The linkage between real and virtual, however, paves the way for the meat of the compromise proposal.  It involves an obscure century-old U.S. entity: the International Trade Commission, an “independent, nonpartisan, quasi-judicial federal agency.”  From its website:

“The mission of the U.S. International Trade Commission is to: (1) administer U.S. trade remedy laws within its mandate in a fair and objective manner; (2) provide the President, the United States Trade Representative (USTR), and Congress with independent, quality analysis, information, and support on matters relating to tariffs and international trade and competitiveness; and (3) maintain the Harmonized Tariff Schedule of the United States.”

In general, a U.S. company can complain to the ITC about anti-competitive practices by foreign competitors such as dumping (selling items far below cost to put others out of business) or patent or trademark infringement (making product knock-offs).  The ITC, in turn, can affirm that such practices are happening, which then leads to a complex process by which the U.S. Department of Commerce can impose punitive tariffs on the import of foreign goods.  You can see a list of “cases” pending before the ITC here. (Cases may belong in quotes because, as the ITC says, “The USITC is NOT a policymaking body. It is NOT a court of law. It does NOT negotiate trade agreements.”)

The ITC process takes awhile.  For example, in March of 2010 Apple lodged a complaint about HTC infringing its patents.  An administrative judge set a target date to rule about it around 15 months from the complaint; and the ITC made an initial determination in July of 2011.

With this background, we can infer how the framers of the SOPA compromise came up with the idea of bringing in the ITC. One big problem with the original SOPA proposal is that private parties could go directly to intermediaries like payment providers and ad networks with complaints about sites “dedicated to theft of U.S. property” and demand that they be cut off, with no disinterested party weighing in on the merits of the complaint. With the ITC, there’s a way to get some due process into the picture: under the compromise, private parties aggrieved by copyright infringement made possible by foreign web sites lodge complaints with the ITC over “digital imports … by foreign websites.”

If the ITC agrees the the foreign website is infringing copyright, it could issue a cease-and-desist order against the website, and the rightsholders could then use the order to compel domestic payment providers and ad networks to break off relationships with the foreign site.  There’s also provision for the ITC to penalize rightsholders who lodge frivolous claims.

But there are important issues left unresolved in the draft — which, at two pages, doesn’t cover many details.  On a mundane level, it’s not clear what counts as a foreign website.  SOPA’s definition was odd: it was any site that used an overseas registrar for its domain name.  That’s an unusual definition — it could include lots of sites that are hosted in the US but just happened to register a domain name by using an overseas name retailer.  Presumably the right definition covers only sites that are truly overseas, and perhaps completely so — ones beyond the reach of traditional U.S. civil law enforcement processes, which is why further legislation is called for.

More fundamentally, there’s a question about how well suited the ITC is to solve the due process worries of the original SOPA’s notice-and-takedown.   A look at the ITC’s current caseload shows comparatively low volume and long lead times — a few dozen open cases at any one time.  If the idea is to go after “kingpin” sites — the Pirate Bays of the world — then this may not be a problem. But if the proponents of Congressional action here are hoping to do voluminous takedowns of an expansive and rotating cast of sites, then the ITC’s involvement becomes tricky.  The proposal alludes to “boost[ing] the ITC’s administrative capacities,” perhaps in anticipation of having to buff up the commission’s infrastructure to handle an influx of claims.  However, more staff doesn’t address the deeper problem of a punt to the ITC.  To sort out meritorious claims of undue infringement from borderline ones from frivolous ones, each adjudication would likely take days or weeks.  That pace would likely not satisfy IP holders, who want to be able to whack the moles as they pop up.  But to make the process hours instead of days would eliminate the value of getting a quasi-public agency into the mix to determine the validity of claims.  HTC isn’t going anywhere, so Apple can bring a case to the ITC about its claimed patent infringement.  It’s a different story with a site like listen4ever.

