Marvin Ammori

We all know and love Mark Tushnet. Extraordinarily influential scholar. Towering intellect. Amazing teacher. Balkinization blogger. And an extremely nice and generous person.

So I wanted you to know he recently sat for an interview with the law students of Nebraska’s American Constitution Society, and the podcast is available here. It’s a great interview, especially relevant for law students and scholars, but also for a general audience.

Professor Tushnet discusses how to interpret the constitution, the role of judicial review in explicating and enforcing constitutions, the interaction between politics and the judiciary, his personal and professional thoughts on Elena Kagan, the importance recent president have placed on judicial appointments, and whether judicial experience matters for a Supreme Court nominee.

The national ACS organization also posts its own video and audio podcasts here. Discussions of UNL’s podcast series are available here and here.

Google has issued something like a denial, claiming that the New York Times (alone) misreported a story found in dozens of news reports: that Google and Verizon had hammered out a deal on network neutrality.

“The New York Times is quite simply wrong,” a Google spokeswoman said in an e-mail. “We have not had any conversations with Verizon about paying for carriage of Google traffic. …”

Verizon also denied it.

“… As we said in our earlier FCC filing, our goal is an Internet policy framework … To suggest this is a business arrangement between our companies is entirely incorrect.”

Ah… no commercial or business arrangement, just a policy framework.

So it’s like Walmart and Phillip Morris (now Atria) cutting a deal and then saying:

“No no, we have not made a deal to sell cigarettes to 9 years olds. All we’ve done is agree to try to rewrite the laws to ensure we can sell cigarettes to 9 year olds. All assertions to the contrary–in the New York Times especially– are shockingly, hugely, super, super, super false.”

Plus, that is exactly what the Times said: an agreement on a policy framework.  The Times calls the bluff: ““Google’s comment about The New York Times story refutes something The Times story didn’t say.”

Yesterday, Bloomberg reported that Verizon and Google have made a deal on network neutrality policy they’d like to see in America. That deal (surprise!) is Google can get special privileges on Verizon’s network. The Huffington Post splash page mocks Google’s slogan: “Don’t Be Evil” with an asterisk. Asterisk: “unless it’s profitable.” Josh Silver called it the end of the Internet as we know it.

I want to explain why I think this deal matters, and why it doesn’t. And it might not be for the reasons you think.

The Deal

Net neutrality is simply a proposed rule forbidding Verizon, AT&T, Comcast and other ISPs from engaging in special deals to block or favor certain content on the Internet; it’s to keep the Internet an open general purpose network equally accessed by all innovators, speakers, and businesses. Like it is today. The carriers want to turn it into a controlled medium.

Among other things, according to the New York Times, the deal essentially says that Verizon will be able to cut special deals with any company–like, um, one called Google–to prioritize that company’s traffic, giving that company an advantage online over any other content online. Google decided it could make more money getting special–or even exclusive–treatment on the Verizon network because few of their competitors could afford to get the same treatment.

(Note: Google is denying the Times report through a Tweet. I’ll spell out the implications assuming the Times is right.)

Business Examples

So, as a business matter, let’s say you use a Verizon mobile wireless card (an EVDO card) for your laptop (in addition to having a a Verizon mobile computer).

Google’s products can get priority on your laptop based on commercial deals.

• Google’s Youtube may get Verizon-special treatment denied any competing video site, from Blip.tv to Netflix. (This is the example given by the New York Times today.)
• Google’s Orkut, a social network once known only for being big in Brazil, gets better treatment than Facebook. 
• Google’s Blogger–a blogging technology–gets the Verizon-special preference denied WordPress.
• Google’s Chrome browser happens to work a lot better than Internet Explorer and Mozilla Firefox.
• Google’s GChat video gets special treatment compared to video phone services like Video Skype.
• Google’s Gmail, an email service, gets better treatment than Hotmail or Yahoo!
• Google Books gets special treatment denied any competitors.
• Google’s domain name service gets preferred treatment denied competitors like OpenDNS, which could even be blocked under the deal.
• Google’s advertising network can get Verizon network priorities.
• Google’s Froogle site gets special treatment denied everything from Groupon to Ebay to all those random “deal of the day” sites.
• Google Voice could get special treatment compared with those other online phone services.
• Google’s Picasa could get special treatment over Flikr, for photo albums.
• Google’s Buzz could somehow get special treatment over Twitter.
• Even Google Wave could get priority… Really.

So, as a business matter, the deal is important.  And, yes, it may be the end of the Internet as we know it, if the FCC blessed such deals. The deal yesterday announces that Verizon and Google open the door to all of this.

Lobbying Not Policy

This deal matters for lobbying. Essentially the business partners have agreed on how their DC lobbyists will approach a certain important issue on which they once disagreed. In some ways, it is like AIG and Goldman aligning their lobbying. Or maybe a few large fisheries joining forces with BP’s lobbyists. Or a medical society joining with the insurance companies.

