-- GerryMoody - 29 Feb 2008

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Professor Moglen continues to make the same "unpopular" argument.

Next week there is no class because he will be at a Google event at Stanford Law School. Because we are talking about governments and data mining, it is worth mentioning that Google created an invitation only conference at Stanford Law School. Secret invitation, secret reply — no information for months on end — and later, they proposed a two-day conference. The second day will be closed. The first day will have panels mediated by Google lawyers who will provide examples of stuff that governments have asked them to take down and the Google lawyers will ask those attending the conference for legal advice. One Google lawyer actually said something like, "we look forward to being clients." It is a pure red herring—Google’s relationship to foreign governments is of no interest. What can we say to them? Obey local law, take down Wikileaks, and there will still be a million ways to publish secret documents.

The real question that Google has not offered to discuss: how does Google relate to governments who want something disclosed to those governments? No discussion about this topic. Censorship — take-down notices - is not as important as secret disclosure about government snooping. Google, however, will pat themselves on the back for disclosure regarding the take-down requests.

Professor Moglen says he will continue beating a dead horse: he says that regarding the First Amendment's sentence "Congress shall make no law . . . abridging the freedom of speech, or of the press," it no longer makes sense to differentiate between speakers and owners of the press. Freedom of the press should belong to everyone because everyone owns a means of distribution. For many reasons, no matter in which medium of publication (print, recorded sound, video) the capital insensitivity rules have given away to low capital rules. The problems of today are now the problems of searching.

In fact, there are places where intellectual property system have collapsed: for instance, syndication. It was the last refuge of many a scoundrel.

In answer to Coverdale's question: There is new a line of annoying legal activity, which consists of people fighting over “deep linking,” where I give you a link to Ticketmaster site at a particular page, but not to www.ticketmaster.com where they put their adds. Ticketmaster only wants people to link to front page, where they expose eyeballs to advertisements. The only company pursuing this is Playboy. Good sense is slowly prevailing.

Really, the activity we thought of as syndicating (republishing in new publications) has become everyone’s work and everyone has agreed to allow this to happen because each publisher has a stake in the eyeball to advertisement activity. Even for traditional publishers—the problem is today search, so syndication becomes desirable because it helps in the search process of finding pages for eyeballs to look at it.

Point: so we have these changes in material circumstances. These changes make it harder to read the sentence “or of the press” no longer feasible. Today, Walter Cronkite is an entertainer. And there is no distinction between the press and everyone else.

Consequences: (1) things will happen to 1st Amendment doctrine based around implicit degree of equality. If "Congress shall make no law...abridging the freedom of speech," this must involves an equality principle. If we think of that as the speaking and publishing of people, hard to explain why Congress makes law that enable Murdoch to speak louder than Middleton.

Imagine no licensing schemes — if we can get rid of licensing schemes, then it is difficult to understand why, in a world where everyone can make and distribute video, Murdoch will have the right to distribute to 60 million, whereas we can put up a server and then see what happens if we try to act like a television station.

Professor Moglen thinks this is not a case like 4th Amendment where the traditional machinery of 18th century policy makers has simply broken—it is a case where 18th century policy maker and 21st century policy maker live in similar worlds. It was 20th century that raised capital requirements – see national printed newspapers – and we created relationships between media and state. The two have formed partnerships of corruption.

The 20th century regime depended, in essence, on the fact that it took big people to control the system. This, of course, is not compatible with First Amendment's Jeffersonian idea of agrarian farmers with small pamphelteers. This was the venal, but small-scale relationship between politics and press in 18th century.

Next step: what if there is not merely the recognition of a principle against disparate treatment of speakers and publishers, but governmental a responsibility for active equalization of the ability to speak. In this world, it is not permissible to just not pass laws abridging free speech. The government must spend resources in a way to make sure there is no unfair distribution. This is the argument for a free bandwidth society.

