This Week in Tech 484 (Transcript)

Leo Laporte: It's time for TWiT, This Week in Tech. It's kind of a special episode this week! We've brought in two Internet service providers to talk about regulating the Internet, net neutrality, title II, and more. It's our special edition on net neutrality. Join us for TWiT.

Netcasts you love from people you trust. This is Twit! Bandwidth for This week in Tech is provided by Cachefly at cachefly.com.

Leo: This is TWiT, This Week in Tech. Episode 484, recorded November 16, 2014.

We Don't Touch Your Bits

This Week in Tech is brought to you by audible.com. Sign up for the platinum plan and get two free books at audible.com/twit2. And whether you're a customer or not, you can get Bryan Cranston's hilarious narration of "You Have to F***ing eat it." At audible.com/cranston. That's free. audible.com/cranston. And by Citrix GoToMeeting, the powerfully simple way to meet with coworkers and clients from the convenience of your computer, Smartphone, or tablet. Share the same screen, and see each other face to face with HD video conferencing. For a 30-day free trial, visit gotomeeting.com today. And by SquareSpace: The all in one platform that makes it fast and easy to create your own professional website or online portfolio. Now introducing Squarespace 7. With even better site management tools and other improvements. For a free two-week trial, and 10% off, go to squarespace.com and use the offer code TWIT. And by NatureBox. NatureBox ships great tasting snacks right to your door. Start snacking smarter with wholesome, delicious treats like agave citrus granola. Oh man! To get your complementary NatureBox sampler, visit naturebox.com/twit. That's naturebox.com/twit. It's time for TWIT: This Week in Tech, the show where we cover the week's tech news and we have a very, I think an important TWIIT this week, which doesn't mean it shouldn't be interesting and fun, but we have some important topics to introduce. Let me first introduce our panelists who are joining us this week. Formerly of Pebble, before that you were at Engadget, right?

Myriam Joire: That's right.

Leo: Myriam Joire is here. Great to have you.

Myriam: Hi everybody.

Leo: And what are you doing these days? You're looking for work?

Myriam: I'm looking for a gig so if you guys want to bing me for something.

Leo: Hire Myriam.

Myriam: Yes. You know, I've got some time.

Leo: But even when you were at Pebble, you continue to cover mobile, you cover all of that stuff. And frankly, I've got to be honest with you. I don't know, given Androidwear and the imminent Apple Watch if there's' much future for Pebble to be honest.

Myriam: Androidwear.

Leo: Oh she's wearing a Moto 360. That means you, my friend, are apostate. You have left the fold.

Myriam: I'll be honest with you. You know how I review phones on my blog and I can't make up my mind? Every day it changes. I still wear my Pebble. It's just today was a 360 day.

Leo: I love my 360. You know last night we were watching a movie? I paused it from my watch.

Myriam: Isn't that amazing?

Leo: That's pretty cool. Nice to have you Myriam. Also here, Mike Masnick. I didn't know, but Mike has been on TWIT once before, like 300 episodes ago.

Mike Masnick: Many many years ago.

Leo: But I'm a huge fan of Techdirt. I read it religiously, mostly because of your commentary, although you've gone well beyond that. For years since the late 90's Techdirt, and it always felt like it was you, Mike, like a voice in the wilderness shouting against government surveillance, against big companies, about copyright, copy protection. In fact, really I remember you most as an opponent of copy protection in general. Now Techdirt covers everything.

Mike: Yeah, well, we've covered a lot of things for a lot of time, and I think a lot of people associate us with the copyright stuff, but it's whatever is happening in innovation technology, technology policy we think is interesting.

Leo: Today is going to be a different TWIT because we're going to begin with a conversation about net neutrality. President Obama on Monday announced his support for something that the EFF and a lot of privacy advocates and net neutrality advocates have suggested, which is that the FCC should regulate internet service providers as common carriers. This is a provision of the telecommunications act. Some have said that's a bad idea. That's over regulating it. Title II allows things like rate regulation. Others have said it's the only way the FCC can reasonably prevent paid prioritization fast lanes. And I think we all agree that's something we don't want. So I thought what we'd do is bring two people who have quite a bit of interest in what the FCC is about to do. Two Internet service providers, you probably remember Brett Glass from his appearance on Security Now a few months ago. He is a wisp. He does a wireless Internet service in Laramie, Wyoming. Great to have you, Brett.

Brett Glass: Yes. Good to be here.

Leo: For many years, a tech journalist, a commentator, but this is your full time job now is providing Internet service for the small town of Laramie.

Brett: It is correct. For Albany county Wyoming with an average population density of 5 people per square mile.

Leo: So particular challenges there with being an Internet service provider, I'll agree. We also have with us an old friend. A guy who has been on the screensavers. I've known him for years. Dane Jasper, he's the CEO and founder of one of the best independent Internet service providers in the country. Sonic.net. It's great to have you today, Jane.

Dane Jasper: Thank you, Leo. It's nice to see you.

Leo: Not Jane. Your name is not Jane, it's Dane. You know, I've been a Sonic customer for years, we use Sonic here in the brick house along with Comcast, you consistently get great report cards from people like Google on your privacy rules, EFF and others who've said Sonic Net is one of the few internet service providers who just doesn't cooperate with the government. As far as I know, you're the only ISP to step forward and say we support Title II. In just a bit, and I have a feeling I'm guessing, Brett, that Title II is probably not something high on your list of good things.

Brett: Leo, that's correct. It would especially for a small ISP like me, Dane's ISP is much bigger; it would involve an insurmountable amount of red tape. There are more than 3000 small ISPs in the country, and most of us could not afford the regulatory burden. There are also problems which I'll get into as we get into the discussion.

Leo: Great. I think that before we get into that— And by the way, this isn't a debate exactly. I don't want a lot of heat. I want more light. I want the whole idea is for us to hear. And Frankly, I'm on the fence. To hear what the pros and cons are. I feel pretty confident that we need to do something to protect an open Internet. I don't feel like the really big ISPs like Comcast care particularly about an open and free internet, and I really feel like the future of the nation of our Democracy, of how we live depends on an open internet. I feel like it's almost, maybe a human right. But I'm not sure, and I think probably a lot of you at home feel the same way, what the right way would be to protect this and preserve it. I am sure the right way to do it would be to have true competition. If everybody in this country had 12 ISPs to choose from, you could pretty much guarantee at least one or two of them would offer an open Internet solution, and that would be the one you choose. But unfortunately, about 80% of the people in this country have at best, two choices. Your phone company and your cable company, and both of them seem to be colluding against an open Internet. So that's what we're going to talk about. But before we get into this, again, I hope this will be a chance for us to learn something. If you're in the chatroom watching live, I'll make sure that we include your thoughts and comments as well for Dane and for Brett. And Mike and Myriam, I encourage you all to participate. But again, I don't want us to descend into a shouting match, which sometimes does happen when we get into this. This is one of those hot button topics that people are very very passionate about. We've brought two of the smartest guys in here to talk about this, so I think we can do a good job of it. Before we do, though, let's talk a little bit about audible.com. Just a quick mention of one of our favorite sponsors. 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Dane: If Title II was enforced would you have to bleep that, Leo?

Leo: Well that's an interesting question. I was talking on a radio show, Armstrong & Getty this week, and radio people have no love for the FCC. They hate the FCC. If I say a bad word on the radio, not only could the station be sued, the network be sued, but I could be sued and we could all be out of work. Just look at the Janet Jackson wardrobe malfunction. Not only did that cost the network, it cost all of the individual stations a lot of money. So people are very afraid of the FCC, they don't really like the FCC.

Dane: Well, and to tie that back, until the neutrality proceeding and the 3.9 million comments on that, Janet Jackson's nipple slip was the most commented. Most complained about, so the FCC does have an interesting duel role there.

Leo: So, one thing we could acknowledge up front. The FCC is run by Tom Wheeler, who is a long time lobbyist for both Cable and the wireless industries, he replaced Julius Genachowski who was an Obama crony would be one word. Genachowski, when he was chairman of the FCC, proposed open Internet rules. Those rules, Verizon sued and won in court. The court said, "You don't have the portfolio. Congress hasn't given you the power to regulate— to promulgate these regulations. But the court did say there is a path. There is a way. And it seemed to me that the court, if you read the opinion of the court, very much believed in the idea of net neutrality— of an open internet, but they were compelled by law to say, "You don't have congressional authority to do that." And they said, "however, we think it's important, and you ought to consider Title II of the Telecommunications Act. Let me start with you, Brett. First of all, do you support an open Internet?

Brett: I do support an open Internet for some value of the term. One of the problems with net neutrality and also the term "open internet" is these are buzz words that aren't clearly defined. They vaguely smack of some kind of fairness that would be enforced by the government, but fairness is in the eye of the beholder, and the regulations that claim to be open Internet regulations that were passed in 2010 were anything but fair in a lot of ways. In any case, what people tend to do though, is they tend to claim that internet providers, including me and Dane and certainly the cable and telephone companies are somehow evil and must be regulated, and somehow the internet will close up shop or somehow be restricted if that doesn't happen. That tends to be the argument and the reason for concern. The reason why people are considering Title II. Now, unfortunately, it's unclear, Leo as you began to mention, whether in fact Title II would be any better. A former FCC commissioner, by the name of Michael Copps, who is no longer a commissioner but was until very recently, was talking about applying Title II to the Internet. He was an advocate because he said, "We need to have a national discussion about applying public interest and decency standards to the Internet."

Leo: Yeah, that's scary.

Brett: Copps was interested in applying Title II, but the reason why was that he thought he might be able to censor the net if that were done.

Leo: He's gone. You're right. We should set the table here and say what net neutrality is. I propose, and I don't know. Can we all agree that net neutrality is treating all bits on the Internet equally? So an Internet service provider, a government should not discriminate against any bit particularly, but all Internet content should be delivered equally to the end user without censorship or discrimination. Is that fair? You can agree? Brett's making some noises. Dane, was that relatively good?

Dane: Yeah, I think that's a good definition.

Leo: Mike Masnick?

Mike: For the most part. There's a couple bits that are tricky in there, where there are certainly situations where you could see something like allowing video generally faster than things that may take longer that don't matter, and that's where the—

Leo: You're talking Quality of Service or QOS.

Mike: Quality of service, right. So what you want to do is make sure that you don't swallow up quality of service in the definition that you're presenting.

Leo: Right. And would you agree to that, Brett, so we all have a place to come from on this?

Brett: Well, there's many different kinds of equality. There's the equality of bits versus the equality of people. And I honestly think that when people advocate whatever they define as net neutrality, and again there are many definitions, they're not really talking about all bits being created equal. They really care more about users and people who want to do things with the Internet being created equal. And that may actually mean treating the bits unequally. The very first Internet routers, which were called fuzz balls and were created for NSF Net, which was a predecessor of the Internet actually intentionally treated bits unequally so they could treat the users more fairly. Basically, they delayed long file transfers which might hog the net so that people's interactive sessions when they were using a computer remotely would work better. So, I would agree that we're talking about a concept of fairness here, but I don't think it necessarily means treating bits fairly as much as people.

Leo: That seems like a fair codicil to add to that. Turns out, according to Wikipedia, the term "net neutrality" came from Tim Wu, who is the author of "The Kill Switch." He's a professor of media law at Columbia, and in 2003 he actually considered this an extension of a long-standing concept, the common carrier. And that's where Title II comes into this, the idea being that the phone company isn't concerned with what voice traffic goes over, but is responsible for making sure it's delivered in a timely and effective fashion. And I think the notion of the telecommunications act, at least in Title II, is that if Internet Service providers are treated that way as common carriers, then they would treat bits in the same way that a phone company would treat voice, does that seem sensible? Is that a thing?

Dane: Yeah. Common Carriage is an applicable concept any time you have a limited number of ways to get from point A to point B. So, in the olden days, that might be a party running a ferry across the river at a point. How do you get your goods from one side to the other?

Leo: They're literally carrying the goods.

Dane: So the Common Carriage, this goes back hundreds of years, and the idea is that you would treat all of the traffic equally. And it's essential in an environment where consumers have limited choices. So think about a railroad line, and you've got a farm, and you need to get your product to market before it spoils, but the railroad lines— there's only one railroad line. It's important that that railroad line be regulated, otherwise they will, and it's natural Capitalism, abuse their position and charge you more than they should.