Hundreds of organizations have fought for net neutrality, and though Google was honestly one of my favorite allies (a lot of talented and nice people work in the DC shop), they were only one player among very many.

And Google and Verizon do not decide how to regulate themselves. On paper, at least (and that paper is the Constitution), we have a government of the people. We have an agency, the Federal Communications Commission, charged with protecting the public interest and that has declared a policy of ensuring an open Internet for all consumers and innovators, for all businesses from Expedia to Mint.com, for all speakers from bloggers to Twitter-celebrities to emailing teens and grandmas.

How this Deal Matters for Policy

This deal only proves that the biggest corporations have incentives to disadvantage innovators–which will harm our economic growth, job creation, and global competitiveness.  It only proves that the threat to network neutrality in the market is real.  It only proves that network neutrality rules are necessary. And it only proves that the FCC’s negotiation-talks, which I discussed yesterday, receive little respect from the corporations engaged in them (maybe for good reason).

The deal does not indicate that US government policy has been decided. Especially when the Google-Verizon deal contradicts the policy position of a few people whom our Constitutional structure does imbue with authority over government-policy: President Obama (enjoy this speech at Google headquarters where he promised to take a backseat to no one on net neutrality) and the FCC Chair.  Because those two strongly support network neutrality, you’d expect policy to serve all Americans. Unless I should put an asterisk after their names as well.

A lot of people are discussing the FCC’s meetings on net neutrality. Many are discussing the process–“secret,” “backdoor,” “corporate behemoths,” or merely “stakeholder” discussions, depending on your point of view (from outside the room, or from inside). Others, noting the bizarreness of the whole process, are providing interesting psychoanalysis of the Chairman and his Chief of Staff. Though some have discussed substance, I thought it might be helpful to lay out the likely points of contention in these discussions and provide a guide for understanding, in advance, winners and losers in the negotiation.

The details probably mean more to me than most people, as I’m a telecom law professor who has spent several years litigating network neutrality issues.  (I am probably best known for being the lead lawyer on the net neutrality case against Comcast when Comcast blocked peer-to-peer technologies, and for arguing the appeal on behalf of groups supporting the FCC, working with many in the DC and academic community.) Assuming (for your sake) that you have not spent years steeping your mind in the details of net neutrality, this guide may help.

Why the details of a net neutrality deal will be confusing to the average person.

The details of the deal–like many laws and agency rules–will seem almost deliberately hard to understand. These details will be technical legal jargon penned by lobbyists–and a Chairman–who may not want the deal to be easily understood by the public. Insiders are speculating that the Chairman will endorse a hollow deal (if he doesn’t run out the clock), and then try to sell the deal as a grand victory for consumers. But that’s like speculating the sun will rise in the East. That is a standard political move; a politician names something the “Healthy Forest Initiative” or the “Clear Skies Initiative” or the “Open Internet Rule” whether or not the real legal details further your promised goal.

Whether or not the Chairman has a Hollywood mentality, he will claim any deal on his watch is a huge victory for the public interest. The Chairman is even rumored to be courting any nonprofit public interest group to to provide political cover for his deal, even if that nonprofit is significantly funded by interested corporations and never even joined the main pro-net-neutrality coalitions, SavetheInternet.com and the Open Internet Coalition, which have existed since 2006. In addition, of course, he has placed in the room favoring net neutrality not the leading nonprofit group long fighting for net neutrality (Free Press, who leads the SavetheInternet.com coalition and led the Comcast case, where I once worked), but Google, which has a commercial relationship with Verizon Wireless and is therefore likely willing to (literally) “sell out” the public on some issues of wireless net neutrality.

For those of you left who believe that a politician would never lie to you, keep in mind than many believe this FCC Chairman, Julius Genachowski, has followed the well-worn politician strategy–use legalistic details to cave to industry but fool the public–when he buckled to AT&T pressure and issued his “compromise,” loophole-riddled net neutrality proposal last October and then more recently, when he was leaning towards building net neutrality on hollow jurisdiction on jurisdiction before the Democratic base revolted and Genachowski announced the Third Way on Title II. Meanwhile, the same Chairman has repeatedly proclaimed his support for meaningful net neutrality, including this week through his press secretary, and serves under a President who promised to take a back seat to no one on the issue .

It is only well-positioned lobbyists that will know, from the details, if the Chairman is telling the truth when proclaiming a consumer victory.

But you should also know, even if you cannot afford a white shoe lobbyist.

The carriers’ bottom line in any negotiation: loopholes.

Having spent many years dealing with carriers, and reading about the negotiations, it’s clear to me that the carriers’ bottom line has not changed in five years and is very simple: they want a loophole. Of course.

Better yet, they want several loopholes, and they want to add a way to make enforcement of the deal impossible–essentially to build the loopholes on a trapdoor.