As a political matter, SOPA may have represented an opening bid in a negotiation — after which the SOPA proposers found themselves surprised that it might actually pass unamended. Pushback across the spectrum has made that outcome less likely, and this compromise could be a continuation of a negotiation.  (To be sure, the Congressional proponents of SOPA appear to be unimpressed by this compromise, while suggesting that some changes will be made.)

The question Congress ideally would take up before passing anything is an empirical one, because overseas copyright infringement is a classic example of a public policy issue that hungers for real data.  We’d do well to have less unanchored rhetoric around this topic and more information about just what kinds of sites proponents want to target and what evidence they can produce to show the harm these sites are causing. Then Congress could evaluate how risky or costly legislative action against those sorts of sites would prove.  This is an earnest plea — we really could benefit from good data here.

Without it, any compromise may be simply pitted against a caricatured initial proposal — when both are ill-considered.  Bottom line: the Wyden compromise is significantly better than the original SOPA proposal, and it might form the basis for a new law against egregious overseas “kingpin” infringement.  A narrowly tailored proposal fleshing out the compromise would test how much the publishers seeking the law mean to go after only the big fish.  And developing some real data on the scope of the problem and the impact of solutions is both desirable and doable.

The Personal Computer Is Dead

Power is fast shifting from end users and software developers to operating system vendors.

By Jonathan Zittrain

JBAT:

- You wrote the Future of the Internet three years ago. It warned of a lack of awareness with regard to what we’re building, and the consequences of that lack of attention. it also warned of data silos and early lockdown. Three years later, how are we doing? Are things better, worse, the same?

And a follow up. On a scale of one to ten, where one is “actively helping” and ten is “pretty much evil,” how do the following companies rate in terms of the debate you frame in the book?

- Google (you can break this down into Android, Search, Apps, etc)

- Facebook (which was really not at full scale when you published)

- Apple

- Twitter

- Microsoft (again break it down if you wish)

Thanks!

JONATHAN ZITTRAIN:

Sorry this took me so long! I got a little carried away in answering –

- You wrote the Future of the Internet three years ago. It warned of a lack of awareness with regard to what we’re building, and the consequences of that lack of attention. it also warned of data silos and early lockdown. Three years later, how are we doing? Are things better, worse, the same?

It’s the best of times and the worst of times: the digital world offers us more every day, while we continue to set ourselves up for levels of surveillance and control that will be hard to escape as they gel.

That’s because the plus is also the minus: more and more of our activities are mediated by gatekeepers who make life easier, but who also can watch what we do and set boundaries on it — either for their own purposes, or under pressure from government authorities.

On the book’s specific predictions, Apple’s ethos remains a terrific bellwether. The iPhone — released in ’07 — has proved not only a runaway success, but the principles of its iOS have infused themselves across the spectrum. There’s less reason than ever to need a traditional PC, and by that I mean one that lets you run whatever code you want. OS X Lion points the way to a much more controlled PC zone, anyway, as it more and more funnels its software through a single company’s app store rather than from anywhere. I’d be surprised if Microsoft weren’t thinking along similar lines for Windows.

Google has offered a counterpoint, since the Android platform, while including an app store, allows outside code to be run. In part that’s because Google’s play is through the cloud. Google seeks to make our key apps based somewhere within the google.com archipelago, and to offer infrastructure that outside apps can’t resist, such a easy APIs to geographic mapping or user location. It’s important to realize that a cloud-based setup like Google Docs or APIs, or Facebook’s platform offer control similar to that of a managed device like an iPhone or a Kindle. All represent the movement of technology from product to service. Providers of a product have little to say about it after it changes hands. Providers of services are different: they don’t go away, and a choice of one over another can have lingering implications for months and even years.

