Keeping politicians' hands off the Net & everything else related to technology
The Restore Act is generating a lot of media interest. I just finished an interview with WTOP in DC. Tomorrow, I’ll be speaking with KMOX in Saint Louis at 8:40 AM (Central), WLAP in Lexington, Kentucky at 10:35 (Eastern), and on WABC in New York City at 11:10 (Eastern). All of them appear to have live Internet feeds (albeit in irritating proprietary formats) in case any TLF readers want to listen in.
On a note related to Jerry’s post on “L’iPhone” I’d like to point out Thomas Hazlett’s “How the ‘walled garden’ promotes innovation” in the September 26 Financial Times. The piece discusses the virtues of closed and controlled technological ecosystems and how the “walled garden” can often be a prosperous and vibrant one. Best paragraph from the piece:
Unbundling phones from networks is suggested as a policy fix in the US. European phones, working with different Sim cards across carriers and borders, are the model. Innovation in the European Union is said to flourish. But the iPhone came first to the US, as did the BlackBerry and advanced broadband networks using CDMA data formats. That is not surprising given that US networks are afforded wide latitude in designing their systems. Licenses in the EU mandate a GSM standard. What is recommended as “open” in fact deprives customers of a most basic cellular choice: technology.
Of course the real closed vs. open debate is whether we want an open economy. Open, that is, to varying business models–rather than one that is closed to any service or product that technophiles might describe with the now-curse-words “proprietary” or “closed source.” The techno-intelligentsia may value the notion of taking a phone from network to network, or being able to install Skype on anything with processor, but it turns out that most people couldn’t care less. Ultimately that’s what matters. The systems that are adopted shouldn’t be chosen by uber-geeks and regulators, but by every-day consumers.
I love my iPhone. Despite what others might say, it is the most innovative mobile phone in a decade. I also think innovators should be rewarded, which is why I’m fine with the iPhone being locked to AT&T’s network. As a result, Apple gets a cut of my (and every other iPhone owner’s) wireless bill.
France might be left behind when it comes to this innovation, however. That country has laws similar to the wireless Carterfone rules Tim Wu, Skype, and others have advocated for the U.S. Locked phones in France must be unlocked by the carrier upon user request, and wireless carriers must also sell unlocked versions of their mobile phones. As a result, Apple is considering keeping the iPhones off French shelves indefinitely.
To me it’s clear that forced access laws limit innovation. I think folks who propose such rules want to have their cake and eat it, too. That is, they want the innovation that comes from entrepreneurs acting in a free market (and often fueled by exclusive deals such as the one between Apple and AT&T), and they also want the forced openness of networks. They think that the latter will have no impact on the former; that innovators will innovate regardless of the incentives. The iPhone snag in France, however, shows that incentives do matter.
Geoffrey Stone has a great review of Jack Goldsmith’s book that makes it crystal clear that we’re dealing with an administration that has nothing but contempt for the rule of law and the separation of powers:
As it implemented its “go-it-alone” conception of executive authority, the administration “rejected any binding legal constraints” on the president’s power. Whenever anyone suggested consulting Congress on such matters as detention, interrogation, habeas corpus, military commissions, or surveillance, Addington’s invariable response was, ” ‘Why are you trying to give away the President’s power?’ ”
The most critical issue Goldsmith encountered involved the “torture memos,” which purported to provide a “legal basis for what President Bush later confirmed were ‘alternative interrogation procedures used at secret locations.’ ” Consistent with the administration’s extreme view of presidential authority, the memos argued that the Torture Act of 1994 — which made it unlawful for government officials to engage in torture — violated the president’s inherent constitutional power as commander in chief to authorize torture. According to Goldsmith, CIA interrogators viewed these memos as a ” ‘golden shield’ ” that would insulate them against criminal liability.
Although no head of the Office of Legal Counsel had ever overturned an opinion issued by the office in the same administration, Goldsmith concluded that the extreme assertion of presidential authority in the torture memos had “no foundation” in any “source of law.” They rested entirely on “one-sided legal arguments” and were nothing more than unreasoned assertions of “sheer power.” Goldsmith decided he had a legal and constitutional responsibility to withdraw the torture opinions.
At the same time he informed Atty. Gen. Ashcroft that he was withdrawing the opinions (Ashcroft, by the way, was “supportive” of Goldsmith’s conclusion), he also submitted his resignation, in part “to ensure that my withdrawal” of the torture memos “would stick.” The timing, he believed, “would make it hard for the White House to reverse my decision without making it seem like I had resigned in protest.” He was right, and it worked.
Goldsmith, it should be emphasized, has described himself as not being especially concerned with civil liberties. Yet he found it necessary to resign after only 10 months on the job. The same story can be told of other officials—Jim Comey, John Ashcroft himself—who were hardly left-wingers, but who ultimately were unable to stomach the Bush administration’s cavalier disregard for the constitution. The only people who are still in the White House at this point are people who weren’t disturbed by the president’s theory that he can pretty much do whatever he wants regardless of what Congress or the Supreme Court say. Why on Earth would Congress want to encourage this kind of behavior by giving the executive branch even more power to spy on Americans without court oversight?
I think I’ve made this point before, but it’s worth making again:
Two months after insisting that they would roll back broad eavesdropping powers won by the Bush administration, Democrats in Congress appear ready to make concessions that could extend some crucial powers given to the National Security Agency.
Administration officials say they are confident they will win approval of the broadened authority that they secured temporarily in August as Congress rushed toward recess. Some Democratic officials concede that they may not come up with enough votes to stop approval.