They only need one loophole, or one trapdoor, to gut the rule. So let’s say Chairman Genachowski says, in other words, “The carriers wanted 6 loopholes, but they only got one! What a great compromise.” That is not a “compromise” but a loss. It is not net neutrality but would instead authorize net neutrality violations through a loophole. The carriers need only one.

The pro-net-neutrality position is to stamp out the loopholes and ensure an open Internet. I noticed that another professor, Barbara van Schewick of Stanford, has provided a detailed analysis of some pro-net neutrality details in her recent ex parte letter. (And her recent book.) Derek Turner has done the same, to a lesser extent so far.

Eliminating the Open Internet With a Legal Dictionary

Net neutrality proponents want to prohibit ISPs like Verizon, Comcast, and AT&T from (1) blocking or discriminating for or against traffic (2) on the Internet, (3) whether consumers access the Internet through cable and DSL or wireless connections, (4) unless it is reasonable network management to ensure the operation of a nondiscriminatory network. And these advocates want (T1) a legal process that even start-ups could use, with clear rules and expedited procedures built on (T2) solid jurisdictional footing.

The carriers only need one loophole (1-4: discrimination, specialized non-Internet services, wireless, reasonable network management) or one trapdoor (T1-T2: ineffective process or lack of jurisdiction) to win. You can bet they are angling for all of them, and may “concede” one of them, to reach the goal they have spent millions trying to reach: no net neutrality. They have not suddenly found religion.

Loopholes.

1. Blocking or discriminating. The carriers may concede “no blocking,” a minor limitation when you can degrade or discriminate, and would want to define unlawful discrimination very narrowly, enabling them to engage in all the discrimination they seek. First, they want to define discriminatory to include only antitrust violations or “harm to the consumer” likely amounting to antitrust harm.  But, because antitrust law does not take into account democratic speech concerns and has extremely weak standards imposed by conservative courts, antitrust enforcement will not ensure an open Internet. Net neutrality advocates have therefore always argued against mere antitrust rules.  Second, they want the right to engage in what they call “reasonable” discrimination, and claim that charging websites for priority (aka “paid priority“) is not discrimination. For the past 5 years, net neutrality opponents opposed paid priority (using analogies to a fast lane and a toll booth) and the President has twice affirmed his opposition to paid priority. Net neutrality proponents have argued that discrimination should be prohibited, and that paid priority is an easy case that can be prohibited in advance.
2. Managed Services. As net neutrality is meant to keep “the Internet” open and free, the carriers have proposed the idea of new “non-Internet” services called specialized or managed services that enable them to end-run around net neutrality rules without oversight. It is unclear to me what the carriers believe these services to be, as different carriers say different things at different times. The whole point of this “specialized services” bucket is for carriers to take capacity on the same exact pipe that provides Internet access and allocate that capacity to pay-services where they can cut paid priority deals. This is an obvious, potential, end-run around the net neutrality rule, where wealthy content-providers (and those content-providers owned by the carriers themselves) can get special access to consumers that Internet start-ups and the rest of us would lack. Also, carriers will likely have incentives to allocate more and more capacity to these services at the expense of investing in Internet capacity–even though American networks have capacity and speeds trailing far far behind global leaders. Expect carriers to argue that the FCC currently lacks all authority over these new specialized services and that few or no rules should apply to the services. At best, expect carriers to argue that general antitrust law should apply, enforceable through the Department of Justice and Federal Trade Commission. Carriers have long argued this point. As discussed above, antitrust enforcement simply cannot ensure an open Internet, and net neutrality advocates have long opposed the notion.
3. Wireless. The carriers want to exempt wireless.  Even though the National Broadband Plan claims wireless is the future of broadband (side-stepping an inconvenient policy issue), and though the Chairman is seeking 500 MHz of spectrum for broadband and previously proposed applying the same net neutrality policy to wireless connections, and though AT&T is reportedly asking to discriminate against Youtube, you can expect the carriers to argue no rules should apply to wireless. They always make this argument, and–in light of the Chairman’s support of more spectrum for wireless broadband–you would think the argument should fall on deaf ears. The carriers claim that disclosure is enough; the public should have the right to know which applications and sites a carrier is blocking. Net neutrality advocates have always argued mere disclosure is not enough because the wireless market is not competitive enough, because of switching costs, and because the market and disclosure will not be effective to ensure wireless access to an open Internet.
4. Reasonable network management. In the Free Press-Comcast case before the FCC, Comcast argued that it could discriminate against BitTorrent so long as it could declare an activity to be “reasonable network management.” So if “discrimination” is narrowly defined, the carriers find a loophole in expansively defining the idea of “reasonable network management.” In that case, Free Press and others argued that reasonable network management includes techniques to ensure nondiscriminatory access to legal content, such as targeted security measures and acute, very temporary congestion management. In issuing the Comcast Order, the Republican Chairman proposed a strict test, requiring carefully tailored responses to critically important problems, but Genachowski’s net neutrality proposal in October did AT&T a favor and eliminated that strict test (issued by a Republican Chairman and two Democratic Commissioners), replacing it with nothing. If the FCC’s current grand deal leaves reasonable network management undefined, then it would provide no guidance to start-ups who’d be forced to litigate against AT&T’s super lawyers, before an FCC well-known to AT&T, over whether a particular practice fits within a nebulous concept of “reasonable.” Not good odds. An undefined exemption like this, built on the word “reasonable,” gives the carriers considerable leverage to engage in discrimination with impunity. Net neutrality proponents seek a very narrow standard for reasonable network management, as well as specific guidance in the law on what is clearly and what is clearly not reasonable.

