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In , opens with this sentence: “On any person who desires such queer prizes, New York will bestow the gift of loneliness and the gift of privacy.” Sixty-four years have passed since White wrote that, and it still makes perfect sense to me, hunched behind a desk in a back room of a Manhattan apartment.

That’s because privacy is mostly a settled issue in the physical world, and a grace of civilized life. Clothing, for example, is a privacy technology. So are walls, doors, windows and shades.

Private spaces in public settings are well understood in every healthy and mature culture. This is why no store on Main Street would plant a tracking beacon in the pants of a visiting customer, to report back on that customer’s activities — just so the store or some third party can “deliver” a better “experience” through advertising. Yet this kind of thing is beyond normative on the Web: it is a huge business.

Worse, the institution we look toward for protection from this kind of unwelcome surveillance — our government — spies on us too, and relies on private companies for help with activities that would be a crime if the  still meant what it says. ( more than two years ago.)

I see two reasons why privacy is now under extreme threat in the digital world — and the physical one too, as surveillance cameras bloom like flowers in public spaces, and as marketers and spooks together look toward the “Internet of Things” for ways to harvest an infinitude of personal data.

Reason #1

The was back-burnered when  (aka ) got baked into e-commerce in the late ’90s. In a single slide  summarizes what happened after that. It looks like this:

The History of E-commerce
1995: Invention of the cookie.
The end.

For a measure of how far we have drifted away from the early promise of networked life, re-read ‘s “Death From Above,” published in January 1995, and his “Declaration of the Independence of Cyberspace,” published one year later. The first argued against asymmetrical provisioning of the Net and the second expressed faith in the triumph of nerds over wannabe overlords.

Three years later  was no less utopian. While it is best known for its 95 Theses (which include “” and ““) its most encompassing clue came before of all those. Chris Locke wrote it, and here’s what it says, boldface, color and all:

if you only have time for one clue this year, this is the one to get…
we are not seats or eyeballs or end users or consumers. we are human beings and our reach exceeds your grasp. deal with it.

Note the first and second person voices, and the possessive case. Our reach was everybody’s. Your grasp was companies’.

Fourteen years later, companies have won. Our reach has not exceeded their grasp. In fact, their grasp is stronger than ever.

Another irony: the overlords are nerds too. And  they lord over what Bruce Schneier calls a feudal system:

Some of us have pledged our allegiance to Google: We have Gmail accounts, we use Google Calendar and Google Docs, and we have Android phones. Others have pledged allegiance to Apple: We have Macintosh laptops, iPhones, and iPads; and we let iCloud automatically synchronize and back up everything. Still others of us let Microsoft do it all. Or we buy our music and e-books from Amazon, which keeps records of what we own and allows downloading to a Kindle, computer, or phone. Some of us have pretty much abandoned e-mail altogether … for Facebook.

These vendors are becoming our feudal lords, and we are becoming their vassals. We might refuse to pledge allegiance to all of them – or to a particular one we don’t like. Or we can spread our allegiance around. But either way, it’s becoming increasingly difficult to not pledge allegiance to at least one of them.

Reason #2

We have loosed three things into the digital world that we (by which I mean everybody) do not yet fully comprehend, much less deal with (through policy, tech or whatever). Those are:

  1. Ubiquitous computing power. In the old days only the big guys had it. Now we all do.
  2. Ubiquitous Internet access. This puts us all at zero virtual distance from each other, at costs that also veer toward zero as well.
  3. Unlimited ability to observe, copy and store data, which is the blood and flesh of the entire networked world.

In tech, what can be done will be done, sooner or later, especially if it’s possible to do it in secret — and if it helps make money, fight a war or both. This is why we have bad acting on a massive scale: from click farms gaming the digital advertising business, to the NSA doing what now know it does.

Last month I gave a keynote at an  event in New York. One of my topics was personal privacy, and how it might actually be good for the advertising business to respect it. Another speaker was , a “gentleman hacker” and CEO of WhiteOps, “an internet security company focused on the eradication of ad fraud.” He told of countless computers and browsers infected with bots committing click-fraud on a massive scale, mostly for Russian hackers shunting $billions from the flow of money down the online advertising river. The audience responded with polite applause. Privacy? Fraud? Why care? The money’s rolling in. Make hay while the power asymmetry shines.

Just today an executive with a giant company whose name we all know told me about visiting “click farms” in India, which he calls “just one example of fraud on a massive scale that nobody in the industry wants to talk about.” (Credit where due: the IAB wouldn’t have had us speaking there if its leaders didn’t care about the issues. But a .org by itself does not an industry make.)

Yet I’m not discouraged. In fact, I’m quite optimistic.

These last few months I’ve been visiting dozens of developers and policy folk from Europe to Australia, all grappling productively with privacy issues, working on the side of individuals, and doing their best to develop enlightened policy, products and services.

I can report that respect for privacy — the right to be left alone and to conceal what one wishes about one’s self and one’s data — is far more evolved elsewhere than it is in the U.S. So is recognition that individuals can do far more with their own data than can any big company (or organization) that has snarfed that data up. In some cases this respect takes the form of policy (e.g. the EU Data Protection Directive). In other cases it takes the form of advocacy, or of new businesses. In others it’s a combination of all of those and more.

Some examples:

 is a policy and code development movement led by Ann Cavoukian, the Information & Privacy Commissioner of Ontario. Many developers, enterprises and governments are now following her guidelines. (Which in turn leverage the work of Helen Nissenbaum.)

, the Fondation Internet Nouvelle Génération, is a think tank of leading French developers, scientists, academics and business folk, convened to guide digital transformation across many disciplines, anchored in respect for the individual and his or her full empowerment (including protection of privacy), and for collective action based on that respect.

 is a Fing project in which six large French companies — Orange, La Poste, Cap-Digital, Monoprix, Alcatel-Lucent and Societe Generale — are releasing to 300 customers personal data gathered about those customers, and inviting developers to help those customers do cool things on their own with that data.

The  in the UK is doing a similar thing, with twenty UK companies and thousands of customers.

Both Midata and Etalab in France are also working the government side, sharing with citizens data collected about them by government agencies. For more on the latter read Interview with Henri Verdier: Director of Etalab, Services of the French Prime Minister. Also see Open Data Institute and PublicData.eu.

In Australia,    and  are working on re-building markets from the customer side, starting with personal control and required respect for one’s privacy as a base principle.

In the U.S. and Europe, companies and open source development groups have been working on personal data “stores,” “lockers,” “vaults” and “clouds,” where individuals can harbor and use their own data in their own private ways. There is already an  and a language for “” and “pclouds” for everything you can name in the Internet of Things. I posted something recently at HBR about one implication for this. (Alas, it’s behind an annoying registration wall.)

On the legal front, Customer Commons is working with the  at the Berkman Center on terms and privacy requirements that individuals can assert in dealing with other entities in the world. This work dovetails with , the  and others.

