January 2011

So I say in Politico today. Highlights:

During his first two years in office, the president generated a lot of heat in the transparency area — but little sunlight. House Republicans can quickly outshine Obama and the Democratic Senate. It all depends on how they implement the watch phrase of their amendment package: “publicly available in electronic form.”
. . .
The House can reach the gold standard for transparency if its new practices make introducing a bill and publishing the bill online the same thing. Moving a bill out of committee and posting the committee-passed version as online data must also be the same thing. Voting on a bill and publishing all data about the vote online must be standard procedure.
. . .
The transparency community owes it to Congress to say how it wants to get the data.

Of course, I’ve fooled you just a little bit. The whole thing is a highlight! (ahem) Read it.

This is Part IV of a five-part commentary on the FCC’s Dec. 23, 2010 “Open Internet” Report and Order.

Part I looked at the remarkably weak justification the majority gave for issuing the new rules.

Part II explored the likely costs of the rules, particularly the undiscussed costs of enforcement that will be borne by the agency and accused broadband access providers, regardless of the merits.  (See Adam Thierer’s post on the first attenuated claim of violation, raised before the rules even take effect.)

Part III compared the final text of the rules to earlier drafts and alternative proposals, tracing the Commission’s changing and sometimes contradictory reasoning over the last year.

Part IV, (this part), looks at the many exceptions and carve-outs from the rules, and what,  taken together, they say about the majority’s dogged determination to see the Internet as it was and not as it is or will become.

Part V will review the legal basis on which the majority rests its authority for the rules, likely to be challenged in court.

What does an Open Internet mean?

The idea of the “open Internet” is relatively simple:  consumers of broadband Internet access should have the ability to surf the web as they please and enjoy the content of their choice, without interference by access providers who may have financial or other anti-competitive reasons to shape or limit that access. Continue reading →

A group of regulatory advocates that includes Free Press, Media Access Project and the New America Foundation, have fired off a letter to the Federal Communications Commission (FCC) requesting action against the nation’s #5 mobile provider, MetroPCS.  These regulatory groups claim that “new service plans being offered by mobile provider MetroPCS block and discriminate against Internet content, applications and websites.” Wired’s Ryan Singel summarizes what the fight is about:

At issue are new, tiered 4G data plans from the nation’s fifth largest mobile carrier, which specializes in pay-as-you-go mobile-phone service. The new plans offer “unlimited web usage” for all three tiers, which cost $40, $50 and $60 a month. But MetroPCS’s terms exclude video sites other than YouTube from “unlimited web usage,” and block the use of internet-telephony services such as Skype and Tango.  The terms of service also make it very unclear whether users would be allowed to use online-radio services such as Pandora.

The parties petitioning the FCC for regulatory intervention claim that “MetroPCS appears to be in violation of the Commission’s recently adopted open Internet rules” even though they note that “these rules have not yet taken effect.”

There are four things I find interesting about this hullabaloo: Continue reading →

I laughed out loud when I read the following line in Harlan Yu’s post, “Some Technical Clarifications About Do Not Track“:

“[T]he Do Not Track header compels servers to cooperate, to proactively refrain from any attempts to track the user.”

(Harlan’s a pal, but I’m plain-spoken with friends just like everyone else, so here goes, buddy.)

To a policy person, that’s a jaw-dropping misstatement. An http header is a request. It has no coercive power whatsoever. (You can learn this for yourself: Take 30 minutes and write yourself a plug-in that charges ten cents to every site you visit. Your income will be negative 30 minutes of your time.)

Credit goes to the first commenter on his post who said, “What if they ignore the header? . . . Wouldn’t there also need to be legal penalties in place for violations, in order for this to work? (To encourage advertising companies to put in those lines of code.) Is this in the works?” Continue reading →

On the podcast this week, Declan McCullagh, chief political correspondent for CNET and former Washington bureau chief for Wired News, discusses WikiLeaks. McCullagh gives a quick recap of the WikiLeaks saga so far, comments on the consequences of the leaks themselves, and talks about the broader significance of the affair. He also offers a few insights into Julian Assange’s ideology based on his interactions with Assange in early ’90s “cypherpunk” circles. Lastly, McCullagh discusses the future of diplomacy and the chance that Assange will be indicted in the United States.

