Censorship by government or by outsourcing

My Insanely Long Field Guide To Common Carriage, Public Utility, Public Forum — And Why The Differences Matter.

Once upon a time, social conservatives used to be major allies on both limiting media consolidation and on net neutrality. Why? Because they recognized that if you had a handful of corporate gatekeepers controlling access to the marketplace of ideas, they could easily get shut out. Market forces being market forces, companies pressured to censor unpopular or controversial speech and views will do so. Add to that the belief on the part of conservatives that they face ideological bias from the “mainstream media” or “Silicon Valley,” and you had many conservatives back in the day who stood shoulder to shoulder with us back when I was at Media Access Project to oppose Powell’s efforts to relax media ownership rules in 2003 and who opposed Congress’ first attempt to gut net neutrality — the COPE Act — in 2006.

 

Then came the 2008 election and the Tea Party blowback of 2009-10. Net neutrality became a red team/blue team issue and even social conservatives who had previously supported net neutrality went silent on the issue.

 

Ironically, now that Republicans dominate all branches of government, conservatives are once again discovering the value of common carriage and government prohibition on any sort of interference with conduits of speech — at least with regard to social media platforms like Facebook, Youtube and Twitter. Why? As conservatives have once again discovered, if companies retain the right to exert editorial control based on content, they will get pressured by the market and government to use that editorial discretion to censor “harmful” speech. That, and the perception that Silicon Valley has a distinct liberal bias, have prompted some in the conservative movement to rediscover the idea that common carrier regulations actually protect and promote free speech and are not a regulation of speech. Because without access to the public square — whether the real life public square or its digital equivalent — your freedom of speech is simply a freedom to whisper to yourself.

 

I am happy to agree that the time has come to consider whether social media platforms — and other essential elements of communications such as operating systems, DNS registration, or content hosting — should have non-discrimination obligations consistent with our traditional concepts of common carriage. I believe this would also have the salutary effect of protecting companies from liability or social pressure by taking away their discretion. After all, we don’t see anyone demanding that the major mobile providers stop providing cell phones to white supremacists or that broadband providers block subscribers from accessing websites like Daily Stormer. The public accepts that these companies have no choice, because they are common carriers and must serve everyone equally as a matter of law. By contrast, we have seen successful campaigns to pressure DNS registrars to refuse to host the Daily Stormer domain name, Cloudflare, which itself decided to stop servicing Daily Stormer after Daily Stormer claimed that Cloudflare’s decision not to suspend service constituted an endorsement, posted this excellent blog post on why their actions should make people very uncomfortable.

 

So this should be a great time to reforge the Left/Right alliance on media diversity and government regulation to prevent private censorship, right? I hope so. Unfortunately, this very important conversation keeps getting muddled for two reasons.

 

1) People keep confusing the concept of “common carriage” with the concept of “public utility.” The differences actually matter a lot, despite 15 years of anti-net neutrality advocates muddling the two.

2) The most active proponents of using government regulation to prevent private censorship on the conservative side are pretty much treating common carrier regulation as a form of revenge porn rather than as a serious public policy debate. “Oh, you don’t want me? You want to break up with me? Well I’ll show you! I’ll make it so you have to carry me!” Indeed, since 2006, when Google (to my considerable annoyance) became the poster child for net neutrality for opponents and a trade press obsessed with treating every policy debate as an industry food fight, the debate about common carrier obligations or non-discrimination obligations or even privacy has always triggered a “but what about edge providers? Waaaaahhhhh!! Regulate them! Regulate them!”

 

Now I should make it very clear that I can find plenty of progressives who have conceived passionate hatreds for “Silicon Valley” platforms for various reasons, and who also get confused on the concept of “public utility.” Additionally, I can find at least some conservative free market types who understand why we need to regulate things like Internet access differently than hosting services or social media. But it’s conservatives lusting to regulate “Silicon Valley” that have been getting the headlines, and are driving the discussion among Republicans in Congress. Plus I’m getting tired of being asked the same stupid questions by the same folks on Twitter. So I’ll call out the conservatives howling for Silicon Valley blood by name.

 

Anyway, because whether and how to regulate various parts of the Internet supply chain (or, if you prefer, ecosystem), I will try to explain below why common carriage obligations, such as network neutrality, are different from public utility regulation (even though most utility providers are common carriers), which is different from natural monopoly regulated rate of return/tariffing/price regulation. I will briefly explore some of the arguments in favor of applying some sort of public forum doctrine or common carrier obligation to social media platforms, and — because this invariably comes up in telecom space — why platform or other infrastructure providers are not and should not be covered by Title II or the FCC, even if we agree they should have some sort of public forum or even public utility obligations.