Leo: Yeah. They're not acting evilly; they're acting to maximize profit.

Dane: Yeah, it's Capitalism at its best.

Leo: Well you're a Capitalist. You want to make money with Sonic Net.

Dane: Of course.

Leo: Why is it that you embrace this idea of being treated as a common carrier?

Dane: We've been in business for 20 years. We've had a lot of success. The company is growing. We're hiring.

Leo: Actually, Dane would be a great person to work for.

Dane: We're about 200 employees now and growing quickly. We've had a lot of success; I thank the Internet for that success. I mean, what we sell isn't that interesting. It's a connection from A to B. We're a common carrier, effectively. What people want is to get to the Internet, this wonderful thing. So all of our success has been driven by the wonderful thing that is the Internet. The fact that people want to watch your show. The fact that people want to watch YouTube or Netflix or play games online, or whatever it is that's their area of interest, so I think the risk is, in an environment with a limited number of carriers, and most markets, one or two or three, have all the customers, have recognized their market power over those eyeballs and are now using their control over those consumptive end users to lever payments out of large sources of content, that puts the internet as a whole at substantial risk. And so, while it might be aspirational for me to get big and become powerful enough to abuse my customers and then demand tribute from Netflix to carry their traffic, I think fundamentally, our success as internet service providers is based on this wonderful thing, the internet, and that is at risk when large carriers are mistreating consumers to exact payments.

Leo: Now you're in a different kind of a situation, Brett, because as a wireless Internet service provider, and we've talked about this before, carrying Netflix to your customers is a costly thing for you.

Brett: Indeed it is. But the main thing though, to get back to the topic of common carriage for a bit is that this is not the origin of the Internet. The Internet was designed exactly to be the antithesis of common carriage. It's basically what the Internet is, and what it still is, and what it started as, is a loose federation of people who owned networks, who tied them together willingly and agreed to pass traffic to one another, and these are private networks. They built them themselves. They had control of them, and it was because they agreed to pass the traffic using the common Internet working protocols that you had a network. It wasn't because they were obliged to. If you take a look at Title II and you start reading right at the beginning of Title Ii, it talks about Common Carrier obligations, and just the complete opposite of people doing things willingly. It says "It shall be the duty of every common carrier engaged in interstate or foreign communication by wire or radio to furnish such communication service upon reasonable request therefore; and, in accordance with the orders of the Commission. So right away, it talks about being required to serve people, not having the choice of who you serve. And them being regulated in every way about how you do it.

Leo: One of the things the president said and the FCC and I think kind of backed, is that they didn't have to enforce it 100%. That they could pick and choose which portions of Title II they would enforce, and they wouldn't in fact force things like absolute access or rate protection, things like that. I guess some of this comes down to do you trust the FCC not to take over those powers. A lot of this conversation really comes down to is whether you trust the government or not. And I understand the reluctance of people who say we need government regulation to protect the Internet. Even my friends at the EFF, John Perry Barlow has said "yeah, we're kind of divided over this" because on the one hand, we all wish to have a free and open internet, but it seems to be that maybe the government is the last person you should ask to preserve that. Is that how you feel, Brett?

Brett: Well I guess I'm in great sympathy with that. It's funny. EFF originally was founded as a cyber libertarian organization. I was actually involved in bringing the people together who founded it. Hell. I was one of the organizers of the conference where they all met and made a point of introducing them to one another. But now they've turned around and made a 180-degree shift and they are now advocating Title II, and even some of the founders like Barlow aren't sure what to think about this. Myself, I would be very worried about expecting any regulator to willingly forbear from any authority that they might have. Any leverage they might have that might give them power or influence. And Title Ii is huge. I have a list here, it contains 16 rule parts, 111 subparts, 682 pages, 987 rule sections, and more than 1000 subsections, not counting the case law that goes along with that. This is huge. And they're talking about forbearing from particular parts of it. Essentially taking this law and cutting it up like a ransom note and only taking certain clauses, certain sections, certain paragraphs. This is not the way to do things. You don't want to take a law which was written— this was the telecommunications act of 1934. It was written for 19th century telephone companies, and try to cut it up and make it work. What you really want to have is a legislative process where congress goes ahead and makes a law which is appropriate, rather than taking a law which is inappropriate for the net and trying to somehow patch it together to do something it was never intended to do.

Leo: Does that scare you, Dane? I mean this is your business. They could require all sorts of things. It would be very hard for you to do.

Dane: I think that the more substantial risk is to the Internet and web properties, particularly new innovative web properties. If there isn't some regulation around what carriers who dominate the marketplace can do to that traffic. So that I see, the threat to the Internet is the top priority, and Brett talks about an insurmountable amount of red tape. Today, Internet service providers are required to publish for the FCC a disclosure of traffic management practices. So we publish a disclosure. I think it says we don't touch your bits. We don't modify, we don't filter, we don't engage in deep pack inspection. So, I think from a compliance perspective, if the assumption is that Title II will be by and large gutted, or rather they engage in forbearance of all provisions and begin to re-enable provisions that allow them to assure the traffic is treated equally, my expectation is those of use that treat traffic equally will have a pretty light regulatory burden.

Leo: These are the bright line rules that the president suggested. There are just four of them. No blocking. If a customer requests access to a website or a service and the content is legal, an ISP should not be permitted to block it. No throttling. Nor should an ISP be able to slow down some content or speed up others. Increased transparency, that's what you were talking about. Letting consumers know about what happens at the last mile, things like filtering and throttling. No paid prioritization, and that seems to be the hot button. No service should be stuck in a slow lane because it doesn't pay a fee. Those four rules seem like— that's the minimum we would want.

Dane: Yeah. And the challenge is if you own a network that has more than half the consumers in a given geography connected to it, you'd like to engage in paid prioritization, and you wouldn't want transparency around that and you would engage in throttling, because you want to maximize the infrastructure model you have made. You want to squeeze as much out of that asset as you can.

Leo: Well and there are other specters too. The Anti-competitive specter. Comcast is in every business. They're a television network, they make movies, they do telephone service, they do security service. In every case, these are services that have competition that comes in over the Internet, and I'd be very afraid of a company like Comcast protecting its business interests and throttling net traffic. Brett could you agree to those four premises? No blocking, no throttling, increased transparency, no paid prioritization?

Brett: I would agree to some of them under some circumstances. However, if you believe that those— for the sake of argument. You believe that those four things are important. Then the last thing that you want is Title II, because Title II provides for paid prioritization and provides for discrimination. I'll read you just a little bit more from Title II, which I have in front of me, because most people are advocating Title II without knowing what it says. It says, "communications by wire or radio subject to this chapter may be classified into day, night, repeated, unrepeated, letter, commercial, press, Government, and such other classes as the Commission may decide to be just and reasonable, and different charges may be made for the different classes of communications." So it actually comes—

Leo: That specifically is paid prioritization.

Brett: Exactly. It actually authorizes paid prioritization and this is not one of the sections. This is still at the beginning. It's still in a section that you can't forbear from without losing all of the definitions of what the rest of the title means. So it actually says that. As for transparency, the court said, "that the FCC had the authority to ask for a disclosure statement, a traffic management statement, without resorting to Title II. It said that the FCC could do that under section 706 of the telecommunications act. So it doesn't need Title II authority for that.

Leo: But if that's the case, why would Comcast and Verizon not want Title II? It seems like this gives them permission.

Brett: I think they don't want Title II because of the terrible amount of potential red tape. Even Google doesn't want Title II. Google deployed, as you know, Google deployed fiber in places Kansas City. And Google fiber includes television, but it doesn't include telephone service, and Google has said that the reason why they did not include telephone service in Google Fiber was because it would have subjected them to an insurmountable amount of red tape because of Title II. And this is Google. This is a company that could afford to do it.

Leo: Google though is not clear in its message, because they're also paying a lobbying firm that is lobbying for Title II regulation. Both Google and Facebook—

Brett: Of everyone else, but not of themselves.

Leo: Well, all right. Go ahead, Mike, you were about to say something.

Mike: Yes. So the thing the paid prioritization in Title II is that what is pretty clear, what the FCC could do is basically say that paid prioritization is considered unreasonable under Title II, and therefore it is effectively blocked, even though the way Brett reads it, and the way people who are opposed to Title II read it, they pretend that it says that you can do paid prioritization under Title II, but that's not really accurate. So as long as the FCC makes it clear that they consider paid prioritization to be de-facto unreasonable, then it can block—

Leo: Wouldn't it be better if Congress just wrote some rules that were specifically about the Internet? Talked about these four bright line principles?

Mike: When is the last time Congress did what you thought they should do? You're absolutely right. The absolute best solution here is to have Congress fix it, but does anyone think—

Myriam: Do we all agree on that?

Leo: I bet Brett doesn't.

Brett: Is that unanimous? That the best thing to do is to write something sensible from scratch for the Internet? The ideal thing?

Leo: Brett, what would be your ideal solution?

Brett: My ideal solution would be one which is embodied in the mantra of FCC chairman, Tom Wheeler, which is competition competition competition. The ideal thing would be to eliminate the need for any regulation, even considering any regulation, by stimulating competition among broadband providers. In my small town, I guess we're lucky. We only have a population of about 28,000 people. But we have 12 broadband providers serving our time, which is tremendously good. A lot of people are under the impression that they only have one or two, but they actually have more. They are actually smaller providers, like me, but the public either doesn't know about them or doesn't consider them because they think you have to be big to be a good Internet provider, which I think a lot of small companies are counter-examples. In any case, if we lower the barrier to entry and there are even more of us, more than the 3000 competitive ISPs who already exist, nobody, I think, even the people who are the most ardent advocates of regulation now, would be advocating it, because they would recognize that if you didn't like what a provider was doing, you could just switch. Unfortunately the FCC hasn't been able to competition. In fact, it has failed to do a lot of things, which it said it would do in the national broadband plan in order to enable competition. Hasn't acted on certain things, like special access, which is the access to the rented connections that an Internet provider needs to get to the backbone. It hasn't made pole attachments easy, so it's not easy for an ISP to put wires up on the poles. There are a lot of things that it could do instead of pursing this entire thing that would actually make more sense, and I think would ultimately be the best for everybody.

Leo: But Wheeler himself acknowledges that there isn't any competition right now. This is Wheeler, he says 80% of American homes can only get high speed internet— 25 megabits or better, from one provider. He says, "At 25 megabits, there is simply no competitive choice for most Americans. 3/4 of Americans have no competitive choice for high speed Internet, and then there's 20% that have no service alt all. Even Wheeler himself says competition doesn't exist. Dane, your response.

Dane: This is something that Brett and I agree on. If there was broadly available and really effective competitive access, and if consumers not only had 12 choices, but were actively choosing from those 12 choices, then we wouldn't be having a discussion about neutrality, because you wouldn't have a provider controlling the vast majority behaving the way that Comcast, Verizon, and others are.

Leo: I mean, it's hard to switch, for one thing. Just call Comcast and try to switch to another provider. Ask our friend Veronica Belmont and Ryan Block how hard that was.

Myriam: I think we're kind of perhaps going at this the wrong angle in a way. I think we need to look at what consumers want and what the product is that they want, and go backwards from there into regulatory. I have a strong stance on all of this. A lot of this is based on wireless, not wired. We're talking primarily about ISPs and I realize some of the ISPs are wireless and indeed some of them in San Francisco are wireless, like MonkeyBrains. But I'm talking about—

Leo: You're talking about cell phones.

Myriam: Ultimately we need to get most of the population— OK. Let's rewind. I think the Internet is a human right.

Leo: I agree with you.

Myriam: So if you start with that, everybody should have water, food, shelter, health care, I'm a big proponent of universal healthcare. I'm Canadian, so that's probably where I'm coming from, and so to me—

Leo: The ability to communicate.

Myriam: Right. To me the ability to communicate is become critical. So that's why I think the Internet is a human right. So if you look at it that way, then we need to get everyone on the Internet in some way. And I hate to say that, but the most efficient way to do that right now is wireless.

Leo: Frankly, I think there's another solution. You probably wouldn't like this, Dane. Maybe you would. To get local and regional governments to use the power of eminent domain to take over infrastructure. To run the infrastructure like you run the power company or you run the water company, and then let companies like Sonic ride on top of it, and then we could get many companies competing for Internet service. Is that unreasonable? Undoable? That's Bob Frankston's plan.

