Concerns that network owners will undermine free speech online are particularly misguided. Network owners have neither the technology nor the manpower to effectively filter online content based on the viewpoints being expressed, nor do profit-making businesses have any real incentive to do so. Should a network owner be foolish enough to attempt large-scale censorship of its customers, it would not only fail to suppress the disfavored speech, but the network would actually increase the visibility of the content as the effort at censorship attracted additional coverage of the material being censored.

I think that’s exactly right and, later in his paper (between pgs 22-3), Tim nicely elaborates about the “Herculean task” associated with any attempt by a broadband provider to “manipulate human communication.” Not only is it true, as Tim argues, that “no widescale manipulation would go unnoticed for very long,” but he is also correct in noting that the public and press backlash would be enormous.

Again, I agree wholeheartedly with all these sentiments, but I think Tim missed another important angle here when discussing the unfounded fears about corporate censorship and the misguided attempts to use free speech as a justification for imposing net neutrality regulations.

In his paper, Tim is essentially making an argument about the practicality of broadband providers acting as speech regulators — and he demolishes that assertion. But Tim fails to make an argument about the principle of the matter that is at stake here. Namely, some net neutrality supporters are attempting to convert the First Amendment into an affirmative grant of state power to regulate private entities, something it was clearly never intended to do.

Indeed, when Net neutrality supporters like the “Save the Internet Coalition” make statements like “Network neutrality is the Internet’s First Amendment,” I sometimes wonder if they are reading the same Constitution that I am. After all, the language of the First Amendment could not be more clear when it says, “Congress shall make no law…” It doesn’t contain any caveats or footnotes. And the First Amendment most certainly was not intended as a tool for government to control the editorial discretion of private individuals or institutions. It was about restricting the power of the government to curtail speech and expression.

Beginning in the 1960’s, however, a handful of liberal legal theories began concocting a new theory of the First Amendment that eventually came to be known as the “media access” school of thought. George Washington University law professor Jerome A. Barron’s 1967 Harvard Law Review article, “Access to the Press — a New First Amendment Right,” as well as the work of Yale University law professor Owen Fiss, gave rise to this new intellectual movement. Its goal, in essence, was to convert the First Amendment into a club to beat demands out of private media providers. Basically, these theorists wanted to expand “Fairness Doctrine”-like right-of-reply notions to newspapers, and simultaneously grant the government more leeway to use the First Amendment to alter media structures and outputs. As Fiss argued in a 1986 law review article, under the “media access” approach, a proper reading of the First Amendment requires “a change in our attitude about the state” such that we learn “to recognize the state not only as an enemy, but also as a friend of speech… [that should act] to enhance the quality of public debate.” (Iowa Law Review, Vol. 71, 1986, p. 1416).

Other left-leaning intellectuals and activists groups would come to integrate that logic into their work and public policy proposals. Now you know, for example, where the Media Access Project gets their name! But many other regulatory-minded groups — like Free Press, MoveOn.org, New America Foundation, and others — trace much of their intellectual heritage back to Barron, Fiss, and the other media access theorists. [Read my lengthy debunking of media access theory here.]

Here we see how the seeds of misguided intellectual thinking sometimes spring into wild gardens in which the weeds slowly take over everything in sight. This twisted conception of the First Amendment is so thoroughly ingrained in leftist media policy thinking today that even an abundant medium like the Internet is not exempt from potential regulations based on it. And that’s how we get to the point we are at today in the net neutrality regulatory debate, with many policymakers and activists groups painting private broadband operators as the supposed real Big Brother problem that the First Amendment must address.

Consider, for example, the comments Sen. Hillary Clinton made in 2006 regarding why she supports net neutrality regulation: “Each day on the Internet views are discussed and debated in an open forum without fear of censorship or reprisal.” As I noted at the time, when I read her statement I practically fell off my chair. It’s not just that Sen. Clinton is asking us to believe in some asinine conspiracy theory about how broadband companies are supposedly out to censor our thoughts or engage in reprisals. (”Reprisals”? For what?) No, what really blew my mind here was the fact that Sen. Clinton had the chutzpah to declare that the private sector was somehow the real threat to online speech. After all, as I inventoried in that old essay, Sen. Clinton has led several notable efforts over the past decade to expand government regulation of television, video games, and even the Internet.

And yet she and many other Net neutrality advocates insist that it is the private sector, not the government, that is the real threat to our free speech rights. Again, Tim Lee is correct to point out in his paper that, practically speaking, these advocates of Net neutrality regulation have little to fear in this regard. It is almost impossible to believe that any Internet operator could limit speech or expression in the ways these regulatory advocates fear. Unlike the government, which possesses the coercive power to completely foreclose all speech under threat of fine or imprisonment, the private sector lacks the ability to use force to bottle up speech or speakers. And even if private operators tried it, there would be hell for them to pay with the press, industry watchdogs, and their even subscribers. More importantly, there’s just no good business angle to censorship; they make more money by delivering more bits, not fewer. Finally, any attempt by one actor to stifle something becomes a prime incentive for another to offer it.  So, Tim is right on all those grounds.

But the principle of the matter is important, and we can’t let regulatory advocates get away with their effort convert the First Amendment into something it isn’t. As Jonathan Emord, author of the brilliant Freedom, Technology and the First Amendment, argued back in 1991, “In short, the [media] access advocates have transformed the marketplace of ideas from a laissez-faire model to a state-control model.” The real danger of this twisted conception of the First Amendment, he noted, is that, “It fundamentally shifts the marketplace of ideas from its private, unregulated, and interactive context to one within the compass of state control, making the marketplace ultimately responsible to government for determinations as to the choice of content expressed.”

