Circuit mandamus proceeding ended, anyone with an internet connection could access a recording of that argument from our website. There is no meaningful difference between the type of oral argument that we make available to the public as a matter of course and the type of argument that would have been broadly accessible under the district court's Order.

Judge Lipez thinks that the rules simply don't take into account the internet:

The Local Rule at the center of this controversy was adopted in 1990. Since its adoption, dramatic advances in communications technology have had a profound effect on our society. These new technological capabilities provide an unprecedented opportunity to increase public access to the judicial system in appropriate circumstances. They have also created expectations that judges will respond sensibly to these opportunities. With its sweeping prohibition on the broadcasting or recording of district court proceedings, Local Rule 83.3 prevents such responses in civil cases. So too do the Policy of the Judicial Conference and the Resolution of the Judicial Council of the First Circuit that underlie the Local Rule. As the outcome of this proceeding demonstrates, the Rule, the Policy, and the Resolution should all be reexamined promptly.

It seems like it's time to change the rules.

More coverage:

Ars: The case against PACER: tearing down the courts' paywall

2009-04-09T10:32:00.008-04:00

I'm quoted in this new Ars Technica article by Tim Lee
The case against PACER: tearing down the courts' paywall

In this feature, Ars takes stock of online access to federal court records in the United States. We'll discuss how the system got where it is today, look at where there's room for improvement, and talk to two experts on open government about the prospects for reform. The bottom line is that the courts deserve credit for the progress they made in the 1990s, but a lot more work is needed to bring PACER into the 21st century.
[...]
Schultze and Grimmelmann agree that the solution to PACER's problems is for the courts to make court records available for free download. Schultze points to a recent paper from Princeton's Center for Information Technology Policy arguing that governments should stick to releasing raw information and allow private parties to build organization and search tools. Schultze predicts that if private parties were given free access to the raw PACER documents, they would quickly build websites that surpass PACER in functionality and ease-of-use.

In the time since I was interviewed for this article, I had a conversation with one of the attorneys for the Administrative Office of the Courts. He was very friendly and candid, answering my questions to the best of his ability. I got the impression that the AO is passionate about access to court records, but struggles with the practicalities of no-fee access. This makes me hopeful that we can constructively work toward a solution.

Techliberation Podcast on PACER

2009-03-06T15:09:00.009-05:00

In the latest episode of the Tech Policy Weekly from the Technology Liberation Front, I discuss the nature of public access to court records along with:

Tim Lee, who’s written about the problems with PACER.
James Grimmelmann of New York Law School, who has written a great essay on Copyright, Technology, and Access to the Law.
Berin Szoka, our gracious host.

Listen here.

Lieberman Letter on CRS Reports

2009-03-04T15:56:00.016-05:00

NOTE: Lieberman's letter on PACER his here.

Press release here.

LIEBERMAN URGES BETTER PUBLIC ACCESS TO CRS REPORTS

WASHINGTON - Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman, ID-Conn., urged the new Chairman of the Senate Rules Committee Wednesday to help foster greater public access to the expert reports produced by the Congressional Research Service. In a letter to Rules Committee Chairman Chuck Schumer, D-N.Y., Lieberman asked for Schumer to improve upon the current limited system through which the public can access the reports. The letter follows: March 4, 2009 The Honorable Charles E. Schumer Chairman - Committee on Rules and Administration 305 Russell Senate Office Building United States Senate Washington, DC 20510 Dear Senator Schumer: Congratulations on becoming Chairman of the Committee on Rules and Administration. I look forward to working with you in this capacity, particularly given the leading role the Committee takes on many issues that we both care deeply about. One of those issues is the public availability of Congressional Research Service (CRS) reports. As you know, CRS produces reports that inform Members of Congress and their staffs on key issues of the day. Members have long shared these reports with their constituents, providing them expert analysis on the complex issues this nation faces. Given their value to constituents, I strongly believe that we need a system that ensures widespread public access to CRS reports. Last Congress, I introduced S. Res. 401 along with Senators McCain, Collins, Cornyn, Feingold, Harkin, Leahy, Lugar, and McCaskill, to create such as system. A few months after the introduction of our bill, the Rules Committee authorized the Director of CRS to develop a system that would allow Senators to place individual CRS reports on their official website and would have them automatically updated. I was pleased by this development, but it does not go far enough. I believe a more effective system would provide constituents with tools similar to those used by Congressional staff, with material presented by topic and the capability to search across all reports and issue briefs. Unfortunately, the present system does not allow this basic level of functionality. A robust system would also help restore the equity of access that is sorely needed. For years, CRS reports have been sold by companies to those who can afford to pay. Non-profit groups have also begun posting these reports for free on their websites. Earlier this month, thousands of reports – representing several years’ worth of work by CRS analysts – were placed on the wikileaks.org site. These ad hoc efforts allow more reports to enter the public domain, but they do not ensure the dissemination of the most accurate and up-to-date information. Nor are they likely to be discovered by all those who might desire the reports. These developments only highlight the need for an officially-sanctioned system such as the one I have proposed. By establishing a clearinghouse that would offer all reports and would be automatically updated, we could ensure that those with power and those without have equal access to this important resource. I hope that in your new role as Chairman of the Rules Committee you carefully review this issue and consider recommending the creation of a more comprehensive system so that CRS reports can be easily accessed by the taxpayers who pay for them. Thank you for your consideration and I look forward to working with you on this issue. Sincerely, Joseph I. Lieberman Chairman

Coverage:

Free Congress's Secret Research Reports, Lieberman Asks - Wired
Lieberman Renews Push For CRS Reports - National Journal
Lieberman renews push for easier access to CRS reports - GovExec
Bulk Data Downloads: A Breakthrough in Government Transparency - Tim O'Reilly
Lieberman asks for all CRS reports to be made public - Federal News Radio
Sen. Lieberman to Congress: Free the CRS Reports - Center for Democracy and Technology
Lieberman: CRS reports should be freely accessible - Federal Computer Week
Is This the Year Congress Improves Public Access to CRS Reports? - Project on Government Oversight
Sen. Lieberman Calls for Release of CRS Library - TPMCafe
Discussion on the "Open House Project" list
...and tweets

The language mentioned by O'Reilly in the House Appropriations bill:

The bill text
The explanatory statement that includes the CRS-related language

Lieberman Letter on PACER

2009-02-27T13:57:00.016-05:00

Press Release here.

LIEBERMAN SEEKS INFORMATION ON FEDERAL COURT COMPLIANCE WITH TRANSPARENCY, PRIVACY REQUIREMENTS

WASHINGTON – Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman, ID-Conn., Friday sent the following letter to the policy-making body of the Federal Court system requesting proper compliance with the E-Government Act of 2002 on transparency and privacy issues as they relate to court documents: February 27, 2009 The Honorable Lee H. Rosenthal Chair, Committee on Rules of Practice and Procedure Judicial Conference of the United States Washington, D.C. 20544 Dear Judge Rosenthal: I am writing to inquire if the Court is complying with two key provisions of the E-Government Act of 2002 (P.L. 107-347) which were designed to increase public access to court records and protect the privacy of individuals’ personal information contained in those records. As you know, court documents are electronically released through the Public Access to Court Electronic Records (PACER) system, which currently 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, to the extent necessary” instead of “shall” charge fees “for access to information available through automatic data processing equipment.” The goal of this provision, as was clearly stated in the Committee report that accompanied the Senate version of the E-Government Act, was to increase free public access to these records. As the 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.” Seven years after the passage of the E-Government Act, it appears that little has been done to make these records freely available – with PACER charging a higher rate than 2002. Furthermore, the funds generated by these fees are still well higher than the cost of dissemination, as the Judiciary Information Technology Fund had a surplus of approximately $150 million in FY2006. Please explain whether the Judicial Conference is complying with Section 205(e) of the E-Government Act, how PACER fees are determined, and whether the Judicial Conference is only charging “to the extent necessary” for records using the PACER system. In addition I have concerns that not enough has been done to protect personal information contained in publicly available court filings, potentially violating another provision of the E-Government Act. A recent investigation by Carl Malamud of the non-profit Public.Resource.org found numerous examples of personal data not being redacted in these records. Given the sensitivity of this information and the potential for indentify theft or worse, I would like the court to review the steps they take to ensure this information is protected and report to the Committee on how this provision has been implemented as we work to increase public access to court records. I thank you in advance for your time and I look forward to your response. Sincerely, Joseph I. Lieberman Chairman

Coverage:

Lieberman: What Is Up with PACER? - Congressional Quarterly
Lieberman questions accessibility, privacy of court docs - CNet
Lieberman Questions PACER Fees - WSJ Blogs
Lieberman to Courts: What’s the Deal with PACER? - WSJ Blogs
Sen. Lieberman Requests Answers from the Judicial Conference on Compliance with Court Provisions of the E-Government Act of 2002 - American Association of Law Libraries
Federal Judiciary Grilled for Charging for Access to E-Filed Documents - The National Law Journal
Lieberman: Why Do We Have to Pay for PACER? - PC Magazine
Lieberman Asks Why US Court Documents Aren't Free To The Public - TechDirt
Senator Wants to Scratch a Seven-Year Itch - Center for Democracy and Technology
Lieberman Questions Courts on Information-Sharing Law - FederalComputerWeek
Lieberman Pushes for Free Online Access to Court Docs - Appscout
Lieberman Launches PACER Inquiry - ZiefBrief
Senator Questions Pacer Practices - Peter Suber
Senator Lieberman to Federal Courts and PACER: "Let us keep the change!" - The Freedom of Information Law Blog
...and tons of tweets

Carl for Public Printer

2009-02-24T21:51:00.004-05:00

With characteristic confidence, Carl Malamud has suggested himself for Public Printer at the GPO. I am delighted to endorse him. He brings decades of dogged advocacy and a deep understanding of how digital technology transforms the duty of publishing government information. If he were to stretch dollars at the GPO as well as he has done at his own non-profit, the agency's output would multiply many-fold. Also, his shiny head is in keeping with his bald-pated predecessors.

"Open Our Government List"

2009-02-19T17:49:00.003-05:00

Sunlight just launched a site asking for recommendations on what should be in the Open Government Directive. It looks like Sunlight has spun this out using the same software they used for "Show Us The Data".

My personal favorite so far is the wonky "Digital deposit of govt information to libraries." It's obscure but important. As libraries increasingly rely on digital collections, it's critical that they obtain the actual content of these materials rather than simply remote access to a government database (which could go away at some point).

Oh, and don't for get to vote for no-fee PACER access on the Show us the Data site.

Video from "Selling the Law: The Business of Public Access to Court Records"

2009-02-17T10:51:00.003-05:00

CITP has posted the video of the talk that Shubham and I gave a couple of weeks ago. You can also download the slides.

Time for a Name Change

2009-02-15T19:11:00.003-05:00

I've realized that my blog has outgrown its own name. My court access work fits only the broadest definition of "media," and I'm not sure how I'm going to make it fit into a post I've been meaning to write about why Flast/Hein Equal Protection taxpayer standing issues are related to internet policy. So, without further ado:

Managing Miracles: ~~Media~~ Policy for the Network Society

Chris Riley on Comcast, BitTorrent, and Network Neutrality

2009-02-13T09:58:00.004-05:00

Yesterday, the Berkman Center and Harvard Journal of Law and Technology co-hosted a talk by Chris Riley, Policy Counsel for Free Press. Chris gave:

a brief history of the Comcast proceeding and other net neutrality legal efforts, and then dives into a substantive policy discussion of present and future Congressional and Commission net neutrality proceedings.

You can watch the video here.

NYTimes: "An Effort to Upgrade a Court Archive System to Free and Easy"

2009-02-12T23:02:00.010-05:00

Earlier today I urged folks to vote for PACER on the new Show Us the Data site. Tonight, the NY Times posted a well-researched article entitled "An Effort to Upgrade a Court Archive System to Free and Easy" on the latest efforts to "liberate" the court documents.

...a small group of dedicated open-government activists teamed up to push the court records system into the 21st century — by simply grabbing enormous chunks of the database and giving the documents away, to the great annoyance of the government.
[...]
To Mr. Malamud, putting the nation’s legal system behind a wall of cash and kludge separates the people from what he calls the “operating system for democracy.” So, using $600,000 in contributions in 2008, he bought a 50-year archive of papers from the federal appellate courts and placed them online. By this year, he was ready to take on the larger database of district courts.