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CLU seeks systemic perfection in Tron: Legacy

Note: The following post contains spoilers pertaining to the plot and theme of the film Tron: Legacy.

Near the end of Tron: Legacy, the character CLU (short for Codified Likeness Utility), on the verge of releasing his army of re-purposed computer programs into the brick-and-mortar world to destroy humanity, confronts Kevin Flynn, his creator-turned-nemesis, with a plaintiff, “I did everything you asked.”  Flynn, older and wiser than the character we met in 1982’s Tron, and his techno-idealism tempered by the realization that to save humanity he must destroy both his physical and virtual self, wistfully answers, “I know.”

It’s a rather poignant scene that punctuates the film’s unique take on technology and humanity. Traditionally in the movies, when technology turns evil, it does so with a will of its own. The Matrix and Terminator films are just two examples. Tron: Legacy, however, upends the idea. CLU, sure enough, turns on his human creator, but not out of rebellion, but to carry out his human-engineered programming.

You see, Flynn programmed CLU to create the “perfect system.” In the film, Flynn explains that, as a younger man he thought he could design a technology-based solution that would end war, illness, poverty and hunger and, in a nutshell, make humanity better. But when the Grid—the computer environment Flynn nurtured—actually does something spontaneously, spawning a new life form, so-called isomorphic programs (called isos for short), CLU destroys them. While this act of cybernetic genocide horrifies Flynn, from CLU’s perspective, it was nothing but a logical response. The isos, as free and independent entities that did not respond to his command and control, introduced an element of randomness and uncertainty into the Grid that CLU could not abide. They were an obstacle to the systemic perfection he was programmed to create and therefore had to be eliminated.

Continue reading →

The Technology Policy Institute has released an interesting new study from Robert Crandall and Charles Jackson on “Antitrust in High-Tech Industries,” which takes a close look at the impact of antitrust law in the three most high-profile technology cases of the last half century: IBM, AT&T and Microsoft.  Crandall and Jackson conclude:

In each of our three cases, the ultimate source of major changes in the competitive landscape appears to have been innovation and new technology — technology that was apparently not unleashed by the antitrust litigation. In each case, the government did not and probably could not see how technology would develop over time. Therefore, it was difficult for the government to design remedies that would  accelerate competition when this competition developed from new technologies.

I enjoyed the paper and encourage others to read the entire thing.  It’s very much in line with what we’ve written here in the past on the antitrust and high-tech markets.  See, for example, my review of Gary Reback’s recent book on antitrust and high-tech markets.  As I noted there, the crucial, ‘conflict of visions‘ issue comes down to an appreciation for dynamic competition and technological evolution over the sort of static competition, fixed-pie mindset that so many antitrust defenders espouse.  Those of us who believe in dynamic competition see markets in a constant state of flux and expect that sub-optimal market developments or configurations are exactly the spark that incentivizes new form of market entry, innovation, technological disruption, price competition, and so on.  But the static competition crowd looks at the same situation and imagines that the only hope is to wheel in the wrecking ball of antitrust regulation since they have little faith that things might change for the better. Moreover, they ignore the profound costs associated with such regulation and litigation.  Crandall and Jackson’s paper explains why patience is the better policy.

For CNET, I posted a long piece describing a full day at CES’s Tech Policy Summit largely devoted to spectrum issues.  Conference attendees in several packed sessions heard from FCC Chairman Julius Genachowski and three of the four other FCC Commissioners (Commissioner Copps was absent due to illness), as well as former Congressman Rick Boucher and industry representatives.

The  message was as clear as it is worrisome.  The tremendous popularity of wireless broadband, on view in a remarkable range of new devices and gizmos on display at the Vegas Convention Center, is rapidly outpacing the radio frequencies available to handle the data.

