This Week In Law 259 (Transcript)


Download and watch the episode here:
This Week in Law 259

Denise Howell: (bagandbaggage.com - @dhowell): It’s a great week to be doing This Week in Law because it’s been a big week. Yesterday we had the new open Internet rules proposed, we have Nilay Patel and Berin Szoka, and here to discuss in depth. We’ll cover everything from Commissioner Clyburn’s mom to the chairman’s scars as an entrepreneur and finally give you the nuances and difficulties of Title I versus Title II. Then we’ll move on, fly across the pond to the EU, where we have professor Marie Murphy joining us to talk about the right to be forgotten. All that and more on this week in law.

Netcasts You Love, From People You Trust. This is TWiT! (TWiT logo) Bandwidth for This Week in Law is provided by CacheFly at CacheFly.com (CacheFly logo)

This is “This Week in Law,” Episode 259 recorded May 16, 2014

Maniac or Political Mastermind

Denise: This episode of This Week in Law is brought to you by Nature Box where you can order great tasting healthy snack delivered right to your door. Forget the vending machine and get into shape with healthy, delicious treats like mango almond bites. To get 50% off your first box go to nature box.com/twit. That’s nature box.com/twit.

(Advertisement: Nature Box: deliciously awesome snack, delivered to your door every day. Go to nature box.com/twit to get 50% off your first box)

Denise: Hey folks, I’m Denise Howell, and you’re joining us, for This Week in Law on a particularly great week to be discussing technology law because lots of important things have been happening. And we have some incredible people to help us try and understand, and unpack those events. One of them is Nilay Patel, longtime friend of the show. Great to see you back, Nilay.

Nilay Patel: (vox.com - @reckless) Hey, it’s great to be here. It’s been too long.

Denise: Yeah, it’s been really too long. Evan, by the way, folks. Evan Brown. My cohost is not able to join us this week. He will be back next week, at which point I will be out, so we’re kind of cake teaming the show is couple of weeks here. But also going to join us for this opening segment of the show is Berin Szoka from Tech freedom. Berin, however, is in transit right now and he is going to have to join us in a few minutes. We’re going to go ahead and kick off our discussion, though, because yesterday there was a hearing at the FCC that has long reaching ramifications. The net neutrality so we’re going to go ahead and kick off the discussion and add Berin in to finish out that part of the show when we’re going to move on to some privacy considerations about the right to be forgotten a and some other issues in the bottom half of the show. So let’s start out on the important policy issue of net neutrality.

(Legislation & Policy theme music)

Denise: All right, Nilay I’m sure you have watched, seldom have I watched a clip of C-SPAN footage with such rapt attention. The hearing yesterday at the FCC proposing the new open Internet order. The FCC commissioners voted to put the proposed order on the table, there will be a lengthy discussion and reply, starting now and ending in September.  At which time they will decide whether to enact the order as written or tweak it further to respond to comments and concerns raised in that reply period. So, what were the high points of the hearing for you yesterday, Nilay?

Nilay: Just how contentious it was! The vote was 3 to 2 on party lines. So there was a Democrat, Clyburn and Jessica Rosenworcel are Democrats. They all voted for the proposal. But in both of their comments, Clyburn and Rosenworcel said, basically like I don’t want to do this. And Wheeler as chairman, if anything, no one disagrees, a force, he’s getting things done. He’s insistent that we not dillydally and that we move forward and so, to me the most interesting thing to me was to assuage the fears that these new rules would create paid prioritization, fast lanes, and the end of the world. Wheeler explicitly said, well, also I would not comment on whether we should not go ahead and reclassify broad land under title II as a common carrier. Which to me is, I can’t tell if he is a maniac or a political mastermind, but he keeps irritating people into pushing them into doing what needs to be done. But he might not have the political capital otherwise. To me, what I saw yesterday was three commissioners on the FCC voting for a plan that maybe they don’t like, they definitely know the public don’t like it, but also proposing an alternative, the plan that everybody wants in saying, well, tell us if we should go with that instead. So, I was watching it, and I found myself wondering how we arrived at such a broken political process. Everybody kind of knows what should be done, everybody definitely knows what the 18,000 people who filed comments on the docket wants, but nobody is doing that quite yet, because we have to yell about it a little bit longer. But now procedurally the door is open for that yelling to be effective. That’s one of those democracy, is the worst system, except for all the other ones, but it was very interesting to watch everybody knows this isn’t what the proper outcome should be, this is not what Comcast wants, but as an Internet user. It’s very clear that people don’t want this but we’ve got to endure two more sixty-day comment periods before we can possibly get to the right answer.

Denise: All right, well, let’s unpack some of that. First off, it sounds like you had the same reaction that I did when Chairman Wheeler said at one point, I know the founding fathers are looking down on us right now and smiling. (Laughter.) Really?

Nilay: Sure they are. I’m sure George Washington is looking down and said I should just appointed a keen to make the correct decision right away, like

Denise: I think probably some of them are saying, “What’s this FCC thing, we didn’t plan on that being there?” And that’s part of their problem, right? They are flaunting around trying to decide what authority they are trying to interact this under, trying to carefully read the Federal Circuit’s decision from earlier this year, so that they can continue to proceed under 706. As you mentioned, they are asking for comments on proceedings under their other possible legal ground, title II. Without going into the whole lengthy history of what 706 is, and what title II is. I know, Nilay, you are ardently following Susan Crawford into the breach on the title II front. So, maybe you can explain, I think you think it’s incredibly obvious that the Internet should be treated as a common carrier. So why don’t you give us some background on that and what it means and why you think the FCC should take that approach.

Nilay: Yeah, the short version is that, originally the FCC under Powell, classified broadband as an information service for fairly silly reasons. The broadband providers at the time, Internet service providers in general at the time said, we’re not just delivering broadband, we are giving you free email addresses and ways to develop your own website and we will have these great video offerings, they made all these promises of what services they would actually deliver. But it turns out that broadband companies suck at providing services. And nobody wants them. And to this day when I get an email from somebody and their email address Comcast.net, I literally assume I’m dealing with somebody that’s not sophisticated enough that they should sign up for a Gmail account, and they are like accepting a bad, bad service because they don’t know any better. Which that’s the beauty of the Internet, right, if you have bad service, there’s competition just one click away. So at that moment when we decide that broadband providers were providing information services will we lightly regulated them under title I we made a fundamental mistake under the value of the Internet service, and what it actually is. And I think Internet service, broadband is a window to free marketplace, not a bundle related service. In addition to Internet access and video on demand and cable television and the VIOP. These are things that they, the broadband company really wants to bundle together, really wants to sell you all kinds of things but what you really want; what most people just really need is undifferentiated access to the free market of the Internet. And I think we’ve just been fighting against that for years and years, even as broadband companies, contractors are just getting bigger and bigger and more powerful and more vertically integrated. And as they get more vertically in integrated and as Comcast bought NBC, now they own the content, they own the distribution across two of the most powerful distribution information networks ever devised, television and the Internet. And they want to buy Time Warner cable, which will make them the dominant provider of 19 of the 20 markets, of the 20 biggest markets of America. So, that to me just looks like the AT&T of old which is literally what title II was designed to regulate. And AT&T of old became huge, became powerful. Interestingly, people loved the old regulated AT&T, right? Ma Bell like it was a concept because they were providing good service to people and they were providing good service to people across the country. Whereas I think people hate Comcast because Comcast has no restrictions, has regulations, it can provide bad service to people for high prices. Time Warner cable in New York City is just legendary, Manhattan is an island, it is a small place. The idea that Time Warner cable can’t figure out how to provide good service across the tiny landmass of Manhattan is crazy, but they can’t, I don’t know why, and I think the reason is why there is no reason, there is no competition. There is no incentive to compete here to provide better service for lower prices. And as long as there is no fundamental competition market for what is, I think is a necessary public good for our economy.  Then we should look to more stringent regulatory regime. And that is the title II argument, I think the information services have already made the title I argument don’t touch this things are going fine, it’s predicated on an illusory notion of competition, I really don’t think most people feel that they can go to a service provider other than Comcast, or Time Warner, or RCN; in their home for the fastest broadband and I don’t think that wireless services, like Verizon, LTE, or what have you are remotely ready to be meaningful competitors for broadband.

Denise: Is there a third option here that the two, at least one of the two dissenting no voting commissioners referred to and that was Congress? Who put us in this boat to begin with, they did because they can gaze into a crystal ball and see the future with much clarity at all, but the reason that we’re having this debate over title I versus title II is that nobody knew what to make of the Internet or what it would become. And now we are trying to cram it into one of those two boxes, and maybe we need Congress to say, “Look now we understand the Internet, and we understand it as it is today, it gets its own box. And here’s how we should regulate it.” With that help matters. Do you think?

Nilay: Yes, in a sense to writing a perfect law always helps matters, but the reality says you’re not going to write a perfect law and in the meantime, this vibrant economic engine is going to be harmed by service providers. I don’t blame Comcast or Time Warner or AT&T or Verizon for trying to extract value from their investment, they should do it with vigor and they should try to gain as much revenue as they can for their massive infrastructure investment. The problem is that the incentive is at odds with the public good that we need to receive from the Internet, which is free market. Like a real, no walls, no barriers to entry free market. So if they are going to raise the opportunity costs for new entrepreneurs in the market. We should figure out how to stop it right away, before we let Congress sit around and draft a perfect bill that will foster innovation. That’s crazy. And what is really interesting to me is the day that the 2010 rules were struck down in court was the same day, I believe, or the day before that Congress. Began committee session on new telecom pac. The process is happening Congress knows it wants to draft one of these things, it’s only going to take them five years. And I think the FCC kicking its responsibility to a legislative body is already offering the authority to do these things, that, there is a reason it was decided on party lines and the two commissioners, the Republican commissioners don’t favor any public relations at all. And of course that’s what they’re going to say, we don’t want to impose regulation, Congress should impose on themselves. That’s fine, but that’s predicted, I think it’s an abdication of the FCC’s responsibility to protect the market and acting consumer interests.

Denise: So, waiting for Congress would be punting by the FCC, you think?

Nilay: Yeah, punting.  I do think there is an argument to be made. It’s very wonky, if you do the, if you do the work, the lion reading of title II you can make the argument that it was designed to anticipate broadband, it wasn’t just designed for telephone service. And cable companies will argue tooth and nail that that is not true, but I think that argument is there. I think, that’s the reason the FCC is willing to consider it, that’s the reason they are willing to say we impose title II, but you know, use our forbearance authority to get rid of all the regulations that don’t make any sense here and just apply the ones that we want, we want to impose the free market principles of net neutrality.

