How Democracy Works, Or Doesn’t

Associated Press is shocked –SHOCKED — To Discover Government Cannot Be Trusted With Power to Spy

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Dutch explorer and author Arthur Wichmann summed up the history of bungled exploration attempts of New Guinea with the phrase “Nothing learned, everything forgotten.”

I find myself thinking of this phrase in light of the revelations that the Department of Justice (DoJ) asked for, and got, two-months of phone and data records for Associated Press reporters. DoJ apparently asked for the data because it wanted to find the source of a leak that the Administration foiled an Al-Qeda plot. According to sources, the AP apparently sat on the story for several days to protect the lives of U.S. agents, but balked at further delay so the Administration could break the news itself in a press conference. AP accuses the DoJ of abusing its surveillance powers to punish AP for raining on its parade. Verizon apparently turned over the information with nary a quiver or question.

The Administration denies any knowledge of DoJ’s actions, it also denies any comparisons to Nixon, saying: “People who make these kinds of comparisons need to check their history.”

Actually, a bunch of us do and did. Which is why I say “nothing learned, everything forgotten.”

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Will Walden Wipe Out DMCA and CISPA To Take Out Net Neutrality In The Name of “Internet Freedom?”

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Today, the House Energy and Commerce Subcommittee on Communications and Technology will begin mark up of the so-called “Internet Freedom Bill.” As explained in the Majority Briefing Memo, we’re still on about that whole “the ITU will take control of the Internet and black helicopters will come for out name servers” thing.”  Unfortunately, as keeps happening with this, it looks like some folks want to hijack what should be a show of unity to promote their own partisan domestic agenda. Specifically, does the bill as worded undercut the (by accident or design) the Federal Communications Commission’s (FCC) authority to do things like Network Neutrality?

 

As I elaborate below, however, this is not so much a stab at net neutrality and the FCC generally as it is a murder/suicide. You can’t claim that this clips the wings of the FCC to do net neutrality by making a law that the U.S. is opposed to “government control” of the Internet without also eliminating laws that deal with cybersecurity, copyright enforcement online, privacy, and a range of other stuff that are just as much “government control” of the Internet — but that most Republicans opposed to net neutrality actually like. Plus, as I noted last week when discussing the rural call completion problem, taking the FCC out of the equation may have some unforseen nasty consequences that even Republicans might not like.

 

More below . . . .

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SOPA Blackout, One Year Later

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A number of folks are celebrating the one year anniversary of the Great Sopa Blackout as Internet Freedom Day. I’m glad, because it deserves celebrating and remembering.

In the first place we ought to remember how the broader Internet community came together and shifted SOPA from “unstoppable” to “dead” in a week. As I noted at the time, the cynical “will have all manner of sensible explanations for what ‘really’ happened and why what we did didn’t ‘really’ make a difference.” As time goes on, and it turns out that corruption continues to corrode our political system, the siren call of the cynics likewise corrodes the will to resist despite the evidence of our own experience. It’s important, therefore, to remember what we achieved and to realize that we can therefore achieve it again.

Nor was SOPA the one-time event some seem to believe. True culture change takes time and persistence. SOPA/PIPA was not an aberration, it resulted from the normal way of doing business in Washington, where legislators and policymakers treated copyright and Internet issues as industry food fights, brokering backroom compromises between lobbyists without concern for the public or the public interest. So yes, CISPA passed the House — after Republican House leaders rushed the vote to outrun public protest. But as I observed at the time, this was a sign of weakness, not strength. Despite industry buy in, public resistance from the “Internet constituency” killed the bill in the Senate.

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A Pocket Guide For The WCIT-12

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So here I am in Dubai, attending the World Conference on International Telecommunications (#WCIT or #WCIT12) of the International Telecommunications Union (#ITU). The good folks at the ITU are webcasting the Plenary Sessions (the official part where the countries vote). You can tune in here (archives of live caption transcripts here). As you might expect, the WCIT has its own specialized vocabulary which can make following all this rather difficult. I have therefore prepared an impromptu and very incomplete glossary of the acronyms and peculiar phrases of the WCIT for the benefit of folks trying to follow along.

