51 posts categorized "Net Neutrality"

FCC authority, the big net neutrality ruling, and the common law

I haven't had the time to read this week's court ruling, nor the dissenting opinion, about the FCC's net neutrality rules.

I've only had the time to scan headlines on my phone.

6a01156e3d83cb970c01a510f07284970c-580wiVerizon, which brought the case challenging the rules, won the day but seems to be saying publicly they may have lost the larger battle.

The FCC reportedly doesn't yet know if it will appeal to the Supreme Court, but maybe rather likes the idea that the court appears to have found the agency has express authority to regulate the internet and the internet of things.

I was struck by this expression of the FCC Chair, in a blog post about the courts ruling, on the merits and genius of the common-law:

"How jurisdiction is exercised is an important matter. My strong preference is to do it in a common law fashion, taking account of and learning from the particular facts that have given rise to concern. The preference is based on a desire to avoid both Type I (false positives) and Type II (false negatives) errors. It is important not to prohibit or inhibit conduct that is efficiency producing and competition enhancing. It also is important not to permit conduct that reduces efficiency, competition, and utility, including the values that go beyond the material."

It reminds me of something I only just read at the end of Edmund Morris' magnificent volume covering Theodore Roosevelt's presidency, Theodore Rex.

Morris states that Roosevelt wrote a special address to Congress, a parting discharge from a shotgun, that included an argument for the higher accountability associated with centralized executive power, as well as what Morris describes as "revolutionary" thinking about the role of judges in a kind of extended legislative process. Through the common law, judges update legislation and keep it better synched with societal needs and expectations.

I need to find and read that Roosevelt address.

Antipiracy workflow [REDACTED]

Something really interesting to watch: the movie and recording industry's compact with big ISPs to police peer to peer file sharing behavior and degrade or cut off service to suspected copyright infringers - all without involving the courts or any legal process - looks like it is about to launch.

The compact involves the Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA), member companies of those groups, and ISPs like AT&T, Verizon, Comcast and Time Warner.

Though we have previously flagged the extra-judicial nature of the content industry's policing system, we don't keep up with the story of the system's implementation. Ars Technica and TechDirt cover the topic regularly and well.

But one thing we do regularly on this blog - one of its raisons d'être - is publish or link to publicly available documents that say more than what news organizations pull from them.

The content industry's policing system will likely yield many such opportunities.

Case in point: the entity organized by the big media companies to administer the policing system - or at least the public communication aspects of it - commissioned a purportedly independent study to assess the efficacy and accuracy of the program.

Antipiracy workflow

That independent study, "Independent Expert Assessment of MarkMonitor AntiPiracy Methodologies" from Stroz Friedberg, LLC, is available online in a heavily redacted form. The illustration shown here is from the report, and one of only two illustrations in the report that were not redacted (there appear to have been seven others that have been removed).

Here's some copy from the report, as redacted, that gives you some sense of what's hidden:

"To identify infringing works, MarkMonitor personnel search for [potentially offending files] and add the results to a [database] that captures relevant metadata about each file, including its name, hash values, and size. This identified content is next reviewed manually or with automated fingerprinting technology to determine if it is an actual infringing copy of the protected work. Once the work has been reviewed, its status is updated in a [database] to indicate that it has been confirmed as an actual infringing work.

"Concurrently, identified infringing searches and torrents are deployed to [collection mechanisms]. The [collection mechanism] is a custom-built software application that runs on servers deployed in datacenters geographically spread [REDACTED]. MarkMonitor has designed the [collection mechanisms] to specifically target [REDACTED]. The [collection mechanisms] search for, download portions of, and create evidence packages or 'cases'of infringing works including (among other data points) IP address, port, time/date, size, PeerID, and hash values.

"[REDACTED] [S]cripts run to verify that the collected evidence is in fact a verified infringing work and meets all program requirements."

Even more absurdly, the report's recommendations for improving the policing system have all been redacted. See this partial screenshot of page 11 from the report.

Enhancement recommendations

To their credit, the RIAA, MPAA and ISPs have posted their compact online. Links to it and amendments that have been made available, just below. This looks like the makings of administrative law without the involvement of any elected government.

Analysis packaged like news

There's something deceptive about yesterday's Washington Post story, "Tech, telecom giants take sides as FCC proposes large public WiFi networks."

What's deceptive is a news-like lead-in, when the piece is actually a considered analysis of potential indirect consequences of FCC proposals that have been in play for months, or longer.

Here's the lead paragraph of the story by Cecelia Kang:

"The federal government wants to create super WiFi networks across the nation, so powerful and broad in reach that consumers could use them to make calls or surf the Internet without paying a cellphone bill every month."

Breathtaking lead. I read that yesterday and hopped over to fcc.gov, figuring there must be a release, study, proposal, some reference to a plan that, if implemented, would suddenly make moot so many local debates about municipalities offering free wi-fi.

Wifi signBut there's nothing on the FCC site to correspond to the point Kang's story drives.

Twenty-four hours later, it's clearer that the item is not news at all.

As currently presented on the Washington Post site, the story is accompanied by a video. If you click the video, a less misleading headline shows up:  "FCC offers path to free Internet access." Gone, here, is the implication that the federal government means to set up national wi-fi networks. Added, too, is fairer warning that the piece is analytic.

Photo: Lance Nishihira / Flickr.

Discriminatory data caps

It sure looks like Senator Ron Wyden of Oregon is gearing up to pursue a neutral internet agenda in the 113th Congress.

This month at CES (I wasn't there; I'm looking at prepared remarks), he gave a speech that concluded, "insurgents should be afforded the same opportunities in the marketplace as incumbents."