Denise: Okay, so they’ve got on the table, at least in getting comments on reclassification. But in the event they don’t go that way Nilay, do you think, and now I realize that this new proposed order is nearly 200 pages long, I certainly haven’t begun to unpack it and I’m glad the comment period goes until September. To the extent you looked at the proposal in any detail yet, do you think that the Commissioner has adequately skirted the boundaries of 706 such that this would hold up under title I?

Nilay: I think it will hold up under title I, but the problem is that how they are doing it, it is a hack, I mean fundamentally, the court offered them 706 authority and said, you definitely have the authority to regulate broadband under 706, which basically just says the FCC should promote like the deployment of broadband in America. So, I think that’s a hazy authority to begin with, but any way. The court says they have been, no one is pushing it. Everyone is willing to see how far that can go. And the way they are sort of, wheeler’s plan to get to net neutrality principle is to say, okay, you can do paid prioritization, you can do fast lanes, you can do all this stuff we don’t want you to do, but you can’t do it in a way that isn’t “commercially reasonable”. And that is an undefined phrase as far as I can tell, there’s obviously a precedence under these rules as to what this means. And it is a big wait-and-see game. And Wheeler’s promise is, “well, I’m going to make sure that if the providers are doing bad things. Then I will be there, I will be watching.” And yesterday, his comments were very personal. He was like, he responded. Mignon Clyburn said my mom called me about net neutrality, which is the first time in my career as a commissioner that my mother cares what telecom policy. And Wheeler responded in his comments. If were doing personal remarks let me have a personally, Mark and his was as an entrepreneur and adventure capitalist, I know what happens when markets are close, I had businesses destroyed by it, and I’m going to be on guard. Right? I’m going to be ready that things are commercially reasonable, which is great if, Tom Wheeler is king of the FCC for the rest of time. But not so great from a policy perspective, when administrations will change when political parties will change when Silicon Valley, the powers that be there, the large companies, their alliances might change. Even Google and Verizon used to be best friends, and now they hate each other. These things happen and you need a policy that can withstand, just withstand the changing landscape of our time. So, I think it’s interesting that his plan is basically, as near as I can tell, his plan is establishes the closest thing he can get to net neutrality under 706. He’s saying, I will be the guardian of the open Internet as long as I’m here. And then what is particularly interesting to me, and this might factor into that, telecom, rewriting the telecom act in Congress piece. Comcast itself has promised to abide by the 2010 rules, which were struck down, but they agreed to abide by them until 2018. And if they buy 10 more cable, they’ve agreed Time Warner will abide by them as well. So, we’ve got the largest broadband provider in the country agreeing to the rules that we liked before until 2018. So, there is a little bit of runway here for Wheeler to say, well, I’m going to impose the rules I can, we can have a bigger fight about title II, and in the meantime, while I’m kicking the can down the road here, Congress should look at other stuff and Comcast has to play nice. And that again, I can’t tell if he’s a total maniac and he lucked into this moment or he’s a political genius. It’s one or the other, there is no middle ground.

Denise: Exactly. Okay, let’s talk about, one of the big pieces they are seeking comment on, and this would be an expansion from the proposed 2010 rules, is whether or not open Internet rules should apply to both wired and wireless connectivity. The wireless piece has always been outside the purview, was not part of the 2010 rules and I did not pay a ton of attention at the time, why exactly it was carved out. I’m assuming because the wireless carriers made the case that they needed, that they were a newer market, a newer technology and had spectrum issues that perhaps he wired carriers did not have to confront. Although everyone confronts spectrum issues. And somehow made the case to the FCC that they needed to be left alone a bit longer. Apparently because the FCC is now, as Commissioner Clyburn said, taking this opportunity from the DC circuit to actually revisit the whole piece to see if it should be made more expansive; that that could change. What do you think about that?

Nilay: I think, you characterize that right, exactly right. I think one the 2010 rules were propagated there was, I agree with it, there was a strong argument that; I think Julius Jankowski, FCC chairman at the time said wireless is different. Right, and If you just look at the market at that time, the iPhone was newish, only two to three years on the market. LTE wasn’t available, mobile broadband was an ascent idea.  The United States in particular, just absolutely miserable at standardizing mobile. You had Sprint running in one direction with WiMAX, which cost them a billion-dollar and probably will result in utter destruction of their business one day. AT&T running on one kind of LTE, Verizon, beating their rates, market with another LTE, T-Mobile saying we don’t have any spectrum. All these regional carriers who are doing whatever they are doing. So that market was a mass at that time, and I think saying, we’re just going to leave apps alone until we sorted out was fair. I think if you had any sort of vision into the future, you would know, we would end up right where we landed, which is we have several dominant carriers, we have lots of consolidation happening with the smaller carriers where Sprint and T-Mobile desperately want to merge with each other, even though they are saying they don’t want to. And you’ve got incompatible systems, but what you really, really, you can’t go from AT&T to Verizon, which I think is ridiculous, right? But, what you also have is, if you have entire generations of consumers who now consume the Internet over mobile broadband, on mobile devices as their primary point of contact. And that particularly is young people, and it is particularly less wealthy people.  And it’s kind of like your aggressive attacks on the poor for us to say we will let Verizon create whatever kind of Internet it wants on mobile but make sure that the rules are great for Fi-ups because the reality is that the people on fires are more wealthy than people who just by Verizon LTE service in the aggregate. So, I think the moment is here for us to say, okay, mobile broadband is really fundamentally the same as fixed broadband, you’re doing the same thing, maybe you’re doing a slightly different device, maybe you’re using apps instead of the native web all the time, but it is the same. The activities are the same. The speeds are in a large part the same. And there is no reason to not think about them in the same way because for all the argument of the spectrum crunch, it has never materialized. I think wireless carriers are excellent at making it seem like this guy is going to fall at any minute. But the reality is they have been delivering better products every year.

Denise: Do you think that, it sounded like Commissioner Wheeler’s comments could be construed as putting ISPs feet to the fire on their guaranteed levels of service. And I may be reaching here. But it sounds like he was almost concerned that perhaps to date people aren’t getting the Internet service that they’ve paid for and that the ISPs have too much wiggle room in the varying degrees of service, you have up to 15 down, two up or whatever, based on network traffic and acts of God, that’s going to vary. Do you think this will put any more teeth into those service level agreements?

Nilay: You know, I do. But in the sense that now we have to start litigating the agreements or the FCC has to start litigating. Wheelers entire approach seems to be I’m going to make rules that don’t prescribe any behavior, but in a strong way, but if you break my they rules once litigated out, and I will be the judge to make sure you do what you say and that has basically been his strategy because he’s trying to proceed under 706. That is kind of where his strategy is, because his authority is promote broadband deployment in the United States. So, he doesn’t have the authority to impose regulation, in title II would let him say you can do this, you can’t do that, here are your price controls,  here is your investment subsidy, here’s all the stuff that we use build a telephone network. Under 706, he’s got to get, someone’s got to get mad to be a court case, the FCC has to do something, and the resolution has to be, okay, Comcast, you can’t advertise these beads and then not deliver them because that is not promoting broadband deployment in the United States. And I think that is elliptical that is the real problem. I do applaud the fact that he wants companies deliver what they are promising, but he’s just setting himself up for a very long road and a very litigious road.

Denise: Yeah, I agree with you on that. So let’s look at, we have him talking about the minimum level, there’s not going to be a slow lane, you’re going to get what you pay for. How do you think the fast lane is going to work?

Nilay: The analogy that I have been using, and maybe you would disagree with this. I’m actually curious as to what you think about this. I am using airport security. That’s just how I think about it. You think about going to the airport. The TSA has no competition, you can’t go through a different security system and they’ve created a minimum level of service where you take off your shoes, you take off your belt, you take your laptop out and it’s awful and everybody hates it. And they probably don’t need it, right? You can argue it’s Security Theater, but the TSA often, there is a fast lane you can sign up for pre-check. And they promote pre-check by letting everybody into the fast lane periodically. Which to me raises the question, why do I have to take off my shoes, all of the time if sometimes I don’t? Right? And I haven’t signed up for pre-check you’re just letting me experience dignity, and saying what if you pay me $85 if you give me your fingerprints, you can have this dignity all the time. They have no incentive to fix the minimum level of service because they are trying to push people, they have incredible incentives to push people into paying for the better service. And I think that analogy is how I think about fast lanes on the Internet for gigantic behemoths service providers who have intrinsic monopolies with wires in the ground and no real competition. So, yes, Comcast will say you’re going to get your 15 megs down and one meg up and they are just going to leave that up forever and say if you want more, or you want better access to Netflix, you get to pay us five more dollars. And I don’t know why they wouldn’t do that, I cannot think of an incentive for them to fix the minimum level of service or increase it or to improve it. When all of their incentives would create more revenue out of the same infrastructure investment by saying, you can get better “X” for a price of “Y”.

Denise: So, back to title II for a second, but first before we go back to title II, I have to drop an MCLE passphrase into the show, and “experiencing dignity” is a great one. So let’s use that. (Laughter.) For those of you who are listening to this show for continuing legal or other professional education credit, we drop these passphrase is into the show as our very high tech, sophisticated way of providing verification. Trust but verify, so our first one is experiencing dignity, we’ll put another one later in the show. And if you want more information about receiving such credit for listening to or watching This Week in Law, head on over to the TWiTwiki at wiki.twit.tv. We’ve got a whole page over there for you under the This Week in Law show. Let’s talk about title II for a second. The big complaint, knock on title II, Nilay is number one: It would be politically unpopular, it would be much lobbied against and so a difficult thing to hang the FCC authority on. And, one of the reasons it would be politically unpopular is the ISPs claim they would be hamstrung by the additional regulation and you pointed out earlier, the FCC can forbear it doesn’t have to enforce all of the various aspects of that title, it can selectively decide what it would apply but you were talking a moment ago about the ISPs not having an incentive to invest. Would their incentives to invest be lessened if they had to do something like provide universal access?