Trapdoors.

1. Legal process. Start-ups need quick, clear legal procedures, as do their venture investors. So do underfinanced consumer groups. Meanwhile, carriers benefit from expensive, drawn out affairs, where they can bleed start-ups to death through legal fees and lobbyists. If a process does not have specific prohibitions but rather has completely vague standards and  rebuttable “presumptions,” start-ups are disadvantaged.  We discussed vague standards like “reasonable” above, which provide start-ups little guidance and complex legal cases. As for “presumptions,” imagine a “presumption” against paid priority. A carrier will simply try to rebut the presumption, hiring any economist-for-sale to argue that a particular paid priority deal would be good for consumers. The start-up will then have to sink huge amounts of money in economists and lawyers to respond to the carriers’ rebuttal. That financial barrier disadvantages the small innovators that provide disruptive innovations benefiting all of us. (See also van Schewick’s analysis.)
2. Jurisdiction. We need clear jurisdiction at the FCC to enforce any deal reached. But I have heard some pretty bizarre ways to enforce this deal, likely proposed by the carriers and entertained by the Chairman. Some include basing the deal in Title I of the Act (which means, after the Comcast decision, deliberately  building a house on sand, knowing it will collapse). Some suggest coupling this Title I idea with requesting an amicus brief from industry groups. (The thought of a regulator trading away the President’s core technology initiative for an industry amicus brief is something not even Hollywood could think of; I can’t believe this is seriously being considered.) Others suggest some consent decree that the FCC could, or could not, enforce, as though self-regulation could work, or the FCC could bind non-parties to the consent decree.  Another proposal includes packaging the deal for Congress. Yes, that same Congress that can’t pass anything controversial, and the one where carriers could easily stall a deal with their political might and campaign contributions. Those favoring net neutrality, which supposedly includes the Chairman, would not support any of these too-clever-by-half Rube Goldberg ideas, which appear designed to fail. Rather, a net neutrality supporter would favor a prompt Title II reclassification before the midterms, and adopt a net neutrality rule on the firmest footing of Title II. At the same time, for Congress’s benefit, the Chairman can pursue a parallel strategy encouraging Congress to codify a deal. Why place all your eggs in the Congress basket, when the Chairman has three votes at the FCC?

Which brings us back to the question of process: why is the Chairman even asking the companies he is supposed to regulate in the public interest … for their permission to regulate them?

On substance, this is the cheat sheet on technical details.  Hope it helps.

Today, Republican Commissioner Robert McDowell published an op-ed in the Wall Street Journal that would probably land any law student an F in telecom law class, if not a trip to the school psychologist.  McDowell has a long history of factually challenged op-eds on Internet deployment and net neutrality, as well as using Glenn-Beck-style rhetoric comparing everything to the fairness doctrine. He’ll just throw anything at a wall and hope it sticks.

Today’s op-ed makes some garbled, bizarre claims about the UN betraying a fundamental misunderstanding of law. His op-ed claims that (1) back in the late 1990s, nations in the International Telecommunications Union (a UN agency) decided “not to regulate” the Internet but later the ITU tried to assert jurisdiction over the Internet at two conferences (known as World Summits on the Information Society); that (2) the ITU might assert jurisdiction now as a result of the US FCC pursuing network neutrality (which requires a regulatory reclassification); that (3) the US lacks a “veto” at the ITU, making all this a big problem, and therefore that (4) US net neutrality efforts would undermine Secretary of State Clinton’s global Internet Freedom initiatives.

All of these seem dishonestly inaccurate or Ted-Stevens dump truck crazy.

I’ll begin with the most obvious–the US “veto” at the ITU. The US doesn’t need a veto. There’s no enforcement mechanism for the ITU. It’s pretty much a standard-setting and discussion body. Countries could sign a protocol making them subject to arbitration on ITU matters–but the US has refused to sign on, meaning we’re not subject to it. There is no enforcement. In any ITU treaty the US does sign, however, the US can even take a “reservation” to any part of the treaty, so that part of the treaty would not apply to us. (We do this for global spectrum coordination, as do other nations.) Finally, the US has bargaining power–the reason the ITU didn’t impose rules in the late 1990s or assert multilateral jurisdiction at WSIS was the US opposed. We have “effective” vetoes, if we needed them.