That philosophy and regulatory approach is completely at odds with a proper understanding of the First Amendment, and yet that is exactly what many Net neutrality regulatory advocates are asking us to accept today.  The state — not the private sector — remains the true threat to our liberties. And, most horrifyingly of all, empowering the state to use the First Amendment to regulate private actors will almost certainly backfire and result in more, not less, regulation of speech online.

Top of the list? “Ensure the Internet is Widely Accessible & Network Neutral.”

The Internet is one of the most valuable technical resources in America. In order to continue the amazing growth and utility of the Internet, the CTO’s policies should:

Improve accessibility in remote and depressed areas.

Maintain a carrier and content neutral network.

Foster a competitive and entrepreneurial business environment.

I’ve got some news or you: These are policy proposals that would be beyond the purview of any CTO. Policy proposals go through Congress and the President, advised by his policy staff. They do not go through a CTO.

If the Baltimore Ravens asked the team physician to kick field goals, the results would be about what you’d get from asking a federal CTO to carry out these policies.

And, let’s take a look at the internal consistency of the the “themes” in this action item.

“Improve accessibility in remote and depressed areas.” This can mean lots of things, but most people are probably thinking of government subsidies like the Universal Service slush fund in the traditional telecom area – a bottomless well of waste and corruption. Maybe some folks supporting this mean for the government to clear out the regulatory underbrush and subsidies that hold back progress, but most probably do not.

“Maintain a carrier and content neutral network.” Network neutrality regulation – putting the Federal Communications Commission in the business of deciding how the Internet can be run.

“Foster a competitive and entrepreneurial business environment.”

Now, here’s some more news: You cannot have all three.

If you want to subsidize telecom, you are going to have to tax away the money from someone (or borrow, taxing everyone for an indefinite future). This degrades that sought-after entrepreneurial business environment. When you go to hand out your subsidies, the money will be sought out by the established players in Washington, not by the innovators and entrepreneurs. Those subsidies will undercut markets for new and improved products and services, further depressing the prospects for competition and entrepreneurship.

Public utility regulation of the Internet is what most people are talking about when they say “network neutrality” or “network neutrality regulation.” Here’s some more news: Public utilities are not competitive and entrepreneurial. Tim Lee has discussed the parallels between public utility regulation of transportation and proposed regulation of the Internet in his paper, The Durable Internet: Maintaining Network Neutrality Without Regulation. Takeaway: not entrepreneurial. The “Widely Accessible & Network Neutral” Internet item is not doable by a CTO. Nor is it advisable in many respects.

The second item on people wish list for a CTO: “Ensure our Privacy and Repeal the Patriot Act.”

Once again, a federal CTO could not repeal the Patriot Act. It is a law that was passed by Congress. And the project of ensuring everyone’s privacy? You might as well ask the CTO to ensure everyone’s happiness. Privacy has as many dimensions. (Yes, government intrusions into privacy must be stopped, but the greatest threat to your privacy is yourself. Please exercise some personal responsibility.)

“Repeal the Digital Millennium Copyright Act” – That’s for Congress and the President, too - not a CTO.

“Open Government Data (APIs, XML, RSS)” – At last, we’ve come across something a CTO can do! The authority undoubtedly already exists with the executive branch to publish raw data about most dimensions of federal government activity. Mind you, the CTO of a presidential administration does not have authority over Congress or the courts, so don’t expect the CTO to open up the legislative process, for example. There are challenges to be dealt with in terms of privacy and cutting through administrative red tape, but, again, this is something for a CTO to do.

Don’t expect too much from a government Chief Technology Officer. A federal CTO would run the government’s technology portfolio just a little bit better than a cork runs the ocean. Anyone who thinks a CTO would bring dramatic change is fooling him- or herself.

A Chief Transparency Officer? At least this idea has some scope. But don’t expect transparency to magically break out all over either. Opening up the government would steal power from bureaucrats who covet it very much. Their prime directive is to maintain power and budget, not to do us favors just because we’re the citizenry.

So please. Doff your rose-colored glasses, people! Understand what a CTO could and couldn’t do, and consider more carefully what you really want from a CTO and your government. Wish-lists are for Santa Claus.

Fellow nominee Bruce Schneier doesn’t want the job. Of Bruce’s refusal, Radley says:

[I]t sorta’ reminds me of what a retired police chief once told me about how he staffed his SWAT team. He said he’d ask for volunteers, then disqualify every officer who raised his hand. He added, “The guys who want the job are the last ones who should have it.”

That leaves John Mueller, whose excellent 2004 Regulation magazine article “A False Sense of Insecurity?” has stood the test of time. His insight into the strategic logic of terrorism will eventually turn around our country’s maladjusted approach to securing against terrorism.

Bennett:

If we’ve learned anything at all about from the history of Internet-as-utility, it’s that this strained analogy only applies in cases where there is no existing infrastructure, and probably ends best when a publicly-financed project is sold (or at least leased) to a private company for upgrades and management. We should be suspicious of projects aimed at providing Wi-Fi mesh because they’re slow as molasses on a winter’s day.

I don’t see any examples of long-term success in the publicly-owned and operated networking space. And I also don’t see any examples of publicly-owned and operated Internet service providers doing any of the heavy lifting in the maintenance of the Internet protocols, a never-ending process that’s vital to the continuing growth of the Internet.

Sherman:

Pursuing a public utility model while also desiring competition are fundamentally contradictory goals. Utilities are designed not to compete. Do you, or does anyone you know, have a choice of providers for water, sewage or electricity?