Nilay: It’s hard to say what Comcast thinks of its current incentives are, right? It’s hard. I think if you look at Comcast total investment and actually on vox.com, our site Matt Evince put a great chart that the NCTA, the National Cable and Telecommunications Association, they posted one of these cumulative investment charts so it can only go up. It says cumulative investment 2002 -  2010 is skyrocketing, it’s like, well, yeah you keep adding the bars of course it’s going up, literally your cumulative investment over X period of time has to be higher than the previous X period of time because you are adding the previous period of time to the current time. But if you look at what they are actually doing, their investment is falling because they saturated huge markets in America, they have been providing a service that people need, it’s not a want you don’t want broadband in your home, you need it for to participate in a modern economy, you need broadband in your home, whether it’s broadband or mobile. You need access to the Internet to participate in our economy, it’s like a first-tier worker and in general, in life to sign up for health insurance in America right now, you need to get to healthcare.gov, you know how you do that, you do it over the Internet. So, you need this service in your life. And they have been providing it to a huge swath of people, like I said, they don’t have competition. So their investment if you look at their actual dollars of investments their investment is falling. You know Verizon, this is actually my favorite story. Verizon promised this thing in New Jersey, they would wire almost all the homes in New Jersey with Fious. And to lay the wires in the ground, they ran around saying that fiber is a title II service so they would get utility breaks, they would get right of way, and they would get tax credits. New Jersey ended up paying Verizon billions of dollars so they could run fiber everywhere. Then they provided service to no one, this is true, almost no one in New Jersey has Fious, even though. Verizon got all this money and all this access and the state-sponsored monopoly. No one in New Jersey got Fious. And then after they used title II to run fiber, and they said, well, broadband itself, which runs over the fiber is an information service and we want to check title II. And their lawyers go back and forth between the sections of the law that most appeal to them for each service they provide. Even though it’s already over the same table. And I think that’s the, that is where we have landed, even when they do invest and they do lay the cable in the ground, which is just the first step. Companies like Verizon, or Comcast are consistently manipulating the law that we have because it isn’t clear enough and it doesn’t provide strident enough controls on what our monopolies, either natural or given to them by the state. And I just think that is the problem. So, going to title II maybe it will make their investment fall, but the reality is when they are held to a standard, when they have to provide service to people, and they have to spend money because we are demanding it as a society, they will find ways to make the investment profitable. I do not have an ounce of worry in my heart that Comcast can’t figure out how to make money. And that Verizon can’t figure how to make money. That doesn’t keep me up at night. What keeps me up at night is huge sections of our population that don’t have access to reasonable broadband.

Denise: All right, well, I’m told that our second guest for our net neutrality discussion is available and can join us. That’s Berin Szoka if you watched the show you seen Berin before he has been on several times. He’s with techfreedom.org. Hello, Berin.

Berin Szoka: (techfreedom.org - @BerinSzoka). Hi, sorry about the confusion.

Denise: Oh no problem. We’re just so glad you could join us today. Obviously yesterday wasn’t very big day. Nilay and I were saying earlier that seldom have we watch C-SPAN was such rapt attention and there was quite a big hearing at the FCC on the issue of net neutrality. Statements by all of the commissioners and the chairman and now 200 pages of documents to digest, and comment upon until September, when in all likelihood some iteration of the open Internet rules that were proposed yesterday will be adopted. I led off with Nilay, by asking what his highlight from the hearing was, why don’t I ask you the same?

Berin: Yeah, It’s a hoax. You heard it yesterday. You heard it from Nilay today. Number one, there is no demonstrated problem here that can’t be addressed through enforcement of existing laws, antitrust law, the consumer protection laws; number two: the FCC is rushing into this when members on both sides, Democrats and Republicans called on the agency not to rush. The agency should be doing a more careful job of actually thinking through, looking before it’s leaping.  And third, so there’s a hoax, there’s a problem here that the FCC has to urgently after and there is the title II hoax. So, let me lay this out for you in as simply as I can. So the people who are literally jumping up in screaming yesterday during the meeting about title II have no idea what title II actually means. They think that title II will end fast lanes, will prohibit prioritization on the Internet. That is not true. All title II means is that the FCC would have more power to regulate prioritization, so without title II they can regulate it, but they can’t quite that every broadband company provide exactly the same service to everybody. There has to be some room for what the DC circuit called individualized negotiation. Whereas under title II, the way prioritization works and has always worked is, you can prioritize, you can have fast lanes if you want to, but you have to go through what was called tariffing. Where you file with the government. The schedule of rates that you are going to charge to specifically situated customers. So, it’s just not true that title II is some radical difference that’s going to allow the FCC prohibits prioritization. Prioritization has always been part of the Internet. It’s the very thing that makes Google and Facebook and other services work. The question here has never been about net neutrality, the question has always been about whether broadband providers might be in a position to abuse market power in discriminating against certain providers. And as I said the antitrust law already deals with that, if you think that’s not enough, the FCC can deal with that through section 706; so the real question becomes, does the FCC reclassify broadband or should I say classified for the first time broadband as a title II carrier. And the argument for that basically is, reasonable people will say, okay, we recognize that there are some problems with title II and so we’re just going to, we’re just going to forbear carefully and we will edit title II down to basically a new framework for regulating broadband, that’s what Jankowski proposed back in 2010, when the FCC tried to do this the first time. And if you remember anything about, I have to tell you today, that is complete horse****, that’s not how reclassification or forbearance works. The explanation is very simple, forbearance is a difficult and cumbersome process, so the FCC has to justify why it’s not applying certain rules and why it is a fine others. It will also have to justify not just going easy on broadband because we’re concerned about broadband investment, it would also have to justify why it’s not treating similar Internet services the same way because legally what we’re talking about here is Internet transmission services and Google and other services, I don’t want them to be more regulated, but as a legal matter, let’s start going to title II. The FCC then has to go through a very complicated series of legal contortions to explain either; why some things like broadband should get under title II and other things shouldn’t or why if it’s all going under title II why the FCC is going to forbear from some things, for some versions of title II and not others. So the bottom line is that in order to get a relatively small difference of how far the FCC can go in regulating discrimination, the FCC would have to completely change the presumption of regulation that was put in place, not by the Bush administration, but by Bill Clinton’s FCC. And it was that decision to put broadband under title I that unleashed 1.2 trillion dollars of private investment that built today’s broadband networks. So, that’s what we’re talking about here today. So that’s why I say this is a hoax and the FCC because of this political hoax, and people have been conned into thinking that title to mean something other than it does and it would be easy to apply. The FCC is now going through this farce where they have to pretend that title II is a realistic option, and that they are considering it for doing what every serious person knows they are going to do in the end anyway. Which is to try to regulate through section 706.

Denise: Right, and do you think that they will still have problems if we take everything they just said as a given under 706, do you think, once again, do you see circuit or another court will come in and say, once again FCC you have gone too far here?

Berin: Well, there’s two different potential risks., There’s three issue with 706: number one, the fight here is really about the outer boundaries of 706; they can’t impose common carriage and common carriage is what I was saying in title II would be saying something like, if you’re going to prioritize you have to charge exactly the same price to all similarly situated services, that would be a common carriage requirement and the FCC probably can’t do that through 706. Now they can do things like, saying, if you favor an affiliate or you in some other fashion discriminate that could be a violation a 706. So that is one legal issue. Second issue down the road, and frankly, this is true whether they use 706 here or not. And it’s true whether or not they reclassify or not, 706 allows the FCC as they have interpreted it to regulate not just broadband, but the entire Internet, in fact, all communications, which is very disturbing. And this brings me to my third point, which I have to say. While I think it’s possible for the FCC to craft a relatively reasonable rule through 706, I also think that the FCC and the DC circuit got it wrong, that 706 simply is not a grant of authority without unpacking doubtfully, I will just say that the only reason we’re even. There is because courts in general, defer to agencies when a statue is ambiguous and I think the legal air that the DC circuit made was in determining that either the statue is ambiguous or the FCC interpretation was reasonable. So it is possible that the courts will ultimately straight down anything, the FCC does under 706, is possible they will reverse this interpretation, and that on the whole would be good for the Internet. It’s probably not very likely. But this is my way of saying the, the FCC has no good option literally speaking, what they really should be doing, what I would be doing if I was the chairman is to say to Congress, 706 is shaky and title II is not a workable option. And rather than continue to try and do this for the third time, and spend another three or four years going down a road that is probably going to lead to nowhere; I, the FCC call on Congress to do what everybody across the political spectrum knows needs to be done, which is to update the communication act. Because of fundamental problem is that these titles, title I, title II, they don’t correspond to the real world anymore. So, there is a need, I think, for a new communication act and this is not crazy. Verizon and Google in 2010 agreed on a joint legislative framework for new communications act that would have solved this problem of how the FCC should regulate net neutrality. And in 2005 you had a broad bipartisan group of telecom experts that proposed what was called Digitalize Age Communication Act, to fix this general problem, to rewrite the act and give the FCC a sensible way of regulating broadband and the Internet generally without subjecting Google and Facebook and all the other companies the FCC claims to be trying to protect here. To kind of regulatory burdens that the FCC might be able to impose through 706 and might be forced to subject to title II in court, even if they don’t want to. So anyway, I just want this to be ultimately left up to the democratic decision-making process, it is a policy question, and it is not one that the FCC really has the tools or the competence to be trying to solve.

Nilay: But people are speaking, they might be call and they may be low on information voters in a sense, but they are speaking, they are saying they want, they desperately want broadband regulated as a utility, as a utility. Whether or not you agree with what they are saying, the substance of what they are saying, they are saying and more loudly and more vigorously about telecom policy than just about anything else, it is actually remarkable.

Berin: Well, the last time I checked we don’t live in a mob democracy. We have elected representatives who are sent to Congress. Who are supposed to make decisions, so when I say Democratic, no, no, listen to me, people don’t get to scream and bang, no, Congress ultimately can make this decision and they should.

Nilay: But those people are saying, they should be heard, Are you saying that the people of America instead of speaking, however they wish to speak, they should quietly petition their elected representatives who then make a decision in their best interests, that sounds crazy to me?

Berin: This is hilarious. Because you’re trying to embrace democratic legitimacy. But what you are really saying is you want three unelected bureaucrats at the FCC to decide what they think the people want, instead of having elected representatives decide what is actually the law.

Nilay: To use the authority that they already have, that docket is open, the path is clear, right, you can walk right through that door and it, you and I can argue about the substances of title II, but the demand from the public for the FCC to more legitimately consider that is clearly there. And there is no reasonable process

Berin: It is manufactured, it is based on misrepresentation of what this issue is about.

Nilay: How is this manufactured? How am I manufacturing this issue?