Dane: That's the socialism approach, and we see that in Europe and some locations—

Leo: It worked well in the communities that have done it.

Dane: And Stockholm is a good example of that. I don't think that that comports well with the US viewpoint on capitalism, but let me go back to Myriam's point about internet access as a human right, and Brett, you talked about Netflix costs you a lot to deliver. But Netflix is part of the Internet. I think if you're selling the Internet as a service, you should provide as much of it as consumers want, or you should create tears or limits. I'm not against the idea of buying x gigabytes per month, or you're being Y speed. Although we don't do either of those things. We unlimit and we provide a single tier. But if a service provider has costs and they can reflect those costs in the product, I think that's reasonable to do.

Leo: That's something we've talked about, Brett, because I know Netflix costs you a lot of money, and you would like to pass that cost along to consumers.

Dane: And it would be reasonable for him to do so. I think he needs to charge people more if the costs aren't being covered. The point is if he says "I am selling internet" and it's 50 dollars that needs to be the whole Internet. And he needs to limit people's total consumption, then that's a service package perhaps. But I think it's unreasonable to say, "Well, we're going to engage in some management. We're going to slow down the Netflix." And I see wireless ISPs are doing this all the time, where they're slowing down services like Netflix, and they still call it Internet.

Leo: Brett, you said your customers are price sensitive and you can't very well say to them, "well, it's going to cost you 50 bucks more if you want Netflix."

Brett: We don't do that. We don't discriminate in particular for or against any source of content, including Netflix. However, the fact of the matter is that Netflix is a bandwidth hog. As a matter of fact, it has a particularly insidious property in that no matter how much bandwidth you have, it tries to take that and it tries to take more. And if it can't take more, sometimes it buffers on you.

Dane: And the more there is the better it looks. That's what your consumers want. That's what end users want is they want to watch the video on the Internet. And when you sell them a subscription to the Internet, that's what they should get.

Leo: Brett, I don't want to misquote you so correct me if I'm wrong, but my impression when we talked to Steve Gibson is you would like to go to Netflix and say hey if you want to get to my customers, you need to pay me for the extra cost, because you are such a burden on my network, because you can't go to customers and tell them that. Is that accurate?

Brett: Yes. This is exactly the point. You see, customers do expect, and reasonably so, that when they buy a connection from me that they are buying a connection to the whole internet and they should be able to do anything they want with the internet. They want to go to Netflix and buy something, and they don't know that Netflix poses a huge burden compared to their web browsing or something else that they do. My opinion is that the correct answer to this is what Tom Wheeler started talking about and was lambasted for talking about, which is called two-sided markets. What happens is you buy your internet connection, which is a good, basic internet connection for doing the usual things, and then if you go and you buy a really intense bandwidth hogging service, what happens is, some of the money that you pay for that service when you subscribe to it, comes back around through the provider of that service to buy up extra bandwidth so that you can actually receive it. What Netflix does unfortunately, is it says, "Oh well ISP. You should get no additional money for this additional use of capacity. Instead, you should just allow your users who don't subscribe to Netflix to cross subsidize the ones who do. And that's not fair, because it raises prices for the people who are not subscribing to Netflix and is leaving money in Netflix's pocket when it should be helping to pay for this extra capacity.

Dane: Fundamentally, turning the Internet into a two-sided market breaks the Internet. If what you're selling is access to the internet, and you want to limit the speed or the total consumption, those are reasonable things to do, you build a transparent service package out of that, but if you're going to not let people get to content unless content pays you, what does that do to innovation? What does that do to start ups? What does that do to the Internet as a whole? What does that do to TWIT? This is taking a market power position.

Leo: Hold on, Brett, because we'll give you a chance. Let Dane finish.

Dane: This is taking a market power position, particularly amongst infrastructure service providers who control the last mile. Who own the wires to the premises, and giving them unlimited power to do anything they want. And that will break the Internet, fundamentally.

Leo: Brett?

Brett: This is, OK. I've got to take issue with that statement. People aren't paying for an unlimited connection to the Internet with unlimited resources. Bandwidth where I am located is extremely expensive.

Dane: Then you should limit them—

Brett: It can cost as much as 20 dollars per megabit per second per month in bandwidth for me to provide people with service. Someone has to pay that bill.

Dane: Your customers should pay that bill.

Brett: And it would be nice if the customer went ahead and was willing to pay that bill, but they don’t understand. The customer doesn't understand Netflix takes this much bandwidth versus YouTube taking this much bandwidth or whatever.

Dane: I mean, they don't need to understand. You just say it's x gigs per month.

Brett: They like their charges to be predictable, and they don't like overage charges. We don't charge any; we don't have any data caps. And they really expect, according to what they subscribe to, they expect the money that they pay for each of these things to cover it all. When the customer subscribes to Netflix they might need to bump their bandwidth. And the easiest way for that to happen is for them to pay that extra money when they subscribe to Netflix is to say that money should be included right there in the bill for the Netflix subscription, and then should come back around to the ISP. That way the customer isn't suddenly surprised to find out that the service that they ordered from Netflix exceeds their connection and suddenly oh, I've got to pay more still, besides the cost of the Netflix connection in order to stream. It just makes things better for the consumer, it's simpler, it meets their expectations, it really works out better, and it even works out better for Netflix, because their customers are not disappointed. They subscribe to Netflix and voila. They are able to stream it. We have somehow to recover the cost of the capacity.

Dane: It's challenging to me because a little service provider doesn't have market power over Netflix, so—

Brett: We don't have market power over anybody.

Leo: You can't go to Netflix and say— but Comcast did. Comcast last year turned the knob down, they didn't buy enough interconnect, but they effectively turned the knob down.

Dane: And this is a competitive challenge, because service providers like Brett or Sonic, we don't have the ability to abuse enough customers to create the leverage to force a payment. So the only way to create a double ended market that works for small and large service providers will be to regulate it, and Brett's asking for less regulation, but he also seems to be asking for more.

Brett: I'm not asking for regulation. I'm asking for markets to do this. I'm asking for this to happen because the market wants it. By the way, as for Leo's brief comment there that Comcast turned the knob on Netflix, there is growing evidence that in fact Netflix turned the knob on Comcast as leverage when they were in negotiations, because people found out, this is interesting, people who were having trouble with streaming Netflix over their Comcast connections, they went and used something called a VPN. A VPN is a special piece of software which basically, all of your data goes into a tunnel and it comes out in a different place on the internet and it looks like your out there in a different place on the internet. They used a VPN over the same Comcast connection, and suddenly they were able to stream smoothly.

Leo: Well you could make the argument that Comcast is doing deep packet inspection and wasn't able to do so on a VPN, or that Netflix— you could make the argument both ways, Brett. I don't think that that's conclusive in either direction. We're going to take a break, because I want to come back and I want to talk about solutions, because I think we've set out what the issues are, and you can see very clearly why people want regulation and why people don't want regulation. And I think that this is a very challenging situation, and I'd like to hear what you guys as a group think we could do to make this work. We can't solve this in an hour, but we'll try in a few more minutes. Our show today brought to you by another company that rides on the Internet, so much of the innovation in this country has happened because of the Internet. GoToMeeting makes it possible for people to work anywhere and yet work, collaborate together, see each other, share screens. Nowadays, many businesses are distributed all over the world, and you can thank companies like GoToMeeting. Really, GoToMeeting because it's one of the most used, probably had a lot to do with this, you pay once a month, a flat fee, you hold as many meetings as you need, as often as you want, as long as you want with anyone anywhere. You're in a virtual space where you can see their screen; they can see your screen. Turn on the cameras; you've got crystal clear high def video conferencing for a very affordable price. Travel is ridiculously expensive, time consuming, nobody wants to do that, and a phone call may not do it. E-mail may not do it. I think the best way to get work done is to see each other's screens, to collaborate together, to present in real time, and that's what GoToMeeting lets you do. I want you to try it free right now for 30 days. Visit GoToMeeting.com, click the try it free button. You can present from an iPad, you can use mobile devices. I've literally held GoToMeeting sitting out in the back yard and enjoying the beautiful weather, and no one knows until I turn on the camera and they see that I'm wearing a bathing suit, but you don't have to turn on the camera. GoToMeeting.com. Click the try it free button, and you got 30 days free. Just a great service from Citrix. They are great, and I think they are absolutely the best service provider in this particular area, so try it today. GoToMeeting.com. This is a great panel. I just want to thank you guys, especially for keeping on an even keel and really talking about the problem and the solution and the issues for you. It's really good to have two Internet service providers here. Brett Glass, he runs a wireless Internet service provider in Laramie Wyoming. It's called—

Brett: it's called Lariat, and as far as we know we were the world's first wireless Internet provider. We've been doing this for more than 23 years now.

Leo: What are you using? Is it MicroWave? How are you?

Brett: It's classified as either Microwave or Millimeter wave, depending on the link. And believe it or not, we are actually able to deliver up to 1.25 gigabits of bandwidth if people want it anywhere within our service area. We're very lucky to be able to have a good fiber connection, which is fiber and Microwave connection back to the Internet that lets us do that.

Leo: And when you started this, it was a community network, wasn't it? It wasn't a commercial enterprise.

Brett: That's correct. We started originally as a cooperative. As a rural telecommunications cooperative because that's what the IRS classified us as. And we operated that way for ten years, and then the members decided they didn't want to keep on meeting and voting, they just wanted somebody to provide them with good commercial service and to be able to get investors, and so they went ahead and they allowed my wife and I to take it private, which we did. Interestingly, our traffic management policies, which do involve sometimes shaping traffic, were developed by consensus when we were a co-op. So the members actually agreed that certain traffic ought to be prioritized, just as it was in the early beginnings of the Internet to make things go more smoothly.

Leo: And of course we've killed your home page, which we do every time you're on. lariat.net. But wait until later, OK? lariet.net Well I got it up here. But would you put it in Brett's lower third for the URL because we should give Brett a nice plug. Also here from Sonic Net, which is my Internet service provider, but also, I think many people recognize Dane Jasper, the founder and CEO as one of the leaders of independent Internet service providers. I know you've served on Cais-sp and other high end— how do you pronounce it? C-A-I-S-S-P. And it's so good to have you here, I appreciate it. You're in how many communities now?

Dane: We're in 125 California cities, in LA, Sacramento area. We passed about 5 million premises today.

Leo: And I remember when it was Dane in a closet, so I'm not saying you've come out of the closet, I'm saying you were in— never mind. You did it all yourself in the early days. That's why Linux is his license plate.

Dane: Yeah,

Brett: By the way, Leo, my license plate says Unix, and I'm building the Unix server on the table next to my computer here.

Leo: You guys are peas—

Dane: Dueling license plates. I love it.

Leo: Also here is Myriam Joire. We love having Myriam on, she gives us a unique perspective, the Quebecois perspective.

Myriam: You're going there again.

Leo: You really want single health care payer? Really? Come on.

Myriam: You know, I'm French from France and Canadian English. That's why everybody always gets confused.

Leo: I'm always confused. French from France.

Myriam: Which is also a bunch of socialists.

Leo: Yeah.

Myriam: You know. Watch out.

Leo: You bet. And joining us from Techdirt, Mike Masnick. I want to wrap up this section because, Mike maybe you can start us off. You've been on the forefront of this; you've been talking about this for years, like literally since 1997. Is there a solution?

Mike: Well, I think part of the issue is that it's changed over time, so the situation has changed over time. Earlier it was mentioned that the EFF has changed their position on net neutrality, and that's actually true of myself as well. A lot of it does go back to whether or not there's real competition in the market. What would be happening would be very different if there was real competition, so there might be a solution if there were real competition. In the meantime, without significant competition in most markets, it seems like the best solution, and I know Brett disagrees, but from my perspective and from the perspective of a lot of us, in the interim without the competition, there needs to be something to keep the really large ISPs in place from abusing their market power.

Leo: Yes. And all you have to do is look at what AT&T did. They said, "Well, if you're going to impose net neutrality rules, we're not going to build any more fiber." They're taking their ball and going home.

Mike: They were never going to build most of that fiber. As we said, it was fiber to the press release. They announced most of those. Every time Google said, "Oh, we're doing fiber here," Suddenly AT&T would have a press release and say, "oh yeah. We're doing fiber too."

Leo: Verizon did the same thing. Verizon started rolling out Fios, and then got tired of it and stopped.