At the time of the book’s drafting, the alternatives seemed stark: the “sterile” iPhone that ran only Apple’s software on the one hand, and the chaotic PC that ran anything ending in .exe on the other. The iPhone’s openness to outside code beginning in ’08 changed all that. It became what I call “contingently generative” — it runs outside code after approval (and then until it doesn’t). The upside is that the vast creativity of outside coders has led to a software renaissance on mobile devices, including iPhones, from the sublime to the ridiculous. And Apple’s gatekeeping has seemed to be with a light touch; apps not allowed in the store pale in comparison to the torrents of stuff let through. But that masks entire categories of applications that aren’t allowed — namely anything disruptive to Apple’s business model or that of its partners or regulators. No p2p, no alternate email clients, browsers with limited functionality.

More important, the ability to limit code is what makes for the ability to control content. More and more we see content, whether a book, or a magazine subscription, represented in and through an app. It’s sheer genius for a platform maker to demand a cut of in-app purchases. Can you imagine if, back in the day, the only browser allowed on Windows was IE, and further, all commerce conducted through that browser — say, buying a book through Amazon — constituted an “in-app purchase” for which Microsoft was due 30%?

A natural question is why competition isn’t the answer here — or at least reason to not worry about the question. If people thought the iPhone made for a bad deal, why would they want one? The reason they want one is the same thing that made the Mac so appealing when it first came on the scene: it was elegant and intuitive and it just worked. No blue screen of death. Consistency across apps. And, as viruses and worms naturally were designed for the most common platform, Windows, those 5% with Macs weren’t worth the trouble of corrupting.

We’ve seen a new generation of Mac malware as its numbers grow, and in the meantime a first defense is that of curation: the app store provides a rough filter for bad code, and accountability against its makers if something goes wrong even after it’s been approved. So that’s why the market likes these architectures. I’ll bet few Android users actually go “off-roading” with apps not obtained through the official Android app channels. But the fact that they can provides a key safety valve: if Google were to try the same deal as Apple with content providers for in-app content, the content providers could always offer their wares directly to Android users. I’m worried that a piece of malware could emerge on Android that would cause the safety valve of outside code to be changed, either formally by Google, or in practice as people become unwilling to drive outside the lanes.

So how about competition between platforms? Doesn’t that keep each competitor honest, even if all the platforms are curated? I suppose: the way that Prodigy and CompuServe and AOL competed with one another to offer different services as each chased subscribers. (Remember the day when AOL members couldn’t email CompuServe users and vice versa?) That was competition of a sort, but the Internet and the Web put them all to shame — even as the Internet arose from no business plan at all.

Here’s another way to think about it. Suppose you were going buy a new house. There are lots of choices. It’s just that each house is “curated” by its seller. Once you move in, that seller will get to say what furnishings can go in, and collects 30% of the purchase price of whatever you buy for the house. That seller has every reason to want to have a reputation for being generous about what goes in — but it still doesn’t feel very free when, two years after you’re living in the house, a particular coffee table or paint color is denied. There is competition in this situation — just not the full freedom that we rightly associate with inhabiting our dwellings. A small percentage of people might elect to join gated communities with strict rules about what can go inside and outside each house — but most people don’t want to have to consult their condo association by-laws before making choices that affect only themselves.

A rented laptop only makes sense when there’s nothing that will end up on the unit that would make it difficult to lose or trade in.  And that’s the promise of Chrome OS and the cloud: the keyboard and screen are generic; everything interesting happens online, either on the public Web or behind the gates of a user’s various online accounts — Gmail, Facebook, etc.

There’s nothing inherently wrong with that, just as there was no inherent ethical case to a decision between an old-fashioned answering machine (keeping your phone messages at home) and voicemail (keeping them … in the cloud).  (Remember when people called each other and left messages?)

The reason I’ve singled out the PC’s future is because it’s a bellwether for how much we get to control the code we run and the data we accrete.  In the good old days we effectively bought software (its own claim to being merely licensed notwithstanding) and stored our data in our plain view.  So long as we didn’t lose or munge our laptops we knew where our data was — and wasn’t.