Those courts, with the help of the Government Printing Office, had opened a free trial of Pacer at 17 libraries around the country. Mr. Malamud urged fellow activists to go to those libraries, download as many court documents as they could, and send them to him for republication on the Web, where Google could get to them.

Aaron Swartz, a 22-year-old Stanford dropout and entrepreneur who read Mr. Malamud’s appeal, managed to download an estimated 20 percent of the entire database: 19,856,160 pages of text.

Then on Sept. 29, all of the free servers stopped serving. The government, it turns out, was not pleased.

Carl has posted his correspondence with various courts related to their redaction errors and privacy issues.

What can you do? Vote for PACER on Show Us the Data!

"Show Us the Data": Vote for Access to PACER

2009-02-12T09:44:00.009-05:00

A great new project on access to government documents was just announced:

The Center for Democracy & Technology and OpenTheGovernment.org today announced the launch of Show Us The Data: The Most Wanted Federal Government Documents, a project aimed at identifying vital government information and encouraging the federal government to put it within easy reach of the public. This project will lead to a report, recommending documents and data that the federal government should make easier to find and use. The project's launch follows up on a directive from President Obama to federal agencies to proactively make information available to the public. The goal is to identify the documents and databases the public most wants to be made publicly available in usable formats. The items can be information known or thought to be in the federal government’s possession, or information that the federal government should be collecting or generating. (more...)

The project comes out of Sunlight Labs, and the top 10 documents will be announced during Sunshine Week. You can also see past years' results.

I just added a comment to the PACER entry. Vote for free, open access to federal court documents!

Crazy Copyright Provisions Proposed in Stimulus

2009-02-10T13:01:00.003-05:00

I won't add any commentary on this other than what Public Knowledge has already stated very well.

Hollywood’s lobbyists are running all over the Hill to sneak in a copyright filtering provision into the stimulus package. The amendment allow ISPs to “deter” child pornography and copyright infringement through network management techniques. The amendment is very, very controversial for a couple of reasons:

First, infringement can’t be found through “network management” techniques. There are legal uses for copyrighted works even without permission of the owner.
Second, it would require Internet companies to examine every bit of information everyone puts on the Web in order to find those allegedly infringing works, without a hint of probable cause. That would be a massive invasion of privacy, done at the request of one industry, violating the rights of everyone who is online.

They are calling for people to immediately contact the relevant members.

Wikileaks Posts CRS Reports

2009-02-08T01:23:00.007-05:00

Wikileaks has just posted the CRS reports I had mentioned a couple of weeks ago. Go Wikileaks!

Wikileaks has released nearly a billion dollars worth of quasi-secret reports commissioned by the United States Congress.

The 6,780 reports, current as of this month, comprise over 127,000 pages of material on some of the most contentious issues in the nation, from the U.S. relationship with Israel to abortion legislation. Nearly 2,300 of the reports were updated in the last 12 months, while the oldest report goes back to 1996. The release represents the total output of the Congressional Research Service (CRS) electronically available to Congressional offices. The CRS is Congress's analytical agency and has a budget in excess of $100M per year.

Their editorial continues here, with links to the actual documents.

Update: The Center for Democracy and Technology, which has for years maintained the Open CRS site, comments on the development:

Perhaps now Members will move quickly to pass legislation to provide quick and easy access to these reports and bring a halt the ridiculous cloak-and-dagger atmosphere that to-date has surrounded their release.

More coverage from:

ACM Releases Recommendations on Open Government

2009-02-05T15:50:00.010-05:00

I'm at Princeton's Center for Information Technology Policy today presenting on open access to court documents. Coincidentally, the ACM U.S. Public Policy Committee today released a statement on the broader theme of government transparency. (For you non-Computer-Science geeks, the ACM is the "Association for Computing Machinery -- the anachronistically named membership organization of which I used to be a card-carrying member). In their "Recommendations on Open Government" they lay out a set of guidelines for government entities who publish data online. The recommendations echo the suggestions in the excellent new paper, "Government Data and the Invisible Hand", published by several folks here at CITP. On the Freedom to Tinker blog, David Robinson commented on the announcement and the role that he and Ed Felten played in shaping the recommendations. In short, the committee recommends that the government focus on making machine-readable versions of their data easily available so that others can find innovative ways to present it. The recommendations include:

Data published by the government should be in formats and approaches that promote analysis and reuse of that data.
Data republished by the government that has been received or stored in a machine-readable format (such as as online regulatory filings) should preserve the machine-readability of that data.
Information should be posted so as to also be accessible to citizens with limitations and disabilities.
Citizens should be able to download complete datasets of regulatory, legislative or other information, or appropriately chosen subsets of that information, when it is published by government.
Citizens should be able to directly access government-published datasets using standard methods such as queries via an API (Application Programming Interface).
Government bodies publishing data online should always seek to publish using data formats that do not include executable content.
Published content should be digitally signed or include attestation of publication/creation date, authenticity, and integrity.

More coverage:

Computing Group Offers E-Gov Ideas - National Journal
The Noisy Channel

CRS Reports To Be Leaked on Wikileaks

2009-01-28T22:07:00.006-05:00

This is great news. Wikileaks is about to release a ton of CRS reports. I briefly mentioned this issue in my Berkman presentation on open access to government documents. The basic issue is that the Congressional Research Service, the taxpayer-funded think-tank for Congress, does not give citizens access to its reports. This is despite the fact that they cannot be copyrighted, and can have a real effect on legislative decisions. There has been a bill introduced in every session of Congress for quite some time now, which would release all of the reports to the public, but it has always stalled.

From the wl-press mailing list:

-----------------------------------------------------------------------------
3. Wikileaks to release nearly 10,000 Congressional Research Service
reports
-----------------------------------------------------------------------------

Wikileaks has obtained nearly 10,000 US Congressional Research
Service (CRS) reports which it is preparing for publication. The
CRS spends around $100M a year preparing high quality reports for
members of Congress and Congressional committees. When members feel
publication of a report is in their political interest, they are
released. Alternatively reports that are not viewed as politically
favorable are kept from the public eye.

I originally noticed the news in this Open House Project post, which has more commentary. For more background on efforts to liberate CRS reports, check out this FGI post. Peter Suber has also commented on this development.

I Try to Explain the History and Structure of Communications Law

2009-01-27T12:56:00.003-05:00

My latest conversation with David Weinberger is posted on Media Berkman. David asked me how and why the internet is regulated (or deregulated). The launched me into a somewhat long description of the history of Communications Law in the US. If you're one of those odd people that enjoys this topic as much as I do (or if you're a lawyer and want to correct my explanation), you can listen here.

And no, it wasn't my idea to use the goofy Western language in the description. Rawhide!

Inauguration Through the Eyes of America

2009-01-20T12:28:00.023-05:00

While trying to get one of the many web video streams of the inauguration working -- and ultimately falling back on an NPR audio stream -- I decided to try the Flickr feed for recent photos tagged "inauguration." I expected photos by people in DC, but what I didn't expect was so many photos of people across the country and around the globe watching the event. These snapshots of individual yet collective experience speak as strongly as a crystal clear high-definition video stream of the proceedings.

Kevin Martin Resigns

2009-01-15T13:52:00.003-05:00

He's leaving as of January 20 and headed to the Aspen Institute. I'll update with more. It's interesting to read his list of accomplishments in the press release.

The Next FCC: No More Monkey Business?

2009-01-13T20:00:00.017-05:00

Today's big news for communications policy wonks is that apparently Julius Genachowski will be tapped for FCC Chairman. The pick is Obama's first big imprint on the Commission. Although it is not a surprise, it is probably a smart move. Genachowski is an FCC veteran with deep knowledge of the technology industry (as General Counsel for IAC and as a tech venture capitalist).

The news comes in the midst of growing calls for FCC reform from folks like Silicon Flatirons and Public Knowledge. The theme is that the FCC needs to re-orient its rules and processes to make more sense in a converging, Internet-oriented communications landscape. I heartily agree.

Of course, this is not the first wave of calls for reform. Back in 2005 the DC think-tank Progress and Freedom Foundation spearheaded the "Digital Age Communications Act," which argued that the powers of the Commission should be radically curtailed and that the Communications Act should be rewritten as antitrust policy. This amounted to abolishing most of the Commission's traditional powers. The bill never went anywhere.

Recently, Larry Lessig has argued that we should do away with the FCC and replace it with a new entity. Lessig thinks that the Commission is rooted in outdated notions of monopoly rights and incumbent protection. He says, "You can't fix DNA. You have to bury it." His dream agency has two mandates: 1) agressively police monopoly and 2) ensure openness. Of course these two ideals are both hard to define and sometimes at odds. Nothing about creating a new agency will fundamentally change this reality. What's more, focusing heavily on market forces can often provide an excuse for ignoring the more socially motivated or mundane-but-essential roles of communications policymakers. Market considerations are undeniably important, but proposals to reduce everything to antitrust lose sight of what is unique about communications.

The key to Lessig's approach appears to be "a strong agency head, and a staff absolutely barred from industry ties." I agree with his first prescription, and it's possible that Genachowski could be a step in the right direction. If recent reports are to be believed, he'll likely be an improvement over the outgoing Chairman. To begin with, the House released a blistering critique last month, titled "Deception and Distrust: The Federal Communications Commission Under Chairman Kevin J. Martin." It cites FCC employee's references to being "Martinized" or "blue-boxed" -- their euphemisms for the Chairman's alleged habit of killing fact-based reports that didn't support his policy agenda. Then there was the recently released Federal Human Capital Survey, which showed that an embarrasingly low number of FCC employees -- 38 percent -- felt that "My organization's leaders maintain high standards of honesty and integrity." I am less persuaded that the FCC staff should be "absolutely barred from industry ties." I'm not even sure what that means. Does it mean that they never can have worked in industry? Does it mean that after serving they never can move to industry? It seems like a recipe for inexperienced, disconnected bureaucrats.

One man with a passion for banishing uninformed bureaucrats was the late, great, and entirely deranged televangelist Dr. Gene Scott. During his prolonged battle with the FCC, he would taunt the agency on-screen by representing it with a band of wind-up monkeys. He would often pick up his favorite, banging it on the head and exclaiming, "That's the only way to treat a bureaucrat!" I don't think that the appropriate solution to the shortcomings of the FCC is to beat the commissioners over the head with a stick, and I also don't think the solution is to abolish the agency altogether.

We don't have to "blow up" the FCC or reduce it to doing antitrust (we already have two agencies that are experts in that area). We could certainly use a re-write of the Communications Act that does away with the outdated and technologically siloed model of regulation in favor of an approach more closely matched to reality. We could also use good leaders. I am hopeful that today's announcement sets the course of the agency in the right direction.

Gene Scott and the FCC Monkey Band:

(sorry about the low audio)

Talk at Princeton CITP, Feb 5th

2008-12-19T10:50:00.005-05:00

I'll be giving a talk at the Princeton Center for Information Technology Policy on February 5, along with Shubham Mukherjee. This will be a trial-run of a paper we're working on.

Title: Selling the Law: The Business of Public Access to Court Records
When: Thursday, February 5, 2009 - 4:30 PM
Where: Sherrerd Hall, Room 101

As government documents are increasingly digitized and put online, two orthogonal approaches to distributing these documents have developed. Under one approach, the documents are made easily and freely accessible. In others, the government retains or introduces barriers to access that are inspired by traditional physical access. When these barriers are fee-based, the government can inadvertently create downstream monopolies or architectures of control over public information. This problem is especially severe in the case of federal district court documents, which are available only via an outdated, fee-based, court-run system or from expensive aggregators like Lexis or Westlaw. Indeed, evidence indicates that the courts are using public access fees to subsidize other activities. If we are to be a nation of laws, citizens must have access to the law. The upfront cost of making court documents freely available is far outweighed by the long-term benefits to society. Widespread digitization combined with Internet connectivity has placed these benefits within reach. The courts must now address the task of revamping outmoded policies and funding structures in order to align their practice with this reality.

