PeerFlow

Economists still calling computer networks "virtual" while interconnectivity is exposing economic externalities

While artists and designers have discovered there's no sharp distinction between "real" and "virtual" (aka the New Aesthetic), economists are still talking about "virtual", even as the networks of computers they're referring to are exposing the economic externalities the greed of the "first economy" is built on.

Bill Davidow wrote for the Atlantic 10 April 2012, How Computers Are Creating a Second Economy Without Workers,

"Twenty years ago, if you went into an airport you would walk up to a counter and present paper tickets to a human being. That person would register you on a computer, notify the flight you'd arrived, and check your luggage in. All this was done by humans."

Well, except for that part about "a computer". And the flight computers in the airplane. And the FAA computers. And....

This is also true:

"Today, you walk into an airport and look for a machine. You put in a frequent-flier card or credit card, and it takes just three or four seconds to get back a boarding pass, receipt, and luggage tag. What interests me is what happens in those three or four seconds. The moment the card goes in, you are starting a huge conversation conducted entirely among machines. Once your name is recognized, computers are checking your flight status with the airlines, your past travel history, your name with the TSA (and possibly also with the National Security Agency). They are checking your seat choice, your frequent-flier status, and your access to lounges."

While Bruce Sterling can (rightly, I think) say that's not AI, nonetheless it all happens without much human intervention. And pixelated images of airplanes don't start to indicate what's going on in there.

The punchline:

"Here's the challenge: In the past, every million-dollar increase in economic output generated on the order of ten jobs. In the future, in the productive Second Economy, it may generate only one or two."

That's not new. I'm a farmer, and 90% of farm jobs in this country

Stop Internet censorship —Internet Engineers

Parker Higgins and Peter Eckersley wrote for EFF 15 December 2011, An Open Letter From Internet Engineers to the U.S. Congress

Today, a group of 83 prominent Internet inventors and engineers sent an open letter to members of the United States Congress, stating their opposition to the SOPA and PIPA Internet blacklist bills that are under consideration in the House and Senate respectively.

The signatories are people such as Vint Cerf you may have heard of even if you know nothing about the technical details of Internet, and many other people who helped produce the network you are using now. I know many of them, and they are right. If you want a free and open Internet, call or write your Senators and Congress members today, and tell them to vote against PIPA and SOPA.

The full text of the letter is appended below.

-jsq

We, the undersigned, have played various parts in building a network called the Internet. We wrote and debugged the software; we defined the standards and protocols that talk over that network. Many of us invented parts of it. We're just a little proud of the social and economic benefits that our project, the Internet, has brought with it.

Last year, many of us wrote to you and your colleagues to warn about the proposed "COICA" copyright and censorship legislation. Today, we are writing again to reiterate our concerns about the SOPA and PIPA derivatives of last year's bill, that are under consideration in the House and Senate. In many respects, these proposals are worse than the one we were alarmed to read last year.

If enacted, either of these bills will create an environment of tremendous fear and uncertainty for technological innovation, and seriously harm the credibility of the United States in its role as a steward of key Internet infrastructure. Regardless of recent amendments to SOPA, both bills will risk fragmenting the Internet's global domain name system (DNS) and have other capricious technical consequences. In exchange for this, such legislation would engender censorship that will simultaneously be circumvented by deliberate infringers while hampering innocent parties' right and ability to communicate and express themselves online.

All censorship schemes impact speech beyond the category they were intended to restrict, but these bills are particularly egregious in that regard because they cause entire domains to vanish from the Web, not just infringing pages or files. Worse, an incredible range of useful, law-abiding sites can be blacklisted under these proposals. In fact, it seems that this has already begun to happen under the nascent DHS/ICE seizures program.

Censorship of Internet infrastructure will inevitably cause network errors and security problems. This is true in China, Iran and other countries that censor the network today; it will be just as true of American censorship. It is also true regardless of whether censorship is implemented via the DNS, proxies, firewalls, or any other method. Types of network errors and insecurity that we wrestle with today will become more widespread, and will affect sites other than those blacklisted by the American government.

The current bills -- SOPA explicitly and PIPA implicitly -- also threaten engineers who build Internet systems or offer services that are not readily and automatically compliant with censorship actions by the U.S. government. When we designed the Internet the first time, our priorities were reliability, robustness and minimizing central points of failure or control. We are alarmed that Congress is so close to mandating censorship-compliance as a design requirement for new Internet innovations. This can only damage the security of the network, and give authoritarian governments more power over what their citizens can read and publish.

The US government has regularly claimed that it supports a free and open Internet, both domestically and abroad. We cannot have a free and open Internet unless its naming and routing systems sit above the political concerns and objectives of any one government or industry. To date, the leading role the US has played in this infrastructure has been fairly uncontroversial because America is seen as a trustworthy arbiter and a neutral bastion of free expression. If the US begins to use its central position in the network for censorship that advances its political and economic agenda, the consequences will be far-reaching and destructive.

Senators, Congressmen, we believe the Internet is too important and too valuable to be endangered in this way, and implore you to put these bills aside.

