Category Archives: Law

Revive OTA?

OTA_seal.png 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.

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FCC, Telcos, Congress, and FISA

court_rules.gif 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.

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

CherryTPRC2007p13.gif 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

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

The Amazon Channel

packages.gif 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. Continue reading →

Malamud Court Gadfly

gadfly.jpg 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?

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Russian Roulette

michael_copps.jpg 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. Continue reading →

The Internet As a Market: Al Gore and Reasoned Discourse

al-gore.jpg 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. Continue reading →

Russian Music Contracts

russian_music_instruments.jpg 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? Continue reading →

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. Continue reading →

Communications Monopoly

Adm. Elizabeth A. Hight 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? Continue reading →