Berin: What exactly is the harm here? The FCC has alleged for instances over 15 years of suppose it net neutrality violation, two of which wouldn’t even be dealt with by the proposed rules. This is a hoax. The FCC has never demonstrated how it can do a proper, excuse me, and you have also misrepresented it’s as has everybody else, what title II actually means, and whether the FCC can actually apply it in any sensible way. It is not a politically realistic option, and even the Democrats on the commission who have pushed for the FCC to ask about title II, I don’t think they are serious about actually using it.

Nilay: I’m not saying that title II is, so, wait, so what you are arguing boils down to, you don’t believe that the Democrats are serious about the option. That’s silly. What you are actually saying is, the harms aren’t there. So we should wait for the harms to accrue before we do anything about them. And I been covering this thing, this industry deeply for years, ever since, since broadband became the force for change in this country and I’m telling you, I see the harms of it at every turn. Because these companies are not in a competitive market and they do not have incentives to act in a rational way that serves the interests of people.

Berin: So, I’m telling you, as a telecom lawyer which you are not, that title II: A - does not do what you think it does. And B - cannot be applied effectively because forbearance is not a realistic option.

Nilay: Let me ask you a question, so, why did the. .

Berin: And there’s a practical matter about, about the state of competition and I agree with you that there is more to this FCC and what the government can do, to get government out of the way of broadband deployment, I would point out to you that while you and others talk about cable being a monopoly. In fact, cable is losing ground to Telco-providers today that has turned DSL into what was once  a joke and a slow option into something at speeds of like 45 Mb per second is actually faster than cable so A - there is in fact competition coming from the telephone companies.

Nilay: let me ask, who is my competition?

Berin: and second,

Nilay: I am in New York City, and wait, I live in New York City and have Time Warner Cable, who am I going to because that services sucks

Berin: So, in fact, so AT&T by the end of 2015 has said that they will deploy 45 MB per second service for 45%

Nilay: Stop, wait, so wait. I am waiting actually a year and a half for AT&T promised infrastructure deployment? That’s your competition

Berin: So let’s for example, look at Verizon, why do you think it was that Verizon didn’t deploy in major cities like all to more and Boston, it wasn’t because they didn’t want to it was because those cities made it prohibitively difficult to deploy new infrastructure, which is precisely the same experience that Google fiber has had. They have had to deploy and they have found that local governments have made that unnecessarily difficult. So, I’m all in favor of more broadband competition. We could actually be having that discussion and that would be productive. Instead, we keep running around and around pretending that the FCC can solve a problem that hasn’t been demonstrated that has not happened.

Nilay: Let me ask you a question, then,

Denise: Nilay, I have to jump in for just a second tier, I just want to interject that as I listen to you both, I coming to the opinion that perhaps you’re both right and that, it’s always been my inclination, looking at this issue that we are only having this conversation because of the confusion, the legislative confusion about what fits into title I and title II and the Internet, not fitting properly into either. And that Congress really needs to fix that, and the way that we fix that is amending the telecommunication act, but Nilay and I was talking about this at the top of the show, Berin.  That until that can happen; that might be a slow process, it hasn’t happened yet. Congress certainly doesn’t seem to be in a rush, even though as we sit here today the urgent need for that has never been more clear. That the FCC does have some room to work here and that they may as well give it a shot.  And that, I understand, Berin that your position is giving it a shot is going to mess things up more than help, but if the FCC agrees, disagrees. There is no reason why they can’t continue down this road and then let Congress correct them. Right?

Berin: Well one – there is no demonstrated problem. Two – the problem with the FCC persisting in this area at all, is that it delays a political solution. The thing that has prevented Congress more than anything else from dealing with this problem, is the FCC keeps saying, oh no no, we will figure out another way to deal with this issue, which they can’t. And third – if you thought there was a problem today, let’s just suppose that is true, the thing that has never been tried is the very thing that the White House has said in general is the best way to solve Internet governance problem. Which is convene a multi-stakeholder process, get industry together with consumer advocates the same way that Google and Verizon were able to sit down together, have them come up with the code of conduct, even if they can’t, let me finish, but if they can’t, but if they can let me finish

Nilay: Wait, wait, time out Google and Verizon; Google and Verizon entered into a marriage of convenience, to shape Android on Verizon.

Berin:  Let me finish that code of conduct if it could be generated, but maybe it can’t we won’t know and tell we try it would be directly enforceable today, not by the FCC today, but by the Federal Trade Commission. You would need to demonstrate no abuse of market power, there would be no need to go through any complicated antitrust system. It would be directly enforceable, there would be no legal challenge involved. I think that is a process that’s worth trying, and frankly, if we had tried that. If we had said 10 years ago that we are trying that approach and we’re going to focus on promoting broadband deployments, I think we would have solved this problem the same way that we solve other problems in the Internet ecosystem. Which is from the bottom up. Instead of expecting the FCC to solve them from the top down.

Nilay: Well, here’s the thing about invoking Google and Verizon. Which completely ignores as a model, invoking Google and Verizon as a model for industry collaboration through receive a good result. They, Google and Verizon into a marriage of absolute political convenience. Google wanted to shed android as a competitor to the iPhone on Verizon first before Apple. They backed off extremely strident net neutrality demands to gain that concession from Verizon and several years later, Verizon totally screwed Google. And knifed Google’s wallet, refused to update the software on their phones. They were shipping on Verizon and that marriage is irretrievably broken. Just ask anyone who works at Google or Verizon, they will tell you that that didn’t work out very well, because the leverage shifted in the market to the carriers. And if you look at what happens, if you look at what happens over and over again.

Berin: What does that have to do with the fact that their policy teams were able to hammer out a joint legislative framework for dealing with net neutrality – Nothing! The point is that there is a fact. There is common ground, and a room for, and I would put you back in 2005 data communication and project was mostly comprised of Democratic academics that could come to a consensus with free-market academics on how to reform the FCC

Nilay: If you and I could sit down in a vacuum, so much for rewriting the telecom law, I guarantee that you and I could just do it. That’s just great. It’s a vacuum, if Lala land what’s actually happening. It’s shifting rapidly.

Berin: No, what’s Lala land is thinking that the FCC can continue to apply a communications act that was written before 1996 that was based on the assumptions of the monopoly telephone era and can be trusted to apply that system to the Internet because what that actually means is that the FCC will be more regulating Internet services.

Nilay: You’re telling me that the FCC will end up making a difference, here’s a question, we used to ship the Internet over phone lines. Right question. There was dial-up there was many competitors you can do all kinds of things. Many businesses flourished were running modems or phone lines, what is the specific difference between a cable that brings, and I’m just asking, pretend I’m stupid and I don’t have a preconceived answer to this question, but what is the difference between that service and the service that brought voice telecommunications into my home. Why are you so convinced that there is a difference in the nature of that utility?

Berin: Because Bill Canard, who was Bill Clinton’s FCC chairman made this decision. Back in 1998, he rightly recognize that the massive infrastructure investment, which I said, has been $1.2 trillion since then that to get that massive infrastructure investment you could not continue to apply regulation of title II. He was right that has been a bipartisan approach that has been completely sensible and continues.

Nilay: But if I am a consumer, tell me exactly why these services are different, but why broadband should be treated as utility. Because the experience is the same, and it should be the same, right? I can call whoever I want on the phone service, I should be able to go to whatever service I want to on broadband. And you are making an argument, as near as I can tell, your argument is this is too messy and the government sucks. Which I agree it is messy and the government sucks, but the government has to act here.  Because the nature of this utility is too important to leave alone, to leave unregulated and the market. Whether or not you agree with me, the market is not competitive. It’s absolutely is not competitive.

Berin: I’ll take your point, the market could be more competitive, there’s plenty that we could do. The FCC, among other things could have been spending the last few years on, for example, opening up spectrum or making it easier to build towers,

Nilay: They are

Berin: To give service better options.

Nilay: The thing they did after the neutrality meeting; they talked about the incentive option.

Berin: Yeah, they were supposed to have opened up 500 MHz of spectrum by now. They have opened up zero. They are years behind in that because they have spent that time fighting about net neutrality. There is a real cost to the FCC in falling behind on those priorities, when it gets focused on something like net neutrality. As for your point

Nilay: Wait, wait, wait, it hasn’t been focused on net neutrality. Until the 2010 decision was struck down, three months ago, it hasn’t been focused on net neutrality.

Berin: The FCC spent the better part of two years on the net neutrality issue prior to issuing

Nilay: Okay, so what was it doing from 2010 until a few months ago, just sitting around not planning the incentive option?

Berin: Well, for one, Jankowski squandered the room for goodwill, he had the opportunity to work together with Republicans and his relationships on the Hill on this issue, but let me get back to

Nilay: Well, Jankowski wasn’t well-known for being the ultimate nice guy politician. I mean, you’re arguing that, yeah, he wasted his time. He wasn’t a good agency head. And he was mean to the Republican. So for two years, he sat on his hands and the incentive option that is happening.

Berin: This is a distraction. Your fundamental point, your fundamental point is so, legal academics, for example, have said, hey, this looks like a telecommunications service. So it should be. My point. At the end of the day is that if the law professors’ solution. Doesn’t really matter what the, how you parse the legal definitions because frankly, they were developed in an era that does not remotely resemble the world today. What matters today is what is the right legal framework for governing broadband and one part of that is indeed how you deal with the potential for discrimination, I completely agree with you. The other part of that is, at the end of the day. Do we make consumers better off and a big part of that is; are people going to continue investing at the scale that they have been in infrastructure. So what I am really saying fundamentally is that title II is a system that was developed for monopoly pricing. That’s what a utility was, that’s what AT&T was. We don’t live in that world anymore. We live in a world where there is at least two options. Tellico is getting better and you are starting to see a third pipe like Google fiber or century link or sonic.net or,

Nilay: That’s insane, okay, Google fiber.

Berin: let me finish, let me finish; you’re starting to see that pipe deployed. The question is do you want that pipe to exist at all in a title II world, why would any sane company would ever pour money into being treated like a utility, which means they would be forced to open up their utility, their network and allow other companies to resell it? Clinton and the FCC

Nilay: So. There’s your answer, right, but that’s your answer, no, no, that’s your answer. Literally the thing you just said is the answer to the question. The sane companies shouldn’t be dumping money into trying to build a competitive market for services that are overpriced and badly received by consumers. Those services. Comcast, which is huge, is a behemoth in providing service is already providing utility services, we just have to wake up and call it what it is and the money that you are talking about should go towards new businesses on that market.

