After spending Tuesday at the Bellhead/Nethead conf (live blogging begins here) that brought together FCC officials, telecomm folks, and some telco rebels, the magnitude of the gap in thinking is more apparent to me than ever. And it does not make me feel good.

As I meet more and more FCC folks, I find I’m having the same reaction as I do in general with Microsofties: What terrific, bright, well-meaning, funny, serious people…so how does the overall entity end up working against my interests so consistently?

As I see it — and believe me, I am waaaay out of my depth here — the basic problem with the FCC is that they have a set of goals that are often worthwhile (from my POV, natch) taken in themselves but that don’t match up well to the nature of the Internet. So, they either propose altering the Internet itself or introducing “small” changes that could have huge effects. It’s like approaching the ocean with the aim of farming it. Nothing wrong with farming the ocean, except that your tractor rusts. So, you suggest changing nothing about the ocean except that it’s wet. (I am willing to admit that this is not necessarily the finest analogy humans have ever devised.)

The fundamental “problem” — the wetness of the Internet ocean — is that on the Internet, all bits look alike. The bits carrying Osama’s voice setting up an attack are indistinguishable from the bits carrying a photo of Pamela Anderson’s pubic hair. We’re not used to that with our communications networks; the telephone network knows much more about the messages traveling over its wires. So, it seems quite reasonable for Congress to tell the FCC (via CALEA) that the FBI is allowed to wiretap calls going through Voice over IP just as they can wiretap calls done over the normal phone network. But, in order to make that possible, you have to get everyone who makes software that could conceivably be used to carry voice over the Web to comply with putting in back doors for the FBI. Instead of having a wildly innovative environment where anyone can try out any crazy idea on the Net, companies will have to get vetted by the FBI first. Sure, this should only apply to telephony companies, but would you risk the penalties if turns out someone can use your app in ways you didn’t intend? Likewise, it’s reasonable for Congress to want to impede copyright violations, but because there’s no way to distinguish protected from unprotected bits, the FCC gives us the Broadcast Flag requirement that adds bits to the stream…and then requires makers of the digital playback devices to respect those bits. Bit by bit, so to speak, the Net ecosystem is being altered. As with any ecosystem, small changes can — will — have unexpected consequences.

I don’t know how to meet the demands of various stakeholders in our culture and economy. But monkeying with the wetness of the Internet ocean seems to me to be the worst possible way. And we seem to be losing the conceptual battle to convince the FCC that it should not be trying to regulate wetness at all.

Susan Crawford knows an awful lot more about this than I do. I highly recommend her reflections on the conference.

Categories: Uncategorized dw