PFF Adjunct Fellow Mike Palage led this extraordinary discussion of ICANN’s origins, evolution and future with four of ICANN’s “Founding Fathers”: Milton Mueller (author of Ruling the Root), law professor David Johnson, ICANN’s first CEO Mike Roberts and then ICANN CEO Paul Twomey. In particular, the group discussed ICANN’s mission, governance structure, and accountability; the difficult issue of new generic Top Level Domain names (gTLDs) and trademark concerns; and ICANN’s future relationship with the U.S. government. Be sure to check out the handy ICANN Glossary on page 33. The audio can be downloaded here.

Here’s the transcript (PDF):

On July 27th, The Progress & Freedom Foundation hosted a Capitol Hill panel discussion entitled “Online Child Safety, Privacy, and Free Speech: An Overview of Challenges in Congress & the States.” The event featured remarks from:

• Parry Aftab, Executive Director, WiredSafety.org
• Todd Haiken, Senior Manager of Policy, Common Sense Media
• Jim Halpert, Partner, DLA Piper
• Berin Szoka, Senior Fellow, The Progress & Freedom Foundation

We’ve just released the transcript of the event, which I have also pasted down below the fold in a Scribd document reader. Also, the audio for this event can be heard by clicking below:
Download mp3

Here is the full event description:

Online child safety, privacy, and free speech remain hotly debated issues at both the federal and state level. Bills introduced in Congress to address cyberbullying concerns propose either educational initiatives or a criminalization approach. Access to objectionable content also remains a concern and a new, government-mandated task force is looking into those issues. Meanwhile, state officials, including many state attorneys general, continue to explore age verification mandates for social networking sites and some have considered building on the federal Children’s Online Privacy Protection Act (COPPA) to expand “parental notification” mandates. The Federal Trade Commission (FTC) has recently announced an expedited review of COPPA to see if it is keeping up with new developments. The FTC is also exploring child safety in virtual worlds. New concerns about “sexting,” or the sending of sexual explicit images over mobile devices, has also raised new concerns led some lawmakers to ponder penalties.

How serious are these concerns? Is legislation or regulation needed to address them? What free speech issues are at stake? Should Congress take the lead or leave it to the States to experiment with different models? These and other issues were discussed by a panel of leading experts in the field of online safety and privacy policy.

Transcript PFF Online Child Safety Privacy Hill Event (7-27-2009)

In episode #44 of “Tech Policy Weekly,” Berin Szoka and Adam Thierer engage in a debate with Internet security expert Chris Soghoian, who is a student fellow at the Berkman Center for Internet & Society at Harvard University. He is also a Ph.D. candidate at Indiana University’s School of Informatics.

Chris is an up-and-coming star in the field of cyberlaw and technology policy as he has quickly made a name for himself in debates over privacy policy, data security, and government surveillance.  He straddles the line between academic and activist, and the role he often plays in many tech policy debates is somewhat akin to what Ralph Nader has done in many other fields through the years. Except, in this case, instead of “Unsafe at Any Speed” it’s more like “Unsafe at Any Setting,” since Chris is often raising a stink about what he regards as unjust or unreasonable privacy or security settings that various online websites or service providers use.

On the show, Chris talks about two of his recent crusades to get certain online providers to change their default settings to improve user security or privacy: (1) His effort this week to get major email providers—and Google in particular—to change their default security settings on their email offerings; and (2) his earlier crusade to create permanent opt-out cookies to stop behavioral advertising by advertising networks.

There are several ways to listen to today’s TLF Podcast. You can press play on the player below to listen right now, or download the MP3 file. You can also subscribe to the podcast by clicking on the button for your preferred service. (And do us a favor, Digg this podcast!)

Finally, here’s some relevant links that were mentioned during today’s show:

• Chris Soghoian’s webpage + his Harvard Berkman Center page
• Chris’s blog (”Slight Paranoia”)
• Chris’s “TACO” (Targeted Advertising Cookie Opt-Out) plug-in for Firefox (and description of it on his home page)
• Chris’s ”Caught in the Cloud” paper (+ a video of him presenting it at Harvard)
• The letter from 38 cybersecurity researchers that Chris sent to Google
• Berin Szoka’s response to Chris’s “Caught in the Cloud” paper
• Berin’s discussion of the issue of preserving user choice through permanent opt-out cookies

Conversations about how the Internet can be used to increase the openness and accountability of government usually focuses on the Executive and Legislative branches of the Federal government.  But on this week’s episode of Technology Policy Weekly, I hosted a discussion of the equally vital issue of public access to court records, joined by:

• The TLF’s own Tim Lee,  who’s written about the problems with PACER , the arcane and expensive system by which court documents are currently made publicly available—with a separate system for each of the 100+ Federal courts!
• James Grimmelmann of New York Law School, who wrote Copyright, Technology, and Access to the Law: An Opinionated Primer.
• Steve Schultze, of Harvard’s Berkman Center, who’s  been writing about these issues on his own blog, especially about Sen. Lieberman’s recent laudable efforts.  Also check out a talk he gave recently on “Selling the Law: The Business of Public Access to Court Records.”

We discussed a wide range of issues, including:

• Why lay people should care—this is ultimately about reducing the legal profession’s monopoly over access to the courts!
• The philosophical reasons why better access to court records is important – little things like democracy, fairness, consistency, equality, the rule of law, etc.
• The copyrightability of legal records
• The history of the problem & what can be done about it

There are several ways to listen to the TLF Podcast. You can press play on the player below to listen right now, or download the MP3 file. You can also subscribe to the podcast by clicking on the button for your preferred service. And do us a favor, Digg this podcast!

