My recent comments on a developers experiment in combatting software piracy, posted here.
And an absolutely brilliant adventure in free speech marital event planning, here (OT).
Inside the Beltway (Politics) 
On Wednesday, the FCC released the decision (PDF, text) it adopted back on August 1 holding that Comcast had violated the FCC’s 2005 net neutrality principles (PDF, text) by “blocking” peer-to-peer file-sharing traffic on its network using the popular program BitTorrent. Paragraphs 3-11 lay out the FCC’s (still-disputed) finding of facts.
Commissioner McDowell‘s Scaliaesquely scathing dissent (PDF pp 61-67) provides an accessible summary of the order and should be required reading for everyone on all sides of the issue. Despite having been provided with the final version of the order only the night before its release, McDowell distills the order into six key points, rejecting the Commission’s reasoning on all but one point (jurisdiction):
- Was a complaint properly brought against Comcast under FCC rules? No, FCC rules allow the kind of complaint brought against Comcast to be brought only against common carriers, which cable modem operators are not.
- Does the FCC have jurisdiction over Internet network management? Yes, under the Supreme Court’s 2005 Brand X decision.
- Does the FCC have rules governing Internet network management to enforce? No, “the Commission did not intend for the [2005] Internet Policy Statement to serve as enforceable rules but, rather, as a statement of general policy guidelines,” nor can the Commission “adjudicate this matter solely pursuant to ancillary authority.”
- What standard of review should apply? No, even assuming this case had been properly brought under enforceable rules, the Commission applied what amounts to a “strict scrutiny” standard–something unprecedented for reviewing private, rather than governmental, action.
- Was the evidence sufficient to justify the Commission’s decision? No, the “FCC does not know what Comcast did or did not do” and should have “conduct[ed] its own factual investigation” rather than relying on “apparently unsigned declarations of three individuals representing the complainant’s view, some press reports, and the conflicting declaration of a Comcast employee.” The evidence did not suggest any discriminatory motive behind Comcast’s network management techniques
- Is the decision in the public interest? No. “By depriving engineers of the freedom to manage these surges of information flow by having to treat all traffic equally as the result of today’s order, the Information Superhighway could quickly become the Information Parking Lot.” Comcast had already resolved its dispute with BitTorrent through outside arbitration. The FCC should “allow the longstanding and time-tested collaborative Internet governance groups [already working to establish processes for resolving such disputes] to continue to produce the fine work they have successfully put forth for years.”
You can read McCain’s Technology plan here. Among other things he’s for “open and fair” trade and preserving the FCC’s 4 freedoms, but will not be in favor of a prescriptive, legislative approach to net neutrality. Overall it’s a mix of pretty good policies, albeit that one on muni broadband.
- Good: John McCain Opposes Higher Taxes On Wireless Services. John McCain has opposed new state and local discriminatory taxes and fees on wireless services, which are relied upon by over 250 million Americans. Taxes account for over 20 percent of many mobile phone users’ bills.
- Good: John McCain Has Been A Long And Ardent Supporter Of Fair And Open World Trade. Trade greatly benefits America and the American worker. The best protection for American workers is to ensure that they have access to the world’s customers, 95 percent of whom live outside the United States. This access is particularly important for workers in the information technology sector.
- Bad: John McCain believes that people acting through their local governments should be able to invest in their own future by building out infrastructure to provide high-speed Internet services. For this reason, Senator McCain introduced the “Community Broadband Bill,” which would allow local governments to offer such services, particularly when private industry fails to do so.
Some good news for bloggers. This was posted today on the Heritage Foundation “Foundry” blog by Dave Mason, former chairman of the FEC (Mason is now working with us at Heritage as a Visiting Senior Fellow):
“Bloggers and web site operators may support, oppose, link to, and work cooperatively with federal political candidates. This freedom was reaffirmed when the newly re-constituted Federal Election Commission released its first two enforcement cases August 12.
The Commission’s refusal to regulate blogging and internet sites is not new, but it is notable is that the pro-blogger decision was made within a week or two of the new Commission taking office. Of the scores of items on its docket, the new Commission chose to address this one first: quite likely because they wanted to send a signal to that bloggers are free to engage in politics
Specifically, the Commission said that Gordon Fischer, a former state political party chairman, did not violate election law when he maintained a web site and blog (Iowa True Blue) promoting Barack Obama and criticizing Hillary Clinton. (Our friends at CCP note that the complaint was filed by a Clinton supporter: observing that all too many FEC complaints are filed for political harassment
–Money that Fischer spent creating and maintaining the site was not regulated by the FEC.