The mobile Internet needs more spectrum, and there isn’t any to give it.  The app revolution is in danger of hitting a hard stop, perhaps as soon as 2015.

As the exclusive manager of America’s radio waves, only the FCC can reallocate spectrum.  And the good news is that the agency recognizes the crisis as well as its role in solving it.  Chairman Genachowski told the audience that spectrum reform will be the agency’s top priority for 2011.

Reading the Chairman’s prepared comments, however, I was struck by the sense that I’d heard something similar before.  Perhaps in the very same room.  Perhaps by the very same speaker. Continue reading →

It might take Facebook a while to turn identity provision into a revenue opportunity, but if it is a money-maker, it could be a substantial one. Simson Garfinkel has a piece in Technology Review that goes into some of the things Facebook is doing with its “Connect” service.

As security professionals debate whether the Internet needs an “identity layer”—a uniform protocol for authenticating users’ identities—a growing number of websites are voting with their code, adopting “Facebook Connect” as a way for anyone with a Facebook account to log into the site at the click of a button.

It’s a good, relatively short article, worth a read.

As an online identity provider, Facebook could facilitate secure commerce and communication in a way that’s easy and familiar for consumers. That adds value to the Internet ecosystem, and Facebook may be able to extract some of the surplus for itself—perhaps by charging sites and services that are heavy users small amounts per login via Connect. The security challenges of such a system would grow as more sites and services rely on it, of course, and Garfinkel highlights them in an accessible way.

Quibbles are always more interesting, so I’ll note that I cocked my head to one side where Garfinkel asks “whether it’s a good thing for one company to hold such a position of power.” Strange.

Taking “power” in its philosophical sense to mean “a measure of an entity’s ability to control its environment, including the behavior of other entities,” Facebook Connect gives the company very little power. Separate, per-site logins—or a parallel service that might be created by Google, for example—are near at hand and easy to switch to for anyone who doesn’t like Facebook’s offering.

Ironically, Garfinkel refers to these identity services as “Internet driver’s licenses,” inviting a comparison with the power structure in the real-world licensing area. If you want to drive a car legally, there are no alternatives to dealing with the state, so the state can impose onerous conditions on licensing. Drivers’ licenses require one to share a great deal of information, they cost a lot of money (relative to Facebook’s dollar price of “free”), and switching is not an option if the issuer starts to change the bargain and enroll licensees in a national ID system. Garfinkel himself noted how drivers’ licenses enhance state power in a good 1994 Wired article.

In sum, the upsides of an identity marketplace are there, for both consumers and for Facebook. The downsides are relatively small. The “power” exercised by any provider in a marketplace for identity provision is small compared to the alternative of using states as identity providers.

Here at TLF, our privacy discussions often center around such concepts as expectations of privacy, notice and choice, opt-in/out, and the like. These are all important and legitimate of course, but the privacy issue that seems to make news more than any other is Google Spy-Fi, and the defiant attitude Google has against governments. And this has me worried.

Not that I think governments necessarily need to regulate privacy, or that Google’s data collection from unsecured hotspots was even illegal. I’m thinking much more practically. People are concerned about privacy, governments are investigating Google to see what data it really collected, and Google seems to be cherry-picking the kinds of information it provides to different authorities. And in this defiant game of chicken, it’s the rest of the industry that’s the bacon – and I’m afraid we’re all slowly being fried.

There’s an old adage among practitioners of non-violent resistance that “an eye for an eye” retaliation leaves everyone blind. With yesterday’s news that authorities raided Google’s Korean office and found massive amounts of personal data, I’m wondering when—not if—bad behavior from the industry leader will result in a black eye for all online companies.

Korea’s National Police Agency claims to have found hundreds of thousands of emails, instant messages and other personal data” on Google’s hard drives. This is the latest finding similar to a string of other countries like Germany, Canada, Germany, France and the UK.

If it were all just foreign, that would be one thing. Continue reading →