With the FCC glacially pondering whether or not zero rating (exempting some content from usage caps) is a bad idea, the wireless industry has decided to try and settle the argument. According to a new study by the wireless industry, 94% of Millennials are more likely to try a new online service if it's part of a free data offering, 98% are more likely to stay with a carrier that offers such services, and 94% of Millennials are likely to use more data if it doesn't count against their data plan. As intended, the survey resulted in a lot of varied news headlines insisting that "consumers actually like ISPs to play favorites on mobile data caps."
The study is, the CTIA proceeds to claim, proof positive that zero rating is a great thing for everybody, from companies to consumers. Just ask Meredith Attwell Baker, former FCC Commissioner, former Comcast lobbyist, and now the top lobbyist for the nation's biggest wireless operators:
"It is no surprise that Americans embrace free data services that offer wireless consumers more data, more competitive choices and more flexibility to try new mobile applications and content. Free data services empower consumers with the freedom to choose what works for their mobile life, and that’s an outcome that everyone should support,” said CTIA President and CEO Meredith Attwell Baker."
If a revolving-door telecom lobbyist saying it's true doesn't convince you, here's an accompanying graphic of stock photo Millennials thrilled at the very idea of zero rating:
So, yeah, some problems. I requested and received the methodology (pdf) used in the commissioned Harris poll, and you'll be shocked to learn that the questions asked weren't particularly nuanced. After asking survey participants whether they were familiar with such terms as zero rating or sponsored data (the results of that inquiry weren't shared), the survey basically just consists of asking consumers whether or not they like "free stuff." If somebody's unaware of the current zero rating net neutrality debate and is asked if they like "free stuff," it seems pretty clear what kind of answer they're going to give.
And therein sits the problem with zero rating. The majority of consumers still don't really understand what zero rating is, much less that there's some obvious hidden costs involved. As such, when approached with "free" services, they're thrilled.
They generally don't understand that the usage caps selected by their ISP are an arbitrary, artificial construct to begin with, untethered to financial or network congestion reality. Or that the very practice of giving wealthier, bigger companies cap-exempt status puts other smaller companies (and non-profits and educational efforts) at a very real disadvantage in the market. Or that over the years, data has shown that caps aren't an effective way to target network congestion, can hinder innovation, hurt competitors (especially if an ISP's exempting only its own services), and confuse consumers, many of whom aren't even sure what a gigabyte is. So yes, it's complicated, and requires some education.
Sure, even after being informed there's surely many people who simply adore the idea of getting anything for "free." But had the CTIA made the slightest effort to inform survey participants or explore zero rating more deeply, the survey's results would have been dramatically different.
While there have been arguments for years now about whether or not cellphones cause cancer, the general consensus tends to be that cell phones emit so little radiation as to generally be safe. That's not to say that you might not run into a problem should you duct tape a dozen cell phones to your face, and I won't go so far as some to declare there's absolutely no risk, as that would certainly be quick to draw the ire of the Internet's "electromagnetically sensitive," whom I've found to have incredible hearing. But studies that have claimed a cancer risk have fairly consistently been contradicted by studies that claim the opposite, and agencies like the FCC state they consistently monitor the latest studies and have found cell radiation is not something that should keep you up at night:
"Some health and safety interest groups have interpreted certain reports to suggest that wireless device use may be linked to cancer and other illnesses, posing potentially greater risks for children than adults. While these assertions have gained increased public attention, currently no scientific evidence establishes a causal link between wireless device use and cancer or other illnesses. Those evaluating the potential risks of using wireless devices agree that more and longer-term studies should explore whether there is a better basis for RF safety standards than is currently used. The FCC closely monitors all of these study results. However, at this time, there is no basis on which to establish a different safety threshold than our current requirements."
Still, Maine, San Francisco, and numerous other states and municipalities have pushed for new labels on cellular devices warning consumers about the potential cancer risk, much to the chagrin of the wireless industry. The problem isn't that many towns and cities are worried about the possible risk, it's that they choose to enact ordinances before the science fully supports them. That recently occurred in Berkeley, where the local government passed an ordinance (pdf) that requires all cellular devices sold to prominently feature the following warning:
"To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. This potential risk is greater for children. Refer to the instructions in your phone or user manual for information about how to use your phone safely."
