Tales of the Sausage Factory:
The Final FISA Sellout and My One Last Desperate Push for Sanity

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The capacity of the Democratic Leadership to destroy the party will never cease to amaze me. In 2006 the Dems ran to take over Congress on a platform that included, among other things, ending illegal wiretaps on Americans. Now, the same Democrats propose to grant immunity to the telcos who cooperated with the Administration on a theory that — and I kid you not — if we don’t immunize the telcos for breaking the law this time, they might not break the law for us next time. Alternatively, some argue we should not “punish” companies whose only crime was that they cared so deeply about the safety and security of the United States that they “stepped up to the plate” when the President asked them to break the law and spy on people for their own good. Of course, these same selfless, patriotic, noble companies refused to implement judicially authorized wiretaps because the DoJ neglected to pay the fees. But it appears that Republicans, and now a sufficient number of Democrats, understand that we cannot expect patriotism to extend to things that actually cost megacorporations money. You can read this shameful betrayal of everything the Democrats pledged in ’06 here, with EFF’s analysis here.

What makes this more astounding is that there is not a single, rational reason for the Democrats to do this, and every reason not to do it. The Republicans tried to scare monger and make this an issue for them. That tactic failed miserably. You may recall how back last winter when the Republicans pulled out all the usual stops about how this was about national security and blah blah blah. No one bought it. The magic deadlines lapsed and nothing happened.

So either the Democratic Leadership continues to suffer from a pre-11/06 mentality, or they think they can continue to abuse their active base and collect corporate contributions as well. After all, the thinking goes, it’s not like the mainstream electorate cares about this and its not like the netroots are going to vote Republican. So why not treat them the way we’ve treated unions, African Americans, and unions over the years? i.e., talk tough, but cave when it counts because we know there are no consequences for it.

I’ve already made my impassioned plea based on the ideal of the Rule of Law. Now, in a last desperate effort, I shall make my plea based on practicality and — in what is apprently the universal language of party leadership — cash.

Democrats, meet me below . . . .

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My Thoughts Exactly:
Noble Cause update: “Kick their ass and take their gas”

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The courageous Cindy Sheehan famously asked the coward George W. Bush to tell her what was the “Noble Cause” for which her son Casey had given his life as a soldier in Baghdad. Bush was too cowardly to answer, of course, but over on Eschaton, Atrios the dog-barker has a pithy little post that pretty nearly sums it up, and addresses Harold’s question about citizen and “real” journalism at the same time.

So we’ll spend a hell of a lot of money and lose a lot of lives presiding over an occupation and using our military to provide security for the private security which will be guarding the commercial interests involved in oil extraction.

And since it’s against Village etiquette to suggest that we we are engaged in an imperial colonial adventure, it will be almost impossible to debate the merits of our policies in Iraq or even have a vaguely honest discussion about what those policies are.

Like Atrios, I don’t think the war was about oil alone. It was about Bush’s vanity and sociopathy, the Cheney/Cheney cabal’s lust for war and conquest for the sake of war and conquest, the Cheney/Cheney cabal’s lust for war profits, and the Cheney/Cheney cabal’s hatred of the constitution and the idea of demoncracy. It was fueled by the infantile jingoism of a lazy and kitsch-loving populace and a reasonable admixture of patriotic altruism on the part of some of the troops.

But now it’s about the oil, mostly. And Bush’s vanity, and the Cheney/Cheney-cabal lust for war profits. But mostly it’s about the oil. Possession of which satisfies all the other subgoals.

Tales of the Sausage Factory:
The UK Broadband Infrastructure And the Debate We Should Be Having.

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This article from the London Times is useful both for its substance and for what it says about the sorry state of the debate in the U.S. While the U.K. has much higher available penetration and speed than the U.S., it is considered rather pokey and slow for Europe. As the article observes, the problem is that private companies don’t want to invest in upgrades of infrastructure.

More below . . .