My second question would be: is there anyone in the technology world who sees public utilities as a model for innovation? A 1.5 megabit connection (T1) was an unimaginable luxury when I started in tech in the mid-90’s. It was for well-funded companies only. Today, it is a low-end consumer connection and costs around 80% less. Has your sewage service followed a similar trajectory?

A public utility is designed to be “good enough” and little more. There is no need, and little room, for differentiation or progress. Your electricity service is essentially unchanged from 20 years ago, and will look the same 10 years from now. Broadband, on the other hand, requires constant innovation if we are to move forward — and it has been delivering it, even if we desire more.

Yahoo! has seen better days

All of this added up to yesterday’s resignation of Jerry Yang.

Yang’s tenure at the helm began when he stepped in for Terry Semel in June 2007.  Since that time Yang, one of the co-founders of Yahoo!, has been seen as the man who couldn’t do anything right.  He passed up an offer from Microsoft to buy Yahoo! for $33 dollars a share, claiming the company was worth $37.

Yang then pursued an advertising deal with Google, but on November 5th it was announced that Yahoo! and Google were backing out of the deal due to regulatory stumbling blocks erected by the Department of Justice.

As the AP story on Yang’s resignation states:

Just a few hours after the Google partnership collapsed, Yang publicly said he thought Microsoft should hook up with Yahoo. But Ballmer threw cold water on the idea the next day by declaring he doubted a deal could be worked out.

So one is forced to wonder where Yahoo! is to go from here.  It is a company without a core mission, without leadership, and without a suitor that could give the meandering tech giant  the direction it so desperately needs.  Hopefully, Microsoft does come courting again, and perhaps Yang’s successor will be a bit more eager to make a deal.

But then again, was Yang really that bad?

Yang was probably right that Yahoo! is worth more than the MS offer, or at least it would have been had Yahoo! been able to monetize its more esoteric content through a deal with Google.  Unfortunately, the deal was torpedoed by regulators.  According to CNET’s Declan McCullagh, this was partly due to the lobbying efforts of Microsoft.

So was Yang too consumed with pride to give up the company he founded?  Or, was he guilty of naiveté regarding how the game is really played in DC?  Most likely, it was a little bit of both.  Its unfortunate, however, that the latter had to be a factor at all.

Yahoo! could become a very interesting and innovative company again, if it can focus its efforts and find a new way forward.  That new direction should be determined by what will serve consumers best in the free marketplace.  Unfortunately, Yahoo! doesn’t get to operate in a free market—it operates in a system where currying favor and paying high-powered lobbyists matters as much as creating a good product and offering value in the marketplace.

In the end, that reality hurts both Yahoo! and consumers.

NOTE: My apologies to TLF readers and Declan McCullagh for my post’s earlier spelling errors and thanks to Ryan Radia for pointing them out.  Although, this does prove my theory that the number of interruptions during the writing of a post directly correlates to the number of absurd errors in the post.

I like the approach and tone they use throughout the book. It is certainly something more than “Internet Policy for Dummies.” It’s more like “Internet Policy for the Educated Layman”: a nice mix of background, policy, and advice. I think Ray Lodato’s Slashdot review gets it generally right in noting that, “Each chapter will alternatively interest you and leave you appalled (and perhaps a little frightened). You will be given the insight to protect yourself a little better, and it provides background for intelligent discussions about the legalities that impact our use of technology.”

Abelson, Ledeen, and Lewis aren’t really seeking to be polemical in this book by advancing a single thesis or worldview. To the extent the book’s chapters are guided by any central theme, it comes in the form of the “two basic morals about technology” they outline in Chapter 1:

The first is that information technology is inherently neither good nor bad — it can be used for good or ill, to free us or to shackle us. Second, new technology brings social change, and change comes with both risks and opportunities. All of us, and all of our public agencies and private institutions, have a say in whether technology will be used for good or ill and whether we will fall prey to its risks or prosper from the opportunities it creates. (p. 14)

Mostly, what they aim to show is that digital technology is reshaping society and, whether we like or it not, we better get used to it — and quick!  “The digital explosion is changing the world as much as printing once did — and some of the changes are catching us unaware, blowing to bits our assumptions about the way the world works… The explosion, and the social disruption that it will create, have barely begun.” (p 3)

In that sense, most chapters discuss how technology and technological change can be both a blessing and a curse, but the authors are generally more optimistic than pessimistic about the impact of the Net and digital technology on our society. What follows is a quick summary of some of the major issues covered in Blown to Bits.

Privacy: In the chapter on privacy, the authors conclude that it is increasingly difficult to bottle up our personal information and protect it and ourselves entirely from the outside world. “Despite the very best efforts, and the most sophisticated technologies, we can not control the spread of our private information. And we often want information to be made public to serve our own, or society’s purposes.” (p. 70) They argue that there still may be some ways to deal with the misuse of information and that some new technologies might be able to help protect our privacy at the margins. Generally speaking, however, this is a losing battle, and, more importantly, there is an increasing tension between privacy and freedom of speech:

A continuing border war is likely to be waged, however, along an existing free speech front: the line separating my right to tell the truth about you from your right not to have that information used against you. In the realm of privacy, the digital explosion has left matters deeply unsettled. (p. 70)

These are issues I discussed in more detail in my recent review of Daniel Solove’s important new book, Understanding Privacy. Abelson, Ledeen, and Lewis are right to point out that these tensions are only going to increase in coming years and their chapter outlines many of the new fault lines in the debate over online privacy.