Berin: well, now so this is odd, so you have admitted what the left is very reluctant generally to admit. That you don’t actually want competition you want to nationalize or centrally treat as a public utility, a single network, you don’t really want there to be more deployment because you just want to have a say. Let’s have Comcast be the network, will treated as utility and done. What I am saying is, competition is already happened. Verizon has poured billions of dollars into building up Fious would have built it up more if they could have. AT&T and other Tellico companies are pouring money into upgrading their own networks and Google fiber is in fact deploying in more cities. Facilities-based competition is real and is happening. We should encourage it. Title II would definitely be over all of that.

Nilay: I think just that the fact that you pronounced it as Fious, that is indicative of your relative knowledge of what is actually happening in this market. Right, Fious is great, it’s just not anywhere. Right, it literally is tiny, right?

Berin: So, just hold on, excuse me, 70% of Verizon’s footprint will see fiber deployment by the end of next year. That is what I have been told.

Nilay: Right, and all of New Jersey will get Fious by tomorrow. It’s not happening. These companies have no incentives to actually do it because they can extract more revenue from their existing investment.

Berin: So, let’s pretend that you are right. Then the question is does title II actually help or hurt that situation. And at the end of the day you continue to persist in believing that title II will not have a negative effect on investment. Which at the end of the day means, less competition

Nilay: Where? Title II does nothing but provide a minimum level of service, and pushes investment dollars into new business and entrepreneurship. I am totally okay with that because I don’t want to see Google on building a fiber network to compete with our fiber networks that are doing a good enough job, that’s silly.

Berin: So, let’s just for a second.

Denise: Okay guys, we are not going to saw the title I, title II issue here. And maybe Congress is going to solve it. At some point, but I, this has been a very rousing and interesting discussion, but I would like to shift gears for a second back to what Berin would characterize as the hoax. The fact that people have begun to think that there is some danger to the Internet service that they expect and want and demand on a consumer level. At the beginning of the hearing yesterday Mignon Clyburn, the commissioner said, open Internet can’t occur organically. That’s why we’re acting because in her estimation, this is not something that you can just leave to the market and expect to function. And there has been a little video going around that attempts to explain the problem in lay terms and with graphics by VI-heart. And there is a statement that I would like to play here because I think it, here we go.

(Video clip playing: female voice: so instead of fixing it. Comcast charges you even more and still doesn’t fix it. Here’s the officially proposed rule, the SEC is considering: Internet service providers must offer some amount of access to all legal Internet things, but they can offer a “fast lane” to certain content providers. This sounds like maybe Comcast and Netflix collaborate to put in a special cable all the way from Netflix right to your home to get superfast Netflix service, but that’s not what fast lane is. It’s not even a nice new paved driveway. The “fast lane” means that Comcast puts a gate at the front of your driveway. The Netflix trucks are allowed in right away because they paid off the gatekeeper. You invite your friend over, and your friend has to wait outside the gate for a while, even when no one else is using your driveway. If you want to watch Netflix right now, yes, you should be able to prioritize Netflix’s data and slow everything else down. But, if after that, you want to torrent the latest Vi Hart video, there’s no technical reason you shouldn’t be able to put that in the fast lane. You’re not paying your ISP for content, you’re paying them to deliver the content you choose. Except they decided maybe they do want to control what content you can choose, and the FCC’s proposed rule would make that officially ok, which is a huge reversal of the FCC’s position that happened when Tom Wheeler, a former cable lobbyist became chairman. In 2004, the FCC basically said “Hey…”

Denise: Ok, ok we can, uh, let Vi go. Alright, the gate idea is what I wanted to focus in on there. I think that’s what has people up in arms here.  That once you’re paying for some level of access it should apply across the board. The ISP should not be able to decide what you’re going to receive at one speed versus another. And if we believe Commissioner Clyburn, that’s not going to happen organically on its own. Berin, can you respond to that?

Berin: Yeah, that entire video is a calculated misrepresentation of the facts and the law. It is part of the ongoing hoax here that I referred to. The fact is, that a) under Title Two, there will still be prioritization. There has always been prioritization. That’s what internet service companies do today. So, the video is conflating two very different issues in such a way as to get people riled up like they have been. They are playing on fears of blocking, right? Which is, you know, the cable company is going to decide that you don’t get to see certain content. Right? Which is something that nobody wants to see happen. I don’t think is very likely to happen. There is no evidence that it would. But I would be fine with a rule that says no blocking. And that’s the kind of thing both the FCC could do under Section 7 of 6 and that there is clear demonstrated political consensus to do legislatively. But that’s not what we’re talking about. What we’re really talking about is that the FCC is being pushed to ban all prioritization, which has never been the case on the internet, has never been allowed under Title Two. And people like the people who produced that video and the supposed journalists who are writing about this but who are in fact editorializing have conned…

Nilay: Ooh, heaven forbid.

Berin: …people into thinking that that is actually what we’re talking about. There is a realistic possibility of the FCC actually doing that.

Nilay: I mean, really what you are saying is that the American public…

Berin: What I am saying…

Nilay: I mean, that’s what I’m hearing from you. They’re not good enough lawyers. You’re the best lawyer and all the people on the internet who are worried about real things that are happening to them, they’re lawyering isn’t good enough, so we should dismiss them. But what they’re actually saying is, ‘This is important to us. It’s important for this way in these ways and the FCC should use whatever authority it has to solve our problems.’ That’s what they’re demanding. And what you’re saying is, you need to jump through whatever…

Berin: They don’t know what the “it” is. They have been conned into say that…

Nilay: By who? By who? Who cons them?

Berin: This is the Left’s delusion. This is exactly like the Right being conned into thinking that the Obama Administration was going to run death panels. They’re both delusions by people in positions of authority in the media who have a political incentive to get their base stoked up…

Nilay: So, you’re saying when Genachowski proposed his initial Third Way plan using title 2 in forbearance, he was under some delusion. He was crazy in that, the plan that his telecom lawyers, maybe I’m a different kind of lawyer; I’m not a fancy telecom lawyer like you. But his telecom lawyers, they blew it too. That’s your position?

Berin: Austin Schlick fundamentally, the entire argument for Title 2 light, what he proposed early in 2010, which was opposed by 74 house democrats, the entire argument hinged on the idea that forbearance allows the FCC to…

Nilay: What I remember, what I remember…

Berin: …Let down Title 2 into a simple set of reasonable rules. And as I’ve tried to explain to you before, while it might be true that there is room for consensus about some set of those rules, the FCC does not have a workable process for creating that consensus. That’s something that only Congress can do, or the FCC can try to do to a limited extend through Section 7 of 6. Although at the end of the day, I have to say again that the courts I think will ultimately decide that 7 of 6 is not an independent brand of authority, which is just another reason why the FCC should leave this matter to Congress. 

Nilay: I mean, your arguing continues to boil down to, there are too many hoops to jump through. But what I am suggesting to you is that what happened with the original Third Way proposal was that they Right started screaming that the FCC was going to “regulate the internet”, riled up public opinion about “regulating the internet” which was inaccurate at that time as well and we ended up with the mess of the 2010 rules.

Berin: Yeah, which is why those 74 house democrats opposed the even Title Two light, because they were conned into doing that by the Right, because they were just lunatic conservatives. In fact, these house democrats, excuse me, understood what Bill Kennard, Bill Clinton’s FCC Chairman understood back in the late 90’s, which is that Title Two would be fatal to broadband investment and the overall health of the ecosystem and importantly, would in fact bring the FCC into regulating the very edge companies it says it’s trying to protect. They understood that; Bill Clinton’s FCC understood that.

Nilay: Well, how did Title 2 not, I mean, how do we not end up regulating AOL dial-up under Title 2 when we’re running it over the phone lines? I mean, that seems to be you point, is that if we impose Title 2 on broadband, we’ll end up by accident somehow regulating Google because it will provide service, internet services over broadband. But that didn’t happen in the dial-up era. We didn’t regulate what was happening on AOL. And in fact, the reason that AOL was, those companies were able to start saying broadband is an information service, is they starting pointing to all the services they were offering over title to telephone services and saying “But this is what we really do. What we’re really doing is building a combined service of an access layer and an information layer and you should not touch that because it’s different than the phone service that we’re actually using right now.” So why, how did we end up fixing that problem under Title 2 and avoiding it then but now we’re just going to rush into it blindly because our lawyers aren’t good enough?

Denise: But Nilay, I’m reminded of what you said at the time of the show about how we have to be careful to have laws that make sense no matter who is applying them. So, you know, we might have had good luck in applying title to, in the past, but if its ambiguous and, you know, is broad enough to encompass some nefarious kinds of results that we don’t want to see happen, then that needs to be fixed.

Nilay: Well, I mean, I agree but I am asking a simple question. If it is a one-to-one, if it’s, you know, the consequence is clear in position of Title 2, you end up regulating edge companies, why didn’t it happen?

Berin: It’s not clear. Look, but my point at the end of the day…

Nilay: But you are saying to me over and over again that it is clear.

Berin: Let me, let me make this as clear as I can. The arguments for Title 2 are essentially that the FCC will just say “Oop, Title 2, we’ll forbear or we’re done.” What will actually happen is that the FCC will spend years, first in its own proceedings, probably in a series of proceedings, going back and forth about exactly how to do, first of all, reclassification, and why it should reclassify some internet transmission services, broadband, but not other internet transmission services like voice communications and text messaging and services like Google, Google’s search for example, right, and exactly what those legal differences are. They will have to defend all that in litigation. That will go through several rounds. They will also have to defend every single one of the forbearance decisions they make under every single one of the 48 sections that comprise Title 2. So at the end of the day, the simplest way I can put this is, I don’t know what the outcome of that whole process would be. I can’t tell you exactly what would and wouldn’t be regulated. But I can tell you that it would take years and it would introduce great uncertainty into the ecosystem which would harm broadband investment, competitive deployment, new entrants like Google Fiber and yes indeed, they subject some internet’s services, some internet transmission services to Title 2 regulation. And so the question today is, do we want to go through that nightmare or do we, as Bill Clinton’s FCC Chairman decided in the late 90’s, do we avoid going down that road and instead find an alternative path? I would prefer that alternative path be new legislation but I’ve given you two other options. 7 of 6 would be a better option and also today, which would require no legislation, would be at least trying a multi-stakeholder process.