The nation's biggest industry association, the CTIA, has since filed a lawsuit (pdf) against the city of Berkeley that claims, among other things, that the ordinance violates wireless carrier First Amendment rights. That's pretty much a standard claim used by all telecom lawyers as part of "throw it at the wall to see what sticks" effort (they're using it to fight net neutrality, too). But the suit also correctly notes how the government's guidelines are well above where any actual health impact might actually occur:
"The lawsuit said the instructions falsely imply that the federal guidelines are safety limits. The Federal Communications Commission has stated, based on “overwhelming” scientific authority, that exceeding its radiation-exposure guidelines “does not pose a safety concern,” because the standards are set 50 times lower than the danger levels, CTIA’s lawyers said. "According to the federal government, no cell-phone model approved for sale in the United States creates a safety concern," the suit said.
And while I'm probably the last person to buy what comes out of the CTIA's mouth, the idea that municipalities should wait for real science before terrifying the local populace and building a nation of paranoids generally seems like a good idea. You get massively more radiation from all manner of technology from microwaves and computer monitors to light bulbs, so if municipalities really want to rush ahead and affix extra labels every potential radiation threat under the sun (including the sun itself), they really ought to get busy. And if you really need to worry about radiation, as XKCD recently noted, there's far better repositories for your anxiety.
Now that the FCC's net neutrality rules have been published in the Federal Register, the broadband industry has fired its litigation cannons and filed the expected lawsuits via all of the major trade organizations (see suits for the NCTA, ACA and CTIA, pdfs). All of the suits proclaim that the FCC's new net neutrality rules, and its reclassification of broadband providers as common carriers under Title II are an "arbitrary and capricious" implementation of "outdated utility style regulations" that will harm the greater Internet, sector innovation and industry investment (claims even the industry itself has admitted are bunk, yet never seem to go away).
The industry's statements defending the suits are a who's who of revolving door regulators. In a statement posted to the NCTA website, former FCC chief turned top cable lobbyist Michael Powell insists that the cable industry's lawsuit to destroy net neutrality rules isn't actually about net neutrality. It's about the cable industry loving the open Internet and rule of law so much, it's stepping in and doing the right thing so that a Congress awash in Comcast campaign finance cash can do its job:
"This appeal is not about net neutrality but the FCC’s unnecessary action to apply outdated utility style regulation to the most innovative network in our history,” said Michael Powell, NCTA President & CEO. “The FCC went far beyond the public’s call for sound net neutrality rules. Instead, it took the opportunity to engineer for itself a central role in regulating and directing the evolution of the Internet. We regrettably file this appeal and urge Congress to assert its role in setting national policy, by enacting legislation that fully protects the open Internet, without the harmful impact of public utility regulation."
In a similarly noble CTIA statement, the wireless industry trots out all the old familiar bogeymen, including claims that Title II will crush sector investment, harm innovation, drive up prices for consumers, and generally wreak havoc on the Internet ecosystem:
"Detailing the infirmities of the FCC's Order, Smith added: "Instead of letting consumers decide the success of new, innovative mobile services, government bureaucrats will now play that role. National, regional and rural wireless carriers will spend substantial time and resources trying to comply with the new vague and overbroad rules. CTIA's member companies should be focused on meeting consumers' growing demand for mobile data and creating new offerings."
Unlike the USTelecom lawsuit, the CTIA is taking specific aim at the inclusion of wireless services, long arguing that the wireless industry is so unique, dynamic and competitive, there's simply no need for consumer protections. That's again the gist of the argument put forward by CTIA boss Merideth Atwell Baker, who was an FCC Commissioner and a Comcast lobbyist before her stint as head of the CTIA. Baker proclaims the suit is being filed because wireless carriers just love the open Internet, and it had "no choice" but to spread this love throughout the U.S. court system like so much delicious peanut butter:
"CTIA and the wireless industry have always supported an open Internet, which is why these rules will only chill investment and innovation and increase costs for consumers. The FCC ignored that the competitive, constantly innovating mobile broadband industry provides Americans with faster networks and a wide variety of devices and service plans. Instead of promoting greater industry investment in the connected world of tomorrow, the FCC opted to resuscitate a command-and-control regulatory regime...CTIA had no choice but to seek judicial review to preserve the regulatory approach that has been instrumental in helping the U.S. become the global leader in 4G services. We are confident that the courts will reject the FCC's overreach for the third time, particularly with respect to mobile broadband services."
