PeerFlow

USPS Bubble Pop

Big corporations' distortion of US Postal Service rates gets noticed by The American Interest:

Just as General Motors has in effect subsidized Big Oil by continuing to build gas-guzzlers in recent years, so has the USPS continued to subsidize Big Mail by shaping its operations to encourage what it now calls, revealingly, “standard mail”—that is, advertising junk mail. Most American citizens are blissfully unaware of the degree to which USPS subsidizes U.S. businesses by means of the fees it collects from ordinary postal customers. For example, if you wish to mail someone a large envelope weighing three ounces, you’ll pay $1.17 in postage. A business can bulk-mail a three-ounce catalog of the same size for as little as $0.14.

USPS management claims that “standard” mail makes lots of money, that the USPS makes a better margin delivering a “standard” mail package for $0.14 than it does a first-class one for $1.17. Why? Supposedly because of efficiencies produced by bulk-mail, machinable, zip-plus-four and zip-plus-nine standardization schemes. If you look at the revenue stream from advertising mail, it does look impressive, and it has been growing (for perverse reasons we’ll come to in a minute). But when you juxtapose next to that revenue stream the enormous transactional costs of maintaining a riotously complex rate structure to service it, you quickly reach a different conclusion: Standard mail, the costs of which are also generally tax-deductible for businesses, does not make money. It amounts to a corporate subsidy, which helps to explain why Congress, insofar as its members understand this, typically doesn’t object to the status quo. After all, these corporations have been known to contribute to electoral campaigns.

Actually, it’s worse than that. Not only are pennies shaved off the postage affixed to grandma’s letters routed directly into the pockets of direct-mail marketers, some 20 percent of direct-mail advertising volume is comprised of credit card, mortgage and other financial offers. So yes, the USPS has contributed in a subtle yet very real way to our burst economic bubble.

And the USPS's own "standard mail" is about to pop. It's worse than you probably think. An article well worth reading.

Lessig's Herculean Holiday Present: Reboot the FCC

Here's a good test for the new U.S. Executive: to recognize that steady pragmatism means radical change, starting with the FCC:

The solution here is not tinkering. You can't fix DNA. You have to bury it. President Obama should get Congress to shut down the FCC and similar vestigial regulators, which put stability and special interests above the public good. In their place, Congress should create something we could call the Innovation Environment Protection Agency (iEPA), charged with a simple founding mission: "minimal intervention to maximize innovation." The iEPA's core purpose would be to protect innovation from its two historical enemies—excessive government favors, and excessive private monopoly power.

—Reboot the FCC, We'll stifle the Skypes and YouTubes of the future if we don't demolish the regulators that oversee our digital pipelines. By Lawrence Lessig, Newsweek Web Exclusive, 23 Dec 2008

Lessig gets the connection with his old topic of intellectual property and copyright. Those are monopolies granted by the federal government, and they have been abused by the monopoly holders just like the holders of communication monopolies:

Treasury discloses "secret" documents to spyee defense lawyer

That's the problem with secrets. You tell somebody, even somebody who works for you, and eventually they tell someone else:

As I recounted in Salon in July, lawyers for the Bush administration have gone to extreme and even bizarre lengths in their attempts to prevent the federal courts from determining the legality of the president's warrantless electronic surveillance program. A key problem for them is a top-secret document that the Treasury Department accidentally disclosed to Al-Haramain's lawyers in 2004. The document confirmed the surveillance of our clients, and thus, we contend, their legal standing to sue as victims of the program.

—More evidence of Bush's spying, Why the White House can no longer hide the truth about its warrantless surveillance of Americans. By Jon B. Eisenberg Salon.com, 12 September 2008

Given thousands (or millions?) of people spied upon, eventually somebody is going to gain a foothold of legal standing to sue.

Oh, my, it gets better:

But since the July 2 ruling, we have discovered additional evidence of surveillance of our clients. In fall 2007, FBI deputy director John Pistole gave a speech at a conference of bankers and lawyers in which Pistole thanked the bankers for their cooperation in giving the FBI financial records for terrorist financing investigations, and then went on to describe the FBI's 2004 investigation of Al-Haramain. In the text of the speech -- which is posted on the FBI's Web site -- Pistole explicitly admitted that the FBI had used "surveillance" among other "investigative tools" in the Al-Haramain investigation, noting that "it was the financial evidence that provided justification for the initial [terrorist] designation" in February 2004.

I've got to wonder whether the FBI director didn't know that he was providing standing, or whether he did it deliberately because he's tired of this legal charade and wants warrantless wiretapping to stop before the eventual lawsuits tar his agency even more than it already is.

If Al-Haramain wins, perhaps the next step would be to sue the government officials who authorized those illegal wiretaps.

-jsq

Selling Out Has Its Party: AT&T Fetes Blue Dogs

Glenn Greenwald has video of attendees refusing to say who they were or why they were there or what the party was for:

Amazingly, not a single one of the 25-30 people we tried to interview would speak to us about who they were, how they got invited, what the party's purpose was, why they were attending, etc. One attendee said he was with an "energy company," and the other confessed she was affiliated with a "trade association," but that was the full extent of their willingness to describe themselves or this event. It was as though they knew they're part of a filthy and deeply corrupt process and were ashamed of -- or at least eager to conceal -- their involvement in it. After just a few minutes, the private security teams demanded that we leave, and when we refused and continued to stand in front trying to interview the reticent attendees, the Denver Police forced us to move further and further away until finally we were unable to approach any more of the arriving guests.

— AT&T thanks the Blue Dog Democrats with a lavish party, Glenn Greenwald, Salon, Monday Aug. 25, 2008 11:15 EDT (updated below (with video added) - Update II) Thursday, Aug 28, 2008

The video includes Denver police repeatedly asking accredited press to move away from a public sidewalk.

At another party, an ABC News reporter was arrested while "attempting to take pictures on a public sidewalk of Democratic senators and VIP donors leaving a private meeting at the Brown Palace Hotel."