Disclaimer: I am an advisory member of the U.S. delegation, but nothing in here is an official statement of U.S. Del. I’m offering this for information purposes only.

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This Is Why Policyland Is Complicated

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Yesterday, FCC Chairman Julius Genachowski circulated a Notice of Proposed Rulemaking to address the problem of high phone rates charged to inmates and their families.  For those unfamiliar with this issue, many state prisons team with telecom providers to charge outrageous phone rates, sometimes exceeding a dollar a minute, for inmates to call family. Since these calls are collect, the burden falls on the inmates family, who are often poor. For too many, the weekly or monthly choice is whether to pay to talk to a son or daughter (or spouse, or father or mother) behind bars or whether to have enough to eat or pay for needed medication. This phone gouging is not only cruel, it is also bad policy. Just about all research on preventing recidivism shows that the more contact and support someone in jail receives from their family and community, the less likely they are to return to crime. So from a societal standpoint, we would want to do everything to encourage prison inmates to stay in tough with family.

As you might imagine from the above, I regard the current practices as cruel and abusive of the most helpless. This is literally a case where, as the Bible commands us, “suffer not the oppression of the widow, the orphan, the stranger or the poor.” (Zach 7:10). If ever there was an “unjust and unreasonable rate or practice” this surely qualifies. I cannot praise Genachowski enough for acting on this.

Also yesterday, Genachowski circulated a draft order to conclude the pending review of media ownership. He proposes to entirely lift the television/radio cross-ownership limits and to permit newspaper-broadcast cross-ownership in the top 20 markets.

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Open Letter To Congress: Please Do Not Try For A Grand Bargain When “Competence” Still Eludes You.

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Dear Congress:

Please solve the Fiscal Cliff, but please don’t try for any “Grand Bargain.” Frankly, the fact that you can even suggest with a straight face that this is the time for a total rewrite of not just the tax code, but just about every major social program on which Americans rely, is a good indicator that you have absolutely no business trying to make decisions like this at the moment.  Like texting while drunk or Tweeting while in a rage, I know this seems like a really good idea. Worse, all your buddies in the media keep egging you on, telling you to “think big” and “show leadership.” Do not listen to them. Remember when your former best friend told you that drunk text to you coworkers was “outrageous man, do it!” or when your Tweeps kept saying “yeah, you totally tell it like it is!” And then when you came back later you realized you had totally embarrassed yourself? The media is not your friend here.

Just solve the fiscal cliff problem then go home for Xmas break. Get rested, maybe even laugh a little at yourself for all the ridiculous and crazy insults you shouted about the people you need to negotiate with, then come back in January ready to do the real work.

Still don’t believe me? Meet me below . . .

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Why Our Politics Are So Poisonous — It’s OK To Say “Thank You” and Romney Doesn’t Have a “Christie” Problem.

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We spend so much time lamenting the poisonous nature of today’s politics. “Why can’t the other side even acknowledge when our side agrees with them?” We ask. “Why can’t we show simple human courtesy? Why can’t politicians set aside their partisan squabbles and do what is right for the country?” You want to know why? Look no further than the media frenzy and cynical sneering in response to Governor Chris Christie’s effort to set aside politics and do the right thing in the face of disaster.

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CISPA Passes House, But I See Reasons For Optimism — Lessons From 2006 And How to COPE With A House Defeat.

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In the face of a remarkably successful public outcry, the House Republican leadership moved up the vote on the Cyber Intelligence Sharing and Protection Act (CISPA) by a full day and amended it to make it even more awful. While obviously not a good thing, I see a lot of positive signs for the future fight.

Why? Because CISPA backers faced serious signs of opposition — enough so that they moved up the vote to avoid further R defections. By the end of yesterday, the number of Rs committed to opposition had grown from 2 (Barton and Paul) to 28. That sounds small, but the trend was rapidly accelerating in the wake of the Tea Party uprising on this. Meanwhile, the White House veto threat combined with the civil liberties outcry from the left help shore up Democratic resistance. While it did not prove sufficient to prevail in this round, it will prove extremely important as we roll on to the Senate.