Encryption: Having followed the “crypto wars” closely in the mid-1990s, I also found their chapter on cryptography intriguing. The authors note that encryption has gone mainstream. “Keys are cheap. Secret messages are everywhere on the Internet. We are all cryptographers now.” Despite that, the authors note that “very little email is encrypted today.” With the exception of some human rights groups and some particularly privacy-sensitive users, most of us are perfectly content to send our e-mails unencrypted. They argue that there are three reasons most people are unconcerned about their e-mail privacy:

First, there is still little awareness of how easily our e-mail can be captured as the packets flow through the Internet. [...] Second, there is little concern because most ordinary citizens feel they have little to hide, so why would anyone bother looking? [...] Finally, encrypted email is not built into the Internet infrastructure in the way encrypted web browsing is. (p. 191-92)

They continue and conclude:

Overall, the public seems unconcerned about privacy of communication today, and that privacy fervor that permeated the crypto wars a decade ago is nowhere to be seen. In a very real sense, the dystopian predictions of both sides of that debate are being realized: On the one hand, encryption technology is readily available around the world, and people can hide the contents of their messages, just as law-enforcement feared… At the same time, the spread of the Internet has been accompanied by an increase in surveillance, just as the opponents of encryption regulation feared. (p. 193)

Actually, I’m not sure there really was a “privacy fervor that permeated the crypto wars a decade ago.” Many of us who argued passionately for crypto-freedom back then knew it was unlikely that the masses were going to rush right out and start encrypting all their mail the minute the policy battle ended. In reality, most of us live pretty mundane lives and just don’t care enough to go through the hassle of encrypting the random chatter of e-mail. But it was the principle of the matter that counted — the government should never be given the keys to unlock all private communications. That is what we were fighting about in the crypto wars — not the necessity of everyone encyrpting every e-mail they sent.

Importantly, however, the authors correctly note how the truly beneficial result of the fight for crypto-freedom was an explosion of online commerce, facilitated by behind-the-scenes crypto protecting our transactions. Amazon, eBay, and many other e-commerce vendors, both big and small, have prospered because of strong crypto. That was the security blanket many of us needed before we were willing to take the plunge and begin doing most of our shopping and financial transactions online. This is a great public policy success story, and Abelson, Ledeen, and Lewis do a wonderful job relaying it to the reader.

Online Free Speech / Age Verification: As a passionate First Amendment advocate, the chapter on free speech issues was also of great interest to me. The authors run through the early history of efforts to censor online speech, including the Communications Decency Act of 1996 (CDA) and the Child Online Protection Act of 1998 (COPA), and bring us right up to speed with congressional efforts such as the Deleting Online Predators Act (DOPA), which would ban social networking sites and services in publicly funded schools and libraries. “DOPA, which has not passed into law, is the latest battle in a long war between conflicting values,” note the authors. “On the one hand, society has an interest in keeping unwanted information away from children. On the other hand, society as a whole has an interest in maximizing open communication.” (p. 231)

Abelson, Ledeen, and Lewis go on to outline the dangers of online censorship and the importance of defending the First Amendment from new legislative and regulatory attacks, but they would have done well to cite the growing diversity of parental control tools and methods that are now on the market. I share their passion for defending free speech values, but it is equally important we work hard to show parents and policymakers how many effective self-help tools and strategies are out there on the market today to help them guide — or even control — their child’s media and Internet experiences. Not everyone is equally excited about what a world of media abundance offers us, or out children. If we hope to continue to fend off attacks on the First Amendment, we have to make sure parents are empowered to mentor their kids and limit access to content they find objectionable so they don’t expect Uncle Sam to play the role of national nanny.

I was glad to see the authors spend some time focusing on online age verification / identity authentication since that is probably the most important free speech debate raging today. [I've written quite a bit here about the battle over online age verification for social networking sites and other online sites.] The authors point out Congress already attempted to impose age verification on the Internet when they passed the Child Online Protection Act in 1998. “The big problem,” the authors note, “was that these methods either didn’t work or didn’t even exist.” (p. 248) Indeed, the effort in COPA to require “adult personal identification numbers” or a “digital certificate that verifies age” was in their words, “basically a plea from Congress for the industry to come up with some technical magic for determining age at a distance.” (p. 248)  And things really haven’t advanced much since then, they argue:

In the state-of-the-art, however, computers can’t reliably tell the if party on the other end of the communications link is a human or is another computer. For a computer to tell whether a human is over or under the age of 17, even imperfectly, would be very hard indeed. Mischievous 15-year-olds could get around any simple screening system that could be used in the home. The Internet just isn’t like a magazine store. (p. 249)

I hope policymakers are listening — especially the many stubborn state attorneys general who continue to push age verification as a silver-bullet solution to online child safety concerns.

Spectrum Policy: The authors point out how the death of media scarcity has profound implications for the future of speech regulation and spectrum policy alike. “As a society,” they argue, “we simply have to confront the reality that our mindset about radio and television is wrong. It has been shaped by decades of the scarcity argument.” (p. 292)  Regarding what it means for speech controls, they note:

If almost anyone can now send information that many people can receive, perhaps the government’s interest in restricting transmissions should be less than what it once was, not greater. In the absence of scarcity, perhaps the government should have no more authority over what gets said on radio and TV than it does over what gets printed in newspapers. (p. 261)

I couldn’t agree more, and I’ve written voluminously on the topic of creating a “consistent First Amendment standard for the Information Age.” Abelson, Ledeen, and Lewis seem to agree with what I said there when they argue:

Other regulation of broadcast words and images should end. Its legal foundation survives no longer in the newly engineered world of information. There are too many ways for the information to reach us. We need to take responsibility for what we see, and what our children are allowed to see. And they must be educated to live in a world of information plenty. (p. 293)

The death of the scarcity doctrine should also have a profound impact on the future spectrum policy decisions, they say. Perhaps scarcity-based rationales for regulation made (some) sense in the past, but:

These were facts of the technology of the time. They were true, but they were contingent truths of engineering. They were never universal laws of physics, and are no longer limitations of technology. Because of engineering innovations over the past 20 years, there is no practically significant “natural limitation” on the number of broadcast stations. Arguments from inevitable scarcity can no longer justify U.S. government denials of the use of the airwaves.