Nilay: I mean, why are those nightmares? Why are those nightmares of a lesser, I mean, all of that, all of it, right, is an endless series of litigation lawyer. And what you are saying is, we should do the slower ones because the faster one seems like more litigation lawyer

Denise: Ok. I think, I think…

Nilay: Why are those nightmares of a lesser, I mean, all of that, all of it, right, is an endless series of litigation lawyer. And what you are saying is, we should do the slower ones because the faster ones seem like more litigation.

Berin: SO, in 1996, the Telecommunications Act set up an elaborate regime for saying that, “Ok, there isn’t enough competition for telephone services. So we are going to mandate unbundling so that resellers can come in, artificially created so-called competitive resellers, and sell that component. The FCC spent 8 years trying to figure out how to apply that regime. Now what I’m saying is that that is exactly the kind of mess that you would see come out of the Title 2 process. And what would you get out of it? In that case, by the time the FCC had actually figured that out, the market had changed such that today, the telephone market is incredibly competitive. A third of consumers get their telephone service from their cable company, a third have switched entirely to get it from their wireless company, so facilities-based competition actually has worked there. And it can work here. We should be talking about the thing that you and I agree on, which is making it easier to deploy competitive networks.

Nilay: And we certainly do agree there. I just, I do not see, and you can characterize what I’m saying as nationalizing broadband which I think is a laughable characterization, but sure, I’ll take the, I’ll take the name. But what I see is a behemoth, a burgeoning behemoth that wants to get bigger, that is vertically integrating and that is setting the model for many, many other broadband companies who are providing a difficult-to-switch-from utility to American consumers. And that switching cost is so high, you don’t see it right now, but it’s so high that other competitors that come in are going to make it difficult. Right? There’s no, wireless broadband is great and people are switching to it and some people use it as a primary but it is so much more expensive. And those companies are colluding to make sure that you are buying a bundle of services instead of true competition where you would move to a different access layer. And I don’t think that the market is going to change so substantially that Comcast will find itself with it’s pants down the way the voice providers did, the telecast did.

Denise: Alright. You know, you guys, one of the most common questions we have gotten for people writing in to the show on the various net-neutrality discussions that we’ve had is, “Can we have some explanation of Title 1, Title 2 and the relative pros and cons of each approach?” And I think this show has been a wonderful explication or at least a good roadmap to the difficulties of the issue. So, I really want to thank you guys for hashing through this. I know that we could go on and on with it, but I do want to shift gears and Nilay, we’re going to go ahead and let you go…

Nilay: Yeah.

Denise: So that we can bring on a couple of guests to talk about some privacy-related things that happened this week; the decision of the Court of Justice of the EU relating to the Right to be Forgotten. But we’re not going to forget this show anytime soon and I’m not going to forget how grateful I am that you were able to join us today Nilay.

Nilay: Yeah, I enjoyed it and Berin and I enjoyed the conversation as heated as it might have become; it was a good one.

Denise: Yep, me too. And really, really, really, no, Berin’s still here, I think. Berin, you’re still here, right?

Berin: Well I have to say I don’t enjoy this conversation. I would rather have a conversation about how to promote broadband deployment and how to actually write a new Telecom Act that makes sense in the real world. I’m tired, as you can probably tell, of talking about imaginary problems and imaginary legal authority for the FCC to solve them.

Nilay: Yeah. No, you’re a great guy. I’ve gotta go, bye.

Denise: Nilay, we’ll talk to you soon. Thank you, bye-bye. And Berin, why don’t I ask you to finish out your thought there. Echoing Commissioners Pai and O’Reilly that this is a misstep at this point and that the, speaking of forbearance, the FCC would have been wise to forbear here and wait for Congress to step in and give clarification. Title 2, we’ve been talking about, was going to be politically difficult on a number of fronts. DO you think that if the FCC hadn’t jumped into the breach, uh, and proposed new open internet rules, it would have been politically difficult in other ways?

Berin: Well, sure. But what I am saying here is that Title 2 is a crazy option. It, and anybody who understands the downsides of Title 2 and the difficulty of forbearance, I don’t see how they can take it seriously. So the question, it’s pretty clear that the Chairman has been trying to push through what I think are relatively reasonable set of rules, though not ones that I would ultimately support, but relatively reasonable set of rules under Section 7 of 6. My basic point is that he has been pushed into having to go through this farce of considering Title 2 because of the mob mentality, the hysteria around this has been drummed up by activist groups like Free Press and some very shoddy journalism in this area. So, I understand why he’s doing what he’s doing but my prediction, descriptively, is that the FCC will do what it was going to do anyway, which is to propose rules that look very much like the original rules under Section 7 of 6 and the people who’ve been screaming about the neutrality will continue to use this as an issue to raise money and be politically active and get people riled up about internet policy when it was never a realistic option in the first place. But the rules that the FCC proposes will be ample to deal with whatever conjectural problem there actually is. It’s just that I would, I would prefer, and I think it’s better for everybody, that this issue be left to Congress so that the FCC actually has a workable legal toolkit for addressing not only this problem but other consumer protection and competition issues raised on the internet. That’s really only going to come either through a shift to multi-stakeholder processes or writing a new Communications Act.

Denise: Right.

Berin: And, let me just, just get one more point, Denise, on your point about Title 1 and Title 2. The thing people don’t really understand is that the Communications Act has silos. Cable is Title 6, wireless services are Title 3, Title 2 is for common carriers like traditional telephony and Title 1 is, is everything else. It’s internet and information services and the FCC has limited the ability to regulate those by design. SO what we’re really debating, this really comes down to, is, there is a movement for the FCC to do, like a Title 1.5, something in the middle.

Denise: Right.

Berin: And what I’m trying to say is, you can’t trust the FCC to do that by then switching the presumption to Title 2 and then trying to crawl back from that through forbearance. And 7 of 6 has its own set of problems, including the fact that 7 of 6 lets the FCC regulate the entire internet in any way that they think will promote broadband competition which could include cyber security or copyright or decency or who knows what else. SO the only way to deal with these problems is new legislation. And the worst thing about the FCC persisting in trying to act here, is that it saps the political well for compromise. No one on the hill will ever, ever write legislation until the agency goes to them and says “You must act.” That is the only thing that will get us a new act.

Denise: Yeah. It doesn’t seem like they’re rushing into the breach that seems to exist without an affirmative request from the agency. Well, I think, you know, the discussion today has been really good and back and forth and informative and heated and I know people have been out there munching away on something while we’ve been going at it. If you haven’t been, now would be a good time to think about taking a break because we have a sponsor for this show that I’ve not had a chance to thank and I’m going to do that right now. And that is, NatureBox. And, if you are out there eating something greasy or awful, I’m really happy to be able to point you to this company, because it’s a far better choice for your munching away opportunities during TWIT. Because you want to be eating right when you’re starving or cranky or all hopped up over the politics on your favorite show about technology law. Stay away from those evil vending machines or the other kind of junk that you might have laying around and you want to check out, instead, naturebox.com/TWIT. Because when you do that, you’ll get three different subscription options for some really healthy and delicious choices. You’ve got three options, you can chose any one of them and then you select what snacks you want to come each month and you can fine-tune this very nicely. There are vegan, soy-free, gluten-conscious, lactose-free, nut-free and non GMO options available. You can select by the kind of tastes that you like. I am a savory person but you might like sweet or spicy a little bit better. NatureBox then sends great tasting snacks right to your door with free shipping anywhere in the United States. We’re talking healthy and satisfying snacks like banana bread granola, peppery pistachios and over 100 more, all with zero trans-fat, zero high fructose corn syrup and nothing artificial. NatureBox is the snack-happy gift that keeps on giving. Order a three, six or twelve month subscription for that special someone, family or friend and don’t forget swimsuit weather is almost here. Believe me, here in southern California it has arrived big-time. So you want to snack smarter. Forget that vending machine and get in shape with healthy, delicious treats like South Pacific plantains. So, remember to get fifty percent off your first box, go to naturebox.com/TWIT. Stay full, stay strong, go to naturebox.com/TWIT. Thank you so much NatureBox for your support of This Week in Law. Alright, well I’m not sure if Mark Paulding had to finally run because we were keeping him a little bit over the time we had anticipating getting him on the show, but we’re going to soldier on without him. Hopefully we can get him on at some point to discuss the privacy stories that we saved for the end here and the really big one I am sure folks have been reading about is that the Court of Justice of the European Union, which is the European Union’s high court, issued the decision on a case that’s been rattling around in the U for some time which had to do with a gentleman who did not like the fact that you could find information about the fact, I think his home had been foreclosed on online and he’s been suing about this. Its’ been working its way up the courts and the High Court of the EU has decided that he and others like him have the opportunity to go to Google and other search engines and have that kind of information removed. Now the logistics of this have yet to pan out and we’re very fortunate that we have Maria Murphy, who is a privacy professor at Maynooth in Ireland.  Hello Maria.

Maria Murphy: Hi, how’s it going?

Denise: It’s going really well.

Maria: Good.

Denise: I’m so glad you could join us today. I’m sure you’ve been paying a lot of attention to this decision. Why don’t you see if you can put it in context for us and give us how you think it’s going to play out?

Maria: Well, the context is that the Right to be Forgotten is a right that’s getting a lot of attention in recent years that part of the new proposed amended regulation that’s going through the procedures, being worked through the legislative houses and at the moment the one major element was that this Right to be Forgotten was to be strengthened. So some people don’t like to use the term so much, it’s really just a strengthening of traditional rights of erasure. So we don’t have our new legislation yet. It’s still being debated, it’s being held up to Council of Ministers. What we do have is the old 1995 directives. So, quite an elderly piece of law really, governing such a modern area. And this is what we’re dealing with at the moment and that’s what the court was using along with the Charter of Fundamental Rights of the European Union which protects both a right to private life and a right to access to information. So, what you said, we have the Spanish national who was unhappy with some articles that appeared as Google search results following a Google of his own name. So that’s a crucial part of the decision of the fact that it was the Googling of his name, so it’s the connection between the personal information with his identity that is an important point. It’s not necessarily some sort of broad scale censure of search engines in general and crucially, it does not require the content itself be taken down. I think that’s something that changes the debate between whether this is a major conflict for freedom of expression because the actual expressed content is still there, is still accessible online, perhaps even using Google, just using modified search terms.

Denise: So, for example, if I were searching for closure in the town where this gentleman lived, as long as I was not searching on his name, I might well get the same article.

