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Inmoz her blog post explaining the Brendan Eich resignation, Mitchell Baker, Chair of the Mozilla Foundation, writes, “We know why people are hurt and angry, and they are right: it’s because we haven’t stayed true to ourselves.” In Mozilla is HumanMark Surman, Executive Director of the Foundation, adds, “What we also need to do is start a process of rebirth and renewal. We need to find our soul and our spirit.”

That spirit is embodied in the Mozilla Manifesto. But it goes deeper than that: all the way back to Mosaic, the ur-browser from which Firefox is descended by way of Netscape Navigator.

Neither Mosaic nor Navigator were instruments of the advertising business. They were boards we rode to surf from site to site across oceans of data, and cars we drove down the information superhighway.

But now all major browsers, Firefox included, have become shopping carts that get re-skinned at every commercial site they visit, and infected at many of those sites by cookies and other tracking files that report our activities back to advertising mills, all the better to “personalize” our “experience” of advertising and other “content.”

Economically speaking, Firefox is an instrument of advertising, and not just a vehicle for users. Because, at least indirectly, advertising is Firefox’s business model. Chrome’s too. (Apple and Microsoft have much smaller stakes in advertising, and offer browsers mostly for other reasons.)

This has caused huge conflicts for Mozilla. On the one hand they come from the users’ side. On the other, they need to stay in business — and the only one around appears to be advertising. And the market there is beyond huge.

But so is abuse of users by the advertising industry. This is made plain by the popularity of Adblock Plus (Firefox and Chrome’s #1 add-on by a huge margin) and other instruments of prophylaxis against both advertising and tracking (e.g. Abine, Disconnect, Ghostery and Privowny, to name a few).

To align with this clear expression of market demand, Mozilla made moves in February 2013 to block third party cookies (which Apple’s Safari, which doesn’t depend on advertising, does by default). The IAB (Interactive Advertising Bureau) split a gut, and began playing hardball. Some links:

That last item — an extensive bill of particulars — featured this sidebar:

The link goes to An Open Letter to the Mozilla Corporation.

So Mozilla looked for common ground, and they found it on the advertising side, with personalization. Near as I can tell, this  began in May 2013 (I’m told since I wrote this that work began earlier), with Jay Sullivan‘s Personalization With Respect post. In July, Justin Scott, then a Product Manager at Mozilla Labs, vetted A User Personalization Proposal for Firefox. The post was full of language straight out of the ad industry songbook: “favorite brands,” “personalized experience,” “increased engagement,” “stronger loyalty.” Blowback in the comments was fierce:

JS:

I don’t care what publishers want, or that they really like this new scheme to increase their marketing revenue. Don’t add more tracking.

I’m beginning to realize that Mozilla is working to make Firefox as attractive to publishers as possible, while forgetting that those eyeballs looking at their ads could be attached to people who don’t want to be targeted. Stop it. Remember your roots as a “we’ll take Mozilla’s code, and make a great thing with it”, and not as “Google pays us to be on the default toolbar”.

Dragonic Overlord:

Absolutely terrible idea.

The last thing the internet needs is more “personalization” (read: “invasion of my privacy”). All your marketing jargon does nothing to hide the fact that this is just another tool to allow advertisers, website owners, the NSA, and others to track users online habits and, despite any good intentions you might have, it’s rife with the potential for abuse.

Tracy Licklider:

Bad idea. I do not want it. I think you misstate the benefits of the Internet. One of the most salient benefits of the Internet is for web sites, advertisers, and ISPs who are able to build dossiers about individuals’ private lives/data, generally without most users being aware of the possibility and generally without the users’ consent.

One of the main reasons Firefox has succeeded is that it, unlike all the other browsers, was dedicated to users unfettered, secure, and as private as possible use of the Internet.

User:

If this “feature” becomes part of FireFox you’ll loose many users, if we wanted Chrome like browser we wouldn’t have chosen FireFox. We chose FireFox because it was DIFFERENT FROM Chrome but lately all I see is changes that make it similar and now you want to put spyware inside? Thanks but no thanks.

A follow-up post in July, by Harvey Anderson, Senior VP Business and Legal Affairs at Mozilla, was titled Up With People, and laid on even more of the same jive, this time without comments. In December Justin posted User Personalization Update, again with no comments.

Then in February, Darren Herman, Mozilla’s VP Content Services, posted Publisher Transformation With Users at the Center, introducing two new programs.  One was User Personalization. (Darren’s link goes Justin’s July piece.) The other was something called “directory tiles” that will appear on Firefox’s start page. He wasn’t explicit about selling ads in the tiles, but the implication was clear, both from blowback in the comments and from coverage in other media.

Said Reuters, ”Mozilla, the company behind the Firefox Internet browser, will start selling ads as it tries to grab a larger slice of the fast-expanding online advertising market.”

Romain Dillet in TechCrunch wrote, ”For the last couple of years, Mozilla and the advertising industry have been at odds. The foundation created the do-not-track feature to prevent targeted advertising. When users opt in, the browser won’t accept third party cookies anymore, making it much harder to display targeted ads around the web. Last year, Mozilla even chose to automatically block third-party cookies from websites that you hadn’t visited. Now, Mozilla wants to play ball with advertisers.”

The faithful didn’t like it. In Daring Fireball, John Gruber wrote, ”What a pile of obtuse horseshit. If you want to sell ads, sell ads. Own it. Don’t try to coat it with a layer of frosting and tell me it’s a fucking cupcake.”

Then Mitchell issued a corrective blog post, titled Content, Ads, Caution. Here’s an excerpt:

When we have ideas about how content might be useful to people, we look at whether there is a revenue possibility, and if that would annoy people or bring something potentially useful.  Ads in search turn out to be useful.  The gist  of the Tiles idea is that we would include something like 9 Tiles on a page, and that 2 or 3 of them would be sponsored — aka “ads.”  So to explicitly address the question of whether sponsored tiles (aka “ads”) could be included as part of a content offering, the answer is yes.

These sponsored results/ ads would not have tracking features.

Why would we include any sponsored results?  If the Tiles are useful to people then we’ll generate value.  That generates revenue that supports the Mozilla project.   So to explicitly address the question of whether we care about generating revenue and sustaining Mozilla’s work, the answer is yes.  In fact, many of us feel responsible to do exactly this.

Clearly Mozilla equates producing revenue with advertising, and intends to continue down a path that many of its most passionate users don’t like. This position is easy to rationalize, given Mozilla.com‘s business model and need to stay alive.

By becoming an advertising company (in addition to everything else it is), Mozilla now experiences a problem that has plagued ad-supported media for the duration: its customers and consumers are different populations. I saw it in when I worked in commercial broadcasting, and I see it today in the online world with Google, Facebook, Twitter… and Mozilla. The customers (or at least the main ones) are either advertisers or proxies for them (Google in Mozilla’s case). The consumers are you and me.

The difference with Mozilla is that it didn’t start out as an advertising company. So becoming one involves a change of nature — a kind of Breaking Bad.

It hurts knowing that Mozilla is the only browser-maker that comes from our side, and wants to stay here, and treat us right. Apple clearly cares about customers (witness the success of their stores, and customer service that beats all the competition’s), but its browser, Safari, is essentially a checkbox item. Same goes for Microsoft, with Explorer. Both are theirs, not ours. Opera means well, but it’s deep in fifth place, with a low single-digit market share. Google’s Chrome is a good browser, but also built to support Google’s advertising-based business model. But only Mozilla has been with us from the start. And now here they are, trying their best not to talk like they’ve been body-snatched by the IAB.

And it’s worse than just that.

In addition to the Brendan Eich mess, Mozilla is coping with losing three of its six board members (who left before Brendan resigned). Firefox’s market share is also declining: from 20.63% in May 2013 to 17.68% in February 2014, according to NetMarketShare.com. (Other numbers here.)

Is it just a coincidence that May 2013 is also when Jay Sullivan made that first post, essentially announcing Mozilla’s new direction, toward helping the online advertising industry? Possibly. But that’s not what matters.

What matters is that Mozilla needs to come back  home: to Earth, where people live, and where the market is a helluva lot bigger than just advertising. I see several exciting paths for getting back. Here goes.

1) Offer a choice of browsers.

Keep Firefox free and evolving around an advertising-driven model.

And introduce a new one, built on the same open source code base, but fully private, meaning that it’s the person’s own, to be configured any way they please — including many new ways not even thinkable for a browser built to work for advertisers. Let’s call this new browser PrivateFox. (Amazingly, PrivateFox.org was an available domain name until I bought it last night. I’ll be glad to donate it to Mozilla.)

Information wants to be free, but value wants to be paid for. Since PrivateFox would have serious value for individuals, it would have a price tag. Paying for PrivateFox would make individuals actual customers rather than just “users,” “consumers,” “targets” and an “audience.” Mozilla could either make the payment voluntary, as with public radio and shareware, or it could make the browser a subscription purchase. That issue matters far less than the vast new market opportunities that open when the customer is truly in charge: something we haven’t experienced in the nineteen years that have passed since the first commercial websites went up.

PrivateFox would have privacy by design from the start: not just in the sense of protecting people from unwelcome surveillance; but in the same way we are private when we walk about the marketplace in the physical world. We would have the digital equivalent of clothing to hide the private parts of our virtual bodies. We would also be anonymous by default — yet equipped with wallets, purses, and other instruments for engagement with the sellers of the world.

With PrivateFox, we will be able to engage all friendly sites and sellers in ways that we choose, and on terms of our choosing as well. (Some of those terms might actually be more friendly than those one-sided non-agreements we submit to all the time without reading. For more on what can be done on the legal front, read this.)

(Yes, I know that Netscape failed at trying to charge for its browser way back in the early days. But  times were different. What was a mistake back then could be a smart move today.)

2) Crowdsource direct funding from individuals.

That’s a tall order — several hundred million dollars’ worth — but hey, maybe it can be done. I’d love to see an IndieGoGo (or equivalent) campaign for “PrivateFox: The World’s First Fully Private Browser. Goal: $300 million.”

3) Build intentcasting into Firefox as it stands.

Scott Adams (of Dilbert fame) calls it “broadcast shopping”. He explains:

Shopping is broken. In the fifties, if you wanted to buy a toaster, you only had a few practical choices. Maybe you went to the nearest department store and selected from the three models available. Or maybe you found your toaster in the Sears catalog. In a way, you were the hunter, and the toaster was the prey. You knew approximately where it was located, and you tracked it down and bagged it. Toasters couldn’t hide from you.

Now you shop on the Internet, and you can buy from anywhere on the planet. The options for any particular purchase approach infinity, or so it seems. Google is nearly worthless when shopping for items that don’t involve technology. It is as if the Internet has become a dense forest where your desired purchases can easily hide.

Advertising is broken too, because there are too many products battling for too little consumer attention. So ads can’t hope to close the can’t-find-what-I-want gap.

The standard shopping model needs to be reversed. Instead of the shopper acting as hunter, and the product hiding as prey, you should be able to describe in your own words what sort of thing you are looking for, and the vendors should use those footprints to hunt you down and make their pitch.

There are many ways of doing this. More than a dozen appear under “Intentcasting” in this list of VRM developers. Some are under wraps, but have huge potential.

