At the last possible moment before the Christmas holiday, the FCC published its Report and Order on “Preserving the Open Internet,” capping off years of largely content-free “debate” on the subject of whether or not the agency needed to step in to save the Internet.
In the end, only FCC Chairman Julius Genachowski fully supported the final solution. His two Democratic colleagues concurred in the vote (one approved in part and concurred in part), and issued separate opinions indicating their belief that stronger measures and a sounder legal foundation were required to withstand likely court challenges. The two Republican Commissioners vigorously dissented, which is not the norm in this kind of regulatory action. Independent regulatory agencies, like the U.S. Courts of Appeal, strive for and generally achieve consensus in their decisions. Continue reading →
I recorded a commentary today for KQED–NPR in the Bay Area–on the importance of the National Broadband Plan. In the wake of tumult over net neutrality, Title II, and other regulatory gibberish, the important goals of the NBP, published in March of 2010, have been lost. That’s unfortunate, because the authors did a great job of setting out ambitious goals essential to maintain U.S. competitiveness. The plan also relies for funding on private investment and incentives, giving it a realistic chance of success.
While recent polls indicate that few Americans want the government involved in encouraging adoption of broadband, I believe this is one example where intervention–if only of the cheerleading and goal-setting variety–is appropriate. As I’ve written extensively elsewhere, the Internet’s success is a function of network effects, as succinctly described by Metcalfe’s Law. The more people who have broadband access, the more valuable the network is for everyone. And the better the chances for serendipitous new uses and applications to flourish.
Those of us who already have broadband access, in other words, would benefit just as much from getting non-users online as those users themselves.
Perhaps even more.
The Sixth Circuit ruled on Tuesday that criminal investigators must obtain a warrant to seize user data from cloud providers, voiding parts of the notorious Stored Communication Act. The SCA allowed investigators to demand providers turn over user data under certain circumstances (e.g., data stored more than 180 days) without obtaining a warrant supported by probable cause.
I have a very long piece analyzing the decision, published on CNET this evening. See “Search Warrants and Online Data: Getting Real.” (I also wrote extensively about digital search and seizure in “The Laws of Disruption.”) The opinion is from the erudite and highly-readable Judge Danny Boggs. The case is notable if for no other reason than its detailed and lurid description of the business model for Enzyte, a supplement that promises to, well, you know what it promises to do…. Continue reading →
Late last night, FCC Chairman Julius Genachowski made explicit what he’d been hinting for weeks–that he was going to call for a vote in December on the agency’s long-running net neutrality proceedings.
Today, the Chairman gave a speech outlining a new version of the rules he has circulated to fellow Commissioners, which will be voted on on Dec. 21, 2010..
The new order itself has not yet been made public, however, and the Chairman’s comments didn’t give much in the way of details. The latest version appears to reflect the proposed legislation circulated before the mid-term recess by then-Commerce chair Henry Waxman. That version, for those following the ball here, was itself based on the legislative framework proposed by Google and Verizon, which itself emerged from informal negotiations convened over the summer at the FCC. Continue reading →
I was quoted this morning in Sara Jerome’s story for The Hill on the weekend seizures of domain names the government believes are selling black market, counterfeit, or copyright infringing goods.
The seizures take place in the context of an on-going investigation where prosecutors make purchases from the sites and then determine that the goods violate trademarks or copyrights or both.
Several reports, including from CNET, The Washington Post and Techdirt, wonder how it is the government can seize a domain name without a trial and, indeed, without even giving notice to the registered owners.
The short answer is the federal civil forfeiture law, which has been the subject of increasing criticism unrelated to Internet issues. (See http://law.jrank.org/pages/1231/Forfeiture-Constitutional-challenges.html for a good synopsis of recent challenges, most of which fail.) Continue reading →
I published an opinion piece today at CNET, calling on all tech stakeholders in Washington to stop the pointless quibbling and sniping about net neutrality, reclassification, and other side-show issues. (I’m too depressed to list them here—but see “Fox-Cablevision and the Net Neutrality Hammer” for an example of just how degraded the conversation has become.)
Instead, why not focus on a positive message, one that has the potential for win-win-win-win? For example, the National Broadband Plan, issued in March, eloquently made the case for a U.S. commitment to universal broadband adoption. Not as a matter of gee-whiz futurism but in the interest of giving Americans “a better way of life.”
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Inspired by thoughtful pieces by Mike Masnick on Techdirt and L. Gordon Crovitz’s column yesterday in The Wall Street Journal, I wrote a perspective piece this morning for CNET regarding the European Commission’s recently proposed “right to be forgotten.”
A Nov. 4th report promises new legislation next year “clarifying” this right under EU law, suggesting not only that the Commission thinks it’s a good idea but, even more surprising, that it already exists under the landmark 1995 Privacy Directive.
What is the “right to be forgotten”? The report is cryptic and awkward on this important point, describing “the so-called ‘right to be forgotten’, i.e. the right of individuals to have their data no longer processed and deleted when they [that is, the data] are no longer needed for legitimate purposes.”
Continue reading →
Today, the U.S. Supreme Court will hear arguments in Schwarzenegger v. EMA, a case that challenges California’s 2005 law banning the sale of “violent” video games to minors. The law has yet to take effect, as rulings by lower federal courts have found the law to be an unconstitutional violation of the First Amendment.
There’s little doubt that banning the sale of nearly any content to adults violates the protections of Free Speech, including, as decided last year, video depictions of cruelty to animals.
But over the years the Court has ruled that minors do not stand equal to adults when it comes to the First Amendment. The Court has upheld restrictions on the speech of students in and out of the classroom, for example, in the interest of preserving order in public schools.
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When the only tool you have is a hammer, as the old cliché goes, everything looks like a nail.
Net neutrality, as I first wrote in 2006, is a complicated issue at the accident-prone intersection of technology and policy. But some of its most determined—one might say desperate—proponents are increasingly anxious to simplify the problem into political slogans with no melody and sound bites with no nutritional value. Even as—perhaps precisely because—a “win-win-win” compromise seems imminent, the rhetorical excess is being amplified. The feedback is deafening.
In one of the most bizarre efforts yet to make everything be about net neutrality, Public Knowledge issued several statements this week “condemning” Fox’s decision to prohibit access to its online programming from Cablevision internet users. In doing so, the organization claims, Fox has committed “the grossest violations of the open Internet committed by a U.S. company.”
This despite the fact that the open Internet rules (pick whatever version you like) apply only to Internet access providers. Indeed, the rules are understood principally as a protection for content providers. You know, like Fox. Continue reading →
“On the whole, the results certainly seem to suggest that patent trolls with software patents do very much view the system as a lottery ticket, and they’re willing to use really weak patents to try to win that prize. That is not at all what the patent system is designed to do, but it’s how the incentives have been structured — and that seems like a pretty big problem that isn’t solved just by showing how many of these lawsuits fail. The amount of time and resources wasted on those lawsuits, as well as the number of companies who pay up without completing a lawsuit, suggest that there is still a major problem to be dealt with.”
So writes the always-thoughtful Mike Masnick at Techdirt. He is referring here to a newly-published article by John R. Allison, Joshua Walker and Mark Lemley, released as a Stanford Law and Economics Olin Working Paper. Mike has written frequently about patent trolls—companies that buy up patents from inventors and then make money by litigating or threatening to litigate against potential infringers—and never with much sympathy. Continue reading →
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