There's layers of irony here. One being that the FCC's 2010 rules originally didn't include wireless, and for that reason were generally liked by AT&T and Comcast. But CTIA member Verizon sued to overturn the rules anyway in the hopes of crippling the FCC's authority permanently. That didn't work, and Verizon's (and by proxy the CTIA's) behavior directly lead to the FCC shifting toward a more legally supportable Title II model.
There's been plenty of propaganda concerning the net neutrality fight, but with FCC boss Tom Wheeler finally making it official that the FCC is going to move to reclassify broadband, it's kicked into high gear of ridiculousness. An astroturfing front group that's anti-net neutrality is trying to make a "viral" anti-net neutrality video, and it did so in the most bizarre way, by making an attempted parody porno video, based on the classic "cable guy" porno trope. The video is sorta SFW, since the "joke" is that "the government" stops the homeowner from getting naked with the cable guy, but people at work might still question what the hell you're watching:
The video makes no sense at all. You get the sense that some not particularly internet savvy (or, really, clever at all) telco wonks got together and said "how do we make a viral video -- I know, let's pretend it's a porn film!" And then tried to shoehorn in some sort of message. But the "message" appears to be that whoever put together the video doesn't know anything about what net neutrality is.
Next up, we've got a not quite as bad, but still cringe-worthy attempt by CTIA, the lobbying arm of the mobile operators, which has been arguing that mobile broadband shouldn't be covered by the new net neutrality rules (a fight it appears it has lost), posting a ridiculously poorly acted "shill in the street interview" video, in which really bad actors pretend to be average people answering questions about their mobile service. It's clearly scripted, given the overexaggerated reactions and stilted dialog. The funniest bit comes in the first "interview" where this bad actor (who looks like a DC lobbyist) in a DC lobbyist video claims, "Well, Washington isn't actually known for its next-gen thinking, now is it?" No, "real person," it's not.
There's also the second interview, with the woman who shows up pre-shocked, and proceeds to "complain" about the totally fake "new taxes" that are not actually going to show up because of Title II reclassification. And then there's the third guy, who, when prompted to take off his earbuds when the "interviewer" sits next to him and asks what he's listening to, says: "Pandora.... it's free." Because, yes, that's how every "real person" describes what they're listening to. By the price of it. And then, again, unprompted, he explains how great it is that his mobile operator doesn't make him pay for data when listening to Pandora (leaving out the fact that this is because his operator has set in place artificially low data caps). The video concludes with the "regular guy" interviewer saying, "There you have it, the vast majority of Americans are against stagnation, against higher fees and against fewer choices."
Of course, the video doesn't show that at all. And of course, putting wireless under Title II doesn't mean any of those things. In fact, it could mean more choices and lower fees. But who needs details when you have "real" shills in the street?
Finally, we've got an infographic from another front group, called "Mobile Future," whose staffers just happen to include former CTIA and US Telecom Association employees (coincidence, I'm sure). The infographic pretends to show how startups will be hindered by Title II, because now companies can (they claim) take your startup to the FCC to have your service declared unlawful, and you'll have to hire telecom lawyers, and no VC will fund you. Here's a snippet:
This is, of course, complete hogwash. Why not take it from a real venture capitalist, like Fred Wilson (early money into Twitter, Tumblr, Soundcloud, Kickstarter, Etsy and many more). He pointed out the real story of what would happen in a world without these net neutrality rules, where it would make life nearly impossible for startups, because they wouldn't be able to afford to pay the big ISPs to get equal treatment to the major players. Who do you trust? A bunch of DC insiders who have never worked in the startup or venture investing world (their staff appears to include entirely DC-based folks who have either worked in the government or lobbying organizations) or one of the most famous venture capitalists around?