On this episode “Tech Policy Weekly,” Technology Liberation Front contributors Ryan Radia and Berin Szoka join me for a discussion of the flare-up over Facebook’s recent changes to the data retention provisions of its Terms of Use agreement and whether there are any serious privacy issues in play here—or if this is all much ado about nothing. [Ryan blogged about it here, and I did here.]

Earlier this month, Facebook announced changes to the way it handled or retained user data on its site after a user quits Facebook, raising questions about who actually owns that data and whether any privacy issues were raised by the company’s new policy. Following some intense scrutiny in the blogosphere, Facebook decided this week to revert to their old terms of service until they figured out a new approach to data management and ownership.

You can begin listening by downloading the MP3 file here or by just clicking the play button below.  Or subscribe to our Podcast ( iTunes, other).

On this episode of “Tech Policy Weekly,” we’re launching a new format called “Tech Book Corner” that will feature occasional conversations with the authors of important new books about technology policy and the other issues that we debate frequently at the Tech Liberation Front blog.

On this debut episode of Book Corner, we are joined by John Palfrey, a professor of law at Harvard University and the co-director of the Berkman Center for Internet & Society at Harvard. Along with his Berkman Center colleague Urs Gasser, Prof. Palfrey has recently co-authored Born Digital: Understanding the First Generation of Digital Natives, which was published last summer by Basic Books and which you can find out more information about at www.borndigitalbook.com. [Incidentally, I reviewed Born Digital here last October and I also named it one of the most important technology policy books of 2008.]

In our discussion, Prof. Palfrey explains who exactly counts as a “digital native” and tells us why he decided to write a book about them. He discusses why he believes that there has been some overreaction by older generations to fears about this Digital Generation and he argues that we need “to separate what we need to worry about from what’s not so scary” and “what we ought to resist from what we ought to embrace.” He then outlines how we should think about these issues and concerns going forward, and he stresses the importance of “balancing caution with encouragement” as we do so. Finally, he then applies that framework to three specific issues: privacy, child safety, and copyright.

It’s an interesting conversation and you can begin listening to it immediately by downloading the MP3 file here or by just clicking the play button below!

Just wanted draw everyone’s attention to a couple of great podcasts about online safety issues that include comments from members of the Internet Safety Technical Task Force (ISTTF). As I mentioned a few weeks ago, the ISTTF project and final report represent a major milestone in the discussion about online safety in America, and I was honored to serve as a member of this task force.

This in-depth “Radio Berkman” podcast featuring ISTTF director John Palfrey and co-director Dena Sacco is a really excellent (but lengthy!) overview of the ISTTF’s word. Here’s a shorter podcast that Prof. Palfrey did with Larry Magid of CNet. And I also recommend this excellent NPR “On the Media” podcast featuring my friend Stephen Balkam of the Family Online Safety Institute (FOSI).

For those interested, down below you will find a running list I have been keeping of coverage of the ISTTF. (I will try to keep updating this list here).

Articles and podcasts about the ISTTF:

• ISTTF director John Palfrey discusses the report on this short podcast with Larry Magid as well as this longer one from the Berkman Center
• ISTTF co-director danah boyd comments on the report on her blog
• ISTTF member Larry Magid of ConnectSafely.org: “Net Threat to Minors Less Than Feared,” CNet News.com
• ISTTF member Anne Collier of Net Family News: “Key Crossroads for Net Safety“
• ISTTF member Stephen Balkam of FOSI featured on an NPR podcast about our work
• ISTTF member John Morris of CDT: “Deconstructing Reaction to Net Safety Task Force Report“
• ISTTF member Marsali Hancock, President of iKeepSafe blog essay about the task force
• AGs respond to report in interview with Emily Steel of the Wall Street Journal: “The Case for Age Verification“
• New York Times article by Brad Stone: “Report Calls Online Threats to Children Overblown“
• Wall Street Journal article by Emily Steel: “No Easy Answer for Protecting Kids Online“
• Associated Press story by Anick Jesdanun: “Panel: Technology Alone Can’t Protect Kids Online“
• Chronicle of Higher Education Wired Campus blog entry by Tracy Mitrano, “Report Weighs the Benefits and Risks of Social Networks,”
• PC World article by Jaikumar Vijayan: “Study Accused of Exaggerating Kids Online Safety“
• PC World blog post by Jaikumar Vijayan: “Are Internet Child Safety Concerns Overblown or Understated?”

Background info:

• an old blog entry of mine about the formation of the task force
• an old paper of mine about the agreement between MySpace and AGs that led to the formation of the ISTTF
• an essay of mine from the ISTTF’s mid-point: “Age Verification Debate Continues; Schools Now at Center of Discussion“
• my big white paper on the dangers of mandatory age verification
• my book: “Parental Controls and Online Child Protection: A Survey of Tools and Methods”
• my final ISTTF statement

On this week’s show, we discuss government transparency—a topic a number of us here at the TLF have written about lately.  Among other things, we discuss:

• Why transparency is important


• What data the government should provide and how
• Good and bad examples of transparency
• President Obama’s promise to have the most accountable administration in history
• Obama’s plans to appoint a Chief Technology Officer

My guests for this show are:

• TLFer Jerry Brito of the Mercatus Institute, who’s written extensively about transparency and has recently launched an e-Government project called StimulusWatch
• TLFer Jim Harper of the Cato Institute and WashingtonWatch.com, another very successful e-Government project, who’s asked some tough questions about the Administration’s implementation of e-Government thus far and led a great Cato policy forum on this issue (featuring Jerry, among others)
• John Wonderlich of the Sunlight Foundation, the leading e-Government non-profit whose “non-partisan mission [is to use] the revolutionary power of the Internet to make information about Congress and the federal government more meaningfully accessible to citizens”

You can subscribe to our podcast here or through iTunes here.  Or, you can play or download this podcast using the online player below.