Free Bandwidth Society: the technical judgment underlying this argument is straight-forward. The cellphone system demonstrates that we can confidently expect to push universal service devices all the way down to the bottom levels of the socio-economic strata in the United States. We should be able to give this ability to the bottom of the global society. The cellphone dealers have street level stores where you can pay your cellphone bills in cash. Why? There are people without bank accounts who have cellphones. The cellphone is underneath the financing infrastructure, it’s underneath the money economy, and even the ability to have a house. Street sweepers in India have cellphones.

So, the problem with infrastructure is not hat it stops somewhere in socio-economic strata. Cellphones, however, assume a hierarchical distribution system consisting of centralized network. But, there is nothing to prevent a cellphone from being a wireless router in mesh. It could provide universal connection to mesh. Everyone routes packets for everyone else.

The last mile oligopoly becomes what the free telephone people say is the first mile. Local telecommunications and all forms of local IP activity (browsing, sending a voice circuit to a local place, or sending data to a local server) would cooperative mesh. Mesh networks work — in fact, the more people on network, the more productivity is increased. So, you have cheap devices and must densely pack them. The last thing we need is long distance interconnections. But long distance interconnections is, luckily, almost designed as a public utility. In fact, we have excess capacity in the US.

We have an immense system built for circuit switching, which lies 95% fallow after 5pm and it has more capacity than we would ever need. All of the carriers who built that equipment are bankrupt or have narrowly avoided bankruptcy by getting into the cellphone industry. The book value of all long-distance assets is between $3-4 billion dollars. So, if we just bought it for government we would have to spend less than we spend for two weeks in Iraq. If you take mesh plus public utility long-haul communications, you have completed the work of creating a telephonic system that provides free birthright bandwidth. The government must now only publicize the requirements for national networks. Anyone who wants to build and sell a device capable of attaching to the system will simply follow these requirements.

These devices can be featureless cubes, smart phones, hardware and even jewelry — there are various ways of attaching to the national network. The truth is that the telecommunication companies are fighting to charge for communication under a business model of non-innovative technology. They built like crazy in 1990s, the value dropped, and there is all this cheap infrastructure. Today, there is no way to charge a sophisticated person for long-distance international calls. Only the local telecom companies can set the price. No one can make money on long-distance. All of it is essentially free. It’s the last mile.

What would you have to do to get this done? You need an office of technology acceleration, need to publish designs to set standards. After that, you need decisions about what to do with long-haul telecoms. Will turn into: get the jewelry from Verizon, and they charge for all you can eat service. But would they spy on us?. Professor Moglen suggests we set up firewalls or even swap devices randomly to throw the snoops off.

The First Amendment requires us to do this. If we can do this technologically, is it unconstitutional to anything else? Can we establish an oligopoly and rule that their inequalities are necessary consequences of the technologies? Is it constitutional to have an FCC which claims to be able to control the system? Ask, why do we need these companies? Can we do better than oligopoly services? Is government allowed to maintain this system under the 1st Amendment if it doesn’t have to technologically?

Now, this unifies the public wi-fi phenomenon on the one hand and the FCC and the bloggers on the other.

Public Wi-Fi debates are questions about government with an intent to equalize. Governments think about competing with T-Mobile for crappy 802.11 servers, which is the name of a standard for radio engineering consisting of 3.5 different rules for how wireless works in packet transmission.

Assuming a structure in which governments find themselves saying we want everyone to be able to use internet service, they will find themselves fighting with carriers who say they are competing....or municipality will go it alone and finds out it does not know how to do it. Does not use self-assembly allow for the first-mile Those who have 802.11 gear are unlikely to offer free service to your neighbors. Five years ago, we were more likely to do that. Telecoms worked hard to convince us to shut down our routers — we were told they had to be secured. The telecoms explained that, if wireless routers were open, your machine was open and might get in trouble for child pornography. Should we just give all people impunity here? After all, the oligopolists get it already.

Those of us who still give free wireless to our neighbors are modeling the mesh that everyone should have.

All of this is meant to be a prelude to what is happening to the net in politics. The idea of a birthright bandwidth system, in which everyone has a right as speaker, has implications for politics. Is my use of bandwidth and the use to support a political candidate an expenditure subject to control in campaign financing system? Two answers: obviously yes and obviously no.