Mike Exactly. And that was—

Myriam: Fibers are heavy.

Mike: Yeah, I mean Verizon used to have some pretty visionary management that really did believe in Fiber and really believed in it, and went on a big install and Wall Street freaked out because they said, " how can you do that, that's expensive to put in fiber, even if that's what customers want." And so as soon as that management was gone and Wall Street kept complaining, suddenly all the fiber deployments dried up.

Leo: Dane Jasper's role in fiber— You've got gigabit going out in a number of communities. You have it just up the road.

Dane: Yeah we do. In the North Bay. We've got projects underway in the east bay—

Leo: I think Verizon said it was 5000 a subscriber or something like that. It's very expensive.

Dane: It's not that expensive.

Leo: Are you doing fiber to the curb or fiber to—?

Dane: Fiber to the home.

Leo: Fiber to the home.

Dane: The costs of building it have gotten lower, but remember that this isn't a market. I'm not operating in a market with five dwellings per mile.

Leo: I can understand Brett has some very special needs.

Dane: And backhaul is also a challenge in a very rural market, and so in each market you have to approach your technical solution differently. But yeah. We are— our overall vision, and I think we all agree, that neutrality is an issue because we have a failed competitive market, and I take some responsibility for that because I'd like to fix that. My vision is to solve that. So, fundamentally, what we're building is broad banded up to a gigabit and unlimited phone service for 40 dollars a month. So where we only have copper, we deliver that with VDSL 2 or 80SL2+ depending on the distance, where we have fiber we deliver that at gigabit over fiber. And I believe that consumers, when presented with a compelling competitive option, will move to that product, and when there are 12 different folks to choose from, and consumers actively making those choices, this debate will be moot.

Leo: For all of your DSL installations, you're riding on top of the copper provided by the incumbent carrier.

Dane: Yeah, and I published an item this last week that reiterates the importance of local coupon bundling. The 96 act really visualized an investment ladder where competitors would first deliver over copper, then over build and deliver with their own infrastructure, and that's the path that we're walking.

Leo: Yeah. What if the FCC said to the cable companies, "Hey, you got to do the same thing that the phone companies are doing. You have to open up your physical plant to other providers." Would that solve it?

Dane: Or to me, where I build fiber. And that's a situation in some other countries. Infrastructure providers need to quantify the cost and lease infrastructure at costs plus at a fine margin. And that was really the vision of the 96 act was to create a vibrantly competitive market place. And you look at neutrality debate in Europe and the choices that consumers have. In the UK, you can buy Internet from Tesco, the grocery store. So lots and lots of choices.

Leo: They don't do the infrastructure, but they provide over the top.

Dane: Correct. And there are also infrastructure providers like virgin, who provide over cable. So, a lot more choices, whereas, through the 2000's, Chairman Michael Powell, now a cable industry lobbyist, rewound some of the unbundling requirements and really knee capped the 96 act, and we've ended up with the unfortunate outcome of the regulatory decisions that were made during the Michael Powell era, and the Kevin Martin era, which were intended to create a duopoly. Now we've ended up with the outcomes of a duopoly, so today's FCC needs to regulate that for the benefit of consumer. We, entities like Brett and myself, need to work hard to bring more competitive choice, and when we're successful at that, this point will become moot.

Leo: There is a precedent. When the FCC auctioned off seven hundred megahertz spectrum, Google bid, but was able to convince the FCC to make some rules. They said, "whoever buys this should be required to make it open." Verizon ended up getting it and Verizon is chafed at this—

Myriam: And broke the rule.

Leo: And broke the rule. But there is a precedent for the FCC to mandate that you've got to keep this open. I'd love to see them open up the cable physical plant. That would make a difference, wouldn't it?

Dane: It would make a huge different.

Leo: Make that a requirement of the Time Warner Comcast solution.

Dane: We need a philosophy of abundance. We need to create a broadband access product where the costs are tied well to the costs of infrastructure. And router ports and optics, the costs of those infrastructure components are dropping like mad.

Leo: Right.

Dane: And what consumers need to end up with is abundance as a result, not being squeezed and have those assets exploited.

Myriam: And I would argue it's the same with wireless. I think there is this indoctrination going on, in all parties, particularly in the wireless carriers, that there is a lack of spectrum.

Leo: Right.

Myriam: But what we really need to do is have the government free up all the military spectrum that's no longer used, and sell the analog stuff and we could open that up to wireless and not have crazy auctions that cost billions of dollars for it, and actually get wireless to everyone at an affordable rate.

Leo: Well and we had Martin Huber on, the father of the cell phone, and one of the things Martin said, one of his big campaigns is digital, because wireless spectrum can be virtually infinite as long as you're not using analog signals.

Myriam: We’re not really anymore. The military, if you look at the spectrum assignments, their spectrum is insane. In today’s standards, you could run five times the amount of traffic we run on our public networks right now. So I’m not suggesting they leave all that behind; they need it. But I think there’s a lot that can be repurposed. And to me, a progressive government towards this idea of net neutrality being your human right is to kind of start putting the systems of government in place to make that possible. And not letting the corporate interest take over in trying to make it. I think that’s the problem. I’m not suggesting that the FCC has full control. I think it’s more about trying to find a way… because right now we have two big wireless choices, two big wired choices in most urban areas. We also have T-Mobile and Sprint on Wireless. And T-Mobile’s doing pretty well. But I think that if you look at the big players, it’s really AT&T and Verizon Wireless. And they’re bullies. They lobby the government and…

Mike: They want more spectrum. But auctioned at the highest price because they’re the ones who can afford to buy it. WISPA, the Wireless ISP Association has long-pushed for more unlicensed spectrum. An abundance of unlicensed spectrum whether it’s recaptured from former military use or television white space; it would be great. If however it goes to the highest bidder, then it’s not going to work out.

Leo: It’s going to be Verizon or AT&T.

Mike: Is government going to try and maximize the return to the taxpayer by selling that spectrum to the highest bidder? Or are they going to try and maximize the return to the taxpayer by assuring you can get connected at a reasonable cost?

Leo: Brett Glass, what’s your solution?

Brett: Well I guess my take on it is that competition hasn’t filled yet. There are as I mentioned about 3000 competitive carriers about my size like me who are willing to compete as hard as they can. All we need is to be not discouraged by the regulatory authorities and we can do great things. On the other hand if we take a ready, fire, aim approach, if we regulate before we try stimulating competition which by the way is required of the FCC by that same section 706, then our only choice is going to be a regulated duopoly. And I don’t think we’ll be as happy with that. Our company tried different ways to work around the FCC to not have fiscally-hanging competitions. We fought to use the copper infrastructure. We fought for what was called dried copper. And the telephone company told us oh sure, you can rent our lines. But then they made the wholesale price of renting the line higher than their price for complete DSL service.

Leo: I’m sure Dane’s not unfamiliar with that practice either.

Brett: I’m sure he’s not.

Leo: It’s a little difficult because Brett is unfortunately on Skype. Next time you’ve got to fly out from Lariat.

Brett: The weather there is much better than here just so you know.

Leo: Go ahead and finish and I’ll give you a chance to end it.

Brett: We tried to get into a spectrum auction and it was folly. The reason why is that essentially there was so much value to the mobile carriers in foreclosing all competition, that the spectrum is worth several times as much to them to keep competition out as it is to us. We couldn’t even break even on bidding the prices they bid. So as a result, we’re locked out of spectrum, special access, the lease lines. We’re locked out of the local loops if we ever want to try and use the copper. Basically the FCC has failed to stimulate competition. But the good news is that small ISPs like me are scrappy. We have managed to bypass all of that anyway by using unlicensed spectrum. By doing other creative things to try and make an end run around the fact that we haven’t been treated fairly. If the FCC would only treat us fairly, there would be no need whatsoever for any of these regulations. The whole discussion would be mute. I say competition, competition. And please let’s try it first. Because if we impose title 2 first, my company may not be able to stay in business.

Leo: Dane?

Dane: Dry copper is achievable, it’s doable. That’s how we connect many of our customers today.

Leo: That means they don’t have phone service from the incumbent carrier but they do have internet service from you on top of their copper.

Dane: It means that we co-locate in the central office exchange buildings, lease copper to the premise, and put next generation service over that. So we’re delivering pots voice as well as VDSL 2, air bonding…

Leo: That’s your fusion project, right?

Dane: Yea, that’s a product that…

Leo: You can see how the phone company is not highly incented to support this. They’re required to.

Dane: It’s regulated. And I don’t know why Brett has had challenges deploying that. That’s a key part.

Brett: I’ll tell you why. It’s because our state’s public service commission basically allowed them to discontinue some of the services and to raise the prices so high that it was uneconomical.

Leo: And that’s illegal.

Dane: And we haven’t had those challenges. So the challenge I see in what you’re trying to accomplish, Brett, in creating a two-sided market is that that will only work when you’re big enough to harm your customers bad enough to extort money from large sources of content. And it’s not plausible that any of us will get big enough to engage in that kind of anti-competitive behavior.

Brett: I guess I have to disagree in that I believe that it’s actually a win-win. And the smarter providers of content are going to recognize that. Netflix might not. But HBO might, or CBS might. As people shift their TV-viewing over to streaming and this is beginning to happen, the light bulb is going to go on in somebody’s head and they’re going to say this is a good idea. Go ahead and pay less for your broadband connection because when you stream with us we’ll take care of the cost of bandwidth. People will like that because their overall bill will be lower. So I think ultimately the market forces could correct this problem.

Leo: I’m going to wrap this up because we’ve gone an hour. And that’s more, as much as I wanted to do and I don’t think we have at all come to a solution. But I think it’s become really clear why this is such a challenge. Not only for all of us but for Congress which barely understands what’s going on, the courts, and the FCC. This is a naughty problem and yet it’s probably one of the most important political decisions that needs to be made in this country today.

Dane: Can we talk about Tom Wheeler being a dingo?

Leo: Did he eat your baby?

Dane: No, but I just thought it was the best…

Leo: One of the things that Tom Wheeler proposed which was interesting is that there’d be net neutrality for the inter-connects but not for the retail internet. Is that a solution any of you would consider?

Brett: I can volunteer a comment on it. Many advocates of net neutrality are up in arms about a practice which is called zero rating. Do you know what that is?

Leo: No.

Brett: It’s where you don’t pay out of your data allocation. You the consumer don’t pay any money when you’re going to certain services because they pick up the tab.

Leo: Some of the phone companies are doing that right now. You get free Beats music for instance on AT&T.

Brett: Exactly. A lot of the people who are very strong advocates of certain ideas of net neutrality say that’s a bad idea. But essentially what we’re talking about, and we’re talking about regulating the relationship with the content providers under title 2, is we’re talking about zero rating that end. And declaring a price of zero for either end isn’t really neutral. It’s not really fair. What it would require, it would give me as an ISP an obligation to every single person out there who puts up a web server to give them something for free. I don’t think that’s the right way to go about solving it. There may be some other ways but I don’t think that’s it.

Leo: You know it’s funny, we all know what we want. But it’s darn hard to get there.

Myriam: Kittens?

Leo: Haha. Dane, one final word. I gave Brett a final word. Any final thoughts from you?

Dane: You know, I’ll agree with Brett. We need effective competition. We’ve been working hard on that for a lot of years. And we’re continuing to fight that fight. And I’m excited about doing that. I’m really optimistic about the future and the potential. I think neutrality is important because we need to not break the internet in the meanwhile. And not having our competitors enjoying a subsidy, if a competitor can get a dollar or two or ten out of sources of content and I can’t because I’m smaller and don’t have that market power, that actually threatens competition. So this is an important issue. We need to protect the internet and if that means regulation, I think it’s a reasonable course.

Leo: Dane Jasper, founder and CEO of Sonic Net. If you’re lucky enough to have it in your neck of the words, you ought to get it. Because it’s a great internet service. And I thank you so much for taking the time. I know this is a naughty problem and one you deal with every day.

Dane: Thanks, Leo.

Leo: Brett Glass, he’s at lariat.net. Also founder and president, great to have you. Lariat is lariat.net

Brett: Always great to be here, Leo. Thank you.

Leo: I really appreciate having you today. Thank you. I hope it’s not too cold.

Brett: It is. But we in Wyoming are used to it.