Parties like this are part of the lobbying revolving door that makes the U.S. look like a banana republic. I'm picking on Democrats, here, but at least 75% of Senate Democrats (including Hillary Clinton and Joe Biden, but not Barack Obama) voted against the recent bad FISA bill. A much higher percentage of Republicans voted for it.

If he were alive today, Robert Burns would say:

'We are bought and sold for telecom gold'
Such a parcel of rogues in a nation!

-jsq

Congress at 9% Job Approval: Why Is Lessig Putting Lipstick on the FISA Pig?

Larry Lessig points out that for the first time in history Congress' job performance is rated (by Rasmussen) in single digits: 9%. Some of his commenters think that has something to do with the recent FISA bill, and others think that's just a minority concern.

Three quarters of the American people and even a majority of Republicans oppose Bush's warrantless wiretaps. Two thirds oppose warrantless wiretaps even for communications between U.S. citizens and overseas persons, and almost 2/3 oppose immunity for telcos. Aome people call that a minority. I don't think that word means what they think it means.

Instead of standing up to Bush as the Constitution requires, Congress capitulated and gave the worst president in history still more powers to spy on the people. And the people do know about it:

"Congress rolled over on FISA" --LA Times
"Democrats voted for FISA out of fear" --Chicago Tribune
"Obama gives telecoms a pass" --Hartford Courant
"Senate approves bill to broaden wiretap powers" --NY Times
"Senate vote backs Bush on wiretaps" --Salt Lake Tribune
"Senate vote gives Bush what he wants on surveillance bill" --Seattle Times

News.google.com finds about 960 other stories much like those.

Is the FISA bill the only reason Congress's numbers tanked? Nope, but I don't think it's coincidence that they dropped immediately after the Senate passed that bill.

Why isn't Larry Lessig working to convince Obama he was wrong and getting him to fix it, instead of trying to put lipstick on that pig of a bill?

-jsq

Senate: Get Out of Jail Free, Telcos and Administration!

Yes, I know, the FISA bill just passed by the Senate doesn't preclude criminal liability. But Bush can, by pardoning for any and all crimes committed, just like Ford did for Nixon; the man who commuted Scooter Libby's sentence won't balk at that. And the bill does do away with civil liability, so the telcos never have to pay for illegal warrantless blanket wiretapping, and the criminal evidence against the politicians that hired it is hidden.

But, to be Chicago kind of candid, whatcha gonna do about it?

Today, the freshman senator from Illinois voted in favor of the FISA bill that provides retroactive legal protection to cooperating telecom companies that helped the feds eavesdrop on overseas calls. Up until a few weeks ago -- let's see, that would be shortly after the last primaries settled the Democratic nomination and terminated what's-her-name's once frontrunning campaign -- Obama adamantly opposed the bill. "Unequivocally" was the word his people used.

— Nomination in hand, Obama stiffs the Dem left on FISA vote, Andrew Malcolm, L.A. Times, 9 July 2008

When did the U.S. lurch so far to the right that jetissoning the Fourth Amendment is considered running to the center?

The "compromise" the bill was supposed to represent is nonexistent;

Patrick Henry Was Unreasonable, Too: Fight FISA "Compromise" on the Fourth of July!

On the Fourth of July, who wants to legalize their government spying on them, their children, their parents, and their neighbors, without even a warrant? Listening to every phone call; reading every text message, IM, email, and facebook poke; watching every video you post or view? This is what we expect from Hugo Chavez, from Fidel Castro, or from the old Soviet Union. Yet that is just what the United States Senate is proposing to do, after the House already passed it.

After fighting and winning a war at long odds against the greatest empire on earth, at the demand of the people, the Founders of U.S. added a Bill of Rights to the Constitution, the fourth of ten of which is:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

—Fourth Amendment, U.S. Constitution, effective 15 Dec 1791

That is what the Congress proposes to give away next week, by saying telcos like AT&T and Verizon can spy on you as long as they have a note from the president saying it's OK.

The Internet provides us tools to bring the Senators to their senses.

To quote a fighter against that same world-spanning empire, Mohandas K. Gandhi:

Banana Republic, DC: Telecom Lobbying Revolving Door

Greenwald notes that AT&T spends more in three months for lobbying than EFF's entire budget for a year. Then he spells out how the lobbying revolving door works, and concludes:

The "two sides" referenced there means the House Democratic leadership and the telecoms. Congressional leaders are "negotiating" with the telecoms -- the defendants in pending lawsuits -- regarding the best way for immunizing them from liability for their lawbreaking, no doubt with the help of the former Democratic members and staffers now being paid by the telecoms to speak to their former bosses and colleagues about what they should do. To describe the process is to illustrate its oozing, banana-republic-like corruption, but that's generally how our laws are written.

None of this is particularly new, but it's still remarkable to be able to document it in such grotesque detail and see how transparent it all is. In one sense, it's just extraordinary how seamlessly and relentlessly the wheels of this dirty process churn. But in another sense, it's perhaps even more remarkable -- given the forces lined up behind telecom amnesty -- that those who have been working against it, with far fewer resources and relying largely on a series of disruptive tactics and ongoing efforts to mobilize citizen anger, have been able to stop it so far.

— How telecoms are attempting to buy amnesty from Congress, Glenn Greenwald, Salon.com, Saturday May 24, 2008 06:48 EDT

Remember, AT&T and the other telcos and cablecos are the same companies that want to nuke net neutrality in the name of competition and progress; two other flags they behind, just like the banana republic flag of national security.

-jsq

Payola for the Duopoly

ISP meddling with net neutrality could unite indy musicians and record labels against the duopoly:

For the music business, the failure of net neutrality presents several big problems. Musicians are at the vanguard of digital distribution of music files, video files, and other space-gobbling content. Traffic throttling will almost certainly result in placing severe limitations on the amount and kind of content musicians can put out there — and it’s pretty likely that musicians will then be forced into partnering with businesses that have fewer limits and greater access, no doubt for a fee, to get their gear online. Another issue is that, as covered recently in this column, we are seeing a whole new universe of music-related business models, and we need to see some predictability in terms of licensing methods and how artists and copyright owners get paid. One of the most compelling proposals is that P2P music sharing should be rendered commercially viable and copyright-legal by the imposition of a blanket license that would be paid at the gate (i,e., through the ISPs). Institutionalized throttling would take this plan out at the knees.