In several of our previous podcasts (see episodes 34, 35,and 37), we’ve discussed what we’ve called the “Comcast Kerfuffle,” which was the controversy surrounding the steps Comcast took to manage BitTorrent traffic on its networks. Critics called it a violation of Net neutrality principles while Comcast and others called it sensible network management.

This week we saw a new kerfuffle of sorts develop over the revelation in a Monday front-page Wall Street Journal story that Google had approached major cable and phone companies and supposedly proposed to create a fast lane for its own content. What exactly is it that Google is proposing, and does it mean – as the Wall Street Journal and some others have suggested – that Google is somehow going back on their support for Net neutrality principles and regulation? More importantly, what does it all mean for the future of the Internet, network management, and consumers. That’s what we discussed on the TLF’s latest “Tech Policy Weekly” podcast.

Today’s 30-minute discussion featured two of our regular contributors at the TLF, who both wrote about this issue multiple times this week. Cord Blomquist of the Competitive Enterprise Institute wrote about the issue here and here, and Bret Swanson of the Progress & Freedom Foundation wrote about it here and here.  To help us wade through some of the more technical networking issues in play, we were also joined on the podcast by Richard Bennett, a computer scientist and network engineer guru who blogs at Broadband Politics as well as Circle ID and he also pens occasional columns for The Register.  Also appearing on the show was Adam Marcus, Research Fellow & Senior Technologist at PFF, who wrote a “nuts and bolts” essay full of excellent technical background on edge caching and net neutrality.

You can download the MP3 file here, or use the online player below to start listening to the show right now.

Last night, I appeared on the Jim Bohannon radio show for 30 minutes and discussed the past, present, and future of the Fairness Doctrine and broadcast industry regulation in general. More specifically, we got into efforts to drive Fairness Doctrine-like regulations back on the books via backdoor efforts like “localism” mandates, community oversight boards, and other public interest requirements. These are issues that Brian Anderson and I discuss in our new book, A Manifesto for Media Freedom, which I blogged about here when it was released in October.

If you’re interested, you can listen to the entire show by clicking here.

Last month, I noted that UCLA Law School professor Doug Lichtman has a wonderful new monthly podcast called the “Intellectual Property Colloquium.” This month’s show features two giants in the field of tech policy — George Washington Law Professor Daniel Solove and Santa Clara Law Professor Eric Goldman –- discussing online privacy, defamation, and intermediary liability. More specifically, in separate conversations, Solove and Goldman both consider the scope of Section 230 of the Communications Decency Act of 1996, which shields Internet intermediaries from liability for the speech and expression of their users. Sec. 230 is the subject of hot debate these days and Solove and Goldman provide two very different perspectives about the law and its impact.

Goldman calls Sec. 230 “pure cyberspace exceptionalism” in the sense that it breaks from traditional tort norms governing intermediary liability. But he argues that this new online version of intermediary liability (which is extremely limited in scope) encourages more robust speech and expression than the older, offline version of liability (which was far more strict). I completely agree with Eric Goldman, but I respect the arguments that Lichtman and Solove raise about the privacy and defamation problems raised by the purist approach that Goldman and I favor.

Goldman also does a nice job dissecting the Roomates.com and Craigslist.com cases. And Lichtman brings up the JuicyCampus.com case during the conclusion. These are important cases for the future of Sec. 230 and online liability. Incidentally, there’s also an interesting conversation between Lichtman and Solove (around the 32:00 mark) about an issue that Alex Harris and Tim Lee have been raising here about the nature of online contracts and the perils of messy EULAs / Terms of Service (TOS).

These are two absolutely terrific conversations. Very in-depth and very highly recommended. Listen here.

[Note: I recently reviewed Daniel Solove's important new book, Understanding Privacy, here.]

We’ve failed to keep our podcast alive here at the TLF — and I apologize about that — but there are still a lot of good tech policy-related podcasts out there for you to listen to. Here’s a new one that sounds very promising. It’s called the “Intellectual Property Colloquium” podcast, and it’s hosted by the brilliant Doug Lichtman, a professor of law at UCLA Law School.

The first show features a discussion that took place in one of Prof. Lichtman’s classes in which the always-interesting Fred Von Lohmann of the Electronic Frontier Foundation (EFF) begins by talking about the controversial Cablevision DVR case and then transitions into copyright law and infringement more generally. Doug jumps into the conversation about 12 minutes and needles Fred with a litany of excellent questions that really get the debate going. Whenever Doug and Fred go at it, it is a real intellectual clash of the titans.

The upcoming shows look just as good. Next up is a debate between Stacey Byrnes of NBC-Universal and Tim Wu of Columbia University about the DMCA notice-and-takedown process. The November show will include Dan Solove talking about “Privacy in a Networked World.” [I am just finishing up his important new book, Understanding Privacy, and I will be posting a review of it here soon.] And the December show is called “Everyone Hates DRM,” and is set to include Ed Felton of Princeton University versus Dean Marks of Warner Brothers. That should be a interesting conversation.

On this week’s show, we discuss the implications of the FCC’s controversial recent ruling against Comcast in the BitTorrent controversy. This is a topic we have covered previously on our podcast in episodes 34 and 35, and have been writing extensively about on the Tech Liberation Front blog over the last few days. In its decision last Friday, the FCC held that Comcast had engaged in unreasonable network management practices when it delayed access to BitTorrent traffic. Even though BitTorrent Inc. and Comcast have already settled their dispute and indeed are now working collaboratively together on solutions to these issues, FCC Chairman Kevin Martin said that legal action was necessary because others had complained about the practice.