As abundant, saturating network connectivity makes it more sensible to store stuff on others’ faraway servers, it’s all the more important that we establish technical and legal architectures to preserve our primacy in choosing what code to run and what data to associate with ourselves.  I have some thoughts on how to do that here and here.

Update [11 May 2011]: The rumors appear to be true.

Three months later and the editor — not the reviewer — found himself the target of a criminal libel investigation in France.  Strange location, since …

[t]he author of the book was an Israeli academic. The book was in English. The publisher was Dutch. The reviewer was a distinguished German professor. The review was published on a New York website.

He’s written up his experience with the trial, which was last week, here.  Fascinating — and chilling — reading.

Since last year Herdict has tracked big blockages like those of China’s Great Firewall, and small ones like the temporary block of WordPress in Guatemala.  Herdict receives thousands of visitors each day and hundreds of reports from just about every country.

Last summer we were awarded a $1.5M grant from the Omidyar Network to take Herdict further, which means setting it up as a standalone non-profit, partnering with browser makers to increase Herdict’s paths for gleaning and sharing data, exploring new ways of crowdsourcing, and securing additional funds (part of our grant is for matching contributions).

So, the new Herdict venture needs a CEO.  The ideal candidate would have some combination of start-up experience, a rich human network (in the US and ideally, abroad), familiarity with the Net, experience in building and motivating online communities, and a commitment to turning Herdict into a sustainable nervous system for it.  The CEO will build and lead our technology team to shape the future of Herdict, figure out how it can best integrate with other worthy efforts in this zone, and define what the boundaries will be of just what Herdict will aspire to do.

The team will be located in Cambridge, Massachusetts — so it will help if the CEO is prepared to live in the Boston area, and at least travel there regularly.  The CEO will work closely with the board of Herdict and with faculty from the Berkman Center and members of the OpenNet Initiative as we figure out how to measure and preserve a free and open Internet.  Salary competitive.

Statements of interest can be sent to jobs@herdict.org.

How the Internet is running out of room, and what we must do about it

“CDT Fellows’ Focus” is a series from CDT that presents the views of other notable experts on tech policy issues. This week, CDT Fellow Jonathan Zittrain and Leslie Daigle write about the end of IPv4 address space. Guest posts featured in “CDT Fellows’ Focus” don’t necessarily reflect the views of CDT; the goal of the series is to present diverse, well-informed views on significant tech policy issues.

The Internet’s framers famously designed it without predicting much about how, or how much, it would be used. For example, the network’s capacity was conceived less in a count of precisely how many could participate at once – the way traditional phone circuits worked – and more in flexibly divisible bandwidth. As that bandwidth got saturated, it would degrade gracefully: data might move slower for everyone, but no one would get an “all circuits are busy” message. In ways large and small, what animates Internet protocol design is a procrastination principle: if something can work well, it doesn’t have to be perfect, and not every problem or limit must be anticipated and preempted. Potential but still speculative flaws can be fixed later – possibly somewhere other than inside the network.

Unfortunately “later” is arriving now for a crucial piece of the Internet: its ability to tell one attached device from another. Internet architects designed a simple way to identify participating computers and route data among them: assign each a unique number: an Internet Protocol (IP) address. No IP address, no delivery. The routers in between you and your friend use your friend’s number the way a postal service would – the number says something about where she is. That’s made possible because IP addresses are clustered together, just like street addresses grouped in a ZIP or other postal code.

The system has an Achilles’ heel: there are a limited number of numbers. It might seem that you could add 1 to whatever the last number is and keep going, but there’s a hard cap in venerable Internet Protocol Version 4 (IPv4): 4 billion IP addresses, which the Internet is outgrowing in much the same way that applications outstripped the original 64K of memory expected for a PC running Microsoft DOS. There is now general agreement among Internet technologists that the end days are upon us: the last block of fresh IPv4 addresses will likely be allocated to the Internet’s North American address warehouse in early 2011, to be passed out to Internet Service Providers here by mid- to late-2011.

