As much as we believe in the importance of a neutral network, we've pointed out over and over again that the last thing people should want is for specific net neutrality rules to be written by the government. For a while now, we've warned that once the lobbyists took over, people supporting net neutrality wouldn't like the results. And, of course, everything has been playing out following just that script. The telcos hired a ton of high-power lobbyists to cover net neutrality, including eighteen former members of Congress. And, despite arguing for years that net neutrality was evil, the telcos "miraculously" admitted last month they "might agree" to regulations... just as long as they got to write the details
As important as the concept of a neutral network might be, what comes out of this sausage making process is going to favor the very companies net neutrality regulations are supposed to keep in line.
Want to see how regulatory capture works in action? Congress is apparently gearing up to start the massive process of reforming telecom/broadband laws later this week, and the communications companies are ready for it. A recent report shows that the big telcos/broadband companies have not only spent big on lobbying the government, they're hiring a ton of ex-government employees, including eighteen former members of Congress, to act as lobbyists. A full 72% of telco lobbyists are former employees of the federal government, including the two top (former) staffers to Sen. Jay Rockefeller, who is the chair of the Senate Committee on Commerce, Science & Transportation, who will have a role in telco reform. Is it really any wonder that telcos are now saying they may be fine with "net neutrality" regulations? They know that they'll craft the legislation themselves, so it will benefit them.
The telcos, mainly AT&T (at the time, it was still SBC) and Verizon, were really the companies that kicked off the whole "net neutrality" craze a few years back, by making totally ridiculous claims about how online services should double pay for bandwidth already paid for by users. Since then, they've fought as hard as possible against any sort of "net neutrality" legislation. However, with the FCC deciding to try to reclassify internet access and gain (somewhat limited) regulatory power over certain aspects of broadband, suddenly reports are coming out that these telcos might be willing to agree to legislation on net neutrality.
It's not too hard to read between the lines here. What it means is that they've now crafted legislation that will look like net neutrality regulation, but will have so many loopholes or exceptions, that it does nothing of the sort. This has always been my fear around net neutrality legislation. The telcos have very good lobbyists, and once they got done with the law, it would almost certainly do the exact opposite of what the public was being told. Once you open up this kind of regulatory pandora's box, you're just asking for regulatory capture, where the actual text of the bill is tailored to the industry's interests.
This was pretty predictable, but it's still unfortunate that it's happening. We've complained in the past that both sides on the net neutrality debate are exaggerating and making absolutely ridiculous arguments, and even though I agree that putting net neutrality in the law in some manner is a bad, bad idea, I have to admit that the arguments by most of those against such rules is so ridiculous that it makes me wonder they're thinking. There were the outright lies -- such as the ridiculous claim that Google gets its bandwidth for free (to which I asked if the lobbyist who made that statement would pay Google's broadband bill -- and he never responded). Then there are the claims that net neutrality would mean the end of the internet or no more iPhones, both of which are ridiculous hyperbole that have no basis in truth.
Given that there actually are perfectly good arguments against regulations on this issue without resorting to such ridiculous lies, I actually think that such claims really hurt the case of those who are worried about the unintended consequences of opening up the internet to regulation.
However, with the FCC's recent decision to sorta, kinda, partially reclassify broadband access, it seems like the lobbyists, sock puppets and shills are going into overdrive, and it's not helping anyone. In fact, part of the mess is that everyone now is looking for big "gotchas" on either side. For example, the website Think Progress got its hands on a PowerPoint apparently coordinating the ridiculously over-the-top anti-net-neutrality campaign, which they're apparently trying to rebrand "net brutality."
The whole thing reads like what you'd expect from a lobbying effort... but it turns out that it was just a student project, though, the attention given it by Think Progress may have just catapulted it into something more. That said, the project itself is filled with questionable activities, where they even admit that the whole goal is to create the impression that it's a grass roots effort. And, not surprisingly, the project's blog links to some highly questionable sources that have been shown to be sock puppetry and astroturfing in the past.