On today’s show we focus on the implications of the FCC’s decision and what it means for the future of net neutrality regulation and communications policy more generally. Joining us for this week’s show are TLF regular contributors Jerry Brito of the Mercatus Center at George Mason University, Hance Haney of the Discovery Institute, Tim Lee of the Cato Institute, Jim Harper of the Cato Institute, James Gattuso of the Heritage Foundation, and Adam Thierer of the Progress & Freedom Foundation who moderates the discussion.

We’re having a little problem with our podcasting plugin, so here’s a temporary way for you to listen. You can download the MP3 here, or use the online player below.

On this week’s show, TLF contributors Cord Blomquist of CEI, Hance Haney of the Discovery Institute, Jerry Brito of the Mercatus Center at GMU, and Adam Thierer of PFF talk about several hot tech policy issues that have been in the news recently. First, we discuss the latest activity on the Net neutrality front, with ongoing filings at the FCC and new legislation introduced in Congress. Second, we debate possible outcomes in the Microsoft-Yahoo merger proposal. Finally, we highlight some recent efforts to tax and regulate video games at the federal and state level.

There are several ways to listen to the TLF Podcast. You can press play on the player below to listen right now, or download the MP3 file. You can also subscribe to the podcast by clicking on the button for your preferred service. And do us a favor, Digg this podcast!

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After a long hiatus, we’re back with our first show of the year, but this latest episode touches on issues we have debated on previous shows. Namely, does America need a national broadband policy, and should so-called net neutrality principles be part of such a plan? Related to that, we once again discuss what sort of business models broadband providers should be able to use when trying to balance consumer demands and efficient network management policies, since that issue has been at the heart of ongoing debates about Net neutrality policy. This is currently the subject of great debate at the Federal Communications Commission, where comments are due next week on the issue.

Two networking / IT experts join us for the podcast this week to discuss the ramifications of potential government regulation of broadband network engineering issues. The experts are Matt Sherman, a San Francisco Bay Area web developer and a technology policy blogger who blogs at RichVsReach.com, and George Ou who is the Technical Director of ZDNet, and is a former IT consultant specializing in Internet engineering and IT infrastructure and architecture issues. Also on the show are Adam Thierer of the Progress and Freedom Foundation, Jerry Brito of the Mercatus Center at George Mason University, and Tim Lee of the Cato Institute.

There are several ways to listen to the TLF Podcast. You can press play on the player below to listen right now, or download the MP3 file. You can also subscribe to the podcast by clicking on the button for your preferred service. And do us a favor, Digg this podcast!

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Last Friday, the AP broke the news that Comcast’s network management efforts are blocking certain instances of BitTorrent communications. The revelation sparked much commentary on blogs and in the mainstream media, as well as renewed calls for net neutrality regulation.

Two networking experts join us in the podcast this week to discuss exactly what Comcast is doing and its implications for public policy. The experts are Ed Felten, professor of computer science and public affairs at Princeton University, and Richard Bennett, a network engineer and frequent commenter to the TLF. Also on the show are Adam Thierer of the Progress and Freedom Foundation, James Gattuso of the Heritage Foundation, and Jerry Brito of the Mercatus Center at George Mason University.

There are several ways to listen to the TLF Podcast. You can press play on the player below to listen right now, or download the MP3 file. You can also subscribe to the podcast by clicking on the button for your preferred service. And do us a favor, Digg this podcast!

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Edited Transcript of the Episode

Adam Thierer: The Associated Press reported this week that cable giant Comcast is apparently engaging in certain “traffic-shaping” techniques as they relate to BitTorrent, a peer-to-peer file-sharing protocol. What exactly is Comcast up to, and what are the ramifications of the company’s traffic-shaping activities for the longer term debate over net neutrality policy in this country? That’s going to be the focus of this discussion.

Joining me for this discussion are Jerry Brito of the Mercatus Center; James Gattuso of The Heritage Foundation; Ed Felten, who is a professor of computer science and public affairs and director of the Center for Information Technology Policy at Princeton University; and Richard Bennett, who has spent the last 30 years designing network traffic systems and is an expert on network management issues.

Jerry Brito, before we get into the meat of the issue, could you describe exactly what is happening in this case?

Jerry Brito: Sure. The AP conducted an investigation of Comcast’s traffic management and basically found that in certain instances, whenever they used BitTorrent to transfer a file or try to upload a file, the connection would be reset. Upon further investigation, they found that whenever a file was trying to be uploaded, Comcast would, essentially, pretend to be the user on the other end of the transfer and send a reset message so that the connection would be dropped.

This caused a big uproar among the blogs and also among some newspaper columnists. Look, they said, this is more evidence that the big providers need to be regulated; we need to have net neutrality regulation. Now, what’s interesting to me about this is that Comcast definitely has an interest in managing its network because BitTorrent traffic accounts for a lot of bandwidth use and affects other users on the network. But the way that they’re doing it is that they’re blocking an entire protocol, it seems. They’re not going after heavy users, they’re going after an entire protocol, and that’s what seems to be enraging the net neutrality proponents.

Adam Thierer: Ed, can you give us your perspective on this and what’s going on here?

Ed Felten: Sure. I think there are really two issues here. One is that Comcast has not been upfront with people about what they’re doing. What we know about what’s happening has been discovered by experiments, like the experiments that the AP did, and, by inference, from things that happen in other people’s networks. But as far as we know, what Jerry described is basically right: Comcast is apparently looking for certain uses of the BitTorrent protocol and then intervening by essentially telling each end of the network connection that the other end has hung up.

Second, this is not the usual way of managing and dealing with congestion on the Internet or in large networks. There are other mechanisms that are built into TCP which to me seem like more natural and more friendly ways to shape traffic. But what Comcast is doing is, I think, a bit sneakier.

Adam Thierer: What would be the friendly way to manage traffic, in your opinion?