In many ways, the situation here reminds me of when Congress considered the Communications Opportunity Enhancement Act of 2006 (COPE). Among other things, COPE would have prohibited the FCC from adopting significant Net Neutrality rules (which everyone at the time actually assumed the FCC had the authority to do, so opponents wanted legislation to limit that authority). Almost exactly six years ago, we suffered a similar defeat in the House. Then, as now, I saw good reasons for optimism that we will ultimately prevail. In fact, our situation then was much weaker than the situation now.

I explore some of the reasons to believe that we can continue to ramp up the fight against CISPA in the Senate and ultimately prevent passage of either CISPA or its equally- nasty-but-for-different-reasons Senate version, the Cybersecurity Act of 2012. (While I appreciate the White House veto threat, I prefer not to rely on it.). But before I dig into any detail, let me repeat what I said 6 years ago when COPE passed out of Committee despite the effort of grassroots activists on the left and right to stop it:

There’s a lesson here . . . . YOU CAN’T OUTSOURCE CITIZENSHIP. You can’t let “the tech companies” or even “the consumer advocates” or anyone speak for you. Citizenship carries responsibilities that go beyond the ritual of voting every two years. But when citizens wake up and speak up, and speak to each other, they find — to their surprise — they are strong. They find they have power. And they find that being a citizen may take hard work, but it is so, so, SO much better and more satisfying than being a couch potato. As the great Jewish sage Hillel said: “If I am not for myself, who will be for me? If I am only for myself, who am I? If not me then who? If not now, when?”

More on the current situation below . . . .

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Mr. Sherman’s Magical Thinking

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I am always impressed with the utter unwillingness of the Entertainment industry to acknowledge the world as it actually is, rather than the world as they want it to be. Perhaps it is a side effect of being in the business of ‘selling dreams.’ In any event, I could not help but marvel at Carey Sherman’s recent New York Times Op Ed “What Wikipedia Won’t Tell You.” Even for the Entertainment Industry, it is astounding. It actually crosses the boundary from an industry-centric bias to outright magical thinking.

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The PIPA Aftermath — Will Senate Democrats Drive Off A Cliff For Hollywood?

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One of the more surprising developments in PIPA/SOPA politics has been the transition of Hollywood-backed legislation from a bipartisan issue with both Republican and Democratic proponents and opponents to a partisan issue. Democrats (particularly Senate Democrats) are increasingly identified as supporting the legislation and Hollywood while Republicans increasingly frame this as an exercise in big government and crony capitalism.

On the one hand, this seems remarkably unfair given that Democratic Senator Ron Wyden (D-OR) was the first Senator to oppose PIPA and one of the chief architects of the bipartisan alliance of Senators and Representatives that kept PIPA/SOPA from advancing to the point of no return. It also ignores the role the Obama Administration played in legitimizing and galvanizing anti-PIPA/SOPA efforts (including the SOPAStrike web blackout) by strongly opposing PIPA/SOPA before the SOPAStrike, despite the naked threats of Hollywood moguls to punish the Obama campaign by cutting off any further contributions.

But too many Senate Democrats seem intent on handing Republicans a partisan victory. Whereas even Republican champions such as Rep. Lamar Smith (R-TX) and Rep. Marsha Blackburn (R-TN) have acknowledged “legitimate concerns” of opponents and have “shelved” SOPA so that it can be “scrapped” and a new approach developed, high profile Senate Democrats continue to insist that they will press on against what they regard as unwarranted opposition motivated either by financial interest, disinformation, or political opportunism. Indeed, PIPA author Senator Pat Leahy (D-VT) used his opening floor speech yesterday to chastise Republicans for their opposition to PIPA and his hope that, now that Republicans are back in Washington and away from all those annoying constituents protesting PIPA, they will return to the True Path of Reason — which lies in fanatically embracing any legislation that gets the MPAA seal of approval.

Which brings us to the interesting question for the legislative season: will prominent Senate Democrats chose to make this the issue on which they will drive the Democratic Party generally off a cliff by continuing to try to “sell” PIPA/SOPA, thus embracing Republican charges of a “culture of corruption” and “crony capitalism?” Or will they finally come to their senses and publicly embrace those like Wyden who insist that measures directed against online infringement must not also threaten free speech and innovation?

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