[ NNSquad ] Re: Dueling broadband policies

[Barry Gold <bgold@matrix-consultants.com>]

Bob Frankston wrote:
> We need to be careful about confusing statements of goals with 
> specifications and with politics. When I read “(2) to preserve the 
> vibrant and competitive free market that presently exists for the 
> Internet and other interactive computer services, unfettered by Federal 
> or State regulation;” it’s hard to take the rest seriously. These 
> principles don’t seem to be specific rules. But then we’re using terms 
> like “broadband” which are very vague.

But I think Brett does have a point.  The FCC is part of the executive 
branch.  Under our Constitution, the executive does not have the power 
to enact laws.  The FCC obtains its power to make regulations _only_ by 
delegation from the Congress.

Since the late 19th c., the US Gov't (and most state gov'ts) has tended 
to handle regulation of commercial activity through a regime where 
Congress writes a law that paints with a fairly broad brush, "we want 
this and this to happen, we don't want that or that."  Then they 
delegate the specifics to an existing or newly created regulatory agency.

But that agency's power to make regulations extends _only_ to "filling 
in the details" of what Congress enacted.  They are not allowed to go 
beyond that and make up new laws.

Unfortunately, telecom law is not easy to read and I'm not a lawyer. 
There have been a number of telecommunication acts (plus the DMCA and 
several other laws affecting telecommunications in general and the 
Internet in particular), and each one modifies the previous ones, 
"strike out this, insert that there."  To know exactly what is delegated 
to the FCC would take at least a full day just to mark up the law and 
read it all.

> In the short term it’s about containing rage. Reading people’s traffic 
> to decided what to sell them is clearly out of bounds. Peeking inside 
> packets for network management is also questionable but fuzzier – at 
> very least such actions should be transparent.

I think Bob has hit the nail on the head.  If you make a lot of people 
angry, what you do will _become_ illegal, even if it isn't yet.  I 
suspect that's why several ISPs have backed off on DPI systems to target 
advertising after privacy groups got on their case.  The only thing 
surprising here is the inability of various ISPs to learn from other 
ISPs' mistakes.  Rogers communication (in Canada) decides to try this 
and the bad publicity (and decisions by Canada's equivalent of the FCC) 
forces them to pull back.  Then BT decides to do the same thing, and the 
EU slaps them down.  (Europe already has fairly strong privacy laws in 
place, I wish we did too.)  So now Comcast comes along and makes 
_exactly_ the same mistake.  And then they are surprised when they get 
hit in the face with exactly the same rhubarb pie.

> What takes precedence, alas, is the popular perception of fairness. I’d 
> prefer going back to first principles and the First Amendment which does 
> trump Congress. But it will take a while for people to realize they 
> don’t need people second-guessing their conversations.

The first amendment controls _government_ actions. Here we're talking 
about private actors, ISPs and backbone carriers that want to look at 
people's traffic for their own commercial purposes.  And for the most 
part, people are saying "no".  It's nice to know that Americans haven't 
_totally_ lost sight of privacy concerns, even in the days of the USA 
PATRIOT act and similar unconstitutional twaddle.

 [ This line above:

    "If you make a lot of people angry, what you do will _become_
     illegal, even if it isn't yet." 

   is key.  The Internet is not a steady-state environment from a
   technical nor legal perspective.  There are clear indications
   that all manner of new legislative approaches to Internet issues
   will be forthcoming, some positive, some negative, and some
   confusing and frankly inane (like states and federal governments
   attempting to impose their own content restrictions on a global
   communications network).  There are also indications that various
   forms of anti-tracking legislation may be coming down the pipe,
   some of which could easily be overly restrictive and potentially
   disrupt the advertising-supported model that provides so many
   valuable Internet services without user fees or charges.  

   The more the various Internet players "push the envelope" in
   various ways today -- even when completely legal under current
   laws -- the more they risk legislative "backlash" that could
   drastically change the rules.  This goes for everything from
   network neutrality legislation (which I generally support as
   being demonstrably necessary at this stage) to content
   restrictions and attempts at censorship (which I obviously
   oppose).

   But the Internet industry has been in the driver's seat.  It's
   their actions that have triggered the responses that we're
   seeing now, and they like everyone else must sleep in the
   resulting bed they've made.

   -- Lauren Weinstein
      NNSquad Moderator ]