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February 25, 2008

Politics Disintermediated

When I was a child, my Daddy instilled in me powerful emotions for politicians. There were some I should love and some I should hate, but really none to whom I should feel indifferent. As an impressionable sidekick to my Dad, I put every politician on a pedestal, even if that pedestal served only to make them easier targets for ridicule. Richard Nixon was a jerk. But so was the hero of a rival baseball team.

As I grew up, I saw celebrity close up, and my reverence faded. As I began to lobby these politicians and saw their flaws, even just their humanness, I lost my heroes and my worldview was muddied. I spent time wondering whether or not the latest flock of politicians had become less worthy, or whether my older eyes saw the same breed more clearly.

I am convinced, that, in my lifetime, America has not rewarded intellect or passion or humanity in its selection of political leaders. Rather, we’ve rewarded party loyalty, electing a couple decades worth of vainglorious party hacks.

Looking at the current Presidential race, I have some newfound hope that the American citizens are now capable of recognizing merit in our potential leaders. And it is not just Barack Obama. It certainly includes Barack Obama, but it also includes a whole new generation of reluctant leaders, who were first great in their respective fields before stepping into public service. We are now able to harness online communities and communications tools to draft the most talented into politics regardless of whether or not they’ve been recognized by the party bosses as team players, as dues payers.

I suspect that this is in large part an outgrowth of the enabling power of the Internet as the most democratic and pluralistic communications and information distribution and interaction tool humanity has ever known. To me, it all comes down to the Internet’s ability to “disintermediate” – to bring individuals and groups together with other individuals and groups without any intervening gatekeepers or facilitators. With the Internet, everyone gets to be a distributor of information, and even a “trusted source” to someone else. We are no longer captive to the spoon-fed information that the party machinery would will its people to believe. We’ve seen this with the immediate and viral power of YouTube videos to parse through the crap fed to us by the politicians, their handlers, the party bosses and the traditional pundits and distribution outlets. Truth wills out almost instantaneously. To quote Abraham Lincoln -- someone whom history has categorized as a great political leader (although who can say for sure without having had the billion critical eyes of the Internet fixed upon him –maybe he just had a great P.R. agent circa 1863): “You can fool some of the people all of the time, and all of the people some of the time, but you can not fool all of the people all of the time.” With the Internet it is almost impossible to fool any of the people any of the time.

There is a profound upside to “Politics Disintermediated” and the instantaneous free-flow of information from one-to-one, one-to-many, many-to-one and many-to-many. Citizens actually feel empowered. We now think we can participate and make a difference, not just with our votes, but with our personal influence. We become the advertising juggernaut for the truth. We are all now able to run our own mini-media empires where we can freely distribute our views to our friends and audiences within our own respective online networks and across the broader Internet if our views have intellectual, or humorous, or other, appeal.

This is all a long preface to say that I genuinely believe we have the makings of a new generation of politicians whom even the most jaded adults might respect, not just the wild-eyed and impressionable children of political junkies.

Barack Obama is just the most prominent example of this phenomenon. I think he is the first beneficiary of the power of the people to harness the Internet to directly influence the political process. One of the great thought-leaders and communicators of the Internet Age is considering a bid for Congress. There are multiple online social networks committed to drafting Larry Lessig to run for Tom Lantos’ Congressional seat, vacated by his death. If Lessig runs, it shall certainly be the most apparent demonstration to me that the political process might truly be changing to reward merit.

When I first recognized that American politicians were not the great heroes of our age, I started to look abroad. My first impressions were “Why can’t American politicians be as smart as those elected by other countries?” How do we get our own Havel? I assume this is more a “grass-is-always-greener” phenomenon. Havel is just the exception proving the rule that all alleged democracies are still only as free as their distribution outlets enable. For every Havel, the modern world has seen a hundred [insert name of preferred despot]. With a free and open Internet, where each of us may communicate and reach a wider audience, we do not have to accept the options fed to us by party bosses, who might profess some benevolence but really stand to gain the most by preserving special interest and insider politics.

I don’t want to sound too, too Pollyannaish. There is still a stickiness of old media and even a stickiness of new media powerhouses. For instance, it’s quite possible that no more than 3 people will read my blog (and two of those will be my parents to whom I intend to email this entry. I might consider reading it myself at some point). But we have moved a long way in the direction of creating a more perfect marketplace of ideas, where the only thing keeping the idea from the frictionless plane of Internet distribution is the idea’s own momentum.