Another problem is that record labels, distributors and retail chains who are already in desperate jeopardy can’t compete with ISPs and cellular providers who, having launched their own music stores, have all the incentive in the world to steer music consumers to their own services rather than open the pipe for folks to shop elsewhere.

— Net Neutrality, By Allison Outhit, Need to Know, June 2008

This observation comes from Canada, where current attempts by some to pass legislation similar to the U.S. Digital Millenium Copyright Act (DMCA) has suddenly gotten noticed as a path to something music lovers have seen before:

McKie is referring to proposed changes modelled on the American Digital Millennium Copyright Act (DMCA), which call for a much heavier-handed approach to interpreting what kind of content uses are protected by copyright. At the same time a Canadian DMCA would accord “safe harbour” status to service providers to shelter them from a potential onslaught of copyright litigation provided they act quickly to block infringing and illegal actions on their networks. A Canadian DMCA could impact net neutrality by putting police power in the hands of the networks, while providing ISPs with strong incentives to prefer privately-negotiated content distribution deals over the chaos of user-generated traffic. The bottom line is that musicians have come to rely on the net as their number one go-to distribution and marketing tool. The net got that way by being neutral to all comers. Whether you were a platinum seller on Universal, or a couple of unknown basement-dwellers, your video had an equal chance of going viral. Without net neutrality, all the good pipe will get eaten up by whoever has the power to make the deal. Which sounds a lot like the payola days all over again.

Yep, that's what we'll get if we don't have net neutrality: payola for the duopoly.

-jsq

Postal Hikes and Time Warner's Role Discovered by New York Review of Magazines

The New York Review of Magazines catches up with Time Warner and the postal rate hikes it lobbied for and got. First, the bottom line:

...the true price of letting corporations shape government policy: free speech.

— Going Postal, Callie Enlow, New York Review of Magazines, 2008

The NYRB gets into some of the underlying political machinations:

Even Time Warner was taken aback. Halstein Stralberg, co-creator of Time’s rate proposal, said, “There was a new chairman at the commission and there was a totally new environment, and they adopted it, to my surprise.”

The NYRM noted the sudden parachuting in of a new chairman just before the decision as unusual:

In the corporate world, The Progressive Populist would most likely be forced out of business. But should the same rules apply when the product is ideas and the conduit is a government-owned monopoly? To the current administration, the answer is yes, said Cullen. The president appoints the five commissioners that compose the Postal Regulatory Commission. Between the 2005 Time Warner complaint, when the PRC rejected the corporation’s proposed rate restructuring, and the 2006 rate hearings, when the PRC adopted the suggestions almost verbatim, two new commissioners joined the PRC. One of them, Dan G. Blair, replaced George Omas as chairman just one month before the end of the rate cases, a move that Bob Cohen described as “pretty unusual.”

However, the NYRM didn't follow up on the other chairman, the chairman of the Postal Board of Governors from January 2005 to January 2008, James C. Miller III, and his 27-year-old theory:

"...none should be favored and none benefited. Each party pays the cost of service it consumes, not less, and does not bear the cost of others’ consumption."

Curious how someone with that philosophy should be chairman just at the time the decision was made.

The NYRM does say what happened, why it was unusual, and who it affected:

Blocking Civil Suits: Telecoms Lobbied White House Hard for Immunity

Well, it seems the telcos are a bit worried about those lawsuits:

The Bush administration is refusing to disclose internal e-mails, letters and notes showing contacts with major telecommunications companies over how to persuade Congress to back a controversial surveillance bill, according to recently disclosed court documents.

The existence of these documents surfaced only in recent days as a result of a Freedom of Information Act lawsuit filed by a privacy group called the Electronic Frontier Foundation. The foundation (alerted to the issue in part by a NEWSWEEK story last fall) is seeking information about communications among administration officials, Congress and a battery of politically well-connected lawyers and lobbyists hired by such big telecom carriers as AT&T and Verizon. Court papers recently filed by government lawyers in the case confirm for the first time that since last fall unnamed representatives of the telecoms phoned and e-mailed administration officials to talk about ways to block more than 40 civil suits accusing the companies of privacy violations because of their participation in a secret post-9/11 surveillance program ordered by the White House.

At the time, the White House was proposing a surveillance bill—strongly backed by the telecoms—that included a sweeping provision that would grant them retroactive immunity from any lawsuits accusing the companies of wrongdoing related to the surveillance program.

— Just Between Us, Telecoms and the Bush administration talked about how to keep their surveillance program under wraps. by Michael Isikoff and Mark Hosenball, TERROR WATCH, Newsweek, Apr 30, 2008 | Updated: 6:09 p.m. ET Apr 30, 2008

It's sad to see professional military men like Lt. General Ronald L. Burgess, Jr., Office of the Director of National Intelligence, shilling for an administration that is so blatantly protecting itself and big corporations against justice for its own wrongdoing. White House stonewalling over first the existence of these documents, and now, since a judge ordered them to reveal that, release of the documents, isn't about any "war on terror". It's about protecting lawbreakers and control of the people:

Hamlet in DC: To Legislate or Not to Legislate, That is the Question

The U.S. Senate takes up net neutrality again, to legislate or not to legislate:

At a Senate Commerce Committee hearing entitled "The Future of the Internet" on Tuesday, Democratic politicians argued for passage of a law designed to prohibit broadband operators from creating a "fast lane" for certain Internet content and applications. Their stance drew familiar criticism from the cable industry, their Republican counterparts, and FCC Chairman Kevin Martin, who said there's no demonstrated need for new rules, at this point.

— Net neutrality battle returns to the U.S. Senate, by Anne Broache, C|Net News.com, 22 April 2008

Some of the senators seemed to think the Comcast debacle indicated there was need for legislation:

"To whatever degree people were alleging that this was a solution in search of a problem, it has found its problem," said Sen. John Kerry (D-Mass.). "We have an obligation to try and guarantee that the same freedom and the same creativity that was able to bring us to where we are today continues, going forward."

