Technology & Communications

You could hardly have a more fluid situation than what is going on right now with regard to future Republican House leadership, so this blog may be out of date before it’s finished. But as I’m writing, several people are maneuvering for leadership positions, and the general grassroots mood is that they want a “real conservative.”

(Of course, what a “real conservative” is differs literally from activist to activist. If they agree with you down the line on every single issue, they are a “real conservative,” and if they disagree with you on anything, they are a RINO. Apparently. Which is the biggest problem the conservative movement has right now. It’s principles, people. Anyway . . . )

One candidate who some feel is the “real conservative” for Speaker of the House is Jason Chaffetz from Utah. Chaffetz is an interesting case. Is Chaffetz the “real conservative” option?

Well, yes, the Obama administration doesn’t like Chaffetz, but that’s largely because he chairs the House Committee on Oversight and Government Reform, and thus has been looking into Executive Branch.

But conservatives mostly define themselves by their principles, and one of the pretty bedrock principles is constitutional federalism. On that front, Chaffetz is troubling, for at least two reasons.

Here's what you probably don't know: A 1986 law, the Electronic Communications Privacy Act (ECPA), governs much of the electronic privacy activities of the government. And here's the weird thing--it provides protections for electronic data that is LESS than 180 days old, but not for data that is OLDER than 180 days.

Why did policy makers think that distinction made sense? I don't know, but it's one example of how a law written 30 years ago is completely out-of-date and incapable of governing the current data storage practices in the Internet Age. And especially in the age of cloud storage.

I've just received a copy of the lawsuit from the State of Tennessee against the Federal Communications Commission (FCC) for the FCC's order that attempts to overturn laws passed in states regulating municipal broadband networks in those states.

The argument is pretty clear and straightforward, as indeed I think it is. This is a most blatant violation of federalism. There is no constitutional grounds for a federal regulator to think it can overturn laws passed by the duly elected legislatures of the states.

In the Order, the FCC preempts Tennessee law pertaining to the operation of municipal electric plants, including the Electric Power Board of Chattanooga, an instrumentality of the City of Chattanooga, created and controlled by the State of Tennessee. In doing so, the FCC has unlawfully inserted itself between the State of Tennessee and the State's own political subdivisions. The State of Tennessee, as a sovereign and a party to the proceeding below, is aggrieved and seeks relief on the grounds that the Order 1) is contrary to the United States Constitution; 2) is in excess of the Commission's authority; 3) is arbitary, capricious and an abuse of discretion within the meaning of the Administrative Procedures Act; and 4) is otherwise contrary to law. . . . Accordingly, the State of Tennessee respectfully requests that this Court hold unlawful, vacate, enjoin, and set aside the Order, and provide such additional relief as may be appropriate.

Amen.

This morning the Federal Communications Commission (FCC) voted to eliminate its sports blackout rule, which helped the NFL justify blacking out the broadcast of NFL games that were not sold out.

The blackout rule was always a case of the FCC getting government involved in the business model of a company/league, which is always a mistake. Policy and business models should never be confused. Government sets policy, and then people go out and create business models. Government should not be creating or distorting or assisting anyone's business model.

In relation to the debate over whether and how the U.S. should hand over control of the root zone (IANA) functions of the Internet to an independent, multistakeholder organization like ICANN, the Obama administration (and many others) have been adamant that they "are not turning the Internet over to the United Nations!" We absolutely will not allow that to happen, they insist.

And I give them credit for wisely and uncharacteristically (for this administration) understanding the problem with turning Internet governance over to the United Nations.

The long-term problem, as I have argued previously, is that independent multistakeholder organizations set up to do technical functions that are of interest to the global community have a habit of getting absorbed into the United Nations system.

Here is a list of such organizations that have ended up as "specialized agencies" in the UN system, despite the fact that there was no compelling reason why that function needed to be subject to the rules and governance of a UN organization. Tourism, really?

For some time IPI has been at the forefront of arguing in favor of intellectual property protection, since we believe that property rights are the basis of any market-based system, and markets are the best way to allocate goods and services. And particularly in an innovation-based economy, ensuring that innovators and creators are able to reap the rewards of their successful products is the best way to continue to fund a virtuous cycle of innovation.