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Posted by jonathan.askin at 11:16 AM | Comments (3)

February 21, 2008

WikiConstitution: Evolving the Law to Ensure Civil Liberty and Free Expression in the Internet Age

Some Constitutional scholars consider the US Constitution to be a living, breathing document for the ages, capable of the flexibility needed to evolve with society and technology over many generations. I count myself among this group. If only the framers of the Constitution could see how much more necessary the conception of the Living Constitution will become in an Internet-enabled society. Technology and society are moving more quickly than ever imaginable, and if we are to remain a beacon of liberty, we have to make sure that our rights and liberties are able to evolve and keep pace.

Sometimes, however, the jurists and the laws cannot keep pace with the technology and social changes. At these times, we – the Internet innovators and entrepreneurs and advocates – must be vigilant to make sure that the laws and the Constitution are suitable to advance the guiding principles of civil liberty.

A case in point

In case folks missed it, there was an event last week that could prove to be a pretty significant event at the intersection of the Internet the First Amendment to the US Constitution. A Federal District judge in San Francisco on Friday ordered the disabling of Wikileaks.org, a Website devoted to disclosing confidential information. Go ahead, try the link, I dare you, it doesn’t work. Let’s just hope trying to link to it didn’t put you on some government watchlist.

Wikileaks is (or is it “was”) a site where people could post “leaked” documents with an eye towards curbing unethical behavior by corporations and government. The judge granted a permanent injunction disabling the www.wikileaks.org domain name. Now, in the global and ubiquitous Internet, I’m not exactly sure how a Federal judge thinks he can actually stop Internet users from accessing the site, using a different IP address or simply a foreign domain.

Frankly, I’m skeptical that this injunction will withstand appellate scrutiny. The existence of this dispute, however, makes a couple things clear to me. First of all, with the power of the Internet to make everyone a publisher and distributor of content, we haven’t seen anything yet with regard to government efforts to curb dissemination of information. The same free expression issues that have been debated for decades, even centuries, with regard to prior media and information conduits, are now going to be debated in the context of the greatest publication and distribution mechanism humanity has ever seen.

It’s an interesting time to be working at the intersection of the Internet and the law. So much about Internet law and policy is still unwritten. This is one of the main reasons that I left the world of civil rights/liberties work ten years ago, to pursue a career as an Internet attorney. Never in our lifetime, have lawyers had such a rare opportunity to create the laws and policies to shape the future, as we have at this moment with the evolution of the Internet, communications and digital technology.

But, sometimes, even our most learned judges, scholars and policymakers are going to get it wrong. Let’s hope, that none of our mistakes are irreversible and that we get it a little less wrong each time we try. And let’s work to ensure that the Internet is a tool to promote humanity liberty and dignity and the freer flow of information, and not to curb these social goods.

And finally, the bottom-line practical result is probably that the site will now become even more popular than ever, confirming that, in the new Internet-enabled world, there is no such thing as bad publicity.


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Posted by jonathan.askin at 01:21 PM | Comments (2)

February 18, 2008

Legacy Regulations and the Future of Internet Communications: The Implications of Two Seemingly Subtle FCC Proceedings

The FCC will be accepting Initial Comments tomorrow on two Petitions that propose radically different approaches to how emerging Internet communications should interconnect to the narrowband public-switched telephone network (“PSTN”). These two Petitions, which might not get much attention in the mainstream press (or even the trades), will likely have profound and long-term consequences on the evolution and future of the Internet. I urge the Internet innovators, entrepreneurs and enthusiasts to take note and not sit by idly while the FCC writes the rules without our input. While these proceedings are technically about “voice” applications that touch the PSTN, the logic and rules that apply to Internet-based “voice” terminating to the PSTN, will ultimately be extended to every other application, once the policymakers fully digest and incorporate the concept that there really is no difference between voice or video or data or any other application in an Internet-enabled, digital communications world.

The Petitions:

Feature Group IP Forbearance Petition: Asks FCC to ensure that providers of Voice-Embedded Internet communications applications be given the assurance that they may deploy and offer such services to the fullest extent possible without undue interference from the network owners. (By way of full disclosure, I am doing legal/advocacy work in support of Feature Group IP.)

Embarq Forbearance Petition: Asks the FCC to eliminate the “Enhanced Service Provider” (“ESP”) exemption to interstate access charges, which currently permits ESP VoIP providers to purchase access to the network as any other customer of the telecommunications carrier. A grant of the Embarq petition would make ESPs telecommunications carriers, and thus subject to the full panoply of carrier regulation, including access charges.