Maria: Exactly. So, legitimate reasons for studying this issue would lead you to the correct article, the correct information, but perhaps a search on a job candidate or a date you are going on wouldn’t bring up his potentially excessively prejudicial information.

Denise: And, can you tell us, I am sure your understanding of how U law and policy get enacted is far superior to ours. We have this decision from the court now but from the coverage I’ve seen, it’s going to remain to the individual countries to decide…

Maria: Yeah

Denise: …what to do with it, how to enact it.

Maria: Well, the current governing legislation and data protection is the data protection directive. And directives in EU Law are where this general framework set out and certain goals to be achieved but member states bring about the law, incorporate the law in the their own way. But there are specific guidelines and certain, certain elements that must be achieved in national law. So, under the current situation, most states in Europe have their own data protection acts and under these acts, everybody’s obliged to establish their own data protection authority. So, under the current rules based on which member state you are a national in, you obviously approach Google or Yahoo or Bing, ask them to take down the information that you believe is contrary to your rights. If they, after balancing the competing rights there, believe that “No, we’re going to leave it up, it’s important for freedom of expression, for access to information”, then you can then go to your own national data protection authority. So, here in Ireland it would be the Data Protection Commissioner and he then could investigate the situation and determine whether he or she believes that it is a disproportionate interference with your right to private life.

Denise: So Berin, you’ve been watching this as I have from across the pond here unfold. We obviously have a very different approach here in the U.S., although we’re starting to see that approach chipped away at, at least here in California we have a law that will take force in 2015 that is an erasure law as applies to minors. So, the states are at least starting to flirt with this kind of notion here, and I’m wondering what your take on that is.

Berin: So, I think there are two big issues. One is erasure, and in the U.S., fundamentally, we have the First Amendment. So, Google has First Amendment rights to run its search algorithm the way they want and they don’t have to take stuff down. And that’s because, second, in the United States back in the late 90’s, just to talk about the legacy of the Clinton Administration, they got it right with the general hands-off-the-internet approach, and one part of that was, we were just discussing, about how they regulated broadband and telecom. But the other part of it, most importantly, was saying that we were not going to, to so-called deputize intermediaries. So, in copyright, we did do it. And the way that that works is, we have a notice and take down system where Google, if they run a search engine, or YouTube or whatever, if somebody alleges that there is infringing material on the search engine, they can send in a notice and there’s a counter-notice system that imprints a little bit of control but not a lot. And the result is that a lot of material just ends up getting taken down. Now, the problem is, if you were to apply that kind of thing to privacy or defamation or any kind of user content, what is nominally a notice system, you know, “Please take down this content”, becomes a system of censorship because it becomes a system where it’s just not implementable. So, if the intermediary, that company in the middle gets a request that says either, “This is defamatory, please take it down” or “This invades my privacy, please take it down”, they’re just going to take it down. They can’t possibly do even the minimal level of control and evaluation that they’re able to do with copyrighted material. And so what you end up doing in the name of privacy is creating a system where it’s now very easy, or could be, depending on how the implementation works, just to have material taken down that you don’t like, that may not be about you. You could pretend to be somebody. And the practical challenge of having to deal with tens of thousands or hundreds of thousands or millions of potential requests on a site like Google or Facebook or Twitter is such that either they’re just going to take down content, or many smaller sites are just going to stop offering user forums where users can post comments that someone might allege as defamatory or invasive of privacy, as in this case. So it’s an implementation nightmare that fundamentally chips away at the basic hallmarks of free speech and Europe’s just got it wrong, again.

Denise: Maria, can you tell us what the actual standard is. You know, you’re someone in the EU and there’s something that’s coming up in search results about you. It could be a news article, as in this particular case, maybe it’s an unflattering picture. Is there any sort of standard or can you request that anything be dissociated from search results relating to your name?

Maria: No, there are some limitations, but again, I will concede there are difficulties of definition here because what is, for example, irrelevant for one person may not be irrelevant to another. So, the Court lists some factors which are grounds to have your information or your search results potentially erased if the information is inaccurate, if it’s irrelevant, excessive or out of date. So I think part of that actually goes to your second point there. While I think there is implementation difficulties here, and we certainly will see increased costs for Google whether they choose to implement this decision through technical means, through altering their algorithm, or simply the expenditure on greater manpower, we will see an increase in the level of costs here. But this is important to the position that they place the importance of fundamentally protective rights above the business interests of companies. So, on the second point, regarding, I forget what it was again now, regarding, sorry, can you remind me what the second point was again?

Denise: You, you mean my second example?

Maria: No, sorry, um-

Berin: I think she’s asking about what in the United States is Section 230, which says that intermediaries don’t have a legal obligation to-

Denise: Yes.

Berin: -be responsible for user content.

Denise: Right. So, in the United States, Maria, we have this rule that if you are operating a website and people are posting up things that may be defamatory, for example, there’s a whole other regime that applies if you’re posting up things that may involve intellectual property infringement, but in the realm of defamation, there’s strong protection for sites that they are not liable. And what that does is, it fosters, you know, a good deal of open discussions, sites can be fairly comfortable that if they’re not exercising a lot of editorial control over the public discourse on their site, that they’re not going to be held legally responsible if one user defames another, for example. So, how do you think that that, and obviously in Europe there are laws that would apply and maybe, you know, I have no idea whether any kind of parallel exists in any of the European countries. But Berin’s point that if you’re going to have to just take stuff down all the time or disassociate things from search results, that maybe not having spirited debate and discussion would be the preference to a whole lot of red tape –

Maria: Yes.

Denise: - in infrastructure. Is that a concern for you?

Maria: So, of course it’s a concern. It’s something that you need to be mindful of. But the reality is, I am a little bit dubious always of fears being expressed from industry concerning how this is going to destroy their business model at the expense of human rights, of ordinary people. Because remember, this particular ruling aims to protect ordinary people, the kind of people who don’t have constant search hits turning up for them that can hide maybe the embarrassing ones from years past. Those one or two mistakes they made in the past will remain at the top because that’s the only internet presence they really have. In terms of the implementation by Google, there is some noise at the moment already about the fact that Google does actually have some contingency plans regarding take-down notices, I suppose along the lines of copyright take-down notices.  I would be somewhat suspicious that it’s going to be all detrimental to the provision of information as has been made out. Of course search engines will argue that and they’re perfectly entitled to, but at the same time, it’s beneficial for them to include these types of results, to be able to engage in the debate. That is what keeps their business model viable. So as a result, I don’t believe that it will be a mere case of deleting anything somebody makes a complaint about.  But if you set up a system where, for example, algorithms could have it automatically set so that if certain factors are reached with a particular article or website that some of it has to be taken down, then that could receive further review.  For example, if a webpage is only a year old, it’ll be much more difficult to have it removed. If someone claims in their hand that it is defamatory, then that will get pushed to the front of the pile. Irrelevant of course is going to be a more difficult decision to make. But if it’s someone in the political light or a celebrity or someone that the public have a legitimate interest in, then Google or Bing will be able to dismiss that a lot more quickly and they benefit a lot from actually including stories covering these type of stories are in the general public interest.

Denise: Does it seem, does it seem strange that someone in the U.S. could maybe be doing research on an individual in the EU and get a different set of search results than someone in France might get?

Maria: I think it seems strange because of what we’ve become used to. Because the Web is very globalized, and I’ve heard some comparisons between what might happen with the organization of the Web along the lines of what we might have in China with censorship. And I think that’s, I just, I think it’s unfair because what you’re going to have is, when you are focusing on the little guy, on the average person, who wants to remove, as you said, an embarrassing photo or a bankruptcy filing, they care about what the people around them think about us. They care a lot less about what someone in L.A. or Philadelphia thinks about that information. What matters to them, is if the person they’ve met on an online dating site or a job interview they’re going for has seen that information and whether they will use it prejudicially against them.

Denise: Yeah, it will be interesting to see how this plays out. I mean, it’s just so unlike what I’m used to, that it’s difficult for me to get my head around and think, either would be workable for the search entities or necessarily a good idea for news gathering entities. I mean, the notion of making publicly-available information about someone less accessible is, is a difficult concept for me to get behind personally I guess. But I do, I guess, sympathize with people who would like to be able to leave some things behind and move on. But I just, you know, I guess the EU High Court sympathizes as well, but it seems to me in today’s day and age that’s sort of a naïve thing to hope for. Berin, any final thoughts on this?

Berin: Your skepticism, Denise, is well founded. What we’re talking about here is censorship. And it might be, we can think of lots of examples of instances where this could be a good thing. And I have no doubt that the people who are pushing this are well intentioned, and Maria is absolutely right; they are real people who have a hard time because they might have a unique name, like for example, mine. Right? So, I understand what we’re talking about here. But I think we should all be deeply disturbed by the practical, first of all, its two things. It’s the precedent we’re setting here, which is, it’s ok to go back and airbrush history, which is what tyrants do. Right? I mean, I think this is really important. We’re talking here right now in the United States about the open internet and at the same time the Europeans are saying, “Well, we just want the internet to be a little less open. We want it to be safer, more controlled, and we need to be able to edit things out.” Right? I mean, there’s a strong parallel. And that parallel becomes even stronger when you actually look at the practical implementation of this. So, Maria is, she talks about the bottom line of companies? Look, who cares about the bottom line of companies. Google, Google is not concerned about this because it’s going to cost them money. If anything, Google is better positioned than anybody else to deal with this kind of regulatory burden because they can have complicated systems like, on YouTube, they have a system called Content ID that does algorithmic filtering. And that is somewhat effective but what’s really going to suffer is, is the other companies, smaller companies that can’t possibly comply with the burden in any meaningful way. And again, their either going to take down content willy-nilly or they’re not going to offer the robust, social networking functionality that exists. So, and finally, just one ironic thing I would point out is that this is also going to further drive bright European entrepreneurs to Silicon Valley. You go to San Francisco and you hear French, German, Spanish, Italian, spoken everywhere because those people can’t start successful companies back in Europe. They all come to the United States because the, the hysteria about threats to the open internet here, we actually do have an open internet. And it’s open not because of net neutrality regulation or other forms of government intervention but because of Section 230. That 1996 law that I think is the bedrock of internet freedom in this country that has made possible every single social platform by not holding them responsible for filtering what their users do. That would not happen without, without that kind of immunity, and Europe has just gone in exactly the opposite direction.