—-So, question 1: Could you clarify why you think our lack of a “veto” is so important? And do you also fear the Easter Bunny will regulate the Internet?

Also, it’s unclear what McDowell thinks the ITU will do. The ITU has a role for the Internet–it helps set standards and helps coordinate spectrum for broadband services. Nothing scary there. But he suggests the ITU will sanction global censorship based on “the public interest” (the touchstone of the US Communications Act, as though the US is some censorial dictatorial nation depicted by Glenn Beck). But, if he is right, several countries already censor–Iran, North Korea, Syria, Thailand, Afghanistan, and Venezuela.

—-Question 2: Commissioner, could you name the oppressive nations that, like you, do not understand the ITU’s limited role and are therefore patiently waiting for the ITU to greenlight censorship? How many are asking ITU permission before censoring their citizens’ Internet access? Even a short list would be appreciated.

Most of our competitive nations–where citizens enjoy freedoms–already classify their broadband providers under the same rules that apply to the phone network.

—-Question 3: Have they all–from France to Sweden–engaged in censorship?

McDowell’s story of ITU non-regulation is odd; it cobbles together things that are unrelated, while pretending they are. In the late 1990s, the ITU decided not to impose, on Internet backbone providers, the same accounting rate structure used by long distance phone companies when they pay one another for international calls. (This structure is largely lifted even for these calls today–despite ITU “jurisdiction”–because of US leadership.)  The later fight at WSIS involved the Domain Name System, primarily country codes (like .us, .ca, and .cn but not .com), and the control the US government has over the Internet root nameservers–something that is unrelated both to settlement rates and to the FCC reclassification and open Internet policies.  The open Internet policies aim neither to adopt the accounting rates nor to shift control of DNS.

—-Question 4: How are these related at all, except that in your mind they’re “regulation”?

In fact, let me try to make this concrete, as Schrodinger would.

Open Internet policies do not encourage censorship; they forbid both governmental and corporate censorship.

McDowell’s argument is much like saying… in the late 1990s, we decided not to price-regulate the sale of cats around the world (a fact); if the US imposes anti-cruelty laws for the benefit of cats, having debated and considered the issue for several years, it would therefore “impose regulation” on cats, and all regulation is just another word for the fairness doctrine. Once we regulate cats, the rest of the world will feel free to regulate cats.  They will pass pro-cruelty laws on them and torture them.

—-Question 5: Commissioner McDowell, why do you hate cats?

Finally, he suggests US rules to preserve an open Internet will undermine the State Department’s efforts for global Internet freedom.  I doubt senior State Department officials believe that. They have suggested that endorsing corporate censorship at home–by not adopting net neutrality rules–would embolden censors abroad.

—-Question 6: Commissioner, have you spoken to Secretary Clinton or her top advisors on the issue, and does the Secretary agree with you? When else are you authorized to speak for the Secretary?

Finally, McDowell’s reference to a “four-decade bipartisan and international consensus to insulate computer-oriented communications from phone regulation” is hogwash. Until 2005, in the US, DSL networks were subject to the rules traditionally applying to networks, here and abroad; before 2002, so were some cable networks, based on judicial opinions. By “reclassifying” broadband communications, we are merely going back to that logical statutory framework.

A long, much discussed New York Times Magazine article profiles Alec Ross, Jared Cohen, and others at the State Department regarding their innovative strategies to use new technologies to serve the nation’s diplomatic goals, and to improve democracy around the world.  The article, called Digital Diplomacy, quotes Alec as calling Secretary of State Hilary Clinton the “godmother” of digital diplomacy.  She and Alec call digital diplomacy “21st Century Statecraft.”

Alec is a friend of the Space & Telecom Program at the University of Nebraska.  He spoke at our last conference in DC, giving a brilliant and inspiring opening keynote that my students still refer to with some awe.

In two months, UNL’s Space & Telecom Program will present its Third Annual DC Conference, with the first day focused more on cyber/telecom issues and the second day focused on space issues.  This year, the cyber panels and keynotes will focus on emerging cybersecurity issues; the space panels and keynotes will focus on the recently issued national space policy.

Both of the first two conferences were great events, sparking thought-providing conversations and bringing together top decision-makers and thinkers.  As I focus on cyber/telecom aspects of UNL’s program, I am posting here the agendas for the cyber days from the first two conferences.

The first conference, shortly after President Obama’s election, evaluated the previous eight years of telecom policy and looked forward to the next four.  Speakers included a then-FCC Commissioner, a former FCC Chairman, a senior UK spectrum official, AT&T’s head lobbyist, and others. The conference generated news in Reuters, the Washington Post (print and blog), and CNet, PCWorld, Internet News, Media Post, Ars Technica, and Huffington Post.