Kerry is one of the backers of a bill called the Internet Freedom Preservation Act, chiefly sponsored by North Dakota Democrat Byron Dorgan and Maine Republican Olympia Snowe, which resurfaced at the beginning of 2007 but has gotten little attention since. A similar measure failed in a divided Commerce Committee and in the House of Representatives nearly two years ago.

Unsurprisingly, Martin says he doesn't need a law to enforce, because he can make it up as he goes along:

Revisionism by PRI

This is amusing:

The attempt to force network neutrality on wireless carriers will result in disaster and is based on faulty assumptions, including one that there ever was neutrality on the Internet, according to a newly released analysis from the Pacific Research Institute (PRI).

— Researcher Rebukes Wireless 'Net Neutrality' Advocates, NewsBreak, Telecomweb - USA, 26 March 2008

Well, I guess that waves away all the well-documented steps the FCC took to strip away common carrier status from each facet of Internet provision

You have to register to read the rest at Telecomweb, but PRI has more, including this rather amusing claim:

Nacchio Gets New Trial and Judge

All guilty counts thrown out, and not just a new trial, but a new judge:

The 10th Circuit Court of Appeals has overturned the guilty verdict in the criminal insider trading case of former Qwest CEO Joe Nacchio and ordered a new trial before a different judge.

The 2-1 decision cited U.S. District Judge Edward Nottingham's exclusion of expert testimony by Northwestern University law professor and private consultant Daniel Fischel.

Fischel was allowed to testify on Nacchio's behalf about the facts behind his stock sales, but was excluded from providing economic analysis.

— Nacchio conviction overturned, By Andy Vuong, The Denver Post , Article Last Updated: 03/17/2008 10:33:03 PM MDT

What else will a new trial reveal about the government's dealings with Qwest about warrantless wiretapping?

-jsq

Snooping as Free Speech: Verizon Claims Revealing Sensitive Customer Data is Its Right

It's a good thing I hadn't had my coffee yet:

Verizon is seeking to have a lawsuit filed against it for allegedly illegally helping the government eavesdrop on its customers and data mine their call records dismissed. The company argues that the suit infringes on the company's First Amendment rights.

— Verizon: Suing Us For Turning Over Customer Call Records Violates Our Free Speech Rights, By Ryan Singel ThreatLevel, May 04, 2007 | 5:59:00 AM

This is so funny I would have sprayed the coffee.

Funny in a gallows-humor kind of way. As in Verizon must be really desperate to try something like this. And as in the U.S. is in a bad way when telcos have apparently been handing over all their traffic to a secret spy agency and a court will even entertain an argument that their doing so is free speech. At least the judge in question has thus far allowed suits against Verizon in these matters to proceed. Maybe he will in this case, too.

If there were a real market for telecoms and ISPs in the U.S., this sort of thing would be less likely to happen, because some of the affected companies would possibly make a point of refusing to spy on their own customers, and would be rewarded by gaining customers.

-jsq

Jettisoned: 8 Centuries of Common Carriage Law

Someone at CAIDA (presumably kc Claffy by the writing style), went to

an invitation-only intensely interactive workshop on the topic of Internet infrastructure economics. participants included economists, network engineers, infrastructure providers, network service providers, regulatory experts, investment analysts, application designers, academic researchers/professors, entrepreneurs/inventors, biologists, oceanographers. almost everyone in more than one category.

— internet infrastructure economics: top ten things i have learned so far, by webmaster, according to the best available data, October 7th, 2007

and wrote up a report including this summary of the political situation:

...and it turns out that in the last 5 years the United States — home of the creativity, inspiration and enlightened government forces (across several different agencies) that gave rise to the Internet in the first place — has thoroughly jettisoned 8 centuries of common carriage law that we critically relied on to guide public policy in equitably provisioning this kind of good in society, including jurisprudence and experience in determining ‘unreasonable discrimination’.

and our justification for this abandonment of eight centuries of common law is that our “government” — and it turns out most of our underinformed population (see (1) above) — believes that market forces will create an open network on their own. which is a particularly suspicious prediction given how the Internet got to where it is today:in the 1960s the US government funded people like vint cerf and steve crocker to build an open network architected around the ‘end to end principle’, the primary intended use of which was CPU and file sharing among government funded researchers. [yes, the U.S. government fully intended to design, build, and maintain a peer-to-peer file-sharing network!]

That's right folks: "resource sharing" was the buzzword back then, and every node was supposed to be potentially a peer to every other.

Where the Recipient is Going to Be: Any E-Mail, File Transfer, or Web Search

People are surprised to learn this?

In the end, it turns out it's all about the emails.

— Spying Fight about Emails, Not Phone Calls, DOJ Reveals, By Ryan Singel ThreatLevel, Wired, March 04, 2008 | 4:47:36 PMCategories: NSA

The blogger goes on to point out that almost all of the recent fearmongering, which has been about telephone calls, is just plain wrong. Duh! Half the fearmongers don't understand what they're talking about (e.g.,

Kaput: What Your Domain Becomes if U.S. Treasury Says So

What a reputation:

So that's that. Register your domain name through a U.S. company and your business goes kaput if the U.S. Treasury Department decides it doesn't like you. It doesn't matter if you're based in Spain, your servers are in the Bahamas, your customers are mostly European, and you've broken no laws. No warning. Just kaput.

— Just Kaput, Kevin Drum, Political Animal, 4 March 2008

This blogger bases his opinion on a NYTimes story:

Contempt: What CCIA has for Retroactive Immunity

Ed Black by Declan McCullagh

It's time somebody treated the fear-mongering about retroactive immunity as it d eserves:

CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information.

— To the Members of the U.S. House of Representatives, Edward J. Black, President & CEO, Computer & Communications Industry Association, 29 February 2008

CCIA represents many of the corporations that are called upon by FISA.

-jsq

WSJ Fears Innovation: Net Neutrality As Internet Wrecking Ball

Apparently this WSJ opinion writer couldn't actually argue with Ed Markey's net neutrality bill, so he made up a straw man:

Imagine a town that has all sorts of gasoline pipelines running by it but only one gas pump. Rationing is inevitable. So are price controls.