Signed,

• Vint Cerf, co-designer of TCP/IP, one of the "fathers of the Internet", signing as private citizen
• Paul Vixie, author of BIND, the most widely-used DNS server software, and President of the Internet Systems Consortium
• Tony Li, co-author of BGP (the protocol used to arrange Internet routing); chair of the IRTF's Routing Research Group; a Cisco Fellow; and architect for many of the systems that have actually been used to build the Internet
• Steven Bellovin, invented the DNS cache contamination attack; co-authored the first book on Internet security; recipient of the 2007 NIST/NSA National Computer Systems Security Award and member of the DHS Science and Technology Advisory Committee
• Jim Gettys, editor of the HTTP/1.1 protocol standards, which we use to do everything on the Web
• Dave Kristol, co-author, RFCs 2109, 2965 (Web cookies); contributor, RFC 2616 (HTTP/1.1)
• Steve Deering, Ph.D., invented the IP multicast feature of the Internet; lead designer of IPv6 (version 6 of the Internet Protocol)
• David Ulevitch, David Ulevitch, CEO of OpenDNS, which offers alternative DNS services for enhanced security.
• Elizabeth Feinler, director of the Network Information Center (NIC) at SRI International, administered the Internet Name Space from 1970 until 1989 and developed the naming conventions for the internet top level domains (TLDs) of .mil, .gov, .com, .org, etc. under contracts to DoD
• Robert W. Taylor, founded and funded the beginning of the ARPAnet; founded and managed the Xerox PARC Computer Science Lab which designed and built the first networked personal computer (Alto), the Ethernet, the first internet protocol and internet, and desktop publishing
• Fred Baker, former IETF chair, has written about 50 RFCs and contributed to about 150 more, regarding widely used Internet technology
• Dan Kaminsky, Chief Scientist, DKH
• Esther Dyson, EDventure; founding chairman, ICANN; former chairman, EFF; active investor in many start-ups that support commerce, news and advertising on the Internet; director, Sunlight Foundation
• Walt Daniels, IBM’s contributor to MIME, the mechanism used to add attachments to emails
• Nathaniel Borenstein, Chief Scientist, Mimecast; one of the two authors of the MIME protocol, and has worked on many other software systems and protocols, mostly related to e-mail and payments
• Simon Higgs, designed the role of the stealth DNS server that protects a.root-servers.net; worked on all versions of Draft Postel for creating new TLDs and addressed trademark issues with a complimentary Internet Draft; ran the shared-TLD mailing list back in 1995 which defined the domain name registry/registrar relationship; was a root server operator for the Open Root Server Consortium; founded coupons.com in 1994
• John Bartas, was the technical lead on the first commercial IP/TCP software for IBM PCs in 1985-1987 at The Wollongong Group. As part of that work, developed the first tunneling RFC, rfc-1088
• Nathan Eisenberg, Atlas Networks Senior System Administrator; manager of 25K sq. ft. of data centers which provide services to Starbucks, Oracle, and local state
• Dave Crocker, author of Internet standards including email, DKIM anti-abuse, electronic data interchange and facsimile, developer of CSNet and MCI national email services, former IETF Area Director for network management, DNS and standards, recipient of IEEE Internet Award for contributions to email, and serial entrepreneur
• Craig Partridge, architect of how email is routed through the Internet; designed the world's fastest router in the mid 1990s
• Doug Moeller, Chief Technology Officer at Autonet Mobile
• John Todd, Lead Designer/Maintainer - Freenum Project (DNS-based, free telephony/chat pointer system), http://freenum.org/
• Alia Atlas, designed software in a core router (Avici) and has various RFCs around resiliency, MPLS, and ICMP
• Kelly Kane, shared web hosting network operator
• Robert Rodgers, distinguished engineer, Juniper Networks
• Anthony Lauck, helped design and standardize routing protocols and local area network protocols and served on the Internet Architecture Board
• Ramaswamy Aditya, built various networks and web/mail content and application hosting providers including AS10368 (DNAI) which is now part of AS6079 (RCN); did network engineering and peering for that provider; did network engineering for AS25 (UC Berkeley); currently does network engineering for AS177-179 and others (UMich)
• Blake Pfankuch, Connecting Point of Greeley, Network Engineer
• Jon Loeliger, has implemented OSPF, one of the main routing protocols used to determine IP packet delivery; at other companies, has helped design and build the actual computers used to implement core routers or storage delivery systems; at another company, installed network services (T-1 lines and ISP service) into Hotels and Airports across the country
• Jim Deleskie, internetMCI Sr. Network Engineer, Teleglobe Principal Network Architect
• David Barrett, Founder and CEO, Expensify
• Mikki Barry, VP Engineering of InterCon Systems Corp., creators of the first commercial applications software for the Macintosh platform and the first commercial Internet Service Provider in Japan
• Peter Rubenstein,helped to design and build the AOL backbone network, ATDN.
• David Farber, distinguished Professor CMU; Principal in development of CSNET, NSFNET, NREN, GIGABIT TESTBED, and the first operational distributed computer system; EFF board member
• Bradford Chatterjee, Network Engineer, helped design and operate the backbone network for a nationwide ISP serving about 450,000 users
• Gary E. Miller Network Engineer specializing in eCommerce
• Jon Callas, worked on a number of Internet security standards including OpenPGP, ZRTP, DKIM, Signed Syslog, SPKI, and others; also participated in other standards for applications and network routing
• John Kemp, Principal Software Architect, Nokia; helped build the distributed authorization protocol OAuth and its predecessors; former member of the W3C Technical Architecture Group
• Christian Huitema, worked on building the Internet in France and Europe in the 80’s, and authored many Internet standards related to IPv6, RTP, and SIP; a former member of the Internet Architecture Board
• Steve Goldstein, Program Officer for International Networking Coordination at the National Science Foundation 1989-2003, initiated several projects that spread Internet and advanced Internet capabilities globally
• David Newman, 20 years' experience in performance testing of Internet
  infrastructure; author of three RFCs on measurement techniques (two on firewall performance, one on test traffic contents)
• Justin Krejci, helped build and run the two biggest and most successful municipal wifi networks located in Minneapolis, MN and Riverside, CA; building and running a new FTTH network in Minneapolis
• Christopher Liljenstolpe, was the chief architect for AS3561 (at the time about 30% of the Internet backbone by traffic), and AS1221 (Australia's main Internet infrastructure)
• Joe Hamelin, co-founder of Seattle Internet Exchange (http://www.seattleix.net) in 1997, and former peering engineer for Amazon in 2001
• John Adams, operations engineer at Twitter, signing as a private citizen
• David M. Miller, CTO / Exec VP for DNS Made Easy (IP Anycast Managed Enterprise DNS provider)
• Seth Breidbart, helped build the Pluribus IMP/TIP for the ARPANET
• Timothy McGinnis, co-chair of the African Network Information Center Policy Development Working Group, and active in various IETF Working Groups
• Richard Kulawiec, 30 years designing/operating academic/commercial/ISP systems and networks
• Larry Stewart, built the Etherphone at Xerox, the first telephone system working over a local area network; designed early e-commerce systems for the Internet at Open Market
• John Pettitt, Internet commerce pioneer, online since 1983, CEO Free Range Content Inc.; founder/CTO CyberSource & Beyond.com; created online fraud protection software that processes over 2 billion transaction a year
• Brandon Ross, Chief Network Architect and CEO of Network Utility Force LLC
• Chris Boyd, runs a green hosting company and supports EFF-Austin as a board member
• Dr. Richard Clayton, designer of Turnpike, widely used Windows-based Internet access suite; prominent Computer Security researcher at Cambridge University
• Robert Bonomi, designed, built, and implemented, the Internet presence for a number of large corporations
• Owen DeLong, member of the ARIN Advisory Council who has spent more than a decade developing better IP addressing policies for the internet in North America and around the world
• Baudouin Schombe, blog design and content trainer
• Lyndon Nerenberg, Creator of IMAP Binary extension (RFC 3516)
• John Gilmore, co-designed BOOTP (RFC 951), which became DHCP, the way you get an IP address when you plug into an Ethernet or get on a WiFi access point; current EFF board member
• John Bond, Systems Engineer at RIPE NCC maintaining AS25152 (k.root-servers.net.) and AS197000 (f.in-addr-servers.arpa. ,f.ip6-servers.arpa.); signing as a private citizen
• Stephen Farrell, co-author on about 15 RFCs
• Samuel Moats, senior systems engineer for the Department of Defense; helps build and defend the networks that deliver data to Defense Department users
• John Vittal, created the first full email client and the email standards still in use today
• Ryan Rawdon, built out and maintains the network infrastructure for a rapidly growing company in our country's bustling advertising industry; was on the technical operations team for one of our country's largest residential ISPs
• Brian Haberman, has been involved in the design of IPv6, IGMP/MLD, and NTP within the IETF for nearly 15 years
• Eric Tykwinski, Network Engineer working for a small ISP based in the Philadelphia region; currently maintains the network as well as the DNS and server infrastructure
• Noel Chiappa, has been working on the lowest level stuff (the IP protocol level) since 1977; name on the 'Birth of the Internet' plaque at Stanford); actively helping to develop new 'plumbing' at that level
• Robert M. Hinden, worked on the gateways in the early Internet, author of many of the core IPv6 specifications, active in the IETF since the first IETF meeting, author of 37 RFCs, and current Internet Society Board of Trustee member
• Alexander McKenzie, former member of the Network Working Group and participated in the design of the first ARPAnet Host protocols; was the manager of the ARPAnet Network Operation Center that kept the network running in the early 1970s; was a charter member of the International Network Working Group that developed the ideas used in TCP and IP
• Keith Moore, was on the Internet Engineering Steering Group from 1996-2000, as one of two Area Directors for applications; wrote or co-wrote technical specification RFCs associated with email, WWW, and IPv6 transition
• Guy Almes, led the connection of universities in Texas to the NSFnet during the late 1980s; served as Chief Engineer of Internet2 in the late 1990s
• David Mercer, formerly of The River Internet, provided service to more of Arizona than any local or national ISP
• Paul Timmins, designed and runs the multi-state network of a medium sized telephone and internet company in the Midwest
• Stephen L. Casner, led the working group that designed the Real-time Transport Protocol that carries the voice signals in VoIP systems
• Tim Rutherford, DNS and network administrator at C4
• Mike Alexander, helped implement (on the Michigan Terminal System at the University of Michigan) one of the first EMail systems to be connected to the Internet (and to its predecessors such as Bitnet, Mailnet, and UUCP); helped with the basic work to connect MTS to the Internet; implemented various IP related drivers on early Macintosh systems: one allowed TCP/IP connections over ISDN lines and another made a TCP connection look like a serial port
• John Klensin, Ph.D., early and ongoing role in the design of Internet applications and coordination and administrative policies
• L. Jean Camp, former Senior Member of the Technical Staff at Sandia National Laboratories, focusing on computer security; eight years at Harvard's Kennedy School; tenured Professor at Indiana Unviersity's School of Informatics with research addressing security in society.
• Louis Pouzin, designed and implemented the first computer network using datagrams (CYCLADES), from which TCP/IP was derived
• Carl Page, helped found eGroups, the biggest social network
  of its day, 14 million users at the point of sale to Yahoo for around $430,000,000, at which point it became Yahoo Groups
• Phil Lapsley, co-author of the Internet Network News Transfer Protocol (NNTP), RFC 977, and developer of the NNTP reference implementation
• Jack Haverty (MSEE, BSEE MIT 1970), Principal Investigator for several DARPA projects including the first Internet development and operation; Corporate Network Architect for BBN; Founding member of the IAB/ICCB; Internet Architect and Corporate Founding Member of W3C for Oracle Corporation
• Glenn Ricart, Managed the original (FIX) Internet interconnection point