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Tales of the Sausage Factory:
Tell Me Again How Professional Journalists Have Higher Standards Than Us Mere Bloggers.

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I generally don’t consider myself a “citizen journalist.” While I believe strongly that bloggers can be journalists, I don’t believe that bloggers are journalists simply by being bloggers and imitating their favorite left-wing or right-wing pundit. For me, the importance of blogging is that it creates genuine conversation and give and take, a willingness to rediscover once taboo subjects like politics and public policy. You know, the stuff it became no longer polite to discuss because none of us fragile souls could handle disagreement, so we had to leave it to the experts.

But occasionally, one sees a pompous soul defending “traditional journalism” and arguing that it is positively dangerous and unsafe to let the mob of “citizen journalists” loose upon an unsuspecting world. And next time I encounter such a poor misguided soul, I intend to ask him or her about Scott Glover and his hack job on Chief Judge Alexander Kozinski, as published in the LA Times.

As documented in several posts at Patterico’s Pontifications, it would appear that Scott Glover was “played” by one Cyrus Sanai, although perhaps “played” is the wrong word. Sanai appears to have pursued a relentless vendetta against Kozinski, and found a willing ally in Glover. As Kozinski’s wife explains in this rebuttal, Glover’s descriptions of the items on the website are at best misleading and at worst outright efforts to sensationalize things circulated all over the internet (typically with the “not work safe” heading). For example, what Glover describes as “video of a half-dressed man cavorting with a sexually aroused farm animal” turns out to be a a fairly popular Youtube video of a man who had gone to relieve himself in a pasture fending off an aroused donkey. (The San Francisco Chronicle, apparently wishing to demonstrate the further virtues of trained journalists over bloggers, characterized the video as images of bestiality.

As a result of this rather shoddy bit of professional journalism, a well respected judge has been made an object of ridicule and disgust, Kozinski declared a mistrial and initiated an ethics investigation of himself — costing taxpayers tens of thousands of dollars for no good purpose, and a lawyer with a reputation for vindictiveness is boasting how — with the help of such skilled professional journalism — he brought down a federal judge who dared defy him. Nice.

And the response of the LA Times? Kozinski should have just ignored the story. Boy, says the Times Editorial Board, that would have sure shown those blue noses who still read newspapers! I rather agree with Patterico, however, who notes that the real question is why did the LA Times put this story on its front page? Not since Bob Balaban manipulated Sally Field to go after Paul Newman in Absence of Malice has a reporter so willingly served as the tool of another to report something so accurately and yet untruthfully. It is merely the crowning insult that the LA Times should editorialize that Kozinski is somehow at fault for not telling them to bugger off — preferably in front of a camera for the amusement of the masses and future storage at alex.kozinski.com.

To repeat, I make no claims to being a “citizen journalist” simply because I blog. And I respect the work of real journalists no matter what medium they use. But after incidents like this, professional journalists should hardly wonder why so many bloggers feel they can replace them.

Stay tuned . . . .

My Thoughts Exactly:
Channeling my inner Leopold Sedar Senghor to make a point about the stupid FISA so-called “Compromise”

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Leopold Senghor was still the head honcho of Senegal when I was there as a Peace Corps Volunteer (& later as a grad student). The famous father of negritude was pretty well regarded as the guy who got Senegal its independence from France. But he was ridiculed a little (sort of like the proverbial crazy uncle) because his wife was French, and white. And because he spoke French, Latin and Greek better than he did Wolof. Senghor was Serrere, & spoke that language as his native tongue. But everybody in Senegal spoke at least some Wolof. It was (and is) that country’s lingua franca. I knew several Americans who were quite fluent in the language, including my friend Richard.

I remember one time Richard was going on about Senghor’s horrible French accent when speakng Wolof. In a radio address the night before, at one point Senghor had said something like, “ha ‘bugge nga’ ak ‘bugulo nga’ amul barrak waxtan”, meaning “between ‘I like you’ and ‘I don’t like you’ there is no bench for discussion.” And Richard thought that was horribly undiomatic Wolof. (Note: my Wolof is very, very rusty. I probably got that all wrong, but that’s how I remember it.)

