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.
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 longargued 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.
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.
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.
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.
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.
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.