Everyone gets equal amounts, except of course first responders like police and ambulances, which should get all the gas they want. And, well, so should the mayor. And if you can make a good business case that you work 60 miles away, you can file paperwork and perhaps pull some strings for more gas. How about those kids hot-rodding around town who can't drive 55? They get last dibs, and maybe we can sneak in some gas thinner to slow down their engines and not waste gas.

— Internet Wrecking Ball, By Andy Kessler, Wall Street Journal, February 25, 2008; Page A15

What's especially amusing about this strawman is that it's what the duopoly is planning as they do away with net neutrality, except it's not first responders or governments that will get favored bandwidth: it's Hollywood. Meanwhile, Markey's bill doesn't say any of that. It doesn't include any regulation at all.

Kessler invokes Orwell:

This is the essence of the Ed Markey's (D., Mass.) Orwellian-named Internet Freedom Preservation Act of 2008, which would foist network neutrality on the wild and woolly Internet.

Kessler maybe wasn't around in the earlier days of the Internet, or he would know that net neutrality is what we used to have, until it got chipped away starting in about the year 2000, as the FCC failed to enforce the Unbundled Network Elements (UNE) of the Telecommunications Act of 1996, and reclassified cable modem access as an information service in August 2002, wireline broadband in August 2005, and wireless broadband in March 2007. The FCC stripped common carriage status from Internet provision, something never done before in the U.S. So what Markey's bill is actually trying to do is to preserve the freedom the Internet used to have before the present administration and the duopoly systematically tried to do away with it. That's the opposite of Orwellian: that's the plain truth.

If Kessler did know Internet history, or had been around when we were making it, he would know not to write things like this:

Shills By Comcast at FCC Hearing

This appears to be the week for Comcast to really make a fool of itself.

Comcast acknowledges that it hired people to take up room at an F.C.C. hearing into its practices.

— Grassroots Support? Or Astroturf? by Sam Gustin, Portfolio.com, Feb 26 2008

Some reports said the shills were Comcast employees, but it turns out many of them were hired off the street. They were given yellow highlighters to put in their shirt pockets so they could identify themselves to each other.

Comcast, the company that claims to understand the Internet so well it thinks faking TCP Resets is good network management (which is what that FCC meeting was about), apparently thought in this day of cell phone cameras and blog posts that nobody would notice....

-jsq

Cooperation and Communicators: Would Immunity Make Telcos Cooperate with Government Requests?

On The Communicators on C-SPAN (23 Feb 2008), Marc Rotenberg of Electronic Privacy Information Center (EPIC) made an interesting point. Retroactive immunity for warrantless wiretapping could well mean to telcos that the law could change at the whim of the president, so they might be more apprehensive about cooperating with governmental wiretap requests. After all, the current legal framework says they do have to cooperate if served a warrant, but not without. Such whims could mean they have to cooperate with any old request or face retribution. They may already think that, due to Joe Nacchio of Qwest claiming that his company was denied contracts for not cooperating as part of his appeal against an insider trading conviction, which case itself is bogus if he's right that he had reasonable expectation of such contracts. It's a funny thing when you subvert the rule of law and replace it with a "unitary executive": nobody knows where they stand anymore.

Meanwhile, Patrick Philbin, identified in the on-screen legend only as a "Washington-area attorney" (the introduction did say he was formerly a Bush appointee in various positions), kept claiming that there wasn't even any proof that any telcos had cooperated without warrants, while arguing that without retroactive immunity they wouldn't cooperate. In addition to those positions being somewhat contradictory, if I'm not Cheney has said on the air recently that the telcos did cooperate, so I don't know why Philbin continues this sort of obfuscation. Well, unless it's the obvious: he's protecting his former bosses.

The Communicators is very interesting because it one or two people half an hour to say what they mean in their own words. YMMV, but in this case it sure looked to me like Rotenberg was being very reasonable and standing for the rule of law, while Philbin was stonewalling using every legal subterfuge that came to his mind. This impression wouldn't have been nearly as clear from a few sound bites.

-jsq

Internet Freedom Policy Act

Rep. Ed Markey (D-MA) and Rep. Chip Pickering (R-MS) have introduced the Internet Freedom Preservation Act of 2008, which will amend Title I of the Communications Act of 1934 to say Internet freedom, commerce, innovation, participation, and speech are the policy of the United States. It's interesting what this bill does not say. It doesn't specify any regulations, so that those who oppose net neutrality don't have a leg to stand on when they say net neutrality is all about regulation. It doesn't say "net neutrality": it says "freedom", "marketplace", "innovation", and other positive benefits. (I think I'll take a cue from Commissioner Copps and start referring to Internet freedom.) It doesn't say "consumers" except a few times, including once where that word is immediately qualified by

(i) access, use, send, receive, or offer lawful content, applications, or services over broadband networks, including the Internet;

Let's see, if "consumers" can send their own content, applications, and service, they're not really consumers in the traditional sense, now are they?

This is all very nice, in that Markey and Pickering apparently get it about what Internet freedom is about. However, why does this bill have no teeth, unlike Markey's bill of last year or the Snowe-Durgan bill before that?

Comcast Viewed as Great Firewall of China

Prof. Jean Camp points out that:

This is ironically exactly the mechanism used by the Great Firewall of China. When China does it, we call it "censorship".

— Re: [IP] Comcast FCC filing shows gap between hype, bandwidth, Jean Camp, Interesting People, 14 Feb 2008

She points to a paper that details that the Great Firewall of China uses exactly the same forged TCP Reset method that Comcast uses, and how to work around such damage:

Temporary Delays? Comcast vs. Access to Content

Aswin Navin by David Shankbone

In an article about Comcast defending against a complaint brought with the FCC about its throttling of Internet content, there's a larger theme:

Rep. Edward J. Markey (D-Mass.), chairman of the House Energy and Commerce Committee's subcommittee on telecommunications and the Internet, plans to introduce a bill today calling for an Internet policy that would prohibit network operators from unreasonably interfering with consumers' right to access and use content over broadband networks. The bill also calls for the FCC to hold eight meetings around the nation to assess whether there is enough competition among network providers and whether consumers' rights are being upheld.