Ed Felten: Well, the usual way of dealing with a congested network is to have the network drop individual packets of data. When you communicate across the Internet, the data that you sent is divided up into packets. The usual thing that happens in congestion is that individual packets get lost or dropped when the network in the middle is overwhelmed, and the hosts at the endpoints that are communicating recognize the dropped packets and say, okay, the network must be congested, so let’s slow down. And there’s a really exquisitely engineered mechanism by which the end hosts can react to congestion on the Internet. But all that relies on the network in the middle responding to congestion in a certain way–by dropping packets–whereas Comcast did something else.

Adam Thierer: I see. Let’s bring Richard Bennett in at this point and ask him for his thoughts on this issue and exactly how he would respond to what Professor Felten said.

Richard Bennett: I really don’t see Comcast as the wrongdoer here. They do have a responsibility, as Jerry pointed out, to their customers to keep their network stable and responsive, and that appears to be just exactly what they’ve done. And it is worth clarifying that they don’t block or meter the normal use of BitTorrent for downloading distributions of open source files or movies or whatever. The restrictions that they place on their network are a slow rate of BitTorrent uploads, which means that if you’re operating BitTorrent after your download is completed–that is, you’re serving up files to the rest of the internet– they put a cap on the amount of bandwidth that they will let you have to do that based on the conditions on the network at that particular point in time.

Now, Ed has criticized Comcast because it’s not using the standard mechanism in TCP that was supposedly engineered to control congestion on the Internet, and I think it’s worth pointing out about that that’s not really a general purpose solution to all sorts of network congestion problems. The TCP mechanism, which is called “slow-start,” is actually a point solution that was rapidly tacked onto the Internet protocol suite in the mid-1980s to solve the problem called “congestion collapse” that was caused a very different protocol, FTP.

The mechanism works for FTP because FTP only opens one socket pair for its file transfer. BitTorrent, however, opens multiple socket pairs, and so if one of those streams is suppressed by the slow-start algorithm, it simply shifts over to the other streams that haven’t been slow started and continues transferring data. BitTorrent’s goal is to maintain a constant rate of upstream traffic, and because it has that goal, it will defeat the standard anti-congestion mechanism that’s used by FTP.

So what Comcast is doing is actually a very common technique that every firewall uses for exactly the same purpose: using “TCP resets” to control access to and traffic within a network that’s connected to the Internet. They’re managing their private network, and they’re doing it in a rational way.

Adam Thierer: Professor Felten, what is your response to Richard Bennett? Also, if Comcast has the ability to take other approaches, what are they and where would the approach that they’ve taken fit in that pecking order?

Ed Felten: First, I want to agree with Richard that part of the problem here is that Comcast is not talking about what they’re doing and not explaining themselves or indeed even really admitting that they’re using this particular method. I think it would help everyone if Comcast would just explain what they’re doing and why–their justification–because certainly, I think no one is arguing that they shouldn’t be able to manage the traffic on their network when it becomes congested.

My questions are: Are the methods they used aimed well at dealing with the congestion? Do they have other goals? And why haven’t they explained to their customers what they’re doing? There was a considerable period when most of the Comcast customers who were affected by this were unaware of what was going on, and I don’t think that helps anybody. If Comcast’s goal is to reduce the use of BitTorrent, or certain uses of BitTorrent, they ought to explain to their users that if you use BitTorrent in this way, you’ll get performance that you may not like because of the traffic shaping.

Adam Thierer: Professor Felten, I actually agree with that; if there’s one thing everyone can agree on, it’s that the more transparency, the better, as concerns these traffic-shaping or network management activities. Seemingly, Comcast is coming around to that view.

However, it also seems clear that more transparency would not be enough to satisfy some of the critics out there and that the practices that we’re describing here, which Richard describes as fairly routine, are drawing these critics’ ire. Would you say that there’s something wrong with these techniques or that there’s a preferable way to do this?

Ed Felten: Well, I can imagine that the mechanism they’re using may be justified, but they have not offered a justification, so we can’t really look at what they’re doing and draw a conclusion about whether it’s justified or not. In other words, we can’t really evaluate yet whether the accusations of their harshest critics are actually correct at a technical level. And they could clear that up, assuming that they actually are behaving appropriately, by just talking about what they’re doing.

Richard Bennett: I think they are trying to set the record straight. The basic details have actually been known by the BitTorrent community for several months. There was also a third article by the AP reporter who broke this story in the mainstream media that was a little bit more sympathetic to the Comcast point of view. In that article, Comcast was a little bit more forthcoming about what they’re doing and why, and they made the point that they’re not actually blocking these uploads altogether but just essentially rescheduling them for some future time when the network is not so busy.

You have to understand that Comcast is playing a cat and mouse game with BitTorrent. And if you look into the details of how BitTorrent is engineered, it’s fairly obvious that concealment of BitTorrent streams from traffic shaping and admission control and other sorts of network management technologies is an explicit goal of the project. Every concealment method that you can think of is used by BitTorrent to escape detection by the kind of network management systems that people like Comcast have to run. So to the extent that Comcast is transparent, they’re simply making themselves vulnerable to a new version of BitTorrent that can escape whatever techniques they’re employing.

Adam Thierer: Interesting. James and Jerry, what are the ramifications for the broader policy debates here in D.C. and across the country about net neutrality?

James Gattuso: What struck me about the press coverage of this is that a lot of it has a fairly cartoon version of net neutrality. A lot of people are writing about how net neutrality means that you can’t prioritize anything on a network, and you have to treat everything equally. That is one version, but I think that the generally accepted version of network neutrality accepts that network management and prioritization has its role. Really, the focus in recent months has been on whether you can charge for prioritization. This is not a case in which Comcast was trying to create two tiers in order to get more money from one user or trying to discriminate.

But reading the press, you would think that network management in itself was a violation, which just is not where the debate is.