Leo: You’re used to it. You’ve got the wood stove. I hope this has helped a little bit. We’re going to go back into our regular format and talk about the week’s tech news with Mike Masnick of Tech Dirt. So glad you’re here, Mike. And Myriam Joire. Great to have you both. We’re going to reset. I’ll let you guys reset and I’ll do a Square Space while we do it. Actually before I do it, let’s take a look at what you might have missed this week on TWiT.

Previously on TWiT: give me five hours. You want to talk about net neutrality. Are you asleep? Triangulation: you joke about your kids. Do they mind that? Of course they do. But they know that when I die, there’s an inheritance. All About Android: is there a little bit of Nexus entitlement. No, there’s a lot of it. Are all these other phones getting phones quickly? Which is what we’ve all wanted. Why is that a bad thing? Because I have a Nexus phone and I want it now. MacBreak Weekly: Microsoft has announced that they’re going to make Office for iPad free. It’s an easy decision. They said let’s give up a small amount of money with the idea that is it going to pay out big time by making our entire ecosystem a lot more valuable. TWiT, technology for your eyes and ear holes. On this episode of Know How, probes. We’ll tell you how to put some… you know what, no. Amateurs do second takes! We’re done. You do second takes.

Coming up this week, if you missed the last narrow and problematic windows to order a One Plus One phone in October, you get another chance tomorrow which is Monday, November 17^th. But only from 8am Pacific to 9am. One Plus promises an improved pre-order system and let’s hope so. Demo fall 2014 begins on Tuesday, November 18^th in San Jose, California. And also on that same day, Gigaom Road Map starts in San Francisco. That’s what’s coming up this week. Back to you, Leo.

Leo: I wish we could have all said oh no, this is what we definitely need to do and that’s that!

Myriam: It’s complicated.

Leo: It’s damn complicated.

Myriam: I think we at least on that net neutrality is something that needs to happen. How we define that… right now it’s broken, right?

Leo: And we know we want to preserve the internet. That’s clear.

Myriam: I think a lot of things that were said today that I think matter is competition and net neutrality is important. We need it. And finally that the system as we know it today is broken. There’s too many monopolies. Sometimes monopolies of people…

Leo: I think a lot of people would say most people would say nothing’s broken. Hey, we’re happy. I get high-speed internet. It’s working great. My Netflix is coming in fine. I can use my cell phone pretty much anywhere and surf the net.

Myriam: They see their bill at the end of the month.

Leo: It’s expensive but it’s worth it. It’s worth $60 a month because internet is huge. Do you think there’s a common feeling in the United States that the internet is broken, Mike?

Mike: Well I think there’s a real fear that the big broadband ISPs have too much power. And just the fact that you said yea, Netflix is working now. But you know…

Leo: It wasn’t last year, no.

Mike: There were a few months there where it wasn’t really working. That’s an inter-connect question. And some people say that’s separate from net neutrality but it’s clearly a related thing. It’s an issue of market power. And going back to the John Oliver thing, you know the dingo comment was great too.

Leo: Now I know where the dingo came from! I get it now! Of course John Oliver.

Mike: But the thing that I think was even more important about what he was saying was what net neutrality is really about is stopping the big broadband players from messing with your internet connection. And that’s really what it comes down to is when they have too much market power, it’s no longer a free market. There isn’t competition and so they get away with things. And they’ve been very clear for a decade now that this is exactly what they wanted to do. They wanted to have the market power to demand extra money which is really double paying from the big service providers. Because effectively they’re jealous. I mean Netflix is super successful, so is Google. And they want some of that cash. So they’ve figured out ways to try and extract it. And this is what this fight is really about.

Leo: I do have to say, I feel like it’s real easy to do a reductionist thing. I love the John Oliver piece. But ultimately it’s a little bit reductionist. In order to make this a clear choice, you have to reduce the issue’s a little bit and maybe be a little untrue to the choice. And that’s the problem with I tried to do today was not be a reductionist but really give you some of the issues. But what happens then is that’s very thorny. That is a tough one. And you don’t really know, well what path do we pursue here. And I think people want an easy answer. But I’ve seen so many, Vi Hart’s illustrations of net neutrality and all of that. But frankly they’re almost all reductionist. They don’t really state the problem fully.

Myriam: I think that’s true of all the news out there. And John Oliver is entertainment ultimately.

Leo: Yea, and he does a great job. And I thought that was a good piece and it made me go yeah!

Myriam: And he got the trolls going!

Leo: Don’t get the trolls going. It’s never worth it.

Mike: The other issue that’s related to that is not only is the issue complicated but the potential solutions or the solutions that are on the table… this idea of title 2 versus section 706. How many people are actually going to sit down and read those? The answer is very, very few. And they are complex. And it’s true, title 2 is a part of a law that was written in 1934. And so the solutions and the issue are complicated so that makes it actually pretty difficult to dive in and really understand what it really means for individuals.

Leo: The best thing that I think we can do as geeks and everybody who’s watching this-you’ve qualified-the best thing we can do as geeks is just let these guys know we’re paying attention. And that we care. And I think millions of comments to the FCC… Comcast is a… they’re no incense-a to all that. And if we say no, you know what, we want a free and open internet, they’re going to moderate their behavior a little bit. Whether Congress or the courts or the FCC makes them, they are going to pay attention to their customers. And so the key is to stand up and be counted. One way or another.

Mike: But you can only do that if you know what’s happening.

Leo: Well, right. And that’s why we just spent an hour talking about it. We’re going to take a break. When we come back, the news of the week. Mike Masnick from Tech Dirt, Myriam Joire, great to have you here as well. Our show brought to you today by Square Space. Again, an amazing place to make your website. Square Space is the best hosting plus the best tools for managing, developing, creating your site. The best software on top of it. It’s just amazing. They just launched Square Space 7. I’ll give you one example of what’s happened in Square Space 7. Now you can edit your site’s design in place, Wizi-Wig. So you’re on the site, you can move it around and change it, and immediately see the result. You’re getting live editing. No more toggling between site manager and preview mode. You start with gorgeous templates, designed for a variety of businesses. There’s a template that works particularly well with bands, the Horizon template. Artists, architects, chefs, whatever your business. Ecommerce is available on every template. Every template is mobile-responsive. That means you don’t have to have a separate mobile site. Your site just looks great on every size screen. And you get instant access to professional stock photographer from Getty. Instant branded-email setup with Google Apps. There’s an amazing developer platform if you are a guru, you can make a business. Lots of people make businesses out of Square Space, designing sites for clients. It’s so easy to use, but if you want some help they have live chat and email support 24/7 from their offices in New York. Plus self-help videos and workshops that you can browse at your leisure. Best of all, this is $8 a month and when you sign up for a year you get the domain name free! Start a two-week free trial right now. You don’t have to give them a credit card. Just click the get started button on any Square Space page. When you sign up, I would ask you one favor, use the offer code TWIT. You’ll get 10% off and they’ll know you heard it on This Week in Tech. Squarespace.com, please use the offer code TWIT. By the way, if you’re an existing customer and you want to use 7, just go into your settings and you can activate all the new features. That’s nice. That’s the beauty of having your hosting and your software integrated like that. Squarespace.com, use the offer code TWIT. A better website for all awaits. I’m looking at the net neutrality tab on Tech Dirt. You’ve got a lot of great stories. I mentioned the AT&T thing. Comcast says they support the President’s net neutrality plan. Except for that title 2 thing. It’s kind of amazing.

Mike: Yea. Well the thing with Comcast is they’ve been running ads all summer that say we totally support net neutrality. Except that they don’t.

Leo: No.

Mike: So you know they’ve really figured out that because this is a complicated issue, they can basically say that they support it. And try and trick people into believing they support it when they don’t.

Leo: What a world.

Myriam: They’re just lying, basically.

Leo: And it lives on.

Myriam: They own TV, right?

Leo: It’s just amazing. I think this is not something we’re done with. We’ll continue to cover it. Let you know what the moves are. And I think your best bet is to at least write your member of Congress, your Congress critter as Cory Doctorow would say. And let them know you feel strongly about this. Tell them what you want. I’m not going to tell you what to say. EFF does have a great action page at eff.org. I think it’s slash-action where they will not only get you’re your member of Congress’s email and mail address. Snail mail is best by the way or a phone call.

Myriam: There it is.

Leo: There you go. Help us fight for your digital rights. They’re also active in surveillance, the NSA spy. Hey, here’s a good one. Have you heard about dirt boxes? Oh my God, so this was in the Wall Street Journal this week. Apparently the Department of Justice is flying Cessna’s. Small planes out of 19 airports all over the country. These small planes have something built by Boeing called a dirt box inside. And what they do is they pose as a cell tower and all the phones below these Cessna’s will log into this cell tower. They will harvest your unique ID, your geo-location, and who knows what else. They’ll get as much as they can from you as they fly over. They say quote non-suspect cell phones are let go. But if you’re a suspect, well we’ve got you. Now I’ve got to tell you, in no instance has the NSA ever let go of any of that information. They just store it for later use. And I have to think that the Department of Justice is…

Myriam: Are we allowed to swear? I’m just asking because is the NSA trying to… us over?

Leo: This isn’t the NSA; this is the DoJ.

Myriam: Whatever. There’s somebody out there thinking how can we screw them over even more.

Leo: This is about as bad as it can get.

Myriam: It’s like everybody tries to outdo themselves on how much the can screw us over.

Leo: Non-suspect cell phones are let go. But the dirt box focuses on gathering information from the target. They’re flying these all the time over 90% of the U.S. population. Who’s the target?! I don’t understand. When I see helicopters hovering overhead I figure oh there’s a bad guy with a gun hanging around. But these are going all the time every day. The plane moves to another position that has signal strength and location, and the system can use that information to find the suspect within three meters or within a specific room in a building. And they’re flying these all the time.

Myriam: I tell you they’re trying to compete for how worse they can be.

Leo: Dirt bags. Dingos. They’re all dingos. Chris Soghoian who we love, he’s at the ACLU Chief Technologist, but he’s also one of the best security guys. In fact we’ve got to get Chris Soghoian. He’s Sal Soghoian’s brother. We all know Sal. He says it’s a quote dragnet surveillance program. It’s inexcusable and it’s likely to the extend judges are authorizing it, that they have no idea of the scale of it. The U.S. Marshall’s Service is doing this.

Mike: Yep.

Myriam: They were bored.

Leo: I should point out that the courts have held that this kind of metadata like location, cell phone number, cell phone ID is not considered content so you don’t need a warrant to harvest it. So the up-end register will work. So this is basically, I’m sure there’s no judge or court overseeing this. This is just…

Mike: It’s a little bit different in that the stuff with the metadata versus data is you know when they’re going to a third-party and getting it here; the government is the third-party. The government is stepping in and collecting this data themselves with the fake towers. And you know the airplanes, the revelation this week, that’s a big deal. But the fact is the U.S. Marshall Service has been giving out these things not attached to planes but they’ve been giving out what’s called stingrays. Which is basically the same thing but on the ground. They’ve been giving them to police departments around the country and making them sign MBAs that the police departments can’t even talk about it. Even to judges. So when cases come up using this evidence, they don’t tell the judges so the people who are caught using it can’t even protest that it’s violating their fourth amendment rights in any way. So the whole thing is a complete mess.

Leo: Soghoian says well yea, maybe if you’re trying to track a drug dealer involving hundreds of people might be okay. But not tens or hundreds of thousands of innocent people. The Department of Justice, U.S. Military and Intelligence say this technology has been effective in catching suspected drug dealers and killers. But they won’t say who because as you say, Mike, they don’t reveal that. It’s unclear, this is the Wall Street Journal, how close the Justice Department oversees the program. One person familiar with the program said what is done on U.S. soil is completely legal. Whether it should be done is a separate question. The stingrays Chis Soghoian said maybe it’s worth violating the privacy of hundreds of people to catch a suspect. But is it worth thousands or tens or hundreds of thousands of people’s privacy? Verizon by the way said it’s not our towers! Verizon says we are unaware of the program but the security of our network and privacy is top-priority. However to be clear, equipment referenced in the article is not Verizon’s.

Myriam: Yea, because that solves everything.

Leo: AT&T and Sprint declined to comment.

Myriam: Wow.

Leo: Unbelievable. Alright, I just thought I’d mention that. By the way, AT&T… so you heard that both Verizon and AT&T were sending a unique identifier to any website that you surfed to on a Verizon or AT&T phone. AT&T said oh that was just a pilot program. We’re not going to do that anymore.