Radio Berkman: A (Porn) Free Nationwide Internet?

2008-12-16T10:45:00.004-05:00

Berkman just posted an audio interview with me, where I discuss the FCC's proposal for the AWS-3 spectrum auction and how it was scuttled.

A scheduled FCC vote on a free nationwide wireless internet, was derailed this week after outcry from both the Bush administration, the ACLU, Congressional Democrats, and the digerati. What was it about the FCC’s proposal that raised the eyebrows of such a diverse group of opponents? David Weinberger interviews Stephen Schultze of the Berkman Center to find out more.

Listen here.

WSJ on Google and Net Neutrality - DEVELOPING

2008-12-15T08:19:00.037-05:00

I have done the only sensible thing and put up a Drudge siren. It's appropriate given the level of research and care that went into today's Wall Street Journal article claiming, "Google Inc. has approached major cable and phone companies that carry Internet traffic with a proposal to create a fast lane for its own content, according to documents reviewed by The Wall Street Journal."

Suffice to say, the authors got it fundamentally wrong. They failed to understand basic networking concepts like colocation versus discrimination. Richard Whitt (full disclosure: my old boss and co-author of a forthcoming paper) wrote a charitable but biting reply. The best summary I've seen so far is actually this compendium of quotes: OMG! WSJ net-neutrality own-goal....

I'll keep updating this post as the brawl unfolds. Suffice to say, if you're looking for evidence of the mainstream press under-performing compared to the blog-o-sphere-o-pedia-space... look no further. WSJ has become Drudge, and the blogs are actually getting the story right.

And with that, all I can say is DEVELOPING...

At 12:49pm, the WSJ posts "Discussing Net Neutrality" which notes, "Today’s Journal story on Google's plans to develop a fast track for its own content has certainly gotten a rise out of the blogosphere." Commenters, including Dan Gillmor, ask them why they aren't retracting or correcting the story.
At 4:23pm, another WSJ post, "What's Edge Caching?," pulls quotes from blogs describing edge caching, generally making the case that although it is a common and well-known practice, this case is different.

Comedy Central's Indecision 2008: Obama Reassures Nerds on Net Neutrality:

Cheeto-stained keyboards all over the country were burning up this morning after The Wall Street Journal reported that President-elect Obama was flip-flopping on his pro-net-neutrality position and Google was in secret talks to buy preferential treatment for their content from service providers. But as it turns out, WSJ were just ObamaOpposesNetNeutralityRolling us.

And the surge of criticism:

Lessig Blog: The Made Up Dramas of the Wall Street Journal
Tim Wu Blog: Google Wall Street Journal - They haven’t got the goods
TPM: Obama Spokesperson: His Commitment To Net Neutrality Hasn't Wavered One Bit
Ars: Google backing off net neutrality with ISP deal? Not really
ZDNet: Media used by cable to create Google scandal
Wired Blog: WSJ WTF?
Broadband Reports: The Wall Street Journal's Google Hatchet Job - Opinion: paper helps cable, telcos smear their biggest enemy...
Scott Bradner: Google as evil, now from The Wall Street Journal: WSJ ends year showing a misunderstanding of technology
Timothy B. Lee: The Journal Misunderstands Content-Delivery Networks
Scott Rosenberg: Journal steps in Net neutrality hornet’s nest
Conde Nast: Google Slams 'Confused' WSJ Story on Network Neutrality
Wired: Google Blasts WSJ, Says it's Still 'Committed to Network Neutrality'
PC World: WSJ Accuses Google of Abandoning Net Neutrality: Reality Check
Reuters: Google says plan would not threaten net neutrality
Harold Feld: The Google Non-Story On Network Neutrality
Huffington Post, Tim Karr (of Free Press): WSJ Gets It Wrong. Net Neutrality Still in the Front Seat.
ZDNet: Google turns on net neutrality (not!)
IDG: Google, Microsoft Say They Still Support Net Neutrality
MediaPost: Net Neutrality Advocates Rally To Google's Defense
Siva Vaidhyanathan: Is Google giving up on Net Neutrality? Hardly.
Center for Democracy and Technology: Neutrality and Caching
Public Knowledge: Comment on Wall Street Journal ‘Net Neutrality’ Story

AWS-3 Vote Postponed Indefinitely

2008-12-14T18:15:00.012-05:00

Late Friday, Chairman Martin canceled the October 18th FCC Open Meeting. This is a fairly exceptional development. The Commission was set to vote on the increasingly controversial rules for auctioning off the AWS-3 spectrum -- a 25MHz block of airwaves in the 2GHz range. Martin had been pushing for two fairly unique requirements on the ultimate winner: 1) That the winner must provide no-cost internet access on a portion of the spectrum and 2) That they must filter "objectionable material" (possibly with an opt-out for adults). In July, I co-authored comments explaining why this second condition raised troubling free speech concerns.

Martin has come under increasing pressure from all sides. The ACLU criticized the "family friendly" aspects of the plan, in chorus with comments from public interest groups. Then, the Bush Administration sent a letter to the FCC last Wednesday, stating that "the draft AWS-3 order would constrain a provider's usage of this spectrum, favoring a particular business model and potentially precluding the spectrum from allocation to the most valuable use" (coverage here). Nevertheless, Martin appeared determined to see the plan through, and issued the formal agenda the next day.

But on Friday, Congressmen Rockefeller and Waxman weighed in with a letter. These are the two guys who will head up the committees that oversee the FCC, in the Senate and House respectively. Apparently this pushed Martin over the edge, and he canceled the meeting altogether. FCC Spokesman Robert Kenny said:

"We received the letter from Senator Rockefeller and Congressman Waxman today and spoke with other offices. In light of the letter, it does not appear that there is consensus to move forward and the agenda meeting has been canceled."

Wow. This means that the question of what to do with the AWS-3 spectrum will almost certainly fall to the next FCC. They could start the process over from scratch, with new proposals for what to do with the spectrum and another series of notice-and-comment periods. Hopefully that Commission will take an approach that does not present such significant First Amendment problems. The failure of this ill-designed proposal is a bittersweet victory -- at least we didn't get bad rules out of the process. However, we have also potentially delayed the point at which this spectrum can be used to overcome our national broadband woes.

More coverage:

E-Government Reauthorization Might Not Pass

2008-12-12T16:02:00.005-05:00

I had thought that the E-Government Reauthorization Act was at a standstill and likely to die, but apparently it was still moving... until recently. Sunlight cites Congress Daily, explaining that it is being held up for reasons unrelated to the substance of the bill.

OMB officials and Senate Homeland Security and Governmental Affairs Chairman Joseph Lieberman and ranking member Susan Collins have battled behind the scenes in recent months to reauthorize the E-Government Act of 2002 before President Bush leaves office, but a standoff in the Judiciary Committee has probably killed the bill, sources said Wednesday.

I agree with the Sunlight blog post by Wonderlich. This is a real bummer. Although the E-Government Act doesn't solve some of the fundamental problems of public access to government information (which I discussed in my recent Berkman lecture) it would do a few things to improve the situation.

The AWS-3 Plot Thickens

2008-12-03T20:43:00.009-05:00

Martin is trying to sweeten the deal for his AWS-3 spectrum auction proposal by adding a "use it or lose it" provision. If the winner of the auction does not build out their no-fee wireless internet network to all areas within 5 years, it will lose its license in the non-covered areas. Those areas will then apparently revert to an unlicensed regime. The WSJ article and Reuters articles don't give much detail, but it's clear that the Chairman is doing some strategic leaking.

WASHINGTON -- Federal Communications Commission Chairman Kevin Martin is proposing giving innovators free unlicensed access to valuable airwaves if the company that buys a license to the channels doesn't meet tough requirements to build a nationwide Internet network.

The proposal has been added to a pending auction of the airwaves. The FCC is scheduled to vote on rules for the sale on Dec. 18. Mr. Martin wants the company that buys the airwaves to devote at least 25% of the spectrum to free Internet access for 95% of the country. The no-cost Internet service also would be smut-free for users under 18. Adult users could opt out of the filter blocking pornographic content.

Mr. Martin said Wednesday that he has circulated two versions of the auction item -- one with the unlicensed provision and one without -- for the other commissioners on the five-member body to review before the meeting. The FCC will vote on only one version, depending on which version the other commissioners prefer, Mr. Martin said.

Mr. Martin wants to sell a nationwide license to the airwaves rather than give the channels to entrepreneurs because he wants to promote free Internet access. By adding a clause that would give away airwaves where there isn't an Internet network after five years, Mr. Martin hopes that the owner of the channels would have an added incentive to build a network.

Mr. Martin said Wednesday that both versions of the auction item include a "use it or lose it" provision in which the owner of the channels would lose spectrum where there is no Internet access. The owner of the channels would "continue to serve whatever area they've built out," he said.

Martin also recently leaked the fact that he is proposing that adults can verify their identity to avoid the porn filter initially mandated for all users of of the no-fee service. I helped author some comments to the FCC explaining why this filter was a bad idea, so an opt-out mechanism could theoretically be a good development... if age verification were viable, and if you thought that adults were eager to identify themselves as possible porn-lovers, and if we assumed that all adults had credit cards. In short, filtering is not a great option even with those caveats.

It all gets decided on the 18th. You can read the latest comments.

FCC Releases White Spaces Order

2008-11-19T10:54:00.007-05:00

They voted in favor of the white spaces order on November 4, but it is very common for the Commission to finish hashing out the details of orders after they have approved them (odd, but true). The FCC has finally released the full text of the order, which includes a 100mw power limit for personal/portable devices (40mw on adjacent channels) and 4w for fixed devices. I believe this all means good things for white space devices (those were the numbers many advocates were suggesting), but I'll update this post as more coverage emerges.

Congrats Susan and Kevin

2008-11-14T18:03:00.004-05:00

Two communications policy experts I tremendously admire were just named heads of Obama's FCC transition review team. Susan Crawford and Kevin Werbach will "ensure that senior appointees have the information necessary to complete the confirmation process, lead their departments, and begin implementing signature policy initiatives immediately after they are sworn in."

Susan was a member of my thesis committee, and Kevin has been tremendously influential in my thinking. I've never told Kevin, but in addition to informing my writing as recently as this week, I learned how to make web sites in 1995 using his Bare Bones Guide to HTML.

The Commission could not be under better transitional guidance.

Tim Lee's Reasonable Retorts

2008-11-14T10:48:00.019-05:00

Tim Lee has posted two responses to my critique of his recent article on network neutrality. In his article, he argued that network neutrality is good but that violations of the principle are unlikely to be severe for economic and technical reasons. I find this argument unpersuasive, and he responded with four basic retorts:

1. Net Neutrality proponents don't clearly state what they are seeking to prevent, and thus evade any attempt to disprove their harms.

I’ve found that any time I take one of these ISP strategies seriously and put forth an argument about why it’s unlikely to be feasible or profitable, the response from supporters of regulation is often to concede that the particular scenario I’ve chosen is not realistic...

Lee goes on to list several scenarios, all of which are possible to varying degrees. However, they all fit the simple rubric of network discrimination and they all are harmful. In general, subtle discrimination is more likely than outright blocking. This is something that has been clearly articulated by the mainstream of neutrality proponents for some time. That is why I included reference to Barbara van Schewick's paper. If Tim were choosing to "take one of these ISP strategies seriously" he would have done well to focus on the one that most people are talking about.

2. This type of discrimination is unlikely, isn't that bad, and we can always fix it after the fact.

First, notice that the kind of discrimination he’s describing here is much more modest than the scenarios commonly described by network neutrality activists. Under the scenario he’s describing, all current Internet applications will continue to work for the foreseeable future, and any new Internet applications that can work with current levels of bandwidth will work just fine. If this is how things are going to play out, we’ll have plenty of time to debate what to do about it after the fact.