–Even if Fischer coordinated (discussed the blog and postings) with the Obama campaign, the site remained free from Federal election regulation.
–A link to a campaign web site or video does not subject the site linking to the campaign to regulation.
–blogs and web sites may “republish” campaign material without violating election laws.
Bottom line: by making this case one of the first two it released, the Federal Election Commission reaffirms that bloggers and web site operators may support and oppose political candidates, republish or link to campaign material, and work as closely as they wish with campaigns in doing so.
The one activity that remains subject to FEC regulation is paying for an ad on someone else’s web site supporting or opposing a Federal candidate.”
“Don’t Believe the Hype” — Chuck D, Public Enemy
De Tocqueville is famous for discussing the American way of enlightened self-interest, in which there are mixed elements of private and public goods involved. But when it comes to self-interested lobbying by the tech industry, it’s the words of an American rapper, not a French rapporteur, that I’d like to discuss.
“Innovation!” – “openness” – “jobs” – “choice.” There’s a lot of buzzword hype thrown out by IT companies. Policymakers hear these buzzwords all the time, which are usually connected to how certain regulatory polices can benefit the public interest the most.
So, what does it all mean? Well, a recently released paper of mine tells you absolutely nothing about which IT polices are better than others. That’s right, nada. Zilch. Zippo.
Instead, the paper — Understanding the IT Lobby: An Insider’s Guide — is an explanatory of business models in the Information Technology industry, and the public policies that can help or harm companies over their competitors. It’s not a Scott McClellan tell-all – rather it connects the dots between public policy rhetoric and licensing, service, and ad-based business models.
The gist: the pursuit of one public policy can disadvantage not just one company, but an entire business model. Continue reading →
The Federal Communications Commission, according to the Wall Street Journal, is prepared to stop Comcast from blocking peer-to-peer file sharing later this week — although the commission won’t fine the company because it wasn’t “previously clear what the agency’s rules were.”
Now, according to Multichannel News, comes word that there is a wireless broadband provider who explicitly prohibits all uses that may cause extreme network capacity issues, and “explicitly identif[ies] P2P file sharing applications as such a use.”
I am not familiar with the wireless broadband provider’s practices in this area (nor even of its relevant terms of service, even though I am a customer). However, Comcast delayed file sharing only when necessary to relieve network congestion. Absent congestion, Comcast permitted file sharing. A cable broadband network typically experiences congestion during the early evening hours. Which means that if file sharers were willing to avoid those hours they could share files on the Comcast network the rest of the time.
So it will be interesting whether the FCC bans network management which prohibits file sharing, in which case cable and wireless networks could become congested to the annoyance of millions of ordinary users. Or whether it allows broadband providers to practice network management so long as they clearly disclose it, in which case file sharers may discover they can’t use a broadband wireless or cable connection to share files, ever. Or maybe the brilliant politicians at the commission will require disclosure in sufficient detail to enable hackers to defeat network management altogether, permitting congestion to reign but ensuring that providers, not the commission, will be blamed.
As everyone who reads this blog knows, the architecture of cable, wireless and wireline networks is completely different. Each have unique congestion challenges, and in the short term all providers must have flexibility to find appropriate solutions.
The key point is that all broadband providers are trying to increase bandwidth as fast as they can. The proper role for the commission is to eliminate barriers to investment, of which regulatory uncertainty is one of the most significant.
If a particular company, Comcast, is the target here primarily because it refused to pay certain political dues or tribute, as I suspect it is, we should acknowledge that and take the company’s side.
Continuing my campaign to bring attention to congressional web use rules, I have an article up at Ars Technica today. Bottom line:
Although the partisan tensions have now subsided a bit, the greater problem persists. Culberson’s use of video-sharing and microblogging technology continues to violate House rules. So do Speaker Pelosi’s YouTube channel, Digg profile, Flickr page, and Facebook profile. The new rules proposed by Capuano and supported by Pelosi would not authorize these uses. In contrast, alternative rules (PDF) proposed by the Republican minority would allow members to use any service so long as they comply with existing content rules that prohibit political or commercial endorsements in official communications.
The reason I think this is so important right now is that both the House and the Senate are currently looking to change their rules, and its vital that they get them right. I know the blogosphere knows what the right call is here, they just need to make sure that Congress gets the message. That said,
Since the initial [reaction on the blogs], however, the blogosphere has been relatively silent on the issue, which one imagines should be near and dear to its geek heart. The silence has been especially deafening from bloggers on the political left who are best positioned to influence the House Democratic leadership’s position. Pelosi spoke at this year’s Netroots Nation conference (formerly YearlyKos) and participated in an “Ask the Speaker” session. Not one question, however, related to congressional web use restrictions.