Intentcasting sets a population comprised of 100% qualified leads loose in the marketplace, all qualifying their lead-ness on their own terms. This will be hugely disruptive to the all-guesswork business that cherishes a 1% click-through rate in “impressions” that mostly aren’t — and ignores the huge negative externalities generated by a 99+% failure rate. It will also generate huge revenues, directly.

This would be a positive, wealth-creating move that should make everybody (other than advertising mill-keepers) happy. Even advertisers.  Trust me: I know. I co-founded and served as Creative Director for Hodskins Simone & Searls, one of Silicon Valley’s top ad agencies for the better part of two decades. Consider this fact: No company that advertises defines themselves as “an advertiser.” They have other businesses. Advertising might be valuable to them, but it’s still just a line item on the expense side of the balance sheet. They can cut or kill it any time they want.

“Buy on the sound of cannons, sell on the sound of trumpets,” Lord Nathan Rothschild said. For the last few years advertising has been one giant horn section, blasting away. If online advertising isn’t a bubble (which I believe it is), it at least qualifies as a mania. And it is the nature of manias to pass.

Business-wise, investing in an advertising strategy isn’t a bad bet for Mozilla right now. But the downsides are real and painful. Mozilla can reduce that pain by placing other bets: ones on the demand side of the marketplace, and not just — like everybody else — on the supply side.

Here on Earth we have a landing site for Mozilla, where the above and many other ideas can be vetted and hashed out with the core constituency: IIW, the Internet Identity Workshop. It’s an inexpensive three-day unconference that runs twice every year in the heart of Silicon Valley, at the Computer History Museum: an amazing venue.

Phil Windley, Kaliya Hamlin and I have been putting on IIW since 2005. We’ve done seventeen so far, and it’s impossible to calculate how far sessions there have moved forward the topics that come up, all vetted and led by participants.

Here’s one topic I promise to raise on Day One: How can we help Mozilla? Lots of Mozilla folk have been at IIWs in the past. This time participating will have more leverage than ever.

I want to see lots of lizards and lizard-helpers there.

 

— is happening this weekend in New York, San Francisco and elsewhere. Read all about it here, here and here.

I’ll be there to help start things off, at 10am tomorrow. (Registration starts at 9am.) My job on the opening panel is to make a 2-3 minute statement of what I’d like to see in the form of legal hackery. Here goes:

  1. Restore freedom of contract and obsolete contracts of adhesion by creating standardized terms individuals can assert. I have two chapters in The Intention Economy devoted to this. (The Cyberlaw Clinic at the Berkman Center is also working on these — and corresponding terms on the business side — for Customer Commons. What gets hacked this weekend can feed into that work.)
  2. Create better means for expressing personal policies and preferences (such as Do Not Track) than are currently available — and putting these in the individual’s own tool box, rather than appearing only as choices presented by others, such as browser makers.
  3. Create graphical elements (e.g. the r-button) for both the above.

On the panel I will advocate for individuals as independent entities with full agency, rather than merely “users” of others’ systems, or victims of privacy abuse awaiting policy relief. This means I will argue for thinking and hacking toward building and filing the individual’s own tool box, rather than just tweaking the broken technical and legal systems we already have. (Though doing that is good too. Others will be there to advocate and hack on that.)

It is essential that we think outside the browser for this. While the browser began as something like your car on the information superhighway, it has since become a shopping cart that gets re-skinned with every commercial site you visit, and infested at each with tracking beacons so you can be a subject of constant surveillance. This is even true of Firefox, which I love (and within which I am writing this), and which (through Mozilla) is providing space for the San Francisco hackathon.

Let me go a little deeper on this. An example of what’s right and wrong in the browser space right now can be found Christian Heilmann‘s post, Why “Just Use Adblock” Should Never Be a Professional Answer. In it he says many good things that I agree with, enthusiastically. But he also gets one big thing wrong:

Whether we like it or not, ads are what makes the current internet work. They are what ensures the “free” we crave and benefit from, and if you dig deep enough you will find that nobody working in web development or design is not in one way or another paid by income stemming from ad sales on the web.

Saying ads are what make the Internet work is like like saying cities are what make geology work. Yes, the Internet supports commercial activity, but it is not reducible to it. For each of us to enjoy full agency on the Web, this distinction needs to be clear from the start.

Browser makers are stuck right now between many rocks (their users) and a hard place (advertising-supported websites). On the one hand they want to do right for users, and on the other they want to do right for what the ad industry now calls “publishers”. Since surveillance-fed “personalization” is big with those publishers, and lots of users don’t like it (AdBlock Plus is the top browser extention, by far), the browser makers are caught in the middle. You can see the trouble they have with this conflict in A User Personalization Proposal for Firefox, which was floated by Justin Fox of Mozilla last July. In it he writes,

We want to see even more personalization across the Web from large and small sites, but in a transparent way that retains user control. The team at Mozilla Labs is focused on exploring ways to move the Web forward, and has thought a lot about how the browser could play a role in making useful content personalization a reality.

The blowback in the comments was harsh and huge. One sample:

The last thing the internet needs is more “personalization” (read: “invasion of my privacy”). All your marketing jargon does nothing to hide the fact that this is just another tool to allow advertisers, website owners, the NSA, and others to track users online habits and, despite any good intentions you might have, it’s rife with the potential for abuse.

I’m not bringing this up to give Mozilla or the other browser makers a hard time, but to suggest that the solutions we need start outside the browser. (And seeing them that way may also be good for the browser folks.)

Simply put, what we need most are tools for ourselves, that help in our dealings with all other parties. Not just protections from bad actors, or ways to make bad practices less bad.

See ya there.

Eye of SauronIn Big Cable’s Sauron-Like Plan for One Infrastructure to Rule Us All, Susan Crawford (@SCrawford) paints a bleak picture of what awaits us after television (aka cable) finishes eating the Internet. But that’s just in our homes. Out in the mobile sphere, telcos have been eating the Net as well — in collusion with cable. That’s one of the points Marvin Ammori makes in We’re About to Lose Net Neutrality — And the Internet as We Know It. Both pieces are in Wired, which is clearly on our side with this thing — especially since, if Marvin is right, Wired might someday need to pay the carriers for privileged carriage on what used to be the free and open (aka “neutral”) Internet. Specifically,

Net neutrality is a dead man walking. The execution date isn’t set, but it could be days, or months (at best). And since net neutrality is the principle forbidding huge telecommunications companies from treating users, websites, or apps differently — say, by letting some work better than others over their pipes — the dead man walking isn’t some abstract or far-removed principle just for wonks: It affects the internet as we all know it.

Once upon a time, companies like AT&T, Comcast, Verizon, and others declared a war on the internet’s foundational principle: that its networks should be “neutral” and users don’t need anyone’s permission to invent, create, communicate, broadcast, or share online. The neutral and level playing field provided by permissionless innovation has empowered all of us with the freedom to express ourselves and innovate online without having to seek the permission of a remote telecom executive.

But today, that freedom won’t survive much longer if a federal court — the second most powerful court in the nation behind the Supreme Court, the DC Circuit — is set to strike down the nation’s net neutrality law, a rule adopted by the Federal Communications Commission in 2010. Some will claim the new solution “splits the baby” in a way that somehow doesn’t kill net neutrality and so we should be grateful. But make no mistake: Despite eight years of public and political activism by multitudes fighting for freedom on the internet, a court decision may soon take it away.

He continues,

How did we get here?

The CEO of AT&T told an interviewer back in 2005 that he wanted to introduce a new business model to the internet: charging companies like Google and Yahoo! to reliably reach internet users on the AT&T network. Keep in mind that users already pay to access the internet and that Google and Yahoo! already pay other telecom companies — often called backbone providers — to connect to these internet users.

That was eight years ago. In response to the same AT&T salvo, I wrote Saving the Net: How to Keep the Carriers from Flushing the Net Down the Tubes in Linux Journal. It was submitted in November 2005 and ran in the February 2006 issue. In it I outlined three scenarios:

  1. The Carriers Win
  2. The Public Workaround
  3. Fight with Words and Not Just Deeds

Neither #2 nor #3 have come to pass, except in very limited ways. So, since #1 seems to be on the verge of happening, here’s what I wrote about it. There is a fair amount of link rot, but the points are still sharp — and depressing to contemplate:

Scenario I: The Carriers Win

Be afraid. Be very afraid. –Kevin Werbach.

Are you ready to see the Net privatized from the bottom to the top? Are you ready to see the Net’s free and open marketplace sucked into a pit of pipes built and fitted by the phone and cable companies and run according to rules lobbied by the carrier and content industries?

Do you believe a free and open market should be “Your choice of walled garden” or “Your choice of silo”? That’s what the big carrier and content companies believe. That’s why they’re getting ready to fence off the frontiers.

And we’re not stopping it.

With the purchase and re-animation of AT&T‘s remains, the collection of former Baby Bells called SBC will become the largest communications company in the US–the new Ma Bell. Verizon, comprised of the old GTE plus MCI and the Baby Bells SBC didn’t grab, is the new Pa Bell. That’s one side of the battlefield, called The Regulatory Environment. Across the battlefield from Ma and Pa Bell are the cable and entertainment giants: Comcast, Cox, TimeWarner and so on. Covering the battle are the business and tech media, which love a good fight.

The problem is that all of these battling companies–plus the regulators–hate the Net.

Maybe hate is too strong of a word. The thing is, they’re hostile to it, because they don’t get it. Worse, they only get it in one very literal way. See, to the carriers and their regulators, the Net isn’t a world, a frontier, a marketplace or a commons. To them, the Net is a collection of pipes. Their goal is to beat the other pipe-owners. To do that, they want to sell access and charge for traffic.

There’s nothing wrong with being in the bandwidth business, of course. But some of these big boys want to go farther with it. They don’t see themselves as a public utility selling a pure base-level service, such as water or electricity (which is what they are, by the way, in respect to the Net). They see themselves as a source of many additional value-adds, inside the pipes. They see opportunities to sell solutions to industries that rely on the Net–especially their natural partner, the content industry.

They see a problem with freeloaders. On the tall end of the power curve, those ‘loaders are AOL, Google, Microsoft, Yahoo and other large sources of the container cargo we call “content”. Out on the long tail, the freeloaders are you and me. The big ‘loaders have been getting a free ride for too long and are going to need to pay. The Information Highway isn’t the freaking interstate. It’s a system of private roads that needs to start charging tolls. As for the small ‘loaders, it hardly matters that they’re a boundless source of invention, innovation, vitality and new business. To the carriers, we’re all still just “consumers”. And we always will be.

“Piracy” is a bigger issue to the cargo sources than to the carriers. To the carriers, “fighting piracy” is a service offering as well as a lever on regulators to give carriers more control of the pipes. “You want us to help you fight piracy?”, the transport companies say to the content companies. “Okay, let’s deal.” And everybody else’s freedoms–to invent, to innovate, to do business, to take advantage of free markets and to make free culture–get dealt away.

The carriers have been lobbying Congress for control of the Net since Bush the Elder was in office. Once they get what they want, they’ll put up the toll booths, the truck scales, the customs checkpoints–all in a fresh new regulatory environment that formalizes the container cargo business we call packet transport. This new environment will be built to benefit the carriers and nobody else. The “consumers”? Oh ya, sure: they’ll benefit too, by having “access” to all the good things that carriers ship them from content providers. Is there anything else? No.