The vast regulatory infrastructure, built to rationalize use of the spectrum but much more limited radio technology, has adjusted slowly — as it almost inevitably must: Bureaucracies don’t move as quickly as technological innovators. The FCC tries to anticipate resource needs centrally and far in advance. But technology can cause abrupt changes in supply, and market forces can cause abrupt changes in demand. Central planning works no better for the FCC than it did for the Soviet Union. (p. 272)

I completely agree, although challenging questions remain about how to get us out of the current mess. Abelson, Ledeen, and Lewis argue that “commons-based” approaches make the most sense. I am certainly open to the idea of treating certain swaths of spectrum as a commons, but it’s important to recognize that this does not necessarily get the regulators completely out of the picture. In fact, as my TLF colleague Jerry Brito has persuasively argued, there is the real potential that the FCC could become an aggressive device regulator if we switch to this approach. “A ‘commons’ model is not a third way between regulation and property, it is just another kind of regulation,” Brito concludes. That’s why I continue to believe that a property rights-based approach for most spectrum allocation makes the most sense and will get the spectrum deployed for its most highly-valued use. Commons-based approaches should supplement, not supplant, that model.

Abelson, Ledeen, and Lewis also fail to sweat the details about how to handle the issue of incumbent spectrum users in the transition to their preferred commons-based model. That strikes me as a pretty big problem. They repeatedly mention how incumbents often seek to block beneficial spectrum reforms — which is no doubt true on some occasions — but that doesn’t mean incumbent spectrum holders don’t have legitimate rights in their existing allocations that should be honored. I would hope that, even if they wanted to go with a pure commons approach going forward, the authors would at least be willing to grandfather-in existing spectrum users. If the goal is to encourage them to vacate what they currently have, incentivize them with flexible use and resale rights. For example, for the right price, a lot of broadcast spectrum holders might be willing to give up their current allotment. Alternatively, if flexible use was allowed, they might deploy their spectrum for a different purpose. Unfortunately, both of these options are currently prohibited by the FCC’s command-and-control regulatory system.

Overall, however, I enjoyed the spectrum chapter and found the history and technology primer in this chapter to be the best in the book.

Copyright: The authors have a strongly-worded chapter on copyright that generally argues for relaxing copyright protections. Interestingly, however, (unless I am missing something) I notice they don’t offer their book for free download on their site.  I’m always intrigued by copyright critics who refuse to put their own content online. Apparently, it’s another case of ‘copying is good for me, but not for thee.’ Regardless, in their copyright chapter, they argue that:

The war over copyright and the Internet has been escalating for more than 15 years. It is a spiral of more and more technology that makes it ever easier for more and more people to share more and more information. This explosion is countered by a legislative response that brings more and more acts within the scope of copyright enforcement, subject to punishments that grow ever more severe. Regulation tries to keep pace by banning technology, sometimes even before the technology exists… If we cannot slow the arms race, tomorrow’s casualties may come to include the open Internet and dynamic of innovation that fuels the information revolution. (p. 199)

The authors make a fair point about the perils of banning technologies to protect copyright. That’s never the right answer. Regrettably, however, they pay less attention to what I regard as the legitimate concerns of copyright holders about how to protect their creative works and expressive endeavors going forward. And it’s not just about protecting large-scale industries, as they and other copyright critics are often prone to claim. It’s about whether or not we want a workable copyright system going forward. Of course, some critics wouldn’t mind seeing copyright law fade into the sunset altogether. But Abelson, Ledeen, and Lewis don’t really make it clear how far they’d be willing to go. They do have a brief discussion about collective licensing approaches as a possible solution, which may be coming sooner than we think for the Net. Unfortunately, they don’t spend much time developing the details. I remain skeptical about the sensibility of that approach — especially since it will likely end up being compulsory in nature and fraught with fairness problems (i.e. Who pays in? How much? On the other end, who gets paid how much when their content appears online? etc.) Nonetheless, I think that’s where we’ll end up before the copyright wars are over, so it would have been nice to see the authors spend more time on collective licensing issues.

They also spend a lot of time discussing DRM. I was surprised by their comment that, “Developers of DRM and trusted platforms may be creating effective technologies to control the use of information, but no one has yet devised effective methods to circumscribe the limits of that control.” (p. 212) I must say, that does not seem to match up with the reality of the market we see around us today in which DRM systems are rapidly crumbling and being abandoned left and right.

Conclusion

I didn’t agree with everything in Blown to Bits, such as their unfortunate call for Net neutrality regulation. Overall, however, I enjoyed the book and recommend it. The narrative can be a little disjointed at times, almost sounding like a series of e-mail exchanges between friends (which may have been the case since the book had three authors). But the text is very accessible and contains a great deal of useful information to bring you up to speed on the hottest tech policy debates under the sun. If the authors are smart, they’ll throw the book online and update it periodically to keep it fresh. As I have found with my parental controls and Media Metrics reports, that’s the only way to keep up with the frantic pace of change in the tech policy arena — version your books like software and release periodic updates.

This book will definitely appear on my big, end-of-year “Most Important Tech Policy Books of 2008″ list, which I should have wrapped up shortly. Also, I think this book makes a nice complement to Palfrey and Gasser’s Born Digital, which I reviewed here last month. And, if you are interested in another title that takes an approach similar to what Abelson, Ledeen, and Lewis have taken here, you might want to check out Bruce Owen’s outstanding 1999 book “The Internet Challenge to Television.” It’s an oldy but a goodie, as I noted here.

