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Nothing to See Here

Susan Crawford

Three parallel events in US communications policy today, all reported on widely — but with a common thread.

1. Law enforcement and national security officials want to make sure that they have the same ability to execute warrants and surveillance orders online that they had in the switched-telephone-circuit age — which will mean substantial government design mandates for new software, hardware, and communications facilities. (Fine NYT story here.)

Jim Demsey of CDT is quoted with respect to the proposal — we don't have legislative language yet — saying, essentially, "wow, this is enormous, implications are huge, Internet is fundamentally challenged by this."

Law enforcement responds, essentially, "No, this is business as usual, we're just trying to preserve our ability to carry out warrants."

2. Sen. Leahy is introducing legislation (the "Combating Online Infringement and Counterfeits Act”) that would allow to DOJ to instruct ISPs, domain name registries/registrars, or perhaps other actors (it's not clear) to shut down, or block access to, online sites found to be "dedicated to infringing activities." With respect to sites hosted outside the US, the bill would provide for orders mandating that Internet services, operators of domain name servers, financial transaction providers, and ad networks discontinue service to the designated sites. Also, DOJ could maintain a public blacklist of websites that the Department determines "upon information and reasonable belief" to be dedicated to infringing activities — and online services (again, scope isn't exactly clear) will be encouraged to discontinue service to these websites.

EFF says it's "a censorship bill that runs roughshod over freedom of speech."

MPAA says, essentially, this is just business as usual, and "we look forward to working with Chairman Leahy and the Senate and House committees to help strengthen the bill."

3. The Comcast/NBCU merger is steaming ahead, and even though neither DOJ nor FCC has yet approved the deal Jeffrey Zucker is out, Steve Burke will be running NBCU, and Vivendi is selling its interest in NBC for $2 billion. (Barron's blog.)

A coalition of groups (a good odd-bedfellows story) asks for more hearings on Comcast/NBCU, saying, essentially, "wow, this is enormous, implications are huge, consumer prices will go up."

Comcast responds, saying, essentially, this is just business as usual, the deal is pro-competitive and in the public interest, and we'll all get better access to more content. According to a story in the Times today, "A recent full-page ad in The Washington Post featured a smiling young couple and the quote, 'More ways to enjoy our TV, computer and even mobile devices? Sounds good to me.'"

What's the common thread? As access points to the big pipe consolidate, the idea of using bottlenecks to carry out the desires of both content providers and government becomes easier to implement — and the bottlenecks know that they have the upper hand because both content and government need them.

New laws, new institutions, and new asymmetries of information are appearing, and the objection that "this is a big change" doesn't get much attention. It is, certainly, a big change, but there are many big actors who are perfectly happy that way. Nothing to see here, move on, business as usual.

By Susan Crawford, Professor, Cardozo Law School in New York City
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