Worse, because of the clustering of addresses, we can’t squeeze the last bit of digital toothpaste out of the tube as fresh numbers become scarce. There’s a gray market for chunks of already-allocated numbers despite restrictions against selling them – and some telecommunications providers are rumored to have been purchased only for their numbers! – but such used numbers carry their own risks. Anyone who has inherited the former phone number of a pizza shop will appreciate that some numbers are less desirable than others. Moreover, some IP addresses have at one time been the source of cyberattacks, or hosted politically sensitive content, and the resulting blocking of traffic originating from them by various ISPs is rarely revisited by those ISPs. (Who wants an old Wikileaks IP address?)

Running out of fresh numbers will not stop the Internet from working. But, unchecked, it will greatly complicate growth. As new computers and devices come online, something has to give – making more use of existing addresses, or finding a new way to address things.

In the first category – making do – the procrastination principle has bought us some time. Enterprising engineers developed an ingenious baling-wire-and-twine workaround to the one-number-per-computer rule. Known as network address translation, or NAT, it allows the holder of a single IP address to share it among a group of computers. This happens nearly every time you hook up a wireless router and access point at home: your ISP only gives you one number, and you use your inexpensive router to share it with everyone who connects to your network. Cable and DSL ISPs are considering the same thing to put larger networks of multiple customers behind a single address, at least as an interim measure. Unfortunately, like most such workarounds, it doesn’t really work as well as having one number per machine: the fancy footwork required to share a number around can limit the kinds of applications you can run, and greatly increase the complexity of some software, such as Skype Internet telephony, if it’s to work at all. NAT has bought us some time – much of Qatar has been known to share one IP address – but it’s spackle covering a rapidly-rusting architecture stretched far beyond its creators’ wildest ambitions.

Which brings us to a more comprehensive solution. Internet technologists did not sit idly by when it became clear IPv4 could not last. Over a decade ago, they specified its successor, IPv6 (don’t ask what became of IPv5), with a few hundred trillion trillion trillion addresses. Such huge swaths of address space promise something even better than a well-functioning market for valuable but limited assets: abundance so great that no market is required, only careful administration. Unfortunately, for IPv6 to work, nearly every piece of networking software and hardware from one end of a data transmission to the other needs to be upgraded. If just one link in the chain hasn’t been upgraded to understand the new numbers, IPv4 will still have to be used.

The idea for transition was that systems would work with both protocols for awhile, and gradually IPv4 would end not with a bang, but with a whimper – fading away like, say, the telegraph or telex addresses that used to share letterhead with telephone and fax numbers. However, even though many operating system and hardware vendors have been anticipating IPv6 for years (current Mac and Windows systems now support it out of the box), there are still gaps in available products and little business dependency on it, and there has been remarkably little deployment. This is consistent with the procrastination principle: the only networks that have deployed IPv6 are those that have found a business model for which it as a requirement. And, because the benefits are, generally, global rather than local to one network, the procrastination principle becomes a Prisoner’s Dilemma: we’re all better off if we all move to IPv6, but the worst case is if you pay to move while others don’t. So why not wait – forever, if others act similarly – for everyone else to do it before making the investment?

We’ve spent a decade with few networks taking the plunge to deploy IPv6.

This holding pattern is not likely to persist. With the larder dry, in the absence of fundamental innovation in Internet Protocol, we’d see an unfortunate ramp up in the use of NAT and its complications, coupled with parties’ tussles over existing ‘pure’ IP addresses like rats fighting over crumbs. Demonstrated shortcomings of the type of IPv4 address sharing include degraded performance of network-intensive web services: web pages where different pieces show up slowly, rather than seamlessly. Customers will not see a poor network connection – they will perceive poor service from the product or company.

More directly, IPv6 is gaining ground among new entrants (who have little choice), so the days of an all-IPv4 Internet are numbered. In developing its broadband strategy, India went for IPv6. New industries looking at wide scale networking are also looking to IPv6 in order to have access to adequate address space, and to be able to build novel network architectures, unencumbered by the structural assumptions needed to support address sharing.

