Marvin Ammori

FTC has been attracting some mad brilliant talent: David Vladeck, Ed Felten, and now Tim Wu.

I sometimes post some of my recent press and other stuff, for the few people who read my blog (mom, dad, my research assistants).

In the last few weeks, I was quoted in the New York Times about Keith Olbermann, in a story in section A of the Sunday Times. This resulted in a lot emails from strangers (the least friendly of which I read to my class). Also, on this issue, I was quoted in the Hollywood Reporter and The Hill.

I spoke at the State of the Net Conference about online video, and I was quoted in the National Journal and The Hill. Also quoted in PC World (somewhat misidentified by my previous job) on net neutrality stuff.

I wrote an analysis of Obama tech initiatives, which was front-paged on the Huffington Post, pointing out some of the State Department’s successes so far, and the challenges ahead of them. Was quoted briefly in Bloomberg Businessweek on the same issue.

I was interviewed on the Randi Rhodes show, a nationally syndicated radio show, on January 26.

Beyond that, the good folks at UCLA law school are organizing their annual entertainment law symposium, and are including my recent article on online TV in the program, republishing 700 copies of the article.

Otherwise, mainly working on a law review article and teaching. But will soon guest-blog for a month with the great folks over at Concurring Opinions.

An op-ed by William Gibson, who coined the term cyberspace, on “what Stuxnet means for the future of computer viruses.”

Obama nominated Don Verrilli, White House deputy counsel, to serve as Solicitor General.

He has handled several important free speech, telecom, and copyright cases. I didn’t agree with his clients on every case, but he’s an excellent lawyer and I’m a huge fan (and former student). My earlier, longer, post about him is here.

As expected, Verizon has appealed he FCC’s timid net neutrality rules, which rest on a flimsy jurisdictional theory.

I recommend this article, for anyone who wants better to understand some basics of Internet transmission technology. Have you wondered the difference between DSL, cable modem service, fiber, and wireless? Dale Hatfield explains it all.

Based on these technological realities, he also makes an interesting policy argument in the last paragraph: while government policy is targeting the clearing of spectrum, it should also encourage increased build-out of fiber lines closer and closer to residential homes. This build-out is important for increasing capacity for wireline networks, but also for  wireless networks, complimenting our spectrum policies.

I decided to write up some thoughts on Wikileaks.

Many of our nation’s landmark free speech decisions are not about heroes–several are about flag-burners, racists, Klansmen, and those with political views outside the mainstream. And yet we measure our commitment to freedom of speech, in part, by our willingness to protect even their rights despite disagreement with what they say, and why they say it.

The story of Wikileaks publishing U.S. diplomatic cables has become the story of Julian Assange: is he a hero or villain, a high-tech terrorist or enemy combatant? Should the U.S., which may have already empanelled a grand jury in Virginia, prosecute him as a criminal under the Espionage Act of 1917 or under the computer fraud and abuse act?

Though I have spent years advocating for Internet freedom, I don’t think Assange is a hero for leaking these diplomatic cables.  According to plausible reports, the leaks have harmed U.S. interests, made the work of U.S. diplomats more difficult, likely endangered lives of allies, and may have set back democracy in Zimbabwe and perhaps elsewhere.  Even some of Assange’s friends at Wikileaks are doubting Assange’s heroism: a few left him to launch a rival site and to write a tell-all book.  Whatever the harms of secrecy and over-classification, Assange’s actions have caused tremendous damage.  No wonder polls show nearly 60% of Americans believe the U.S. should arrest Assange and charge him with a crime.

My initial reaction was similar.  I thought that if a case could be made against Assange, one should be made.

But, as time passed, the political and legal downsides of prosecution came into clearer focus, and I am rethinking that initial reaction.  Despite still believing Assange’s actions have been harmful, I have now come to the opposite conclusion—not for the benefit of Assange, but for the benefit of Americans and of the United States.

Prosecuting Assange could do more harm than good for our freedom of the press and would inflict further harm on diplomatic effectiveness.  Despite the appeal of prosecuting Assange, it is not worth the cost.  We will not get the cables back.  We will not deter aspiring Wikileakers, as both our allies and our enemies know.  We will, as Dean Geoffrey Stone has best articulated, likely sacrifice established principles of freedom of the press in doing so.

Here are some thoughts on why we should think twice about prosecuting Assange, categorized by harms to the U.S.’s freedom of the press and then harms to America’s diplomatic effectiveness. And, in advance, I thank the many scholars, policy experts, and friends who took the time to give me thoughts on earlier drafts of this post.

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Keira Poellet and I published an article in the SAIS Review on the relationship between cybersecurity and network neutrality.

Major Poellet, my brilliant co-author, is a legal advisor to the U.S. Cyber Command. She is also a former student, my thesis advisee, and a graduate of the august program we have here at Nebraska Law, in Space & Telecom Law.

Stanford Law professor Barbara van Schewick has written a post detailing some of the improvements to the FCC Chairman’s/AT&T’s net neutrality proposal negotiated by FCC Commissioners Copps and Clyburn. Commissioners Copps and Clyburn negotiated for several weeks to improve the order so that it was not a collection of safe harbors and loop holes for the benefit of AT&T, but instead the strongest rule to which the Chairman would agree, one that could provide some protections to citizens, speakers, innovators, and everyone else using the Internet.

Prof. van Schewick’s post is called “The FCC’s Open Internet Rules – Stronger than You Think.” She explains that, “Commissioners Copps and Clyburn did not get the exact protections for users and innovators they had asked for,” but that “they managed to improve the chairman’s original proposal quite a bit.”

The debate over an open Internet will continue. But Commissioners Clyburn and Copps deserve considerable thanks in the important role they played in this latest chapter.

Here are some of the points detailed in Prof. van Schewick’s post:

In particular, the text of the [net neutrality] order

•  sets out important principles that will guide the commission’s interpretation of the non-discrimination rule and the reasonable network management exception;

•  explicitly bans network providers from charging application and content providers for access to the network providers’ Internet service customers;

•  stops just short of an explicit ban on charging application and content providers for prioritized or otherwise enhanced access to these customers (this second practice is often called “paid prioritization”); and

•  keeps alive the threat of regulation with respect to the mobile Internet.