The simple fact is that net neutrality rules help startups. Startups aren't going to have to hire a lawyer to go to the FCC because these are rules for broadband providers, not the services built on top of the broadband. The infographic is pure FUD from an astroturf group acting like sore losers.
I imagine we'll continue to see more of this kind of propaganda, but the laughably bad quality of it all just goes to show how incredibly desperate they've become.
Sprint today shocked everyone with an announcement that the company has decided to throw its support behind Title II-based net neutrality rules, shifting the Title II momentum needle just that much further. In a letter from Sprint’s CTO Stephen Bye to FCC chairman Tom Wheeler (pdf, spotted at GigaOM), Sprint argues that it's fine with Title II, provided the rules allow for sensible network management. To hear Sprint tell it, sensible neutrality rules using Title II and forbearance will also have no impact on its investment strategy, despite plenty of industry hand-wringing on this front:
"So long as the FCC continues to allow wireless carriers to manage our networks and differentiate our products, Sprint will continue to invest in data networks regardless of whether they are regulated by Title II, Section 706, or some other light touch regulatory regime."
AT&T, Comcast and Verizon have repeatedly tried to claim that Title II-based rules will kill industry investment, even though they've been quietly telling investors Title II really isn't a big deal. As the recent $45 billion spectrum auction and wireless investment (wireless voice falls under Title II) make clear, Title II has never really been an impediment to wireless or wireline investment. Smaller ISPs like Sonic.net have similarly noted that Title II-based neutrality rules are only going to be a problem for companies engaged in bad behavior.
In addition to being good for consumers, Sprint's announcement is an incredibly clever marketing move. By publicly supporting Title II, Sprint has thrown a spotlight directly on T-Mobile's failure to support net neutrality. While T-Mobile has made an often justified reputation the last year for being a fierce consumer advocate, the company has opposed Title II and shown through its Music Freedom program that it may not even understand what net neutrality is. Sprint's support for Title II by proxy demands that T-Mobile and snarky CEO John Legere walk the talk.
Of course we'll still have to see well-constructed rules crafted after a lot more bickering over what "differentiated products" and "fast lanes" actually are. The rules will then have to run the endless gauntlet of ISP lawsuits and emerge intact on the other end, then remain intact should there be a party change impacting FCC leadership. Still, judging from recent comments, there's every indication that FCC boss Tom Wheeler is going to shrug off concerns about his lobbyist past and actually do something good for consumers here, something that was unfathomable to most just one year ago. That's big, however you slice it.
from the *based-on-our-very-convoluted-definition-of-complained dept
As we've pointed out in the past, the wireless providers, led by lobbying group CTIA, are desperate not to have the FCC include wireless broadband in whatever new net neutrality/open internet rules it releases. However, Tom Wheeler has been hinting that he's had enough of wireless providers screwing over the American public. The head of CTIA, Meredith Attwell Baker (famous for jumping from an FCC commissioner job to head Comcast lobbyist just months after she approved Comcast's merger with NBC Universal), has written an absolutely hilarious opinion piece at Wireless Week insisting that everyone loves their wireless providers, so
there's no need whatsoever to apply any net neutrality rules.
Of course, her definition of everybody loving their mobile operator differs from, well, basically everyone not paid by the mobile operators to be their public spokesperson.
From our innovation economy to the free exchange of ideas, the United States is a shining example to the world of the promise of an open Internet. It is widely embraced by policymakers, innovators and consumers alike, particularly with respect to mobile broadband. We remain the global leader in mobile innovation and have embraced openness across the ecosystem. So much so, that not a single formal complaint against wireless providers has been made to the Federal Communications Commission since it first adopted open Internet rules in 2010.
Oh, really? First of all, that last sentence is so ridiculous that it deserves a special callout for just how blatantly dishonest it is. You know why there's been no formal complaint to the FCC against wireless providers under its 2010 open internet rules? Because those rules never applied to wireless in the first place. This was one of the major loophole/problems with the 2010 rules: they explicitly carved out wireless providers. So the reason why there haven't been any formal complaints against wireless providers is because you couldn't make a formal complaint under those rules. To use that as the example of "nothing to see, move along now" is ridiculous -- and totally dishonest.