I am also encouraged to see that the most popular browser add-ons and extensions are ones that block tracking, ads or both. AdblockPlus, Firefox’s Privowny and  are all in this game, and they are having real effects. In May 2012,  a 9.26% ad blocking rate in North America and Europe. Above that were Austria (22.5%), Hungary, Germany, Finland, Poland, Gibraltar, Estonia and France. The U.S. was just below that at 8.72%. The top blocking browser was Firefox (17.81%) and the bottom one was Explorer (3.86%). So it was no surprise to see Microsoft jump on the Do Not Track bandwagon with its latest browser version. In sum what we see here is the marketplace talking back to marketing, through developers whose first loyalties are to people.

(The above and many other companies are listed among developers here.)

More context: it’s still early. The Internet most of us know today is just eighteen years old. The PC is thirty-something. Pendulums swing. Tides come and go. Bubbles burst.

I can’t prove it, but I do believe we have passed Peak Surveillance. When Edward Snowden’s shit hit the fan in May, lots of people said the controversy would blow over. It hasn’t, and it won’t. Our frogs are not fully boiled, and we’re jumping out of the pot. New personal powers will be decentralized. And in cases where those powers are centralized, it will be in ways that are better aligned with individual and social power than the feudal systems of today. End-to-end principles are still there, and still apply.

Another reason for my optimism is metaphor, the main subject in the thread below. In , George Lakoff and Mark Johnson open with this assertion: The mind is inherently embodied. We think metaphorically, and our metaphorical frames arise from our bodily experience. Ideas, for example, may not be things in the physical sense, but we still talk of “forming,” “getting,” “catching” and “throwing out” ideas. Metaphorically, privacy is a possession. We speak of it in possessive terms, and as something valuable and important to protect — because this has been our experience with it for as long as we’ve had civilization.

“Possession is nine-tenths of the law” because it is nine-tenths of the three-year-old. She says “It’s mine!” because she has hands with thumbs that give her the power to grab. Possession begins with what we can hold.

There is also in our embodied nature a uniquely human capacity called indwelling. Through indwelling our senses extend outward through our clothes, our tools, our vehicles, to expand the boundaries of our capacities as experienced and capable beings in the world. When drivers speak of “my wheels” and pilots of “my wings,” it’s because their senses dwell in those things as extensions of their bodies.

This relates to privacy through exclusion: my privacy is what only I have.

The clothes we wear are exclusively ours. We may wear them to express ourselves, but their first purpose is to protect and conceal what is only ours. This sense of exclusivity also expands outward, even though our data.

 ”the Internet is a copy machine.” And it is. We send an email in a less literal sense than we copy it. Yet the most essential human experience is ambulation: movement. This is why we conceive life, and talk about it, in terms of travel, rather than in terms of biology. Birth is arrival, we say. Death is departure. Careers are paths. This is why, when we move data around, we expect its ownership to remain a private matter even if we’re not really moving any of it in the postal sense of a sending a letter.

The problem here is not that our bodily senses fail to respect the easily-copied nature of data on networks, but that we haven’t yet created social, technical and policy protocols for the digital world to match the ones we’ve long understood in the physical world. We still need to do that. As embodied beings, the physical world is not just our first home. It is the set of reference frames we will never shake off, because we can’t. And because we’ve had them for ten thousand years or more.

The evolutionary adaptation that needs to happen is within the digital world and how we govern it, not the physical one.

Our experience as healthy and mature human beings in the physical world is one of full agency over personal privacy. In building out our digital world — something we are still just beginning to do — we need to respect that agency. The biggest entities in the digital world don’t yet do that. But that doesn’t mean they can’t. Especially after we start leaving their castles in droves.

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[4 December: I got a call from Verizon and an answer. For that, skip down to *here.]

We have a new apartment in Manhattan. Washington Heights. Verizon FiOS is here. FiOS trucks roam the streets. They set up little tables in front of apartments where FiOS is now available, to sign customers up. My wife talked to a guy at one of those recently, and he told us Verizon would bring FiOS to any apartment building where a majority of tenants welcomed it, provided the fiber is in the street. Our street has it, but we can’t get through to Verizon by the usual means (website, phone number). Checking with those is a dead end. They say it’s not available. But I want to know for sure, either way. Because I’ll bet I can sell a majority of tenants on going with FiOS. I know FiOS, because I’ve been a customer near Boston since 2007. So can somebody from Verizon please contact me? Either here or through @dsearls. Thanks.

* Had a good talk with a Verizon rep who called me today (4 December). Here’s what she said:

  1. FiOS is not ready on our street yet, but it will be.
  2. When it is, building owners will be notified, both by mail and in person if possible. So alert the building owner to this eventuality, if the owner is not you.
  3. Meanwhile also go on the website and navigate to where you can request service. Even if they say it’s not available now, the request will be remembered when the service actually rolls out.
  4. Right now Verizon has stopped pushing or building out any new services while existing ones are down or damaged due to Sandy. Since there was a lot of damage, and many customers affected, the company’s first priority is restoring that service. This will take awhile. No telling how long yet.
  5. When the Sandy restoration job is complete, the company will go back to expanding services to both new and existing customers.

So I’ll call Time Warner tomorrow. Meanwhile, maybe the information above will help you too.

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If you want to get the most out of your Verizon FiOS (fiber to the home) Internet connection, here are your top two tiers:

FiOS tiers

I have the one on the left, and that’s what I’m paying for it. The service is rock-solid and reliable. So is support, as rarely as I’ve needed it.

But when I go to work, my upstream speeds are higher — up to 100 Mbps. I get more done. And I’m not the only techie who appreciates high upstream speeds. Boston is the world’s biggest college town, and full of other industries (pharma, big science, finance) that are staffed by professionals that could use the speed too.

But Verizon does this weird thing with the next tier up: they cut back the upstream speed from 25 Mbps to 20 Mbps. At double the price. WTF is that all about? When I ordered the 25 Mbps tier several months ago, the guy on the phone told me the reason was “just marketing.” He also said “We could give you 100Mbps tomorrow and blow everybody else out of the water.”

So why not?

Oddly, all of FiOS’ “Triple Play” (Internet + TV + phone) bundles here have relatively low Internet speeds, compared to the two tiers above. If the Net is your main interest, you might be better off without the TV and the phone. (In fact, we had the other two “plays” we got FiOS originally, and dumped them later, mostly because  we hardly used them.) If you view more bundles, your best speeds are still just 25/25Mbps.

My request (and advice — and companies do pay me for this stuff) to Verizon is to do two things:

  1. Come up with a sensible offering — one that doesn’t subtract upstream value at twice the price.
  2. Try localizing a bit. Boston isn’t Red Bank. (And no offense to that town or other FiOS service areas.) See what happens when you super-serve a region with an offering that makes sense for it.

Maybe Verizon is doing that, sort of, with its business offerings. But getting to the actual offerings requires many clicks and filling out forms. Where I finally arrived in my latest hunt was a page with this set of choices:

First, this is much better than what I remember about my last look at FiOS business deals.