 

More below . . .

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Also posted in How Democracy Works, Or Doesn't, Life In The Sausage Factory, Series of Tubes, Tales of the Sausage Factory | Tagged , , , , , | 1 Comment (Comments closed)

*Packingham* And The Public Forum Doctrine Part I: Implications For Copyright.

On Monday June 19, the Supreme Court issued two significant First Amendment decisions. Most of the press attention went to Matal v. Tam aka “The Slants'” case. But the far more significant case for my little neck of the woods was Packingham v. North CarolinaBecause Packingham focused on criminal law, and did not have anything to do with the Washington Redskins keeping or changing their name, it garnered relatively little attention. But Packingham has much more importance for the future of the First Amendment online by recognizing the primary First Amendment right of subscribers to access broadband platforms and content. Indeed, Justice Kennedy’s paean to the Internet as the modern public square echoes themes from the more “Madisonian” view of the First Amendment expounded by scholars such as Cass Sunstein (and prompted alarm from Alito, Roberts and Thomas in concurrence).

 

This has significant implications for all the crap the Digital Millenium Copyright Act (DMCA) has done to make it easy to kick users offline (and the whole future of “graduated response”/”3 strikes”) and the existing and fairly abusive notice and takedown regime (and efforts to extend it further). It may also have significant implications for the First Amendment argument over broadband, net neutrality and the future of regulation of online platforms such as Facebook, but I will save that for Part II.

 

I unpack all this below . . .

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Also posted in Fighting the IP Mafia, Tales of the Sausage Factory | Tagged , , , , , , | 2 Comments (Comments closed)

Are Police Jamming Cell Phones At Standing Rock Protest? The FCC Should Investigate.

Given the lack of coverage in mainstream media, you might not have heard about the ongoing protest against the construction of the Dakota Access Pipeline immediately upstream from the Standing Rock Sioux reservation aka #NoDAPL. You can find some good statistics on the pipeline and number of arrests associated with the protest here. Setting aside my personal feelings about democracy, freedom to peacefully protest, and how the Sioux concerns seem rather justified in light of the Alabama pipeline explosion, this has now raised an interesting communications issue that only an FCC investigation can solve. Are police jamming, or illegally spying, on communications at the protest and associated Sacred Stone Camp?

 

Over the last week, I have seen a number of communications from the protest about jamming, particularly in the period immediately before and during the Thursday effort by police to force protesters off the land owned by Dakota Access Pipeline. In addition, this article in Wired documents why tribal leaders connected with the tribal telecom provider, Standing Rock Telecom, think they are being jammed. I’ve had folks ask to speak to me using encrypted channels for fear that law enforcement will use illegal monitoring of wireless communications. As this article notes, there are a number of telltale signs that law enforcement in the area have deployed IMSI catchers, aka Stingrays, to monitor communications by protesters. However, as I explain below, proving such allegations — particularly about jamming — is extremely difficult to do unless you are the FCC.

 

Which is why the FCC needs to send an enforcement team to Standing Rock to check things out. Given the enormous public interest at stake in protecting the free flow of communications from peaceful protests, and the enormous public interest in continuing live coverage of the protests, the FCC should move quickly to resolve these concerns. If law enforcement in the area are illegally jamming communications, or illegally intercepting and tracking cell phone use, the FCC needs to expose this quickly and stop it. If law enforcement are innocent of such conduct, only an FCC investigation on the scene can effectively clear them. In either case, the public deserves to know — and to have confidence in the Rule of Law with regard to electronic communications.

 

More below . . . .

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Also posted in "A Republic, if you can keep it", How Democracy Works, Or Doesn't, Spectrum, Tales of the Sausage Factory | Tagged , , , , | Comments closed

Free Internet Is NOT For Porn — And Isn’t Broadband Access

As some folks may have heard, New York City has begun a really awesome project in free broadband access with it’s LinkNYC program. NYC is replacing no longer used pay phone kiosks with free WiFi access points (and an available interface built into the kiosk for those who cannot afford a smart device).