Furthermore, the idea that the US is a "shining example" is laughable. Our mobile broadband offerings are a joke. The mobile carriers have run into many, many problems, often around really nasty anti-consumer practices. As we've discussed just this week, AT&T got fined for lying to subscribers by selling them an "unlimited" plan and then throttling it down to useless, and Verizon Wireless agreed to pay $64 million for regularly overbilling customers. Sure, there were no complaints under the open internet rules that didn't even apply to the wireless providers, but there were tons of complaints about anti-consumer behavior.
And that's not even mentioning AT&T getting fined (earlier this month) for cramming charges put on consumers' bills (in which the FCC made use of its Title II authority, which could be the prime tool for net neutrality rules). Or their efforts to block out alternate payment solutions in favor of their own ISIS Softcard initiative. Or the efforts to block certain devices from their network.
The US mobile broadband network is not, in any way, a shining beacon of openness and freedom as Attwell Baker represents. It's the opposite.
Subjecting wireless broadband networks to rules that dictate how wired broadband networks are designed and operated would be a mistake. Instead, wireless network managers need maximum flexibility to keep networks expanding and clear. And wireless companies need the ability to differentiate their products and services without having to ask permission. This is our best guarantee that we maintain an open and innovative Internet—one in which mobile broadband retains its virtually limitless capacity to transform our lives.
Ha! What she's proposing is that while wireless providers may not have to ask for permission, everyone else will have to do so because what CTIA wants is for the mobile operators to be able to discriminate and block and set up tollbooths. If we have to choose between the big wireless providers having to "ask for permission" from the FCC to engage in anti-consumer behavior... or every app maker, or online service provider having to beg for permission to work on a mobile network, it seems like the former is much more likely to lead to an "open and innovative internet."
In commenting on last month’s vote for Scottish independence, President Obama turned to an old maxim that retains a modern ring of truth: ‘If it ain’t broke; don’t fix it.’ When it comes to maintaining the open Internet and all the momentum surrounding mobile broadband, we couldn't agree more.
It seems like the mobile ecosystem is very, very broken, considering just how much the mobile operators have been able to get away with. But, we're supposed to ignore all of that just because no one complained under a set of rules that they couldn't complain under? How stupid does CTIA think everyone is?
Earlier this week, we wrote about FCC boss Tom Wheeler giving a speech at CTIA (the lobbying organization for the wireless industry, which Wheeler used to run many years ago) in which he hinted at plans to crack down on anti-competitive behaviors by the industry. He even indicated that the FCC may finally be considering the idea that any net neutrality regulations should apply to wireless as well. As you may recall, the 2010 open internet rules (the ones mostly struck down by an appeals court back in February) never applied to wireless -- and the wireless providers would desperately like to keep it that way.
A little birdie attending the CTIA show sent over this flier, noting that it's being dumped everywhere around the conference, with a focus on places where tech company folks may be lingering.
If you can't see it, it's an awkwardly worded attempt to argue repeatedly that wireless should not be subject to any net neutrality rules because "wireless is different." Of course, most of the "differences" can be summed up as "we have much more limited capacity, and there's a lot more high-bandwidth traffic moving to wireless, so please, please, please let us block the kind of traffic we can't shakedown with a profitable tollbooth."
It's true that there are some different demands and limitations on wireless networks, but none of that supports the idea that it should be able to break neutrality and pick winners and losers. In fact, since so much more traffic is moving to wireless networks and bandwidth capacity has been improving, it seems like better reasons to subject wireless carriers to net neutrality rules. Oh, and in case you're wondering, this isn't even an issue of reclassifying from Title I to Title II. Most mobile operators already are under Title II, and, contrary to what the wired broadband guys will tell you, it hasn't hurt investment in that space.