Second, that 35/35 offering is attractive.

Third, once again, we have an upstream speed drop when you go to the highest tier.

Fourth, the “static” offering is poorly explained. What this means is a real IP address, rather than one dynamically assigned by the router. This is real Internet stuff, so the customer can, say, run a server. (The copy does say “host websites.”) But, unless I’m missing it, nowhere does it say how many IP addresses the customer gets. For customers who care about this stuff, that’s the first question that will come up.

Fifth, the examples are poor. Here are some of the things that serious professional customers might care about:

  1. Offsite storage or backup
  2. Virtual computing in the cloud, such as with Amazon’s EC2
  3. Running servers in a co-lo or some other heavy-lifting environment
  4. Remote rendering, such as RenderCore

Verizon (or any ISP) could offer any of those services locally themselves, taking advantage of low latencies. In fact, in some cases that can be a huge advantage, and therefore a selling point.

Again, the service I’ve had all along with FiOS (going on three years now) has been solid and good — so good, in fact, that I miss it a lot when I’m gone. (Such as with this example here.) I just want it to be better. Hope this helps.

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Purple Reign Ends

Prince, to the Mirror:

“The internet’s completely over. I don’t see why I should give my new music to iTunes or anyone else. They won’t pay me an advance for it and then they get angry when they can’t get it.

“The internet’s like MTV. At one time MTV was hip and suddenly it became outdated. Anyway, all these computers and digital gadgets are no good.

“They just fill your head with numbers and that can’t be good for you.”

Dr. Weinberger responds:

Breaking News: The Internet Declares Prince to be Completely Over

Now we can party like it’s 2010.

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So here I am on a street in Saverne, France, getting on the Net over a rare open wi-fi hot spot. I was going to tweet something about it, but Twitter is down. So here we are.

There’s one Net, one Web and one Twitter. Many paths through the formers and but one through the latter. Note the preposition. I said through. Twitter’s API allows much, but you still have to go through one company’s proprietary system. Not so with the Net, the Web — or blogging. As with the Net and the Web, blogging is NEA. Nobody owns it, Everybody can use (or do) it, and Anybody can improve it.

Somebody owns Twitter, and only they can improve it.

Twitter is a brilliant creation that has done much to expand uses of the Net, the Web, SMS and other good stuff. But we need what it does to be Net-native and it ain’t yet.

Okay, now I’ll go back off-grid to explore France. Au revoir … from my phone to your whatever.

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The Cinternet is Donnie Hao Dong’s name for the Chinese Internet. Donnie studies and teaches law in China and is also a fellow here at Harvard’s Berkman Center. As Donnie sees (and draws) it, the Cinternet is an increasingly restricted subset of the real thing:

map[19]

He calls this drawing a “map of encirclement.” That last noun has a special meaning he explains this way:

“The Wars of (anti-)Encirclement Compaign” were a series battles between China Communist Party and the KMT‘s Nanjing Gorvernment in 1930s. At the time the CCP established a government in south-central China (mostly in Jiang Xi Province). The KMT’s army tried five times to attack and encircle the territory of CCP’s regime. And The CCP’s Red Army was almost defeated in the Fifth Encirclement War in 1934. The Long March followed the war and rescued CCP and its army.

Encirclement is more than censorship. It’s a war strategy, and China has been at war with the Internet from the start.

But while China’s war is conscious, efforts by other countries to encircle the Net are not. To see what I mean by that, read Rebecca MacKinnon‘s Are China’s demands for Internet ‘self-discipline’ spreading to the West? Her short answer is yes. Her long answer is covered in these paragprahs:

To operate in China, Google’s local search engine, Google.cn, had to meet these “self-discipline” requirements. When users typed words or phrases for sensitive subjects into the box and clicked “search,” Google.cn was responsible for making sure that the results didn’t include forbidden content.

It’s much easier to force intermediary communications and Internet companies such as Google to police themselves and their users than the alternatives: sending cops after everybody who attempts a risque or politically sensitive search, getting parents and teachers to do their jobs, or chasing down the origin of every offending link. Or re-considering the logic and purpose of your entire system.

Intermediary liability enables the Chinese authorities to minimize the number of people they need to put in jail in order to stay in power and to maximize their control over what the Chinese people know and don’t know.

In its bombshell announcement on Jan. 12, Google cited massive cyber attacks against the Gmail accounts of human rights activists as the most urgent reason for re-evaluating its presence in China. However, the Chinese government’s demands for ever-increasing levels of censorship contributed to a toxic and unsustainable business environment.

Remember that phrase: intermediary liability. It’s a form of encirclement. Rebecca again:

Meanwhile in the Western democratic world, the idea of strengthening intermediary liability is becoming increasingly popular in government agencies and parliaments. From France to Italy to the United Kingdom, the idea of holding carriers and services liable for what their customers do is seen as the cheapest and easiest solution to the law enforcement and social problems that have gotten tougher in the digital age — from child porn to copyright protection to cyber-bullying and libel.

I’m not equating Western democracy with Chinese authoritarianism — that would be ludicrous. However, I am concerned about the direction we’re taking without considering the full global context of free expression and censorship.

The Obama administration is negotiating a trade agreement with 34 other countries — the text of which it refuses to make public, citing national security concerns — that according to leaked reports would include increased liability for content hosting companies and service providers. The goal is to combat the global piracy of movies and music.

I’m not saying that we shouldn’t fight crime or enforce the law. Of course we should, assuming that the laws reflect the consent of the governed. But let’s make sure that we don’t throw the baby of democracy and free speech out with the bathwater, as we do the necessary work of adjusting legal systems and economies to the Internet age.

Next, What Big Content wants from net neutrality (hint: protection), by Nate Anderson in Ars Technica. According to Nate, more than ten thousand comments were filed on the subject of net neutrality with the FCC, and among these were some from the RIAA and the MPAA. These, he said, “argued that the FCC should encourage ISPs to adopt ‘graduated response’ rules aimed at reducing online copyright infringement”, and that they “also reveal a content-centric view of the world in which Americans will not ‘obtain the true benefits that broadband can provide’ unless ‘copyrighted content [is] protected against theft and unauthorized online distribution’”. He continues,

What could graduated response possibly have to do with network neutrality? The movie and music businesses have seized on language in the FCC’s Notice of Proposed Rulemaking that refuses to extend “neutrality” to “unlawful content.” The gist of the MPAA and RIAA briefs is that network neutrality’s final rules must allow for—and in fact should encourage—ISPs to take an active anti-infringement role as part of “reasonable network management.”

Not that the word “infringement” is much in evidence here; both briefs prefer “theft.” The RIAA’s document calls copyright infringement “digital piracy—or better, digital theft,” and then notes that US Supreme Court Justice Breyer said in the Grokster case that online copyright infringement was “garden variety theft.”

To stop that theft, the MPAA and RIAA want to make sure that any new FCC rules allow ISPs to act on their behalf. Copyright owners can certainly act without voluntary ISP assistance, as the RIAA’s lengthy lawsuit campaign against file-swappers showed, but both groups seem to admit that this approach has now been hauled out behind the barn and shot.