Crocodile grins began to grow on the faces of carriers as soon as it became clear that everything we call “media” eventually would flow through their pipes. All that stuff we used to call TV, radio, newspapers and magazines will just be “content” moving through the transport layer of the pipe system they own and control. Think it’s a cool thing that TV channels are going away? So do the carriers. The future à lá carte business of media will depend on one medium alone: the Net. And the Net is going to be theirs.

The Net’s genie, which granted all those e-commerce wishes over the past ten years, won’t just get shoved back in the bottle. No, that genie will be piped and priced by the packet. The owners of those pipes have a duty to their stockholders to make the most of the privileged position they’ve been waiting to claim ever since they got blind-sided, back in the 80s and 90s. (For an excellent history of how the European PTTs got snookered by the Net and the Web, see Paul F. Kunz’ Bringing the World Wide Web to America.) They have assets to leverage, dammit, and now they can.

Does it matter that countless markets flourish in the wide spaces opened by agreements and protocols that thrive at the grace of carriage? Or that those markets are threatened by new limits, protections and costs imposed at the pipe level?

No.

Thus, the Era of Net Facilitation will end. The choke points are in the pipes, the permission is coming from the lawmakers and regulators, and the choking will be done. No more free rides, folks. Time to pay. It’s called creating scarcity and charging for it. The Information Age may be here, but the Industrial Age is hardly over. In fact, there is no sign it will ever end.

The carriers are going to lobby for the laws and regulations they need, and they’re going to do the deals they need to do. The new system will be theirs, not ours. The NEA principle–Nobody owns it, Everybody can use it, Anybody can improve it–so familiar to the Free Software and Open Source communities will prove to be a temporary ideal, a geek conceit. Code is not Law. Culture is not Free. From the Big Boys’ perspective, code and culture are stuff nobody cares about.

That’s us: Nobody.

The new carrier-based Net will work in the same asymmetrical few-to-many, top-down pyramidal way made familiar by TV, radio, newspapers, books, magazines and other Industrial Age media now being sucked into Information Age pipes. Movement still will go from producers to consumers, just like it always did. Meet the new boss, same as the old boss. Literally.

The deals that matter will be done between tops of pyramids. Hey, it’s easier to do business with the concentrated few than the dispersed many. The Long Tail can whip itself into a frenzy, but all the tech magazines and blogs in the world are no match for the tails and teeth of these old sharks. (Hey, Long Tailer, when’s the last time you treated your erected representatives to private movie screenings, drafted their legislation, ghosted their committee reports, made a blockbuster movie or rolled fiber across oceans?)

Google and Yahoo and Amazon and eBay and e-commerce and free software and open source and blogging and podcasting and all the rest of that idealistic junk have had their decade in the sun. Hell, throw in Apple and Microsoft, too. Who cares? Them? Doesn’t matter how big they are. They don’t matter. They’re late to the game.

We all know the content business got clobbered by this peer-to-peer crap. But the carriers took a bath by building out the Net’s piped infrastructure. They sank $billions by the dozen into fiber and copper and routers and trunks, waiting for the day when they’d be in a position to control the new beast fleshed on the skeleton that they built.

That Day Has Come.

It came earlier this month, when the November 7, 2005, issue of BusinessWeek hit the Web’s streets. In that issue are “Rewired and Ready for Combat” and “At SBC, It’s All About ‘Scale and Scope’”, which features an interview with Edward Whiteacre, CEO of SBC. Here’s the gist of it:

How concerned are you about Internet upstarts like Google (GOOG), MSN, Vonage, and others?

How do you think they’re going to get to customers? Through a broadband pipe. Cable companies have them. We have them. Now what they would like to do is use my pipes free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it. So there’s going to have to be some mechanism for these people who use these pipes to pay for the portion they’re using. Why should they be allowed to use my pipes?

The Internet can’t be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo! (YHOO) or Vonage or anybody to expect to use these pipes [for] free is nuts!

What’s your approach to regulation? Explain, for example, the difference between you and Verizon in how you are approaching regulatory approval for Telco TV [digital-TV service offered by telecoms].

The cable companies have an agreement with the cities: They pay a percentage of their revenue for a franchise right to broadcast TV. We have a franchise in every city we operate in based on providing telephone service.

Now, all of a sudden, without any additional payment, the cable companies are putting telephone communication down their pipes and we’re putting TV signals. If you want us to get a franchise agreement for TV, then let’s make the cable companies get a franchise for telephony.

If cable can put telephone down their existing franchise I should be able to put TV down my franchise. It’s kind of a “what’s fair is fair” deal. I think it’s just common sense.

What if the regulators don’t agree?

Then there won’t be any competition–there will be a cable-TV monopoly.

I know you’re a competitive person. Who are your biggest competitors?

Our big competition in the future is with the cable companies. Verizon’s going to be a player, and certainly I want to compete. And I want our shareowners to do better than anyone else.

If I were BusinessWeek, I’d ask:

What about the free and open marketplace that has grown on the Net itself? Do you have any interest in continuing to support that? Or in lobbying forms of deregulation that foster it? Or are you just in a holy war with the cable companies inside the same old regulatory environment you’ve known since forever?

I’d ask:

If you were to buy, say, Level 3, would you start to filter and restrict content at the transport level, to extract the profits you want, without regard for other market consequences? Would Cisco, builder of the great Firewall of China, help out?

I’d ask:

Which do you prefer: The regulatory environment where your business has adapted itself for more than a century, or a completely free and open marketplace like the rest of us enjoy sitting on top of your pipes?

Whiteacre’s answers, of course, would be less relevant than the obvious vector of his company’s intentions. For a summary of that, let’s return to Lauren Weinstein of People for Internet Responsibility:

Of course, the truth of the matter is that the telcos have been moving rapidly through massive consolidation–and a range of other tactics–to create an environment where “competition” will only be a pale reflection of what we were originally promised, with only a few gigantic players in control of all telecom resources and policies. Like the robot cop in Terminator 2 that reformed from blown-apart mercurial blobs of metal, the “golden age” of telecom competition is already giving way to empire.

Don’t blame BusinessWeek for not asking the important questions or for missing the Carriers vs. Net story. Biz pubs love to cover vendor sports. And there’s certainly a big story here.

Great distraction, vendor sports. While we’re busy watching phone and cable giants fight over a closed battlefield that ought to be open, we miss Net-hostile moves by other parties that result in other lost freedoms.

Take ICANN, for instance, where a new .com Registry Agreement allows Verisign to raise the rates for .com names by 7% annually, and to operate .com in perpetuity, and to “mak[e] commercial use of, or collect, traffic data regarding domain names or non-existent domain names”, and to reap other rewards for what few other than Verisign would agree is a good job. Bret Faucett summarizes the darkest shadow across the noir scenario we’ve already described:

The theme running through all of these is that ICANN and Verisign are treating the .COM registry as a private resource. It’s not. The root servers and TLD servers are public resources. We should treat them like that.

Bret has one of the most eloquent voices in the wilderness of clues the Big Boys would rather avoid. So does Susan Crawford, who was just, perhaps miraculously, named to the ICANN board.

For Bret, Susan and the rest of the restless natives of this new world, what matters most is Saving the Net–keeping it a free and open marketplace for everybody–while also making sure that carriers of all kinds can compete and succeed while providing much of the infrastructure on which that marketplace resides. That means we need to understand the Net as more than a bunch of pipes and business on the Net as more than transporting and selling “content”.

This isn’t a trivial issue. It’s a matter of life and death for the Net itself. How are we going to fight?

Read on.

You can do that here. Also dig Marvin Ammori’s own follow-up.

Meanwhile the Net continues to cry out for a definition all can agree on. Toward that goal, I wrote this in The Intention Economy:

To simplify things a bit, look at the Net’s future as a battleground where any and only fight it out. On the side of any are the Net’s protocols. On the side of only are governments and businesses with interests in restricting and controlling access to the Net, and thwarting many purposes to which the Net might be put. This battle also happens inside our own heads, because we tend to view the Net both ways. Ironies abound.

For example, the Internet is often called a “network of networks,” yet the Net was designed to transcend the connections it employs, and is therefore not reducible to them. It is not comprised of wiring, and is not a “service,” even though it’s called one by ISPs.

So let’s look at the sides here. On the any side, “net-heads” (yes, they call themselves that) frame their understanding of the Net in terms of its protocols, and those protocols’ virtues. On the only side, “bell-heads” (yes, they call themselves that, too) frame their understanding of the Net in terms of wiring infrastructure and billing systems.

To net-heads, the Internet is a vast new virtual space with qualities such as neutrality and generativity. To maximize economic opportunity and vitality, those virtues need to be maximized—even if phone and cable TV businesses don’t wish to acknowledge or support those virtues.

To bell-heads, the Internet’s “network of networks” is a collection of mostly private properties, with which owners should be free to do what they please. So, if what pleases them is throttling certain kinds of data traffic to maximize QoS (Quality of Service), too bad. They are The Market, which will grow best if they act in their own economic self-interest. Hey, look at all the good they’ve done already. (Want dial-up again, anyone?) And look at the robust competition between cable and phone companies. Isn’t that producing enough economic benefits for everybody?

Since net-heads tend to make social arguments while bell-heads tend to make economic ones, net-heads get positioned on the left and bell-heads on the right. Between the two are boundless technical arguments that aren’t worth getting into here.

I’m a net-head, but one who wants both sides to recognize that the Net’s original design is encompassing and beneficial for economies and societies everywhere. That is, I believe the argument for the Net is the same as the one for gravity, sunlight, the periodic table and pine trees: that it is part of nature itself. What makes the Net different from all those other products of Nature is that humans made the Net for theselves.

The Net’s nature—its essential purpose—is to support everything that uses it, just as the essential purpose of a clock is to tell time. So, while the Net today relies on phone and cable connections, its support-everything purpose should not be subordinated to legacy phone and cable TV businesses. The Internet, in the neutral and generative form defined by its protocols, is a far larger and more interesting market environment than the one defined by the parochial and limited interests of phone and cable companies, both of which are desperately trying to hold on to their legacy businesses, and would be better served by embracing all the opportunities the Internet opens up, for everybody.

We’re going to evolve past those old businesses anyway. Phone and cable company engineers know that, and so do many of the business leaders in those companies, even as they fight to protect their legacy businesses at all costs.

As a pro-business guy, I sympathize with phone and cable companies, which are cursed by the need to maintain margins in existing business while building out infrastructures that obsolete those businesses (at least as we know them). These companies get little credit (especially from net-heads) for their genuine innovations, and for their ability to innovate more. We do need them, whether we like them or not…

So, then

The Net’s capacity to support limitless economic activity and growth will win in the long run because it will prove out in the very marketplaces it support. But there will be a great deal of resistance along the way, as the narrow interests of both Big Government and Big Business try to contain the Net’s potential within the scope of their own ambitions. Still the evolutionary direction of the Net is toward ambient connectivity. Whatever that looks and feels like, it won’t resemble either the phone system or cable TV. Rather it will look like everything, together.

That’s the long-term optimistic view. Meanwhile, there is much cause for pessimism in the short term.

In this comment and this one under my last post, Ian Falconer brings up a bunch of interesting points, some of which are summarized by these paragraphs from his first comment…

Here in the UK most people over 40 will remember placing calls via a human operator. A real life person who had a direct interaction with both caller and receiver when reversing the call charges. In smaller towns and villages this meant that the operator knew who was phoning who, when and often, given their overarching view, could assume why.