"Our goal is to ensure that the next generation of Internet innovators will have the same opportunity, the same unfettered access to Internet content, services and applications that fostered the developers of Yahoo, Netscape and Google," Markey said in a written statement yesterday.

— Comcast Defends Role As Internet Traffic Cop By Cecilia Kang, Washington Post Staff Writer, Wednesday, February 13, 2008; Page D01

Markey gets it. Too bad the FCC doesn't.

Meanwhile, part of Comcast's defense is:

Pathetic NTIA Broadband Report: Inflated ZIP Codes and BPL

U.S. Commerce Secretary hails "dramatic growth of broadband" in the U.S., citing a report from National Telecommunications and Information Administration (NTIA). That report not only uses the U.S. tinyband definition of 256Kbps as "broadband", it still uses ancient metrics such as this:

By December 2006, 91.5 percent of ZIP codes had three or more competing service providers and more than 50 percent of the nation's ZIP codes had six or more competitors.

— Gutierrez Hails Dramatic U.S. Broadband Growth, Government Technology, Feb 1, 2008, News Report

So any provider that has service available to at least one user in a ZIP code is counted as a "competitor".

Meanwhile, the ARRL says the NTIA report inflates broadband over powerline (BPL) figures:

Retroactive Immunity and Administrative Discipline: It's Not About Telcos

Retroactive immunity for whom?

Telecoms already have immunity under existing FISA law where they acted pursuant to written government certification or where they prove they acted in good faith (see 18 USC 2520 (d)). There is no reason that the federal courts presiding over these cases can't simply make that determiniation, as they do in countless other cases involving classified information.

— Jay Rockefeller's unintentionally revealing comments, Glenn Greenwald, Unclaimed Territory, Salon.com, Thursday January 24, 2008 07:33 EST

There's even a two year statue of limitations in the Code.

Here's one version of what this is really about:

Canadian Net Neutrality

In Canada, an ISP has even gotten up to blocking striking employees' website:

During the Telus strike in 2005, the corporation blocked access to a website run by striking Telus employees called “Voices for Change” (and at least 766 other websites). Those familiar with network-control issues in Canada also accuse Rogers and Bell of limiting peer-to-peer (P2P) applications, which people use to share audio, video and other digital data with one another. So, here we have ISPs blocking or at least limiting the use of what is likely the most innovative, creative and participatory use of the Internet. In response to customer concerns, Bell recently admitted that they “are now using Internet Traffic Management to restrict accounts that are using a large portion of bandwidth during peak hours. Some of the applications that are included are the following: BitTorrent, Gnutella, LimeWire, Kazaa….”

— The Fight for the Open Internet, Steve Anderson, Canadian Dimension magazine, January/February 2008 issue

The rest sounds very familiar:

AT&T Filtering: Has Tim Wu Not Been Paying Attention?

Katharine Graham by Diana Walker

Tim Wu asks in Slate: Has AT&T Lost Its Mind? It seems he's discovered that:

Chances are that as you read this article, it is passing over part of AT&T's network. That matters, because last week AT&T announced that it is seriously considering plans to examine all the traffic it carries for potential violations of U.S. intellectual property laws. The prospect of AT&T, already accused of spying on our telephone calls, now scanning every e-mail and download for outlawed content is way too totalitarian for my tastes. But the bizarre twist is that the proposal is such a bad idea that it would be not just a disservice to the public but probably a disaster for AT&T itself. If I were a shareholder, I'd want to know one thing: Has AT&T, after 122 years in business, simply lost its mind?

No one knows exactly what AT&T is proposing to build. But if the company means what it says, we're looking at the beginnings of a private police state. That may sound like hyperbole, but what else do you call a system designed to monitor millions of people's Internet consumption? That's not just Orwellian; that's Orwell.

— Has AT&T Lost Its Mind?A baffling proposal to filter the Internet. By Tim Wu, Slate, Posted Wednesday, Jan. 16, 2008, at 10:15 AM ET

Come now; what did you think they were up to?

Principles: the FCC's Don't Mean Squat --Cleland

Duopoly apologist Scott Cleland spells out what everybody should have already known:

The petitions assume that the FCC's policy of network neutrality principles have the legal and binding effect of formal FCC rules or law and that they trump all existing law and rules. This is preposterous.

— The Common Sense Case Why Network Management Trumps Net Neutrality, Scott Cleland, Precursor Blog, 15 Jan 2008

Indeed, it is preposterous to think that the FCC ever meant to enforce its net neutrality "Policy Statement" of August 2005. Even if it did, the very way the four "principles" in that statement are worded, every one in terms of consumers, excludes the very existence of participatory services such as BitTorrent.

Cleland's blog goes to great lengths to spell out what he considers common sense (which means he knows he doesn't actually have a legal argument). Don't be surprised if his items get parrotted by other anti-Internet-freedom blogs. And don't be surprised if the FCC rules in favor of Comcast, even though any competent network engineer can tell you that there are ways to do network management that don't involve faking reset packets, a technique that would be considered malicious denial of service if it came from any entity other than an ISP, not to mention Comcast's BitTorrent stifling seems closer to the fraudulent promise of unlimited service that got Verizon fined by New York State.

[Clarified:] It's not about network management. It's about a few corporations and their political allies trying to stifle net neutrality and Internet freedom against the best interests of everyone else, including their own customers.

-jsq

Forensic FCC Oversight

Preventive Congressional oversight had no effect on the FCC. We'll see if forensic oversight does any better:

Bipartisan leaders of the House Energy and Commerce Committee launched an investigation of the Federal Communications Commission on Tuesday, three weeks after the agency's controversial vote to ease media ownership restrictions.

In a letter sent to FCC Chairman Kevin Martin, the committee asked that all electronic records and personal e-mails related to FCC work be saved.

The committee has "initiated a formal investigation into FCC regulatory procedures to determine if they are being conducted in a fair, open, efficient, and transparent manner," said the letter written by Chairman John Dingell, a Michigan Democrat, and ranking Republican Joe Barton of Texas.