According to the RIAA, “Without ISP participation, it is extremely difficult to develop an effective prevention approach.” MPAA says that it can’t tackle the problem alone and it needs “broadband Internet access service providers to cooperate in combating combat theft.”

“No industry can, or should be expected to, compete against free-by-theft distribution of its own products,” the brief adds.

“We thus urge the Commission to adopt rules that not only allow ISPs to address online theft, but actively encourage their efforts to do so,” says the RIAA.

And that’s how we get the American Cinternet. Don’t encircle it yourself. Get the feds to make ISPs into liable intermediaries forced to practice “self discipline” the Chinese way: a “graduated response” that encircles the Net, reducing it to something less: a spigot of filtered “content” that Hollywood approves. Television 2.0, coming up.

Maybe somebody can draw us the Content-o-net.

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I just posted this essay to IdeaScale at OpenInternet.gov, in advance of the Open Internet Workshop at MIT this afternoon. (You can vote it up or down there, along with other essays.)  I thought I’d put it here too. — Doc


The Internet is free and open infrastructure that provides almost unlimited support for free speech, free enterprise and free assembly. Nothing in human history, with the possible exception of movable type — has done more to encourage all those freedoms. We need to be very careful about how we regulate it, especially since it bears only superficial resemblances to the many well-regulated forms of infrastructure it alters or subsumes.

Take radio and TV, for example. Spectrum — the original “bandwidth” — is scarce. You need a license to broadcast, and can only do so over limited distances. There are also restrictions on what you can say. Title 18 of the United States Code, Section 1464, prohibits “any obscene, indecent or profane language by means of radio communication.” Courts have upheld the prohibition.

Yet, as broadcasters and the “content industry” embrace the Net as a “medium,” there is a natural temptation by Congress and the FCC to regulate it as one. In fact, this has been going on since the dawn of the browser. The Digital Performance Right in Sound Recordings Act (DPRSA) came along in 1995. The No Electronic Theft Act followed in 1997. And — most importantly — there was (and still is) Digital Millenium Copyright Act of 1998.

Thanks to the DMCA, Internet radio got off to a long and very slow start, and is still severely restricted. Online stations face payment requirements to music copyright holders are much higher than those for broadcasters — so high that making serious money by webcasting music is nearly impossible. There are also tight restrictions on what music can be played, when, and how often. Music on podcasts is essentially prohibited, because podcasters need to “clear rights” for every piece of copyrighted music they play. That’s why, except for “podsafe” music, podcasting today is almost all talk.

There is also a risk that we will regulate the Net as a form of telephony or television, because most of us are sold Internet service as gravy on top of our telephone or cable TV service — as the third act in a “triple play.” Needless to say, phone and cable companies would like to press whatever advantages they have with Congress, the FCC and other regulatory bodies.

It doesn’t help that most of us barely know what the Internet actually is. Look up “The Internet is” on Google and see what happens: http://www.google.com/search?hl=en&q… There is little consensus to be found. Worse, there are huge conflicts between different ways of conceiving the Net, and talking about it.

For example, when we say the Net consists of “sites,” with “domains” and “locations” that we “architect,” “design,” “build” and “visit,” we are saying the Internet is a place. (Where, presumably, you can have free speech, enterprise and assembly.)

But if we say the Net is a “medium” for the “distribution” of “content” to “consumers,” we’re talking about something more like broadcasting or the shipping industry, where those kinds of freedoms are more restricted.

These two ways of seeing the Net are both true, both real, and both commonly used, to the degree that we mix their metaphors constantly. They also suggest two very different regulatory approaches.

Right now most of us think about regulation in terms of the latter. That is, we want to regulate the Net as a shipping system for content. This makes sense because most of us still go on the Net through connections supplied by phone or cable companies. We also do lots of “downloading” and “uploading” — and both are shipping terms.

Yet voice and video are just two among countless applications that can run on the Net — and there are no limits on the number and variety of those applications. Nor should there be.

So, what’s the right approach?

We need to start by recognizing that the Net is infrastructure, in the sense that it is a real thing that we can build on, and depend on. It is also public in the sense that nobody owns it and everybody can use it. We need to recognize that the Net is defined mostly by a collection of protocols for moving data — and most of those protocols are open to improvement by anybody. These protocols may be limited in some ways by the wired or wireless connections over which they run, but they are nor reducible to those connections. You can run Internet protocols over barbed wire if you like.

This is a very different kind of infrastructure than anything civilization has ever seen before, or attempted to regulate. It’s not “hard” infrastructure, like we have with roads, bridges, water and waste treatment plants. Yet it’s solid. We can build on it.

In thinking about regulation, we need to maximize ways that the Net can be improved and minimize ways it can be throttled or shut down. This means we need to respect the good stuff every player brings to the table, and to keep narrow but powerful interests from control our common agenda. That agenda is to keep the Net free, open and supportive of everybody.

Specifically, we need to thank the cable and phone companies for doing the good work they’ve already done, and to encourage them to keep increasing data speeds while also not favoring their own “content” subsidiaries and partners. We also need to encourage them to stop working to shut down alternatives to their duopolies (which they have a long history of doing at both the state and federal levels).

We also need to thank and support the small operators — the ISPs and Wireless ISPs (WISPs) — who should be able to keep building out connections and offering services without needing to hire lawyers so they can fight monopolists (or duopolists) as well as state and federal regulators.

And we need to be able to build out our own Internet connections, in our homes and neighborhoods — especially if our local Internet service providers don’t provide what we need.

We can only do all this if we start by recognizing the Net as a place rather than just another medium — a place that nobody owns, everybody can use and anybody can improve.

Doc Searls
Fellow, Berkman Center for Internet & Society
Harvard University

[Later...] A bonus link from Tristan Louis, on how to file a comment with the FCC.

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I just posted Rupert Murdoch vs. The Web, over at Linux Journal. In it I suggest that the Murdoch story (played mostly as Bing vs Google) is a red herring, and that the real challenge is to free the Web and ourselves from dependencies from giant companies I liken to volcanoes:

We’re Pompeians, Krakatoans, Montserratans, building cities and tilling farms on the slopes of active volcanoes. Always suckers for stories, we’d rather take sides in wars between competing volcanoes than build civilization on more flat and solid ground where there’s room enough for everybody.

Google and Bing are both volcanoes. Both grace the Web’s landscape with lots of fresh and fertile ground. They are good to have in many ways. But they are not the Earth below. They are not what gives us gravity.

I think one problem here is a disconnect between belief systems about markets, and the stories that arise from them.

One system believes a free market is Your Choice of Captor. In this camp I put both the make-it/take-it mentality (where “winners” are rewarded and “losers” punished) of the Wall Street Journal (which a few months ago looked upon the regulated duopolies for Internet access as the “free market” at work) and those who see business (or corporations, or capitalism, or all three) as a problem and look to government — another monopoly — for remedy from these evils in the marketplace. In other words, I lump both the left and the right in here, along with the conflicts between them.

