The FCC Releases the Comcast Complaint Order Part I — Why This Is A Huge Win.

The FCC just released the text of the Order adopted on August 1 finding for Free Press on the Comcast Complaint and Declaratory ruling and denying Vuze’s Petition for Rulemaking. You can get the pdf here.

Larry Lessig pretty much says it all with his letter commending the FCC on its decision. For myself, I see this as another in a series of important wins, building on previous wins. Read it, particularly the footnotes, and you will find reference to the C Block openness conditions, the Adelphia Transaction Order, and every other baby step along the road that proved absolutely critical to getting us this far.

And, just as with those victories, we did not imagine for one moment that we had finished our task or that we had solved our problems. The danger to an open internet that remains a platform “as diverse as human thought” in the face of broadband providers trying to convert it into a combination shopping mall, movieplex and theme park continues. But we prevented Comcast from creating an “industry standard” around blocking or degrading peer-2-peer applications and put every ISP on notice that they will need to make real disclosure of their “network management practices” when those practices block or degrade subscriber choices. That the market would not respond on its own — at least not in a positive way — is evidenced by the fact that Comcast, despite all the negative publicity, promises to change, etc., is still targeting bittorrent. To the contrary, had we not acted, I do not doubt that other broadband ISPs would, over time, have adopted this and similar techniques, and without notifying their subscribers in any meaningful way.

We have also created another positive precedent for the day when a future FCC or Congress will adopt rules that provide the level of protection we need to maintain an open and competitive internet. This FCC opinion establishes the jurisdictional basis for any future rulemaking and, while declining to adopt rules now, explicitly states that the FCC retains the jurisdiction to create rules in the future — noting that the Carterfone network attachment rules began as an adjudication and ultimately culminated in Part 68 of the Commission’s rules. Despite a raft of theories (conspiracy or otherwise) to the contrary, this Order does not weaken our efforts to get general rules or get legislation passed. To the contrary, by recognizing that rules protecting the openness of the Internet further the important interests of the First Amendment (Par. 43 n. 203), this Order strengthens our ability to get rules or legislation in the future.

While it leaves certain critical questions — such as whether a third party can pay a broadband access provider for “premium” treatment regardless of user preferences — unresolved, it does so in a way that leaves us free to come back without any bad precedent or presumption. Copps and Adelstein can continue to press for adoption of a fifth principle on non-discrimination without fear that voting for this Order somehow put them in a box.

More below . . . .

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Censorship — Ur Doin It Wrong. And That's Why A Mandatory Filiter For AWS-3 is a BAD IDEA!

I am, of course, the last person in the world to tell other people what they should or shouldn’t advocate for and how they should or shouldn’t filter themselves. Thus, I have no quarrel with the decision of the American Family Association and how they choose to display the news (provided they comply with all relevant laws pertaining to copyright, defamation, etc.) True, I most vehemently disagree with their choice of “pro-family” agenda. I personally think families will benefit more from resolving the pay gap, better laws on paternity leave, and family friendly work policies than focusing on the behavior of consenting adults. But hey, that’s what the First Amendment is all about, so we can have these debates.

So the fact that AFA apparently thinks “gay” is too nice a word and has its news reader automatically replace it with the word “homosexual” does not raise any issues for me — I’m even willing to defend this as a fair use alteration of the text for political speech. But as the good folks at People for the American Way noted (and captured on their own website — ain’t the First Amendment grand?) it can have some humorous and unintended consequences. In this case, the accidental “furtherance of the homosexual agenda” by substituting the word “homosexual” for the proper last name “Gay,” which is a problem now that “Tyson Homosexual” is breaking speed records. Man, I always knew Homosexual could run the distance! What champion.

This would merely be an amusing little anecdote were it not for the fact that the FCC has proposed mandatory network-based indecency filtering as part of the AWS-3/M2Z proposal now out for public comment. For those just tuning in, this is the proposal to create a the equivalent of a free wireless DSL line supported by advertising and a premium service the FCC has out on public notice (comments due July 9).

I promise to try to get a much longer post out on the AWS-3 proposal, but let me focus for a minute on the mandatory filtering (which is not mentioned in the text of the FCC Notice, you have to actually read through the rules). As we can see from this relatively harmless example, filtering is a blunt instrument that often does more harm than good. Even with the increase in computational power from Moore’s Law, blah, blah, no automated filtering system can even come close to making the sort of contextualized judgments of what constitutes indecency that the Constitution demands. Heck, even human beings can’t agree on what makes something indecent and what makes it art. Whenever social networking sites or search engines or whatever get pressured into breaking out the broom in the name of the children, it invariably wipes out cancer support groups, rape survivor groups, and a bunch of unrelated stuff like chess.