Finally, given the title of the book and the countless times in the text that Abelson, Ledeen, and Lewis talk about the “bits revolution,” how “bits are bits,” and how “bits behave strangely,” shockingly, they never seem to get around to crediting Nicholas Negroponte for his pioneering work on this front in Being Digital. Long before anybody else gave a damn about how the movement from a world of atoms to a world bits would change our entire existence, Nicholas Negroponte was preaching that gospel to the unconverted. And considering he was saying all that back in the dark (dial-up) ages of 1995, the man deserves some credit, as I have noted here before.

Jeff Jarvis, Esther Dyson and I will be debating Harry Lewis of Harvard, Randall Picker of the University of Chicago Law School, and Siva Vaidhyanathan from the University of Virginia. Jarvis’ blog post on the subject has gotten some interesting discussion.

As with any company, one can complain about the details of how Google does business. I think I call it like I see it with respect to Google, having derided their gaming of the regulatory system in the 700 MHz auction and lauding their generally good corporate citizenship on privacy.

You have to drain the word “evil” of meaning to apply it to Google. But even in the casual, slightly anti-corporate sense that the founders probably meant it, Google isn’t evil.

Though publishers and holders of copyrights protest (often from ignorance of the modern media landscape), Google makes their material more available, more useful, and more profitable.

Owners of trademarks may object, but Google AdWords brings new products and better prices to consumers.

Surely Google should avoid censorship on behalf of the Chinese government, but exiting China would abandon the Chinese people to government-approved information sources only.

Google Earth, Maps, Street View, and basic search challenge privacy, but Google has made itself a model corporate citizen by working to educate users, by making its products transparent, and by openly resisting government subpoenas.

Some say Google’s search monopoly makes it the most powerful company on earth, but it’s always one misstep (and one click) away from handing its customer base to a challenger.

Disruptive technologies and businesses always make life uncomfortable for the old guard. These complainers should be ignored. Google earns a rightful profit as it makes people around the world more aware, educated, and informed. Evil? Hardly.

Discuss.

OK, so why again do we need to mandate a la carte regulation for cable and satellite?

This has been a big year for both Netflix and online video services like Hulu.com, where people can watch episodes of popular shows such as “The Office” for free, though users do have to sit through a few commercials. When Tina Fey debuted her impression of Sarah Palin on “Saturday Night Live” last month, more people watched the comedy sketch online at NBC.com or Hulu.com than during the show’s broadcast. Last week, YouTube announced that it would start carrying old TV shows and movies from the film studio MGM.

As for Netflix, it seems that somebody there has been busy this year. While most customers still use the online video rental site mainly for movie deliveries by mail, the company now has a library of online content available for viewing on your TV through a variety of devices. A $99 appliance from Roku that plugs into your TV set and connects to the Web has been popular among some folks dropping their cable subscriptions. A couple of new, Web-connected Blu-ray players from Samsung and LG Electronics also allow Netflix subscribers to instantly watch titles from the company’s online collection.

Musgrove continues and notes that it’s about more than just Hulu and Netflix:

During a visit to The Washington Post this past summer, Microsoft chief executive Steve Ballmer mentioned that his favorite TV show is “Lost” and that he watches the show online, not on cable and not through a purchase on Apple’s iTunes service. “I have to admit I’m annoyed by the [ads], but not enough to pay a buck,” he said.

Ever have a billionaire make you feel dumb for leading an overly extravagant lifestyle? Ballmer didn’t mention the show’s availability on Microsoft’s Xbox Live service. That’s where I’d been buying and downloading episodes of the show, on an a la carte basis. But starting this week, a major revamp of the Xbox interface makes it possible for owners like me to access the Netflix library without shelling out on a per-title basis. The day after CSI airs, for example, I’ll be able to watch it with a few clicks on the device’s controller. This is available only for people paying for a Netflix subscription, but I’ve already heard some gadget fans, the ones who don’t care about video games very much, wondering if the new feature might make the console a worthwhile purchase.

For those interested in checking out some TV on the Web, some networks, like NBC, put almost all of their programming online; others, like HBO, have little content online. One Web site, Cancelcable.com, has a page that tracks where Web surfers can find their favorite shows online.

I was not aware of that CancelCable.com site until I read Musgrove’s article, but it really does show how this migration to alternative video distribution / consumption is picking up steam.

Unfortunately, as I noted in my previous essay, someone forgot to tell the folks in Washington about all this. They’re still busy obsessively regulating broadcast TV and radio as if the 1950s never ended. And they’ve increasingly expanded their regulatory coverage to include cable and satellite even though they are now struggling to keep people from moving to the completely unbundled, a la carte world of online video.

It’s an old story, really: Technology advances; regulation stands still.

Anyway, make sure to read Declan’s excellent piece.

Brad Stone of the New York Times has just posted an important article with relevance to this debate. In it, he points out that:

performing so-called age verification for children is fraught with challenges. The kinds of publicly available data that Web companies use to confirm the identities of adults, like their credit card or Social Security numbers, are either not available for minors or are restricted by federal privacy laws. Nevertheless, over the last year, at least two dozen companies have sprung up with systems they claim will solve the problem. Surprisingly, their work is proving controversial and even downright unpopular among the very people who spend their days worrying about the well-being of children on the Web.

Child-safety activists charge that some of the age-verification firms want to help Internet companies tailor ads for children. They say these firms are substituting one exaggerated threat — the menace of online sex predators — with a far more pervasive danger from online marketers like junk food and toy companies that will rush to advertise to children if they are told revealing details about the users.