Most commonly IP is protected through the force of law, since it is a proper role of government to facilitate the protection of private property. But, practically as well as legally, everyone who wants their world to be a world rich in creativity and innovation has an interest in seeing that creators and innovators are rewarded, in order to encourage continued creativity and innovation as envisioned by the American Founders in the Constitution’s Copyright Clause.

Massive on-line piracy, of course, derails the virtuous circle by depriving creators of any hope of reward. But the development of new business models through which content can be legally obtained on-line means that today those who might have taken the easy piracy route can be educated and redirected toward an abundance of legal options.

This is what brought Internet providers to the table with content companies some time ago to devise a voluntary system to try to reduce online piracy. Whereas before ISPs had been sometimes accused of having interests opposed to those of the content companies, in the maturing Internet ecosystem it has become clear that all legitimate players in the Internet have an interest in making sure that the Internet is a place rich in creative content, and a place where those who contribute to this richness at least have the option of attempting to monetize their content through various business models.

Rep. Sean Duffy (R-WI) will offer an amendment tomorrow to the Commerce, Justice and Science (CJS) appropriations bill that would prohibit any funds from being used to relinquish control of the remaining root functions of the Internet to a multistakeholder organization, as is currently planned.

IPI has previously expressed our deep concerns that, while it is true that transferring those functions to the multistakeholder organization imagined by the administration would not mean those functions were subject to political control or United Nations control, it is probably inevitable that such an organization would eventually succumb to pressure. I've mentioned examples such as the World Intellectual Property Organization (WIPO), the World Meterological Organization (WMO) and the International Telecommunications Union (ITU) as similar multistakeholder organizations designed to support a purely technical mission but that became UN organizations and thus subject to the domination of the UN bureaucracy, UN organizational rules, etc.

There is no compelling reason why any of those organizations needed to be within the UN system, but they ended up there. They had specialized, technical functions but now are subject to political mischief because they are part of the UN system. There's every reason to think the same thing will eventually happen to the Internet functions if the U.S. surrenders them, especially since the UN already claims the right to be involved in Internet issues through both the ITU and the Internet Governance Forum (IGF).

IPI was on a panel a few weeks ago discussing this topic, and the CSPAN video is archived here. And if you don't want to watch the video, I blogged on my participation at that event here.

So, while what is currently planned and underway is not transferring control of the Internet to the UN, there is every reason to believe that will be the eventual result. And there is every reason to be very, very concerned about that result.

Congress is right to assert itself in this regard, and to prevent the administration from acting unilaterally to take what is almost certainly a bad step for the Internet.

There has been a lot of rhetoric around the phrase "permissionless innovation" in the last couple of years. I'm not myself comfortable with the phrase, because I think a hallmark of civilization is respect for the property of others, and thus the West has developed an entire permission-based legal culture around property rights.

But others ARE enamored of the idea of permissionless innovation, especially the Internet and tech community.

That's why I am struck in reading through FCC Chairman Wheeler's new 100 page net neutrality NPRM document. Apparently, one of the many things net neutrality means is permissionless innovation for edge companies but NOT for network providers.

Because network providers are going to need permission for a whole lot of things they do. Any new thing they want to try with regard to their business model is going to be subject to some absurd and undefined "commercially reasonable" standard.

How do we determine whether a practice is "commercially reasonable?" Apparently permission will be required of the FCC.

So I will take great joy in the next few months in pointing out they hypocrisy of net neutrality proponents who think permissionless innovation is a virtue—just apparently not for broadband companies.

'Cause it's not as if we want rapid innovation in broadband networks. No, of course not. That would be silly.

Commissioner Pai strikes at the heart of the problem with assuming that the D.C. Circuit court gave the FCC broad authority to impose regulations on broadband. Some highlights:

". . . every American who cares about the future of the Internet should be wary about five unelected officials deciding its fate."

. . .

". . . President Clinton and Congress got it right in the Telecommunications Act of 1996 when they declared the policy of the United States to be 'preserv[ing] the vibrant and competitive free market that presently exists for the Internet . . . unfettered by Federal or State regulation.'"

. . .

