Craig Newmark of Craigslist and Mike McCurry of “Hands Off the Internet” debate “Should the Net Be Neutral?” at the Wall Street Journal. I’m struck by a number of things that Newmark says: Do you believe Yahoo should be allowed to outbid Google to slow down Google on people’s computers? That’s the kind of thing that the big guys are proposing.In fact, nobody has proposed slowing down anything–the consumer broadband telcos have proposed adding new, higher-bandwidth physical circuits (fiber to the home) which contain virtual circuits dedicated to content with requirements for higher bandwidth and low latency and jitter, for which the primary application they have in mind is IP television. And they want to charge content providers to use those virtual circuits. Now, one can argue that dedicating bandwidth to new applications that content providers have to pay for will have a future consequence that Internet bandwidth will be consumed and not upgraded, leading to degradation for best-effort Internet services, but that requires argument to support the likelihood of that outcome in the face of competition from cable companies and wireless providers. With all that empty fiber, bandwidth is not an issue. A bigger issue is that we’re running out of [Internet protocol] addresses. The new net protocols, IPv6, address that, but the big telecoms are already very late implementing that. (Hey, I’m an engineer, and their engineers talk to me.)Newmark is confusing Internet backbone bandwidth with last-mile consumer broadband bandwidth. I’ve addressed this confusion at length. BTW, IPv6 is rife with difficulties and not quite ready (or useful) for the average consumer, but my employer, Global Crossing, has been one of the first to make it widely available to its customers. (I run IPv6 on my home network via a tunnel to Global Crossing.) No one’s talking about “government lawyers and regulators engineer[ing] the future of the Internet,” except, well, you, Mike. We’re trying to prevent that, and trying to get Congress to maintain the level playing field we have right now, that the FCC just tried to ruin. We’re just asking everyone to play fair. … I’m being completely straight: no one’s interested in regulation in the sense you’re thinking, we just want the existing level playing field to continue… Beyond that, we’re not interested in mandating performance criteria, none of that stuff. … What we’re looking for is just fairness, a level playing field, no regulation or stuff like that. In America we believe that if you play fair and work hard, you get ahead. We don’t want the government to give special privileges to the big guys, particularly not at the expense of small business and consumers. We don’t want more regulation and we don’t need lawyers involved where the free market functions well. I guess we’re for capitalism. Here, Newmark is simply failing to recognize what’s in the actual network neutrality bills in Congress, which have unintended consequences about how networks are engineered, what can be in acceptable use policies, what kinds of contracts network providers are permitted to enter into with their customers, and how they can charge for access to different services–rules that to date have not existed for Internet services. Today, many Internet providers have acceptable use policies that prohibit spam, going beyond the requirements of the relatively weak federal CAN-SPAM law. Under all of the net neutrality bills I’ve seen, providers must permit customers to send or receive any “lawful content,” which forces them to reduce their AUPs to the lowest common denominator of whatever is prohibited by law in the jurisdictions where they provide service. These bills prohibit providers in the United States from setting the conditions of contract with their customers regarding activities they consider abusive which are not codified in law. The “pink contract” would thus become a government mandate. UPDATE: FCC Commissioner Michael Copps and U.S. Supreme Court Justice Clarence Thomas back up McCurry’s statement in this debate that the FCC already has authority under Title I to prevent anti-competitive discrimination without the need for new statutory powers from Congress. McCurry at the WSJ: And doesn’t the FCC have authority already (under Title I) to step in and act if necessary?Copps: The Federal Communications Commission has authority under current law to ensure that broadband-access providers – currently mainly cable and phone companies – do not discriminate against Web-based providers of content, search services and applications, FCC commissioner Michael Copps said Tuesday.Thomas: “The [FCC] remains free to impose special regulatory duties on facilities-based [Internet-service providers] under its Title I ancillary jurisdiction,” Justice Clarence Thomas wrote in National Cable & Telecommunications Association vs. Brand X Internet Services.This means net neutrality advocates who support the bills in Congress don’t think this is enough, and owe an explanation of specifically what powers they want to add to the FCC, what rules they want the FCC to make, and how those rules will be enforced.

Jim Durbin writes that he supports net neutrality because of fears about companies blocking access to certain websites at the enterprise. In his opinion, apparently, net neutrality not only means that ISPs can’t block access to lawful content, neither can employers. No net neutrality bills would take away the ability of enterprises to restrict corporate Internet access to business-related content and use products like web proxies, but it’s a symptom of the fuzziness of “net neutrality” that Mr. Durbin thinks this is a reason to advocate it. What’s next, a claim that the use of firewalls is contrary to net neutrality principles? Durbin approvingly links to an article by Glenn Harlan Reynolds about employees using pirate WiFi or resorting to bringing in personal equipment with EVDO cards in order to get their Internet or blogging fix at the workplace. Reynolds and Durbin both seem to think that companies should have no right–or at least no ability–to ban such things from the workplace unless they have “big trade-secret issues” or involve national security. Now, there’s a big distinction between pirate WiFi (connecting an unauthorized device to a company’s internal network, most likely exposing its internals to the outside world) and using your own equipment over a wireless connection to a provider that you pay for yourself. In the former case, it’s making unauthorized changes to the company’s own network and security mechanisms, while in the latter the issue is more an issue of whether you’re doing the job you’re being paid to do. But none of this should have anything to do with the “net neutrality” debate.