Jerry Brito: Professor Susan Crawford and others point out that the technique that Comcast has chosen here entails that it basically pretends to be the client or the server and send the other party hang-up commands. They say this is fraudulent or impersonation, almost like identity theft. So is it something nefarious, or is it something common?

Richard Bennett: The geeks on Slashdot point out that this is a common technique that firewalls use. Crawford implies that, because it’s used by the great firewall of China, it’s some kind of authoritarian technique. But actually, it’s a common technique for any firewall.

And that’s especially true in this case. The cable modem network is so sensitive to upload traffic congestion that the most efficient way to keep it clear is simply to limit the number of connections that can be made inside the cable modem network. In traffic engineering, we call that technique “admission control,” and it’s used to block new communication sessions when you don’t have the communications resources to supply them with the bandwidth that they need. So I think there’s really nothing wrong with that.

Ed Felten: I agree that it’s a common technique, but if you look at the nuts and bolts, it is an impersonation of each party to the other in some circumstances. Apparently, it’s not broadly accepted in this instance.

So I don’t think it’s right to dismiss the argument that it involves impersonation of one party, because it does, after all, involve sending network packets that purport to come from somebody other than the person who really is sending them. And whether you consider that a legal violation, an ethical violation, or neither, that’s up to you. It’s also worth noting that falsely attributing the source of network packets is a technique widely used by actual bad guys as well.

Richard Bennett: But that’s like saying that bad guys use telephones, and so anyone who uses a telephone is suspect. What I’d like to know is what is the alternative if they’re not going to use TCP resets? Unfortunately, the IP protocol doesn’t really provide many tools to the traffic engineer to do things like this in a more explicit way. And a TCP reset is unfortunately just the best tool that it provides to bring about admission control when there’s no higher-level session protocol like SIP being used that could explicitly refuse to take the call.

Ed Felten: Well, I just think we don’t know, given that Comcast is being so closemouthed about what specifically they are doing beyond sort of stating vaguely, “We’re shaping traffic.” I think we don’t know–we can’t tell whether what they’re doing is the best, least invasive way for them to accomplish their legitimate network management goal or not.

Jerry Brito: Another question: Why is Comcast choosing to sort of target an entire protocol? If what they’re trying to do is target bandwidth hogs, why not do per-user management? And in that sense, they could then publish what their cap is and anybody who goes above this cap is either metered or kicked off the network.

Adam Thierer: Jerry, let me make that a little bit more concrete, because this is my favorite hobbyhorse, as you know–the question of why in the world are broadband providers in this country not dealing with this problem of excessive bandwidth use by whatever application or party by essentially better metering the price? That is, instead of engaging in some form of packet discrimination, they could engage in what would be a more reasonable form of price discrimination, using price signals to get at users at the margin who are using bandwidth excessively. Why is this not feasible?

Ed Felten: Technically, it’s completely feasible. The reason it mostly doesn’t happen is that consumers seem to hate it. What consumers want to buy, apparently, is a reasonably priced service that says it provides whatever it is they’re going to want. And the ISPs are stuck here–between their customers’ desire to have unlimited service at a fixed price and the difficulty in actually providing service to people who use everything that the network makes available to them. So they’re left trying to steer an uncomfortable middle course, promoting the service as nearly unlimited or essentially unlimited but then trying to actually limit what some of their customers do.

Richard Bennett: I think that’s mostly true but beside the point. Comcast does offer different tiers of service, and they don’t claim that any of them is unlimited. They have specific download maximums and specific upload maximums, and they offer commercial accounts to people who want to operate servers. So the tiered service model is essentially already in effect, and, of course, nobody wants the commercial service because it’s a lot more expensive than the residential service.

And why target BitTorrent when what you’re actually going after is bandwidth hogs? As a practical matter, it’s really the same thing. All the bandwidth hogs are running BitTorrent, so that’s really all you have to do.

James Gattuso: A Washington Post article today put the ISPs’ dilemma this way: They want to offer unlimited service and then hope that no one takes them up on it. Another analogy is a bank: All banks have on-demand withdrawals, but you just have to hope that everyone doesn’t come to the bank at the same time and ask for their money back.

Richard Bennett: Well, this is the real dilemma of Internet engineering in general, and it’s really a central point that almost never comes up in the network neutrality debates. The Internet is not designed to allow every person who’s using it to inject sustained traffic into it. The entire technology of packet switching is based on the assumption that users don’t all access the network at the same time.

If you want to have a network in which everyone is guaranteed a certain level of traffic throughput whenever they can get on the network, we have that: It’s called the telephone network, and it’s limited bandwidth. The reason that we get high performance out of the Internet is because we have these high-speed links that are shared by multiple people who don’t use them all at the same time. It’s a bursty traffic model–that’s the secret sauce that makes the Internet go. When you get applications that violate that assumption, it’s trouble.

Ed Felten: I basically agree. And this is the dilemma: Because consumers are unwilling to accept pay-per-bandwidth, ISPs are stuck hoping that not too many consumers use all their bandwidth all the time.

Adam Thierer: So, one of the responses that I’ve heard from a lot of bloggers is, “Well, why don’t they just build more capacity?” And I guess there’s something to that, after all; if we had unlimited capacity in the network, that would solve this problem, right? But is that realistic, is it just a case that we could just build a little bit more and it would solve the problem? What are the alternatives here, and is just building capacity going to solve the problem?

Richard Bennett: Yes, they do have to add more capacity to the networks. Every ISP is constantly adding capacity to their networks, because user demand for bandwidth is like user demand for memory or CPU speed: It only increases. And the more you put out there, the more ways people find to use it.

Jerry Brito: It’s like the old iron law of expenditures. Expenditures rise with your wages and your income. And so, more bandwidth won’t necessarily solve the problem; there’ll probably be more bandwidth-intensive things out there to use any more bandwidth that’s provided. So network management is going to continue to be an issue even in a world of more capacity.