Some Brief History

Feature Group IP had filed its Petition back in October, 2007. The focus of the Feature Group IP Petition was to ensure that Internet communications applications and networks could evolve as robustly as possible without being mired down by archaic telecom regulations, written for the analog telephone world and that had not anticipated the revolutionary potential of the Internet and digital technology. In particular, the Feature Group IP Petition wanted to make sure that participants in Internet communications could avail themselves of the power of “Group Forming Networks” and the network effects that can only be maximized when every potential endpoint is capable of participating in an Internet-enabled communications, even those endpoints relegated to the PSTN. Feature Group IP’s concern was that the phone companies were charging the highest rate possible (on the order of several cents a minute) to allow an Internet communication to include a participant on the PSTN), making it economically untenable to allow these end-users to participate in Internet-based communications.

The FCC put the Feature Group IP Petition out for Public Comment on Dec. 18. Subsequently (and presumably in response to the Feature Group IP Petition), Embarq, the phone company, filed a Petition with the FCC seeking essentially the opposite result. (Technically, the arguments raised in the Feature Group IP Petition and the Embarq Petition are distinct issues and not necessarily mutually exclusive. The Feature Group IP Petition speaks to enabling new Internet-based technologies, applications and services, while the Embarq Petition is focused on preservation of legacy telecom business model issues.)

The United States Telecommunications Association, the leading trade association for the incumbent phone companies sought to join the two proceedings. Although the FCC did not join the proceedings, it did postpone the comment cycle on the Feature Group IP Petition so that the two proceedings would proceed on the same comment cycle. Initial Comments are due tomorrow, and Reply Comments are due March 14.

I am convinced that a wrong decision in either of these seemingly arcane proceedings would serve to ensure, for many years to come, that phone companies – the primary gatekeepers to the Internet, be it via narrowband or broadband access -- may set the terms, rates and conditions for access to end-users. This battle over the price of a voice-embedded connection to an end-user on the narrowband public-switched telephone network is really just the camel’s nose under the tent in the carriers’ war to control the rates, terms conditions and functionality of access to end users.

The Petitions in the Context of the Open Internet

Those who care about the Open Internet debate should recognize this battle as simply the most immediate and most potentially devastating effort by the phone companies to charge supra-competitive rates when an Internet communication to the narrowband network includes a voice component.

If the telcos/Internet Access Providers are allowed to charge the Internet application providers when a communication to the carriers’ customer includes a voice application, we will have entered the slippery slope by which carriers will be allowed to charge Internet application providers for all user communications (be they voice, video, data or other). For now, the telcos claim that there are historic and current qualitative distinctions between voice and other communications that require disparate regulatory treatment for voice. This is a technologically unsustainable charade based on the legacy distinctions between voice and other services. In an Internet-enabled world, this distinction cannot persist, and when regulators recognize that the distinction cannot persist, it will be much easier for the access providers to segue into charging for all communications if they have their foot in the door and a regulatory conclusion that Internet-delivered voice is subject to access charges by the access provider.

The Likely Downside of Allowing the Internet Access Providers to Charge for Voice-Embedded Internet Communications to Reach End-Users

Not even the greatest visionaries among us can predict how Internet communications could revolutionize the ways in which we interact or what the killer applications of tomorrow might be, but it’s essentially that the Internet communications industry not be straddled with legacy regulations or be captive to the arbitrary interconnection policies and rates established unilaterally by the phone companies – the gatekeepers to the Internet. Off the top of my head, the most obvious and immediate Internet user implications of either a denial of the Feature Group IP Petition or a grant of the Embarq Petition are the following:

• Stifle the growth of any Internet-based “click-to-call” services, which virtually every Internet-based company has deployed or intends to deploy;
• Eliminate, or severely limit functionality of, other services that incidentally require a voice connection to a narrowband telephone customer. This would include such services as Internet search enabled call termination and Internet text to speech enabled applications;
• Curtail use and functionality of network-enabled collaboration calling whether from a game application or any other device-based network;
• Limit the network effects and power of Group Forming Networks that should be able to include any potential endpoint on the communications network of networks.

A Call to Arms

I urge members of the Internet communications industry to follow these two proceedings, and consider filing reply comments encouraging the FCC to ensure that Internet communications may evolve as effectively, efficiently and rapidly as possible and ensure that all end-users, even those currently relegated to the PSTN -- that limited-functioning, analog, narrowband off-ramp on the Internet-enabled network of networks – are able to participate to the fullest extent possible in the Internet and communications revolution.

I am convinced that we have to get the FCC to hold the line here and now. If the telcos succeed in extracting usurious per minute access revenue from Internet Application Providers when the communication includes a “voice component”, there is no reason the logic won’t apply to all communications when a bit is truly recognized to be just a bit.