And the FCC wants to require that the free network, accessible to every American, will also judge whether a future headline such as “Gay Doping?” is a discussion of a possible Olympic sports scandal or an advertisement for a same-sex rave?

I can laugh about the American Family Association and their personal filter follies that harm no one but those who chose to use their news service. But I shudder to think this may be the fate of our national broadband safety net.

Stay tuned . . . .

Yo Google! Your Lawyers Are So Stupid, They Copy AT&T!

I had an unfortunate head desk moment this morning on reading that Google Ads (such as the ones to the right on your screen) reserves the right to pull their service if you engage in “any action or practice that reflects poorly on Google or otherwise disparages or devalues Google’s reputation or goodwill.” This looks suspiciously like the terms of service my fellow travelers on net neutrality slagged AT&T for using.

In both cases, I expect that the intent is not to yank people who say nasty things about the parent company, but to reserve the right to yank the service when someone does something revolting. “Look, NAMBLA uses Google Ads, Google supports pederasts.” or “Look, the worlds worst spammers have AT&T connections, they support spam.” By why can’t my lawyer colleagues just say so, instead of writing something so broad that it covers even general criticism? Yes, “tarnish” is one of those words of art that all us legal folks understand has a very specific meaning. But it doesn’t do a damn bit of good when folks who are trying to understand the terms of service are not lawyers, which — outside of DC — covers most of the user population.

I have no doubt that the usual suspects will be out baying for blood and denunciations like the staff of the Clinton and Obama campaigns after a rival campaign staffer sneezes funny. So even though I did not give a rat’s patootie on the AT&T terms of service (being a lawyer and understanding what it meant), I shall now both condemn Google for being so stupid and test their policy by making several derogatory comments about GoogleAds.

[Begin OUTRAGEOUS accent]
Hey, GoogleAds! I fart in your general direction! I wave my very naughty bits at you! You are so lame, you copy terms of service from AT&T!

Now change your TOS to something sensible or I shall taunt you some more.
[end OUTRAGEOUS accent]

Did the ads on the screen disappear? No. Good. Can we consider this settled and actually get back to real policy?

Keep this up and I shall need to make a major speech about “Terms of Service In America” and invite us all together for some major healing.

Stay tuned . . . .

SCOTUS Gets Down & Dirty with Indecency!

The Supreme Court just agreed to hear the FCC’s appeal on the indecency case. This case involves whether the FCC acted correctly when it changed previous precedent and held that even a “fleeting utterance” of certain words (in this case, the “F-word”) can qualify as “indecent.” Previously, the FCC had a rule that it would take the entire context of the use of an obscenity into account, and that a mere “fleeting utterance” in the context of live television (especially of a newsworthy event) would not constitute indecency.

What’s at stake? See below . . .

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Is Nancy Pelosi Possessed By A Demon Trying To Sabotage The Democratic Party? Or Is The “SAFE Act” A Big Yawn?

That’s the question I’m trying to figure out today.

It all has do with the passage last night of yet another bill written by luddites who see Internet access as the work of Satan and don’t care if they are screwing up the lives of actual women and children who depend on cheap access for their education, health care and livelihoods. While such things were a routine election year stunt under the Republicans, it is somewhat shocking to see Democratic House Speaker Nancy Pelosi (D-CA) pull something like this. As the Dems used a special parlimentary manuever reserved for “noncontroversial” bills to bring a fresh bill to the floor without any consideration by relevant committees or debates, (let us savor the irony of this happening the same day as the House Commerce Committee hearing labeling Martin’s FCC processes as “broken” for pushing items through in the dead of night without allowing debate or time for consideration) it is clear Pelosi and the House Democratic Leadership view this as something positive and important.

As I discuss below, however, according to the report by Declan McCaluagh, the bill is a potential disaster of epic proportions for poor women and children, minority inner city neighborhoods, and rural areas — all of whom benefit from the growing availability of community-based wifi and municipal wifi projects. And, as a political matter, it will create serious headaches for the Democrats among tech voters, younger voters who actually understand and rely on these servcies, and civil libertarians. Because just as these voters were finally starting to shake the long-standing stereotype of the Dems as the “Nanny State” party and regard the Republicans as the party that is generally anti-tech, anti-civil liberties, and far too obsessed about sex for its own good, in steps Ms. Pelosi and the rest of the Democratic leadership to alienate these guys in time for the ’08 election.