The best future for the Internet is for all networks to deploy IPv6, and pay the price of working in a dual IPv6 / IPv4 world for a period of transition. If companies wait until the business impacts of degraded IPv4 network experience or the identification of opportunities to work with new (IPv6) networks are upon them, the need to make a transition more quickly than a multi-year equipment refresh cycle will likely be more costly and difficult. So how to encourage enough entities to take the plunge?

One way out of a classic problem demanding collective action is through regulation. A government can incent or compel everyone to contribute. However, this would require coordinated regulation across boundaries not recognized by network traffic – the intricacies are daunting, and for the Internet without precedent. And if successful, governments might gain an appetite for controlling the direction of an Internet which previously managed growth and innovation through elective uptake. Few are enthusiastic about mandated transitions.

Another way out is through leadership by big players. For example, governments aren’t just regulators of information technology, they’re purchasers of it. By insisting that government- and military-run subnetworks are IPv6, they’ll stimulate demand for the newer technologies and encourage intertwined private parties to follow suit. The US government’s Office of Management and Budget followed just such a route in 2005, requiring all government services to be IPv6 capable by 2008. In September, Vivek Kundra crystallized requirements for government websites to be IPv6 capable.

China has been leading IPv6 adoption for years, in part because it may otherwise feel the IPv4 number crunch most acutely, and perhaps because the government has determined that it’s in the country’s best commercial interests. Some large companies have placed bets on an upgrade. Google has been public about its activities to deploy IPv6, and a business rationale to not be last to market with IPv6 support.

A cold calculus on such investments for many Net-connected enterprises may indeed suggest holding off. But what has made the Internet better than the more proprietary networks that it eclipsed is that its participants have had a sense of stewardship of the space, justifying the absence of government planners and sheriffs, or a single corporate umbrella. Engineers from the public and private sectors labor on Internet protocols with loyalty to a network functioning as a commons, not simply to their employers’ particular business models. An investment in IPv6 from enough corners is sensible if each corner decides to factor in the benefit to the overall ecosystem – not just itself.

If such capacious thinking comes through, the Internet won’t run out of space – and we can go back to procrastinating on its future.

Jonathan Zittrain is Professor of Law and Professor of Computer Science at Harvard University, where he co-founded its Berkman Center for Internet & Society. He is a member of the Board of Trustees of the Internet Society. Leslie Daigle is Chief Internet Technology Officer for the Internet Society.

Then in September the FCC announced that its open Internet proceeding was continuing, and yesterday the commission’s agenda for the December meeting suggests a vote in short order.

While the proposed rules are not yet publicly available, reports drawing from the chairman’s speech yesterday and other talk in DC have something modeled on Congressman Henry Waxman’s draft legislative proposal.  The central plank is that broadband Internet service providers — at least non-wireless ones — must let their subscribers get where they want to go on the Internet.  An ISP can’t decide, say, that you’re not to be allowed to get to facebook.com or that your service package doesn’t permit streaming video or Internet telephony, each of which could conceivably compete with other services offered by the ISP, such as regular cable television or phone service.

It’s good to have that off the table — it would be awful if ISP’s started to do such things, and the prospect isn’t as far-fetched as it might seem.  An ISP might want to charge Facebook or Vimeo or some other content source for the privilege of reaching the ISP’s subscribers, and the most direct way to do that is to threaten to halt the movement of bits from that source until a deal is reached.  (This might look something like the recurring fights between the likes of Cablevision and Fox over showing the World Series, though in that case it was the content provider holding out for payment from the cable company.  The risk that eager fans might not get to see baseball resulted in calls for FCC and Congressional intervention.)