This was socially accepted as the operators were usually local and subject to the same social norms as the friends and neighbors they ‘surveilled’.

But they were also employees of the GPO (General Post Office) with a national security obligation and had a direct reporting route into the national security apparatus, so that, if they felt that something fishy was afoot (especially in times of war), they were assumed to be both reliable and honest witnesses.

No-one assumed secrecy in an operator-mediated system. They assumed discretion on the part of the operator.

Is an ISP any different just because the data is package-based rather than analogue ? It conducts all the same functions as the old operator.

The shift from public ownership to private and from land-lines to mobile has not changed the underlying model of presumed access (as far as teleco users are concerned) and assumed responsibility (on the part of the national security apparatus). And though both are now legally defined under the license terms of privatised telecos, few of the UK’s public know how their comms systems actually work, so often assume a similar design ethos to the US, where constitutionally defined rights are a starting point for systems organisation.

That British Telecom evolved from the GPO is no accident, but neither is it necessarily a designed progression intend on increased surveillance.

… and these from his second:

Against most evidence US Congress doesn’t set UK law. The EU & UK governments do that. And against most evidence the US doesn’t set global social norms. So while I’m not saying Brits explicitly like spies and respect code breakers, there is a history here that forms a backdrop to the national mind set and it looks towards Bletchley Park, Alan Turing & James Bond rather than The Stasi, Senator McCarthey or Hoover’s G-Men.

The time and place to look for a failure of oversight is the sale of rights to spectrum access but a global technological fix for a perceived lack of communicational security, especially a US-led one, seems unlikely. The righteous indignation with respect to Huwei hardware looks like a starting point rather than an end point right now.

To me these events and discoveries more likely to work to fragment the rough and ready constellation of networks into national gardens once more. This would force comms through regulated conduits making in-out surveillance even easier and I tentatively suggest that in the legislation of whatever-comes-next those carrying out oversight do a better job, if legally-enshrined privacy is their aim.

I am somewhat familiar with the UK, having spent a number of years consulting BT. I have also spent a lot of time in the EU, mostly studying and collaborating with VRM developers, a large percentage of which are located in the UK and France.

Here in the U.S. many of us (me included) still had “party lines” and required operator assistance for long-distance calls as recently as the mid-’70s. With party lines phone connections were shared by as many as six other homes, and people could listen in on each other easily. Operators could listen to anything, any time. Thus, as Ian says, discretion rather than secrecy was assumed.

And discretion is The Thing. As it was with the old phone system it also was with spying, which every government does, and we have always assumed was going on — much of it outside the laws that apply to the rest of us — and hopefully for some greater good. Thus whatever we end up with on the Internet will rest on a system of manners and not just of laws and technologies.

Ideally law, technology and manners work in harmony and support each other. What we have had so far, in the era that began with personal computing and grew to include the Internet and smart mobile devices, has been a disharmonious cacophony caused by technology development and adoption with little regard for the incumbent systems of manners and law. And it is still early in the evolution of all three toward working harmony such as we have long experienced in the physical world.

Of those three, however, manners matter most. It seems no accident, to me at least, that the Internet is defined by protocols, which are nothing more than mannerly agreements between network operators and among the human and organizational operators of the network’s billions of end points.

Security of the telco-like centralized locked-down sort was never in the DNA of the Internet Protocol, which is one reason why it never would have been invented by the very companies and governments through whose local, national and international networks the Internet connects us all.

So it should be no surprise, aside from all the privacy concerns currently on the front burner of popular consciousness, that telcos, cablecos, national governments and institutions such as the ITU have busied themselves with stuffing the Internet, in pieces, back inside the regulatory, billing and nationally bordered bottles from which it more or less escaped, at first un-noticed, in the 1980s and early 1990s.

J.P. Rangaswami, when he was at BT, famously noted that a telco’s main competency was not communications but billing. It still is. China’s censored national subset of the world wide Internet is for many countries a model rather than an aberration. And the drift of Net usage to cellular mobile devices and networks has re-acclaimated users to isolated operation within national borders (lest they suffer “bill shock” when they “roam” outside their country) — something the landline-based Internet overcame by design.

All these things play into our evolution toward privacy in the virtual world that is recognizably similar to what we have long experienced in the physical one.

National mind sets are important, because those embody manners too. Public surveillance is far more present, and trusted, in the U.K. than in the U.S. I also sense a more elevated (and perhaps evolved) comprehension of privacy (as, for example, “the right to be left alone”) in Europe than in the U.S. I am often reminded, in Europe, of the consequences of detailed records being kept of citizens’ ethnicities when WWII broke out. Memories of WWII are much different in the U.S. We lost many soldiers in that war, and took in many refugees. But it was not fought on our soil.

There is also in Europe a strong sense that business and government should operate in symbiosis. Here in the U.S., business and government are now posed in popular consciousness (especially on the political and religious right) as opposing forces.

But all these things are just factors of our time. What matters most is that the whole world will need to come to new terms with the three things I listed in my earlier Thoughts on Privacy post: 1) ubiquitous computing power, 2) ubiquitous Internet access, and 3) the unlimited ability to observe, copy and store data. All these capacities are new to human experience, and we have hardly begun to deal with what they mean for civilization.

I suspect that only the generation that has grown up connected — those under, say, the age of 25 — begin to fully comprehend what these new states of being are all about. I’ve been young for a long time (I’m 66 now), but the best I can do is observe in wonder those people who (in Bob Frankston‘s words) assume connectivity as a natural state of being. My 16-year old son feels this state, in his bones, to a degree neither I nor my 40-something kids don’t. To us elders, connectivity is an exceptional grace rather than a natural state.

Manners among the connected young, however, have barely evolved past the reptile stage. In Report: Every Potential 2040 President Already Unelectable Due To Facebook, The Onion was not fully joking (it never is) when it said “A troubling report finds that by 2040 every presidential candidate will be unelectable to political office due to their embarrassing Facebook posts.”

I just hope that the laws we are making today (protecting yesterday from last Thursday, as all new laws tend to do) will be improved by new generations made wiser by their experiences with technologies made ubiquitous by their elders.

On February 25, 2008, the FCC held a hearing on network management practices in the Ames Courtroom at Harvard Law Schoolhosted by the Berkman Center. In that hearing David P. Reed, one of the Internet’s founding scientists, used a plain envelope to explain how the Internet worked, and why it is wrong for anybody other than intended recipients to look inside the contents of the virtual envelopes in which communications are sent over the Internet. It was a pivotal moment in the debate, because the metaphor illustrated clearly how the Internet was designed to respect privacy.

Respect, that is. Not protect.

In the early days of postal communications, the flaps of envelopes were sealed with blobs of wax, usually imprinted by the sender with a symbol. These expressed the intent of the sender — that the contents of the letter were for the eyes of the recipient only. Yes, a letter could be opened without breaking the seal, but not without violating the wishes of the sender.

The other day I wrote, ”clothing, for example, is a privacy technology. So are walls, doors, windows and shades.” In the physical world we respect the intentions behind those technologies as well, even though it might be easy to pull open the shirts of strangers, or to open closed doors without knocking on them.

The virtual world is far less civilized. Proof of that is in the pudding of privacy rights violations by agencies of the U.S. government, which is clearly acting at variance with the Fourth Amendment of the Constitution, which says,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I see three ways to approach these violations.

One is to rely on geeks and whistleblowers to pull the pants down on violators. In Welcome to the end of secrecy says the very openness that invites privacy violations is our best protection against the secrecy concealing those violations.

Another is through the exercise of law. In The Only Way to Restore Trust in the NSA, security guru Bruce Schneier writes, “The public has no faith left in the intelligence community or what the president says about it. A strong, independent special prosecutor needs to clean up the mess.” And that’s on top of moves already being made by legislators, for example in South Africa. Given the scale of the offenses now coming to light, we’ll see a lot more of that, even if no special prosecutors get appointed. The law of the jungle will give way to a jungle of new laws. Count on it.

The third is through business — specifically, business modeled on postal services. For many generations, postal services have respected the closed envelope as a matter of course. Yes, we knew there were times and places when mail could be inspected for legitimate reasons. And there were also many things it was not legal to do, or to send, through postal systems. But, on the whole, we could trust them to keep our private communications private. And we paid for the service.

The Googles of the world — companies making their money on advertising — aren’t likely to take the lead here, because they have too much invested in surveillance (of the legal sort) already. But others will step forward. The market for privacy is clear and obvious, and will only become more so as the revelations of abuse continue to pour out.

Perhaps the businesses best positioned to offer secure communications are the postal services themselves. They’ve already been disrupted plenty. Maybe now is the time for them to do some positive disruption themselves.

 

 

I’m in Boston right now, and bummed that I can’t attend Start-up City: An Entrepreneurial Economy for Middle Class New York, which is happening today at New York Law School today.

I learned about it via Dana Spiegel of NYC Wireless, who will be on a panel titled “Breakout Session III: Infrastructure for the 21st Century—How Fast, Reliable Internet Access Can Boost Business Throughout the Five Boroughs.” In an email Dana wrote, The question for the panel participants is how fast, reliable internet access can boost business throughout NYC.” The mail was to a list. I responded, and since then I’ve been asked if that response might be shared outside the list as well. So I decided to blog it. Here goes:

Fast and reliable infrastructure of any kind is good for business. That it’s debatable for the Internet shows we still don’t understand what the Internet is — or how, compared to what it costs to build and maintain other forms of infrastructure, it’s damned cheap, with economic and social leverage in the extreme.

Here’s a thought exercise for the audience: Imagine no Internet: no data on phones, no ethernet or wi-fi connections at home — or anywhere. No email, no Google, no Facebook, no Skype.

That’s what we would have if designing the Internet had been left up to phone and cable companies, and not to geeks whose names most people don’t know, and who made something no business or government would ever contemplate: a thing nobody owns, everybody can use and anybody can improve — and for all three reasons supports positive economic externalities beyond calculation.

The only reason we have the carriers in the Net’s picture is that we needed their wires. They got into the Internet service business only because demand for Internet access was huge, and they couldn’t avoid it.

Yet, because we still rely on their wires, and we get billed for their services every month, we think and talk inside their conceptual boxes.

Try this: cities are networks, and networks are cities. Every business, every person, every government agency and employee, every institution, is a node in a network whose value increases as a high multiple of all the opportunities there are for nodes to  connect — and to do anything. This is why the city should care about pure connectivity, and not just about “service” as a grace of phone and cable companies.

Building a network infrastructure as neutral to purpose as water, electricity, roads and sewage treatment should be a top priority for the city. It can’t do that if it’s wearing blinders supplied by Verizon, Time Warner and AT&T.

Re-base the questions on the founding protocols of the Net itself, and its city-like possibilities. Not on what we think the carriers can do for us, or what we can do that’s carrier-like.

I came to the realization that networks are cities, and vice versa, via Geoffrey West — first in Jonah Lehrer’s “A Physicist Solves The City,” in the New York Times, and then in West’s TED talk, “The Surprising Math of Cities and Corporations.” West is the physicist in Lehrer’s piece. Both are highly recommended.

Bonus link.

I was talking with @ErikCecil yesterday about the sea change we both detect in people’s tolerance for unwanted tracking. They’re getting tired of it. So are lawmakers and regulators. (No, not everybody. But not a small percentage. And it’s growing.) See here, here,  here, here, here, here, here, here and here.