So is Pelosi possessed by a demon out to destroy the Democratic Party’s chances in ’08? Or — as equally Libertarian but usually more careful George Ou suggests — has famed Libertarian and generally anti-Democratic Party reporter (of “Al Gore Claims He Invented the Internet” fame, and, more recently, “Net Neutrality Is Dead and Buried — Thank God”) once again let his prejudices run away with him ad get in the way of accurate reporting? Although frankly, even if Ou is right, I think Pelosi and the Democratic leadership that rushed this through last night have done themselves no favors and — as is so often in the case with bills writen by a cobination of sincere ignoramaces with deep feelings and no sense with cynical political grandstanders — the proposed SAFE Act doesn’t actually do much to solve the real problem of trafficking in child pornography.

More below . . . .

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The Verizon/NARAL Flap And Lessons for NARAL (and all the rest of you advocacy orgs out there)

It seems like every time I go away, something fun happens on Net Neutrality. I go on vacation and AT&T accidentally censors Pearl Jam. I go away for Sukkot and Verizon makes a major faux-pas by blocking NARAL’s text messaging campaign.

As one might expect, faster than you can say “crap, it’s a Democratic Congress these days,” Verizon went into immediate damage control. It reversed its decision and issued a statement that this was all a big mistake based on an antiquated policy that Verizon had now fixed. Heck, I even believe Verizon that this was an accident. Unlike Comcast or AT&T, Verizon has no prior history of such censorship (although they apparently did play ball with NSA when it came to spying on American citizens). But I make my usual point that I don’t want my free speech dependent on the good will of megacorps, enforced with non-stop vigilance and the ability to raise a great virtual cry every time wrongdoing occurs. The First Amendment is too damn important to depend on getting a front page story because somebody directly blocks access, even if it is an accident. I want my freedom to communicate protected as a matter of right, not as a matter of grace and political pressure.

No, I shall let my more eloquent colleagues like Susan Crawford and Tim Karr make the usual arguments. Instead, I direct my comments to NARAL and other organizations on both the left and the right with potentially “controversial” messages.

Scan this list of organizations, businesses and individuals that are part of the Savetheinternet.com coalition. Are you on it? I don’t see NARAL, or NOW, or a whole bunch of other orgs (left or right) that should care about this stuff — preferably before they get bit in the butt on it. And it’s not just Savetheinternet.com. It’s also about stopping big media and corporate censorship by opposing further media consolidation. Think NARAL will be able to buy ads in the Wall St. Journal after Rupert Murdoch buys it? Heck, the good folks over at the United Church of Christ can’t even get their church advertisements shown on major networks because they might possibly in two frames hint that they accept gays and therefore (by implication) support gay marriage. So you would think that folks with so much to lose, on both the right and the left, would jump on this campaign.

But sadly, they don’t. It is the unfortunate truth that far too many organizations that should support these campaigns “do not play well with others.” They fret about “expending their political capital.” They distrust working with others where they cannot “Control their name and message.” They refuse to participate in coalitions or causes with certain others including people on the same side, because of accumulated bad blood that began with an incident so long ago no one even remembers what it is about. But most fundamentally, they don’t see how issues of network neutrality and media concentration impact them or their core issues.

Hopefully, the recent Verizon/NARAL flap will serve as a wake up call not merely to NARAL, but Second Amendment Sisters, GLAD, and anyone else with a potentially controversial message. YOU NEED TO CARE ABOUT THIS STUFF! Really. Yes, I know you’re busy on a gajillion other things, you hate half the people listed on Savetheinternet.com list, whatever. If you don’t get your rear ends in gear and start dealing with Network Neutrality and media concentration, then it won’t matter what your actual issue or message is, because no one else will freakin’ hear it, see it, or care about it. Because your ability to get your message out and communicate directly with your membership will depend entirely on hoping you can suck up to/brow beat/bribe a handful of megacorps into letting you communicate with your members and the rest of the world, because you will have no legal right to force them to do so.

If that’s the world you want to live in, then keep doing as your doing. Decide that you “don’t have the resources to get involved,” that this “really isn’t your issue” and you don’t want to “dilute your name or spread yourself too thin.” I’m not sure exactly what you’ll do with all your horded “political capital” when you can’t actually get your message out, but clearly that’s not a concern of yours.

Or you can take two whole minutes and sign up on Savetheinternet.com to join the campaign.

Your choice. But if any members of any of these orgs are reading this, you might want to ask your home offices why they can’t take two minutes to fire up the old web browser and go to Savetheinternet.com to join the campaign.

Stay tuned . . . .

