more on House Passes Bill to Raise Indecency

[David Farber <dave () farber net>]

------ Forwarded Message
From: Bob Frankston <Bob2-19-0501 () bobf frankston com>
Date: Thu, 17 Feb 2005 13:02:05 -0500
To: <dave () farber net>, 'Ip' <ip () v2 listbox com>
Cc: 'Gerry Faulhaber' <gerry-faulhaber () mchsi com>, 'Larry Lessig'
<lessig () pobox com>
Subject: RE: [IP] more on House Passes Bill to Raise Indecency

Red Lion vs red lining? Kind of funny when you think about it ­ that¹s the
nominal egg thing. I got the basic meaning right so why does it matter? If I
omitted that and just complained that Powell seems too eager to take orders
would that have been better? Of course I want to change the law but isn¹t
this how to do it ­ educate people and explain concepts by highlighting
issues with the current rules? Powell is right ­ very right ­ the first
amendment is very unpopular.
 
Does my miscitation matter? Apparently it matters a lot ­ and it matters a
lot that it matters a lot because it is symptomatic of the cultural abyss
between two worlds. In the Metaphysical Club, Louis Menand did a wonderful
job of exploring how the two intertwined in the 19th century and the horror
at seeing statistics used before the Supreme Court ­ just numbers that have
no feeling or emotion or connection with people!
 
I need to emphasize that the FCC is special case because the technology it
is attempting to administer is simple and moving ahead rapidly. It¹s also
special because the FCC is attempting to manage communications or speech and
that does matter. And it¹s special because those who rule on the rules have
trouble with the new concepts.
 
Those of us who got into computing, especially in the early days, found
ourselves to be illusionists with great power. We recognize other
co-illusionists behind the curtain. When I read about the SS7 protocols I
realize that it¹s a simple approach based on computing capabilities of the
1970¹s at best ­ sort of trivial by today¹s standards. But it¹s very hard to
explain that to people who can¹t image that something as complex as the
phone network based on simple design principles and how those differ from
the ones underlying the Internet. We, in the editorial sense, wrote both
pieces of code. It¹s frustrating to try to explain this to those whose legal
code far exceeds the amount of code it takes to implement and reimplement
the protocols. Even more to the point, the protocols themselves are codes.
 
I feel like Hippasus being told that his proof that the square root of two
is irrational was invalid because he didn¹t respect precedent ­ please don¹t
drown me in minutia. I appreciate that Powell lamented the incrementalist
approach within the FCC. But what else can they be when they live in a world
defined by regulatory legerdemain and constrained by congress and
litigation. How do I communicate with those who live within that world when
there isn¹t even the vocabulary to talk honesty about end-to-end concepts
and marketplace architecture? The simplicity gets lost in translation. Here
too I agree with Powell ­ we have to step outside and start afresh. Create a
connectivity-based model and confine the FCC to legacy issues. A successor
organization, perhaps working in a corner office in the basement of the FTC,
can work with the new model with a proactive group working elsewhere to be
pro-active in supporting new approaches.
 
Just because I can program doesn¹t mean I can¹t do more. If anything, it¹s
just the opposite, I see myself as a student of how systems work and the
world is my laboratory. If I can be cited for not properly citing precedent
why shouldn¹t it work both ways? Should those who don¹t know what port 25
and 110 are be allowed set communications policy?
 
Of course I know that the FCC is a creature of congress and that courts base
their rulings on many complex factors rather than naïve rationality. And I
do try to understand the processes as an observer as much as a participant
and have gotten to know some of the politicians. I am fascinated by how
marketplaces operate and how regulatory systems interact with them. I¹m also
fascinated by how government, the courts and the legal system operate ­ I
can both take them very seriously and be dismissive of what I see as
egregious failures to understand. The onus is on me to educate them and
figure out how to reach across the abyss. Be dismissed ad hominem frustrates
me but I need to find the balance between becoming an incrementalist and
writing a few lines of code that moot it all. That statement itself is the
height of hubris yet that¹s at the heart of controversy as the TCP/IP split,
for example, plays out.
 