Of course, it seems rather silly and tone deaf for the wireless operators to be pushing this on the tech folks at CTIA's own conference. The tech industry clearly supports a more open and free internet, with fewer tollbooths and discrimination. Pitching them that wireless is somehow "different" isn't likely to win any fans. And that's doubly true considering that many in the tech industry still clearly remember the "bad old days," prior to the iPhone and Android when the only way to get your app on a phone was to have a mobile operator agree to let it be on the phone. Those were the days where people made a big business out of "introducing" startups to the mobile operators, so they could beg, plead and eventually pay their way onto a phone. Those weren't good days for innovation on the phone. While the mobile operators haven't yet been able to go back to that sort of tollbooth, if they had the power to they would. It was the tech industry that broke down those walled gardens, and you'd better believe the operators would love to have them back, even as the broken down walls made their phones and services more valuable.
from the musical-chairs-without-a-chair-being-taken-away dept
We've talked plenty about the big revolving door between government and big business lately, but there are still some moments that are purely insane that show just how broken the system is. On Wednesday, news broke that former FCC commissioner Meredith Attwell Baker has been named the new CEO of CTIA, the main lobbying organization for mobile phone operators. Baker is no stranger to questionable revolving door moves, seeing as just months after she voted to approve Comcast's merger with NBC Universal, she took a top lobbying job with Comcast. Funny how that works.
But, in this case, it's even more ridiculous because, as Jon Brodkin points out, the current head of the FCC, Tom Wheeler, previously was CEO of CTIA as well. And prior to that he was CEO of NCTA (the cable industry's main lobbying group). And, to top it off, the current head of CTIA is none other than former FCC chair Michael Powell.
If you're keeping score at home, it looks like this:
Michael Powell: FCC Chair -> NCTA boss
Meredith Atwell Baker: FCC Commissioner -> Comcast -> CTIA boss
Tom Wheeler: NCTA boss -> CTIA boss -> FCC Chair
They're playing a game of musical chairs where no chair is ever removed... and they all get fabulously wealthy scratching each others' backs. Even if everyone is being completely sincere in their positions (a big if, but let's assume it for now), the real problem here, again, is that the perception of rampant corruption is encouraged by this sort of thing, leading the public to seriously distrust the government. When the top two lobbying organizations on these issues are manned by former top officials and the current top FCC official used to run both those organizations, there's a pretty clear implication that it's the public interest that's going to get shafted.
Today in the House Judiciary Committee, they're holding hearings concerning cell phone unlocking, focused specifically on Rep. Goodlatte's proposed bill, which actually seems to be the weakest of all the proposed bills. It doesn't offer a permanent fix. It doesn't fully tackle the problem. Actually, it barely tackles the problem, and serves only to punt the issue down the road. That is, it would "repeal" the rejection of the exemption to the DMCA for cell phone unlocking by the Librarian of Congress (if you don't recall, the whole fight is because the DMCA ridiculously makes it illegal to circumvent "technology protection measures" even if the reason has nothing to do with infringing on someone's copyright, but every three years, the Librarian of Congress gets to issue "exemptions"), but would allow the Librarian of Congress to revisit the issue at the next triennial review. It does nothing to address the actual problem, which is a ridiculous and broken anti-circumvention clause, section 1201 of the Copyright Act.
The hearing has four witnesses... and all are more or less lining up behind Goodlatte's weak bill, some for better reasons than others. A few others haven't been invited to speak, but have submitted written testimony as well. I'll cover the remarks of the four speakers going in order of "reasonable" to "ridiculous" followed by two of the interesting written submissions.
First up, is testimony from George Slover of Consumer's Union. He highlights, correctly, how important mobile phone unlocking is for consumers, and points out that it's a demonstration of "the harm the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) are causing consumers." He also points out that this issue should be a reason to explore more deeply the role of the anti-circumvention provisions found in Section 1201. He does offer a qualified support for the bill, but lists out a bunch of other changes that he thinks really should be added to the bill, to further allow consumer freedom and innovation around unlocked phones to thrive. The basic rights of consumers is important, and Slover definitely highlights that.
