Censorship by government or by outsourcing
I don’t do much by way of media ownership these days, but the recent mess of CBS meddling with CNET’s decision to award a ‘Best In Show’ to DISH’s new Hopper DVR constitutes another little reminder as to why we care about media cross-ownership in a consolidated world. Given that the FCC appeared at one point poised to significantly relax the rule, this reminder bears highlighting.
More below . . .
Very few people ever heard of the International Telecommunications Union (ITU) until recently – and with good reason. For more than 100 years, the ITU managed quite nicely serving as the forum for countries and telecom carriers to coordinate insanely-technical-mind-numbingly-boring-but-really-really-important stuff related to making the phone network work internationally, distributing satellite slots, and trying to harmonize what frequencies countries allocate to what services. But now the ITU has suddenly become very interesting. Why? Because the ITU members will hold a rare meeting — the World Conference on International Communications (WCIT) – where the 193 member countries will vote on whether to amend the current ITU rules (“ITRs”) that set the framework for all this extremely important boringness.
Unclear for now – especially in the pre-game – is whether and how the WCIT represents a potential threat to freedom of expression online. I recently had an argument with Professor Milton Mueller (see the comments section of this post on the IGP blog) about this. Milton’s central thesis is that the recent hysteria about the ITU “taking over the Internet” is overblown and that this is just about how carriers negotiate payments. This has been interpreted by some to mean that civil society organizations concerned with free expression online ought to stop fretting about fleets of UN black helicopters seizing the DNS rootservers and relocating them to ITU Headquarters in Geneva.
For a number of reasons, I strongly disagree with this assessment. Even without the concern that the ITU will somehow “take over the Internet,” certain WCIT proposals advanced by a number of regimes that engage in Internet censorship threaten the future of free expression online. These proposals, from the Russian Federation and several Arab states, would for the first time explicitly embrace the concept that governments have a right to control online communications and disrupt Internet access services. This would reverse the trend of the last few years increasingly finding that such actions violate fundamental human rights – a valuable tool in trying to pressure repressive regimes to stop using such tactics.
More below . . . .
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 . . . .
A bit off topic, but I couldn’t resist. For most folks, the question of whether the recent eviction of Occupy Wall Street (OWS) protesters from Zuccotti Park constitutes a violation of the First Amendment has very little to do with law and much to do with principle. Those opposed to the eviction note that the demonstrators were peaceful, the Mayor displayed clear animus to the protestors and their message, and that the claims of health and safety are mere pretext. Those who support the City’s actions argue that the protesters had essentially co-opted the park to the exclusion of other public uses and that the protesters were in violation of the park rules (usually eliding over the fact that the rules were adopted after OWS began) and that it is privatekly owned space in any event.
After reading the Order upholding the right of NYC and the owners of Zuccotti Park to prohibit tents and, potentially, other sleeping things such as sleeping bags, I believe this raised an interesting 1st Amendment Question for those of us who follow 1st Amendment law. Those interested in why this is actually an interesting question, rather than resolution of the question, can see more below . . .
I suppose I am, at heart, really a telecom lawyer after all. My reaction to the news that the Bay Area Rapid Transit (BART) police shut down cellphone networks in a number of stations had nothing to do with democracy, the First Amendment, Tahrir Square, etc. With all deference to the importance of these concerns, my reaction was WHAT DO YOU MEAN THESE IDIOTS MESSED WITH THE PHONE SYSTEM! From my perspective, and the perspective of traditional telecom law, BART could just as well have turned off the local central office and all this chatter about whether or not BART is a public forum is just a distraction.
Obviously, however, no one at BART thinks of cell phones as the phone system. In BART’s open letter explaining what they did and why it was cool, BART focuses on the First Amendment /public forum issue and completely skips the fact that they shut off a phone system. Mind you, I suppose I can’t blame them – much. A number of folks are asking if there is a right to cell phone service as if there were a novel question rather than something settled by decades of telecom law.
Also missed by most: this goes well beyond BART. If BART gets away with including “we can shut down cell phone service” in its tool box you can guarantee that other local law enforcement agencies will start copying this – and all for the best of reasons. Because what could possibly go wrong when you pull the plug on a critical piece of infrastructure whenever some local police chief or city council person or whoever decides they need to do something about these “flash mobs” or “rioters” or whatever? BART emphasizes the narrowness of the impact. But Montgomery County, MD, where I live, is worried about an outbreak of flash mobs of teenagers that materialize to raid local stores. Suppose they decide to start turning off the phone grid in neighborhoods they believe are “at risk?” Sure, lets just knock out phone service for a neighborhood for a few hours. What could be the harm – and it’s all in a good cause, right?
There is a reason we do not mess with the phone system, and why that doesn’t change when the phone system is wireless. Legal reasoning below . . . .
After Comcast surprised me with their filing on Friday, I really wanted to believe they had turned a corner. Not to anthropomorphize too much, but I had hoped that Comcast had gotten such a bad public relations disaster out of this that they were determined to work so hard to be good little puppies that even a Democratic Congress, Democratic President, and Democratic FCC would believe that the we no longer needed rules. And I would be totally down with that (their behaving that is, we still need rules). I love it when companies learn their lesson and stop misbehaving. Remember, public policy is (IMO) all about result. If swatting Comcast on the nose like a naughty puppy gets them to stop pooping on their customers, then they deserve a pat on the head and a tummy yummy treat when they behave.
But I’m having a “Columbo moment” here. For those who did not grow up in the 1970s and therefore do not recognize the reference, Columbo is a television detective who every episode goes to talk to the chief suspect about the circumstantial evidence, and the chief suspect always has a fully prepared and perfect alibi. On the way out, apparently as an afterthought, Columbo will turn around and say: “there’s just one thing that bothers me.” This question on a minor inconsistency turns out to open a gaping hole in the suspect’s alibi and — in classic television fashion — allows Columbo to solve the crime by the end of the show.
I do not pretend there is any mystery here left to solve. Comcast’s filing very neatly explains their past practices, how we reached this point, and how Comcast intends to change its practices. It includes benchmarks for performance and a plan for informing its subscribers. It looks exactly like what the Commission ordered.
There’s just one thing that bothers me. Footnote 3 of Attachment B. Comcast stresses in footnote 3 that its 250 GB per month cap is not a network management policy, is not a replacement for its current network management practices, and therefore is not actually a proper subject of this disclosure report. Now why did they go out of their way to say that?
If you will excuse me, sir, while I adjust my raincoat, a bit more analysis below . . .
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 . . . .
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 . . . .
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 . . . .
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 . . .