I¹ll stop here though I have so much more to say about the topic. I don¹t
want to overreact to the particular criticism as much as use it to address
the problems cross-cultural communication. I could also write more about
marketplaces but Š
 


From: owner-ip () v2 listbox com [mailto:owner-ip () v2 listbox com] On Behalf Of
David Farber
Sent: Thursday, February 17, 2005 06:00
To: Ip
Subject: [IP] more on House Passes Bill to Raise Indecency
 
[ note not all USG organiztions follow the laws as passed by the Congress
djf]

------ Forwarded Message
From: Gerry Faulhaber <gerry-faulhaber () mchsi com>
Date: Thu, 17 Feb 2005 00:11:07 -0500
To: <dave () farber net>
Subject: Re: [IP] more on House Passes Bill to Raise Indecency

Dave [for IP, if you wish]--

The thread on this issue passes understanding.  The Congressional indecency
bill and the fines associated with it enjoy huge public support.  Congress
has directed the FCC to enforce the law; Powell really has no choice (as he
made abundantly clear at the Silicon Flatirons conference and elsewhere).
He is the cop; he doesn't make the laws, he simply enforces them and he
doesn't get a choice as to what laws to enforce.  Blaming Powell for
indecency fines is like blaming the cop for giving you a speeding ticket
based on your belief that the speed limit should have been higher.  Not the
cop's decision; he just enforces the law.

Those who have been lambasting Powell for enforcing a law they don't like
have missed the blindingly obvious: if you don't like the law, organize a
political effort to get it changed.  Or else challenge its constitutionality
through an actual case.  But if you aren't willing to do this, then quit
whining about Powell doing the job he was hired to do.  I know he isn't
thrilled with this part of his job; but it is his job.

Incidentally, Chris is correct (below) about "Red Lion"; anyone who knows
the slightest thing about electronic speech and its regulation (even a
business school professor;-) knows about Red Lion, not "red lining".  Do
your homework, guys.

Professor Gerald R. Faulhaber
Business and Public Policy Dept.
Wharton School, University of Pennsylvania
currently on leave @ Penn Law
Philadelphia, PA 19104

----- Original Message -----
 
From:  David Farber <mailto:dave () farber net>
 
To: Ip <mailto:ip () v2 listbox com>
 
Sent: Wednesday, February 16, 2005 7:55  PM
 
Subject: [IP] more on House Passes Bill  to Raise Indecency
 


------ Forwarded Message
From: Chris  Savage <chris.savage () crblaw com>
Date:  Wed, 16 Feb 2005 19:21:16 -0500
To: <dave () farber net>
Subject: RE:  [IP] House Passes Bill to Raise Indecency
  
 

From:  owner-ip () v2 listbox com [mailto:owner-ip () v2 listbox com]
<mailto:owner-ip () v2 listbox com%5d>  On Behalf Of David Farber
Sent: Wednesday, February 16, 2005  7:14 PM
To: Ip
Subject: [IP] House Passes Bill to Raise  Indecency


------  Forwarded Message
From: Bob Frankston  <Bob19-0501 () bobf frankston com>
Date: Wed, 16 Feb 2005  18:48:10 -0500
To: Dave Farber <dave () farber net>
Cc:  David Isenberg <isen () isen com>
Subject: House Passes Bill  to Raise Indecency

<snip>
> > On one of the panels a speaker said  that Supreme Court had "red lined" the
principle that the FCC trumped the  first amendment. I tried to look up the term
but couldn't find a definition (I  presume that all words are in legalese and
not English). Is it similar to  Black Letter Law -- something that is just
assumed without there being a  doubt?<<
Bob,
What Powell was talking about  was a case from the Œ60s known as the ³Red
Lion² case.  (One of the  parties was ³Red Lion Broadcasting²). That case
basically held that the degree  of 1st Amendment protection applicable to a
given medium depended on the  technical and other characteristics of the
medium.  Over-the-air  broadcasting is traditionally subject to less 1st
Amendment protection because  of (a) its pervasiveness and (b) the
supposedly limited amount of spectrum  available, imposing greater ³public
interest² obligations on those who hold  it.
We can (and probably should) debate the continuing validity of this  line of
cases, but I think Powell is correct that the ³law² of decency  applicable
to unencrypted, free, over-the-air broadcasting is different from  that
which applies to cable, or print, or the Œnet, or  whatever.
Chris S.  
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