The other system sees markets as settings for human activity: the locations, both real and virtual, where people and their organizations meet to do business, make culture, and build civilization. Here I put nearly everybody who contributed the structural agreements that made the Internet possible, and who truly understand what it is and how it works, even if they can’t all agree on what metaphors to use for it. I also include all who have contributed, and continue to contribute, to the free and open code bases with which we are building out our networked world. While political beliefs among members of this system may sort somewhere along the right-vs.-left axis, what they do to build the world is orthogonal to that axis. That’s one big reason why that work escapes notice.

The distinction I see here aligns well with Virginia Postrel‘s contrast between “stasists” and “dynamists”. The difference is that much of what gets done to make the networked world (and to support its dynamism) isn’t “dynamic” in the active and dramatic sense of the word — except in its second-order effects. For example, SMTP and IMAP are not dynamic. (Being mannerly technical agreements, protocols don’t do that.) But on those protocols (and related ones) email happened, and the world hasn’t been the same since.

With that distinction in mind, I suggest that too much oxygen suckage is wasted on “wars” between the stasists (some of whom are also into the superficially dynamistic attention-suck of vendor sports — here’s an oldie but goodie that still makes my point), and not enough on constructive work done by geeks and entrepreneurs who quietly build the original and useful stuff that serves as solid infrastructure on which countless public goods (including wealth creation beyond measure) can be generated.

We have the same problem in most net neutrality arguments. The right hates it, the left loves it. One looks to protect the “free market” of phone and cable companies (currently a Your-Choice-of-Captor system) while the other looks to government (meet your new captor) for relief. When in fact the whole thing has happened all along within what Bob Frankston calls The Regultorium.

The primary dynamism of the Internet — what gave us the Net in the first place, and what holds the most promise in the long run — doesn’t just come from those parties, and can’t be found in the arguments they’re having. It comes from low-box-office geekery that supports enormous new business opportunities (along with many public benefits, with or without business).

It’ll take time to see this, I guess. Just hope we don’t drown in lava in the meantime.

Bonus red herring: A lot of news really isn’t.

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A couple days ago I responded to a posting on an email list. What I wrote struck a few chords, so I thought I’d repeat it here, with just a few edits, and then add a few additional thoughts as well. Here goes.

Reading _____’s references to ancient electrical power science brings to mind my own technical background, most of which is now also antique. Yet that background still informs of my understanding of the world, and my curiosities about What’s Going On Now, and What We Can Do Next. In fact I suspect that it is because I know so much about old technology that I am bullish about framing What We Can Do Next on both solid modern science and maximal liberation from technically obsolete legal and technical frameworks — even though I struggle as hard as the next geek to escape those.

(Autobiographical digression begins here. If you’re not into geeky stuff, skip.)

As a kid growing up in the 1950s and early ’60s I was obsessed with electricity and radio. I studied electronics and RF transmission and reception, was a ham radio operator, and put an inordinate amount of time into studying how antennas worked and electromagnetic waves propagated. From my home in New Jersey’s blue collar suburbs, I would ride my bike down to visit the transmitters of New York AM stations in the stinky tidewaters flanking the Turnpike, Routes 46 and 17, Paterson Plank Road and the Belleville Pike. (Nobody called them “Meadowlands” until many acres of them were paved in the ’70s to support a sports complex by that name.) I loved hanging with the old guys who manned those transmitters, and who were glad to take me out on the gangways to show how readings were made, how phasing worked (sinusoidal synchronization again), how a night transmitter had to address a dummy load before somebody manually switched from day to night power levels and directional arrays. After I learned to drive, my idea of a fun trip was to visit FM and TV transmitters on the tops of buildings and mountains. (Hell, I still do that.) Thus I came to understand skywaves and groundwaves, soil and salt water conductivity, ground systems, directional arrays and the inverse square law, all in the context of practical applications that required no shortage of engineering vernacular and black art.

I also obsessed on the reception end. In spite of living within sight of nearly every New York AM transmitter (WABC’s tower was close that we could hear its audio in our kitchen toaster), I logged more than 800 AM stations on my 40s-vintage Hammarlund HQ-129x receiver, which is still in storage at my sister’s place. That’s about 8 stations per channel. I came to understand how two-hop skywave reflection off the E layer of the ionosphere favored flat land or open water midway between transmission and reception points . This, I figured, is why I got KSL from Salt Lake City so well, but WOAI from San Antonio hardly at all. (Both were “clear channel” stations in the literal sense — nothing else in North America was on their channels at night, when the ionosphere becomes reflective of signals on the AM band.) Midpoint for the latter lay within the topographical corrugations of the southern Apalachians. Many years later I found this theory supported by listening in Hawaii to AM stations from Western North America, on an ordinary car radio. I’m still not sure why I found those skywave signals fading and distorting (from multiple reflections in the very uneven ionosphere) far less than those over land. I am sure, however, that most of this hardly matters at all to current RF and digital communication science. After I moved to North Carolina, I used Sporadic E reflections to log more than 1200 FM stations, mostly from 800 to 1200 miles away, plus nearly every Channel 3 and 6 (locally, 2,4 and 5 were occupied) in that same range. All those TV signals are now off the air. (Low-band VHF TV — channels 2 to 6 — are not used for digital signals in the U.S.) My knowledge of this old stuff is now mostly of nostalgia value; but seeking it has left me with a continuing curiosity about the physical world and our infrastructural additions to it. This is why much of what looks like photography is actually research. For example, this and this. What you’re looking at there are pictures taken in service to geology and archaeology.

(End of autobiographical digression.)

Speaking of which, I am also busy lately studying the history of copyright, royalties and the music business — mostly so ProjectVRM can avoid banging into any of those. This research amounts to legal and regulatory archaeology. Three preliminary findings stand out, and I would like to share them.

First, regulatory capture is real, and nearly impossible to escape. The best you can do is keep it from spreading. Most regulations protect last week from yesterday, and are driven by the last century’s leading industries. Little if any regulatory lawmaking by established industries — especially if they feel their revenue bases threatened, clears room for future development. Rather, it prevents future development, even for the threatened parties who might need it most. Thus the bulk of conversation and debate, even among the most progressive and original participants, takes place within the bounds of still-captive markets. This is why it is nearly impossible to talk about Net-supportive infrastructure development without employing the conceptual scaffolding of telecom and cablecom. We can rationalize this, for example, by saying that demand for telephone and cable (or satellite TV) services is real and persists, but the deeper and more important fact is that it is very difficult for any of us to exit the framing of those businesses and still make sense.