Of course, the other side isn't immune to questionable activities either. It didn't take long for the press to realize that a letter that was being passed around by Rep. Jay Inslee in support of the FCC's move had metadata indicating it was actually written by the policy director of Free Press, a group that has been ferociously pushing for net neutrality regulations for quite some time. Ridiculously, Inslee is trying to pretend that the document wasn't written by Free Press by claiming a staffer had just typed over a Word doc sent by Free Press:
Inslee's office told Hillicon Valley on Tuesday that Scott did not, in fact, draft the letter on behalf of the congressman. Rather, as Inslee's staff scrambled to put out something last week in support of the FCC's goals, it consulted old documents and industry talking points for ideas. A staff member ultimately typed the new letter on top of the Word document that Free Press previously sent Inslee -- the date of which was May 7 -- meaning the meta-data still reflected Scott as its author.
"Yep, that's it, in our haste we typed over a word document with someone else's meta tag," said communications director Robert Kellar. "There is no plot and we created the letter."
I mean, it even sounds like Kellar knows he's not fooling anyone with the "Yep, that's it" part of the statement. It's about this far away from "Yeah... that's the ticket..."
Either way, as we predicted, the whole thing is becoming a political food fight being manhandled by lobbyists and special interests, with little regard for the deeper, important, underlying issues. Even when moves are being made by people outside of the beltway, it's being dissected for the driving forces behind it, rather than what actually makes sense. What comes out in the end is going to be shaped by those lobbyists and special interests. And that's my big fear with all of this. The end result isn't going to have anything to do with actually looking at what's best for the internet or the American people, but who can game the system better and turn this into a hotter political football.
Cable and phone company lobbyists (and their army of PR, consultant and think tank friends) have long pushed the bogus concept of an "exaflood," or the idea that explosive Internet growth will result in the Internet collapsing any day now. The argument is generally used by telecom lobbyists to scare politicians and the public into supporting something (deregulation, subsidies, higher prices, fewer consumer protections) lest the Internet explode. The problem is that the argument has been debunked countless times by real network researchers like Dr. Andrew Odlyzko of MINTS -- who highlight that traffic growth is actually quite reasonable, and what growth there is can be easily dealt with by intelligent network engineers and modest network investment. If carriers aren't investing money back into the network, it has nothing to do with bandwidth bogeymen -- it's usually because they face limited competition.
The exaflood term itself was actually coined by Bret Swanson, formerly of the Discovery Institute -- the think tank hired by evangelicals to help push creationism into the classroom via "intelligent design." Under the employ of major carriers, Swanson first used the term in a 2007 Wall Street Journaleditorial, and despite it being largely nonsense -- it quickly became a common phrase in modern telecom lexicon. Of course the exaflood never arrived because it doesn't actually exist, but that's not slowing Swanson down. With the FCC considering network neutrality rules, Swanson (now under his his own brand: Entropy Economics) has given the ungracefully-aging exaflood myth a botox injection, based on filings this week with the FCC (via Ars Technica):
"We are intrigued by one particular innovation just around the corner. Call it online gaming. Call it cloud streaming. We call it the "exacloud." It is cloud computing but of a scope and scale never seen before. . . This exacloud will transform video games, movies, virtual worlds, business software, and most other media. Piracy goes away. So do DVDs, game boxes, and maybe even expensive personal computers. New content and software subscription models open up. Based in the cloud instead of on your device, interactivity thrives."
This miracle, piracy-curing super computing evolution Swanson references? It's just ordinary people using clients to access servers using networks. While Swanson throws out a lot of data points in his filing, none of them dispute the reality that Internet traffic growth remains reasonable and manageable. Amusingly, he even goes so far as to use the MINTs data that debunked his original claims -- as evidence supporting his "new" argument. It appears that all he's done is rename his imaginary bandwidth apocalypse for a more modern audience -- and hoped nobody would notice. He at least could have been a little more entertaining. How about the Tubeogeddon? BitTorrentialCollapse? The Tubeacalype? Capacitastrophe? The looming colocaust? Help us out...
We were confused a few weeks ago when the USTR started promoting letters from lobbyists in support of ACTA. After all, of course the lobbyists want ACTA. They're the ones who wrote much of it in the first place. In the meantime, thousands have been writing the USTR to express their concerns about ACTA... but the USTR doesn't bother mentioning them at all. It's as if the USTR is flat-out admitting that it's controlled by the lobbyists.