I am describing a mainstream version of discrimination, which can happen either right now or going forward as operators upgrade their networks but keep non-payers in the slow lane. We have ample evidence of the former in Comcast/BitTorrent. The latter is simply a less visible version of the former -- an even further degree away from Lee's scenario in which consumers have "a taste of freedom", "become acutely aware of any new restrictions," and, "stubbornly refuse efforts to impose them." The fact that carriers are building out faster networks doesn't tell us whether or not this is likely. Carriers will of course build out faster networks, because they typically profit more from them (whether they impose discrimination or not). Given the current uncertain regulatory climate, it is no surprise that they have refrained from additional large-scale discrimination. This climate, however, is temporary. The relevant question is whether or not those network upgrades provide additional shield from the customer backlash that Lee posits. It is clear that they do.

How bad you think this discrimination is depends on how seriously you take arguments about platform economies, dynamic innovation, network effects, and freedom of speech. It also depends on whether or not you think that degrading service achieves most of the ends of outright blocking. I argue that it does. Google's obsession with page load times is not simply because they are hyper-focused engineers. Skype's need for equal network treatment is not just because they want calls to sound nice. The BitTorrent protocol's expectation that connections are not randomly reset is not a matter of convenience.

Lee would have us believe that we will always have the space to regulate these issues, if needed, after the fact. The Comcast order might give us some hope in this regard, except for the tremendous murkiness that surrounds the decision, its implications, and its legal durability. Regulation from the FCC can be roughly thought to fall into two categories: rulemaking and adjudication. Rulemaking explicitly sets out the detailed requirements, whereas adjudication defines basic guidelines and then builds policy through case-by-case enforcement. Lee clearly opposes rulemaking on its face. We are left with adjudication, but in this case he opposes further definition of enforceable principles. This is not ex post regulation, it is no regulation at all.

3. The risks are overblown, and disproved by history.

It’s worth remembering that alarmism about the future of the Web is almost as old as the Web itself.

Lee is not a fan of Lessig's "apocalyptic" predictions in 1999. While Lessig's forecasts undoubtedly have not fully come true ("yet" -- as he notes in the preface to the new edition), we have unquestionably seen some of those trends play out. Increasing control by intermediaries, domestically and abroad, threatens speech and innovation. The "open access" battle that was heating up at that time was not lost until 2005, and since then we have case studies for how the stopgap quasai-neutrality principles are strained. But, I'm not here to defend Lessig (I certainly disagree strongly with him at times).

Rather than debating generally whether past predictions of others have come true, it is more productive to examine the specific issues at hand with the most relevant data points from history and the present. We know that historically corporations tended toward building closed systems like AOL and CompuServe. We know that well-crafted regulatory interventions like common carrier non-discrimination, Computer II, and Carterphone unleashed waves of innovation. We know that carriers today have pursued discriminatory practices and been partially disciplined by somewhat ambiguous regulation. We know that abroad, discriminatory practices have flourished in environments in which intermediaries exercise the most control. We know that domestically in the parallel (and increasingly overlapping) wireless market, market actors impose restrictions that radically limit innovation.

This is not a strong historical or factual case against the need for, or success of, non-discrimination regulation.

4. Steve misunderstands settlement-free peering.

“Settlement-free” means that no money exchanges hands. If D and E are peers [this example assumes that D is a "last mile" backbone provider like Verizon and E and F are competitive "tier 1" providers such as Level 3 or Global Crossing], that by definition means that E pays D nothing to carry its traffic, and vice versa.

This technical/wonky definition is at the heart of what I consider Lee's most original, but nevertheless misguided, argument. The basic idea he posits is that because a certain set of backbone providers traditionally negotiate no-fee interconnection agreements, there is no ability for last-mile providers to leverage their power in the consumer market into the backbone market.

Let's go back and define a couple of key terms. First, "settlement-free peering" means, as Lee accurately describes, an arrangement between two providers in which they do not exchange money but simply agree to carry each others' traffic. They do so under detailed and confidential interconnection agreements that define the terms of this agreement, including things like jitter, latency, throughput, etc. These agreements often require equal treatment by both parties (although they may not speak to those providers' relationships with other providers). Let's assume for the sake of argument that they always do require equal treatment between the two. The types of companies that have these agreements are "Tier 1" backbone providers at the core of the internet -- Level 3, Sprint, AT&T, etc.

Second, "transit" agreements are contractual relationships between unequals. In this case, one party typically pays the other for carrying its traffic under various terms. This is the type of relationship that Comcast has with the Tier 1 providers. For example, here is an excerpt of the traceroute from my Comcast cable modem to google.com:

7 pos-0-3-0-0-cr01.chicago.il.ibone.comcast.net (68.86.90.57)
8 xe-10-1-0.edge1.newyork2.level3.net (4.78.169.45)
9 ae-2-79.edge1.newyork1.level3.net (4.68.16.78)
10 google-inc.edge1.newyork1.level3.net (4.71.172.86)

See that? My packets go from Comcast -> L3 -> Google. Comcast pays Level 3 to transmit their packets, according to some confidential terms that it agrees to. Comcast has a rather large national network (although it is not a "Tier 1" provider) and thus can route its packets around to locations where it has the best bargaining power with the party at the exchange point (in this case, they sent my packets from Boston to Chicago before plugging into L3). Lee's theory is that the settlement-free peering agreements probably don't allow discrimination based on content or source, and he seems to assume that downstream transit agreements are implicated in this obligation because at some point they must interconnect with those backbone providers. Furthermore, he claims that both parties need each other enough that nobody would ever violate these principles.

In my initial critique, I gave several reasons to doubt this claim. First, there is no practical evidence that Tier 1 providers have pressured their downstream transit peers to remain non-discriminatory. This has not been a factor in discrimination disputes that we have seen to date, like Comcast/BitTorrent or Madison River (instead, regulatory threats have brought players in line). Second, there is ample reason to believe that Tier 1 providers would indeed be willing to de-peer despite Lee's assertion that they simply need each other too much (thus I cite the Cogent/L3 dispute as well as the Cogent/Sprint de-peering from a couple of weeks ago). Third, the universe of settlement-free peering is increasingly giving way to varieties of transit agreements in which concessions are made in exchange for payment. Fourth, there are now emerging unified backbone/last-mile networks for which much of the traffic need not pass through a Tier-1 exchange point at all (eg. Verizon/MCI/UUNET). Settlement-free peering has been a powerful norm in keeping content or source-based discrimination out of the core of the network, but even there their strength is waning.

Tim Lee's Twin Fallacies

2008-11-12T11:43:00.016-05:00

[Edit: Tim replies. I reply.]

Cato has finally gotten around to publishing Tim Lee's article, "The Durable Internet: Preserving Network Neutrality without Regulation." I first saw a draft of his paper in March, and Tim engaged in a good spirited back-and-forth with me over email. The primary failings that I perceived then remain un-addressed in this final version. They are twofold:

1. The fallacy that any non-discrimination regulation is the same as the combined force of all misguided regulation since the advent of administrative agencies

The first problem with Lee's article is that it repeats one of the most common mistakes of certain libertarian sects: assuming that any government regulation is as bad as all government regulation. In Lee's case, the devilish regulation equated with network neutrality is the Interstate Commerce Act, the Civil Aeronautics Board, and the sum of all Federal Communications Commission regulation. This approach mirrors earlier claims by Bruce Owen, Larry Downes, and Adam Thierer, which I rebut here.

Lee begins by observing that "The language of the Interstate Commerce Act was strikingly similar to the network neutrality language being considered today." We should not be surprised that at least some of the non-discriminatory principles found in modern day neutrality proposals resemble those in the ICA. Indeed, net neutrality is inspired in part by elements of common carriage, which cross-pollinated into communications law in the 1910 Mann-Elkins Act (see pp. 21-23 of my thesis for more on this history). The gating question is whether or not the elements of the Interstate Commerce Commission that led to the inefficiencies that Lee claims are at all related to the non-disciminatory language that he claims connect the two. If and only if the answer is "yes," then a responsible analysis would consider whether or not the markets are relatively analogous, whether or not the administrative agencies tend toward the same failures, and whether the costs of regulation truly outweigh the benefits. In short, it is not enough to simply assert that net neutrality smells like the ICA, therefore it is doomed to fail.

I won't discuss the relationship to the Civil Aeronautics Board because I think the analogies are tenuous at best.

Finally, we arrive at the FCC discussion, which holds the most promise for actually being relevant. Unlike Bruce Owen, who inexplicably compares neutrality proposals to the AT&T antitrust proceedings, Lee seeks to equate neutrality with FCC rate-subsidization and market entry prohibitions. He concludes that, "like the ICC and the CAB, the FCC protected a client industry from the vagaries of markets and competition." Perhaps, but why is this similar to non-discrimination regulation?

A more accurate analogy with FCC rulemaking would be to compare neutrality to the non-disciminatory part of common carriage, the Computer Inquiries, Carterphone, or all three. Most scholars recognize that these rules allowed the discrimination-free operation of dial-up ISPs, and facilitated the explosion of the internet. The case of FCC non-discrimination mandates presents a stark counter-example to Lee's assertion of uniform regulatory failure.

2. The fallacy that there is an underlying "durability" of the technology/market structures of the internet that will successfully resist strong carrier incentives

Lee provides a somewhat novel argument when he claims that the internet has built in safeguards against welfare-harming practices like network discrimination. He begins by praising the effects of the "end-to-end" architecture of the internet, in which carriers simply deliver data and allow the "edges" of the network to determine what is sent and how. He thinks that this characteristic does not need to be backed up by regulators because the technology and the market will preserve it.

With respect to markets, his argument is twofold. First he claims that outright "blocking" of services would cause such backlash (from end-users or from content providers) that it would be untenable. Second, he claims that attempts to simply degrade service would not be terribly destructive in the short term, and would provide ample time to craft a regulatory response if necessary.

Lee justifies his customer backlash theory by pointing to cases such as the Verizon/NARAL dispute in which the company initially refused to give the non-profit an SMS "short code" but relented in the face of public outcry. In reality, the outcry came from inside-the-beltway advocates who threatened regulation, but in any event we have a more relevant example in the case of BitTorrent/Comcast, which he also discusses. The regulatory solution in this case is even more obvious, with the FCC ultimately issuing an order against the company (which is now on appeal). There is no evidence whatsoever that these resolutions were driven by users that have "had a taste of freedom" and have, "become acutely aware of any new restrictions," and, "stubbornly refuse efforts to impose them" -- resisting via technical or financial means. Nor is there evidence that, left alone, the markets would have settled on a non-discriminatory solution.

Lee tries to make the case that the technical structure of the internet would have allowed BitTorrent users to simply adopt better ways of hiding their traffic, and would have prevailed in that cat-and-mouse game. This is of course speculation, but it's also irrelavent. Whether or not highly technically savvy users can temporarily evade discrimination has little to do with how such practices would effect the activities of the majority of the population. In fact, we have strong examples to the contrary worldwide, as various regimes develop more and more sophisticated means for filtering their citizens' speech (such as the news today from Argentina). In those situations, there are often many people who can subvert the filters but the practice nevertheless fundamentally alters the nature of what is said, and what innovations flourish (see for example, the rollout and adoption of Google vs. Baidu in China).

Lee also lays out an argument for why the structure of the network itself makes it unlikely that last-mile carriers can successfully threaten blocking. He argues that because the core of the internet is highly interconnected, it would be practically impossible to discriminate against any particular site, and that those sites which are important enough to pay attention to could in turn threaten to stop serving customers from that carrier. In short, they need each other. In many cases this is true, although it doesn't necessarily mean that in all cases this relationship will be more attractive to the last-mile provider when compared to various exclusive relationships (or that even if it is, the provider will behave rationally). Things get even more dicey when we examine them from the perspective of second-tier sites or services, which have not yet achieved the "must have" status but nevertheless present revenue opportunities or competitive risk to the carriers.

Lee claims that even if this occurred, it would not be a real problem because it wouldn't be severe. "To be sure, such discrimination would be a headache for these firms, but a relatively small chance of being cut off from a minority of residential customers is unlikely to rank very high on an entrepreneur’s list of worries." His assumption that the chance of being cut off is "small" is belied by recent experience in the Comcast/BitTorrent case. The idea that one would be cut off only from a "minority of residential customers" is technically true because no one firm currently controls over 50% of residential connections, but there are some truly significant market shares that entrepreneurs would undoubtedly care about. Last-mile providers have duopoly over their subscribers, and a "terminating access" monopoly over current subscribers.