Next up, is testimony from Steven Berry from the Competitive Carriers Association, who have also been fighting hard to allow phone unlocking. There, the message is obvious. The competitive carriers provide greater innovation in terms of business models, service plans, etc., but much of that is enabled by allowing unlocking of phones, so users can switch from big network providers to a competitive carrier, without having to buy a new phone. This testimony focuses on the importance of unlocking specifically, and doesn't touch on the bigger issue of fixing the anti-circumvention provision. It's narrowly focused.
Then we get to testimony from Mike Altschul from CTIA, which is basically the trade group for the big mobile carriers. Their argument is basically "hey, we let you unlock your phones if you ask, so there's no need for this exemption." It claims, ridiculously, that carriers need to "lock" their phones so they can provide subsidies to make phones cheaper. But that's clearly not true. Carriers that subsidize their phones also have contractual early termination fees, which solve the subsidy issue, so the claim that they need the locks to protect the subsidies makes no sense. They already have the ability to do so contractually -- and they use it. There's no need for them to rely on digital locks and a broken copyright law to further protect something they already have through contract. Furthermore, the argument that they already allow unlocking is simply not correct. They allow unlocking in certain situations, but not all, and people have run into issues such as when travelling abroad, and just wanting to put in a foreign sim card.
And, finally on the spoken testimony, we come to testimony from Steve Metalitz. Metalitz is the MPAA and RIAA's go to guy for writing the laws they like in DC. ACTA, SOPA, TPP have his fingerprints all over them, and he's the epitome of an extreme maximalist. There's nothing about greater copyright protection that he finds problematic, and he always supports expansions. I have no idea why he's a witness at this panel, since he has nothing to do with phone unlocking, and while he has advocated for the MPAA/RIAA's extreme interests during DMCA exemption reviews, he officially took "no position" on cell phone unlocking.
His testimony is basically a spirited, ridiculous, and flat-out misleading "defense" of Section 1201 and the anti-circumvention provisions of the DMCA, which he seems to credit as being the reason why we have any entertainment at all online today. He claims that 1201 is "one of the most critical provisions" and says that it, specifically, has been "critical" (he likes that word) to the entertainment industry embracing the online world. This is wrong. First, the industry was dragged kicking and screaming into the online world, not willingly. And the anti-circumvention provisions have been nearly entirely useless in protecting their works, nearly all of which are available DRM-free from unauthorized sources. On the music front, they've already ditched DRM, and others will likely follow.
Metalitz then claims that 1201 is critical to the success of cloud computing, which is also wrong and ridiculous. It's wrong because what protects cloud computing is not copyright law, but good computer security. If cloud providers are hanging their hat on a copyright infringement claim if someone breaks into their network, they're doing it wrong. It's also ridiculous, because it tries to pretend that the tech industry is supportive of section 1201, when many find it quite problematic.
After that, he points out that 1201 was such a good idea that "scores of other countries have followed." What he leaves out is that those "scores of other countries" were pressured by the US government, in large part because of international treaties that (oooh, look at that) were strongly "supported" by Metalitz. It's quite a feat to claim that other countries supported your idea when they did so under pressure from the US government, using points highlighted by the RIAA/MPAA's own representatives.
When it came to written testimony, we'll highlight two key ones. First is from the Library Copyright Alliance, which says what really needed to be said: that section 1201 of the DMCA is ridiculous, broken and in need of real reform:
Most significantly, the Section 1201 rulemaking is an exercise in legal theatre. All
the parties to the rulemaking—those seeking an exemption, the rights holders, and the
Copyright Office staff--acknowledge that it is unclear whether the rulemaking has any
practical effect. This is because Section 1201(a)(1)(C) authorizes the Librarian of
Congress to adopt exemptions to the Section 1201(a)(1)(A) prohibition on the act of
circumventing a technological protection measure (TPM), but not to the Section
1201(a)(2) prohibition on the development and distribution of the technologies necessary
to perform the circumvention. In other words, after receiving an exemption, a person
might be legally permitted to perform the act of circumvention, but might have no lawful
way of obtaining the technology necessary to perform that act.