So it should come as no surprise that the USTR is gleefully hyping up two more letters from lobbying groups in favor of ACTA. But why won't it put forth the letters against ACTA or worried about the process? And, of course, as Jamie Love points out, isn't it weird that these lobbyists are proudly supporting an agreement when, technically, they're not even supposed to know what's in the agreement?
What's even stranger is that all of this comes on the same day that the USTR has released its plan on being more open. How about, for a start, you open up ACTA, stop hiding behind lobbyists, and allow for a real open discussion involving the real stakeholders? Or is that too much to ask? Well, included in the openness plan is the following:
During the building of this plan, recommendations centered around two issues: the Anti-Counterfeiting Trade Agreement (ACTA) negotiations and all other trade-related meetings. There was a desire to make all advisory committee, negotiating, and policy development meetings, and texts available to the public in "real time."
And yet, rather than any sort of real time release of information, we get the USTR still hiding the documents behind a bogus claim of "national security" and then showing off the fact that it's in the pocket of lobbyists who aren't even supposed to know what's in the document.
Back in February, there was a fair bit of attention paid to some of the more ridiculous parts of the IIPA's filing for the USTR's Special 301 report, which seeks to figure out which countries US diplomats should threaten most heavily over their failure to kowtow to US copyright interests. The IIPA is, of course, the mega-lobbying group, made up of a variety of other lobbying groups, including the RIAA, MPAA, BSA, ESA and NMPA. A lot of attention was paid, in particular, to the IIPA's claims that countries that promoted open source software (something that would reduce infringement) were as bad, if not worse, than those that did not crack down on unauthorized copying.
However, some parts of the IIPA's are even more troubling. Public Knowledge has been digging through the report and is reasonably troubled by the call by the IIPA to expand pre-trial detentions in India for those accused of copyright infringement. The PK article goes through this issue in great detail, but basically some parts of India have laws that allow the gov't to lock people up as a form of "preventative detention" for people they're afraid might do something (think Minority Report's "pre-crime"). Not surprisingly, there are some concerns about how these rules have been used to violate human rights -- but still, they are mostly used for "drug-smugglers, human traffickers, bootleggers, and the like." However, two parts of India expanded the law to cover copyright violations -- and, in the case of Tamil Nadu, it was expanded all the way down to merely the potential of possessing a bootleg movie or CD.
In its report, the IIPA claims that by expanding the law to cover copyright, Tamil Nadu successfully deterred infringement. But Public Knowledge looked through the details and found that there was only a temporary blip (something that the IIPA fails to mention, of course):
Given this state of affairs, it's hardly surprising that pretrial detention would "continue[] to result in some deterrence," as the IIPA claims. But while initial reports showed that the imminent addition of 'video piracy' to Tamil Nadu's Goondas Act had a huge deterrent effect, by the time the rule had been in effect for a year piracy had largely bounced back and the local film industry was already clamoring for even more laws. Even the formation of a special video anti-piracy police force (something, incidentally, that the IIPA often calls for in its reports) did not stem the tide of piracy in Tamil Nadu. So it's unclear how much deterrence these statutes even produce.
Now, of course, it seems troubling enough that a group representing the RIAA, MPAA, BSA and others would call for locking up people for up to a year just because they might come into possession of an unauthorized product, but it's even more troubling that the IIPA appears to be calling for the US diplomats to punish or threaten India if they do not expand this rule even further. This rule already goes way beyond anything that would be legal in the US, and the point of the Special 301 report is to highlight countries that don't provide "adequate and effective" rules for protecting copyright. Yet, when a country goes way beyond what's reasonable, the IIPA is still complaining? And even when those laws don't appear to help and seem ripe for serious human rights violations? Wow.
The US Trade Rep is proudly promoting the fact that there's someone out there who likes ACTA. It's put up a new info website, where it highlights the fact that it's received TWO WHOLE LETTERS in support of ACTA. Of course, those letters come from two lobbying groups -- the International Trademark Association (ITA) and the Recording Industry Association of America (RIAA) -- two groups who have been heavily involved in the creation of ACTA in the first place. Of course they support it.