Myriam: We tried it and it works. But we’re going to stop it now.

Leo: They did! And they said and anything we gathered, we will sell that data. But we’re not going to do that anymore.

Mike: But Verizon’s not stopping.

Leo: No. But they say as with any program, we are constantly evaluating it.

Mike: That gets back to the net neutrality question, right? The idea that can you make enough noise to stop the bad behavior. And you know sometimes you can but in Verizon’s case and this situation apparently you can’t.

Leo: Get this, Verizon says the data it sells is not tied to a user’s identity. None of the data used in the program is personally identifiable. This is a Verizon phone. This phone has a unique identifier and every time I surf on the Verizon network, that unique identifier is sent to the website. Maybe Verizon’s not sending them my name with the identifier but they don’t have to. That’s easily put together. That’s trivial. Verizon says you can opt out but it won’t remove the tracking. I don’t know what that means.

Mike: It means you can’t opt out.

Leo: You can opt out, we’re not going to stop doing it.

Myriam: There’s an opt out button but nothing’s going to happen when you click it.

Leo: Pwn2Own, you know about that. That’s a fun, CanSecWest does that, they put out unmodified operating systems of all the major computers. And they bring the hackers in and there’s a fairly large prize in the Pwn2Own contest. They now do a mobile Pwn2Own. This was held at CanSecWest Applied Security conference in Tokyo on Thursday. If you find a bug, $150,000 prize. That’s in the OS. $100k for messaging services, $75k for short-distance like Bluetooth exploit. $50k for browser apps. So, they had a Fire Phone. I don’t know why they bothered but anyway…

Myriam: Because it was easy to hack.

Leo: It was easy to find. An Apple iPhone 5S, I guess they didn’t have a more modern one. The Galaxy S5.

Myriam: I know. They’re not using the latest phones. They keep them at the end when they hack them?

Leo: Yes they do.

Myriam: Well then you need to have the leaders.

Leo: What was the guy’s name that always pwn’d the Mac every time. And he always got a new laptop every year.

Mike: I don’t remember his name but I remember the story.

Leo: Dan Kaminsky, I think.

Mike: That’s it.

Leo: Samsung Galaxy S5, Google Nexus. All completely owned, or pwn’d. I’m sorry

Myriam: I bet you nobody tried to hack the Fire Phone because nobody wanted it.

Leo: Nope, somebody pwn’d it. The Lumia 1520 running Windows Phone was partially pwn’d. I don’t know what partially pwn’d me.

Myriam: It’s pa-pwn’d.

Leo: Am I saying pwn’d right? PWN. Mike, do you say owned or pwn’d?

Mike: I go with pwn’d too, but it always sounds weird when I do.

Leo: Pwn2Own. The 1520 partially pwn’d.

Myriam: Pa-pwn’d.

Leo: That’s pa-pwn’d. The Blackberry Z30, the iPad Mini, and the Nexus 7: nobody wanted them. So they weren’t targeted at all.

Myriam: Wow. That’s random.

Leo: They don’t reveal the exploits by the way with the public until they’re first shared with the vendors. And once the bugs are closed, then they’ll tell the rest of the story.

Myriam: I wonder how that works. You find a bug in Apple’s stuff and you go up to them and say hey I found this.

Leo: I pwn’d you, baby.

Myriam: They would kill you instantly right. There’s lasers coming out of the sky. Zomp!

Leo: The 5S was owned via the Safari browser by exploiting two new bugs. People like Kaminsky, they collect these all year long and they hold onto them until the Pwn2Own. And then they, it’s really… I’ve got to see one of these. Have you ever been to one of these? They’d be so much fun.

Myriam. I have not.

Leo: If they do it Vancouver, then…

Myriam: My phones already hacked.

Leo: I know. If I go into Lack Hatter or defcon, you don’t want to bring anything. The Fire Phone was breached via three bugs in its browser. The Fire browser. The Galaxy S5 was targeted via NFC. One triggered a deserialization issue in certain code. The other targeted a logical error. And the Nexus 5 was forced… this sounds vaguely sexual… it was forced to pair with another phone via Bluetooth.

Myriam: Oh boy.

Leo: Don’t make me pair with that phone! Pwn2Own.

Mike: I just like saying that.

Leo: Apple Pay has been very successful. Apple is saying now that, well maybe actually McDonald’s said this. 50% of all McDonald’s tap to pay transactions…

Myriam: Are you using it?

Leo: I haven’t used it. Have you?

Myriam: No, I don’t have a 6 or 6 Plus.

Leo: Well the good news is, Whole Foods for instance said it has had 150,000 Apple Pay transactions in the last two weeks. Since 8.1 was released. McDonald’s has seen a rush of customers. 50% are… that means that 50% are from other tap-to-pay devices.

Myriam: Probably Google.

Leo: Credit cards or Google Wallet. And that’s really the point. Both Google Wallet and Soft Card which is the Verizon solution formerly known as the terrorist group ISIS.

Myriam: They renamed that in a heartbeat, didn’t they?

Leo: It didn’t take long. They say they got a bump in usage as well. So as soon as the awareness of tap-to-pay, in fact that’s what I’ve been tempted to do.

Myriam: Just try to break your phone.

Leo: I’m just throwing my… it’s a Verizon phone. I just want to get rid of it.

Myriam: How is that by the way?

Leo: This is the Droid Turbo. It’s good because it’s a Moto X with a massive battery.

Myriam: And the big awesome display. It’s gorgeous.

Leo: It’s nice, isn’t it? You know this burns me a little bit. Because companies come along with big stuff like the Nexus 6 and the Droid Turbo. With big batteries. Honking great batteries. The Note 4. And then instead of saying great we’re going to give you 25 hours of battery life, they say as long as we have such a big battery, let’s put a 2520x1440 display on it. And a 3 GHz processor and by then it’s back to normal. Can I just have some battery life? That’s all I want.

Myriam: I thought that was good though? This is the best of the crop, right?

Leo: I love this. Now One Plus One has better battery life, just barely. But this is almost. And it’s got all the Moto features. Like I can say help me Obi Won Kenobi.

Myriam: Is that what you said to it? It didn’t work.

Leo: Help me Obi Wan Kenobi. You’re my only hope. So it listens when I say that. I’ve realized this by the way, you have to have a long phrase. Because my watch wakes up if I just say Ok f-d-d, my watch wakes up. Have you noticed that?

Myriam: Sometimes, yea.

Leo: Okay f-d-d. Shush! I’m not talking to you now!

Myriam: You’ve proven your point.

Leo: And have you noticed that if you turn on the hey Siri thing… I’m sorry, everyone at home’s getting mad at me right now.

Myriam: Why?

Leo: Because their phones are waking up.

Myriam: Oh let’s try this again. Are we ready?

Leo: No, don’t do it.

Myriam: Okay, Google.

Leo: So I have now turned off hey Siri on all my iPhones because it wakes up in the middle of the night!

Myriam: Let’s do the Xbox.

Leo: My snoring must sound like hey Siri.

Myriam: You want to do Xbox. Let’s do the Xbox.

Leo: Okay, what do you say on the Xbox? Xbox, pause. And now all the people watching us on Xbox aren’t watching us anymore. It sucks!

Myriam: It’s counter-productive, Leo.

Leo: You see. There goes my watch. My Xbox just powered off.

Myriam: It’s Xbox power off.

Leo: You’re a dingo!

Myriam: I can’t help it. Not as much as Tom Wheeler!

Leo: Nobody. 50% of Apple Pay, 50% of McDonald’s tap-to-pay transactions. I’m sure that’s the statistic that Apple would love to tap. More Big Macs were sold with Apple Pay than any other tap-to-pay device.

Myriam: That’s because phones have grown bigger.

Leo: As the people that own them grow bigger.

Myriam: Because of McDonald’s.

Leo: Has anybody used the YouTube music? It’s called Music Key service. I think it rolls out this week. If you have all access to the Google Music Service, you’ll get it automatically.

Myriam: Is it cheetah.google.com?

Leo: Just go to youtube.com and you should see a music tab. That’s new at the top of your screen. I’ve got it. Now it’s not doing anything specials right now? I’m getting YouTube Mixes… oh I guess I am getting it. These are non-stop playlists based on a song or artist. You don’t have it on your YouTube?

Myriam: No I have it.

Leo: See it, it says in the mood for music? Play it again. Music I’ve listened to before.

Myriam: Taylor Swift!

Leo: I did not listen to Taylor Swift. Take it… I did not listen to her Shake it Off.

Myriam: It says you did.

Leo: It says I did but it’s lying.

Myriam: I’m just saying…

Leo: So this is kind of cool. And the idea is that you’ll have ad-free music but not if you have free YouTube though.

Myriam: Half of it is Vevo and half of it is Taylor Swift. That’s my take on it.

Leo: Nikki Minaj, Pills and Potions. I don’t think I listened… Nikki Minaj, Vavavoom.

Myriam: There’s Susie Sue and the Banshees. That’s more of our thing.

Leo: Yea, that’s because we’re old.

Myriam: I know. Don’t tell anyone.

Leo: Here’s a hitting the gym mix. See I’m getting an ad right now but once this clicks in I won’t get an ad.

Myriam: You sure about that?

Leo: That’s what they say. Ad-free and you can play forever.

Myriam: Oh my.

Leo: This is what Google thinks I want to listen to in the gym. Why would I want video? For those of you listening at home, you’re really missing the fun.

Myriam: This is actually pretty…

Leo: This is fairly homoerotic, I’ve got to tell you.

Myriam: Wow.

Leo: What year was this?

Myriam: It’s Olivia Newton John. It’s like 1980 something.

Leo: 1981.

Myriam: You like the tron grid in the back?

Leo: That’s high-tech.

Myriam: I think you and I should do a mystery science theater thing.

Leo: Olivia Newton John and her Cabana Boys present Let’s Get Physical. This is Google’s suggestion.

Myriam: Well they clearly love you.

Leo: I think I’m the guy on that exercise cycle.

Mike: Wow.

Leo: Oh! Alright, we’re going to take a break. We’ve got to take a break. I’m overheating now. Can I get a snack? Would you like a snack, Myriam? Mike if you would come up next time I will give you a snack.

Mike: Absolutely.

Leo: A Nature Box snack. Nature Box sends delicious, nutritionist-designed snacks to your door. You get to choose.

Myriam: Flax fortune coins.

Leo: Those are quite good. The blueberry nom-noms. That’s really good, coffee kettle popcorn. Big apple pineapple, if you like dry fruit. All of these are nutritionist-approved. No HFCs, no trans fats, no artificial flavors, no artificial colors. Just delicious snacks. And I’m going to get you five snacks for free. I’ll get you a sampler right now if you go to naturebox.com/twit. You just pay $2 in shipping. It’s a great way to try Nature Box. To get an idea of what Nature Box offers, drop the candy bar, put away the potato chips, those aren’t good for you. Get delicious, wholesome snacks from naturebox.com. For the kids, for the family, for business, Nature Box has literally hundreds of snacks on their webpage. You can choose from savory, sweet, or spicy. You like sriracha? You seem like a sriracha kind of person?

Myriam: Maybe. It’s okay. Flax…

Leo: You want the flax fortune cookies?

Myriam: Well I’m going to do the popcorn. You said the popcorn is the way to go.

Leo: You know, next time you get hungry in the afternoon, don’t go to the candy machine. Grab a lemon pucker pistachio. Or a strawberry Greek yogurt pretzel. Or a mango orange fruit chew. And you got the coffee kettle popcorn kettle corn with coffee, caramelized popcorn. All of these by the way in sealed bags that you can reseal which is really nice. Actually I don’t think you can reseal this one. You have to eat the whole thing. Sorry.

Myriam: It’s okay.

Leo: Nature Box, and look right on the side there: nutritionist-approved.

Myriam: For the drive home?

Leo: You can have that for the drive home. Naturebox.com/twit. All of you can have a free sample. Just pay the $2 postage and look at Olivia is still singing.

Myriam: It’s still going.

Leo: And the guys are going off together in the gym.

Myriam: And she’s like oh no guys.

Leo: She chose that one. Now I know why Google chose this video for me. Olivia likes big men. I’m not fat, I’m thick. Do not clear data for Google Service framework. This is funny. Did you talk about this on All About Android? I bet you did, Jason. In fact I know you did, I saw it in the promo. The Moto X apparently is only a small number of people are getting updates to Lollypop on the Moto X. But it’s pissing the Nexus 5 folks off. Because they say but I bought the Google phone. And I’m not getting Lollypop yet.