Duopoly Cons Congress Members

73 Democratic members of Congress signed a letter drafted by telco and cableco lobbyists against net neutrality. Save the Internet has sufficiently fisked it. My favorite point is that when AT&T was required as a condition of acquiring Bellsouth in 2006 to abide by net neutrality, it increased its infrastructure investments. As soon as that two year requirement was up, so were the investments. (And they didn't even honor all the requirements, such as a low-end $10/month service.)

The simple fact is that net neutrality was the condition under which the Internet grew to be what it is today, which is the last bastion of free speech and a free press in much of the world, especially in the United States. The only reason net neutrality is an issue is that the duopoly (telcos and cablecos) succeeded in their regulatory capture of the FCC during Kevin Martin's term as chairman and did away with much it. The U.S. used to have among the fastest Internet speeds in the world. Since the duopoly got their way, the U.S. has fallen far behind dozens of other countries in connection speeds, availability, and update. While the U.S. NTIA claimed at least one user per ZIP code counted as real service.

We can let the telcos and cablecos continue to turn the Internet into cable TV, as they have said they want to do. Under the conditions they want, we never would have had the world wide web, google, YouTube, flickr, facebook, etc.

And left to their plan, the duopoly will continue cherry-picking densely-populated areas and leaving rural areas, such as south Georgia, where I live, to sink or swim. Most of the white area in the Georgia map never had anybody even try a speed test. Most of the rest of south Georgia had really slow access. Which maybe wouldn't be a problem if we had competitive newspapers (we don't) or competing TV stations (we don't). Or if we didn't need to publish public information like health care details online, as Sanford Bishop (D GA-02) says he plans to do. How many people in his district can even get to it? How many won't because their link is too slow? How many could but won't because it costs too much?

John Barrow (D GA-12) has a fancy flashy home page that most people in his district probably can't get to. Yet he signed the letter against net neutrality.

I prefer an open Internet. How about you?

Why did the 73 Democrats sign the letter? Could it have to do with the duopoly making massive campaign contributions to the same Democrats and holding fancy parties for them?

The same lobbyists are after Republican members of Congress next.

Call your member of Congress and insist on giving the FCC power to enforce net neutrality rules.

-jsq

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

Kevin Martin's Bottle: Weak Ruling Against Comcast Guarantees Court Challenges

The FCC recently ruled that Comcast has to stop throttling P2P. On the surface, that's a good thing. That Kevin Martin wanted it makes me wonder.

For once I agree with a net neutrality opponent:

By instituting this weird, weak, and barely legal regulation, Kevin Martin will get ‘net neutrality regulation bottled up in the courts for - what - the next five years?

— Game, Set, and Match: Martin! by Jim Harper, Technology Liberation Front, 6 Aug 2008

Harper goes on to predict that meanwhile real competition could develop. And pigs could fly, but that's not the point.

This is the point:

The paragraph prior to the provocative line suggesting regulation of universities contains this sentence: “Allowing some Internet service providers to manage P2P traffic - much less to engage in complete blocking of P2P traffic - while prohibiting others from doing so would be arbitrary and capricious.” This is an administrative-law term of art - “arbitrary and capricious.” The use of it tells us that NCTA or Comcast will challenge the FCC’s decision to regulate only one provider of Internet access without regulating all similarly situated.

But Comcast is under a different regulatory regime!, says Harold and the others. Not in an enforcement of this “broad policy statement” thing-y. The FCC is claming free rein to regulate - not authority based firmly in statute - and if it can throw that rein over cable ISPs, it can throw that rein over universities, over Starbucks, and over the open wi-fi node in Harold’s house.