Data cap text messageThere are probably several fronts on which to pursue this agenda, but today I want to focus just a moment on one of them: bandwidth restrictions, or "data caps," imposed by ISPs.

At the tail end of the last Congress, Sen. Wyden introduced a bill, the Data Cap Integrity Act of 2012, which proposed that ISPs be required to submit their data cap policies to the FCC, and that the agency then "determine whether the data cap functions to reasonably limit network congestion in a manner that does not unnecessarily discourage use of the Internet."

That's a vague standard, "discourage use of the Internet," and the adverb, "unnecessarily," is potentially a huge loophole. But the intent of the bill is more apparent from this provision:

"DISCRIMINATION OF CONTENT.—A covered Internet service provider may not, for purposes of measuring data usage or otherwise, provide preferential treatment of data that is based on the source or the content of the data."

The executive of a big cable company that also owns a TV network, lamenting the balkanization of audiences and a freefall in advertising revenue, may well be thinking, "we'll just throttle back on bandwidth for everyone else's shows and privilege ours."

Wyden has his eye on that. He's going to need support because I can imagine the entertainment industrial complex, led by lobbyists like former Senator Chris Dodd, is surely going to resist.

Screenshot from Wayan Vota / Flickr.

Putting Municipal Fiber to Use

Interesting local election result, not yesterday but last week, in Longmont, Colorado.

The question was whether the City of Longmont ought to be free to put its existing fiber optic cable to use. The ballot measure read like this:

"Ballot Question 2A:

"Without increasing taxes, shall the citizens of the City of Longmont, Colorado, re-establish their City's right to provide all services restricted since 2005 by Title 29, article 27 of the Colorado Revised Statutes, described as 'advanced services,' 'telecommunications services' and 'cable television services,' including any new and improved high bandwidth services based on future technologies, utilizing community owned infrastructure including but not limited to the existing fiber optic network, either directly or indirectly with public or private sector partners, to potential subscribers that may include telecommunications service providers, residential or commercial users within the City and the service area of the City's electric utility enterprise?"

In spite of Comcast's opposition and ugly negative advertising, the measure won.

Weighing the lessons of the vote, Tony Kindelspire, the business editor for the Longmont Times-Call, wrote the following assessment:

"It takes leadership to stand up against big business lobbyists to act on behalf of what you think is right, not what's going to raise you the most amount of campaign cash the next time around. How very, very refreshing it was to see, and I hope it's a lesson that spreads far and wide."

Other articles about the vote and the money Comcast spent in hopes of defeating the measure: a post on muninetworks.org; an article by Emily Badger in Atlantic Cities. See also this piece in the Longmont Times-Call about the city's next steps.


Screenshot captured this morning suggests that the website for the lobbying group set up to oppose the Longmont ballot measure has been taken down.

Surveillance and Lockdown

@evgenymorozov has a piece in the NYTimes this morning in which he ties trends in domestic surveillance to the use of technology by repressive governments to track their populations.

Techdirt ran a story yesterday about Twitter taking down accounts for alleged infringement (the infringement taking the form of links to sites with other links).

I think nefarious surveillance and light-trigger takedowns may be two sides of the same coin. A coin in a virtually fascist currency!

"Fascism" is a strong word for corporate policy pursued with government authority.

No doubt there is a straightforward, libertarian layer to this general issue, one that is properly framed in terms of due process and constitutional and common law limitations on state power. Listen for example to this discussion about law enforcement using and blocking social media to monitor and police the organizing of flash mobs. Thankfully, this tension is transparent and publicly discussed.

The lockdown side of things, not so transparent. Not coincidently, locking things down, shutting speech off, is an increasingly corporate activity. The fascist dimension arises from legislators' obsequious compliance with corporate demands to legitimize corporate vigilantism (reference Senator Leahy's toadyism in in this regard). And from the executive branch's encouragement of industry collusion to extend Big Media's overdetermination of commercial culture.

I'm not calling corporate activity to suppress speech "censorship" because corporations are not the government. Well, in principle they're not the government. Honoring liberty requires a due respect for property. If society expects a private utility, like Twitter, to become a public forum, it may be better for that doctrine to develop over time by common law.

Or fight compromised private interest with enlightened philanthropy! I said earlier that the Gates Foundation should buy Twitter, open it back up, run it as a critical global utility serving the interests of medicine, science, democracy and education. Seriously, there could not be a better use of Bill and Melinda Gates's and Warren Buffett's wealth. Add Steve Jobs now to the list. Twitter in particular is just too important for its operations to be subordinated to the interests of advertising.

Screen shot 2011-09-02 at 9.17.36 AM

Pictured: detail of a screenshot from this morning of a search for @rapradar. Tweets reference that account, but the right column makes a dire existential pronouncement.

Two Broadband Americas

Apples and oranges, probably.

But I can't resist putting these two maps on the same page.

Screen shot 2011-08-02 at 9.55.29 PM
The green hued map is from Pando Networks, and it shows relative download rates, state by state. (Thanks to this post in GeekWire for surfacing the map.)

This purple hued US is from the Ford Foundation.

Screen shot 2011-08-02 at 9.57.30 PM

In this map, unlike the first, the darker shade is bad. The darker shade indicates states that "have erected legal barriers that make it difficult or impossible for communities to exercise [the] option" of publicly owned broadband networks. (Yellow dots mean citywide cable; orange, citywide fiber.)

See any correlations between download rates and the availability of publicly owned municipal broadband? I don’t.

Though it's endlessly fascinating, this central tension in the structure of the American experiment, between the common good and libertarian cowboy. (Only in the last few weeks has the "creative tension" seemed instead so thoroughly dysfunctional.)

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