With a net neutrality rule in place, if a Web site’s bits can’t be stopped in the middle just on the basis of where they came from, the ISP can’t threaten to come between the site and its users.  The market alone may not be able to deal with this in the absence of a net neutrality rule, both because there isn’t much competition for broadband at a given location and because it’s good for people to have assurances ahead of time that sites they are beginning a relationship with — as they put photos on Flickr or stow mail on Gmail — won’t suddenly be pulled out from under them, held ransom to extra payments either from the sites or from them.

The telcos and other ISPs seem reconciled to this prospect, at least for wired networks.  Now’s the time to lock that in, when such holdups are not central to their business models — not by source, at least — and even application blocking has not historically been a core goal.  (To be sure, five years ago at least one U.S. ISP appeared to be blocking an Internet telephony service, and it’s happened elsewhere on a larger scale around the world.)

The FCC rules are said to exempt wireless from this mandate, instead simply requiring transparency about what’s being blocked.  [Update: A look at the FCC chairman's speech suggests there may be more than a transparency requirement for wireless; it mentions a "basic no blocking rule" there too.  That would track the Waxman bill at p. 4 lines 1-7.] My reaction now is the same as it was when that division between wired and wireless was proposed as part of the Google/Verizon “framework” the two companies released in August.  Basically:

Some critics have said: who cares about network neutrality for regular broadband; wireless is the important part.

I’m not so sure.  If the framework had said the opposite — Verizon is OK with network neutrality for wireless but not for regular broadband — I can imagine many critics being just as upset, saying that wireless is still ancillary and that full broadband, with consumers’ wi-fi attached, is what really matters.  I guess they’d say that both matter.  I’m skeptical myself of rules that carve a difference between them — one point of the Internet is to be medium-agnostic — but I’m less inclined to find an evil plan lurking in the differentiation.  I can see that bandwidth management, at least, can be more crucial for wireless than wired at this stage in its development, and a Verizon might not feel comfortable having to justify any policies in those terms as an exception to a network neutrality rule.  I’m less confident that there’s robust competition in the wireless Internet space — there are still only a handful or providers, and switching among them is costly.

If a basic net neutrality mandate can be established for broadband — not only formally mandated by law (which includes FCC edict), but accepted as doable by the ISP’s — that’s good progress, and a metric against which the wireless ISPs will always be measured.  Any protestations that they have to discriminate for the network’s sake — or for the sake of a business model — will be increasingly belied by their wired counterparts’ experiences under no-longer-controversial net neutrality rules. [And if the rule for wireless goes beyond the weak tea of Google/Verizon -- no-blocking as well as transparency -- that much the better.]

Another exception built in is for reasonable network management.  Some critics have described this as a hole large enough to drive a truck through.  But there has to be some kind of exception.  The most obvious example is if a denial-of-service attack is in progress; there an ISP may refuse to carry bits precisely because of the content or purpose of the communication, discriminating by source, and no one would find that unacceptable.  Should “reasonable” be stretched too far that could lead to trouble — but the alternative is to try to write down a more detailed set of technical requirements that might become stale very quickly.  (I’m also no fan of Internet privacy legislation that makes specific reference, say, to “cookies.”)  This is exactly what a commission is for: to lay down principles, to stand by them, and then to adjudicate complaints under them with the benefit of transparency about what’s going on.  The ongoing Level 3/Comcast dispute is a great example of the utter rabbit hole of complexity — coupled with obscurity — surrounding some disputes over the movement of bits.  There’s no easy rule I can think of to anticipate it, much less resolve it, today.  (And on that example, I hope to be part of a Berkman Center podcast next week exploring the topic as a way of thinking through just how unusual and not-fully-realized the economics of Internet connectivity are.)

Finally there is the question — abstruse to anyone who isn’t a student of US telecom law — of whether the FCC should proceed under its “Title I” or “Title II” authority here.  You can read some of the details in a guest post by Kevin Werbach at the FCC blog here.  Essentially Title I is the weaker brew — so-called “ancillary authority” — and the FCC’s use of it to advance the first round of net neutrality rules is what got it into trouble in the federal court ruling mentioned at the beginning of this post.  Title II is stronger medicine, representing a claim to be able to more comprehensively regulate in the area, and ISPs have long rued the prospect of a reclassification of Internet services to Title II.  I think whatever works … works.  If this can happen with Title I, despite the D.C. Circuit ruling, great.  If not — Title II remains a possibility.  (Congressional action could clear all this up, of course, but it seems remote that Congress would wade into this once it reconvenes politically divided between House and Senate.)