The second conference focused on international and trans-Atlantic issues.  Speakers included the State Department’s top official on cyberdiplomacy, the Director of the FTC’s Consumer Protection Bureau, the head of NTIA’s policy shop, a former Estonian defense minister, and the Deputy U.S. Chief Technology Officer, a legal advisor to the 24th Air Force, among others.  The conference generated several stories in the Washington Post and The Hill.

The full agendas are after the flip.

First Conference

Looking Back at the Past Eight Years, Looking Toward the Next Four

November 13, 2008

8: AM Welcome Matt Schaefer, Director, UNL Space & Telecom Law Program

8:10 AM  Morning Keynote FCC Commissioner Jonathan Adelstein

9:00AM: Morning Keynote Discussion

• Richard Wiley, Partner, Wiley Rein, former Chairman, FCC
• James Cicconi, Senior Executive Vice President-External and Legislative Affairs, AT&T
• Ben Scott, Policy Director, Free Press
• moderated by Cecilia Kang, Washington Post

10:00-11:00AM Wireless Issues

• Fred Campbell, President, Wireless Communications Association & former Wireless Bureau Chief, FCC
• William Webb, Head, Ofcom Research & Development (U.K.)
• Terri Natoli, Vice-President, Regulatory Affairs, Clearwire

11:20-12:20 Network Neutrality

• Marvin Ammori, Professor of Law, U. of Nebraska College of Law (moderator)
• Frannie Wellings, Telecom Counsel, US Sen. Byron Dorgan
• Rebecca Arbogast, Principal, Stifel Nicolaus,
• Markham Erickson, Executive Director, Open Internet Coalition
• James Cicconi, Senior Executive Vice President-External and Legislative Affairs, AT&T

12:30 Lunch

2:00-3:00PM  International Issues

• Tricia Paoletta, Harris, Wiltshire, & Grannis

• Ambassador Richard Russell, US Ambassador to ITU WRC-07
• Helen Domenici, International Bureau Chief, FCC
• Jonathan McHale, USTR

3:20-4:20PM Broadband Policy/Universal Access

• Sascha Meinrath, Research Director, Wireless Future Program at the New America Foundation (moderator)
• Jessica Rosenworcel, Senior Communications Counsel, Committee on Commerce, Science, and Transportation, United States Senate
• Derek Turner, Research Director, Free Press
• Link Hoewing, Vice President – Internet and Public Policy, Verizon
• Scott Reiter, Director of Industry Affairs, National Telecommunications Cooperative Association—The Voice of Rural Telecommunications

Second Annual Conference

November 19, 2009

Space & Telecom in the Transatlantic Arena: Cooperation, Competition, and Comparison

9:00-9:15: Welcome Marvin Ammori and Matt Schaefer

9:15-10:00: Cyber-diplomacy Keynote

Alec Ross, US State Department, Senior Advisor for Innovation in the office of Secretary Clinton

10:05-11:30: Trade Policy and Competition in Europe and the US

• Marvin Ammori, Assistant Professor, U. Nebraska
• Erzsebet Fitori, European Competitive Telecommunications Association
• Bertrand Vandeputte, Head, Broadband and Next Generation Access Unit, ARCEP, France
• Debroah Lathen, Board Member, BT Group, Plc. (British Telecom)
• Earl Comstock, Comstock Consulting, former President and CEO of COMPTEL

11:35-1:00: Communications as a Civil Right

• Jeremie Zimmermann, La Quadrature Du Net
• Jan Malinowski, Head of Media and Information Society Division, Directorate General of Human Rights and Legal Affairs of the Council of Europe
• Sascha Meinrath, Director, Open Technology Institute, New America Foundation
• Monica Horten, Communications and Media Research Institute, University of Westminster
• Clothilde Le Coz, Washington, Director, Reporters Without Borders USA
• Ben Scott, Free Press (moderator)

Lunch 1:00-2:00:

Lunch Keynote at 1:15

David Vladeck, Director, Consumer Protection, Federal Trade Commission

2:00-3:15: Conversation on Trade, Civil Rights, Security

• Tim Wu, Professor, Columbia Law School,
• Andrew McLaughlin, Deputy Chief Technology Office for Policy, White House
• Moderated by Cecilia Kang, Washington Post

3:30-4:55 Cybersecurity panel,

• Maeve Dion, Program Manager for Cyber & Education, Center for Infrastructure Protection, George Mason U. School of Law
• Daniel J. Weitzner, Associate Administrator for the Office of Policy Analysis and Development, National Telecommunications and Information Administration
• Derek Jinks, Charles H. Stockton Chair of International Law, U.S. Naval War College, Center for Naval Warfare Studies
• Lauri Allman, former Undersecretary of Defense for Estonia (head legal advisor to the government during their 2007 incident, helped set up the NATO-accredited Cooperative Cyber Defence Centre of Excellence in Tallinn)
• Vicki Belleau, Major, US Air Force, 24th Air Force

I just got back from Taiwan, where I’m “famous,” according to one of my extremely kind hosts.  Not famous like David Hasselhoff, German rockstar, or Jerry Lewis, French phenom, but “famous” to about 15 telecom law professors and media activists.