I Go Away for a Week and AT&T Gets Cocky

So I trot off to enjoy my regular vacation from the 21st Century at the annual Pennsic War to discover that AT&T has taken my brief absence as an excuse to get cocky and suck up even more to the Bush Administration by block Pearl Jam’s anti-W lyrics. “Oopsie,” says AT&T. “All an honest mistake! Really!” Except — surprise! — it now appears that AT&T may also have blocked other groups during other live performances when criticizing Bush.

Isn’t it amazing how these “accidents” always seem to go in one direction rather than another? For example, wasn’t it just the most amazing coincidence last year when Comcast “accidently” snipped off an embarassing clip from a video on demand news report?

One may ask why these companies try to get away with such nonesense. The answer is (a) it doesn’t hurt them to try; and (b) they do get away with it. Especially when it comes to time sensitive speech, there is really no penalty for AT&T, Comcast, or any other megacorp with market power to engage in this form of corporate censorship.

On the other hand, as I observed recently, the potential rewards of sucking up to this administration can be quite considerable. AT&T has certainly shown it knows how to suck up to this Administration. And, in return, the Bush Administration Department of Justice let through the AT&T/BellSouth merger with a nod and a wink.

So we can expect to continue to see such “accidents” in the future, while the corporations and their cheerleaders brush off such corporate censorship as inconsequential random events that cannot possibly warrant prophylactic regulation. That we have achieved the worst excess of government censorship through the simple expedient of outsourcing is ignored and disregarded by these Libertarian defenders of the status quo in much the same way they ignore the reality that certain forms of regulation are a necessary prerequisite to genuinely competitive markets. But better the forms of free speech and the trappings of competition then actual free speech and real competition — if the cost of achieving either is to admit a flaw in the sacred dogma of the Gods of the Marketplace.

Stay tuned . . . .

We are pleased to offer our customers whatever services they want, as long as they don't help competitors . . . .

As some of you may have heard, carriers Cingular, Qwest and possibly other carriers are refusing to allow their subscribers to call freeconferencecall.com. Expect a number of other services to suffer similar fates — barring regulatory action or other legal steps.

What’s going on? It’s actually not a net neutrality issue (although as Bitchslappin Blog points out, it does serve as a rather nasty reminder of what is likely to happen in a non-neutral network). The issue here stems from a rather complex bit of regulatory arbitrage that I don’t fully understand myself. The facts here remain very murky, and I have no idea of the carriers are legally entitled to block these calls. (although my gut feeling based on my very surface understanding of the applicable law and the available facts is a qualified no — How’s that for legal caveats and wishy-washitude!) But if you’d like my speculaton on what I think is going on here, and why it’s likely to go on, read below….

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How The Conservative/Big Business Alliance Bankrupted Air America

Few things raised joyfull cackles among Republicans in the waning days of 2006. Many, however regarded the bankruptcy of Air America as a bright spot in an otherwise dismal fall. Talk radio, it appeared, remained part of the conservative “heartland” where such liberal voices as Al Franken meet a resounding silence.

However, as reported by the New York Times, the story may have a lot more to it then a tale of silly liberals who can’t run a business and have nothing interesting to say. It appears that 90 major national advertisers engaged in a boycott of Air America programming, to the extent that they wanted their advertising stripped out of syndicated material from other sources (here, ABC Radio Network). The interesting question, of course, is why would supposedly dissinterested companies with no motivation to interefere with domestic politics want to drive Air America out of business?

Hahahahaha…..I love it when I ask silly rhetorical questions like that. For a further specualtion on what apparently went on and why I think the new, Democratic Congress might want to do a little investigatin’ into the Case of Secret Boycott, see below….

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Outsourcing Big Brother

I gave this speech last July at the ACLU Biennial Conference in New Orleans. At the time, the news that major telcos and search engine companies were cooperating with the government by providing all kinds of personal infomration had not yet hit the press. I was just applying logic.

It seems useful to me to publish here as a reminder that the recent headlines are not an aberration or the work of a few evil or gready or misguided men. It is the inevitable result of a system that concentrates power and information in the hands of a few large coorprations with every interest keep those in government happy.

We don’t ask chain saws to distinguish between human beings and trees. They are inanimate tools. If you turn it on, it cuts through things. If you want to make it safer, you need to put on safety locks and other devices, or someone is likely to cut his or her own leg off by accident some day.

Similarly, it is ridiculous to depend on corporations to defend private information. They are designed to maximize revenue for shareholders. This does not make them good or bad, greedy or virtuous. It makes the corporation a tool. If we, as citizens of democracies, care about our civil liberties, then we need to install some safeties.

Stay tuned . . .

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