Whatever. It stuck with me. And so, with reference to this recent nonsense about a “compromise” on the FISA bill, and with a nod to the late Mr. Senghor, I would just like to say, that between ‘legal’ and ‘illegal’, there is no bench for discussion. Bush and Cheney and all the other monarchists in their administration think there’s a need to pass a law saying that when phone companies break the law, they’re not breaking the law. Fuck that. Y’know, that’s why our so-called founders invented the so-called judiciary. Y’know, so that there would be a well defined place and way to sort these things out. When you’re making ex-post facto laws to exonerate your buddies, you’re not fooling anybody. Or, to quote another sage, I say it’s spinach, and I say the hell with it.

As we say in broken Wolof, Rekk— that’s all.

My Thoughts Exactly:
The dickwads at the Associated Press

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A bunch of stupid bullies who don’t understand the concepts of “fair use” and “internet” (or more likely, understand them very well but don’t like them), think they have enough clout to dictate terms. Well, the millions and millions and billions of Wetmachine readers will have to find their own way to AP stories from now on. I’m not going to link to them. Take that, you wankers!

Tales of the Sausage Factory:
Today on Telecom Mythbusters: FCC Ancillary Authority in Comcast/BitTorrent

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Cable gets a lot of mileage out of repeating things over and over until folks believe it’s true. Today on Telecom Mythbusters I’d like to focus on the question of “ancillary” authority and regulating broadband. The cable guys generally circulate two myths about this.

1) Ancillary jurisdiction by the FCC is an exceedingly rare, wacky, way out thing and the fact that net neutrality advocates even want to rely on it shows how way out there and kooky it is.

2) The D.C. Circuit has been busy trimming back ancillary jurisdiction so that it really doesn’t exist anymore. Specifically, the D.C. Cir. 2005 decision in American Library Association v. FCC, 406 F.3d 689 (D.C. Cir. 2005) (and, to a lesser degree, MPAA v. FCC, 309 F.3d 796 (D.C. Cir. 2002) worked some kind of mojo against the expansive grant of power by the Supreme Court in United States v. Southwest Cable, 392 U.S. 157 (1968) and the Supreme Court’s explicit statement in Brand X so that the FCC cannot regulate broadband access and prohibit Comcast from targeting specific applications such as BiTtorrent under ancillary jurisdiction. A sub-myth of this is “Title I cannot be the source of authority on its own.”

Marvin Ammori, General Counsel of Free Press, has written a stunning tour de force rebutting these arguments. The 100+ page filing masterfully traces the FCC’s authority under Title I and in this particular proceeding. But for those who don’t want to read through the whole thing, I will give my own take below.

I must once again warn readers that this will be a breathtakingly dull review of applicable case law, along with an examination of FCC precedents and does not go to the juicier merits of policy (not that I expct this to stop the Brett-bot from his inevitable comments). If you do not find legal minutia fascinating beyond words, if you do not thrill at the discussion of the subtle differences between a “Telecommunications Service Provider” and a “Common Carrier,” then for God’s sake, turn back now! Lest your brain dissolve into tapioca pudding from the awesome power of legal analysis unleashed.

(and for Brett: Blah blah blah evil blah blah Free Press blah blah MAP blah blah Ginger)

Otherwise, to see both myths BUSTED, read more below….

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Tales of the Sausage Factory:
Rural Carriers File “Skype-Lite,” or “Wireless Carterfone, it's not just for developers and other parasites anymore.”

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Today, the FCC will most likely dismiss the the Skype Petition. I’ve already written why I think this is a phenomenally bad idea and, while I continue to respect Kevin Martin and understand why he is doing this, he is totally wrong here. Once again, those worried about “unintended consequences,” “first do no harm,” etc., etc. fail to appreciate that a refusal to take action and granting permission to carriers to control the sorts of devices, applications and therefore what innovation and what free speech, go on over their networks is as much an action as granting the Skype Petition. There is no evading responsibility or avoiding unforseen consequences.