Similarly, all the parties understand that what occurs inside the hearing room has
no connection to the world outside it. In the last three rulemaking cycles, LCA has joined
with other groups in seeking exemptions for educators and students to circumvent the
TPMs on DVDs for the purpose of making educational uses of film clips. The rights
holders know that the uses we seek will not harm their market in any way. They also
know that whether the exemption is granted or rejected will have absolutely no impact on
the level of infringement. This is because the technology necessary to circumvent the
TPMs on DVDs is widely available on the Internet and easy to use. Nonetheless, the
rights holders reflexively oppose the exemption or seek to narrow it so that it would be
unusable. As a result, the discussions in the rulemaking descend into hyper-technical
issues such as the quality of video necessary for effective pedagogy in different kinds of
Moreover, in two rulemaking cycles, witnesses from the Motion Picture
Association of America (MPAA) demonstrated how a person could camcord a film off of
a high definition television. MPAA was attempting to show that a relatively high quality
recording could be made without circumventing a technological protection measure.
What it succeeded in proving, however, was the contradiction underlying its position. If
one could obtain a high quality copy without circumvention, why use technological
protection measures in the first place, and why should their circumvention be unlawful?
Moreover, the MPAA was demonstrating how to camcord a film precisely at the same
time it was asking Congress, state governments, and foreign legislatures to impose
criminal penalties on camcording.
There's more to it, but that's a good snippet. It's a shame that this more detailed view wasn't included as a part of the actual hearing.
Similarly, we've got Derek Khanna's submission which he discussed here yesterday. Khanna's submission, alone among all of the testimony, actually delves into the details of what the actual problems are and how allowing people to actually own what they buy (what a concept!) is a good idea for consumers, for innovation and for business. It's fairly comprehensive, and again, his voice would have been quite a useful addition to the actual hearing.
Banning technologies is an extreme step by government, a truly incredible reach of
Federal power, and I would petition this body to be very careful in continuing to delegate the
authority of what technologies to ban to a quasi-regulatory agent when, in these and many other
circumstances, there is no compelling governmental interest.
This legislation, as currently crafted, does not reflect the input of the White House,
former FCC Chairman, FCC Commissioner, scholars or outside groups such as R Street and
FreedomWorks. Our campaign was about actually solving this problem and restoring a free
market. Minor changes to this legislation would ensure that H.R. 1123 actually solves the
problem it intends to address by permanently legalizing unlocking and allowing for businesses to
sell the technology to consumers. Overall, our contention is that given the enormous benefits that
phone unlocking provides to the consumer, phone unlocking should be made permanently lawful
for the consumer to use, industry to develop and marketers to sell.
Hopefully, Congress will recognize that punting this and pretending there's nothing wrong with section 1201 is the wrong way to go, but given the situation, it doesn't seem like those in Congress are even open to considering that issue at this time.
It's well known that the big telcos and the federal government have an all-too-cozy relationship when it comes to handing over data on telco customers. This has included ignoring all the rules and going so far as handing over information based on a post-it note given to them by the FBI. The telcos general standpoint has been that they're happy to let the government reach deep into their data -- more or less adding a direct tap on all of us. Congress, however, gift-wrapped them immunity to any lawsuits from all of that kind of stuff. Still, these days, the telcos sure do like not being liable for coughing up their customer's private info to the government, so it should come as little surprise that they're practically shoving each other aside to support CISPA.
Two major trade groups, CTIA and US Telecom, each issued short statements saying that CISPA is a good thing. US Telecom claimed that the bill would make it more efficient to detect, deter and respond to cyberthreats. That would be nice if true, but no one's yet explained how that actually would work in practice. CTIA knows how to play the press, and started its press release by hyping up recent hack attacks. That CISPA likely would have done absolutely nothing to stop those attacks is conveniently ignored.
Meanwhile AT&T and Verizon each offered their own support for the bill, making it clear that protection from liability is the most important thing to them.
The telcos, of course, have nothing to lose and everything to gain from CISPA. It gives them even more freedom from liability in sharing your info, but doesn't present any specific regulatory burdens on them. Of course, shouldn't we be a lot more concerned about the views of the people whose privacy would be violated, than the views of those violating their privacy?