Now, given the free rein that the FCC is asserting, there is a darn good argument that it’s arbitrary (and “capricious”) to regulate only cable ISPs or commercial ISPs in this way. The FCC has to regulate the whole damn Internet this way if it’s going to regulate Comcast.

This is not just theoretical. Fox News recently refused to pay an FCC-imposed fine, saying it was "arbitrary and capricious". Fox cited a previous case in which a federal court slapped down the FCC for fining a show for swearing, saying it was "arbitrary and capricious".

All that plus if a court rules the FCC's recent decision is "arbitrary and capricious", that will be used as a precedent to require universities to regulate content on their networks in favor of big copyright holders, as elements in Congress have been trying to do for about a year now.

I think net neutrality advocates underestimate Kevin Martin at their (and our) peril.

-jsq

Boehner's Latest Crying Jag

Boo hoo:

At least one lawmaker is already crying foul over Friday's expected Federal Communications Commission's censure of Comcast for faking internet traffic to limit its customers' peer-to-peer file sharing.

Republican minority leader Rep. John Boehner said the FCC would be "essentially regulating the internet."

— Lawmaker Cries Foul Ahead of FCC Net-Neutrality Decision, By David Kravets, ThreatLevel, July 31, 2008 | 7:02:45 PM

This is rather like crying foul because courts regulate contracts. I wonder how the free market would operate without them? The Internet free market in applications and services wouldn't operate very well without net neutrality.

I don't recall Boehner crying foul when Congress voted to regulate the Internet to require ISPs to hand over every bit (every email, phone call, web page, video, etc.) to the NSA and to legalize them having already done it when it was illegal. No free market talk from him then. Guess he didn't think the Fourth Amendment was worth crying over, unlike Anna Nicole Smith.

And back in 1995, it was the duopoly ISPs demanding regulation from the FCC, because they wanted to squelch VoIP.

Now they want to squelch everybody else's P2P and especially online video, except what they get a cut of. They think they can get away with it if the FCC stays out of the way, so now they are against regulation.

Their principles flip-flop kind of like Boehner's, don't they? Bunch of cry babies.

-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;

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

Sensing History: Yoo Re Cherry

Dave Farber posted a response by Chris Yoo to Barb Cherry's post about myths and historical errors. Here's Chris's reponse in full. To me, it seems that he is conceding that she's right about the history, that antitrust says nothing about ISP competition, and that a few ISPs control most of the Internet in the U.S. But read it for yourself:

From: Christopher S. Yoo [mailto:[email protected]]

I don't pretend to be an expert on the history of common carriage regulation. Barbara has spent far more time thinking about this than I have, so I always appreciate hearing her reactions and learn from reading her work. That said, here are a few thoughts.

It is true that common carriage long predates both the Granger Movement and the Interstate Commerce Act of 1887. That said, one of the central problems is that the historic justifications for common carriage have not aged very well. Often times the common carriage obligations were regarded as a quid pro quo for a government grant of some economic privilege. Other times they were justified because the industry was "affected with a public interest," a concept that is usually traced to the landmark Supreme Court case Munn v. Illinois (1876). The Supreme Court struggled to imbue that standard with content (along with a number of early treatises trying to make sense of the concept) and would ultimately abandon it as analytically empty in Nebbia v. New York (1934). Legal scholars, such as Thomas Nachbar and James Speta in addition to Barbara, have attempted to recover lessons from this era. I have never spoken to Barbara about this in particular, but both Tom and Jim have noted the difficulty in extracting any useful lessons from the history.

The rest after the jump.

Myths and Historical Errors: Cherry Re Yoo

Dr. Barbara Cherry sent me a response to Dr. Chris Yoo's "novel" opinion of her antitrust theory. Dave Farber posted Barb's comments on his Interesting People list, although without her postscript with the pointer to her articles and book. Farber appended a response from Chris, which I'll post separately.

From: "Cherry, Barbara" <cherryb at indiana.edu>
Date: Fri, 9 May 2008 18:28:04 -0400
Subject: Re: Prof. Yoo responds for Prof. Farber

John,

Christopher Yoo's response unfortunately contains several historical analytical errors that I've repeatedly discussed in my writings. It is unlikely that he actually read my TPRC paper to which you provided a link in our blog, as he would have readily discovered some of them.

Perhaps the fundamental problem is that many economists and legal scholars commenting on the network neutrality debate DO NOT understand the history of common carriage. Under the common law, common carriage obligations were TORT obligations imposed on carriers (in their relationship with customers) simply by virtue of their status of engaging in the business. In other words, the obligations are STATUS-BASED and unrelated to the industry's market structure. Attributing the imposition of common carriage obligations to natural monopoly is a MYTH, unfortunately so often erroneously repeated in the secondary literature that it is believed to be true.

The rest after the jump.

Social Welfare: Reed Asks Yoo

David P. Reed asks a question and Christopher S. Yoo responds on Farber's Interesting People list. I'm posting both in full here, with my thoughts at the end; basically, law isn't a science, and anecdotes can turn into legal cases; some have already regarding net neutrality.

From: David P. Reed [[email protected]]
Sent: Saturday, May 10, 2008 11:50 AM
To: David Farber
Cc: ip
Subject: Re: [IP] re-distribution of op-ed on Net Neutrality -- a reaction and a reply from one of the authors

I read through the long comment by Chris Yoo below, and as a non-lawyer interested in policy, I ask the following simple question:

Is there a well-regarded (one might ask for scientifically reasoned) argument that antitrust law as currently interpreted and practiced has a substantial impact measured in some currency like $ on social welfare?

Otherwise this entire argument is about nothing more than vaporware proceeding from a faith that competition (however loosely defined) creates social welfare best. AFAIK, this is largely an article of faith, just as the "End of History" was a grand article of faith posited by many of the same people as "truth".

It is just not fair to imply that the core of "today's settled antitrust law" carries even the level of weight as Darwin's Theory of Evolution. There have been no replicable studies of its practice.

Law professors and lawyers who don't challenge its truthiness squarely are merely behaving as dogmatic mandarins always do - asserting authority of professional status, rather than rigor of reasoning, experiment, or argument.

I say this not as FOX News or Hillary Clinton would call an elitist, but as a person who genuinely is unconvinced by magical faith in authorities.

That's Reed's question. Yoo's response, and my thoughts, after the jump.