Somewhere in the midst of our chat, Erik summarized the situation with a metaphor that rang so true that I have to share it. Here’s roughly what he said: “The backwash that’s coming is a tsunami that hasn’t hit yet. Right now it’s a wide swell over deep water. But you can tell it’s coming because the tide is suspiciously far out. So we have all these Big Data marketing types, out there on the muddy flats, raking up treasures of exposed personal data. They don’t see that this is not the natural way of things, or that it’s temporary. But the tidal wave is coming. And when it finally hits, watch out.”

 

 

Aaron Swartz died yesterday, a suicide at 26. I always felt a kinship with Aaron, in part because we were living demographic bookends. At many of the events we both attended, at least early on, he was the youngest person there, and I was the oldest. When I first met him, he was fourteen years old, and already a figure in the industry, in spite of his youth and diminutive stature at the time. Here he is with Dave Winer, I believe at an O’Reilly conference in San Jose:

It’s dated May 2002, when Aaron was fifteen. That was the same year I booked him for a panel at Comdex in Las Vegas. His mom dropped him off, and his computer was an old Mac laptop with a broken screen that was so dim that I couldn’t read it, but he could. He rationalized it as a security precaution. Here’s a photo, courtesy of Mary Wehmeier. Here’s another I love, from the same Berkman Center set that also contains the one above:

All those are permissively licensed for re-use via Creative Commons, which Aaron helped create before he could shave.

Aaron’s many other passions and accomplishments are well-described elsewhere, but the role he chose to play might be best described by Cory Doctorow in BoingBoing: “a full-time, uncompromising, reckless and delightful shit-disturber.” Cory also writes, “Aaron had an unbeatable combination of political insight, technical skill, and intelligence about people and issues. I think he could have revolutionized American (and worldwide) politics. His legacy may still yet do so.”

I hope that’s true. But it would have had a much better chance if he were still here doing what he did best. We haven’t just lost a good man, but the better world he was helping to make.

[Later...] Larry Lessig makes the case that Aaron was driven to end his life by the prospect of an expensive trial, due to start soon, and the prospect of prison and worse if he lost the case and its appeals. Writes Larry ,

[Aaron] is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.

For remember, we live in a world where the architects of the financial crisis regularly dine at the White House — and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.”

In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial in April — his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge.  And so as wrong and misguided and fucking sad as this is, I get how the prospect of this fight, defenseless, made it make sense to this brilliant but troubled boy to end it.

Fifty years in jail, charges our government. Somehow, we need to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time. That begins with one word: Shame.

One word, and endless tears.

[Later again, 13 January, Sunday morning...] Official Statement from the family and partner of Aaron Swartz is up at http://RememberAaronSw.tumblr.com. Here it is, entire:

Our beloved brother, son, friend, and partner Aaron Swartz hanged himself on Friday in his Brooklyn apartment. We are in shock, and have not yet come to terms with his passing.

Aaron’s insatiable curiosity, creativity, and brilliance; his reflexive empathy and capacity for selfless, boundless love; his refusal to accept injustice as inevitable—these gifts made the world, and our lives, far brighter. We’re grateful for our time with him, to those who loved him and stood with him, and to all of those who continue his work for a better world.

Aaron’s commitment to social justice was profound, and defined his life. He was instrumental to the defeat of an Internet censorship bill; he fought for a more democratic, open, and accountable political system; and he helped to create, build, and preserve a dizzying range of scholarly projects that extended the scope and accessibility of human knowledge. He used his prodigious skills as a programmer and technologist not to enrich himself but to make the Internet and the world a fairer, better place. His deeply humane writing touched minds and hearts across generations and continents. He earned the friendship of thousands and the respect and support of millions more.

Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles.

Today, we grieve for the extraordinary and irreplaceable man that we have lost.

Funeral and other details follow at the bottom of that post, which concludes, Remembrances of Aaron, as well as donations in his memory, can be submitted at http://rememberaaronsw.com.

Also, via @JPBarlow: “Academics, please put your PDFs online in tribute to @aaronsw. Use #pdftribute.” Here’s the backstory.

A memorial tweet from Tim Berners Lee (@TimBerners_Lee): Aaron dead. World wanderers, we have lost a wise elder. Hackers for right, we are one down. Parents all, we have lost a child. Let us weep.

Some links, which I’ll keep adding as I can:

Tags:

(Cross-posted from the ProjectVRM blog.)

left r-buttonright r-buttonFor as long as we’ve had economies, demand and supply have been attracted to each other like a pair of magnets. Ideally, they should match up evenly and produce good outcomes. But sometimes one side comes to dominate the other, with bad effects along with good ones.

Such has been the case on the Web ever since it went commercial with the invention of the cookie in 1995, resulting in a  in which the demand side — that’s you and me — plays the submissive role of mere “users,” who pretty much have to put up with whatever rules websites set on the supply side.

Consistent with  (“Power corrupts; absolute power corrupts absolutely”) the near absolute power of website cows over user calves has resulted in near-absolute corruption of website ethics in respect to personal privacy.

This has been a subject of productive obsession by  and her team of reporters at The Wall Street Journal, which have been producing the  series (shortcut: http://wsj.com/wtk) since July 30, 2010, when Julia by-lined . The next day I called that piece a turning point. And I still believe that.

Today came another one, again in the Journal, in Julia’s latest, titled Web Firms to Adopt ‘No Track’ Button. She begins,

A coalition of Internet giants including Google Inc. has agreed to support a do-not-track button to be embedded in most Web browsers—a move that the industry had been resisting for more than a year.

The reversal is being announced as part of the White House’s call for Congress to pass a “privacy bill of rights,” that will give people greater control over the personal data collected about them.

The long White House press release headline reads,

We Can’t Wait: Obama Administration Unveils Blueprint for a “Privacy Bill of Rights” to Protect Consumers Online

Internet Advertising Networks Announces Commitment to “Do-Not-Track” Technology to Allow Consumers to Control Online Tracking

Obviously, government and industry have been working together on this one. Which is good, as far as it goes. Toward that point, Julia adds,

The new do-not-track button isn’t going to stop all Web tracking. The companies have agreed to stop using the data about people’s Web browsing habits to customize ads, and have agreed not to use the data for employment, credit, health-care or insurance purposes. But the data can still be used for some purposes such as “market research” and “product development” and can still be obtained by law enforcement officers.

The do-not-track button also wouldn’t block companies such as Facebook Inc. from tracking their members through “Like” buttons and other functions.

“It’s a good start,” said Christopher Calabrese, legislative counsel at the American Civil Liberties Union. “But we want you to be able to not be tracked at all if you so choose.”

In the New York Times’ White House, Consumers in Mind, Offers Online Privacy Guidelines Edward Wyatt writes,

The framework for a new privacy code moves electronic commerce closer to a one-click, one-touch process by which users can tell Internet companies whether they want their online activity tracked.

Much remains to be done before consumers can click on a button in their Web browser to set their privacy standards. Congress will probably have to write legislation governing the collection and use of personal data, officials said, something that is unlikely to occur this year. And the companies that make browsers — Google, Microsoft, Apple and others — will have to agree to the new standards.

No they won’t. Buttons can be plug-ins to existing browsers. And work has already been done. VRM developers are on the case, and their ranks are growing. We have dozens of developers (at that last link) working on equipping both the demand and the supply side with tools for engaging as independent and respectful parties. In fact we already have a button that can say “Don’t track me,” plus much more — for both sides. Its calle the R-button, and it looks like this: ⊂ ⊃. (And yes, those symbols are real characters. Took a long time to find them, but they do exist.)

Yours — the user’s — is on the left. The website’s is on the right. On a browser it might look like this:

r-button in a browser

Underneath both those buttons can go many things, including preferences, policies, terms, offers, or anything else — on both sides. One of those terms can be “do not track me.” It might point to a fourth party (see explanations here and here) which, on behalf of the user or customer, maintains settings that control sharing of personal data, including the conditions that must be met. A number of development projects and companies are already on this case. Some have personal data stores (PDSes), also called “lockers” or “vaults.” These include:

Three of those are in the U.S., one in Austria, one in France, one in South Africa, and three in the U.K. (All helping drive the Midata project by the U.K. government, by the way.) And those are just companies with PDSes. There are many others working on allied technologies, standards, protocols and much more. They’re all just flying below media radar because media like to look at what big suppliers and governments are doing. Speaking of which… :-)

Here’s Julia again:

Google is expected to enable do-not-track in its Chrome Web browser by the end of this year.

Susan Wojcicki, senior vice president of advertising at Google, said the company is pleased to join “a broad industry agreement to respect the ‘Do Not Track’ header in a consistent and meaningful way that offers users choice and clearly explained browser controls.”

White House Deputy Chief Technology Officer Daniel Weitzner said the do-not-track option should clear up confusion among consumers who “think they are expressing a preference and it ends up, for a set of technical reasons, that they are not.”

Some critics said the industry’s move could throw a wrench in a separate year-long effort by the World Wide Web consortium to set an international standard for do-not-track. But Mr. Ingis said he hopes the consortium could “build off of” the industry’s approach.

So here’s an invitation to the White House, Google, the 3wC, interested BigCos (including CRM companies), developers of all sizes and journalists who are interested in building out genuine and cooperative relationships between demand and supply::::

Join us at IIW — the Internet Identity Workshop — in Mountain View, May 1-3. This is the unconference where developers and other helpful parties gather to talk things over and move development forward. No speakers, no panels, no BS. Just good conversation and productive work. It’s our fourteenth one, and they’ve all been highly productive.

As for the r-button, take it and run with it. It’s there for the development. It’s meaningful. We’re past square one. We’d love to have all the participation we can get, from the big guys as well as the little ones listed above and here.

To help get your thinking started, visit this presentation of one r-button scenario, by Adam Marcus of MIT. Here’s another view of the same work, which came of of a Google Summer of Code project through ProjectVRM and the Berkman Center:

(Props to Oshani Seneviratne and David Karger, also both of MIT, and Ahmad Bakhiet, of Kings College London, for work on that project.)

If we leave fixing the calf-cow problem entirely up to the BigCos and BigGov, it won’t get fixed. We have to work from the demand side as well. In economies, customers are the 100%.

Here are some other stories, mostly gathered by Zemanta:

All look at the symptoms, and supply-side cures. Time for the demand side to demand answers from itself. Fortunately, we’ve been listening, and the answers are coming.

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Today I’m in solidarity with Web publishers everywhere joining the fight against new laws that are bad for business — and everything else — on the Internet.

I made my case in If you hate big government, fight SOPA. A vigorous dialog followed in the comments under that. Here’s the opening paragraph:

Nobody who opposes Big Government and favors degregulation should favor the Stop Online Piracy Act, better known as SOPA, or H.R. 3261. It’s a big new can of worms that will cripple use of the Net, slow innovation on it, clog the courts with lawsuits, employ litigators in perpetuity and deliver copyright maximalists in the “content” business a hollow victory for the ages.

I also said this:

SOPA is a test for principle for members of Congress. If you wish to save the Internet, vote against it. If you wish to fight Big Government, vote against it. If you wish to protect friends in the “content” production and distribution business at extreme cost to every other business in the world, vote for it. If you care more about a few businesses you can name and nothing about all the rest of them — which will be whiplashed by the unintended consequences of a bill that limits what can be done on the Internet while not comprehending the Internet at all — vote for it.