Even that was surprising, and worth diving into. Being kind of a big deal in Taiwan would have its benefits.  Before my trip, Tim Wu told me Taiwan was the greatest place on earth.  After all, Taiwan is a beautiful island in the tropics–an island of mountains, beaches, temples, and skyscrapers.  The tea and food is amazing; they love to eat and eat well.  The people are almost uncomfortably generous and kind. On this trip, I was even assigned a brilliant undergraduate-student, fluent in English, as my body person, making sure at all times that I was well-fed with dumplings, sated with sufficient green tea, and never lost, never late.

As for my supposed fame… One of my hosts told me that the Taiwanese Supreme Court recently cited one of my law review articles in an opinion on underground radio licensing. Several of my hosts–professors of communications or law–had read my articles.  One professor asked permission to translate an article into Chinese. My supposed fame rested more on my advocacy, however, than my scholarship. The media reformers of Taiwan, notably Campaign for Media Reform and Media Watch, are students of global media reform movements and well-versed in the American experience–including with the organization Free Press, for whom I once lawyered on media ownership limits and network neutrality. As a result, I was speaking as a keynote at an impressive conference bringing together (actually) famous mainland Chinese blogger dissidents (including Michael Anti), media theorists, and reform activists.

But, while reading more about Taiwan on my 13-hour flight back to San Francisco, I realized I wasn’t famous even to 15 people; instead the Taiwanese just practice a beautiful cultural kindness. They are apparently overly generous and super polite to everyone. My treatment was standard. All the tours of Tainan, Chiayi, and Taipei.  The student body-person acting as my nanny. The kind words. The books explained that the Taiwanese are so polite that they tell you “Your Chinese is excellent” precisely when you screw up a phrase in Chinese.  At least you’re trying. They tell you “You’re so good with chopsticks” precisely when you drop the sticks and start using your fingers. At least you tried.

It has something to do with “face” and making sure you don’t “lose face.”

This explains why my undergraduate nanny, who lent me her video game device, the Nintendo DS, told me “You’re so smart” when I screwed up on stage-ten of Tetris. She went to stage-12 or so.

It also explains my experience in Taipei, when I ran into a woman wearing a Michigan shirt.  In Taiwan, a lot of designer shirts have random English words on them.  This woman’s Michigan shirt–which was glittery and sequined, pink and purple not maize and blue–seemed random that way.  But I’m from Michigan, and, thousands of miles away, I see a Michigan shirt.  So I asked, “Do you have a Michigan connection?” She didn’t understand and kept walking.

One of my hosts put his hand on my shoulder.  “Maybe she was nervous,” he said.  After a slight pause, he said, “because you are so handsome.”

So, in Taiwan, I’m not only famous, but I am also unnervingly handsome. Tim Wu was right: best place on earth.

So I have to thank my wonderful hosts and new friends. They’re too many to name, but they include professors Shih-Hung Lo and Ching-Yi Liu, as well as my little nanny, Joyce, who hopes to study in the US.  They made my trip to Taiwan special in many ways, and I learned a lot, both about media policies and the island. Thanks.

And here is a picture of me and my nanny at the Longshan Temple.

On June 28 of this year, the White House issued the National Space Policy of the United States, described by some as changing course from the previous administration’s 2006 strategy.  Last year, the White House issued  Cyberspace Policy Review, and continues to pursue cybersecurity initiatives ranging from activating U.S. Cyber Command earlier this year to proposing the National Strategy for Trusted Identities in Cyberspace–while members of Congress propose over 40 cybersecurity bills.

As these initiatives reflect, our nation, like others, faces domestic and national security challenges associated with outer space and with cyber space.  Facing these challenges requires society to address questions of law and policy–not merely of engineering or computer science.  These legal and policy decisions must balance competing security objectives, making difficult and important trade-offs while complying with our domestic laws, our international obligations, and our core values as a nation.

U.S. government officials and thought-leaders in industry and academia are currently shaping answers to these important questions.  The University of Nebraska-Lincoln is convening a conference at the Newseum in Washington, DC, on September 9 and 10, to explore these issues.