"If we are to take the D.C. Circuit at its word, section 706 grants the FCC virtually unfettered authority to encourage broadband adoption and deployment. So if three members of the FCC think that more Americans would go online if they knew their information would be secure, could we impose cybersecurity and encryption standards on website operators? If three members of the FCC think that more Americans would purchase broadband if edge providers were prohibited from targeted advertising, could we impose Do Not Track regulations? Or if three members of the FCC think that more Americans would use the Internet if there were greater privacy protections, could we follow the European Union and impose right-to-be-forgotten mandates? And because section 706 gives state commissions authority equal to the FCC,11 every broadband provider, every online innovator, every Internet-enabled entrepreneur may now have to comply with differing regulations in each of the 50 states. Tesla, Uber, Airbnb, and countless others can attest to the welcome that parochial regulators give to disruptive start-ups."

This past week I filmed an episode of the McCuistion program, a public affairs TV show that airs around the country, and the topic was net neutrality. It should air in a couple of months.

The program began with Tim Wu's definition of net neutrality, which is essentially the principle of non-discrimination: All bits have to be treated the same, with no discrimination. Essentially, the "dumb pipes" argument all over again.

This emphasis on non-discrimination reminded me of the first op/ed I wrote against net neutrality way back in 2006, in the early days of the net neutrality debate, entitled "Welcome to the Stupid Internet."

The piece is no longer archived on the San Jose Mercury News site, so we keep it archived here.

It's interesting to me that we are still at non-discrimination after all these years.

Of course, David Isenberg didn't like it. But Richard Bennett did, as did Scott Cleland. 

Here's what I think is interesting: For those eight years, we did not have net neutrality regulations, and the Internet blossomed. So . . . doesn't that mean that net neutrality proponents were wrong, and that the Internet was just fine without net neutrality regulations?

Oldie but goodie.

I was honored to speak at a panel discussion on Friday sponsored by the Congressional Internet Caucus Advisory Committee on whether transferring control of the Internet root zone functions from the U.S. Dept. of Commerce to some yet-to-be-determined multistakeholder organization is a good thing.

The briefing was televised on CSPAN, and the archive video can be seen here.

One or two guys oops, people can write a great app, or a great algorithm, and that's a great thing. Our economy is benefitting and consumers are reaping the benefits of such innovation and creativity that comes as the fruit of the minds and labor of a few.

But some things are really, really expensive and capital intensive to do, like building out and maintaining a 21st Century broadband and rich content network that is constantly innovating new products and services for its customers.

That's one of the reasons why I've never been big on municipal broadband networks, and it's a big reason why, as Marguerite Reardon wrote in CNET, the Comcast merger could be good for TimeWarner Cable customers. In fact, it almost certainly will be.

As an early opponent of network neutrality regulations, it’s tempting for me to characterize as a victory today’s DC Circuit Court decision throwing out some of the FCC’s network neutrality rules, and indeed it is a victory—in part, and for now. It’s true that the court threw out the most onerous rule on anti-discrimination, while also tossing out a symbolic anti-blocking rule that market proponents understand was completely unnecessary.

But the Court agreed with the FCC on its authority to regulate broadband services, which means Verizon lost on its core assertion that the FCC had no statutory authority to regulate broadband networks. This is underscored by new FCC Chairman Tom Wheeler’s triumphalist reaction to the case. Everyone spins the results of important court decisions such as this, but the early social media reactions that “Verizon won and the FCC lost” were an uninformed oversimplification.

Okay, so it looks like Mr. Wheeler is getting a good start, choosing the IP transition as a major push for his tenure at the FCC:

http://www.fcc.gov/blog/ip-transition-starting-now

He must have read my TechByte from last week, in which I said:

Wheeler should start by recognizing that it is ridiculous for our wireline communications infrastructure to still be required to maintain and operate an outdated circuit-switched network. We are well into the transition from analog to digital communications in every area except wireline, where providers are still required by the FCC to operate a network based on 50-year-old technology.

Here’s hoping the FCC gets on with the business of facilitating, rather than hindering, private sector innovation. We wish you well, Mr. Wheeler.

I have to assume it was my TechByte that did it. Most likely explanation.