It’s over a week since the F2C conference, and things have been pretty busy round here. But I’d still like to share a few of my observations.
Although we may not realise it yet, I think that identifying a “Freedom to Connect” as distinct from other freedoms is a major philosophical step forward. In a world prior to telecommunications and digital computers it was hard to conceive of information as being distinct from the medium in which it was carried. For instance, we don’t talk about freedom of “speech” by accident. By various legal contortions we’ve re-interpreted the word “speech” to include a wide array of things that are not speech at all under its usual colloquial definition.
Likewise publishing was attached to dead trees, religion to churches, and assembly to public places. Regulation and social norm referred to these physical artifacts rather than the underlying information concepts. You ban and burn books, not the words in them; you encourage chuch-going as a proxy for piety; and you outlaw or incite gatherings in named classes of locations.
Freedom to Connect re-frames this debate. Freedom of speech is cleaved into two; freedom to make a noise, and freedom to make particular noises expressing certain ideas. Playing a musical instrument, singing, talking — they’re all in the latter category, and none and be freely performed without the former freedom to make a noise.
Like any freedom, there are duties and responsibilities. Some speech, such as child pornography, is an accessory to a very physical and non-digital crime. We outlaw it as a form of speech. We also make regulations about noise as a separate rulemaking sphere. Crank up your stereo high enough and the neighbours will complain. But we only regulate noise to the extent that a third party’s ability to make and receive noise is unduly affected.
So as a guiding principle, Freedom to Connect decouples the noisemaking from the application-specific nature of that noise. This has very practical consequences. For instance, should underlay transmissions (in the frequency gaps) be allowed in UHF frequencies currently used by TV? Absolutely, if no third party is adversely affected; and this should be done without any regard to the current usage of that “noise medium”.
Only where third parties do suffer loss from the noisemaking per se does that application begin to matter and we contaminate our horizontal thinking with vertical reasoning. A town crier disturbing your lie-in to relay distant news might be judged a reasonable balance of public good and private loss; a call to buy goods in the market might not; and a rowdy street brawl definitely wouldn’t.
This Freedom to Connect — qualified by the absence of a noise-damaged third party — should be regarded as an inalienable right. Non-genotiable. This isn’t a matter of polite debate. Be angry. Rebel. Who the f*ck in some office hundreds or thousands of miles away has any business telling you what electromagnetic or sonic emissions you may emit when nobody else cares? I simply don’t accede to your authority.
This same standard doesn’t — indeed can not — apply at the application layer. This is where our abstract ideas, rather than physical bits, are expressed. Ideas can be recounted, relayed and spread. Bits CANNOT — networks create an ilusion of path continuity which has no physical embodiment. Each bit transmission is a separate event invoking its own Freedom to Connect. However, no expression of ideas is “value-neutral”, even if initially performed in a private space. Society has an interest in all idea expression, since some ideas are toxic and others deserve public support in their spread. Every idea expression has a potential for future third party harm or good, whereas once a bit has been sent and received without interfering with someone else’s bit, it’s all over.
Things get a bit grey when we move into “store and forward” applications. Are we invoking Freedom to Connect (F2C), or Right to Say (R2S)? What about IP networks (storage for nonseconds), P2P networks (hours), book warehouses (months)? Are these “conduits” for which F2C rights apply?
To me the test is whether the bits are forwarded “with due haste and without regard to their content or nature”. In other words, stupid linking of stupid physical conduits transitively results in stupid virtual conduit, and F2C applies. The Grokster case is classic F2C territory; the transmission technology can’t know in advance of its use. But BitTorrent node operators who knowingly offer copyright-infringing content are involved in the expression of ideas, and can’t hide behind F2C firewalls.
DRM, on the other hand, looks a lot more like a R2S issue. Certain ideas are encumbered by their originators by rules on their expression. As long as DRM only interposes on the use of their ideas, it’s not a F2C issue. On the other hand, if we’re no longer able to source devices to originate or consume our personal bit streams, we have a F2C problem. Forcing every screen, speaker and microphone to have DRM and imposing a huge upgrade cost is not reasonable. It’s criminal.
Let’s take this template and apply it to another sphere, municipal or community networks. Should they be allowed, banned, ignored, or what? Well, a pure bitpipe (wireless or fixed) is just a conduit for electrophotonic bitnoise. Deploying one may financially damage an incumbent of rival bitpipes, but that’s just tough luck. Inherent in networks is that they connect multiple points, and if a multitude of points secede from you en block and connect themselves autonomously, so be it.
Offering telephony service however, should by default be outlawed. (Exceptions to prove the rule: demonstrated persistent failure of the market to offer a service, and maybe in extremis rules for very small and isolated communities.) PSTN-style telephony is not a content-neutral form of bit transport. It is an expression of an idea of how certain types of communication should be performed, and it is clearly not the only way of connecting talking humans. By perpetuating PSTN telephony the municipality is doing direct harm to its citizens who might have an interest in newer forms of communication that require message-passing the PSTN cannot support, such as presence data, integrated chat, wideband audio codecs, etc. Same arguments apply to video and so on. (Concept hat tip: Bob Frankston).
A fairer approach would be to offer non-discriminatory wholesale access to the network, and let incumbent service providers roll their existing user base onto it. Of course, the fact that the users can source their video streams and voice services from anyone on the planet…
Municipalities can also be dangerous suppliers of connectivity. Beware of Freedom to Disconnect. What if a corrupt local official who objects to your speech decides to cut you off? Without a robust Freedom to Connect right, you’re in trouble. If there are essential application-layer resources they own (like everyone else only owns a PSTN phone), you’re in even more trouble. R2S depends on F2C. Beware of central control over the latter if you want to avoid central control over the former.
What if there is “noise damage” to a third party? Then we’re into a more subjective area of costs and benefits, and the political and judicial process has been dealing with these trade-offs for an eternity. But rather than competing markets for vertical integration, as one F2C panellist called for, I’d prefer competing markets for horizontal integration. In other words, a diversity of mechanisms for letting “noise” co-exist. Merely creating a monolithic property right to spectrum or street rights of way is just one of many such models.
I rather liked Andrew Schwartzman’s observation that anti-trust is not enough; democracy, citizenship, free expression are the bedrocks of society. That means market concentration metrics alone are not an appropriate measure of whether we are achieving our societal objectives in F2C.
Likewise, Bob Frankston noted that the hotizontal regulation vs anti-trust issue was badly framed. His thesis is that market competition can never work for bit pipes. It is the wrong model — we need utility model. The problems of the Louisiana folks suggested there were issues in financing and operating such a model. My suspicion is that reflects more on fuzziness of our map rather than whether there is a utility “there” there.
Freedom to Connect is important because it moves the debate on beyond economics and horizontal vs. vertical regulation disputes. You wouldn’t make up a foreign policy based only on impacts to your arms industry. So Freedom to Connect is about more than telco profitability. It has more in common with the civil rights movement than free market economics. When laws are passed saying you must seek permission of telcos before laying a glass strand down your street, you should disobey. Martin Luther King didn’t make his case on the basis that ending equal rights would be a great fillip to the economy. There are certain barriers and impediments that are simply unacceptable in a free society.
Freedom to Connect identifies, names and defines the critical social and political framework that enables an information-based society to work. It’s an idea that is going to be with us for a long time to come, one way or another.
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