Richard Bennett: Absolutely. There is one thing that Comcast really should do. Their network is highly asymmetrical; it’s tuned to handle more downloads than uploads. But the major implication of BitTorrent becoming such a hugely popular protocol is that traffic is becoming more symmetrical. There’s a new version of the cable modem network called DOCSIS 3.0 that’s intended to provide a more symmetrical network, and I think Comcast needs to move in that direction. I think that will alleviate a lot of these problems over the long term. But it’s an expensive transition, and it obsoletes all the cable modems that people have bought in order to use the Comcast network.

Adam Thierer: Jerry and James, this Comcast controversy comes fresh on the heels of the recent Verizon controversy with NARAL involving supposed text-blocking activities for messages going over their network. Do you think these incidents are the sort of horror stories that would drive public policy or renewed regulatory efforts, either at the FCC or in Congress, to impose net neutrality?

James Gattuso: I think these incidents are enough to keep net neutrality in the news. But by themselves, I don’t see this being enough to push forward legislation. There were non-regulatory ways of handling each of these incidents, either through existing legal mechanisms or through the marketplace. And none of them violate the definition of net neutrality that would be imposed in a lot of the bills that are out there, which involves charging money for tiered pricing. These incidents are apples to the oranges of the main net neutrality debate.

Jerry Brito: Remember that the FCC is still considering its notice of inquiry, and the FCC has been very clear about what it wants in comments: instances of blocking. When I did a count of how many were presented, there were none. So to the extent that the FCC might want to move in this direction, this may give them at least some of the evidence that they were looking for.

Ed Felten: This controversy does illustrate one of the conundrums in the net neutrality debate, which is the difficulty of distinguishing legitimate network management from interferences with neutrality. It’s not always an easy thing to tell the difference, as we can tell by this discussion here and in the blogosphere. Unlike, say, the NARAL example, where it was really about a network provider being uncomfortable with specific content, this really does get to the heart of the regulatory difficulties involved in network neutrality.

Richard Bennett: The network neutrality advocates really are hoping that this will revive the issue, because network neutrality has really been on life support for the last 14 months. It is no accident that the people who have been the most vocal this week and the most prone to demonize Comcast are the people who were front and center on network neutrality when it was a live issue 14 to 18 months ago.

Adam Thierer: Well, that’s going to do it for our discussion this week. I want to thank Ed Felten, Richard Bennett, James Gattuso, and Jerry Brito for joining me. And to read more commentary on this and other issues, please visit us at techliberation.org.

Adam Thierer is a Senior Fellow with the Progress & Freedom Foundation and the Director of PFF’s Center for Digital Media Freedom. Jerry Brito is a Senior Research Fellow with the regulatory studies program at the Mercatus Center at George Mason University. Edward W. Felten is Professor of Computer Science and Public Affairs, and Director of the Center for Information Technology Policy, at Princeton University. Richard Bennett is Senior Staff Engineer at Trapeze Networks and a contributor to numerous networking standards and technologies. James L. Gattuso is Senior Research Fellow in Regulatory Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation.

Earlier this month, a Minnesota jury found a Duluth-area single mother guilty of illicit file-sharing and ordered her to pay a six-figure fine. The evidence against the defendant seemed pretty airtight, but the fine struck me as unreasonably harsh—you’d never get a $222,000 fine for your first conviction of shoplifting physical CDs.

In this week’s podcast, we’re joined by two individuals who have been following this issue closely. Eric Bangeman is the managing editor of Ars Technica. He spent a week in Minnesota covering the trial, and he gives us a first-hand account of the proceedings Debbie Rose is an IP fellow at the Association for Competitive Technology, and she gives us her perspective on the broader legal and ethical issues.

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TLF contributor Jerry Brito and his colleague Jerry Ellig, both of the Mercatus Center at George Mason University, recently released a comprehensive new paper on the law and economics of network neutrality regulation. In a wide-ranging discussion, we explore the economic arguments for network neutrality regulation, discuss how economic theory applies to the issue, and Jerry Brito fills us in on the legal status of the FCC and FTC’s various pronouncements.

I generally try to have podcasts up within 24 hours of recording them, but this one was recorded last Wednesday. My apologies for the delay.

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Last there was more big news out of Europe regarding Microsoft’s ongoing antitrust saga in the European Union. The European Court of First Instance made an important holding regarding what Microsoft would be able to bundle in its Windows operating system, as well as some rulings about the disclosure of interoperability information for its systems. This week, we’ll be discussing the implications of the ruling for the software industry and consumers.

Our guest this week is Jonathan Zuck, president of the Association for Competitive Technology. We’re also joined by TLF regulars Hance Haney, Cord Blomquist, Tim Lee, and Adam Thierer.

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This week’s podcast focuses on two copyright issues. First, Congress has been considering legislation that would extend copyright-like protections to the fashion industry. Second, in the decision of Golan v. Gonzales earlier this month, the Tenth Circuit held that Congress cannot re-impose copyright restrictions on public domain materials without invoking heightened First Amendment scrutiny.

Our first guest is a man who’s been in the thick of both controversies. Chris Sprigman is professor of law at the University of Virginia. He was one of the attorneys behind the Golan case, and he wrote a widely-read paper called The Piracy Paradox” arguing against extending copyright law to the fashion industry. Our other guest, Julian Sanchez, wrote an article for the American on the Congressional effort to impose copyright restrictions on the fashion industry.

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Adam’s been generating a lot of debate with his recent posts questioning the propriety of sharing your wireless broadband connections and urging telecom companies to experiment with metered broadband access.