Myriam: And the G3 is getting Lollypop. And the Moto G is getting Lollypop.

Leo: Wait a minute, the Samsung G3?

Myriam: No, the LG G3.

Leo: Oh is the LG G3? Is it?

Myriam: In Poland.

Leo: So there was a post on Reddit by a Google engineer who explained how this works. Just so you know.

Myriam: On Reddit of all things.

Leo: Yea, this is the PSA. It says do not clear data for Google Service framework. If you are geek enough to know why…

Myriam: How? I’ll show you right not.

Leo: No I could do it. But there is a reason not to do this. So why are people doing this? Because they are getting the APK or whatever it’s called, the zip. Actually I think it’s a tar file for the OS update. And all of the final images are available for all the phones. They’re downloading them but in order to install them you have to go through, or jump through some hoops. And but some people are doing is screwing up their phones by changing this framework by resetting this framework. And when you do that, when you clear data from the Google Service framework… you think Tom Brokaw could say that?

Myriam: No, we need somebody with a palpitater it their mouth. Sean Connery.

Leo: Sean Connery. If you change the Google Service framework, it will change the primary ID by which Google knows your device. And that’s not good because it validates the tokens any app uses. All your apps will break. You’ll have to log out and back in. It’s a mess. Don’t do it. This guy is an engineer at Google and he says nothing bursts into flames but it makes a ton nuisances on the device including some that can look pretty mysterious. Now, what he does say, just so you know is that 1% of all Android devices in this case the Moto X will get it in the first week. 1%. There’s no point in hitting reload, reload.

Mike: Everybody goes to that system update and taps it.

Leo: Notice it doesn’t change.

Mike: Rarely if ever will you see it switch right over. I’ve had it happen. I think it’s really luck.

Leo: Because you’re on the cusp of week two. So what he says is that we pick a random 1% and those people update. And then we wait for the howls of pain. And if you know there are no big show-stoppers at that point, you have a Nexus 5. There are no big show-stoppers at that point. Then we will do 25% the second week. So if you’re using one of those phones, a Moto X, G3, Nexus 4, 5…

Myriam: It’s preemptive and they checked that 420…

Leo: It’s always checking. There’s no point in doing this refreshing. You’re not in the 1%. Just be patient.

Myriam: It’s Lollypop. It’s great; I’ve got it on my Nexus 9 but it’s not like going to change your life or something.

Mike: Because people have been waiting however long for it already. And now that it’s out, they’ve got to have it right now. Particularly Nexus fans.

Myriam: The excitement of when you finally get it.

Leo: Anticipation.

Mike: The other side of this is like you said, ADB side load. That’s going to go over a lot of people’s heads but if you really need to do this, you download the Android SDK, plug it into your computer with a USB and you do a couple of terminal commands. It works.

Leo: You cannot do that!

Mike: If you really need to, there is an option for you. You’re going to wipe your phone in the process so it has a downside. You start from scratch. But there are options. You don’t have to wait if you don’t want to.

Leo: If you’re the kind of person that watches All About Android every week, you should do that.

Myriam: You know the majority of people aren’t going to do it though.

Leo: I hope not.

Myriam: Another one Jason can control the power.

Leo: Jason’s our guy now. He is the lead producer.

Myriam: Look at the seriousness.

Leo: He’s powerful. He’s also the first producer I’ve ever had that I can actually see over the top of the screen.

Jason: Well the problem is where screen is located, I know you’re looking at the screen but I’m pretty sure you’re looking at me the entire time. Your eye-level is the same.

Leo: I’ve got my eye on you.

Mike: A lot of pressure.

Leo: Google Glass, is it dead?

Myriam: Yes.

Leo: When exactly did it die?

Myriam: I’ll tell you for me when my Google Glass usage died.

Leo: You have one.

Myriam: Yea, I’m an explorer. I paid the crazy money. Let me think when I really stopped using it. I think it was sometime in the spring to summertime. After Congress for some time, there was an update that really borked the battery life. And it’s never recovered from that really.

Leo: Mike, are you a Glass-hole?

Mike: I’ve actually never even tried it.

Leo: Good.

Myriam: Good for you, stay that way.

Leo: I think it’s interesting, here I am on Reuters with this article: Google Glass future clouded as some early believers lose faith. And they have a picture of Sergey Brin who’s not wearing them. He’s worn them because it’s his baby. He’s been wearing them ever since they came out. He was at the red carpet during the second annual breakthrough prize awards at Nasa Aims on November 9^th not wearing them. First time he was seen in public. Then oddly enough right next to it, Viagra helps guys with E.D. get and keep an erection. So I think that there’s some relationship between wearing Google Glass and erectile dysfunction. I don’t know. I’m just saying. Google wouldn’t put this ad there.

Myriam: So I did have a weird experience that can also make me question Glass. Was admirable Congress, you know I’m a T-Mobile customer. So I have free roaming.

Leo: Me too. Love it. Isn’t that awesome?

Myriam: Fantastic. Best thing ever, right? Guess what. So Google Glass is supposed to do its updates and download the mega-gigabytes of update only when it’s battery powered on a Wi-Fi network. So I was mobile Congress, not on Wi-Fi but I had plugged my Glass to charge over a USB battery. And for some magical reason, it decided to download the update over my connection, my roaming connection.

Leo: That’s bad. Everyone’s telling me by the way that they’re not seeing the Viagra ad. That it’s only on mine.

Myriam: But here’s the thing, Leo. So it downloads this update and I call the guys at T-Mobile. Are you going to kill me now because I just downloaded 2 GB on my data roaming? And they’re like no. That’s a lot of data but it’s free. Free is free, you don’t have to worry about it.

Leo: 2G, right. It’s not high-speed.

Myriam: So I called Google, called the Glass and said why would you do this? What the…

Leo: You know I’m in Europe. What the dingo?

Myriam: And they’re like you’re not supposed to take Glass abroad. You broke the terms of service.

Leo: What? It says you can’t take Glass abroad?

Myriam: No it’s total… but it’s like they played that game with me. You didn’t use it right. You took it with you abroad; you’re not supposed to do that.

Leo: How.

Myriam: Right. So talk about customer service.

Leo: Brin told a reporter, oh I brought it. I left it in the car. I’m not kidding. I swear to God.

Myriam: Because he drives with it.

Leo: The Google Glass roll-out, the actual mass-market sales; you can still buy it for $1500. But presumably they’re going to do a less-expensive version. That they’re saying now is down the road maybe not till next year or year after. Of the 16 Glass app-makers that Reuters contacted, nine said they stopped work or abandoned their projects because of lack of customers or limitations of the device. Three more have switched to developing for business only. So let’s see. That means there’s four consume projects remaining. There are also several key Google employees in the Glass division that have left the company in the last six months. Lead developer Bob Jarvis, electrical engineering chief Adrian Wong, and Osama Alami, who is the director of developer relationships. You got to think this is kind of the beginning of the end, right? I said right when it came out, that I don’t think this is designed to be a consumer product. This is designed to understand wearables. We don’t understand them yet. And to get some data, some information. Google is a data-driven company. I think this is also telling; remember there was a VC fund for Glass development. The website is gone. Routes to the main Glass site. I think that’s pretty much the end of the line on this. Are we sad? No. Who cares?

Myriam: No but I mean honestly I think you know there are a lot of issues with the way Glass users use their devices. Which I think got maybe blown out of proportion by some people. I think there’s a root cultural societal issue that made Glass fail in some ways.

Mike: They really came back and bit it, didn’t it?

Myriam: Right. But I think at the same time, kudos to Google for trying.

Leo: I agree.

Myriam: Going out there and trying to build the tech. You know, making it relatively reasonably affordable so we could get to see what it is going to be like when it’s incorporated in these glasses.

Leo: Here’s the good news. When you go to eBay, you can get Google Glass 2.0 XE with all original accessories. In the box, $730.

Mike: Still too much money.

Leo: These are half off. Then there’s some idiot selling it for $2000 that obviously didn’t get the memo.

Mike: I still think it’s an interesting project. The idea is really interesting. And I think we’re seeing some of what they learned in the Android wear stuff. And the smartwatches. And so, I don’t think it was a bad idea.

Leo: No, I agree.

Mike: It certainly created some issues in a variety of ways. But the idea of wearables and doing interesting things with wearables, I think that’s definitely the right direction to be going in.

Leo: And I should say, Google did give a statement to Reuters that said no, we are as committed to Glass as a consumer product as ever. This is going to take time and we’re not going to launch this product until it’s absolutely ready. That’s Glass head of business operations Chris O’Neil.

Myriam: I wrote an editorial for Android Central back in April-May about my Glass experience. If you guys want to look for it, Google it with my name and Android Central.

Leo: Myriam Glass-hole.

Myriam: Yea, there you go.

Leo: You know, I’m with both of you. I really feel like this is… wearables is clearly a category that’s going somewhere. What I think we’ve seen so far is that it’s not clear how or what, or what features or what technologies. There you go. Glass didn’t really seem to do it. I was never really as excited… in fact I got a Glass invitation. And I bought them and gave them to Jason because he had a kid.

Jason: And they came in really handy for the very specific use of videotaping my kids from my own point of view. Which I’ve got some amazing video.

Leo: But you don’t wear it anymore.

Jason: You know, I keep it charged.

Myriam: Me too.

Jason: And I wait for those moments where I’m like… like Savannah’s first steps. It was perfect for that. It was charged up and I was ready. I had a feeling and she took her first steps when I was wearing Glass. And that’s a video I will always cherish because it was actually from my point of view. So it’s like re-living in the experience. Do we think that Glass at this point, as far as being three years into this grand experiment, to the time where Google actually mentioned it at all to everyone, it’s almost three years. I don’t know. I feel like the social damage has been done on this particular product. And I don’t think… if Google had something to follow-up with, I really think they would be defending the product at this point a lot more than they are. I think wears has come along and solved a lot of those problems and wearables in general. Basically saying, look a lot of the really cool, compelling things that were use cases for Glass, getting it on your wrist in a form factor that people are used to seeing and aren’t intimidated and frightened by.

Leo: I am a fan. I have to say, of Android Wear. I think this Moto 360 is great.

Myriam: It’s a great watch.

Leo: And I’ve seen a clear use case for it. For instance I can navigate when I’m walking around with the maps. And it will tell me to turn left and buzz at me. Pausing a movie last night. There’s definitely clear use cases for it. I wear it every day now.

Myriam: Yea, obviously.

Leo: Mike Butcher in Tech Crunch said Glass has taken over from the Segway. This game changer but ultimately used by warehouse workers and mall cops.

Myriam: So now they are wearing Glass riding the Segways.

Leo: Yea, in fact I think that’s where you’re going to see them.

Myriam: And you know, that’s really safe. I’m just saying. I think we should talk about Microsoft.

Leo: Is there anything to say about Microsoft? The Microsoft shackle?

Myriam: The 535, it’s cool.

Leo: They’re not going to sell it in the U.S. I don’t think. This is the new Lumia. The first Lumia…

Myriam: Yea, because it doesn’t have LTE. But you know what for an unlocked phone and the specs it has, it’s pretty damn cool.

Leo: It’s pretty clear that Microsoft has decided that it’s going to take the Windows Phone platform in a particular direction. They’re going to make it for developing markets. They’re going to make low-cost phones. The 1520 is the last flagship, the Icon, the last flagship and these are not being updated. And frankly, I don’t think they’re going to change it.

Myriam: I wouldn’t be surprised if we get something to follow-up on the 930.

Leo: Not this year.

Myriam: Not this year but after mobile Congress…

Leo: Mobile Congress is April?

Myriam: February-March. Mid February this year? I don’t know.

Leo: I think this isn’t a bad strategy for Microsoft. I have to say, everybody in the United States has chosen Android or iPhone pretty much. Where are you going to go to grow? A developing world where they maybe have not yet purchased that smartphone.

Myriam: Indeed. I think what’s particular about this device, is it’s the first Microsoft-branded Lumia phone.

Leo: There’s no Nokia.

Myriam: There’s no Nokia. It’s the Microsoft devices Lumia 535.

Leo: Let’s be frank. Putting the name Microsoft on the back of the phone is not going to help their sales practice.