Mark my words – what the FCC says in these proceedings about Internet-based “voice” applications terminating to the PSTN will determine what the FCC ultimately says about all applications and regardless of whether they terminate to a narrowband or broadband network.

All Americans should be able to realize what happens when different networks interconnect and interoperate without intervening gatekeepers extract excessive revenue to the detriment of the broader economic and social good. American consumers across all networks should can all share the value that accrues from the combination of Reed’s and Metcalf’s law, but that can only be achieved when we create a ubiquitous, interoperable and seamlessly interconnected “network of networks”, an integrated communications system in which no single network wields excessive control over the others by demanding non-reciprocal, arbitrage-creating, technology-debilitating rents of all others merely so they can all intercommunicate. In an Internet-enabled world, consumers of narrowband PSTN service should not be precluded from fully participating in the digital Internet revolution.

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Posted by jonathan.askin at 10:31 AM | Comments (2)

February 13, 2008

The “Internet Freedom Preservation Act of 2008”

To the best of my knowledge, it’s been a while since anyone in Congress has introduced a forward-looking Internet Bill. Not since the heyday of the Net Neutrality debates a couple years ago have we seen much original and new pro-Internet legislation. Or maybe it’s just that I’ve been stuck in the Ivory Tower this year and outside the DC corridors of power. Whatever the reality, we wait no longer for a positive, pro-Internet Bill.

The leading and long-time champions of the Internet and of competition from both sides of the aisle in the US House of Representatives have introduced the “Internet Freedom Preservation Act 2008” (HR 5353) today. The bill, introduced by Reps. Ed Markey and Chip Pickering, would codify Internet freedoms and would compel the FCC to engage in a national dialogue on the future of the Internet.

I’d like to think that it is no coincidence that the introduction of the first Internet Freedom Bill in recent memory comes on the heels of my return to the blogosphere, but I harbor no such delusions. It is refreshing, however, to be reentering the public debate the same week that the “Internet Freedom Preservation Act of 2008” is released.

If passed, the following would become the policy of the United States:

“(1) to maintain the freedom to use for lawful purposes broadband telecommunications networks, including the Internet, without unreasonable interference from or discrimination by network operators, as has been the policy and history of the Internet and the basis of user expectations since its inception;
(2) to ensure that the Internet remains a vital force in the United States economy, thereby enabling the Nation to preserve its global leadership in online commerce and technological innovation;
(3) to preserve and promote the open and interconnected nature of broadband networks that enable consumers to reach, and service providers to offer, lawful content, applications, and services of their choosing, using their selection of devices, as long as such devices do not harm the network; and
(4) to safeguard the open marketplace of ideas on the Internet by adopting and enforcing baseline protections to guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators based upon its source, ownership, or destination on the Internet.”

Not bad formulation and formalizing of a positive US policy.

The Bill would instruct the FCC to commence a proceeding on broadband services and consumer rights and assess whether broadband network providers adhere to Internet Freedom policies – essentially that Internet access providers must refrain from blocking, thwarting, or unreasonably interfering with the ability of consumers to
(i) access, use, send, receive, or offer lawful content, applications, or services over broadband networks, including the Internet;
(ii) use lawful applications and services of their choice; and
(iii) attach or connect their choice of legal devices to use in conjunction with their broadband telecommunications or information services, provided such devices do not harm the network.

The Bill would also require the FCC to do the following:

- assess whether broadband network providers add charges to certain Internet applications and service providers, and whether such pricing conflicts with the policies of the United States;

- assess whether broadband network providers offer to consumers parental control protection tools, services to combat unsolicited commercial electronic mail, and other similar consumer services, the manner in which such services are offered, and the extent to which such services are consistent with such policies of the United States;

- assess whether practices by which network providers manage or prioritize network traffic, including prioritization for emergency communications, and whether and in what instances such practices may be consistent with such policies of the United States;

- assess, with respect to content, applications, and services,
(i) the historic economic benefits of an open platform;
(ii) the relationship between competition in the broadband Internet access market and an open platform; and
(iii) the policy choices and results of global competitors with respect to access competition and an open platform;

-assess whether the need for enforceable rules governing openness, consumer rights, and consumer protections or prohibiting unreasonable discrimination is lessened if a broadband network provider provides significantly high bandwidth speeds to consumers; and

- assess the potential of policies promoting openness in spectrum allocation, universal service programs, and video franchising to expand innovation through protection from unreasonable interference by network owners of an open marketplace for speech and commerce in content, applications, and services.”