 

In a surprise to no one but the bright eyed innocents who set up the program, homeless people followed the advice of Avenue Q and decided that the Internet was indeed really really great — for porn. On the plus side, this certainly silenced those critics of the program who alleged that LinkNYC would only serve rich tourists. On the downside, the sight of the unwashed whacking hordes gathering around WiFi access points like pigeons clustered around lonely people with breadcrumbs on Central Park benches was not exactly the “proof of concept” the City hoped to get. So, once again to no one’s surprise, LinkNYC decided to install filters to block porn sites.

 

 

As has been the case since we first started debating Internet blocking in 2008, some folks raise the argument that net neutrality will prevent people from blocking porn sites. I testified on this back in 2008 at the FCC’s open hearing at Stanford University when folks claimed that if Comcast couldn’t block file-swapping sites it couldn’t block porn. Naturally, it also got debated in the lead up to the 2010 Open Internet Order and the 2015 Open Internet Order. So it’s not like we never thought of this before and it’s not like we don’t know the answer: free access sites can block porn (or otherwise filter) no problem. Indeed, as others have observed in the past, free access sites (like coffee houses or libraries) do not count as broadband Internet access providers and free Internet access is not Title II broadband Internet access service (BIAS).

 

Why? See below . . .

 

UPDATE: LinkNYC made this reply to my post through their official twitter account.

 

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I Summarize (Some of) My Net Neutrality Arguments in 15 Minutes

Back in August, I spoke about network neutraliy as part of a panel the Federal Communication Commission (FCC) Consumer Advisory Committee. My opening 15 minutes hit most of what I think are the important (and often overlooked) arguments around network neutrality. Specifically:

1. In terms of real world experiments, the service that has never been Title II is cable television. The service that has always been Title II is wireless voice (or, as we telecom folks call it, “Commercial Mobile Radio Service,” (CMRS)). As we know, consumers loooooove their cable television provider more than any other service, and hate wireless as completely not innovative. Oh wait, other way around.

2. Net neutrality is extremely important for maintaining diversity of voices. Not simply the ability of commercial entities to compete on a level playing field, but the ability of anyone to speak without an intermediary. When we eliminate that, even with the best of intentions, we destroy something that makes the Internet special.

3. Title II is a flexible and well understood tool for protecting consumers, protecting diversity of voices, and protecting competition. Title I and Section 706 are a roll of the dice with our fundamental rights.

This is not a comprehensive list of arguments in favor of net neutrality by any means. I also recognize that “Harold Feld Talks For 15 Minutes About Net Neutrality” is probably the Worst. Clickbait. Headline. EVAR! But I hope some of you will find it useful and entertaining.

 

Stay tuned .  .  . .

Also posted in Cable, Series of Tubes, Tales of the Sausage Factory | Comments closed

Net Neutrality Videos Much More Interesting Than I Could Ever Make.

It’s impossible to keep up all the videos about net neutrality. Heck, I have been delinquent in flogging my own. For example, I have two new “5 Minutes With Harold Feld” videos out: one on what I call “virtual redlining” (about how permitting prioritized content invariably leads to targeting and segmenting audiences in ways that recreate all the usual stereotypes and re-marginalizing traditionally marginalized communities) and this on “rural virtual redlining” (how allowing prioritization further isolates rural and exacerbates the digital divide).

As you can see from the pathetic hit counts if you click through, my personal contributions are a total flop. Why? Because, in my own words, 5 Minutes with Harold Feld takes “insanely complicated and incredibly boring stuff and make it slightly less boring because THIS STUFF IS IMPORTANT.” So even at my most wildly successful, I am only slightly less boring. This apparently does not help much.

However, lots of much more interesting and entertaining people have used the power of online video — and even traditional media — to provide a much less boring perspective. I’m listing my top 5 Internet videos below the break. Please feel free to add links to your favorites in the comment section, assuming you did not fall asleep trying to watch my videos.

Actually interesting Net Neutrality videos below . . .

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Also posted in How Democracy Works, Or Doesn't, International, Series of Tubes, Tales of the Sausage Factory | Tagged , | Comments closed

Quick First Cut On Network Neutrality Decision — State of Net Neutrality Today

 I will, eventually, have time to write up a full dissection of he D.C. Circuit’s latest magnum opus on Net Neutrality, Verizon v. FCC.  Until then, I am going to be recycling here posts I wrote and posted on the blog of my employer Public Knowledge. i also highly recommend this blog post from my Public Knowledge colleague Clarissa Ramon on the impact of this decision and Monday’s D.C. Circuit Order staying the FCC’s August decision to regulate the outrageous phone rates charged by prison phone companies communities of color.