Novel Point of View: Dr. Chris Yoo's Opinion of Dr. Barbara Cherry's Antitrust Opinion

I previously posted a pointer to Barbara Cherry's examination of antitrust history in response to Dave Farber's posting of an op-ed against net neutrality. Dave responds:

( INDEED I AM NOT A LAWYER AND SO I ASKED PROF. YOO, ON THE FACULTY OF PENN LAW AND ONE OF THE AUTHORS OF THE EDITORIAL, TO REPLY TO THIS NOT -- IN PARTICULAR PROF. CHERRY'S COMMENTS. DAVE FARBER)

— re-distribution of op-ed on Net Neutrality -- a reaction and a reply from one of the authors, David Farber, Interesting People, Fri, 9 May 2008 15:23:10 -0400

Here's Prof. Yoo's response:

From: "Christopher S. Yoo" <[email protected]>
Date: May 9, 2008 2:51:40 PM EDT
To: "David Farber" <[email protected]>
Cc: "Faulhaber, Gerald" <[email protected]>

Dave Farber forwarded me a recent e-mail asking for a lawyer's reaction to Barbara Cherry's recent presentation and paper questioning whether antitrust law can protect against the harms envisioned by network neutrality proponents. As the only lawyer among the co-authors of the op-ed that Dave, Michael Katz, Gerry Faulhaber, and I worked up for the Washington Post, I am happy to offer a few thoughts. (Those interested in a different take on the relationship between network neutrality and antitrust law may want to look here: http://ssrn.com/abstract=992837.)

Barbara's work is based on a theory advanced by Neil Averitt and Robert Lande that would place consumer choice at the center of antitrust policy. As Averitt and Lande explicitly recognize, their theory would represent a fairly significant break (they would call it a paradigm shift) away from current antitrust law, which focuses on maximizing economic (and particularly consumer) welfare.

Interestingly, antitrust law once was quite friendly toward the consumer choice perspective that Barbara favors. (I review these developments in vol. 94 of the Georgetown Law Journal at pages 1885-87, http://ssrn.com/abstract=825669.) Early cases like FTC v. Brown Shoe (1966) and Times-Picayune Publishing v. United States (1953) invalidated exclusive dealing and tying contracts (which are among the types of antitrust practices most similar to network nonneutrality) because they infringed on unfettered consumer choice.

The rest of Dr. Yoo's response after the jump, and my response in a following post.

Anti-Trust Still Not Appropriate for Net Neutrality

I admire Dave Farber; he's done a lot for computing and the Internet. But sometimes I can't agree with him:

Antitrust law generally takes a case-by-case approach under which private parties or public agencies can challenge business practices and the courts require proof of harm to competition before declaring a practice illegal. This is a sound approach that has served our economy well.

— Hold Off On Net Neutrality, By David Farber and Michael Katz, Interesting People, Friday, January 19, 2007; A19,

In an op-ed he's recently reposted on his Interesting People list, he's recommending antitrust instead of legislation to deal with net neutrality. So far as I know, Farber is no lawyer. In this case, I tend to go more by lawyers who have actually studied the problem, for example Prof. Barbara Cherry, who used to work for the FCC and has examined the history of common, statutory and administrative law in the U.S., as well as the way Internet provision has been wrenched out of one legal regime into another by the FCC, and how the FCC has also stripped broadband of its common carriage status. Those who say that we shouldn't regulate because we don't know what will happen and anti-trust will catch problems if they occur are not taking into account that anti-trust doesn't automatically apply to or address problems in the new legal regime into which broadband has been thrust.

-jsq

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:

Panopticon Click: NYTimes and Wapo Catch on to Packet Privacy

When both the New York Times and the Washington Post catch on, the idea of online privacy protection from ISPs must be catching on:

It’s not paranoia: they really are spying on you.

— The Already Big Thing on the Internet: Spying on Users, By ADAM COHEN, New York Times, Published: April 5, 2008

Some specifics:

The online behavior of a small but growing number of computer users in the United States is monitored by their Internet service providers, who have access to every click and keystroke that comes down the line.

— Every Click You Make: Internet Providers Quietly Test Expanded Tracking of Web Use to Target Advertising By Peter Whoriskey, Washington Post Staff Writer, Friday, April 4, 2008; Page D01

Some say privacy is only distant nostalgia; I say we need to do something about it. We need packet privacy.

Laissez faire won't get 'er done. As Cohen writes:

Novelty Used Against Net Neutrality by Duopoly

A musician warns us about novelty being used to subvert participation, and comes up with a clever analogy:

We hate when things are taken from us (so we rage at censorship), but we also love to get new things. And the providers are chomping at the bit to offer them to us: new high-bandwidth treats like superfast high-definition video and quick movie downloads. They can make it sound great: newer, bigger, faster, better! But the new fast lanes they propose will be theirs to control and exploit and sell access to, without the level playing field that common carriage built into today’s network.

They won’t be blocking anything per se — we’ll never know what we’re not getting — they’ll just be leapfrogging today’s technology with a new, higher-bandwidth network where they get to be the gatekeepers and toll collectors. The superlative new video on offer will be available from (surprise, surprise) them, or companies who’ve paid them for the privilege of access to their customers. If this model sounds familiar, that’s because it is. It’s how cable TV operates.

— Beware the New New Thing, By DAMIAN KULASH Jr., Op-Ed Contributor, New York Times, Published: April 5, 2008

Yep, and the cablecos and telcos have not been shy about saying that's what they want to do.

Here's the new analogy:

Five of Thousands: Requests FISA Court Rejected

This is what the supporters of retroactive immunity think wasn't sufficient: EPIC compiled a table of FISA Court cases. From 1979 through 2006, FISC heard thousands of cases and rejected only 5.

Retroactive immunity isn't about protecting telcos: it's about hoovering up everything, and it's about a completely unconstrained "unitary executive".

-jsq

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

Subpoena for Comcast from NY State

As I've been predicting since October:

“We have requested information from the company via subpoena,” Jeffrey Lerner, a spokesman for Attorney General Andrew Cuomo, said Tuesday.

Comcast said it was co-operating with the AG's office.

— New York subpoenas Comcast on traffic shaping, Associated Press, February 26, 2008 at 4:08 PM EST

So far it's just a subpoena. We'll see if it turns into a full-fledged lawsuit. And maybe Comcast could start cooperating with its own customers....

-jsq

PS: Why did the New York Times pick up this story only a day after the Canadian Globe and Mail?

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

Joel Johnson on Filtering on AT&T Online Show

The editor of BoingBoing Gadgets goes on an AT&T-sponsored online-only video show and asks about AT&T's announcement that it will filter all Internet traffic. Getting no straight answers from the host, he asks the audience:

"Do you guys want AT&T to read your emails?"

"No!"

Do you want AT&T to like open up your instant message conversation to see if you said something they didn't like or maybe the government didn't like?"

"No!"

— Talking About AT&T's Internet Filtering on AT&T's The Hugh Thompson Show BoingBoing Gadgets, Posted by Joel Johnson, January 21, 2008 5:23 AM

Johnson noticed that the crew of the show was not happy:

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?

Legislation Proposed for Net Neutrality

Defining net neutrality is simple:

If I pay to connect to the Net with a certain quality of service, and you pay to connect with that or greater quality of service, then we can communicate at that level.