I hope you’ll spread the message about this by blogging about it, Digging the story, and generally spreading the word. This is not a partisan issue, it’s an issue on which all bloggers and technophiles can agree, and it’s definitely an issue that we can win.
Over on the Open House Project blog, John Wonderlich ponders what would sensible web-use rules for members or Congress look like. As I’ve noted here recently, both the House and Senate are looking to update the types of restrictions they place on how their members may use internet technologies. John writes:
The question now before the Franking Commission is how to update what Pelosi and Capuano have both admitted are “antiquated” restrictions. They have to balance legitimate concerns — decorum, commercialization, and improper taxpayer funded political content — against what all involved parties have recognized as immense potential online. … What really constitutes commercial endorsement? When does conduct become unacceptable or undignified? What role should Congress play in enforcing those questions online? Where do the edges of “official duties” lie anyway? Are we treating the Internet differently than we do traditional media?
It seems to me that the first step is to separate message and medium. House and Senate rules should address what is proper and improper content—that is, they should have rules restricting the use of official resources to produce political or commercial messages or content that is undignified (however they want to define that). In fact, they already have such rules. That sort of content regulation, however, should be completely separate from restrictions on the medium used to transmit the message. As long as a member stays within the content rules, the medium should not matter.
As Cord noted here a week ago, a letter from Rep. Michael Capuano (D-Mass.) suggesting changes to Congress’s rules governing how members may post videos to the Internet stirred a firestorm of commentary that culminated in a letter from Speaker Nancy Pelosi, a New York Times article, an NPR story, and a petition effort from the Sunlight Foundation that can be found at www.LetOurCongressTweet.com. The fact that this brouhaha sparked so much activity is a sign of how important this topic is, and now that the dust has settled a bit we can look at the issue more calmly.
Despite suggestions to the contrary during the initial frenzy, the fact is that the proposed amendments would affect only video and not Twitter or blogging. Also, the proposal, which limits pretty severely where House members may post video, is actually a loosening of current rules. It’s understandable why some folks who are sensitive about online transparency pounced on this like they did, but it’s important to get the facts straight.
That said, it’s an absolute embarrassment that current House rules restrict how representatives link to outside websites. For example, I’ve talked to staff who say that while they would like to link to their member’s constantly updated voting record on GovTrack.us or the Washington Post’s Congress Votes Database, they won’t for fear of violating House rules. (The Open House Project’s report on member web-use restrictions explains in detail how the rules that govern the web and email are based on regulations developed for snail mail.)
To me, what should be the issue is the rationale for the regulations. For example, the rules proposed by Rep. Capuano would allow members to post video to outside hosting services so long as “the official content [is] not be posted on a website or page where it may appear with commercial or political information[.]” The reason seems to be that commercial or political messages anywhere in the vicinity of the official video clip would taint the “dignity, propriety, and decorum of the House.” Capuano explains in a follow-up statement:
Apparently the Republicans spreading these lies would rather operate without rules and open the House to commercialism. Maybe they don’t care if an official video appears next to a political advertisement for Barack Obama or John McCain, creating the appearance of an endorsement. And I guess they don’t care if constituents clicking on their videos will be treated to commercials for anything you can imagine, from the latest Hollywood blockbuster to Viagra. Certainly, advertisements are a reality in today’s world and most people can distinguish. However, it is also a reality that Members of Congress who use taxpayer money to communicate with constituents should be held to the highest possible standard of independence — and the appearance of independence.
When I saw the announcement of Google’s “Internet for Everyone” campaign on their Public Policy Blog, I have to admit, my BS detector started to rise.
“Ubiquitous and open broadband access for every American [should be] a priority in the next administration,” they say.
How about now, Google, and you?
You could have bought the spectrum that you encumbered with “open” rules in the 700 MHz auction, but you didn’t. Now you’re sitting back saying the government should do it for you.
Who would gain from the next administration making broadband “a priority”? Google, of course.
Then I clicked over to the site and saw the evil kid alone at the computer in the living room. Is that a parent drinking wine in the kitchen? Really, I couldn’t help myself.
The campaign “stands for” access, choice, openness, and innovation. What about fair play? Peace? Ending world hunger? A platitude in every pot and a bromide on every CRT.
Really, it’s a bunch of pap that Google will use in Washington, D.C. to insulate itself from competition and drive wealth to its owners. Seeking profit is what compaines like Google are supposed to do – but not using the nation’s public policies.
Update: Julian Sanchez nails it with: “All this may have a whiff of ‘and a pony’ about it . . . .”
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.