But, really, it's incredibly telling that the USTR is only willing to promote the letters it's received in support of ACTA, isn't it? Lots of people have been contacting the USTR with concerns about ACTA, and those don't get highlighted on the website at all. It's as if the USTR wants to make it clear that it works for the RIAA and the ITA, rather than the citizens of the country. It's reached the point where it's obvious that the USTR's focus is not on creating a good trade agreement, but on the trade agreement that some lobbyists wanted. It seems obvious that the USTR is not interested in understanding the complaints, but only in getting ACTA finished.
You may remember last year that the Conference Board of Canada (who, until then, was pretty well respected) released a report on "intellectual property policy" that was blatantly plagiarized from US copyright industry lobbyists. While the Conference Board at first insisted that it stood by the report, eventually it recalled three reports and admitted that they "did not follow the high quality research standards" of the organization. Many months later, it appears that the replacement report has been released, and it's much more balanced. I still think there's plenty in the report that doesn't make much sense to me, but it's significantly better than the totally one-sided, blatantly plagiarized piece from last year.
So after months and months of people asking the USTR to reveal what's in ACTA, Public Knowledge finally got Stan McCoy to confirm that it won't include three strikes or mandatory ISP filtering. While some of the other leaks had indicated that both were on the table at some point, it's good to see the USTR confirm that they're not, though it's still not clear why they won't reveal what is in the document.
Still, that doesn't mean it won't impact US law in potentially dangerous ways. In particular, a lot of what it will try to do is lock in US case law that hasn't been established by Congress, and which other countries have differing opinions on. So, for example, if it locks in contributory liability (something the courts have ruled on, but Congress never included in the law), it will massively hinder Congress' ability to fix this mistake by the courts. As Sherwin Siy, from Public Knowledge noted:
That analysis hints at changes to international norms on "third party liability"--such as contributory infringement, vicarious liability, or inducement of infringement.
These are areas of law that, in the U.S., are defined almost entirely by court decisions, which build in nuances and balance to the application and enforcement of the law. One of the dangers of trying to codify these doctrines into an international agreement is that it can freeze the law as it is currently, preventing the courts from adapting case law to adjust for new developments in business, technology, and culture. There’s also the risk that binding the United States to an international set of standards will actually hamper Congress from enacting needed reforms to our copyright system.
Nor can we so quickly dismiss concerns about filtering and 3 strikes policies--even if the U.S. isn't pushing for legal obligations or mandates, there has been a constant, concerted effort by the largest record labels and movie studios over the past year or more to negotiate their own private 3 strikes agreements with ISPs. Filtering also remains a big topic for content industry lobbyists. Both of these measures, even if not mandated by laws, are often pressed upon ISPs and their customers as "voluntary" agreements, with threats of expensive lawsuits waiting in the margins if they don't comply. Even without mandating these procedures, laws, treaties, and executive agreements like ACTA can give them a great deal of cover by endorsing such "private agreements," adding a veneer of legitimacy to practices that otherwise would raise greater alarm at their impact on privacy, or simply their false positive rate. ACTA's focus on penalties can also incentivize potential plaintiffs to push harder, and for potential defendants to cave.
Indeed, what many people have pointed out is that the really pernicious part of ACTA is in reading between the lines. There are already international agreements on intellectual property that include clear safe harbors and consumer protection. What's notable in the leaked drafts of ACTA is that such things are missing. So even if it doesn't force the US to change the law, it could very much hinder attempts by US to come to its senses and fix the broken parts of the law.
Just as we were discussing problems with the DMCA today, the drafts of ACTA suggest that they will lock in some of the DMCA's worst features, such that the US would be hindered in correcting those mistakes, and, even worse, other countries would be prevented from putting in place better solutions as well, which could be useful in convincing US politicians that the more draconian parts of the DMCA are a mistake. ACTA doesn't need to explicitly change US law today to have a serious impact on US law in constraining Congress from fixing its broken parts. Things like secondary liability, which were entirely decided by the courts, despite not appearing anywhere in the law, are quite problematic -- and ACTA is looking to lock them in, so that Congress couldn't even fix that mistake by the courts. That's a serious problem.