"This investigation will also address a growing number of allegations received by the committee relating to management practices that may adversely affect the agency's operation," the letter said.

— House panel launches probe of FCC practices, Reuters, Tue Jan 8, 2008 4:15pm EST

Maybe Congress will slap the FCC with another stern letter. I'm sure Kevin Martin is quaking in his boots.

-jsq

FCC: Shocked to Hear There's Gambling Going On!

The dateline is ironic:

LAS VEGAS (AP) — The Federal Communications Commission will investigate complaints that Comcast Corp. actively interferes with Internet traffic as its subscribers try to share files online, FCC Chairman Kevin Martin said Tuesday.

A coalition of consumer groups and legal scholars asked the agency in November to stop Comcast from discriminating against certain types of data. Two groups also asked the FCC to fine the nation's No. 2 Internet provider $195,000 for every affected subscriber.

"Sure, we're going to investigate and make sure that no consumer is going to be blocked," Martin told an audience at the International Consumer Electronics Show.

—FCC to Probe Comcast Data Discrimination, By PETER SVENSSON, AP, 8 Jan 2008

In other news, Las Vegas Board of Realtors announces investigation of gambling! Sorry; I made that up.

Note that Martin is not only chair of the FCC that continues to enable telecom and media consolidation, he also continues to refer to ISP customers and participants as "consumers", as in the old broadcast model where the broadcasters produce and you the customer are expected to consume whatever they give you.

The organization doing the most investigating of stifling, blocking, etc. by Comcast, Cox, et al., has been the Associated Press, which also originated this story. Interestingly, the AP is not owned by any of the usual five companies that own most of the media in the U.S. The AP is a non-profit cooperative owned by its contributing newspapers. So one of the few national news organizations in the U.S. that has not been consolidated is the one that has been investigating stifling by ISPs.

-jsq

PS:

"I'm shocked, shocked to find that gambling is going on in here!"

—Captain Renault, Casablanca, 1942

Canada: Throttling Ahead

A law professor in Ottawa sums up the Canadian net neutrality situation in a paragraph:

Net neutrality concerns mount but politicians do not respond.

Net neutrality, which has been simmering as an issue in Canada over the past three years, will reach a boiling point this year as leading ISPs implement traffic throttling technologies that undermine the reliability of some Internet applications and experiment with differing treatment for some content and applications. Despite consumer concerns, politicians and regulators will do their best to avoid the issue.

— Tech law issues to watch in 2008, Michael Geist, thestar.com, Jan 07, 2008 04:30 AM

No smokescreen about we can't regulate the net. straightforward as to who is causing the problem: ISPs busily implementing throttling while complacent politicians look the other way.

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AT&T, Texas Football, and Legislators

AT&T tried to impress Texas legislators by streaming the football game in high definition:

"I'd never seen a football game on a big screen like that. It didn't look very good."

—Rep. Eddie Rodriguez, D-Austin, quoted in UNDER THE DOME Most Austin reps skipped football game - and lobby party, W. Gardner Selby, Austin American-Statesman, Saturday, December 01, 2007

I'm not sure AT&T wanted that kind of reaction to watching a Texas football team in Austin, the capital of the second most populous state. The local cableco in Austin, Time Warner, didn't have the game (Dallas Cowboys and Green Bay Packers), which was on the NFL Network, which has a deal with AT&T. Most legislators didn't even show up to watch. Interesting, considering that legislators and regulators are the real audience of the duopoly.

-jsq

FT on FCC: SOP

From London, it appears the emperor's apparatchik has no clothes:

The commission, under Mr Martin, has turned US media policy into mere political theatre, while technology marches on apace, revolutionising media markets without any serious input from the regulators in the public debate about the implications.

Big Media control of the airwaves is simply not the threat to democracy and choice that it once was (in the days before cable or, for that matter, bloggers and MySpace). This is yesterday’s battle. It is time to move on to the tougher challenge: how to ensure that quality news survives the YouTube era.

— New rules for yesterday’s problem, Editorial, Financial Times, Published: November 14 2007 19:15 | Last updated: November 14 2007 19:15

Well, the first step would be to ensure that people get to look at it, for example that they are able to view the Financial Times. Economic models would be good, too. Some traditional news media seem to be developing those.

But it is not clear how one troubled industry (newspapers) can be helped by grafting it on to another one (the broadcast media), when both have essentially the same problem: the internet is stealing their advertising revenues.

Well, the New York Times has discovered can make more money by advertising if they don't charge for articles. And that didn't involve merging with a TV station. With real ISP competition, somebody would also develop a real first-mile ISP business plan.

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Obama's CTO

U.S. presidential candidate Barack Obama says he will appoint a Chief Technology Officer (CTO) for the government, and he has specific tasks for this person, which go well beyond the current administration's reactive defensive technology policies. For example:

He wants Cabinet officials, government executives and rulemaking agencies to hold meeting that are open to the public and transmitted with a live feed. The CTO’s mandate will be to ensure this happens. Specifically, Obama wants the public to be able to comment on the White House website for five days before legislation is signed.

— Exclusive: Barack Obama to name a "Chief Technology Officer", By Matt Marshall, VentureBeat, 13 November 2007

Well, that would be a bit different from the current FCC, which doesn't even announce hearings on its own web pages.

Wiretapping before 9/11: AT&T, NSA, Verizon, Level 3

Why would an administration that currently has access to all data going over the Internet want more competition in the ISP market?

Mark Klein going to Washington to blow the whistle some more on AT&T on giving NSA unfettered access to AT&T's network:

"If they've done something massively illegal and unconstitutional -- well, they should suffer the consequences," Klein said. "It's not my place to feel bad for them. They made their bed, they have to lie in it. The ones who did [anything wrong], you can be sure, are high up in the company. Not the average Joes, who I enjoyed working with."

— A Story of Surveillance, Former Technician 'Turning In' AT&T Over NSA Program, By Ellen Nakashima, Washington Post Staff Writer, Wednesday, November 7, 2007; Page D01

While the Washington Post, for example, does get at one main point:

Contrary to the government's depiction of its surveillance program as aimed at overseas terrorists, Klein said, much of the data sent through AT&T to the NSA was purely domestic. Klein said he believes that the NSA was analyzing the records for usage patterns as well as for content.