This isn’t how Congress works, and a reporter from the New York Times should know better. If the leadership of the majority party in Congress doesn’t want a particular piece of legislation to come to the floor, it’s extraordinarily difficult for other members of Congress to bring it to the floor. As I understand it, the primary mechanism in the House is a discharge petition, which requires the signatures of the majority of members of Congress. According to Wikipedia, only 47 piece of legislation have received the required majority in the last 70 years, and only two of those have become law. In other words, by and large if the leadership doesn’t want a piece of legislation to move, it doesn’t move.
And then there’s the Senate, where in addition to the usual prerogatives of leadership, any 41 members of the Senate can stop legislation with a filibuster. I find it extraordinarily hard to believe that the Democratic leadership couldn’t find at least one of these mechanisms to stop a bad FISA bill. The more likely explanation is that the leadership simply doesn’t consider this issue important enough to risk giving Republicans a campaign issue next year. Which is fine; that’s the sort of political calculation the congressional leadership is supposed to make. But if that’s what’s going on, then reporters should call a spade a spade, and not let the leadership get away with making lame excuses.
A recent New York Times article has some precious and prescient commentary about how to address concerns with the abundance of data being collected as we move further into the digital age, something I wrote a bit about yesterday.
Here’s Insight #1:
Can someone remind me what the point of having an opposition party was supposed to be? I’m pretty sure this wasn’t it:
House Democrats plan to introduce a bill this week that would let a secret court issue one-year “umbrella” warrants to allow the government to intercept e-mails and phone calls of foreign targets and would not require that surveillance of each person be approved individually…
“Some conservatives want no judicial oversight, and some liberals oppose any notion of a blanket order,” said James X. Dempsey, Center for Democracy and Technology policy director. “So the challenge of the Democratic leadership is to strike a balance, one that gives the National Security Agency the flexibility to select its targets overseas but that keeps the court involved to protect the private communications of innocent Americans.”
In a blog post entitled “Buying regulation,” Susan Crawford wonders about the legality of the FCC reserve price scheme for the 700 MHz rules. (I.e., as long as the $4.6 billion reserve price is met for the much coveted C Block, then open access rules will apply. If the reserve price isn’t met, then the rules go away.) Crawford asks,
Think about it. How can the FCC condition regulations … on the payment of money? And then have the rules dissolve if it doesn’t get the money? This is such a pure quid pro quo – it’s government for sale. Completely screwy. But how do you say “completely screwy” in legalese?
Well, it is certainly a creative gambit by Kevin Martin to make Google put their money where their mouth is, and I don’t have an opinion about whether it’s technically legal. That said, I’m not sure it’s exactly a “quid pro quo.” It’s not as if the highest bidder gets their preferred rules applied to the spectrum block. One can conceive of AT&T, for example, winning the auction at a price above $4.6 billion and therefore being subject to rules it dislikes. What I think the scheme is meant to do is pacify Congress by addressing the concern that given the restrictive rules the spectrum block might fetch much less than the many billions Congress is anticipating (and probably has already spent).
It’s an interesting ‘blog post, but a little over the top. Jeff Jonas of IBM writes about the plausible steps that take us to a total surveillance society – by popular demand!
I think it’s over the top because he doesn’t factor in a number of countervailing trends. I attempted to catalog the (mostly economic) forces that would drive RFID to meet consumer interests (including privacy) in this paper a few years ago, for example. And a few weeks ago, I wrote about a version of privacy self-help touted by none other than Google CEO Eric Schmidt: Turn off your phone!
Jonas raises good things to think about – and it’s certainly the general direction we’re headed – but we aren’t going to end up in the midnight dystopia Jeff describes.
In my comments to the FCC in the 700 MHz proceeding, I addressed the Commission’s insistence that the licensee of a national public safety spectrum license be a non-profit entity. At the time I said,
This is odd since there are several commercial communications companies with the comparative advantage and expertise in designing, building-out, and maintaining wireless broadband networks. A for-profit mission and quality service to first responders should not be considered mutually exclusive ideals.
The Commission’s 312-page final order cited my comment, but sadly as an example of the sort of proposal they weren’t going to adopt. Instead, they decided that they would create a license for 10 MHz of public safety spectrum (worth billions) and give it to a Public Safety Broadband Licensee. And who is the Public Safety Broadband Licensee? They have no idea, but in the Order they lay out the requirements for any entity who wishes to apply to be the Public Safety Broadband Licensee. These include,
Well, applications to be the Public Safety Broadband Licensee are due this Wednesday, and so far there’s only one applicant, an organization called the Public Safety Spectrum Trust Corporation (sorry, no website). If they are chosen as the Licensee, the PSST will help set the public safety requirements any bidder will have to satisfy in order to purchase the commercial-public safety shared D Block that will be auctioned in January. (Frontline has committed to bid, while Verizon has also shown an interest.) So who makes up the PSST? According to their recent press release,
The PSST Board of Directors is comprised of representatives of the following organizations: the American Association of State Highway and Transportation Officials (AASHTO); the Association of Public-Safety Communications Officials-International (APCO); the Forestry Conservation Communications Association (FCCA); the International Association of Chiefs of Police (IACP); the International Association of Fire Chiefs (IAFC); the International Municipal Signal Association (IMSA); the National Association of State Emergency Medical Services Officials (NASEMSO); the National Emergency Number Association (NENA); and the National Sheriffs’ Association (NSA).
That is, the lobbying groups for public safety. This is the first time I’ve ever heard of the lobbyists themselves potentially getting a license. Also, these groups supported the Cyren Call plan last year to reallocate spectrum from commercial to public safety use. Guess who they chose last week to be their “Public Safety Advisor“?
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
