Policy and regulation

In a troubling ruling, the 1st U.S. Court of Circuit Appeals has said it is okay to read other people's email while it is "stored" on a server. Yahoo! News reports on the legal case of Interloc, a company that read the email of its subscribers to find out what Amazon.com was sending to them, and why.

The ruling seems to rely on hairsplitting, rather than commonsense. Wiretapping of "live" communications has always been subject to rigorous oversight, but email is not "live" in the same sense that a phone conversation is. An email messages transits through several servers, and is stored, sometimes for long periods of time, on the email server used by a particular user. The courts are taking the view that it is okay to read the email while it is stored on a third party machine.

It is as if the court said it was okay to open and read a piece of mail while it is in the mailbox down the street from your house.

It is hard to understand how the judges could so easily trample what seems obvious--email is and should be considered private, and both commercial companies and law enforcement officers should be constrained from reading email without strict oversight.

Fortunately, there is a perfectly good solution to the conundrum--encryption. We have the tools today to encrypt email using public key encryption, and this ruling will hasten more widespread use of encryption for routine communications. Done properly, encryption of email can be nearly transparent, but will be very effective as a deterrent to casual snooping of the kind done by Interloc. Encryption is the equivalent of putting our email in a tamper-resistant envelope; it keeps most people out. Is it perfect? No--but then neither are envelopes, but we've used them for centuries without much fuss or worry.

Unfortunately, part of the problem here is the lack of interest in improving email clients. Most email clients are given away free, so there is little incentive to improve them or to make features like encryption easy to use. But it's a business issue for the private sector, and as the bigger companies demand it, easy to use encryption will spread.

In a widely carried AP report, AT&T has announced it is getting out of local dial tone and long distance in several states, and may abandon most other states shortly. There are two things going on here, and only one of them was discussed in the article.

The article correctly notes that the proximate cause for the AT&T pullback is the FCC ruling that allows the local phone companies to charge higher wholesale rates for their antique copper telephone lines. AT&T has been leasing these in bulk to provide local dialtone. The higher rates make it unprofitable for AT&T to do so.

On the face of it, this looks bad for local communities, as there seems to be less competition, and puts the local phone companies back near their previous monopoly status for dialtone.

What was not covered well in the AP article is the fact that AT&T is making a major push for Voice over IP local and long distance services. The company has wisely decided to abandon the antique phone service market and concentrate on selling what is going to count in the future. It's a smart move.

Some of the phone companies are not standing still, however. SBC has announced it will spend billions on fiber to the neighborhood and fiber to the premises, although the latter will be done only in new neighborhoods for now. The new system will have the capacity for a single channel of HD TV--much higher capacity than existing DSL lines, but still not what will be needed in the future. But the fiber has the carrying capacity--SBC is reluctant to put in the electronics, probably because of cost and because they are trying to control access.

Communities getting these new systems may breathe a sigh of relief that they don't need to do that telecom planning after all, but their headaches are simply being deferred to the future. A monopoly is a monopoly, and it does not matter much if it is a legal monopoly (the old, pre-1996 approach) or a de facto marketplace monopoly.

Day by day, new technologies add more and more complexity to our lives while simultaneously making things better.

Internet radio has extended the reach of many local stations to literally, a worldwide audience. Expatriates can listen to hometown programming and news from anywhere in the world. The radio stations benefit from a broader audience, which allows them to raise advertising rates. Advertisers are happy because Internet radio provides better information on how many people are actually listening to the radio.

So what's the problem? HD radio (High Definition), or digital radio, both broadcast over the air or over the Internet, offers higher fidelity. But the music industry is flummoxed because as HD radio becomes more common, it will be possible to make excellent, high quality recordings off the air (which you can do now with any good FM signal, but most people don't bother).

If that is not enough to give record company officials nightmares, the thought of having listeners then use filesharing to "share" all those recordings over the Internet is about to send them right over the edge.

This situation has been building since CDs first became popular twenty years ago, but the Internet, giving music lovers the ability to share music, has made it worse. Amid the smoke and heat of the discussion, there is a legitimate issue about what constitutes fair use. Unfortunately, we have two polarized points of view. The recording industry wants to take back fair use rights consumers have had since Edison started making recordings. In their ideal world, we'd have to pay every time we listen or watch anything (not a good thing). On the other side a a group of mostly college age music listeners who think there is nothing wrong with sharing copyrighted music with the whole world (also not a good or thoughtful thing).

In the middle are a lot of people who think that the music industry is going to have to face the fact that the world has changed, and how record and movie companies make money will have to change along with the world. In the meantime, the entertainment industry is trying furiously to buy the best laws they can afford. Some Congressional reps and Senators, desperate to fill campaign coffers, are all to eager to help out.

Congressman Rick Boucher (D) of southwest Virginia has a broad coalition of industry and consumer rights groups for his
reform of the DCMA law.

Congressman Rick Boucher (D) of southwest Virginia has a broad coalition of industry and consumer rights groups for his
reform of the DCMA law.

The always thoughtful Dan Gillmor has an article about Sprint's move to make the popular Treo handheld phone/PDA without a camera. Apparently corporate buyers don't want their employees using them to steal company secrets.

An attack yesterday on Akamai servers disrupted service for some of the biggest sites on the Internet, including Yahoo!, Microsoft, and Google.

Akamai servers are located throughout the US and overseas and help speed up major Web sites by locating some of the content closer to users. According to the article, an Akamai representative characterized the attack as a "large scale international attack on the Internet infrastructure."

Declan McCullagh, the chief political correspondent for Cnet, has an excellent article that questions the need for the FCC.

The article is well worth a read just to review the long list of head-shaking mistakes and blunders that the FCC has made dating back more than fifty years. Among the FCC initiatives McCullagh lists as problematic is the 1956 decision by the FCC to keep Americans from owning their own telephones, apparently believing that it was better to have customers pay AT&T a monthly lease fee for years after the cost of the phone had been amortized.

Like so many government initiatives that were started with the best of intentions but never seem to "finish" the job, the FCC is now trying to regulate things that don't seem to need any regulation, like Voice over IP services. In general, the FCC has seemed to favor the large incumbent providers. If there is any sense in that approach, I think the FCC thinking seems to be to avoid turbulence in the market place and to avoid disruption of services to consumers.

But at some point, as technologies change, disruption is impossible to avoid without permanently vesting obsolete systems and technologies. Currently, the FCC seems to be trying very hard to prop up the incumbent telephone and cable providers. This keeps the marketplace stable, but at what cost? That kind of policy makes it more difficult for low cost competitive providers to enter the marketplace, and denies to consumers the choice to trade stable service for lower prices and/or access to more and different kinds of services.

At worst, the FCC is taking a dim view of consumers and businesses and their ability to sort out these issues. Why not assume that customers, over time, have the capacity to figure this out on their own, and give local communities and governments more flexibility to invest appropriately to ensure that