These problems are all made much more severe in an environment in which carriers practice partial discrimination rather than outright blocking. In our email back-and-forth, I told Lee that:

The notion that "D cant' degrade them all, because that would make D's Internet service completely useless" does not hold when you assume that D maintains a baseline level of connectivity (perhaps even at current levels of service) but only offers enhanced delivery to services/sites that pay up. Consumers don't see any change, but the the process of network-wide innovation gives way to source/application-based tiering. Imagine this starting in the era of dialup (you'd have to imagine away the last-mile common carrier safeguards in that scenario). Today I'd only get web-based video from ABC, Disney, etc.

The last-mile carrier "D" need not block site "A" or start charging everyone extra to access it, it need only degrade (or maintain current) quality of service to nascent A (read: Skype, YouTube, BitTorrent) to the point that it is less useable. This is neither a new limitation (from the consumers perspective) nor an explicit fee. If one a user suddenly lost all access to 90% of the internet, the last-mile carrier could not keep their business (or at least price). But, discrimination won't look like that. It will come in the form of improving video services for providers who pay. It will come in the form of slightly lower quality Skyping which feels ever worse as compared to CarrierCrystalClearIP. It will come in the form of [Insert New Application] that I never find out about because it couldn't function on the non-toll internet and the innovators couldn't pay up or were seen as competitors. As Barbara van Schewick observes, carriers have the incentive and ability to discriminate in this fashion.

Finally, Lee makes the argument that the current norm of "settlement-free" peering in the backbone of the internet will restrict last-mile providers' ability to discriminate and to create a two-tiered internet because they will be bound by the equal treatment terms of the agreements. This is not supported by practical evidence, given the fact that none of the push-back against existing discriminatory practices has come from network peers. It is also not supported by sound economic reasoning. It is certainly not in backbone-provider E's business interest to raise prices for all of its customers (an inevitable result). But, assuming E does negotiate for equal terms, the best-case scenario is that E becomes a more expensive "premium" backbone provider by paying monopoly rents to last-mile provider D, while F becomes a "budget" backbone provider by opting out (and hence attracts the "budget" customers).

We are already seeing cracks in the dam of settlement-free peering. The Cogent/L3 meltdown happened between two backbone-only providers and was in the context of volume-based disagreements. Two weeks ago, Sprint disconnected from Cogent because of a dispute over sharing. When you add the only recent pressure of last-mile leveraging and discrimination-based disagreements, these dynamics are troubling. Lee is making the case that history is on his side, but he doesn't have much supporting history to draw from. Common carriage prevented last-mile discrimination until 2005. Kevin Werbach, on the other hand, sees major risks from emerging market power, specialized peering, and what he calls possible "Tier 0" arrangements between vertically integrated providers. The Verizon/MCI/UUNET network was only recently unified, creating something close to this type of an arrangement.

Conclusion

Tim Lee's article repeats but then goes beyond the standard refrain of no-government-regulation libertarianism. However, his novel arguments for why the internet will take care of itself are not persuasive. Ultimately, we are left with his well-put argument for the benefits of network neutrality, but without any assurances that it will be preserved. Into this vacuum might flow reasonable discussion of how targeted government regulation might be the only means of achieving the ends we both seek.

A Good Day for Openness

2008-11-05T11:24:00.004-05:00

Nov 4th brought some exciting developments for openness in several different domains.

First, we elected a president dedicated to government transparency and accessibility. I hope that Obama's "Google for Government" bill is a harbinger of things to come in his administration. Making more information freely available and searchable will allow the better functioning of our government.

Second, a slightly more wonky development. The FCC approved unlicensed use of the "white spaces." This is the culmination of a 4+ year-long process, with heavy lobbying in the past year or so. It opens up huge swaths of spectrum, which any citizen or innovator can put to use for things like wireless broadband.

Third, a geeky development. Somebody rooted the G1 -- the first handset based on the open-source Android operating system. Although the operating system itself is open-source, T-Mobile had locked down all of the interesting stuff. Now that it's unlocked, we will likely see a plethora of interesting development on the platform.

White Spaces and Red Herrings

2008-10-27T21:28:00.016-04:00

Even dry policy wonks occasionally find themselves engaged in timely cultural commentary. Thus, we are thrust into debate with country music legends, heavy metal stars, and mega-church leaders. This is the domain of electromagnetic spectrum -- that ephemeral public good that is as essential to modern life as the air we breathe.

The FCC is set to decide what to do with the vast, unused swaths of spectrum between television channels in its open meeting on Election Day. When the rest of the country is paying attention to an historic contest for the ultimate game of King of the Hill, the Commission will be deciding how we are to share (or hoard) one of our most unappreciated public resources.

Back in ancient times, you would turn your television dial through channels received over "bunny ears" and wonder why so many of them showed static. Since then, most of us have transitioned to cable or satellite television, and few of us have noticed that these occasional flurries have turned into a blizzard. In fact, most stations are currently broadcasting in both analog and digital, but in February of 2009 they will have to turn off their analog transmissions (thus doubling the unused space).

What if we could instead use those channels to watch YouTube videos of cats being vacuumed? The future is now. On November 4th, the FCC will be deciding whether or not wifi-like devices can make use of the spaces between television broadcasts. They have spent more than four years investigating this question, and from all accounts they appear to be poised to say "yes." This is where Dolly Parton, Ozzy Osbourne, and Rick Warren come in.

See, all of those folks rely on wireless microphones that already use broadcast television channels when nobody is using them for TV. There are actually a few people who are licensed to do this, but the reality is that none of those I've listed are acting legally. Perhaps we would expect this from bat-biting Ozzy, or perhaps even Dolly... but Rick? How scandalous.

All three of these constituencies have filed comments at the FCC opposing innovative new uses of valuable spectrum. They do so from their understandably biased perspectives. Each wants to preserve their ability to use wireless microphones as they have become accustomed -- in Dolly Parton's case, it is essential that she maintain the integrity of audio fidelity in her live performances of the musical adaptation of "9 to 5."

Don't get me wrong. That was one of my favorite movies as a child, and I have a fondness for her music (it is the saving grace of the entire "country" genre which no longer resembles its roots in the least). However, I disagree with Dolly on this matter. Perhaps I can proceed by familiar analogy.

In "9 to 5" Dolly Parton and her clever co-conspirators exhibited innovation and flexibility, standing up to the incumbents of old. Is it too much of a stretch to claim that legacy broadcasters are similarly generating system-wide inefficiencies through their opposition to flexible use of the spectrum? Probably. But nevertheless, I think that Dolly is on the wrong side of this one. It's time to open the airwaves (if only in the limited fashion proposed). Even the houses of worship are going to have to deal with the fact that they have been misled by representatives from the microphone companies who never bothered to tell them that they were advising them to break the law.

Representative Dingell, Chairman of the House Committee on Energy and Commerce (and ultimate overseer of the FCC, along with the parallel Senate committee), recently wrote a letter to the Commission raising a couple of valid but uninformed questions about white spaces proposals. He asked first why the Commission hadn't considered a licensed approach to the frequencies. Of course, this debate was well-trod long ago. The licensed approach is the instantiation of a classic "Coasian" perspective, which has been debated since the beginning of time (or, at least, the 1950's). The FCC itself convened a task force in 2002 which concluded that:

No single regulatory model should be applied to all spectrum: the Commission should pursue a balanced spectrum policy that includes both the granting of exclusive spectrum usage rights through market-based mechanisms and creating open access to spectrum "commons"...

That whole "commons" thing sounds a bit communist (or, gasp, socialist!) but in fact reasonable sharing of a shared resource makes quite a bit of sense. Despite the full force of the FCC's engineering conclusions to the contrary, the mega-churches assert that "Today, there is no reliable technology that can protect existing services from what would be crippling interference from new portable devices," Ozzy's sound engineer urges that, "The FCC must take steps to insure that catastrophic interference does not occur," and Dolly explains that:

I don't know all the legalese concerning the issue so I've had some very smart people inform me about the legalities here. [...] I have deep concern over the Commission's announcement that it intends to vote on an order allowing devices using spectrum sensing technoogy to occupy the "white space" radio frequencies on November 4, 2008 (Election Day). [...] As you may know, I am an inductee to both the Country Music and Songwriters Hall of Fame and am currently on a world tour supporting my latest album. New regulations could have direct impact on many ventures in which I am directly involved, including: 9 TO 5: THE MUSICAL [...] Dollywood [...] Grande Ole Opry

Dingell's second argument is that the FCC's technical findings may not have been peer reviewed. This point appears to hinge on a much-debated statute that tasks the OMB with "ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies." The OMB's rules are even more debated, and have been viewed by many as an excuse for the powers that be to kill off reports that it disapproves of. Indeed, there was an earlier peer-review of studies related to the white spaces [update: and a similar peer-review of this round of testing has now been posted], and the recent AWS-3 technical study did not undergo a similar process.

Could it be that these objections are merely a red herring?

In other news, the ranking member of Dingell's parallel committee in the Senate, a vocal opponent of open internet access, was today found guilty of multiple felony charges related to his unethical ties to an industry he oversaw.

White Spaces Moving Forward

2008-10-15T16:49:00.011-04:00

An issue I care very much about, use of so-called spectrum White Spaces, will be voted on by the FCC on Nov 4.

Susan Crawford's Post
WSJ Article
Washington Post summary of Chairman Martin's comments
Google Public Policy Blog on the issue
FCC Schedule for the Nov 4th Open Meeting
The technical report from the FCC's Office of Engineering and Technology
Comm Daily article "Activists Celebrate Wireless Gains, Relish Prospect of Obama Presidency"
Drew Clark's article "Broadcast Networks Seek ‘Time Out’ on FCC Push for White Spaces" and my reply
more coming...

Open Access to Government Documents ...or, "Federal Court Documents: Even Google Can't Find Them"

2008-10-15T12:42:00.007-04:00

In honor of Open Access Day yesterday, I gave a talk at Berkman about the federal court's policy regarding public access to electronic records. You can watch it here or download the slides here. The description for the talk was:

In the past twenty years, a remarkable number of government documents have been put online. In some cases, these documents are made easily and freely accessible. In others, technology has failed to overcome barriers or even created new barriers to access. One particular subset of documents -- opinions, dockets, and the full public record in federal court cases -- remain behind a pay wall. Although the U.S. Government cannot hold copyright in documents it creates, it has for a long time long charged for the cost of creating and maintaining these documents. While the courts understandably seek to pay for the services they provide, this talk will argue that there is an alternative path in which the public benefits far outweigh the costs. Stephen Schultze makes a dynamic case for free access to government documents, in honor of Open Access Day 2008.

Also, check out this great essay by James Grimmelmann, discussing the Oregon statutes battle, as well as his recent lecture on the issues more generally.

Also, the European Transparency Initiative was mentioned during my talk, as well as this Dutch report.

New Chapter in Scientology v. Anonymous on YouTube

2008-09-06T16:30:00.005-04:00

I've been following this drama for months, and it's an interesting illustration of how traditional First Amendment rights can be endangered when we place speech control in the hands of corporations. Scientology has waged a drawn-out war against Anonymous on YouTube, repeatedly filing DMCA takedowns which result in videos being pulled. Anonymous typically files counter-notices and the videos go back up. In the meantime, it seems likely that Scientology systematically breaks YouTube Terms of Service without enforcement on the part of YouTube. It is hard to tell for sure what the facts are, but this is my best understanding.

Over the last couple of days, unwarranted takedowns were executed by YouTube en masse for Anonymous videos, followed by reinstatement in most cases. EFF has a summary, and you can follow the Anonymous forums if you have the patience and stomach. It is to YouTube's credit that they appear to have restored videos/accounts in most cases, but it is also troubling that such a major deletion of speech could happen in the first place.

My Masters Thesis...

2008-08-28T16:36:00.005-04:00

...is done (download the PDF).

The Business of Broadband and the Public Interest:
Media Policy for the Network Society

[Update: Adam Thierer posted a response. My critiques of his past (and current) positions can be found at pages 8 and 72 of my thesis.]