Myriam: I actually personally think that losing the Nokia brand… they should have negotiated.

Leo: No, no! They can still use it. The deal allows them to use it for another year.

Myriam: Yea, but you know Nokia Proper, the company that’s left to do all the maps, they’re going to make a smartphone. It’s going to run Android and it’s going to be a Nokia brand. Guarantee you.

Leo: Because they still have a very good brand in the third-world developing nations it’s going to do great. And Microsoft once again cut off at the pass.

Myriam: And we’ll see. Maybe they don’t have all the right people with the expertise. They got it sold by Microsoft or whatever. The one thing about Nokia is that they have more expertise than anyone else at things like power efficiencies or ADOs. All that stuff that’s really critical, especially in developing nations for phones.

Leo: What do you use, Mike?

Mike: For a phone?

Leo: Yea.

Mike: I have a Samsung Galaxy S4.

Leo: I judge people by the phones they use.

Mike: Fortunately I’m waiting for my One Plus One which is in the mail.

Leo: You’re going to love it! It kills me that that’s still the best battery life. 20 hours, easy, of any phone I’ve used. And it’s $300.

Mike: My one fear with it is I’ve always stuck with phones that have replaceable batteries. So that’s the first one. Then I was like it’s big enough that I think I’ll be able to do it without the…

Leo: You don’t need it. You know I have a Note 4 and I bought a second battery for it. But if you don’t need a second battery, it’s better than carrying one around. I also have to say super charging helps a lot. These speed charging capabilities of the Note 4, the Nexus 6 is going to have it, the Moto X has it, the Turbo has it. You can’t… 15 minutes gives you like 25%. Half an hour gives you half. So you go out and you’re clubbing, out late… I know you do this all the time, Myriam. You’re out late and partying. They’ve got the phone and then you get home, it’s eight in the morning. You have to go to work. You put the phone on the super charger and hop in the shower. By the time you’re on your way to work, you’ve got almost a full charge.

Myriam: Then what happens?

Leo: Crash and burn!

Myriam: I need caffeine. It’s interesting because I’ve always destroyed the argument that people bring to me when they say removable batteries are their thing. Because I think it is a real thing. Because to remove your battery, you have to power down the phone. At that point, you lose your clipboard, all the apps that I’m running.

Leo: I do it all the time. In fact it’s good for your phone to power it down.

Myriam: No, I think having a USB battery stick, a very small one is great.

Leo: Terrible idea!

Mike: No, no.

Leo: Yea, Mike and I agree.

Myriam: And you need to start with one that has good battery life.

Mike: So here’s the thing. So the phone that I had before the Samsung which I’ve blanking on which phone it was. The charger, the USB port actually broke so the only way I had to recharge that battery was to replace it. So every day I was flipping in and out the battery. I became so used to it that the idea of not having a replaceable battery scared me.

Myriam: I can see that but you get used to it.

Leo: The other thing I like is you still have to take off the back, there’s an SD card.

Myriam: No that I agree.

Leo: I kind of like the Note 4. I’m waiting for the Nexus 6. Do you have one?

Myriam: Not yet, I’m waiting for it.

Leo: Mike, did you get a Nexus 6?

Mike: Nope.

Myriam: They sent me a Nexus 9 but they said they didn’t have enough Nexus 6’s to go around.

Leo: I actually purchased one and I’m waiting for it. Ships November 21^st. Then it’s going to come down to three phones. Droid Turbo, or Moto X if Lollypop gives it better battery life. I could go back to the Moto X.

Myriam: It’s a good phone.

Leo: I love it. But this is like a Moto X with a big…

Myriam: But it’s on Verizon.

Leo: I want T-Mobile.

Myriam: Exactly.

Leo: Or the Galaxy Note 4 on T-Mobile. I have to unlock one for the Nexus 6.

Myriam: I’m still a big fan of the LG G3. It has overall the best balance of specs and…

Leo: Enough of this! I want to talk about Taylor Swift.

Myriam: Let’s do it. We just talked about her!

Leo: We didn’t talk about the fact that… the back and forth between her and Spotify. So she pulls all her songs off Spotify because she says mostly what they wanted was to have Spotify say you can’t listen to Taylor Swift on the free version. But if you pay the $10 a month, you can listen to Taylor Swift. Spotify wouldn’t do that. So Swift said I don’t want people to think my albums are free. No. Then Daniel Ek, I think it’s Ek. I always said Ek. The CEO of Spotify, would our Swedish listeners tell us how to pronounce that? Daniel Eck of Spotify said no, wait a minute. Stop. Taylor Swift is on target to make $6M this year from Spotify. Several billion to the label. The label responds saying what are you nuts? We didn’t get that kind of money. Spotify has not paid according to Daniel Eck $2B in royalties overall. He says an artist like Taylor Swift should be getting around $6M a year. Problem is that it does go to the label. Not to Taylor; maybe Taylor’s got a bad deal with the label. And then in response, the label released its numbers. It’s a mess.

Myriam: It’s a mess. I don’t know. I think…

Leo: Where do you get your Taylor Swift?

Myriam: Free on YouTube. Really. I was demonstrating earlier.

Leo: Let’s get physical.

Myriam: I just think it’s a lot of big ha-ha.

Leo: I have come around. We talked about this last week because we had Rob Reed, the guy who founded Rhapsody, he was the guy who came up with the $10 a month fee many years ago. And he said we did the math with the help of the recording industry. They believed it would better to get $10 a month from every consumer that would try to sell CDs. The CD sales were dying. In fact we see the first half of 2014, sales of CDs and downloads are down 14.6% year over year. According to the RIAA. So it’s dying. People are not buying music. Meanwhile, Spotify, Pandora, YouTube growing rapidly. So he said at the time the record industry thought that would be a good thing. If artists are complaining then he said you should talk to your label because they are getting plenty of money.

Myriam: Sounds like a lot of whining.

Leo: Anyway.

Myriam: And drama.

Leo: 1989, Taylor Swift’s new album. Now available on iTunes. Just thought I’d mention that. Mike Masnick, so nice to talk to you. Next time drive up from Redwood City. We’ll get you a great cup of coffee, get you some snacks.

Myriam: It’s so good!

Leo: This is a new coffee machine. Isn’t that fantastic?

Myriam: It’s absolutely amazing.

Leo: And you got to get a really good grinder, a bird grinder if you do the Baratza Oreo. Significant investment but for you and Mike, and employees and staff at the TWiT brick house: nothing is too good. Mike, anything you want to plan. Techdirt.com obviously.

Mike: Yep, at techdirt.com, right.

Leo: you’re doing a podcast, right?

Mike: Yea, we love to podcast this week on Thursday. It’s very small and lightweight. And we’re just getting started. We…

Leo: That’s just like us. We’re small and lightweight.

Mike: Kind of the hill. We’re a little new entrant in this space. But check it out. Hopefully it will… we’re moving on it. It’s an experiment in progress.

Leo: Where should I find it? Just go to techdirt.com or is there a special URL?

Myriam: If you go to the corner where it says share, there’s a link to the little blue icon.

Leo: Ah, I see the podcast photo. And it’s on sound clouds?

Myriam: Yes.

Leo: That makes it easy. Can you increase privacy by increasing surveillance? That’s the topic; 36 minutes, chalk full of goodness, ad-free I’m guessing

Myriam: Yes, absolutely.

Leo: I welcome the competition because I read on cassette. I read Tech Dirt for more than 10 years now. And I think you guys do a great job. I’m really glad to have you out. And I can’t wait to hear the podcast. Thanks to Myriam Joire, looking for work?

Myriam: Yes, I’m looking for my next big thing

Leo: We said we would give you a plug. @tankgirl on Twitter.

Myriam: Tankgirl.com, if you’re looking for my website. Should people tweet you if they have a job?

Myriam: Yea, they can tweet me and we would direct message after that.

Leo: And you’re looking for what?

Myriam: Tank girl like that at gmail.com. I’m looking for this something back in the media like I used to do. Senior in the media. Or back to communication I get with Pebble, which was fun.

Leo: Yea, how was that? You went from being a journalist to working for a company.

Myriam: They offered me a job. As you know I’ve angry about Pebble on the gadget. And In went kind of crazy beyond that. So then they were like come work for us. And we thought what a crazy idea. And it was a good time. And the next thing that… I continued on my blog, being on the other side. I want to be on the both sides so there’s a fence sticker.

Leo: No you were; you never really stopped doing journalistic stuff which I really love.

Myriam: And so my podcasts, you can find my podcasts at tanko.com. And my site. And then maybe I’ll get into some… I’m kind of into the Crowd Funding, advising and strategies side of things. So if you guys are looking for someone to help you with that.

Leo: She’s great. And we’ll have you on more of our shows on All About Android last week. We’ll have you back. Hey I want to thank our live audience who sat through a marathon. I hope your brains expanded. And I appreciate you being here. I really do. If you want to be part of our live audience, email tickets at tickets@twit.tv. And especially pay attention to New Year’s Eve. We’re opening tickets for that as well. We’re going to do our 24-hour marathon this year. It’s for charity, for UNISEF. Lots of fun stuff. We’re going to have three studios open. We’re going to take over the street out front. We’ve got music, fun, and love. But you will have you. And we will have limited capacity so you have to email us. If you want to be on Skype, we’re looking for people in every zone. Because one of the things-we did this last year-have a balloon drop and a countdown at midnight. Every time… that’s more than 24 by the way. Some of you are a quarter after and half past compared to us. So if I could do every one of them, I think there’s 27 time zones. I would do them all. So go to twit.tv/nye to sign up. Yes, I admit, it’s New York and some of the bigger cities are probably over-represented. But if you’re in the Solomon Islands, I would really like to hear from you.

Myriam: Easter islands. Do they have internet there?

Leo: Absolutely. We’ll do it by phone if we have to. Twit.tv/nye. We’re also planning for our holiday specials. Every year, most of the Twit shows do a best of. TNT is going to do something different. But we’re going to do a best-of. So go to twit.tv/bestof. And tell us if there’s a moment you liked in the past year. You don’t have to know the exact date and time and everything. But the more information you give us the better. That will help Jason a lot. Jason’s got to hack this all together.

Myriam: He’s good though. He’s the best.

Mike: I have a lot of work ahead of me.

Jason: That’s true. Because you have to do MacBreak Weekly, and some others.

Leo: Help Jason, please.

Jason: Help me entertain you.

Leo: Twit.tv/best of… and we have another week on our t-shirt. Or shirt; it’s not a t-shirt. Boy these are not selling well, are they? Golly, I’m disappointed. I thought these were really cool. We have two choices. We’ve come up with something that TWiT fans could receive one for the holidays. BY the way, we will end this December 1^st, so that we have enough time to get you this before the end of Hanukah or the beginning of Christmas. We’ve got an embroidered man’s shift, woman’s shirt. We also have polo shirts, both with the TWiT logo. They’re not super expensive. They do benefit TWiT. Is it all $30? Every one of them? Something like that. And it would be very nice if, not just for you but for the TWiT fan. And if you’re a TWiT fan, tell your loved ones. You know what I would like? This lovely t-shirt. Then if you come to our New Year’s Eve show, we’ll put you to work valeting cars.

Myriam: Nice.

Leo: And S, Jeff, and Six from I think Sweden says the shirts are too small. Are we not doing the programmer size this year? What’s the biggest?

Myriam: Super mega.

Leo: We usually do a triple X. We do a 3XL. How big are you?

Jason: Small, medium, large…

Leo: We’ll figure it out. If you have a question, you can email glenn@twit.tv. He’ll figure it out for you. I thank you for being here. We do TWiT every Sunday afternoon. 3pm Pacific, 6pm Eastern time, that’s 2300 UTC. If you’d like to stop by live and watch and we appreciate everybody in the chat room-fabulous, really love having you-but if you can’t on-demand audio and video is always produced after each show. Sometimes with the bad words taken out. Sometimes with bad words put in. We just don’t know what’s going to happen. But you’ll find those… no they all have explicit-free. They’re non-explicit. What does that mean? They’re implicit? What’s the opposite of explicit? Anyway they don’t have bad words in them. You can find them on iTunes, wherever you get your podcasts. Stitcher, we have TWiT apps on almost every platform including Roku. Get the shows there. Thanks for joining us and we’ll see you next time! Another TWiT is in the can.