Seeking to continue the discussion, Adam asked Ben Worthen, the Wall Street Journal reporter who kicked off the latest discussion of wi-fi piggybacking, and Mike Masnick, who’s been on issue for years, to join myself and TLFer James Gattuso for an in-depth discussion of the economics and ethics of piggybacking.

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We took the podcast on the road this week and recorded at our Alcohol Liberation Front event on the last day of the PFF Aspen Summit conference. First off, Bill Rosenblatt of DRMWatch.com tells us why he thinks fair use might just be a quaint old notion that’s on its way out the door. We continue the fair use discussion with Solveig Singleton of PFF and Jim Harper of the Cato Institute. Finally, Adam Thierer of PFF and Declan McCullagh of C-Net’s News.com discuss the specter of data retention mandates.

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Lately I’ve been writing about the Electronic Frontier Foundation’s new First Sale Doctrine case, which will consider whether it’s copyright infringement to resell those “promo CDs” that record labels send to DJs, journalists, and others in the hopes of drumming up publicity. Universal Music says that such sales amount to copyright infringement, but EFF’s Fred Von Lohmann charges that UMG’s lawsuit runs afoul of the First Sale Doctrine.

Fred joins us for this week’s podcast along with Prof. Randy Picker of the University of Chicago to discuss the legal and policy implications of the case. In a wide-ranging discussion, they covered the differences between contract and copyright law, the implications for the software industry, and whether the GPL runs afoul of the First Sale Doctrine. TLFer Braden Cox also weighed in, and Adam Thierer hosted.

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We took the podcast on the road this week and recorded at our Alcohol Liberation Front event on the last day of the PFF Aspen Summit conference. Giving us their reaction to Google CEO Eric Schmidt’s keynote address are Cord Blomquist of CEI, James Gattuso of the Heritage Foundation, and Jeff Eisenach of Criterion Economics, as well as yours truly. Also, Adam Thierer of PFF and Hance Haney of the Discovery Institute discuss Lawrence Tribe’s address on tech policy and the First Amendment. In two weeks we’ll have another “Live from Aspen” podcast featuring Solveig Singleton, Jim Harper, and Bill Rosenblatt on copyright fair use.

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Earlier this month, in the wake of a University of California study revealing serious security weaknesses in touch-screen voting machines, California’s secretary of state decertified the state’s electronic voting machines, and then re-certified them with added security restrictions. And last month, Florida released a security analysis of Diebold voting software and found that the company had still failed to fix security problems identified in earlier analyses of the systems.

In this week’s podcast, Adam and I are joined by one of the most prolific and insightful scholars in tech policy today: Ed Felten, computer science professor at Princeton. He discusses his research on the security of e-voting systems, the Holt bill now making its way through Congress, and the future of secure elections.

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Over the weekend, Congress passed legislation that dramatically expands the executive branch’s domestic surveillance powers. The legislation replaces the FISA warrant process that has governed domestic surveillance since the 1970s with a new process in which courts would only review the general procedures used to select surveillance targets, not a list of the targets themselves.

In this week’s podcast, Adam and I are joined by two of my favorite commentators on civil liberties: Derek Slater of the Electronic Frontier Foundation and Julian Sanchez of Reason magazine. They explain what’s wrong with the legislation, how it’s connected to EFF’s ongoing lawsuit against AT&T, and what we need to do to restore our privacy rights.

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In this week’s podcast, we take up a debate that’s generated some heat here on the blog: open networks. Cord and I had a friendly disagreement about the relative efficacy of open versus closed networks earlier this week. Jim Harper chimed in with a TechKnowledge accusing Google of using “open access” rhetoric to get spectrum on the cheap.

Cord, Jim, Jerry Brito and I hash these issues out under the watchful eye of host Adam Thierer. Along the way, we discuss spectrum commons, propertization, and the dangers of regulatory capture. I hope you’ll check it out.

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TLF contributors Adam Thierer and Braden Cox traveled to North Carolina this week to testify in opposition to age verification and parental consent regulations for social networking sites. The North Carolina legislation would require parents to provide proof that they were adults in order to approve their children’s use of social networking sites.

In this week’s podcast, we discuss the many flaws in such proposals. Age verification technologies are far from reliable, and the definition of a “social networking site” is far from clear. More fundamentally, it’s not clear how this proposal would protect children at all. There’s no way to prevent a child molester from registering as an adult and then creating accounts for their fictitious children. Braden and Adam make the case that parental involvement, not more government regulation, is the best way to protect children.

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Yesterday, AT&T backed away from its strong opposition to any sort of open access regulations in the 700 MHz spectrum auction, backing a proposal by FCC chairman Kevin Martin to apply open access rules to one block of spectrum while leaving the other blocks unregulated.

In this week’s podcast, Hance, James, Adam, Jerry, and I discuss the politics and economics of the 700 MHz auction. We discuss what the rules will look like, whether there’s enough competition in the wireless market, whether Google will bid for the spectrum, and how recent developments affect Frontline’s proposal.

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Over the last couple of months, we’ve noticed that our best shows have been when we had a really smart guest like Randy Picker, Tim Wu, or Fred Von Lohmann and got into an issue in some depth. These episodes tended to run long, because there was too much to discuss in the 7 minutes or so we gave to each issue. So starting this week, we’re trying something a little bit different with the podcast. Instead of trying to cover three issues each week, we’re going to starting having a single guest and cover a single topic, in depth, for 15 to 20 minutes.

Our first episode in the new format is Scott Wallsten of the Progress and Freedom Foundation. You’ve probably heard the factoid that the United States ranks near the bottom among developed countries when it comes to broadband speeds and penetration. In this week’s podcast, Scott helps us dig into these numbers and explain why the United States isn’t doing as badly as is commonly supposed. And he argues that it’s silly to base complex policy decisions on a one-dimensional ranking.

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