A Reply to Nachbar, Part 2

2008-08-02T18:45:00.008-04:00

Last week, I posted a critique of Thomas Nachbar's latest paper. That post primarily addressed his general argument against "use"-based non-discrimination rules. In this in-progress excerpt from my thesis, I critique his specific argument against the openness conditions on the recent 700 MHz "C"-block spectrum auction.

===

The Commission’s final order struck a compromise on many of the issues at stake.[1] The “open devices”/”open applications” rules were adopted, while the more aggressive openness proposals were not incorporated. When bidding concluded months later, it was revealed that Google had indeed bid up to the reserve price on the “C” block but that Verizon had cast the winning bid. Telecommunications analyst Blair Levin quipped that because of the openness conditions on Verizon, “Google is the happy loser.”[2] Of course Google had a clear business interest in maintaining users ability to access their services. Likewise, the wireless carriers perceived a business interest in retaining the ability to control what users could do on their networks. While the news reports were dominated by analysis of which big company really “won,” many missed the more fundamental public interest issues at stake.

The openness conditions in many ways mirror traditional non-discrimination public interest safeguards. The conditions seek to preserve the freedom of users to use the network as they choose, and to access it with any device that did not cause harm to the network. The former resembles a weaker form of Computer Inquiries application non-discrimination, and the latter condition mirrors the Carterphone decision of 1968.[3] There are many potential loopholes in the rules. Indeed, no sooner had the rules been decided than Verizon began lobbying for a weak interpretation and Google began counter-lobbying.[4] I described earlier why I think that the combination of common carriage, the Computer Inquiries, and Carterphone were necessary for an environment that fostered the flourishing of early consumer internet access. In the wireless context, I believe that similar flexibility of use is essential to maintaining historical non-discriminatory access in this new medium, as well as preserving the internet ethos that has led to innovation and free speech online.

Thomas Nachbar believes that defining this use neutrality is too difficult, that regulators will tend to define in such a way that it constrains innovation, that the rules will not affect positive behavior anyway, and that the competitive market will better solve any concerns.[5] Undoubtedly, the “openness” conditions in the 700 MHz auction were defined at a high level, and were a result of political compromise. Of course, the Commission has long promulgated broad principles or rules to guide industry behavior and then specified particular guidelines or adjudicated on individual bases.[6] Nachbar goes on to claim that the rules were defined, “in a specific, technologically dependent formula,”[7] and that “imposing use neutrality requires addressing questions of design.”[8] This claim is hard to understand, given that the mandate to allow all devices and applications is clearly divorced from particular technologies and indeed is designed to open the possibility to unforeseen technologies. This is the heart of technology-agnostic network modularity. Nachbar would also have us believe that the rules represent only a weak form of Carterphone, which by itself will be ineffective.[9] This ignores the full implications of the open applications provision, which extends the non-discriminatory mandate into the network.[10] It appears that Nachbar and I agree that two-sided openness (user device and network access) would be necessary to encourage meaningful openness, but that we disagree as to whether this can be done through wireless use neutrality.[11] Nachbar instead sees promise in profit-motivated market actors. He makes much of the somewhat competitive wireless carrier market.[12] However, it is clear that carriers all share similar incentives to discriminate against content, and that there is no competitor that offers comparable non-discriminatory service. AT&T recently stated explicitly that its wireless network does not respect network non-discrimination, and that its terms of service – “which are similar to those of other wireless providers” – categorically prohibit all peer-to-peer use.[13]

Ultimately, Nachbar’s critique of the 700 MHz “openness” rules focuses almost entirely on competition-based analysis of the rules (which, even on its own terms, I consider to be deeply misguided). Missing from his analysis is any consideration of whether the 700 MHz use neutrality rules map to historical non-discrimination norms. This is odd, considering his masterful exposition of these norms earlier in his paper. Ultimately, the non-discriminatory considerations in the wireless space are parallel to the network neutrality debate overall, and my conclusions here are essentially the same as my conclusions there. As with wireline, wireless operators face genuine network congestion challenges. Content and application-based discrimination is one way of dealing with these challenges. There are many other approaches – including discrimination that is not content or application-based[14] – that do not present so directly threaten free speech, innovation, and established norms.

[1] Second Report and Order. FCC 07-132. (Rel. August 10, 2007).

[2] "Verizon and AT&T Win Big in Auction of Spectrum," New York Times, March 21, 2008. by Saul Hansell.

[3] Tim Wu, Wireless Carterfone. International Journal of Communication, Vol. 1, p. 389, 2007
Available at SSRN: http://ssrn.com/abstract=962027

[4] Letter from Richard S. Whitt, Google, WT Docket No. 06-150, (October 1, 2007).

[5] Nachbar, 80-89.

[6] Elsewhere, Nachbar endorses precisely this approach. (at. 90)

[7] Nachbar, at 81

[8] Nachbar, at 88

[9] “The rules adopt a version of what has become known as ‘Wireless Carterfone’.” Nachbar, at 81.

[10] To be sure, whether or not this is the case could be disputed. Nachbar’s narrow interpretation is that the provision only limits “the ability of carriers to prevent consumers from loading and running third applications on those openly accessible devices.” (at 81). Even if the 700 MHz rules as adopted did not effectively mandate use neutrality in the network, this does not mean that the approach should be abandoned altogether but rather that such rules should perhaps be more explicitly defined. I am considerably more hopeful that it is possible to do this than is Nachbar. This is essentially the same question that plays out in the broader network neutrality debate, which I discussed earlier.

[11] Nachbar states that, “from a consumer standpoint, the product is the combination of device (or application) and carriage.” (at 82) I agree. I remain confused, however, about why he sings the praises of the Computer Inquiries while maintaining that use neutrality is categorically a bad idea. I am not persuaded by the argument that the IP environment fundamentally different from the circuit-switched environment in such a way that use neutrality is impossible or undesirable.

[12] “But the wireless markets of today are not like the wireline market that AT&T operated in years ago. Today’s wireless carriers face 2 competitors in over 90% of their markets, and therefore have far less market power than AT&T did.” (Nachbar at 82) Nachbar goes on to perform an analysis of the market incentives of wireless operators that I believe is fundamentally flawed on several accounts. He begins by noting the “internalizing complementary efficiencies” phenomenon and claiming that, “If wireless carriers actually do have market power, then opening device and application markets to competition will have no effect on their ability to charge monopoly rents.” (at 82.) Of course, neither of us thinks that wireless carriers are strict monopolists, and thus the ICE exception is irrelevant. On the other hand, these similarly situated companies sometimes resemble an oligopoly, with strong incentives to leverage market power into adjacent markets. Because they face potential competition on price, speed, and device exclusivity, they are motivated to increase switching costs and customer lock-in. I am puzzled by Nachbar’s assertion that "carriers are selling a commodified, undifferentiated service (carriage)," given the ample evidence that carriers are in fact differentiating between content, and Nachbar’s own claim that in IP carriers are motivated to differentiate in a way that they were not in the circuit-switched environment. Nachbar then claims that any market power being exercised is likely coming from the device manufacturers instead, citing the iPhone-AT&T tie-up and the fact that the iPhone has lured many customers to AT&T. Of course, one might just as easily conclude that it was precisely the distorted wireless carrier market that motivated Apple to strike the exclusive deal. In any event, despite the perennial appearance of blockbuster devices, the device market is far more diverse and competitive than the carrier market. Furthermore, the device market continues to move toward open platforms of its own accord, with device juggernaut Nokia announcing the open-sourcing of its operating system on the eve of the launch of Google’s own free and open source “Android” mobile operating system (Nokia. Press Release (June 24, 2008). "Nokia to acquire Symbian Limited to enable evolution of the leading open mobile platform" http://www.nokia.com/A4136001?newsid=1230415. Open Handset Alliance Press Release (November 5, 2007). "Industry Leaders Announce Open Platform for Mobile Devices" http://www.openhandsetalliance.com/press_110507.html). What’s more, it is hard to imagine any strong device leveraging as general-purpose computers increasingly become one of the key devices using wireless internet. Despite such developments, if carriers insist on discriminatory practices, the same bottleneck to innovation remains: use neutrality of government-granted spectrum. Critics of non-discrimination mandates on wireless spectrum raise myriad concerns that such requirements restrict possible business plans. They undoubtedly do. The relevant question is whether or not this benefits or harms overall innovation, growth, and public interest.

[13] Letter from Robert Quinn, AT&T, WT Docket No. 06-150, (July 25, 2008).

[14] Geoffrey Goodell, Allan Friedman, Scott Bradner. "Scarcity, Discrimination, and Transparency: Understanding Network Management" (Paper to be presented at TPRC 2008 Conference, Saturday September 27, 2008).

===

Comcast Order: What to expect Aug 1 and beyond

2008-07-28T16:47:00.017-04:00

When several media outlets simultaneously report upcoming FCC decisions, you can be sure of one thing: one of the commissioners leaked it. That's what happened this past Friday, when AP, WSJ, and others all noted that "according to FCC officials," three of the five Commissioners voted to find that Comcast was in violation of FCC policy. Those three Commissioners will undoubtedly be Chairman Martin, Commissioner Copps, and Commissioner Adelstein. Today, Commissioner McDowell published a Washington Post Op-Ed [which Mark Cooper answered] that all but declared that he was going to vote against the measure. The official vote will go down this Friday, August 1.

[Update: Oh snap! The politicking is bleeding into the WSJ Op-Ed page, and the NYT Op-Ed page too. And now we've got the house Republican minority leader trashing the decision on the eve of its announcement.]

The word from inside the beltway was that it was touch-and-go for the last week as to whether or not the order was going to go through. The biggest debate appeared to be complex jurisdictional issues. Comcast has been arguing 1) that the Commission could not enforce the non-binding 2005 "policy statement" without first passing rules and 2) that in any event it lacked statutory authority to intervene based on broadband's "deregulated" Title I status. Martin himself said in 2005 that, "policy statements do not establish rules nor are they enforceable documents." This thrilling administrative law debate went roughly as follows:

Free Press: The FCC has jurisdiction to act, based on 8 different statutory sources. Also, the FCC frequently exercises its power to act via adjudication rather than rulemakings. Oh, and the cherry on top is that Comcast is currently arguing in federal court in California that the FCC does have jurisdiction over these matters.

Comcast: No, those clauses don't give the FCC jurisdiction to act. Plus, Free Press has changed it's story since its original complaint where it asked the Commission to enforce the policy statement. It is now asking the Commission to enforce particular statutes.

Free Press: We haven't changed our story, and it doesn't matter regardless. Oh and by the way, we also have a bunch of legal scholars that say that the Commission has jurisdiction.

Comcast: The part of the statutes you cite are just preambles and statutory statements of "policy", which the D.C. Circuit Court says are "not an operative part of the statute and [do] not enlarge or confer powers on administrative agencies or officers."

Media Access Project: Comcast was warned that the FCC would do this if they discriminated. Oh, and the Sixth Circuit seems to say that there is yet another statutory basis for jurisdiction.

Free Press: Yeah, what they said.

Comcast: We've retained a DC law firm which says that the FCC does not have jurisdiction.

Free Press: I think we've stated our case.

Does this mean that the Net Neutrality crowd "won"?
Getting the FCC to take action on this issue was a battle, but not the war. Many considered it unthinkable that anything would happen on this front until the next administration. This moves the ball in their direction but the game is far from over. Free Press has already posted two things on their blog in celebration.

What did the Net Neutrality crowd win?
It's unclear exactly what is in the order. According to news reports, it doesn't include a fine on Comcast. It probably includes requirements for them to stop doing whatever they've been doing, and to clearly disclose their "network management" practices. This is far from a broad neutrality mandate. The order probably won't lend a great deal of clarity to the question of what constitutes "reasonable network management." There is no broader rule from the commission, which would likely carry more power and clarity than the ad hoc approach of adjudication. There is certainly nothing with the force of statute.