This is the pro-business case. There are other cases, but I don’t see many people making the pure business one, so that’s why I took the business angle.

The best summary case I’ve read since then is this one from the EFF.

The best detailed legal case (for and against) is A close look at the Stop Online Piracy Act bill, by Jonathan @Zittrain. The original, from early December, is here.

Not finally, here are a pile of links from Zemanta:

Oh, and the U.S. Supreme Court just make it cool for any former copyright holder to pull their free’d works out of the public domain. The vote was 6-2, with Kagan recused and Breyer and Alito dissenting. Lyle Denniston in the SCOTUS blog:

In a historic ruling on Congress’s power to give authors and composers monopoly power over their creations, the Supreme Court on Tuesday broadly upheld the national legislature’s authority to withdraw works from the public domain and put them back under a copyright shield.   While the ruling at several points stressed that it was a narrow embrace of Congress’s authority simply to harmonize U.S. law with the practice of other nations, the decision’s treatment of works that had entered the public domain in the U.S. was a far more sweeping outcome.

No one, the Court said flatly, obtains any personal right under the Constitution to copy or perform a work just because it has come out from under earlier copyright protection, so no one can object if copyright is later restored.  Any legal rights that exist belong only to the author or composer, the ruling said.  If anyone wants to resume the use or performance of a work after it regains copyright, they must pay for the privilege, the decision made clear.

IMHO, the U.S. has become devoutly propertarian, even at the expense of opportunity to create fresh property from borrowed and remixed works in the public domain. One more way the public domain, and its friendliness to markets, is widely misunderstood.

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Nobody who opposes Big Government and favors degregulation should favor the Stop Online Piracy Act, better known as SOPA, or H.R. 3261. It’s a big new can of worms that will cripple use of the Net, slow innovation on it, clog the courts with lawsuits, employ litigators in perpetuity and deliver copyright maximalists in the “content” business a hollow victory for the ages.

A few years back, a former government official confidentially issued a warning to a small group I was part of, which favored some kind of lawmaking around technology. While this isn’t a verbatim quote, it’s pretty close, because it has been burned in my mind ever since: “In the course of my work I have met with nearly every member of Congress. And I can tell you that, with only a handful of exceptions, there are two things none of them understand. One is economics and the other is technology. Now proceed.”

Know-nothing lawmakers are doing exactly that with SOPA. As Joshua Kopstein says, Dear Congress, It’s No Longer OK To Not Know How The Internet Works.

SOPA is a test for principle for members of Congress. If you wish to save the Internet, vote against it. If you wish to fight Big Government, vote against it. If you wish to protect friends in the “content” production and distribution business at extreme cost to every other business in the world, vote for it. If you care more about a few businesses you can name and nothing about all the rest of them — which will be whiplashed by the unintended consequences of a bill that limits what can be done on the Internet while not comprehending the Internet at all, vote for it.

Rivers of ink and oceans of pixels have been spilled by others on this subject, so I’ll confine my case to a single section of the bill:

SEC. 103. MARKET-BASED SYSTEM TO PROTECT U.S. CUS- TOMERS AND PREVENT U.S. FUNDING OF SITES DEDICATED TO THEFT OF U.S. PROPERTY.

(I tried copying and pasting the whole section here, but it’s a @#$%^& .pdf, a proprietary format that has been Web-hostile from the start, but beloved of the “content” folks, as well as Congress and lawyers in general. If somebody can find us a .html or a .txt version, please let me know.)

There is nothing “market-based” about this section of the bill. “Market-based” is a paint job on more regulation, more restriction, more bureaucracy, more federal meddling, more litigation. Weighing in at nearly 17,000 words, is not only clueless about the nature of the Net and the Web, mischaracterizing both from front to back, but features the word “plaintiff” 100 or more times (I lost count). Oh, and lots of new work for this bureaucrat:

INTELLECTUAL PROPERTY ENFORCEMENT COORDINATOR.—The term ‘‘Intellectual Property Enforcement Coordinator’’ means the Intellectual Property Enforcement Coordinator appointed under section 301 of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (154 U.S.C. 8111)

Yes, it exists.

We don’t need SOPA. What we do need is for Congress — along with lawmakers and regulators everywhere, right down to public utilities commissions and town councils — to at least begin to understand what the Internet is, and what it does for everybody, before it starts making laws protecting one business at the expense of all the rest.

If you want to see who is behind SOPA, just follow the money.

A couple days ago, David Weinberger told me Jimmy Wales was mulling the wisdom of shutting off Wikipedia for a day.  David blogged about it. So did Cory Doctorow. Later Torrent Freak spilled the beans as well. For some perspective on this, consider these two facts: 1) Jimbo is an economic Libertarian—about as pro-business and pro-”market-based” as you can get; and 2) Wikipedia remains the only search result for anything that consistently rises above the tide of gimmickry that has corrupted the commercial Web and buried more and more “organic” (non-commercial) results under an avalanche of promotional jive.

Julian Sanchez of the Cato Institute presents a solid Libertarian case against SOPA on YouTube. If it passes, he says, “the only difference between the U.S. and China is what’s on the blacklist.”

Sure, “piracy” is a problem. So are a zillion other afflictions you can name. New laws — especially ones that are written by regulatory captives and feared by real businesses in the marketplace — are not a solution. They compound the problem they purport to solve and cause untold new problems as unintended but certain consequences. Any conservative worthy of the label should be dead-set against SOPA.

Futhter reading, compiled mostly by Zemanta:

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While arguments over network neutrality have steadily misdirected attention toward Washington, phone and cable companies have quietly lobbied one state after another to throttle back or forbid cities, towns and small commercial and non-commercial entities from building out broadband facilities. This Community Broadband Preemption Map, from Community Broadband Networks, tells you how successful they’ve been so far: Broadband Preemption Map Now they’re the verge of succeeding in North Carolina too.

This issue isn’t just close to home for me. I lived in North Carolina for nearly two decades, and I have more blood relatives there than in any other state. (Not to mention countless friends.) Not one of them tells me how great their broadband is. More than a few complain about it. And I can guarantee that the complaints won’t stop once the Governor signs the misleadingly-named ”Level Playing Field/Local Gov’t Competition act” (H129), which the cable industry has already been lobbied through the assembly.

The “free market” the phone and cable companies claim to operate in, and which they mostly occupy as a duopoly, is in fact a regulatory zoo where the biggest animals run the place. Neither half of the phone/cable duopoly has ever experienced anything close to a truly free market; but they sure know how to thrive in the highly regulated one they have — at the federal, state and local levels. Here’s Ars on the matter:

Let’s be even clearer about what is at stake in this fight. Muni networks are providing locally based broadband infrastructures that leave cable and telco ISPs in the dust. Nearby Chattanooga, Tennessee’scity owned EPB Fiber Optics service now advertises 1,000Mbps. Wilson, North Carolina is home to the Greenlight Community Network, which offers pay TV, phone service, and as much as 100Mbps Internet to subscribers (the more typical package goes at 20Mbps). Several other North Carolina cities have followed suit, launching their own networks. In comparison, Time Warner’s Road Runner plan advertises “blazing speeds” of 15Mbps max to Wilson area consumers. When asked why the cable company didn’t offer more competitive throughput rates, its spokesperson told a technology newsletter back in 2009 that TWC didn’t think anyone around there wanted faster service. When it comes to price per megabyte, GigaOm recently crunched some numbers and found out that North Carolina cities hold an amazing 7 of 10 spots on the “most expensive broadband in the US” list.

And here’s what Wally Bowen and Tim Karr say in the News & Observer:

North Carolina has a long tradition of self-help and self-reliance, from founding the nation’s first public university to building Research Triangle Park. Befitting the state’s rural heritage, North Carolinians routinely take self-help measures to foster economic growth and provide essential local services such as drinking water and electric power. Statesville built the state’s first municipal power system in 1889, and over the years 50 North Carolina cities and towns followed suit. In 1936, the state’s first rural electric cooperative was launched in Tarboro to serve Edgecombe and Martin counties. Today, 26 nonprofit electric networks serve more than 2.5 million North Carolinians in 93 counties. Strangely, this self-help tradition is under attack. The General Assembly just passed a bill to restrict municipalities from building and operating broadband Internet systems to attract industry and create local jobs. Although pushed by the cable and telephone lobby, similar bills were defeated in previous legislative sessions. But the influx of freshmen legislators and new leadership in both houses created an opening for the dubiously titled “Level Playing Field” bill (HB 129).

No one disputes the importance of broadband access for economic growth and job creation. That’s why five cities – Wilson, Salisbury, Morganton, Davidson and Mooresville – invoked their self-help traditions to build and operate broadband systems after years of neglect from for-profit providers, which focus their investments in more affluent and densely populated areas. Not coincidentally, all five cities own and operate their own power systems or have ties to nonprofit electric cooperatives. (While the bill does not outlaw these five municipal networks, it restricts their expansion and requires them to make annual tax payments to the state as if they were for-profit companies.) How does a state that values independence, self-reliance and economic prosperity allow absentee-owned corporations to pass a law essentially granting two industries – cable and telephone – the power to dictate North Carolina’s broadband future? This question will be moot if Gov. Beverly Perdue exercises her veto power and sends this bill where it belongs: to the dustbin of history.

We don’t need more laws restricting anything around Internet infrastructure build-outs in the U.S. That’s the simple argument here.

We need the phone and cable companies to improve what they can, and we need to encourage and thank them for their good work. (As I sometimes do with Verizon FiOS, over which I am connected here in Massachusetts.)

We also need to recognize that the Internet is a utility and not just the third act (after phone and TV) in the “triple play” that phone and cable companies sell. The Net is more like roads, water, electricity and gas than like TV or telephony (both of which it subsumes). It’s not just about “content” delivered from Hollywood to “consumers,” or about a better way to do metered calls on the old Ma Bell model. It’s about everything you can possibly do with a connection to the rest of the world. The fatter that connection, the more you can do, and the more business can do.

Cities and regions blessed with fat pipes to the Internet are ports on the ocean of bits that now comprise the networked world. If citizens can’t get phone and cable companies to build out those ports, it’s perfectly legitimate for those citizens to do it themselves. That’s what municipal broadband build out is about, pure and simple. Would it be better to privatize those utilities eventually? Maybe. But in the meantime let’s not hamstring the only outlet for enterprise these citizens have found.

Here’s a simple fact for Governor Perdue to ponder: In the U.S. today, the leading innovators in Internet build-out are cities, not phone and cable companies. Look at Chatanooga and Lafayette — two red state cities that are doing an outstanding job of building infrastructure that attracts and supports new businesses of all kinds. Both are doing what no phone or cable companies seems able or willing to do. And both are succeeding in spite of massive opposition by those same incumbent duopolists.

The Internet is a rising tide that lifts all economic boats. At this stage in U.S. history, this fact seems to be fully motivating to enterprises mostly at the local level, and mostly in small cities. (Hi, Brett.) Their customers here are citizens who have direct and personal relationships with their cities and with actual or potential providers there, including the cities themselves. They want and need a level of Internet capacity that phone and cable companies (for whatever reason) are not yet giving them. These small cities provide good examples of The Market at work.