The Bill would also require the FCC to hold “Public Broadband Summits” around the country and to report the findings back to Congress. As part of the proceeding, the FCC would be directed to use broadband technology to encourage input from and communication with citizens through the Internet in a manner that would maximize the ability of such people to participate in such proceeding.

Pretty forward-looking.

Now it's our turn to act. As the Internet communications community, it’s our job to work the Bill, to blog its merits (and possible drawbacks), to move Congress to act, and then to hold government to its word to engage the community and to promote Internet freedom.

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Posted by jonathan.askin at 06:22 PM | Comments (0)

February 11, 2008

Askin’s back, back again, Askin’s back, tell a friend …

.♪♫
“Guess who's back
Back again
Jonny’s back
Tell a friend
Guess who's back,
guess who's back,
guess who's back,
guess who's back
guess who's back,
guess who's back,
guess who's back ...”
♪♫

(Not enough bars to violate Eminem’s copyright)

After a half year hiatus from the world of VON (getting my feet wet in academia), I’m back.

Up until now, I have not blogged (at least not under my own name – god forbid I should be nailed down with an immutable point of view). Frankly, I’ve never really wanted to be quite so exposed (maybe it’s a product of having been raised by civil libertarian privacy freaks). Maybe that’s why, even though I advocate for the online social networks, I am reluctant to fully relinquish my identity and submit myself to them – too much exposure, too much memorialized for posterity, too much that could be thrown back at me down the line. I don’t think I would have made a very good 15-year-old MySpace kid. My first blogged contradiction – I want fame/recognition/immortality, but I want to preserve my privacy, my mystery. Conflicting desires that might not be able to exist in harmony within my head.

So, although I pretend that “Fame or Infamy” has been my mantra, I have typically been more content serving as the man-behind-the-man. And candidly, I’ve never really wanted to be committed to my own position. Maybe the hired gun lawyer in me? Or maybe I’d prefer to think that, like the Internet, viewpoints are allowed to be ever-evolving without someone trying to point to your logical contradictions over time. Like I often say, “I don’t trust a guy who contradicts himself.” … Like I often say, “I don’t trust a guy who doesn’t contradict himself.” (My second blogged contradiction, which absurdly enough, is about contradiction itself. Will this immediate self-contradiction become a trend? I hope not … and I hope so.)

Or, if not about my privacy or the courage of my convictions, maybe my reluctance to blog has been based on the debilitating belief that anything that can be said with words alone is probably not worth saying. While every lie only requires about 200 backup lies, every opinion requires about 58 trillion supporting qualifying statements, and posting text on the Internet is just too cheap and easy that I would feel compelled to type ad nauseum to capture every nuance, …at which point blogging ceases to be easy.

Or, maybe, I’ve always doubted the intelligence or originality of my views. Or maybe I thought it was simply too vain to think that others might gave a damn. Whatever the case, like the Scarecrow in the “Wizard of Oz”, I’ve been given a credential that bestows on me, at least, the confidence to think that I might have something worthwhile to add to the conversation. I am now a bona fide law professor, teaching telecom, Internet and new media law at Brooklyn Law School, in the heart of the greatest city in the known universe -- Brooklyn.

So, swallowing my concern that whatever you post to the Internet has a tendency to stay on the Internet forever, I am initiating this blog with my musings on the state of telecom, new media, the Internet, and whatever else strikes me. At least I can control, to some extent, the removal of text that I later come to regret or disavow. Not so when others post your stuff. Has anyone ever tried to remove an unflattering picture (usually a shot from below with a mobile phone)?

Yeats apparently once wrote in his poem “The Second Coming” something to the effect that “the best lack all conviction…" (I understand that with this Internet thing it’s possible to verify the precise quote). I'm honored to count myself among the ranks Yeats’ “best” (maybe I'll return the favor some day and read one of his poems). In any event, I am of the loose and mutable “conviction” that any conviction is pretty much as likely to be true as its inverse or some other tangential notion. So, by way of final, preliminary excuses, I state for the record that I am committed to nothing expressed herein. This blog and the blogs to follow may, in fact, be inaccurate or partially inaccurate or reflect just a portion of mutable, evolving thoughts. I, therefore, reserve the right to wake up tomorrow or a year from now and retract or deny all or any part hereof.

Anyway, I was told (by the blogger pioneers) that blogs should be short and frequent. This blog has gone way past its respectable limit. So, more later. …


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Posted by jonathan.askin at 09:22 AM | Comments (1)