It neglects to mention an even bigger point:

FCC: Trick or Treat! Media Consolidation

Today is November First, which is the deadline for comments on the FCC's media consolidation move. There's still no notice on the FCC web pages of a hearing on November 2.

Oh, wait! Kevin Martin held a hearing two days earlier, on Halloween instead! Without ever announcing it on the FCC web pages.

Dissident commissioners Michael Copps and Jonathan Adelstein appeared at a rally outside the FCC's office in Washington to object to Martin's chicanery. "Neither we nor the public received any confirmation that the hearing would occur until ... just 5 business days before the event," the commissioners said before entering the building for the hearing. "This is unacceptable and unfair to the public."

Joining Copps and Adelstein were political, labor and community leaders who condemned Martin's assault not merely on media diversity but on the basic standards for making regulatory shifts.

— No Treats for FCC Chair and Media Monopolists, John Nichols, The Nation, Wed Oct 31, 6:03 PM ET

Jesse Jackson, National Organization of Women, United Church of Christ, Future of the Media Caucus in the U.S. House of Representatives; they all protested.

Martin even has the Parents Television Council against him.

Notice of a meeting only five days before to the other commissioners, and apparently none to the public? You'd think Martin didn't know how to talk to the press. Yet just a few days ago he was chatting with the New York Times about ending cable monopolies to apartments.

I wonder if he told the telcos about that Halloween meeting more than five days before? Nah, that would be corruption.

-jsq

Qwest Case and National Competitiveness

This case will forever be murky if retroactive telecom immunity for participating in illegal wiretapping passes, yet it has already thrown some light on some of the murkiest areas of government-corporate interaction.

Former Qwest CEO Joseph P. Nacchio, who has been convicted of insider trading for selling stock while Qwest's stock price was tanking, claims he had reason to believe Qwest would get lucrative government contracts, and that Qwest was denied them because he refused to participate in an illegal program. When this happened is very interesting:

The phone company Qwest Communications refused a proposal from the National Security Agency that the company's lawyers considered illegal in February 2001, nearly seven months before the terrorist attacks on Sept. 11, the former head of the company contends in newly unsealed court filings.

— Former Phone Chief Says Spy Agency Sought Surveillance Help Before 9/11, By Scott Shane, October 14, 2007

So if Nacchio is right, massive wiretapping by the current U.S. administration didn't start as part of the "War on Terror"; it must have started for some other reason.

The best the prosecution has been able to come up with is:

Christian Coalition Joins Naral Against Telco Censorship

Verizon's blocking of NARAL has led to some strange bedfellows:

Today, the presidents of NARAL Pro-Choice America and the Christian Coalition co-authored a Washington Post op-ed calling on Congress to address the censorship policies of phone companies like Verizon and AT&T. Last month, Verizon arbitrarily banned text messages from NARAL, deeming the lawful political speech too "controversial and unsavory" to send.

"We are on opposite sides of almost every issue," wrote NARAL President Nancy Keenan and Christian Coalition President Roberta Combs. "But when it comes to the fundamental right of citizens to participate in the political process, we're united -- and very worried. Whatever your political views -- conservative or liberal, Republican or Democrat, pro-choice or pro-life -- it shouldn't be up to Verizon to determine whether you receive the information you requested."

— Groups Fight Cell Censorship, Unstrung, 17 October 2007

Most of the U.S. political spectrum seems to be against censorship by telcos and cablecos. The next question is whether this opposition will have any effect, or will the telcos get the FCC to lay off anyway, or will telco and cableco political contributions and lobbying convince Congress to turn a blind eye.

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Who's the Second Largest Contributor to U.S. Congress Members?

AT&T. Time Warner, Bellsouth, and MCI all show up in the same list.

Major AT&T recipients include Sen. Jay Rockefeller, D-WV who is a big supporter of retroactive immunity for telco spying, and who recently (spring 2007, just as the telcos started pushing for that immunity) got a big spike in Verizon employee contributions, as well.

Also Sen. Harry Reid, Senate Majority Leader, gets significant AT&T contributions. This is the same Harry Reid who won't honor Sen. Chris Dodd's hold on the bill containing that amnesty.

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Google v. Verizon v. FCC + Lobbyists

Verizon is suing the FCC about the watered down rules the FCC passed recently. Now Google has filed a complaint with the FCC about that. And apparently Verizon has been having private meetings with FCC Chairman Kevin Martin. Could this be one source of the illegal leaks the GAO finds the FCC providing to lobbyists?

While Verizon's court case proceeds through the legal system, the company's competitors have grown unhappy with the way that Verizon has handled its FCC lobbying. Frontline Wireless has gone so far as to ask the FCC to bar Verizon from the auction because Verizon has allegedly not disclosed some of its lobbying contacts with the agency quickly enough or in enough detail.

Despite Verizon's reticence to spell out exactly what it has been talking about with FCC Chairman Kevin Martin in private meetings, Google believes that it has pieced the conversation together. Google's understanding is that Verizon wants the FCC to impose the open access requirements only on the network, not on the devices. That is, Verizon could still sell handsets that are locked and controlled by the company, but its network would have to be open to unlocked handsets from any operator.

According to Google's new public statement on the issue, "From our perspective, this view ignores the realities of the U.S. wireless market, where some 95 percent of handsets are sold in retail stores run by the large carriers. More to the point, it is simply contrary to what the FCC's new rules actually say." Those rules focus on customer freedom to access content and applications from any device.

In a filing with the FCC, Google asks the agency to stick to its original plan. The company points out that while the open access rules might make the spectrum less attractive to Verizon (and thus might bring in less money at auction), the rules actually make it "more attractive, not less" to Google.

— Google attacks Verizon's attempt to water down 700MHz "open access" rules, By Nate Anderson, ars technica, October 04, 2007 - 11:11AM CT

Silly Google! Verizon is part of the incumbent duopoly, and you're not!

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