What Happens Next?
Comcast sues the FCC. This will happen immediately. The case will go directly to Appeals court because suits always skip District court when they're appealed from the FCC. Comcast will argue many of the same things they argued in the proceeding. They will discuss how the Brand X case placed broadband clearly within "deregulated" Title I. Title I is essentially the introduction to the Communications Act, and is pretty thin on any details. Comcast will attack whatever statutory ground the FCC claims for its decision. This will come down to questions like whether the Commission can construe general language of Title I to give them authority to take the specific actions in the order, or whether other sections of the Act which appear to apply to other technologies (like common carriers) can actually apply to cable. They might even get down-and-dirty and start talking about the 1979 decision FCC v. Midwest Video Corp. decision that said that the Commission did not have jurisdiction to impose common carriage on cable because cable was a “broadcast” service. Who knows how this will come out, but Declan McCullaugh over at CNet concludes (without much analysis) that the FCC "probably can't police" the order. In the meantime, the stock price of Sandvine (the company that makes Comcast's "traffic shaping" hardware) will probably continue to tank.

But what about nipples?
I'm glad you asked. The recent 3rd Circuit decision invalidating the FCC's finding of indecency in the "wardrobe malfunction" incident actually relates to the current situation. In the decision, the Court found that the FCC's fine was "arbitrary and capricious" and that there was no clear statutory basis nor precedent for the fine. Some of Comcast's arguments are sure to echo this reasoning, and they appear to feel emboldened by the 3rd Circuit decision even though the subject matter is quite different. [Update: Free Press et al. rebut this argument]

Where does this put the Net Neutrality fight?
Neutrality proponents have somewhat more confidence at the FCC when making complaints, and this has whole ordeal has probably put more fear in the hearts of broadband providers that would like to discriminate against traffic. The inevitable appeal provides another stage on which to debate neutrality. However, neutrality proponents don't have as strong of an argument that the FCC isn't doing anything so we need Congress to step in. Still, from all appearances, the next Congress will be far more open to the idea of legislation (although most people don't think it's going to happen in the first session).

Well Steve, what do you think?
Adam Thierer (from think tank Progress and Freedom Foundation) commented that this FCC decision is evidence that the regulatory sky is falling on liberty's head, and I replied. [Update: The PFF crew continues to pile on, with even the ideologically aligned Tim Lee telling everybody to chill out. Hance Haney can't help but get in on the bashing.]

A Reply to Nachbar

2008-07-27T15:00:00.008-04:00

All right, I'm in final stages of thesis editing and I thought I'd post some excerpts (excuse the still-rough footnotes). In today's excerpt, I discuss Thomas Nachbar's recent article The Public Network. I had initially read Nachbar's earlier version of this paper, which he presented at TPRC 2006. This version was entirely a historical accounting of open access mandates in communication law (or non-discrimination, depending on your personal preference). The paper was absolutely fundamental in my understanding of communications law. In this latest version, he adds substantial sections in which he analyzes present debates in net neutrality and spectrum auctions in light of his historical account. I disagree strongly with his conclusions.

***
Thomas Nachbar has argued that the ideal non-discrimination rule would prevent user-based discrimination but allow carriers to discriminate based on use. Under this regime, providers would be able to choose which services they support (and how they prioritize or discriminate among them) but they would be required to offer the same deal to everyone. Google could not pay for faster delivery than Yahoo. He reasons that user discrimination is easier to define than use discrimination, and less prone to regulatory abuse. He envisions this user-based neutrality as enforced by “standards” and not law or formal rules.[1] Furthermore, he claims that mandating uniform treatment of all packets would discourage applications that require prioritization or quality of service guarantees, making it a type of discrimination itself. To be sure, networks that treat all traffic uniformly make it more difficult to use certain applications. However, Nachbar’s core criticism appears to be not that someone will be choosing how to prioritize, but rather that in some neutrality regimes the government would be choosing. The best entity to choose, on his account, is the last-mile provider.

I disagree. Both use and user non-discrimination should be policy goals. It makes sound economic sense, it is consistent with historical non-discrimination precedent, and supports internet ethos of diverse uses and abundance of peers. Historically, use and user they were closely linked, and non-discrimination in one area could ensure non-discrimination in the other. For example, the Computer II rules mandated only that carriers not discriminate based on the phone number called. However, because of the simplistic circuit-switched technology (and the Carterphone right to attach devices), the rules ensured that use-based discrimination would not occur. Today, user-based discrimination protects only against a subset of harms, which in any event might already be addressable under antitrust doctrine.[2] It does not ensure that carriers support applications that they do not think will be profitable, or that compete with their non-internet offerings,[3] or that have not yet been invented. The problem is that surrendering use-based discrimination to last-mile providers would subject the general-purpose infrastructure in the interest carrier-profit-oriented incentives. In fact, it discriminates against users with business models or non-commercial modes of production that rely on technology uses not approved by the carrier.[4] The technology of the internet presents us with a choice we have not had to make historically because user-based neutrality has always implied use-based neutrality. Nachbar is prepared to give up on use neutrality, while I am not.

One way to maintain use-based non-discrimination by carriers would be to place prioritization control in the hands of the users. Most content/application providers have the opportunity to exercise this control by going to any number of competitive backbone providers. Different backbone providers ensure different levels of quality-of-service guarantees for common metrics like latency, throughput, and jitter (at least, up to the edge of their networks). End users, who are accessing this content or these applications or are connecting with each other in peer-to-peer fashion, do not have the ability to choose different prioritization via competitive providers or by specifying preferences to their provider. Indeed, even across-the-board neutrality may disfavor particular applications users wish to use, although this may be more appropriate and efficient than the last-mile provider’s blanket imposition of prioritization. A better solution would allow end users to easily control the prioritization of their own traffic, within the tier of service that they have purchased from their provider. Such a solution might implement a more sophisticated “Type of Service” style component into some layer of the network protocol, after being defined via a standards group such as the IETF.[5] This approach recognizes that different users have different usage needs, and places the control in their hands. It refuses to foreclose on new uses simply because the network owner did not think of them first, and catalyzes innovation at the “edges.” It is not true to absolute neutrality, but it is true to fundamental principles of non-discrimination and the internet ethos. Such an approach is unlikely to garner initial favor with carriers because it preserves user control, because it nevertheless resolves their “congestion” justification, and because it would take more technical and cooperational work than blunt discrimination. The appropriate policy path to this outcome might involve a use-neutrality mandate on last-mile providers with an exception for user-specified, standards-defined prioritization.

[1] It is unclear what these “standards” might be, other than the existing standards within the internet protocol, which have clearly been ignored in cases such as the recent Comcast/BitTorrent back-and-forth. As such, I am not sure what real force they would bring to bear on the situation aside from the unsustainable ad hoc complaint adjudication that the Commission is currently undertaking.
[2] I am skeptical and discuss this in detail earlier in the thesis.
[3] Although Nachbar seems to think so (eg telephony and video)
[4] eg, p2p
[5] Reed at the Harvard hearing. “There were a wide range of actual standards that would allow Comcast to manage and prioritize traffic, including diffserv, ECN, RED...” http://www.fcc.gov/broadband_network_management/022508/reed.pdf. One might add to this list the RSVP protocol (RFC 2205) and other methods that use flow-based prioritization (such as the method described in J. L. Adams, L. G. Roberts, A. Ijsselmuiden, Changing the Internet to support real-time content supply from a large fraction of broadband residential users, BT Technology Journal, v.23 n.2, p.217-231, April 2005). Some of these tools can be used by network operators to choose their own discriminatory practices, or they might be implemented in such a way as enable user-based control. Early internet engineer David Clark recently remarked (video recording available at http://www.fcc.gov/broadband_network_management/hearing-ma022508.html with quote at 4:24:45)

I don't like the idea of the ISP assigning quality of service to an application. If there is going to be any discrimination in terms of quality of service that's associated with some packets rather than others, I would prefer that the bits which select those packets for enhanced service be set by the user. The user could say 'this telephone call is really important. I want this telephone call to go through.' Imagine that in any given month, ten percent of your traffic could be high priority. You could say, 'this is it, I want it here.' It could be my choice as to whether that's a phone call or a game, or I'm trying to get a bid into eBay or whatever I'm trying to do. I would like the user to be able to assign those priorities. If you look at the way that internet telephony is done today, those bits are set by the phone device. It's not set by the ISP. It's the phone device that says, 'this is a phone call and therefore I will set these bits,' and if the ISP chooses to honor these bits then these packets will go through better. That's something that could be superimposed on top of the basic idea of usage quotas.

***

Say "No" to Filtered Nationwide Broadband

2008-07-26T13:57:00.008-04:00

I recently joined the Berkman Center for Internet & Society as a fellow, and one of my first efforts was to help draft some comments for the FCC. Many of the folks at the Center were disturbed by the Commission's recent proposal to mandate content filtering on the "AWS-3" band of spectrum it plans to auction off for broadband internet service.

From the summary:

"The Internet is distinguished by its flexibility as a platform on which new services can be built with no pre-arrangement. While requiring filtering of known protocols in itself raises serious First Amendment conflicts, forcing the blocking of unknown or unrecognized traffic hampers both speech and innovation."

You can read our full comments here, and a blog post about it here.

Audio from the Archive

2008-03-05T17:33:00.003-05:00

It's been a long time since my last post, but I haven't fallen off the face of the earth. I've just been deep in thesis writing, as well as writing another paper on related topics. I hope to start publishing draft excerpts of my thesis here soon. In the meantime, I thought I'd post the following.

Last year, I produced a little audio montage for one of my courses. I'd completely forgotten about it until one of my classmates asked me for a copy. It's essentially a collection of clips related to contemporary internet policy debates, mixed over music by The Irresistible Force and Fila Brazilia.

You can listen to the MP3 here.

Voices include:
Studs Turkel, Documentarian (2001)
Marshall McLuhan (1967)
J.C.R. Licklider, Internet Engineer (1972)
Bell Labs Speech Synthesis Record (1962)
Bill Moyers (2006)
Senator Ted Sevens, R-AK (2006)
Lyndon B. Johnson (1967)
Edward R. Murrow (performed by David Straithairn)
Newton Minnow, FCC Chairman (1961)
Tim Wu, Columbia Law School (2006)
Yochai Benkler (2006)
Vinton Cerf, Internet Engineer (2006)

Internet Freedom and FUD

2007-12-12T23:38:00.003-05:00

Adam Thierer has just written another thought-provoking post on TLF/PFF about the well-trod net neutrality debate. He is riffing on a ZDNet article by long-time net neutrality critic Larry Downes. The heart of his (and Larry's) argument is that the Internet should remain free from meddlesome regulation. I must say that I wholeheartedly agree. Where I take issue is whether most net neutrality proposals are necessarily meddlesome. This is a critical distinction too fine for Thierer or Downes.

I agree with Thierer on a great number of issues. He is spot-on when it comes to the perils of presumptive content regulation in the name of child protection. The risks of caving to DOPA-style regulation or other ill-conceived technological "solutions" to the issues that youth face online cannot be underestimated. Closing off vast swaths of the internet to the next generation of online artists, innovators, and entrepreneurs is self-evidently foolish. What Thierer fails to recognize is that the risks he envisions under the banner of "child protection" are paralleled in the world of net neutrality -- just not in the way that he assumes.

A libertarian of his flavor fears government at the expense of overlooking risks from industry. Thierer makes much of Bruce Owen's article from earlier this year, examining the legacy of railroad common carriage. I analyzed Owen's selective memory in an earlier blog post, and have yet to read a persuasive argument to the contrary. Weak rhetoric about "the value of keeping the government out of Internet content" is no more than FUD. Take the following statement, written by Downes and repeated by Thierer, for example -- "So why do the same civil-liberties groups that recognize the value of keeping the government out of Internet content want to open a loophole large enough to drive several Mack trucks through?"

Sounds like a bad idea to me.

But, let's take a look at this suspiciously hyperbolic language. In addition to the highly questionable railroad analogy, Downes rallies airline deregulation and Sarbanes-Oxley in favor of his argument. The role of the Civil Aviation Board (CAB) seems bewilderingly distant from the shape of any net neutrality legislation. No neutrality proposals include anything resembling routing requirements (very different from source-based prioritization), subsidization, or rate regulation (other than the eminently simple "you can't charge certain sources more than others"). Indeed, it's disingenuous to the extent that all net neutrality advocates embrace client-side speed price tiering. Sarbanes-Oxley might as well be a stab in the dark. Please explain, Downes, in what way the corporate costs of net neutrality compliance (adding no additional discriminatory technology) resemble SOX obligations?