Obviously yes, because if Murdoch ran John McCain? commercials all day, that would be a contribution to McCain? campaign. If he decided to make his own commercials for the campaign, those commercials would be independent expenditures not subject to control. But, if he uses the words "vote for Joe," is the blogger at home making the vote for Joe website? If he is not subject to contribution limitations, the floodgates are open to Murdoch. If he is, where has his free speech gone to?

Legislation: this is a birthright bandwidth problem. We already saw the problem — we think we have to control the nature of media relations to politics, but the minute we do, we find ourselves of trenching upon First Amendment rights. Those who want to get money out of politics, find themselves inconvenienced and those who want to limit reach of Murdoch’s arm find themselves inconvenienced unless they are willing to give up Dailykos.

Unions have been regarded as powerful in American politics because Unions ran phone trees. That was expensive to do in 20th century technical terms if you are not a labor union with good organization. However, in a world of voice over IP we can run a phone tree effectively and at low cost. Phone calls don’t cost much — are we going to start telling people making telephone trees have to be accountable for campaign contributions — if not, why not?

Two more propositions:

First proposition: Lawrence Lessig considered running for Congress. There was a moment where the net made a candidacy, but it took it apart again. Lessig thinks about running for Congress because he is famous in the internet world and they responded nicely. The average “I am thinking about running” statement does notget reported in the New York Times. Wired was on it within hours. But, the real point is that, often, the Congressman’s aides have it all lined up. He figured that out in a week--like Tip said, all politics is local.

So, they took it apart — and it was covered in the New York Times. Professor Moglen thinks that, int he very least, he got good press for Change Congress. It’s also an indication of how candidacies and campaigning have a different feel in age of net. Is it possible for an internet celebrity to run for office? Maybe.

Aside on Ralph Nader: One of the problems with Nader is that he needs to get to know the net and use it as part of his movement. There should be a Nader organization talking about privacy and the net. It’s a personal blind spot with him. So, what kind of political candidate has Nader been? He hasn't even used the net well for fund raising. In fact, Jesse Ventura made better use of the net than Nader.

Second proposition: last semester we talked about the consequences of campaigns on politics. What happens when campaigns are assembling information on the private markets in order to know the voters? Think stimulus checks — the party in power will know everything about those checks. They will sign them over to someone, turn them into cash, and the government will know this. Obama will not know. McCain? will know if this Treasury Department tells him. May they? If they do, must they tell Obama? How many forms of government database are capable of affecting the campaign? What kinds of use may officeholders make of federal data?

When a Congressman asks for legal census data for policy-making purposes, how do we prevent it from being used for political purposes? If we can, will we require it to be equally available to others? What is the relationship between government initiatives to create informational transparency and electable power. What can the president do with government data to win the next election. Do we have rules about it? How do we reach it? What do we do about it?

Is it possible that the one person who shouldn’t know his district is the congressman? But if the resources are there to help him get to know his district, which also helps him get reelected, does that information become part of an incumbency protection system? Campaigning data — how do you find the people you need to find to run a campaign if you’re the congressmen or challenger? Personally identifiable information might be secrecy restricted to Congresspeople. Even without personally identifiable data, there is a lot of government data that might be used to change how people marginally vote. And that might be the difference for an election.

All of the problems we’ve discussed with respect to private market data are worse with government data. It is one thing for the FEC to say bloggers should not make contributions to campaign. The bigger problem is when the officeholder is better at using government data. He can get them to do more data massaging for them because he is congressmen. In a close district that can be the difference.

What are the 1st Amendment questions with regard to access? See Pataki — part of his mechanism to be reelected was to be pro-environment. It involved having breast cancer readings on Long Island. If I said Alfonse D'Amato was picking info in EPA to placate NY State voters, everyone would say — what’s new? But that preferential access to environmental data is more closely targeted today. Should everyone have access? Once politics wants access to data, should everyone have access to that data?