Second, infrastructure is plastic. The term “infrastructure” suggests physicality of the sturdiest kind, but in fact all of it is doomed to alteration, obsolescence and replacement. Some of it (Roman roads, for example) may last for centuries, but most of it is obsolete in a matter of decades, if not sooner. Consider over-the-air (OTA) TV. It is already a fossil. Numbered channels persist as station brands; but today very few of those stations transmit on their branded analog channels, and most of them are viewed over cable or satellite connections anyway. There are no reasons other than legacy regulatory ones to maintain the fiction that TV station locality is a matter of transmitter siting and signal range. Viewing of OTA TV signals is headed fast toward zero. It doesn’t help that digital signals play hard-to-get, and that the gear required for getting it sucks rocks. Nor does it help that cable and satellite providers that have gone out of their way to exclude OTA receiving circuitry from their latest gear, mostly force subscribing to channels that used to be free. As a result ABC, NBC, CBS, Fox and PBS are now a premium pay TV package. (For an example of how screwed this is, see here.) Among the biggest fossils are thousands of TV towers, some more than 2000 feet high, maintained to continue reifying the concept of “coverage,” and to legitimize “must carry” rules for cable. After live audio stream playing on mobile devices becomes cheap and easy, watch AM and FM radio transmission fossilize in exactly the same ways. (By the way, if you want to do something green and good for the environment, lobby for taking down some of these towers, which are expensive to maintain and hazards to anything that flies. Start with this list here. Note the “UHF/VHF transmission” column. Nearly all these towers were built for analog transmission and many are already abandoned. This one, for example.)

Third, “infrastructure” is a relatively new term and vaguely understood outside arcane uses within various industries. It drifted from military to everyday use in the 1970s, and is still not a field in itself. Try looking for an authoritative reference book on the general subject of infrastructure. There isn’t one. Yet digital technology requires that we challenge the physical anchoring of infrastructure as a concept. Are bits infrastructural? How about the means for arranging and moving them? The Internet (the most widespread means for moving bits) is defined fundamentally by its suite of protocols, not by the physical media over which data travels, even though there are capacity and performance dependencies on the latter. Again, we are in captured territory here. Only in conceptual jails can we sensibly debate whether something is an “information service” or a “telecommunication service”. And yet most of us who care about the internet and infrasructure do exactly that.

That last one is big. Maybe too big. I’ve written often about how hard it is to frame our understanding of the Net. Now I’m beginning to think we should admit that the Internet itself, as concept, is too limiting, and not much less antique than telecom or “power grid”.

“The Internet” is not a thing. It’s a finger pointing in the direction of a thing that isn’t. It is the name we give to the sense of place we get when we go “on” a mesh of unseen connections to interact with other entitites. Even the term “cloud“, labeling a utility data service, betrays the vagueness of our regard toward The Net.

I’ve been on the phone a lot lately with Erik Cecil, a veteran telecom attorney who has been thinking out loud about how networks are something other than the physical paths we reduce them to. He regards network mostly in its verb form: as what we do with our freedom — to enhance our intelligence, our wealth, our productivity, and the rest of what we do as contributors to civilization. To network we need technologies that enable what we do in maximal ways.  This, he says, requires that we re-think all our public utilities — energy, water, communications, transportation, military/security and law, to name a few — within the context of networking as something we do rather than something we have. (Think also of Jonathan Zittrain’s elevation of generativity as a supportive quality of open technology and standards. As verbs here, network and generate might not be too far apart.)

The social production side of this is well covered in Yochai Benkler‘s The Wealth of Networks, but the full challenge of what Erik talks about is to re-think all infrastructure outside all old boxes, including the one we call The Internet.

As we do that, it is essential that we look to employ the innovative capacities of businesses old and new. This is a hat tip in the general direction of ISPs, and to the concerns often expressed by Richard Bennett and Brett Glass: that new Internet regulation may already be antique and unnecessary, and that small ISPs (a WISP in Brett’s case) should be the best connections of high-minded thinkers like yours truly (and others named above) to the real world where rubber meets road.

There is a bigger picture here. We can’t have only some of us painting it.

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For the form of life we call business, we are at a boundary between eras. For biological forms of life, the most recent of these is the K-T boundary between the  and the Eras. The Mezozoic Era ended when Earth was struck by an object that left a crater 110 miles wide and a world-wide layer of iridium-rich crud. Below that layer lies the Age of Dinosaurs, completed. Above that layer accumulate the fossils of life forms that survived the change, and took advantage of it. Notable among these is a branch of theropod dinosaurs we call birds.

In business we have the I-I boundary: the one between the Industrial and Information ages (which Alvin Toffler first observed in The Third Wave, published in 1980).  Below that boundary we find a communications environment dominated by telecom and cablecom. Above it we find a radically different communications environment that still supports voice and video, but as just two among an endless variety of other applications. We call that environment the Internet.

At this moment in history most of us know the Internet as a tertiary service of telephone and cable companies, which still make most of their money selling telephone service and cable TV. Since those are highly regulated businesses, the Internet is subject to degrees of regulatory capture. Some of that capture is legal, but much of it is conceptual, for example when we see the Internet as a grace of telecom and cablecom — rather than as something that subsumes and obsoletes both of those Industrial Age frames.

Such is the risk with “broadband” — a term inherited by the Internet from both telecom and cablecom, and which is a subject of interest for both Congress and the FCC. In April of this year the FCC announced the development of a national broadband plan, subtitled “Seeks Public Input on Plan to Ensure Every American has Access to Broadband Capability”. In July the commission announced that Harvard’s Berkman Center would conduct “an independent review of broadband studies” to assist the FCC. Then yesterday the center put up a notice that it “is looking for a smart, effective fellow to join our broadband research team”. (This is more than close to home for me, since I am a fellow at Berkman. So I need to say that the broadband studies review is not my project — mine is this one — and that I am not speaking for the Berkman Center here, or even in my capacity as a fellow.)

The challenge here for everybody is to frame our understanding of the Net, and of research concerning the Net, in terms that are as native to the Net as possible, and not just those inherited from the Industrial Age businesses to which it presents both threats and promise — the former more obvioius than the latter. This will be very hard, because the Internet conversation is still mostly a telecom and cablecom conversation. (It’s also an entertainment industry conversation, to the degree that streaming and sharing of audio and video files are captive to regulations driven by the recording and movie industries.)

This is the case especially for legislators and regulators, too few of which are technologists. Some years ago Michael Powell, addressing folks pushing for network neutrality legislation, said that he had met with nearly every member of Congress during his tour of duty as FCC chairman, and that he could report that nearly all of them knew very little about two subjects. “One is technology, and the other is economics,” he said. “Now proceed.”

Here is what I am hoping for, as we proceed both within this study and beyond it to a greater understanding of the Internet and the new Age it brings on:

  • That “broadband” comes to mean the full scope of the Internet’s capabilities, and not just data speeds.
  • That we develop a native understanding of what the Internet really is, including the realization that what we know of it today is just an early iteration.
  • That telecom and cablecom companies not only see the writing on the wall for their old business models, but embrace other advantages of incumbency, including countless new uses and businesses that can flourish in an environment of wide-open and minimally encumbered connectivity — which they have a privileged ability to facilitate.
  • That the Net’s capacities are not only those provided from the inside out by “backbone” and other big “carriers”, but from the outside in by individuals, small and mid-size businesses (including other Internet service providers, such as WISPs) and municipalities.