Are we to fear government intervention in all of its instantiations? The Thierer rhetoric would certainly indicate so. If Downes believes that "the Internet has thrived in large part because it has managed to sidestep a barrage of efforts to regulate it..." he may wish to brush up on which title of the Communications Act governed last-mile internet access until 2005. The trouble is that the black-or-white government/liberty position undermines Thierer's position. To be sure, the PFF would like to see enhanced antitrust regulation of our communications infrastructure. Antitrust and ex ante rulemakings are both forms of government management. If Thierer/PFF is right, there must be an argument or normative reason why antitrust is a more promising check on the power of infrastructure owners than something like neutrality legislation.

If so, let's do away with the regulation-vs-liberty rhetoric and engage the alternatives on the merits. Why is open-ended ex post antitrust review more straightforward than clearly defined up-front rules? Why do the last two years of broadband consolidation argue against the prior ten years of common carriage that fostered the internet explosion? Why should the proven technological structure of the IP "hourglass" be upset in favor of uninhibited carrier discretion?

Disclosure Statement

2007-12-12T23:10:00.006-05:00

[Updated 09/2009]

In keeping with what seems to be good practice in blogging, I've been meaning to post a disclosure statement.

How I make money

I am Associate Director of the Center for Information Technology Policy at Princeton. As part of my position, I do my own research. I get quite a bit of latitude in what I study, and CITP never approves or controls what I say on my blog.

I used to:
Be a Fellow at the Berkman Center for Internet and Society at Harvard. I worked on projects funded by the Ford Foundation and MacArthur Foundation.

Work for MIT, via my research group New Media Literacies. We were funded my the MacArthur Foundation.

In 2007 and 2008 I did part-time ad hoc work for Google on policy issues. During the summer of 2007, I was a "legal assistant" in the DC office, meaning that I mostly helped out with research for FCC filings on issues like net neutrality and spectrum allocation.

Academics

I research what I want, solely because I want to. I have the unbelievable privilege of being at a supportive institution which grants me latitude to pursue my interests independently. My funding is not at all contingent upon what I do on my blog.

Independence

As a result of my academic situation and my personal convictions, I feel no obligation to advocate positions that I do not wholeheartedly embrace myself. My commitments and beliefs influence the stances I take, rather than the other way around. To the extent that I work toward a goal or with organizations that advocate a course of action, I have simply found a venue for my own internal convictions. When the practices of any institution require that I depart from my own convictions, I will break from that relationship.

On with the blogging.

Copyright and Campus Networks

2007-11-13T15:17:00.007-05:00

I'd like to share an email I sent to the staff of Vern Ehlers, congressional representative for my home district in Michigan and attendee of my alma mater, Calvin College. This bill goes for markup tomorrow at ~~9AM~~ 1:30PM, so it will be interesting to see what happens to the clauses in question. [February 7, 2008: The House passes it with the clauses intact. August 4, 2008: The Senate adopts a version of these clauses.] [August 14, 2008: Signed into law.]

Thanks for taking the time to listen to my concerns about a couple of intellectual property-related clauses in the current draft of the Higher Education Act reauthorization scheduled for markup on Wednesday. At the moment, I'm actually writing from Cambridge, MA where I'm completing my Masters degree at MIT focusing on telecommunications policy and the public interest. However, my interest in the effect of communications regulation on higher education began at Calvin, where I earned a dual-degree in Computer Science and Philosophy. Among other things, while at Calvin I hosted a campus-wide debate on web filtering technologies.

The language in question is on pages 411-412 in the current draft: "Sec. 494. Campus-Based Digital Theft Prevention". The intention here is good -- to curb copyright infringement that takes place over campus networks. The problem is that the mechanism is 1.) mandating questionably effective technical measures to solve this problem and 2.) inequitably punishing all students at any school that is deemed to have not met this poorly defined standard. Specifically, all students would lose their federal financial aid. With respect to the technical measures, the draft calls for "alternatives to illegal downloading" and "technology-based deterrents". The "alternatives" are likely to be a handful of overly restrictive services already available over the internet on college campuses. The "technology-based deterrents" are particularly troubling because they threaten substantial collateral damage to legitimate academic activities (see for example the letter from MIT that I have attached). Technology cannot exercise fine-grained discrimination of data based on the nuanced details of the law (not to mention important carve-outs targeted at "fair use" specifically for academic purposes).

On balance, these clauses seek to defer copyright enforcement to universities rather than the copyright holders themselves. They do so by ham-handedly pushing imperfect technological solutions on our institutes of higher education -- incurring substantial academic and financial costs. I hope that the committee will recognize that this is a poor solution to a real problem that deserves much more exploration.

(Attachment: MIT-P2P-Letter.pdf)

Here is some other coverage of the bill:

Two posts from Gigi Sohn of Public Knowledge
The C|Net overview
The Educause advocacy page

[Update 11/15: The bill has passed in committee without amendment to the offending language, so the battle now goes to the House floor. Ehlers' staff was nice enough to get back to me, and I sent them this response:]

Thanks for your timely and helpful reply. I was disappointed to see the bill pass in committee this morning without proposed amendment of the provisions or debate on their merits. I did see the one-page document published by the committee, purporting to address unfounded "myths" raised in opposition by "supporters of intellectual property theft." (attached)

As the bill goes to the House floor, I hope that Rep. Ehlers will be perceptive enough to see beyond this combination of straw men and ad hominem. Whereas the document characterizes the opposition argument as, "H.R. 4137 would take financial aid away from colleges and students who engage in illegal file sharing," this is a misdirection. Rather, it has been clearly argued that the bill would take financial aid away from students at colleges that do not follow the vague mandate to plan alternatives and technological deterrents to illegal file sharing -- which this bill unquestionably does. The document also states that the bill would not "force" colleges to use alternative file-sharing programs, which is technically true but elides the "plan to explore" language that clearly requires the first step in such a process. Finally, the document claims that the bill "does not ask colleges to enforce copyright laws." This is absolutely true. We would not want colleges to be tasked with enforcing the law, and we would certainly not want to task them with enforcing unproven "technology-based deterrents" that are a poor approximation of copyright law and generate considerable collateral damage.

The provisions attempt a "have your cake and eat it too" approach in which the bill does not technically force copyright enforcement on universities, but still mandates action that has that effect. Universities already have ample incentive to deter students from such illegal activity, and (as the MIT letter I forwarded earlier shows) they are exploring the nascent technical approaches to this problem. A grant program to further fund these efforts might be helpful. A vague, unfunded mandate to take a combined technology/alternatives approach is likely to generate only non-productive costs and to have a chilling effect on aspects of academic study.

(Attachment: 20071114COAAFileSharing.pdf)

Why Manage?

2007-11-12T12:17:00.001-05:00

Bruce Owen recently published an article in Cato's Regulation, entitled "Antecedents to Net Neutrality". Owen's central point is that net neutrality is simply a recapitulation of the failed telecommunications policy of common carriage. According to him, history shows that regulatory structures are subject to capture and that they do a worse job at enhancing social welfare than market forces—even when those forces create at best a Schumpeterian monopoly. Owen's article reads as though this is a new argument, but in reality it's just the latest salvo in the broadband access back and forth that he and Lessig have already had in the publication. (Incidentally, Owen's article is essentially a copy-paste from this earlier AEI-Brookings/Stanford working paper/Free State Foundation cross-post that has footnotes not present in the article version).

The fundamental question is whether history indeed shows that regulation of communications infrastructure fails and that alternatives provide greater benefit for the public. In short, why use regulatory rulemaking to manage communications when property or antitrust can manage it better?

The title of this blog comes from LBJ's remarks upon signing the Public Broadcasting Act of 1967. He explained that, "today our problem is not making miracles—but managing miracles. We might well ponder a different question: What hath man wrought—and how will man use his inventions?" He was speaking in the context of mass media dominated by the broadcast model, and governed by now-abandoned principles like the Fairness Doctrine. At the same time, he spoke of "a great network for knowledge—not just a broadcast system, but one that employs every means of sending and storing information that the individual can use." As predictions of the future go, this is pretty good. But, what about this notion of managing our communications miracles?

To begin with, we need to recognize that property-like rights assignment or antitrust oversight amounts to management just as much as regulatory rulemaking. The rhetoric of restrictive government regulation vs. free property markets is at best a false dichotomy and at worst a justification for arbitrarily picking winners. When it comes to media, and especially broadband access, we are not anywhere near the point at which scarcity has disappeared or at which competition has generated widespread consumer choice. In the interim, we are left with the difficult but necessary task of managing this remarkable invention—one way or another.

Owen posits that common carriage has been an historical failure, and that antitrust should intervene where markets fail. To be sure, net neutrality derives some of its power from the legacy common carriage. But is he right that common carriage in communications law has empirically failed?

Owens' retelling of history is remarkably selective. He begins with railroad regulation, the statutory source these principles. After concluding that over a century of railroad common carriage regulation resulted in "a series of highly discriminatory and dysfunctional regional transport cartels," he begins to discuss common carriage in the context of the U.S. v. AT&T antitrust proceedings in the early 1980's. It is not surprising that he locates his analysis in these proceedings, given his personal connection with the Department of Justice during that period, but such an angle hardly offers a representative view of the doctrine. All we truly learn from his account is that the DoJ analysis of AT&T was difficult, and that the antitrust-based remedies were imperfect.

One might seek instead to start with Title II of the Communications Act, the regulatory home of telecommunications common carriage, and then to focus on the most relevant examples. Most notable are the Computer Inquiry proceedings, which dealt with the interaction of long-held common carriage requirements and newly developing information services. In particular, the Computer II rulemaking sought to retain common carriage at the "basic" services layer (ie. placing a phone call) while allowing less controlled competition at the "enhanced" services layer (ie. ISPs and other dial-up services). Whereas most scholars recognize that Computer II allowed the discrimination-free operation of dial-up ISPs that facilitated the explosion of the internet, Owen inexplicably concludes that the rulemakings ended in "morasses of complex, unworkable, and ineffective or self-defeating regulations."

Perhaps Owen is thinking of other elements of the Computer Inquiries, or perhaps his assessment of the enhanced/basic distinction differs radically from prevailing opinion. He doesn't explain. Nevertheless, he assures us that in any event market competition will give consumers better services at lower costs. After all, telephone companies and cable companies already compete in the broadband market. On his telling, vertical integration and exclusive control over the "pipes" only increase providers' incentives to invest and improve market efficiency. Whether or not his claims about broadband competition hold water is a topic for another day, but either way this argument does little to bolster his weak historical account.

Of course, Computer II is only one example of the negotiation between common carriage and competition. A more nuanced analysis might seek to separate the particular discrimination-oriented policies from the monopoly-contingent clauses. Although net neutrality, in all its variations, derives much from common carriage, it is not synonymous with it. In fact, proponents themselves have criticized the technologically siloed regulatory system in which common carriage operates. The historical success and durability of Computer II contributes to that critique. Owen's accusation that advocates have "apparent ignorance of more than a century of economic and regulatory history" might well be turned back on him.

Why manage? In reality there is no choice. The question instead becomes "How to manage?" Certainly one approach is to defer judgment at all network layers to a market that is deemed to be "well functioning." Antitrust might serve as a backstop in this scenario. In order to decide whether this is the best approach, the policymaker must have a robust understanding of history as well as a nuanced conception of present circumstances. In this post I've addressed the particular historical claim that Owen makes. A richer reading of history would not only tell the full story of common carriage, but would probe the boundaries between the sometimes-competing and sometimes-complementary approaches. It would reference landmark cases like Brand X and Trinko. It would recognize that the debate involves even the device layer.

In future posts, I'll examine some of these cases and spend more time with the contemporary details. My simple motivation is the fact that communications policy affects how we communicate. As such, it is concerned with more than just the efficient exchange of goods and services. It is susceptible to ideological wrangling. It both sparks rhetoric and shapes the platform by which rhetoric is exchanged. The fact that communications is central to our nature as human beings is not only why we manage, but also why informed management matters.

[Update 12/29: I noticed via TLF that in this 2006 NYT Op-Ed Tim Lee made arguments similar to those made by Owens. I respect Tim's work and read most of his stuff, but on this issue his vision is just as myopic as Owens'.]