It isn’t government that’s competing with cable and phone companies here. Its people. Citizens.

No, these new build-outs are not perfect. None are, or can be. Often they’re messy. But nothing about them requires intervention by the state. Especially so early in whatever game this will end up being.

I urge friends, relatives and readers in North Carolina to Call Governor Perdue at (800) 662-7952, and to send her emails at  governor.office at nc.gov. Tell her to veto this bill, and to keep North Carolina from turning pink or red on the map above. Tell her to keep the market for broadband as free as it’s been from the beginning.

Bonus link.

[Later, as the last hour approaches...]

Larry Lesig has published an open letter to Governor Perdue, Here is most of it:

Dear Governor Perdue:

On your desk is a bill passed by the overwhelmingly Republican North Carolina legislature to ban local communities from building or supporting community broadband networks. (H.129). By midnight tonight, you must decide whether to veto that bill, and force the legislature to take a second look.

North Carolina is an overwhelmingly rural state. Relative to the communities it competes with around the globe, it has among the slowest and most expensive Internet service. No economy will thrive in the 21st century without fast, cheap broadband, linking citizens, and enabling businesses to compete. And thus many communities throughout your state have contracted with private businesses to build their own community broadband networks.

These networks have been extraordinarily effective. The prices they offer North Carolinians is a fraction of the comparable cost of commercial network providers. The speed they offer is also much much faster.

This single picture, prepared by the Institute for Local Self Reliance, says it all: The yellow and green dots represent the download (x-axis) and upload (y-axis) speeds provided by two community networks in North Carolina. Their size represents their price. As you can see, community networks provide faster, cheaper service than their commercial competitors. And they provide much faster service overall.

2011-05-20-broadbandgraph.png

 

Local competition in broadband service benefits the citizens who have demanded it. For that reason, community after community in North Carolina have passed resolutions asking you to give them the chance to provide the Internet service that the national quasi-monopolies have not. It is why businesses from across the nation have opposed the bill, and business leaders from your state, including Red Hat VP Michael Tiemann, have called upon you to veto the bill.

Commercial broadband providers are not happy with this new competition, however. After spending millions in lobbying and campaign contributions in North Carolina, they convinced your legislature to override the will of local North Carolina communities, and ban these faster, cheaper broadband networks. Rather than compete with better service, and better prices, they secured a government-granted protection against competition. And now, unless you veto H. 129, that protection against competition will become law.

Opponents of community broadband argue that it is “unfair” for broadband companies to have to compete against community-supported networks. But the same might be said of companies that would like to provide private roads. Or private fire protection. Or private police protection. Or private street lights. These companies too would face real competition from communities that choose to provide these services themselves. But no one would say that we should close down public fire departments just to be “fair” to potential private first-responders.

The reason is obvious to economists and scholars of telecommunications policy. As, for example, Professor Brett Frischmann argues, the Internet is essential infrastructure for the 21st century. And communities that rely solely upon private companies to provide public infrastructure will always have second-rate, or inferior, service.

In other nations around the world, strong rules forcing networks to compete guarantee faster, cheaper Internet than the private market alone would. Yet our FCC has abdicated its responsibility to create the conditions under which true private broadband competition might flourish in the United States. Instead, the United States has become a broadband backwater, out-competed not only by nations such as Japan and Korea, but also Britain, Germany and even France. According to a study by the Harvard Berkman Center completed last year, we rank 19th among OECD countries in combined prices for next generation Internet, and 19th for average advertised speeds. Overall, we rank below every major democratic competitor — including Spain — and just above Italy.

In a world in which FCC commissioners retire from the commission and take jobs with the companies they regulate (as Commissioner Baker has announced that she will do, by joining Comcast as a lobbyist, and as former FCC Chairman Powell has done, becoming a cable industry lobbyist), it is perhaps not surprising that these networks are protected from real competition.

But whether surprising or not, the real heroes in this story are the local communities that have chosen not to wait for federal regulators to wake up, and who have decided to create competition of their own. No community bans private networks. No community is unfairly subsidizing public service. Instead, local North Carolina communities are simply contracting to build 21st-century technology, so that citizens throughout the state can have 21st-century broadband at a price they can afford.

As an academic who has studied this question for more than a decade, I join many in believing that H.129 is terrible public policy…

Be a different kind of Democrat, Governor Perdue. I know you’ve received thousands of comments from citizens of North Carolina asking you to veto H.129. I know that given the size of the Republican majority in the legislature, it would be hard for your veto to be sustained.

But if you took this position of principle, regardless of whether or not you will ultimately prevail, you would inspire hundreds of thousands to join with you in a fight that is critical to the economic future of not just North Carolina, but the nation. And you would have shown Republicans and Democrats alike that it is possible for a leader to stand up against endless corporate campaign cash.

There is no defeat in standing for what you believe in. So stand with the majority of North Carolina’s citizens, and affirm the right of communities to provide not just the infrastructure of yesterday — schools, roads, public lighting, public police forces, and fire departments — but also the infrastructure of tomorrow — by driving competition to provide the 21st century’s information superhighway.

With respect,

Lawrence Lessig

To contact the governor, you can email her. If you’re from North Carolina, this link will take you to a tool to call the governor’s office. You can follow this fight on Twitter at @communitynets
You can follow similar fights on Twitter by searching #rootstrikers.

Well put, as usual. Hope it works.

We’re doing something different at next week’s IIW: inviting investors. So here’s a pitch that should resonate with investors — especially in Silicon Valley, where IIW happens (appropriately, at the Computer History Museum in Mountain View)…

Here’s a chance to check in on development work on a huge new disruptive market play: empowering customers as independent players in the marketplace, and building new businesses that serve liberated customers who want choices other than those between silos and walled gardens.

We’re talking here about equipping demand to drive supply, rather than just the reverse. (Which is fine and necessary, but it’s been done. A lot.)

We’re talking about creating tools and services proving at last that free customers are more valuable than captive ones.

We’re talking about how much more can happen in a marketplace where customers collect, control and selectively share their own data, for their own purposes — which nobody on the vendor side needs to guess about, because the customer knows, has the intent, and has the money.

We’ve been working on these tools for awhile now. My own work, both through IIW (which I help organize) and ProjectVRM at Harvard’s Berkman Center, has been to encourage development of tools that liberate and empower customers in the marketplace. Thanks also to the good work of allied efforts, many of these tools now exist, and more are coming along.

These tools fall into many categories. Some are open source efforts that equip developers with essential building material. Some are commercial efforts at the angel or pre-angel stages. Some are already funded. Some are existing businesses looking for partners. Whatever breed they are, all should be interesting to investors looking to place bets on customers, and on companies that align with customer interests and intentions in the marketplace.

IIW — which stands for Internet Identity Workshop — has always been about development. Since 2005 we’ve been getting together twice a year to share ideas and move work forward. As a workshop, it’s organized as an unconference. No speakers, no panels. Participants suggest topics and everybody breaks out to rooms and tables where those topics get discussed, whiteboards get marked up, and in many cases code gets shown and improved.

On Tuesday and Wednesday, May 3 and 4, the workshop will follow the usual routine. But on Thursday, May 5, we’ll visit a new topic which we’re calling “Yukon”: a one-word play on the line, “You control your own data.” As it says here,

Something New: IIW + Yukon: One of the longtime themes of IIW is how identity and personal data intersect. Many important discussions about Vendor Relationship Management (VRM) have also taken place at IIW. In recognition of how personal data and identity are intertwined, the third day of the IIW, May 5, will be designated “IIW + Yukon” and will stress the emerging personal data economy. The primary theme will be personal data control and leverage, where the individual controls and drives the use of their own data, and data about them held by other parties.

This isn’t social. It’s personal. This day you can expext open-space style discussions of personal data stores (PDS), PDS ecosystems, and VRM. One purpose of Yukon is to start to focus on business models and value propositions, so we will specifically be reaching out to angels and VC’s who are intersted in personal data economy plays and inviting them to attend.

Whether or not you’re an investor, or just friends with some (as pretty much all of us are these days), you’re invited. Looking forward to seeing you there.

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I don’t envy anybody in the airline business. There is so much to do right, and the costs of doing things wrong can be incalculably high. Required capital investments are immense, and the regulatory framework is both complex and costly. Yet the people I’ve met in the business tend to be dedicated professionals who care about serving people, and not just about making a buck or putting in time. And the few bad experiences I’ve had are so anomalous that I’m inclined to disregard them. So, on the whole, I cut them all some slack.

By now I have close to a million miles with United, which is now the largest airline in the world, thanks to its merger with Continental. As it happens I’m sitting in a Continental lounge right now, though I’ll be flying in a couple hours to Salt Lake City on Delta. My original flights with United (from Boston through Chicago) were delayed by snow (yes, it’s snowing here, on the first day of Spring). The Continental club lounge is available so here I sit. For what it’s worth, the Continental lounge is nicer than United’s. In fact, pretty much everything about Continental is nicer, by a small margin. That’s a pat on Continental’s back, rather than a knock on United, which I’ve come to regard with some affection over many years of flying with them. One reason for all that flying is that they made lifetime membership in their club lounge available for a good price two decades ago, and that’s been a tie-breaker for us — in United’s favor — ever since. (Sadly, the offer was discontinued.)

The merger is moving slowly. Most of both airlines’ planes now say United on the side and keep the Continental globe symbol on the tail. (Minimal paint jobs for both, basically.) But the operations are still separate, which in some ways they have to be, since in many locations they occupy separate airport terminals. Their computer systems are also surely different and hard to merge. But, while there is some time left before the merger completes, I thought I’d put out a few public suggestions for both airlines as they gradually become one. Here goes:

  1. Keep Channel 9. That’s the United audio channel that carries cockpit air traffic audio. Like a lot of frequent fliers, aviation is a passion of mine, and listening in on that chatter is a familiar, comforting and engaging experience. Sharing it with passengers is up to the pilots, and I always go out of my way to thank the pilots who choose to share the channel with passengers. I’ve met many other passengers over the years who also love the service. In many cases these passengers are either current or former pilots themselves. Of course it’s not necessary to keep it on that same audio channel; but at least make it available.
  2. Make seat choices easier online. Say what kind of airplane the flight takes, and whether or not there are actually windows by the window seat (on some planes there are some window seats with blank walls). Consider providing links to SeatExpert or SeatGuru.
  3. Allow more conditional choices for upgrades. I like window seats on the shaded side of the plane, and usually choose those seats with great care. So, for example on a United 777, where all the premium coach seating with extra legroom is in seats over the wing. I’m willing to sit in the back with less legroom, just to have an unobstructed view out the window. But often I’ll get an automatic upgrade (as a frequent flyer) to a business class seat that is either an aisle seat or a window seat on the sunny side of the plane, where the view is never as good. In those cases I’ll usually prefer to stay in coach.
  4. Provide Internet connectivity by wi-fi. Put it on all but the small short-haul planes.
  5. Power outlets are nice too. Some airlines have them for all seats. United should be one of them.
  6. The DirectTV system on some Continental planes is nice. So is the completely different system on some other Continental planes (one I flew from Houston to Frankfurt had a zillion movies, but no easy way to navigate all the choices). Whatever you standardize on, make it relatively open to future improvements. And make the headset plugs standard 1/8″ ones, so passengers can use their own headsets.
  7. Get apps going on Android, iPhone and other handheld devices. Continental has some now. United doesn’t yet, though it does now have the paperless boarding pass.
  8. Get Jeff Smisek to cut a new merger progress announcement to run for passengers. The old one has been talking about “changes in the coming months” for about a year now.
  9. In the lounges, upgrade the food, or provide better food you charge for (like you do for drinks at the bar). Right now in the Continental President’s club, there are apples, three kinds of chips in bags, bottom-quality shrink-wrapped cheeses and tiny plastic-wrapped sesame crackers. The United clubs will have the same apples, plus maybe the same crackers and chips, and some nut/candy mixes in dispensers. This Continental club doesn’t have an espresso/cappuccino machine, while United club at the same airport does. (And it’s a much better model than the awful one they had for a decade or more.) Meanwhile at Star Alliance lounges, and in lounges of international airlines such as Scandinavian, there will be a spread of sandwich makings, pastries, fresh baked breads and other good stuff. United and Continental charge a lot for the lounges, yet don’t allow food to be brought in. So at least offer something more than the minimal, food-wise. Free wi-fi in the lounges is also cool. Both United and Continental offer it, but Continental makes it simple: it’s just there, a free open access point. United’s is a complicated sign-on to T-Mobile.
  10. Go back to Continental’s simple and straightforward rules for device use on planes. United’s old rules were ambiguous, all-text and hard to read. Continental had little grapics that showed the allowed devices. That’s what persists in the current (March) Hemispheres magazine is the United text. You almost need to be a lawyer to make sense of this line here: “Any voice, audio, video or other photography (motion or still), recording while on any United Airlines aircraft is strictly prohibited, except to the extent specifically permitted by United Airlines.” Only twice in my many flights on United have I been told not to shoot pictures out the window from altitude, and in the second case the head flight attendant apologized later and offered me a bottle of wine for my trouble. From what I understand, photography is specifically permitted, provided it is not of other people or equipment inside the plane. I’ve also been told “It’s at the pilot’s discretion.” Whatever the rules are, the old Continental ones were much better, and unambiguous.
  11. Email receipts for onboard charges. This especially goes for ones where promos are involved and one can’t tell otherwise if the promo discount went through. For example, Chase bank customers were supposed to get $2 off on the $6 charge for using a Chase bank card to pay for watching DirectTV on the flight I took two Thursdays ago from Boston to Houston. Did I get the discount? I still don’t know.
  12. On the personal video screens, provide flight maps with travel data such as time to destination and altitude. Love those, especially when they aren’t interrupted with duty-free promos on international flights.
  13. Avoid lock-ins with proprietary partners. Example: Zune on United: http://www.zune.net/united. Right now over half of the devices being used in this lounge are non-PCs (iPads, Androids, Macs, etc.). Why leave those people out? And, of course, Zune is a dead platform walking.

Anyway, that’s a quick brain dump in the midst of other stuff, encouraged by conversation with other passengers here. I’m looking forward to seeing how things go.


Sitting in the Harvard Law Library, where John Palfrey is about to give what I sense will be a landmark lecture, on the occasion of his chair appointment as Henry N. Ess III Professor of Law at Harvard Law School. So I’m taking notes here. [Later... John's own notes — the abstract for his talk — are here. Also here. I also shot pictures, which are here. One of those follows.]

John is arguing for a new clearly connected system for sharing legal information. Presenting data in open, distributable and interoperable way.

One reason for doing this is cost. HLS spends $4 million on legal materials. HLS stives to have the world’s greatest collection of these at any given time. In theory at least, HLS bought everything in the law. There was no policy other than to buy it all. For a long time. Oliver Wendell Holmes surrounded himself in this. (His round desk is in the back of the room, and from it drinks will be served later.) Thomson Eest, Reed Elsevier (Lexis-Nexis), Wolters Kluwer, et.al. are the big sources.

Props to Henry N. Ess III, namesake of John’s new chair, and collector of many books that surround us now.

John reviews nine hundred years of history, from roots in manuscripts behind English common law, works by Littleton and Coke in the mid-teen centuries, then Blackstone in the eighteenth century, then Langdell and West in the nineteenth.

Now we are in the 21st century, and it’s digital. This is our new era, and we are just getting started.

Thanks to Google Books, more is available in digital form, but there are “scary bits” in it. Having this amazing digial library of Alexandria managed by a private entity without public interest at its core is troubling.

An intent: When we have committed for a journal article, we will have it in the public domain. This is a way of systematizing the ideal here.

The notion of putting all the legal information in the world in cyberspace is wacky yet not enough. We need to design it and do it deliberately in a way that is useful and makes sense.

Our students now are born digital. Teachers need to recognize this change.

We now presume that media will be in a digital format. iTunes is the top seller of music. YouTube is the top source of video.

But there is one anomaly in this story. Notice that students in the library outside this room use both laptops and paper casebooks — because the latter work with the three Bs: bed, bath and beach. So paper is still with us. But the presumption remains digital.

Changes in the computing system. One is cloud computing. Computing power and storage has moved to a large degree to places other than our own devices.

There are also changes in publishing. Books may will go toward digital. Sales of Kindle books at Amazon now exceed sales of print books.

We can now print books when we want them. We can now write, publish in print and online in close to real time.

The Digital Lab Team (featured at the Berkman Lunch today) is on screen now. And now we see many resources that are available through Google’s scholar portal. But one bad story that might happen here is that libraries turn into warehouses for print books. Students here today start with Google Scholar, then go to HOLLIS (the Harvard online library resource), and then to the physical library itself — or elsewhere.

So the effort perhaps should go not to completing collections, but to the interface to scholarship in general.

The current slide is a Stack View of books. “We can’t re-create the must” (in stacks). (I love the smell of library stacks. One of my favorite smells in the world.)

The problem is, there isn’t a stack. Most books go to the depository. But we can create a digital stack. And we can create a new way of looking for books and other sources that uses our familiar interface (the stack shelf), and also the serendipitous other advantages of digital connections and presentations.

Next slide, CALI.org and eLangdell.

There are tradtions other than our Anglo-American own. (A Chinese liberary slide is up now.)

Demerit of the system proposed: money. The courts don’t like these ideas. We don’t give enough money to our courts, and thus it is hard to make this possible. But if we gave a bit more, we would be able to overcome the klugey process we have today. We can drive costs out of the system.

Another: privacy. The redaction problem. By putting info in a single system, we might create combinations that are unhappy. Divorces and children combined with criminal law. Depositions and so on. So we need to be careful what we expose and what we don’t. Maybe depositions don’t go there. This is a possible enduring cost.

Another: authentication. Some librarians don’t like these ideas because printed-out stuff seems more reliable. We can do a better job digitally, but this will have a cost — a near-term one.

It is entirely possible that one might get information without context. There will be challenges to teaching in this way. But teachers are seeing this right now already.

Now for the merits.

First, putting things in XML format and making them downloadable (already started) can be enormously powerful

Next, scale. Much more is now being published. It takes less time to produce more, and we need to produce more, faster.

Next, we can create new code. think of the great search engines, and familiar leading code projects (yahoo, google, facebook, et. al.)… Many of these were created by students. Think about how tech can make hard-to-read stuff accessible.

Next, new connections. Visualizaitons, for example. (Points to Jeffrey Schnapp, with Visualization of Republic of Letters on the screen.) This kind of visualization will create needed curricular reforms.

Implictions: perception, practice, scholarship…

Perception: This might undercut what we see as the magesty of the law.

Practice: For judges, this could make them uneasy. Much as Charlie Nesson’s efforts to webcast court proceedings made them unconfortable. There might be a chilling in the way we practice the law. A possible side-effect might be a little of the medicine that judges’ kids are getting now around privacy. There is an extent to which it is possible that people who have lived in a protected environment might not see how digital natives live in an exposed environment. To see the world in a different way than their kids may have a distoring aeffect.

Scholarship. The slide: “For the rational study of law the black-letter man may be the man of the present, but thee man of the future is the man of statistics and the master of economics.” — Oliver Wendell Holmes, Jr.

We may see the rise and fall of the tradition and writing of treatises. Having individuals, without teachers in some cases, DIY-ing it…

Richard Suskind‘s The End of Lawyers? is on screen (is that Suskind is in the front row?). Everything Richard writes about will be amplified by the trends we’re talking about.

Is this the end of law libraries?, the slide asks.

On the way in we passed the stature of Joseph Story, who saved HLS, which was down to one student when he did. Here on the top floor you pass lots of students, more than ever before, studying in this space, where contemplation is possible. There is something about the physical space. (Thanks the dean for not taking away space.) Next, the portrait of Justice Taney, who wrote the Dred Scott decision. You can see the unhappiness on his face. Isaac Royall is on the wall here. Made money in the slave trade in Antiqua. Libraries help us learn from these people, these decisions, this history.

In the future no law library will do it all. We have a lot of law schools around here.

Not every regime in the world is stable. Here, more than most. For example, the pre-Soviet materials here make available what isn’t easy to find in Russia. People come here for materials not available in Turkey. We have legal information from around the world, saved for the ages.

The community of people here who provide access to knowledge is extraordinary. We have this notion that you can make a call and get what you want. The HLS team, on whom the many assets and benefits of this place rests, make it alive and accessible at key moments.

The game plan. The designers of this place — Langdell Hall — good as it is, needs to grow digitally. We have not put together information architects as good as the ones who designed the physical space. We need a design charette to make this right. We need to do right by the jailhouse lawyer, the prosaic litigant… It will be better though uncomfortable at first for the teachers and learners that we make these changes, providing access to justice through information.

Qustion from Jonathan Zittrain… We have SSRN having to implement anti gaming measures… Choice of what to think about, and what modality to think about… Is this an article, a blog?… What are your instincts about the future of legal scholarship? What are the right mix of advances that will excite the rest of the world?

JP: I want to defend the long-form argument, but first an aside: The greatest friend of this library is Charlie Donohue… What this will do is create pressure and opportunity for what will count as legal scholarship. We are looking at extension of text analysis, of (missed it)… We need these new modalities. We will see the gradual (shrinking of black letter law as a percentage of the whole).

Q: What are the implications for The Law? Is this the end of The Law? How much depends on what Holmes and others saw as a closed system, with a set of materials that constituted what The Law was and meant? In this new environment do we still have that? As more information becomes accessible for people to make arguments from, does this set new boundaries for what The Law is? What should now be in a law library rather than in a cloud? (Each question so far is a series of questions.)

JP: A great question, and not a new one. Back when printing was new, one of the debates was about this same thing. Is scholarly work in fact the law? So we already have this weird conflation. What we have now is the same problem. What is interdisciplinary work? A thoroughly connected system allows many answers to come. But we still have this problem that law itself is unfinished. If law itself is information, then what is information about the law? That’s where we get hung up. (Hope I got that right.)

Q: Access, and how is it paid for. Who controls what is available? How is it kept reliable? What is the future of what closed systems did so well?

JP: Students want more floors open more hours. In a serious way, what should be open is the platform that involves the primary and secondary law in a virtual sense. That’s the bedrock. There will be a much greater diversity than what we now get with . Many more people looking at the same core of information through different lenses. We will still have open and closed spaces, but the former will be the larger context.

[Later...] John speaks slowly and carefully enough to follow with an outliner, which is what I did here. Go here for his original abstract (which is comprehensive). And watch MediaBerkman for the audio and video.