Denise: Um, Maria, to the point of start-ups paying attention to privacy issues and whether they’re doing it in San Francisco or in the EU, it seems like that is an issue that really is at the forefront these days, particularly, you know, the phrase “The internet of things” gets bandied about quite a bit. There are conferences hither and yon about having the various devices in our lives gathering information about us as they try to enhance our lives and existences in various ways. But that privacy baked into these kinds of arrangements isn’t necessary always happening and it seems like perhaps we’re on a collision course not just for privacy sensibilities in the EU but, I think, globally. You know, people are not ready for the day when their car is a repository of data about them that could be mined either for commercial or investigative purposes. And I’m just wondering as we close out the show here, what your take is on this and what developers, technologists working with these kinds of cutting edge arrangements should be thinking about.

Maria: Well, it certainly goes without saying that it’s become a much bigger issue for tech people generally and I think a large part of that is down to regulatory bodies such as the EU, legislative bodies in California and states that are privacy focused. And if it wasn’t for these types of legal mandates, we wouldn’t have such an effort to actually think about privacy at the design stage. So, as you point out, with the internet I think this is one of the most important points going forward and it’s something that is being recognized throughout the globe, it’s being recognized in the new proposed State of Protection regulation, that we need to have privacy by design here. Now, how this is actually going to play out is really difficult to predict because it’s just so complex and the technology is so complex that, you know, lawyers like myself, regulators don’t always have the technological understanding to really be able to grasp these issues so we really have to trust to a large extent and make some efforts to raise awareness amongst technological community as to ensure that, particularly security and data is probably one of the major issues regarding how data is shared between different connected devices, how it’s stored in the cloud, how is that protected and how can we encourage technologists and innovators to think about this at the formation stage as opposed to thinking about it, “How am I going to comply with data protection law?” Actually, if they set up systems where the data is safe and, you know, where necessary it’s anonymized or protected, then everything should run more efficiently and you won’t need to be facing up to the authorities.

Denise: Right. Dan Gilmore did an article in the Guardian recently that references a wired article talking about medical gear in hospitals and that, you know, how that’s just not where you think. Maybe you’re thinking about your car as a place that could gather a lot of personal data about you; certainly your phone, maybe various devices in your house that are chronicling, you know, your day-to-day life. But when you think about something like a drug infusion pump, it’s not necessarily the first thing that the people developing that item would think, “Gee, we better think about data protection and people’s personal information and”…

Maria: Yeah.

Denise: …and that’s where we need to go as a society, it seems like.

Maria: Exactly. So, that article is quite apocalyptic in how it frames the issues because we’re quite used this, ok, this term “data protection” sounds very sanitized, very boring, something that we really shouldn’t be concerned with. But when you are thinking about someone potentially hacking into medical equipment to cause large-scale terrorist attacks or to target an individual with some type of completely technologically carried out assassination where you have this move from purely intangible electronic attacks to actual physical attacks that could be carried out through in sufficient security measures not complying with all the principals that, you know, we’ve learned over the years, that we’ve grown to accept as being at least valid in this kind of framed-off commercial sense. How they actually could have very real world, physical effects on all of us.

Denise: Alright, Berin, what do you think? Is the market going to take care of this if we’ve got the privacy-respecting drug infusion pump on the market versus the one that is easily hackable? Is that a sufficient, do you think the market is sufficient to make sure that the privacy-respecting one prevails or where do you stand on this?

Berin: Look, there’s a role for government here, right? And this is what the Federal Trade Commission does if companies really have inadequate data security that really does potentially harm consumers. I’m fine with saying that’s an unfair trade practice or companies have deceived a consumer. So, I don’t have a problem with the role for government. The question is, “How is it going to be administered?” And this is actually the thing I’m working on now in general, and I’ll spare you the details, but if you’re not going to write down formal regulations because it’s too hard to decide what good data security is at any given time, that’s ok. You can have a flexible approach. But then the process becomes really important for deciding whether a particular process really is harmful to consumers, cuz sometimes it is just clearly harmful and it’s an easy case. But sometimes it’s ambiguous. How much more should a company spend on data security? Sometimes data security, there are trade-offs. I mean, we could have two-step authentication to log into every single website on the internet and that would make us more secure but it would also be a nightmare for consumers. So, the point is that the regulator, in the US that’s the Federal Trade Commission, really has to have a careful toolkit for approaching the problem and deciding when it’s appropriate to intervene. Right now they don’t have that. They just kinda make it up as they go and that’s very disturbing too.

Denise: Yep, I can see where this whole situation is, as you were saying Maria and as the wired article was suggesting, fraught with possibility for missteps and disasters and that government entities that are designed to prevent that need to do it and need to do it in the right way. We’ve certainly seen the EU this week taking, as it has wanted to do, action toward protection of consumers privacy and I’m sure we’ll continue to see that develop. Maria, anything from you further that you want to let us know about from Ireland that would be interesting or relevant to what we’ve been discussing?

Maria: Well, I will make a pitch if you don’t mind, actually…

Denise: Sure.

Maria: …regarding here in Maynooth we’re taking part in this around-the-world symposium next week, so we’ll be live streaming on Surveillance in the Digital Age from here and I think at the University of Alberta and some universities in the UK and everything. So, if anyone is interested in following our discussion on that, we’d love to have them.

Denise: Sure, where can they follow along with that?

Maria: Well, the hashtag is #aroundtheworldsymposium and just Google that and you’ll find your answer.

Denise: aroundtheworldsymposium.

Maria: Yeah.

Denise: Ok. Well, just to drive that home, we’ll make that our second MCLE passphrase for the show. Hashtag aroundtheworldsymposium. And, let’s see, sorry, I’m getting something on Skype in the background there, and we’ll check that out. What is the date?

Maria: The 21st.

Denise: Wonderful. Ok, so we’re going to go ahead and give you a tip and a resource of the week to close out the show. The tip of the week comes from Cash Hill, again, it jives very well with the discussion we’ve been having about information that people get creeped-out by entities having. Shutterfly had a debacle this week where they were attempting to market to new parents and suggesting that birth announcements might be a nice thing for people to purchase. But however they were deciding to send out their blast email and advertising on that, they managed to capture a lot of people who hadn’t had children at all and the notion that a site that people are using to share photographs and sort of organize their personal lives is trying to determine when they’ve procreated or not has definitely raised some hackles, not to mention the fact that some of the people that received this notice had sensitivity about the whole birth process, either people who had been undergoing fertility treatments for a long time without success or recent miscarriages, etcetera, and then to receive a birth announcement, was really counterproductive on the marketing front. So, our tip of the week is: Be very very careful if you are going to attempt to sell people baby products because you’re opening up a whole can of worms. Of course Target has been involved in a whole debacle about this as well, so if you’re going to be crunching your customers’ data for that kind of thing, do it the right way or don’t do it at all. And then our resource of the week is a piece in The Economist. This is kind of just for fun, something kind of sad though. You know the great video of Commander Chris Hadfield on the ISS, where he was playing David Bowie’s Space Oddity on the Space Station, he actually, you know, went to the trouble of getting copyright permission for that, the permission that NASA was able to obtain, though, only lasted a year and it just expired. So, over at The Economist there is a piece called “How Does Copyright Work in Space” and if you have questions about that at all and the process that applied to that video, which we are sad to see go, then check out the Economist article. Maria and Berin, I’m so glad you could join us today. Very busy week and we couldn’t just ask for more informed and enlightening folks to help us get through it all. Maria is a lecturer in privacy and human rights oriented issues at the National University of Ireland at Maynooth. That’s near Dublin, correct?

Maria: Yeah, just outside.

Denise: Very cool. Well, someday we’ll have to get over there and treat you to a pint of Guinness…

Maria: Very well then.

Denise: But in the meantime I’ll do it virtually and just, thank you so much for joining us today.

Maria: Thanks for having me. Best of luck.

Denise: And Berin, great to have you back on the show. Thank you so much for helping open our eyes and better understand the tussle and complex range of issues around net neutrality and we will continue of course to unpack these issues in the next months as the new Open Internet rule is open for comment and discussion.

Berin: Thanks for having me.

Denise: Great to have you back. Anything going on at TechFreedom? I know you guys always are having good discussions and conferences yourselves.

Berin: Well on Monday, actually, we’re doing an event on the IP transition which is turning telephony into an app over the internet and that’s actually very related to the debate we were having about net neutrality. So, that’ll be live-streamed at noon, it’s going to be on C-SPAN as well. Encourage you to tune in, and as always, we have both sides of the debate there and the fundamental goal is really to explain a complicated issue; what the IP transition is all about, what it means, why they’re doing it and what the legal issues are, which are, as I said, parallel to the issues we were discussing today. Except in that case, it’s really a Title 2 service  potentially going to Title 1, and really, the question is whether you should keep telephony in Title 2 or use other tools. We’ll be discussing that on Monday.

Denise: Thank you so much for flying to your office and getting in there as soon as you could and coming on the show.

Berin: Well, sorry for the meltdown. I was literally a little hot because it was also very hot when I got in here, that, nobody else was in here today and the air conditioning was off…

Denise: Oh no.

Berin: …and I wouldn’t normally be so, quite so obnoxious and I apologize for the meltdown.

Denise: No problem, you know, I think, you know, I was following along and people following along in chat realized that these are difficult and emotional issues and I do think, and some of the comments in chat were echoing my thoughts, that even though you and Nilay were both, you’re on opposite sides of this debate but I think trying to have civilized discourse around it anyway instead and so we greatly appreciate that. And folks if you’re not already following along at TechFreedom you should. They have their own Twitter account. Berin is of course on Twitter as well as is Maria. I’m on Twitter too, you can reach me there at dhowell. Evan, my cohost, who couldn’t join us this week, his internet case is over there. Twitter is a great way to get in touch with us to let us know about topics you’d like to see on the show, guests you’d like to see on the show, feedback about the past shows, suggestion about future shows. We’re always on there, so, great way to reach us. If you have something more private or requiring more characters, you can email us. He is evan@twit.tv , I am denise@twit.tv. We have a Facebook page and a Google Plus page for the show, happy to engage over on those forums as well and we do record the show live every Friday at 11:00 Pacific time, 1800 UTC. That’s a great time to tune in and see us, warts and all, no editing or post-production. We do some light editing in post-production just to help your ears not bleed too badly for any hiccups we’ve had during the show and then we release it on YouTube and in ITunes and various other places including on our twit.tv site at twit.tv/twil where you’ll find our whole archive of shows going back to the very beginning. So, those are always there for you and we hope you’ll check them out and continue to tune in for This Week in Law. Thanks very much for joining us today!