Stone highlights the efforts of eGuardian, a California company that, “asks a parent to submit the birth date, address, school and gender of a child, then it asks schools to confirm the information.”

Over the last year, eGuardian has been approaching schools, primarily in California, and offering them the entire $29 sign-up fee when they persuade parents to sign up their children. EGuardian’s real money-making hope — and this is what makes [Nancy] Willard nervous — is to have Web sites pay a commission for each eGuardian member. The Web site can then use the data on each child to tailor its advertising.

Nancy Willard, one of America’s leading online child safety experts, is the executive director of the Center for Safe and Responsible Internet Use, and the author of the outstanding book, Cyber-Safe Kids, Cyber-Savvy Teens. The concern she raised with Brad Stone is that “Age verification companies are selling parents on the premise that they can protect the safety of children online, and then they are using this information for market profiling and targeted advertising.” Basically, companies like eGuardian give the software to schools or parents and then hope to make it back through targeted advertising. According to Stone’s article, “EGuardian’s real money-making hope — and this is what makes Ms. Willard nervous — is to have Web sites pay a commission for each eGuardian member. The Web site can then use the data on each child to tailor its advertising.”

I’m not quite as concerned about the advertising / marketing issue as Nancy Willard, but I am equally disturbed about the prospect of using schools as online age verification agents– or partnering with others to make that happen. I apologize for quoting myself at length on this point, but here’s how I stated my concerns before:

[I]nvolving schools in any age verification scheme would raise serious privacy concerns and administrative problems. Depending on how the scheme worked, the administrative burdens imposed on schools could be significant. Someone at each school would have to be in charge of answering phones calls and e-mails from potentially hundreds of website operators looking to age-verify minors. Who will be liable if things go wrong? The school? The school district? An employee in the school’s administrative department who accidentally releases thousands of digital records? And will schools receive the additional funding needed to administer whatever scheme is mandated?

Moreover, if schools are required to create more accessible databases containing personal information about minors, who else besides social networking websites would be given access? Data breaches would become a real concern for both students and schools alike. Such a scheme could run up against federal or state laws. For example, the Family Education Rights and Privacy Act of 1974 makes it illegal to release school records without written permission from parents. Both parents and government officials have long demanded that access to school records be tightly guarded because, as a society, we take the privacy of our children very seriously.

Thus, serious questions remain about the wisdom and practicality of roping the schools into the age verification process. Most schools and school districts are already over-burdened with federal and state mandates and probably wouldn’t like the sound of additional mandates of this variety.  But what if a technology vendor could serve as the middleman and facilitate the easy transfer of some basic data about kids from the school system in an effort to provide digital credentials? That’s probably where we are heading.  Even the most vociferous advocates of age verification for minors must realize how absolutely radioactive this issue could become since school records about our kids are in play here.  Identity theft concerns are already running at an all-time high in our country and the thought of being required to surrender more info about our kids in this environment is not going to go over well with many parents.

But, again, what if we could keep to a minimum the amount of data being transferred about the child to the vendor or the SNS?  Perhaps at the beginning of each school year when a minor is registering they could be given a “secure” digital token or ID number that only associated a grade year (i.e., “sophomore”) with their name, and little or no additional info was included in that token in order to minimize the threat of identity theft or privacy violations.  Of course, the fewer pieces of information contained in that token or credential, the less likely it will be a credible verification tool, or the more likely it is it will be easy to forge or defeat (especially by kids themselves).

Regardless, whether we like it or not — and I do not like it one bit — schools are now at the center of the online age verification debate. It will be very interesting to hear what the educational community itself has to say about this development going forward. [...] Something tells me that school administrators and educational officials aren’t going to look too kindly on proposals that would turn them into the equivalent of a DMV for kids.

Interestingly, Richard Blumenthal, the attorney general of Connecticut, who has been one of the leading proponents of age verification, told Brad Stone that the privacy issues raised by Willard and others are now on his radar screen:

“The attorneys general would be very concerned about using age verification to promote marketing or any other kinds of promotional pitches or gimmicks aimed at specific age groups,” he said. “Targeted marketing may have its place, but it should not be coupled with the issue of childhood safety.”

That’s good to hear. But I hope Mr. Blumenthal and the other AGs realize that that is just one of many reasons to be concerned about mandatory online age verification, especially if it involved schools as age verification agents. It has troubling implications for schools, kids, parents, free speech, online anonymity, privacy rights, and much more. Most importantly, as I made clear here, it remains highly unlikely that online age verification would actually do anything to really keep kids safer online. In sum, the costs far outweight the benefits when it comes to mandatory age verification.

Like Take Up the Flame, which I coughed up on YouTube last week, Sensible Khakis’ license leaves you free to play it just for fun. You can find the chords and lyrics—including the law-geek verse, not included in the video above, about the choices entrepreneurs face between sole proprietorships, corporations, LLPs, and LLCs—here. Like the terms attached to Take Up the Flame, any commercial licensees of Sensible Khakis will have to pay a tithe to one of my favorite causes—this time, Surfrider Foundation. That is not a likely scenario, admittedly, but I figure that the thought counts for something.

[Crossposted at Agoraphilia and Technology Liberation Front.]

Well, I was engaging in a bit of hyperbole there, but I am consistently amazed by what people can make their digital devices do. Witness the fact that some enterprising soul has found a way to turn the iPhone into a flute! Better yet, they have trained a group to play “Stairway to Heaven” using that application!! It’s enough to make one wonder: How long before someone converts the iPhone into a bong?

[Uttered to JZ in my best stoner voice...] “Seriously, dude, generativity is alive and well. Now chill, and pass the iBong.”