I’ll read the proposed rules with interest when they’re released.  In the meantime, the Chairman’s speech shows the FCC knows what’s at stake and is moving within a field of complex interests and claims to assure an Internet that’s not cantonized, and that is open to new applications and content coming from anywhere, not just incumbents.

As part of a panel on net neutrality yesterday at Yale Law School with Susan Crawford, Dawn Nunziato, and Nick Bramble, I’ve drafted some general thoughts on why net neutrality matters.  That should be up on a Yale site next week — I’ll link to it or include a copy here once the essays are released.

It’s amazing to think that the sophistication and intensity of behavioral tracking technologies are primarily for the purpose of targeted advertising: giving dog food ads to dog owners, and homemade veggie burger ads to locavore vegans.  All that borderline Orwellian machinery to … offer us stuff we might actually have interest in purchasing.  What’s more, if we click on an ad at a favorite Web site, we’re sending money to that Web site.  The more relevant the ad, the more clicks we make — and the more money we cause to be sent in support of the site we like.  So I can see the worry of making opt-out so easy and permanent that people do it without another thought — and then injure the model that’s bringing them free content.

This feels different to me than a do-not-call list, which seems like an unambiguously good idea.  There I’m opting out of getting bothered by sales calls while I’m eating dinner or reading a book.  Those calls weren’t underwriting the cost of my food or going to the author of my book.  Do-not-track, on the other hand, doesn’t opt out of getting ads at all, it just opts out of having them targeted.  If do-not-call didn’t affect how many calls I got — just whether I was getting pitched stuff I was likely to want — I’m not sure I would care one way or the other.  I’d hang up on them all.

Nonetheless I support some sort of global do-not-track system.  That’s because there are currently no functioning limits on what gets collected and how it is used, and the rise of cookie consortia like Doubleclick means otherwise-unrelated Web sites can all quietly serve as collection points for data about us that gets fed to a central source.  If kept for long periods of time and not distilled, that data can prove as revealing about us as, say, our search engine histories.  If the data is distilled — say, I’m targeted into old-fashioned advertising categories like “empty nester” or “college wannabe” — I’m much less concerned about its collection in order to better hone my placement.

I’d couple opt-out with some helpful auditing tools.  Let people see what’s being collected about them and what impact it’s having.  For example, imagine a browser button that toggles between targeted and not-targeted, flipping back and forth between ads in the same space.  Users may quickly get a sense of what they prefer, and if they can be assured that they can wipe everything clean at any time after checking out what’s been gathered about them, they might be willing to let the data collection pay out a bit before deciding whether to pull the plug.

The real nightmare scenarios to avoid are not better placed dog food ads.  They have to do with varying price or service depending on undisclosed and long-collected behavior cues.  Imagine if your wait for a customer service agent — and level of flexibility in making a return on a regrettable product purchase — depended on your overall purchasing (and product return) history across multiple merchants.  Or if the price you were quoted (or coupons offered) at Amazon were a function of how quickly you click to purchase something at Etsy?  (Those with known itchy trigger fingers don’t get the discount, of course.)  Or if your life insurance rates were grounded not just in openly collected facts like a medical checkup, but unexplained variances in what Web sites you elected to visit (backpacked across Europe, did you?).

Bottom line: Web surfers get a bad deal right now; information is collected about them all over the place, and used in murky ways.  Let’s empower them to know what’s going on and opt out of practices they don’t like, both prospectively and retroactively.  Those options can be honed to eliminate abuses while still touting to people the products and services they want — and that fund the free content and services they already enjoy.