Which brings me to the Petition for Rulemaking filed by the Rural Carriers Association (RCA) to prevent exclusive deals on equipment, aka “Skype Lite.” Mind you, the rural carriers opposed the Skype Petition as much as any other carrier, arguing that it would be awful for their limited capacity rural networks if they could not control what equipment attached to their networks and what applications ran on that equipment. Nevertheless, they too are unsatisified in a world where market size and raw capitalism dominate. So, without ever once raising the same arguments as Skype or referencing the Commission’s information policy statement, the rural carriers argue for what amounts to the same relief as Skype, only tailored differently. Rather than regulate all carriers to require open networks, they ask the Commission to limit the market power of the major carriers by prohibitting exclusives. Otherwise, they argu, rural America will never know the joy of the iPhone or any other significant innovation — since the major carriers will tie up the most valuable applications and equipment in exclusive deals.

Nor are the rural carriers alone in finding the world according to Coase and Friedman less than they desire. The Commission has before it a good handful of petitions from carriers asking for mandatory roaming reform, access charge reform, and other limits on the ability of the dominant, vertically integrated providers from exercising their market power. Of course, all of these carriers asking for regulatory intervention are simultaneously celebrating the dismissal of the Skype Petition, piously telling Skype and the rest of the non-carrier industry that they are a bunch of parasites and that if they want access to a network they need to get their own licenses and build one.

I do not write to underscore the hypocrisy of these contradictory positions. That would be a waste of bits. Companies make whatever arguments they need to make in order to survive and thrive. No, my warning to the rural carriers and the rest of the Skype-lite crowd is simply one of practicality. You cannot win your request for special regulation while simultaneously singing the praises of the fiercely competitive broadband market and arguing that there is no place for regulation in this great free market success story. By contrast, if you simply admit that the industry now suffers from excessive concentration and the cure for this requires a comprehensive approach, you will find yourselves much more likely to prevail.

Martin indicated that he would dismiss the Skype Petition “without prejudice,” meaning that Skype or others will be free to try again — say, in six months or so when the FCC changes hands. In the mean time, I suggest the rural carriers and the other industry players anxious for regulatory relief — whether in the form of spectrum caps in auctions, mandatory roaming, or access charge reform — rethink their strategy.

Or, to put it another way, “regulation, it’s not just for developers and other parasites any more.”

Stay tuned . . . .

My Thoughts Exactly:
“tense unrelenting fear and dread. . .”

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Light posting from me lately, as my personal time has been taken up with work, a funeral, weddings, medical procedures and lots of visits to see loved ones in hospital.

It’s hard to know what to make of all this “real life” stuff. I feel like I have great wisdom to impart to y’all, but cannot seem to formulate much of any of it into actual human language. Like Gene Hackman’s character in the movie Heist, I’m reduced to muttering, “It’s a hell of a thing. A hell of a thing.” In general, however, I do recommend weddings over funerals, and health over sickness.

On my ear-goggles this morning, as frequently, I’m listening to the late risers’ club on MIT radio, WMBR. And I just heard a recursive promotion for its own self, saying how this same show was a cure for “tense unrelenting fear and dread.” I certainly hope so.

Well, almost. I don’t want a complete cure for my tense unrelenting fear and dread, which is the essence of my persona here, for there would go the whole of my contribution to Wetmachine. But some relief would be welcome, you know what I’m say’n’?

Anyway, just for yucks & to lighten your day, here’s an article from the BBC about the dollar scale of the criminal war profiteering engineered by Cheney et al, and abetted by the USian people and their chickenshit congress, and here’s a BBC article about one teensy-tiny bit of the human cost–but one that is at least a little hopeful. We can’t all be melancholic all the time, now can we.