— When I invented the Web, I didn't have to ask anyone's permission. Tim Berners-Lee

Implementing it is difficult, whether technically (stifling, throttling, blocking, proxying, etc.), legally (spam, phishing, other abuse, fraud, theft, etc.). And politically perhaps even harder. Witness the network neutrality legislation proposed by Senators Dorgan and Snowe:

`SEC. 12. INTERNET NEUTRALITY .

`(a) Duty of Broadband Service Providers- With respect to any broadband service offered to the public, each broadband service provider shall--

`(1) not block, interfere with, discriminate against, impair, or degrade the ability of any person to use a broadband service to access, use, send, post, receive, or offer any lawful content, application, or service made available via the Internet;'

— Internet Freedom Preservation Act (Introduced in Senate), S 215 IS, 110th CONGRESS, 1st Session, S. 215, To amend the Communications Act of 1934 to ensure net neutrality . Mr. DORGAN (for himself, Ms. SNOWE, Mr. KERRY, Mrs. BOXER, Mr. HARKIN, Mr. LEAHY, Mrs. CLINTON, Mr. OBAMA, and Mr. WYDEN) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation, January 9, 2007

OK, that's basically TBL's definition. But what about devices (think Carterfone)?

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:

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:

Cuomo to Verizon: False Advertising of Unlimited Access; Pay Up

Recently I noted that Comcast sometimes disconnects users, and:

Such activity apparently includes moving large files, which is ironic for users who have paid for unlimited access. Perhaps more than ironic; I wonder if anybody has tried suing yet.

Well, I don't know about Comcast, but somebody has tried suing Verizon, and won:

Attorney General Andrew M. Cuomo today announced that Verizon Wireless has agreed to halt the deceptive marketing of its internet usage plans and reimburse $1 million to customers for wrongful account termination nationwide.

The settlement follows a nine-month investigation into the marketing of NationalAccess and BroadbandAccess plans for wireless access to the internet for laptop computer users. Attorney General’s investigation found that Verizon Wireless prominently marketed these plans as “’Unlimited,” without disclosing that common usages such as downloading movies or playing games online were prohibited. The company also cut off heavy internet users for exceeding an undisclosed cap of usage per month. As a result, customers misled by the company’s claims, enrolled in its Unlimited plans, only to have their accounts abruptly terminated for excessive use, leaving them without internet services and unable to obtain refunds.

— VERIZON WIRELESS AGREES TO SETTLE DECEPTIVE MARKETING INVESTIGATION, “UNLIMITED” INTERNET PLANS WERE ACTUALLY LIMITED, COMPANY AGREES TO CHANGE PRACTICES AND REIMBURSE CUSTOMERS, Press Release, Office of the New York State Attorney General, 23 October 2007

And Cuomo goes out of his way to say he wants this to affect not just Verizon:

“This settlement sends a message to companies large and small answering the growing consumer demand for wireless services. When consumers are promised an ‘unlimited’ service, they do not expect the promise to be broken by hidden limitations,” said Attorney General Andrew Cuomo. “Consumers must be treated fairly and honestly. Delivering a product is simply not enough – the promises must be delivered as well.”

Hear that, Comcast?

-jsq

Revive OTA?

Just last week I was talking to somebody who used to work for the Office for Technology Assessment, which was a bipartisan Congressional research group that brought in various outside experts to help out. She recognized me from various times I showed up.

Serendipitously, Susan Crawford says "OTA: You Are Missed".

Nearly a decade ago, Congress closed its Office of Technology Assessment. The president of the Federation of American Scientists, a former OTA employee, called the closing the “equivalent of a self-inflicted lobotomy.” Between 1974 and 1995 OTA produced 750 thorough reports about a wealth of scientific and technical studies.

Since then, the Congressional Research Service (thanks, CDT!) has been providing Congress with quick summaries of issues, but CRS doesn't have the deep technical expertise that OTA did, or the resources to do sustained studies. The National Academies have the time and the resources, but they take too long and they have too many constituents to serve.

In re-writing the Telecom Act and jumping into having the FCC regulate the internet, it would be good to have a neutral, expert, bipartisan group advising Congress about the consequences of their actions.

For example, such a group might have told Congress that current antitrust law isn't well positioned to deal with problems of lack of competition since broadband was wrenched from one legal regime into another.

-jsq

FCC, Telcos, Congress, and FISA

The FCC won't investigate possible illegal telco activities:

The head of the U.S. Federal Communications Commission declined to investigate reports that phone companies turned over customer records to the National Security Agency, citing national security concerns, according to documents released on Friday.

FCC Chairman Kevin Martin turned down a congressional request for an investigation as a top intelligence official concluded it would "pose an unnecessary risk of damage to the national security," according to a letter National Intelligence Director Michael McConnell sent to Martin on Tuesday.

— FCC won't probe disclosure of phone records, By Reuters, October 6, 2007, 4:00 PM PDT

It seems unlikely the FCC will investigate active wiretapping, either. National security: the root password to the Constitution.

But Congress won't let the telcos off the hook, well, not completely:

House Democrats have refused to submit to Bush administration requests to save telecommunications companies that assisted in a warrantless wiretapping scheme from lawsuits or prosecution, and they want to require judicial approval for future efforts to spy on Americans.

...

Under the new law, the Attorney General or Director of National Intelligence would be authorized to receive blanket warrants to eavesdrop on several foreign intelligence targets who could call into the United States, but the bill would restore FISA court reviews of targeting procedures and steps taken to "minimize" Americans' exposure to surveillance. If an American is to become the "target" of surveillance, intelligence agencies would be required to seek an individualized warrant from the FISA court.

— Proposed FISA update would not give telecom companies legal protection, by Nick Juliano, RawStory, Tuesday October 9, 2007

The Foreign Intelligence Surveillance Court already is so secretive that although its court rules say it has a seal, there's no image of it available anywhere on the web that I could find, and it already lets intelligence agencies apply within a few days for retroactive authorization for wiretaps.

Of course, this bill would have to pass the Senate and get signed by the president or get enough votes to override a veto. But at least the former law didn't retroactively immunize the telcos, and this bill doesn't, either.

-jsq

Net Neutrality Won't be Fixed by Anti-Trust: B. Cherry

At TPRC Sunday, Barbara Cherry walked through the evolution of bodies of law in the U.S., and made some fascinating observations, including:

• Net neutrality is a manifestation of moving from a Title II industry-specific business legal regime under the Communications Act of 1934 to a Title II-based regime and greater reliance on a general business regime of antitrust and consumer protection laws, as the FCC did in August 2005 for wireline broadband access service to the Internet and in 2002 for cable modem access service.
• Simply mMoving among traditional and deregulatory legal regimes for transportation carriers does did not strip common carriage status; it merely changesd the legal overlay that enforcesd it.
• FCC stripping broadband of common carriage was a radical departure: nothing classified as common carrier has ever been declassified before.
• Anti-trust doesn't automatically cover problems from previously addressed in the Title II industry-specific regime when a business is moved to the Title II general business regime. Anti-trust needs modification to do this.
• Liability is also different between regimes. Without tariffs some legal protections for limited liability constraints are gone, and common carriers are now potentially fully liable for damages. The final filed rate doctrine should have no applicability to a detariffed world.