That last item is important because carriers are the theropods of our time. To survive, and thrive, they need to adapt. The hardest challenge for them is to recognize that the money they leave on the shrinking Industrial Age table is peanuts next to the money that will appear on the Information Age table they are in a privileged position to help build.

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Great minds discuss ideas. Average minds discuss events. Small minds discuss people. — Eleanor Roosevelt Somebody

I wish to discuss an idea here. It’s an idea about celebrity, and it follows an event that has become a black hole in nearly all media: the death of Michael Jackson.

According to Don Norman, a black hole topic is one that is essentially undiscussable: “Drop the subject into the middle of a room and it sucks everybody into a useless place from which no light can escape.”

Michael Jackson was more than a celebrity. He was a first-rank contributor to pop music and pop culture. He was also far more weird than anybody else at the same rank, changing his face so radically that he no longer appeared to belong to his original race and gender. This fact alone made his death at 50 unsurprising yet very interesting.

Most of us can’t help falling into conversational black holes. But we can help getting sucked into celebrity obsession.

Unless, of course, we’re making money at it. This is the path down which People Magazine went when it morphed from a spun-off section of Time Magazine into a tabloid. More recently Huffington Post has done the same thing. But that’s the supply side. What about demand?

I submit that obsessing about celebrity is unhealthy for the single reason that it is also unproductive. Celebrity is to mentality as smoking is to food. (I originally wrote “chewing gum” there, but I think smoking is the better analogy.) It is an unhealthy waste of time. And time is a measure of life. We are born with an unknown sum of time, and have to spend all of it. “Saving” time is a rhetorical trick. So is “losing” it. Our lives are spent, one end to the other. What matters most is how we choose to spend it.

The Net maximizes the endlessness of choice about how we spend our time. It also maximizes many kinds of productiveness. Nearly all the code we are using, right now, to do stuff on the Net, was written by many collaborators across many distances. Some were obsessing about what they were producing. Others were just working away. Either way, they chose to be productive. To contribute. To work on what works.

The Net itself is an idea so protean and varied that there is little agreement about what it actually is. Yet it is endlessly improvable, as are the goods and services it supports.

This improvable millieu presents us with choices that become more stark as the millieu itself grows. We can make useful contributions — preferably in ways nobody else can. Or we can coast.

Obsessing about celebrity is a form of coasting. And I suggest that we’ll see a growing distance between coasting and producing.

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Apple has the best taste in the world. It also has the tightest sphincter. This isn’t much of a problem as long as they keep it in their pants, for example by scaring employees away from saying anything about anything that has even the slightest chance of bringing down the Wrath of Steve or his factota. (How many bloggers does Apple have?)  But they drop trow every time they squeeze down—you know, like China—on an iPhone application they think might be “objectionable”.

I see by Jack Schofield that they’ve done it again, but this time they pissed off (or on) the wrong candidate: an app (from Exact Magic) that flows RSS feeds form the EFF. Sez Corynne McSherry in an EFF post, “… this morning Apple rejected the app. Why? Because it claims EFF’s content runs afoul of the iTune’s App Store’s policy against ‘objectionable’ content. Apparently, Apple objects to a blog post that linked to a ‘Downfall‘ parody video created by EFF Board Chairman Brad Templeton.”

Brad’s a funny guy. (He created rec.humor.funny back in the Net’s precambrian age.) He has also forgotten more about the Internet than most of us will ever learn. Check out The Internet: What is it really for? It was accurate and prophetic out the wazoo. Brad wrote it 1994, while Apple was busy failing to ape AOL with a walled garden called eWorld.

Apple’s App Store is an eWorld that succeeded. A nice big walled garden. Problem is, censorship isn’t good gardening. It is, says Corynne, “not just anti-competitive, discriminatory, censorial, and arbitrary, but downright absurd.” Or, as my very tasteful wife puts it, unattractive.

Also kinda prickly, if you pick on a porcupine like the EFF. Hence, to contine with Corynne’s post,

iPhone owners who don’t want Apple playing the role of language police for their software should have the freedom to go elsewhere. This is precisely why EFF has asked the Copyright Office to grant an exemption to the DMCA for jailbreaking iPhones. It’s none of Apple’s business if I want an app on my phone that lets me read EFF’s RSS feed, use Sling Player over 3G, or read the Kama Sutra.

Not surprisingly this followed, on the same post:

UPDATE: Apparently, Apple has changed its mind and has now approved the EFF Updates app. This despite the fact that the very same material is still linked in various EFF posts (including this one!). Just one more example of the arbitrary nature of Apple’s app approval process.

There’s a limit to how long (much less well, or poorly) Apple can keep sphinctering App Store choices. I’m betting it’ll stop when the iPhone gets serious competition from equally appealing phones that can run applications that come from anywhere, rather than just from some controlling BigCo’s walled garden.

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Good of Vanity Fair to interview some of the Net’s and the Web’s fathers and sons (alas, no mothers or daughters), in a piece titled How the Web was Won.

On vision:

Leonard Kleinrock: Licklider was a strong, driving visionary, and he set the stage. He foresaw two aspects of what we now have. His early work—he was a psychologist by training—was in what he called man-computer symbiosis. When you put a computer in the hands of a human, the interaction between them becomes much greater than the individual parts. And he also foresaw a great change in the way activity would take place: education, creativity, commerce, just general information access. He foresaw a connected world of information.

The culture was one of: You find a good scientist. Fund him. Leave him alone. Don’t over-manage. Don’t tell him how to do something. You may tell him what you’re interested in: I want artificial intelligence. I want a network. I want time-sharing. Don’t tell him how to do it.

On intellectual property sanity:

Larry Roberts: After we built the Arpanet, lots of people built networks. Everybody was competing. Everyone had their own thing that they wanted to do. So it became very important that the world have one protocol, so they could all talk to each other. And Bob Kahn really pushed that process. And Vint. And it wasn’t licensed. They proved to the world that making something free as a driver would make a huge difference in making it a standard.

Robert Cailliau: We looked for a name for several weeks and couldn’t come up with anything good, and I didn’t want yet another one of these stupid things that doesn’t tell you anything. In the end Tim said, Why don’t we temporarily call it the World Wide Web? It just says what it is.

At one point cern was toying with patenting the World Wide Web. I was talking about that with Tim one day, and he looked at me, and I could see that he wasn’t enthusiastic. He said, Robert, do you want to be rich? I thought, Well, it helps, no? He apparently didn’t care about that. What he cared about was to make sure that the thing would work, that it would just be there for everybody. He convinced me of that, and then I worked for about six months, very hard with the legal service, to make sure that cern put the whole thing in the public domain.

On how markets are conversations after all:

Steve Case: We always believed that people talking to each other was the killer app. And so whether it was instant messaging or chat rooms, which we launched in 1985, or message boards, it was always the community that was front and center. Everything else—commerce and entertainment and financial services—was secondary. We thought community trumped content.