 

Below, the current — and now thoroughly confused — state of Net Neutrality and FCC authority as it stands today.

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Also posted in Series of Tubes, Tales of the Sausage Factory | 3 Comments (Comments closed)

Duck Dynasty Prompts Conservatives To Rediscover The Fairness Doctrine.

Apparently, I am one of 9 people in the United States that had never heard of “Duck Dynasty” prior to last week.  Even I however, could not miss the furor over remarks by Duck Dynasty star Phil Robertson and his remarks that homosexuality is “degrading to the human soul” and that African Americans were “better off under Jim Crow.” As one might expect, A&E, which owns Duck Dynasty, promptly suspended Robertson. Also predictably, conservative raised much hue and cry over this, calling it the worst sort of censorship and intolerance.

Normally, I limit my response to this to four words: “Dixie Chicks. Pot. Kettle.”

But to my surprise and delight, I now see conservatives such as Governor Bobby Jindal (R-LA), Former Gov. Sarah Palin (R-AK), and Senators David Vitter (R-TX) and Ted Cruz (R-TX) invoking the concepts of the First Amendment embodied in the Fairness Doctrine in defense of Mr. Robertson. Given that Conservatives have decided to revive their perennial boogeyman about the “Return of The Fairness Doctrine,” this staunch defense of the principles of the Fairness Doctrine could not be more timely.

 

Some more irony savoring worm turning goodness below . . .

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Also posted in Tales of the Sausage Factory | 2 Comments (Comments closed)

AT&T/CIA Deal Violates Telemarketing Rules — So I’d Like to Opt Out.

It’s like getting Al Capone for tax evasion.

 

The CIA and AT&T figured out how to get around legal restrictions on giving the CIA access to domestic phone call information, but in doing so they violated a Federal Communications Commission (FCC) rule that protects you against telemarketing.

 

According to this story in the New York Times, the CIA paid AT&T to provide them with information on calls passing through its international telephone system. Because federal law prevents the CIA from spying inside the United States, the CIA could not legally get info on calls terminating in the U.S. because they are not eligible for any of the mammoth sized loopholes Congress has already punched in the fabric of our civil liberties. But, of course, calls from suspected foreign terrorists (aka “anyone outside the United States”) that terminate in the United States are the most interesting to the CIA.

 

So what’s a poor spy agency and a patriotic mega-Corp who understand that sometimes you have to break few privacy eggs to make a freedom omelet gonna do? According to the article, when a call originated or terminated in the United States, AT&T would “mask” the identity by revealing only some of the digits of the phone number and not the identity. The CIA could then refer this information to the FBI, which can use all those mammoth sized loopholes Congress punched in our civil liberties to get a court order and require AT&T to provide the rest of the phone number and all other relevant identifying information. Then the FBI can kick that back that information to the CIA.

 

Unfortunately for AT&T, this pretty clearly violates the Customer Proprietary Network Information rule (CPNI).  Fortunately for AT&T, it can solve this problem fairly easily by notifying customers of the possibility the CIA might ask for their phone number if they get a call from outside the country and asking customers who don’t want this exciting new service to opt out. Please start with Senator Feinstien and ask her if she wants to opt out of having her international calls monitored by the CIA. Given her legislative track record on this, I’m sure she won’t mind.

 

Some analysis of why this violates the CPNI rules below . . .

 

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Also posted in "A Republic, if you can keep it", How Democracy Works, Or Doesn't, I Fear These Things, Tales of the Sausage Factory | 2 Comments (Comments closed)

I’m Testifying Tomorrow And It Will Be WCIT-Awesome!

I will be testifying tomorrow at a joint hearing by the House Energy and Commerce Subcommittee on Telecom and Technology and Several of the Foreign Affairs Committees tomorrow, February 5 at 10:30 a.m. The hearing, Fighting For Internet Freedom: Dubai and Beyond will focus on the World Conference on International Telecommunications (WCIT) that took place in Dubai this past December.

If you click on the Hearing Homepage tomorrow, there should be a link for livestreaming. I am hoping this will prove entertaining and informative. Well, at least informative.

Stay tuned . . .

Also posted in I Fear These Things, International, Tales of the Sausage Factory | 2 Comments (Comments closed)
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