Adam Thierer of the Cato Institute expresses his bafflement over why people have such faith that instituting government regulations to enforce net neutrality will result in beneficial protection for free speech, when historically Congress has shown little support for the principle. He points out the irony of Hillary Clinton calling for net neutrality in the name of protecting free speech, when she has on multiple occasions called for and supported government restrictions on free speech, including on the Internet. She supported the Communications Decency Act, most of which was overturned by the U.S. Supreme Court as unconstitutional. She supports regulation of video game content. She pushed the V-chip. Does anyone really believe that the regulated Internet Hillary Clinton wants to see won’t ultimately result in any new restrictions on freedom of speech? Especially since the net neutrality bills propose giving regulatory authority over the Internet to the FCC, the same agency that is more aggressive at fining broadcasters for “indecent” content than addressing telemarketing fraud? ...

Martin Geddes has interviewed my co-worker Dave Siegel, and the results are up at his blog, Telepocalypse.

I did an interview over the weekend with Michael Santarcangelo of the Security Catalyst about botnets. Part I of that interview is available now as a podcast (you can subscribe via Yahoo or iTunes). UPDATE: Part two is here.

Ed Brayton points out a paragraph from an AP story that says: The Bush administration has urged a judge to dismiss a similar case, saying it threatens to divulge state secrets and jeopardize national security. The government argued in briefs that the courts cannot decide the constitutionality of the president’s asserted wartime powers to eavesdrop on Americans without warrants.As Ed observes, If the courts cannot decide the constitutionality of such programs, then we might as well not have a constitution or courts at all.

Larry Lessig has posted an interesting blog article comparing net neutrality to fair use, and asking whether there’s a problem in consistency on the part of those who favor one but not the other. As someone who more strongly supports laws recognizing fair use than regulated net neutrality, I agree with the reasons given by several of the posters (including Kevin Farnham, Jeremy, Cory Doctorow, three blind mice, and poptones). It seems that some of the better reasons to question creating a regulatory regime for net neutrality are present in these comments–I’m pleasantly surprised to see that the comments appear to be dominated by net neutrality skeptics. Some of the highlights: * Fair use is a limitation on rights pertaining to intellectual property, while net neutrality is a limitation on rights pertaining to physical property–Lessig’s own excellent book Free Culture points out that intellectual or creative property is different from physical property in significant ways. * The burden of proof on a fair use claim is on the person claiming fair use, not the copyright owner; in net neutrality the burden is on the property owner. * Fair use is really a limitation on a government regulation (copyright), while net neutrality is a regulation that’s a limit on business models, contracts, and technology. * Net neutrality advocates have not been clear about what they would require and prohibit, how violations will be detected/measured, and what the enforcement mechanisms will be. (I don’t trust Congress to tell network engineers how to do their jobs.)

Rep. William Jefferson (D-LA)’s Washington office was raided last night, and the FBI has disclosed portions of recorded conversations last year between Jefferson and an informant. The informant had paid Jefferson $100,000 in $100 bills (caught on videotape by the FBI) to be delivered to an official in Nigeria. In a telephone conversation on August 1 which the FBI has partially disclosed, Jefferson and the informant spoke to each other in code about the bribe money, which was recovered from Jefferson’s freezer during a police search on August 3. In that conversation, the informant asked about the status of “the package.” Jefferson replied that “I gave him the African art that you gave me and he was very pleased." Jefferson apparently had the objective of getting work in Africa for a communications company, and getting his children a cut of that deal. Via Talking Points Memo.

Matthew Yglesias, covering for Joshua Micah Marshall at Talking Points Memo, writes of Mike McCurry’s battle with bloggers over net neutrality: People disagreed with McCurry about the net neutrality issue because people disagree about issues. People got so mad at him precisely because of this kind of patronizing attitude. He was peddling flimsy arguments as if it never occurred to him that the blogosphere is full of people who know a lot about the internet and could handle a grown-up argument (see a non-flimsy, though ultimately unpersuasive, anti-neutrality piece if you’re interested). ...

(I should preface this by saying that I am not a lawyer, only a relatively well-informed layman who has demonstrated the ability to win lawsuits against telemarketers without using an attorney.) Some network neutrality advocates are promoting James Sensenbrenner and John Conyers’ HR 5417 as a step in the right direction for putting network neutrality into law. But HR 5417 is a badly written bill with some serious negative implications. (There are a bunch of other network neutrality bills in the works, which I haven’t yet examined.) First, it turns all NSPs and ISPs into “broadband network providers” even if they don’t provide any residential consumer services. All that matters is whether you provide two-way Internet at speeds of 200 kbps or greater. Second, it prohibits preventing anyone from sending or receiving traffic that is legal. This means ISPs cannot have acceptable use policies against spammers that go beyond what is required by the federal CAN-SPAM law except in states which have stricter laws, and they have to sell service to known spammers who comply with CAN-SPAM, and you can’t kick adware companies off your network until and unless the specific abusive actions they are taking are made illegal. Third, it says that if you provide a custom service like IP Video or VOIP interconnection at a higher class of service, you must allow your customers to connect to that “type” of service to any other provider of IP Video or VOIP, regardless of location, whether those providers are customers of yours or not. But if you don’t provide those services over the Internet, who is supposed to bear the costs of interconnection to providers who aren’t customers? Fourth, it prohibits all restrictions on what devices users can connect to the network except on grounds of physical harm or degrading the service of others. But what if you offer a specialized service that only supports some vendors’ equipment, and has to have a particular configuration to function properly? This seems to say that you have to let customers configure unsupported or incorrectly configured equipment to the network. This bill is a nice example of bad unintended consequences. (Also see Richard Bennett’s Original Blog.) ...