On the dawn of a different democracy:

Wes Boyd: I think the biggest shock for us, and it was from the very beginning, was not: Oh, boy, these big people are paying attention to us. It was that there are no big people; it’s up to all of us. And that’s a very scary thing, you know, when you realize what a vacuum there is in many ways in politics.

On the end of media as usual:

Dave Winer: The press is very susceptible to conventional wisdom. The press buys into certain things being true that really aren’t true. The conventional wisdom was that Apple was dead and there was no new software for Macintosh. Yet I was a software developer making new software for the Macintosh. So I went to bat for Apple.

That was the reason why I got so heavy into blogging—I didn’t want the verdict of the press to be the last word. And I’d argue that the same thing is happening now in politics. Today it’s: Is Reverend Wright really a disaster for the Obama campaign? Well, the press seems to think so, but if we want to get a different story out there we’re going to have to do it ourselves.

It’s far from a Compleat History, but it’s a fun read. Makes me wish The Media (including bloggers) had reported more about What Happened after Gutenberg invented movable type. I don’t think the parallels would be few.

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Infinite play

Video Is Dominating Internet Traffic, Pushing Prices Up says the headline of a piece by Saul Hansell in the New York Times. Its first three subheads say, File sharing has been usurped by legitimate video services, The very heaviest users drive up network costs and Unlimited data plans may have a limited life.

This is the wrong framing, by the wrong mentality. We’re not far from the day when most of us are “heavy users”, and when voice telephony (which has a relatively low data rate) is just one among countless data applications. It’s already that on laptops and many handheld devices (including mobiles using the likes of Fring).

In time the bulk of radio and television listening and viewing will move from analog to digital, and from broadcast bands to broadband. Some will be live, some will be stored and forwarded. Much will be mashed. Upstream needs will match downstream needs, especially for the millions who now producing as well as consuming video. Some top-down few-to-many asymmetries will persist, but many more any-to-any uses will arise, requiring symmetrical connectivity.

There are services besides raw bandwidth that can help with this — services that assist in mash-ups, that work with customers’ social graphs, that provide actual professional services (instead of higher-priced tiers that do nothing more than punish customers for saying they’re a business … a shakedown racket that should have died along with Ma Bell). There should emerge services that answer to customer-driven choices and preferences, that help demand drive supply, that support service needs in marketplaces opened by easy connectivity and fat capacity.

Carriers need to recognize that in the long run they are privileged to be in the Internet business, rather than cursed by something that undermines their old business models. They need to break out of their “triple-play” mentality and realize that on the Net there are an infinite number of “plays’, especially if those aren’t excluded by connections optimized for television or telephony, or subordinated to those other purposes.

Three things need to happen here.

  1. First, the carriers need to realize that they are Internet companies first, and phone or cable companies second — or will be, soon enough
  2. The carriers need to welcome and partner with independent Net-savvy developers who can help them think outside their own boxes, yet make the most of their privileged positions. We’ve all known there are benefits to incumbency besides charging rents. Now it’s time to find those and start making hay. (Oh, and lining up with Hollywood for lots of subscription distro deals is neither creative nor interesting.)
  3. The Net needs to be moved outside the framework of telecom regulation, to be freed from what Bob Frankston calls The Regulatorium. The Net was unimaginable to the 1934 Telecom act, and barely grokked by the 1996 update of that act. Questions about whether the Net is an “information service” or a “telecommunication service” are wacky, retro and not helpful, unless it’s to liberate it from the telecom trap.

But they shouldn’t wait for #3.

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ISPs are pressed to become child porn cops is a new MSNBC piece by Bill Dedman and Bob Sullivan. It begins,

New technologies and changes in U.S. law are adding to pressures to turn Internet service providers into cops examining all Internet traffic for child pornography.

One new tool, being marketed in the U.S. by an Australian company, offers to check every file passing through an Internet provider’s network — every image, every movie, every document attached to an e-mail or found in a Web search — to see if it matches a list of illegal images.

The company caught the attention of New York’s attorney general*, who has been pressing Internet companies to block child porn. He forwarded the proposal to one of those companies, AOL, for discussion by an industry task force that is looking for ways to fight child porn. A copy of the company’s proposal was also obtained by msnbc.com

But such monitoring just became easier with a law approved unanimously by the Congress and signed on Monday by President Bush. A section of that law written by Republican presidential candidate Sen. John McCain gives Internet service providers access to lists of child porn files, which previously had been closely held by law enforcement agencies and the National Center for Missing and Exploited Children. Although the law says it doesn’t require any monitoring, it doesn’t forbid it either. And the law ratchets up the pressure, making it a felony for ISPs to fail to report any “actual knowledge” of child pornography.

*That would be Andrew Cuomo.

(An appeal to journalists everywhere: When you refer to a piece legislation, whether proposed or passed, please link to the @#$% thing.)

So I looked around, and believe that the legislation in question is S.1738, described by Thomas as A bill to require the Department of Justice to develop and implement a National Strategy Child Exploitation Prevention and Interdiction, to improve the Internet Crimes Against Children Task Force, to increase resources for regional computer forensic labs, and to make other improvements to increase the ability of law enforcement agencies to investigate and prosecute child predators.

It was sponsored by Sen. Joe Biden and co-sponsored by 60 others, not including John McCain. But Thomas says S.519, A bill to modernize and expand the reporting requirements relating to child pornography, to expand cooperation in combating child pornography, and for other purposes, is a related bill (there are two others), and was sponsored by McCain. About that bill it says, Latest Major Action: 2/7/2007 Referred to Senate committee. Status: Read twice and referred to the Committee on the Judiciary. Note: For further action, see S.1738, which became Public Law 110-401 on 10/13/2008.

So I’ve read the text, and I see two things there. One is this Task Force business (which to me says “gather the wrong people for a noble purpose, and task them with creating a technical mandate that may not get funded, and if it does will be a huge kluge that does far less than it’s supposed to do while complicating everything it touches”). The other is a wiretapping bill for the Internet. I get that from Section 103, which says one Task Force purpose is “increasing the investigative capabilities of state and local law enforcement officers in the detection and investigation of child exploitation crimes facilitated by the Internet and the apprehension of offenders”. Hence the move by Andrew Cuomo in New York.

This is one more slippery slope at the bottom of which the Internet is just another breed of telecom service, subject to ever-expanding telecom regulation, all for Good Cause.

And we’ll see more of this, as long as we continue framing the Net as just another breed of telecom.

The Net is too new, too protean, too essential and too economically vital for it to be lashed — even by legislation that attempts to protect its virtues — to telecom law that was born in 1934 and comprises a conceptual box from which there is no escape.

Hat tips to Alex Goldman and Karl Bode.

Bonus wisdom from Richard Bennett: “The Internet is indeed the most light-regulated network going, and it’s the only one in a constant state of improvement. Inappropriate regulation – treating the Internet like a telecom network – is the only way to put an end to that cycle.”

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