The above is, I think, a reasonably close paraphrase of some of her points.

I infer from this that the economists and politicians and telco and cableco executives who say that we shouldn't regulate because we don't know what will happen and anti-trust will catch problems if they occur are not taking into account that anti-trust doesn't automatically apply to or address problems in the new legal regime into which broadband has been thrust.

In other words, people see things in the context of what they know, and economists don't usually know about legal evolution.

Telco and cableco executives, on the other hand, may well have business and political reasons for claiming there's no need for regulation, whether or not they know that existing anti-trust law is inadequate. doesn't apply.

You can't have markets without some form of property rights of contract law. There is also basic legal infrastructure you need for communication infrastructure.

I see little or no understanding of these points in FCC, FTC, or Congress.

Prof. Cherry's whole paper is well worth reading: Consumer Sovereignty: Redrawing the Boundaries Between Industry-Specific and General Business Legal Regimes for Telecommunications and Broadband Access Services, by Barbara A. Cherry, TPRC, 30 Sep 2007

-jsq

PS: Markup for increased accuracy kindly supplied by Prof. Cherry.

The Amazon Channel

It's all very well to talk about net neutrality or Internet freedom and how it affects 700Mhz spectrum sales or freedom of the press. But what does all this have to do with the average Internet user?

Suppose the telcos and cablecos get everything they want.

To buy a BBQ grill on eBay, you'll have to pay for the eBay channel. This is above whatever you pay the seller for the grill or eBay for your membership. You'll have to pay your local Internet access company just to let you get to eBay to participate in the auction. Oh, maybe you'll be able to get there anyway, but your access may be so slow that you'll pay for the eBay channel out of frustration.

If you want to buy a book from Amazon, you'll have to pay for the Amazon channel. For search you'll need the Yahoo channel or the ask.com channel or the google channel. Assuming your favorite search engine is even offered as a channel. Many smaller services probably won't be.

Maybe it won't be quite this bad.

Malamud Court Gadfly

Carl Malamud is at it again. After getting patents and SEC filings and Congressional subcommittee hearings available online, now he's going for court case law.

Last week, Mr. Malamud began using advanced computer scanning technology to copy decisions, which have been available only in law libraries or via subscription from the Thomson West unit of the Canadian publishing conglomerate Thomson, and LexisNexis, a division of Reed Elsevier, based in London.

The two companies control the bulk of the nearly $5 billion legal publishing market. (A third, but niche, player is the Commerce Clearing House division of Wolters Kluwer).

He has placed the first batch of 1,000 pages of court decisions from the 1880s online at the public.resource.org site. He obtained the documents from a used Thomson microfiche, he said.

— A Quest to Get More Court Rulings Online, and Free, By JOHN MARKOFF, New York Times, Published: August 20, 2007

Markoff refers to Malamud as a gadfly. Hey, Socrates was a gadfly, too. Not bad company.

Now what happens if the Internet first mile access duopoly decides to give Thomson and LexisNexis and Wolters Kluwer high-speed high-quality transit and deprioritizes the Internet Archive?

-jsq

Russian Roulette

FCC Commissioner Michael Copps has a way with words. Last year he said we should be talking about Internet freedom rather than net neutrality. And now he says we're

playing Russian roulette with broadband and Internet and more traditional media

— FCC Commissioner: US playing "Russian roulette with broadband and Internet" By Nate Anderson, ars technica, August 03, 2007 - 09:20AM CT

And the Russians are winning.

The Internet As a Market: Al Gore and Reasoned Discourse

So I've been wondering what to say about Al Gore's book, The Assault on Reason. A story in The Economist helped me out. After lauding Gore for calling Mr. Bush's risky schemes well before most people, for denouncing the invasion of Iraq back in 2002, for his Oscar, and for being "the man who changed the climate of opinion climate change", it then ridicules the book's core thesis:

But he does not stop there. He worries about America's money-saturated politics. He lambasts television for infantilising the electorate.

...

He sometimes comes across as eccentric—as when he lambasts television for killing public discourse, then celebrates the internet as its potential saviour. A few minutes online, reading the zealots on either the right or the left, should have been enough to explode that illusion.

— Gore in the balance, From The Economist print edition, May 31st 2007

That last would appear to be the sort of trivialized, perhaps even infantilized, reaction Gore is lamenting. The big advantage of the Internet is you get not just a few zealots at extreme ends of an arbitrary spectrum: you get all the shadings and colors and depth you can absorb. And you can weave your own strands in this home-made tapestry.

Russian Music Contracts

Fergie notes that a Russian court ruled for contract over copyright:

After the IFPI [International Federation of the Phonographic Industry] pressured credit card companies not to process payments to AllOfMP3.com, the company sued in a Russian court, claiming that its credit card processing contract had been broken illegally. Now, despite the fact that AllOfMP3 is no more, the company behind the service has apparently won a judgment against Visa's Russian agent.

According to CNews, a Russian technology site, the backers of AllOfMP3 have just won their case against Rosbank, the Russian company that does much of Visa's processing in that country. The court ruled that Visa can only break its contracts with merchants are when they are found guilty of breaking the law; breaking those contracts after talking to business groups like the IFPI was ruled illegal.

The ruling means that Visa may be forced to start processing payments to sites like AllTunes.com and MP3sparks, the AllOfMP3 replacement site, and Visa apparently does not plan to appeal.

— Russian court rules that Visa must process payments for Allofmp3.com, By Nate Anderson, ars technica, Published: July 16, 2007 - 01:59PM CT

Will this last?

Dead Air

Today is the Day of Silence for Internet Radio:

If you’re accustomed to listening to streaming Internet radio or streaming music services such as Pandora, you may be surprised to discover that when you tune into your favorite streams today you’re greeted with silence. Many Internet broadcasters—including Yahoo!, Rhapsody, Live365 stations, MTV Online, AccuRadio, and KCRW (a popular public radio station in Santa Monica, CA)—have gone silent today in a Day of Silence protest over a change in the way they’ll be charged for their services. This change, which will levy fees based on the number of listeners tuned into a particular song rather than on a percent of the broadcaster’s revenue (as was the model in the past), will likely put most Internet broadcasters out of business.

— Day of Silence, By Christopher Breen, Playlist, 26 June 2007

It's sad that the music industry as we previously knew it is dying, but nuking Internet distribution of music isn't going to solve that problem, which the record industry largely brought on itself.