The conference will be UNL’s third annual conference on space and cyber policy organized by its College of Law’s Space & Telecommunications JD/LLM Program.  Previous conferences have featured senior government and military officials, as well as seminal thinkers in academia.  Their speeches and panels garnered national and international news coverage in publications ranging from the Washington Post to Reuters and the Hill.  Thanks partly to  UNL’s proximity to and relationships with U.S. Strategic Command, which is headquartered south of Omaha, the University of Nebraska is emerging as a leading national institution on questions of cyber and space policy.

The complete agenda and speakers will be posted by mid-July, as we finalize details.  I have created a tab on this blog for the event.  Thursday, September 8 will feature key note conversations and talks on cyber policy, and confirmed speakers include General Michael Hayden, Stewart Baker, Bruce Schneier, and the top JAG counsel for the Air Force cyber unit and U.S. Cyber Command.

Friends, Law Scholars, Law Students:

I know your type.

You can’t jog without your iPod.  To run the miles, you need that melodic beat of the Black-Eyed Peas, the triumphal boasts of Jay-Z, the fluid rhymes of Snoop.

I feel you.

But you, like me, have always wished, deep down, that you could jog to the soothing cadence of Harvard Law professor Lawrence Lessig. You have often prayed you could punctuate each step of a morning jog with the faint Russian accent of  Eugene Volokh.  Yes, the UCLA law professor and blogger extraordinaire.  You’ve often regretted putting down that footnote-laced Article on legal ethics of death penalty reform, just to get your daily run–or even to get into the car and run an errand.

I feel you.

I’ve been there.

And that’s why today turns a new leaf.

An announcement: the University of Nebraska College of Law’s American Constitution Society is introducing a law-interviews podcast series.  In each podcast, the student-hosts will interview a  guest about  significant legal controversies  of the day–as well as enduring questions our democracy must face. These guests will be diverse in terms of viewpoint (liberal, progressive, libertarian, conservative) and experience (law scholars, aspiring law scholars, legal advocates, and other experts.)  But it is still ACS.

These guests call into our UNL studio, where our student-hosts command the microphone with dog-eared, highlighted copies of the guest’s most important law-review articles at hand, giving each other high-fives whenever a guest says, “Student podcaster, that is an excellent question.”

Audience: The target audience is law students, lawyers, and legal academics. Tell your friends. Tell your lawyer.

Timing:  These brave law students will begin interviewing guests twice a month beginning this fall. The will podcast irregularly till then, about the Kagan nomination and other issues.

In anticipation of the fall, during this past spring, the students interviewed four guests generous enough to be early adopters/guinea pigs.  These podcasts are now up online and will be on iTunes by next week.  They are awesome. You want to listen to them.

First: Lawrence Lessig (podcast).  Lessig is an seminal thinker in constitutional law, campaign finance, political corruption, and copyright and technology law.  He teaches at Harvard. He is always ahead of his time–meaning, here, his interview made us realize a better way to capture the guest’s audio. (Sorry Larry.  Really. We improved the original recording… But… thank you again!) He discusses Citizens United, Caperton, fair use.

Second: Eugene Volokh (podcast). Volokh is an expert on the First Amendment, Second Amendment, and much else.  He and his brother Sasha, among others, run the Volokh Conspiracy, a popular legal blog. Eugene teaches at UCLA.  On the podcast, he discusses a wide range of issues, from gun rights to protests at military funerals. (Yes, he probably is not the ACS faculty advisor at his law school. But the point of the podcasts is to provoke thought and to educate, rather than to broadcast a uniform view. )

Third: Jen Moreno (podcast). Moreno is an expert and leading advocate on death penalty issues.  She is the staff attorney at the Berkeley Death Penalty Clinic.  She discusses her work and the state of the death penalty in the US.

Fourth: Josh Blackman (podcast). Josh is an aspiring academic, who also has a legal blog, created a Supreme Court fantasy league, and has an organization meant to promote high schoolers’ understanding of the legal system.  He discusses McDonald v. City of Chicago. (Also, I can safely bet he is not a member of ACS–a libertarian, I think.)

All the podcasts are available on the UNL ACS website and will be posted on iTunes, of course for free, subject to Creative Commons license to share as you wish.

You.

If you would like to be a guest, email us at amoreperfectpodcast AT acslawnebraska DOT org.

Also, if you’d like to help in other ways (especially ACS current students at any law school), send us an email as well.

On another note: a few thanks are in order as we begin the project. Thanks to the UNL students kicking this off–particularly Omaid Zabih, Bobby Truhe, and Adam Morfeld. The technological stuff required a lot of time, and each interview requires hours of research to prep. Thanks to  American Constitution Society national, for being so supportive. Thanks to Eric Berger, who is UNL ACS’s other faculty co-director (the yin to my yang, or the other way around, whichever is a compliment). And thanks especially to our first guests, for making my jogs this summer in the California sun even more enjoyable.

And thanks to you. Enjoy. And stay tuned. Beginning in the fall, we will be posting these regularly.

Cross-posted at Balkinization.