Others have been more positive. Mike Masnick has an extremely generous write-up over at Techdirt. And at Ars Technica, my friend Julian has the most extensive critique so far.

I thought most of it was spot on, but this seemed worth commenting on:

Lee thinks that the history of services like America Online shows that “walled garden” approaches tend to fail because consumers demand the full range of content available on the “unfettered Internet.” But most service providers already offer “tiered” service, in that subscribers can choose from a variety of packages that provide different download speeds at different prices. Many of these include temporary speed “boosts” for large downloads.

If many subscribers are demonstrably willing to accept slower pipes than the network can provide, companies providing streaming services that require faster connections may well find it worth their while to subsidize a more targeted “boost” for those users in order to make their offerings more attractive. In print and TV, we see a range of models for divvying up the cost of getting content to the audience—from paid infomercials to ad-supported programming to premium channels—and it’s never quite clear why the same shouldn’t pertain to online.

The key point here is the relative transaction costs of managing a proprietary network versus an open one. As we’ve learned from the repeated failure of micropayments, financial transactions are surprisingly expensive. The infrastructure required to negotiate, meter, and bill for connectivity, content, or other services means that overly-complicated billing schemes tend to collapse under their own weight. Likewise, proprietary content and services have managerial overhead that open networks don’t. You have to pay a lot of middle managers, salesmen, engineers, lawyers, and the like to do the sorts of things that happen automatically on an open network.

Now, in the older media Julian mentions, this overhead was simply unavoidable. Newspaper distribution cost a significant amount of money, and so newspapers had no choice but to charge their customers, pay their writers, sign complex deals with their advertisers, etc. Similarly, television stations had extremely scarce bandwidth, and so it made sense to expend resources to make sure that only the best content went on the air.

The Internet is the first medium where content can go from a producer to many consumers with no human beings intermediating the process. And because there are no human beings in between, the process is radically more efficient. When I visit the New York Times website, I’m not paying the Times for the content and they’re not paying my ISP for connectivity. That means that the Times’s web operation can be much smaller than its subscription and distribution departments.

In a world where these transaction costs didn’t exist, you’d probably see the emergence of the kinds of complex financial transactions Julian envisions here. But given the existence of these transaction costs, the vast majority of Internet content creators will settle for free, best-effort connectivity rather than going to the trouble of negotiating separate agreements with dozens of different ISPs. Which means that if ISPs only offer high-speed connectivity to providers who pay to be a part of their “walled garden,” the service will wind up being vastly inferior (and as a consequence much less lucrative) than it would be if they offered full-speed access to the whole Internet.

The last-mile carrier “D” need not block site “A” or start charging everyone extra to access it, it need only degrade (or maintain current) quality of service to nascent A (read: Skype, YouTube, BitTorrent) to the point that it is less useable. This is neither a new limitation (from the consumers perspective) nor an explicit fee. If one a user suddenly lost all access to 90% of the internet, the last-mile carrier could not keep their business (or at least price). But, discrimination won’t look like that. It will come in the form of improving video services for providers who pay. It will come in the form of slightly lower quality Skyping which feels ever worse as compared to CarrierCrystalClearIP. It will come in the form of [Insert New Application] that I never find out about because it couldn’t function on the non-toll internet and the innovators couldn’t pay up or were seen as competitors.

I think there are several problems with this line of argument. First, notice that the kind of discrimination he’s describing here is much more modest than the scenarios commonly described by network neutrality activists. Under the scenario he’s describing, all current Internet applications will continue to work for the foreseeable future, and any new Internet applications that can work with current levels of bandwidth will work just fine. If this is how things are going to play out, we’ll have plenty of time to debate what to do about it after the fact.

But this isn’t how things have been playing out. If Steve’s story were true, we would expect the major network providers to be holding broadband speeds constant. But there’s no sign that they’re doing that. To the contrary, Verizon is pouring billions of dollars into its FiOS service, and Comcast has responded by upgrading to DOCSIS 3.0. Maybe we’ll begin to see major providers shift away from offering faster Internet access toward offering proprietary network services instead, but I don’t see any evidence of that.

Also, it’s worth remembering that many broadband providers already have a proprietary high-bandwidth video service. It’s called cable television and it’s explicitly exempted from network neutrality rules by Snowe-Dorgan. If the worry is that Comcast will choose to devote its bandwidth to a proprietary digital video service rather than providing customers with enough bandwidth to download high-def videos from the providers of their choice, that ship sailed a long time ago, and no one is seriously advocating legislation to change it. Note also that Comcast’s 250 GB bandwidth cap would not have been illegal under Snowe-Dorgan. Network neutrality legislation just doesn’t address this particular concern.

The reason broadband providers are likely to continue offering fast, unfettered access to the Internet is that consumers are going to continue demanding it. Providers may offer various proprietary digital services, but those services just aren’t going to be a viable replacement for unfettered Internet access, any more than AOL and Compuserve were viable replacements for the Internet of the 1990s. Broadband providers are ultimately in business to make money, and refusing to offer high-speed, unfettered Internet access means leaving money on the table.

Finally, this paragraph seems to misunderstand the concept of settlement-free peering:

Lee makes the argument that the current norm of “settlement-free” peering in the backbone of the internet will restrict last-mile providers’ ability to discriminate and to create a two-tiered internet because they will be bound by the equal treatment terms of the agreements. This is not supported by practical evidence, given the fact that none of the push-back against existing discriminatory practices has come from network peers. It is also not supported by sound economic reasoning. It is certainly not in backbone-provider E’s business interest to raise prices for all of its customers (an inevitable result). But, assuming E does negotiate for equal terms, the best-case scenario is that E becomes a more expensive “premium” backbone provider by paying mo