Communications Monopoly

Here's what happens when you have a communications monopoly:

The Defense Department isn't trying to "muzzle" troops by banning YouTube and MySpace on their networks, a top military information technology officer tells DANGER ROOM. Rear Admiral Elizabeth Hight, Deputy Commander of Joint Task Force-Global Network Operations, says that the decision to block access to social networking, video-sharing, and other "recreational" sites is purely at attempt to "preserve military bandwidth for operational missions."

Computer_center_400x Not that the 11 blocked sites are clogging networks all that much today, she adds. But YouTube, MySpace, and the like "could present a potential problem," at some point in the future. So the military wanted to "get ahead of the problem before it became a problem."

— Military Defends MySpace Ban (Updated Yet Again), Noah Schachtman, DangerRoom, 18 May 2007

How much bandwidth is it using? We don't know; the Admiral won't say.

Now if the U.S. military's real reason is to keep the troops from posting information that could get some of them killed, I could understand that. But if so, why are they trotting out this lame excuse? And for that matter, why is the U.S. commander in Iraq saying military blogs are providing good accurate descriptions of the situation on the ground?

Student Loan Regulatorium

This is a kind of thing that can happen when the regulators aren't really interested in regulating:

When Jon Oberg, a Department of Education researcher, warned in 2003 that student lending companies were improperly collecting hundreds of millions in federal subsidies and suggested how to correct the problem, his supervisor told him to work on something else.

Jon Oberg, a former Department of Education researcher, warned that student loan companies were abusing a subsidy program and collecting millions in federal payments to which they were not entitled.

The department “does not have an intramural program of research on postsecondary education finance,” the supervisor, Grover Whitehurst, a political appointee, wrote in a November 2003 e-mail message to Mr. Oberg, a civil servant who was soon to retire. “In the 18 months you have remaining, I will expect your time and talents to be directed primarily to our business of conceptualizing, competing and monitoring research grants.”

For three more years, the vast overpayments continued.

— Whistle-Blower on Student Aid Is Vindicated, By Sam Dillon, The New York Times, May 7, 2007

It wasn't so much turning a blind eye, as claiming there was no eye.

Could this happen in the U.S. telecom/ISP regulatorium?

-jsq

Content-Delivery Supply-Chain Usefulness

Susan Crawford hits the broadband nail on the head:

What content-delivery supply-chain usefulness is broadband providing?

—For, by Susan Crawford, Susan Crawford blog, 9 May 2007

That's the question you get if you're in a corporate strategy meeting trying to decide where this broadband thing fits in with your core competences. That plus they'll be thinking purely in terms of broadband, because that's their product, not the Internet. There's nothing wrong with that, except when there are only a couple of first-mile ISPs deciding the answer for all their users. And the answer in such cases tends to be "video on demand" or "IPTV" or "our search engine". Corporations are designed to maximize their own profits, not to think in terms of a supply chain that delivers participation, innovation, and prosperity for the general welfare.

Has YOUR Free Speech Been Infringed?

As the law firm for an English soccer league puts it in a letter about their lawsuit against google:

"HAS YOUR COPYRIGHT BEEN INFRINGED BY YOUTUBE?"

— YouTube class action lawsuit: Has YOUR copyright been infringed?, by Donna Bogatin, Digital Markets, zdnet blogs, May 5th, 2007

Well, I write books, so I should be concerned about copyright.

What else do they say?

The Defendants (Google, YouTube) have willfully violated the intellectual property rights that were created and made valuable by the investment – sometimes the life-long investment – of creativity, time, talent, energy, and resources of content producers other than the Defendants. The complaint asserts several legal claims against the Defendants, including direct copyright infringement, contributory copyright infringement, and vicarious copyright infringement.

Well, who could argue with that?

The Other Regulatorium

I may have mentioned that the telcos and cablecos seem to like to game legal and regulatory systems in their favor. There's another group of companies doing the same thing:

If there was ever an example of why the DMCA needs to die, this is it. The idea that a sixteen-digit number is illegal to possess, to discuss in class, or to post on a news site is offensive to a country where free speech is the first order of the Constitution. The MPAA and RIAA are conspiring to unmake America, to turn this into a country where free expression, due process, and the rule of law take a back-seat to a perpetual set of governmental handouts intended to guarantee the long-term profitability of a small handful of corrupt companies.

—EFF explains the law on AACS keys, Cory Doctorow, boingboing, Wednesday, May 2, 2007

Why would the activities of the Motion Picture Association of America and the Recording Industry Association of America be worth such a polemic by Cory, who after all lives partly by copyright in his hat as a science fiction writer?

Home for Cryptome

I wasn't going to comment on the disconnection of Cryptome by Verio, because I'm not sure I'm in favor of everything Cryptome does. However, the timing of the shutdown just after Cryptome published information on Coast Guard not meeting TEMPEST security standards got my attention. But what really prompted me was this text of a letter from Justin Aldridge of Verio to John Young of Cryptome:

Please refer to our Acceptable Use Policy. Unfortunately, at the technical support level, we cannot provide you with any further information about the termination.

— Cryptome Shutdown by Verio, Cryptome, May 2007

Ok, surely that's just tech support refering to legal.

Early Termination Fees?

Does your cable Internet provider charge an early termination fee?

Several providers -- including cable giant Comcast -- assured us that they did not impose early termination fees, which we reported as part of our blog item.

So imagine our surprise when someone sent us a copy of a recent Comcast memo to a county official in Virginia about a looming rate increase, which, way down at the end, in a footnote, contained the following:

"Two year term agreement required. $150 early termination fee applies if any service is cancelled or downgraded during the 2 year period."

Now That You Mention It, We Do Charge Early Termination Penalties... by Bob, hearusnow.org, at 04/18/07 01:15 PM

How could that be?

Copa, Pew, and Parents

The 1998 Child Online Protection Act (COPA) has bounced back and forth between lower courts and the Supreme Court ever since it was passed, until a permanent injunction was ruled by Judge Lowell Reed of the U.S. District Court for Pennsylvania in Philadelphia on 22 March. This case had already been through the Supreme Court, in 2004:

The big split in the most recent Supreme Court COPA decision is between Kennedy and Breyer, with Kennedy saying that there are plenty of choices of relatively-effective (and certainly less-restrictive) filtering tools out there for parents to use, and Breyer essentially saying that parents are helpless so mandated shields of various kinds should be put in place to protect kids. It turns out that, in fact, parents are knowledgeable and are giving advice to their children about what to do online.

— Pew on teenage online social networking practices, by Susan Crawford, Susan Crawford blog, Thu 19 Apr 2007 06:43 PM EDT

It turns out because the Pew Internet and American Life Project did a study on Teens, Privacy, & Online Social Networks, in which they asked things like whether teens hold back information from their online profiles and how much their parents know about what they're doing. That, plus what Judge Reed had already determined, which is that there are pretty effective software screening products available that parents can use if they want to.

Yes, even children benefit from open participation through the Internet. Perhaps parents could learn from their children, too.

-jsq