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Monday, June 27, 2005
It's More Important Than Grokster
Grokster | Posted by Susan Crawford at 01:27 PM
I realize that I was invited here to talk only about Grokster, but in the great traditions of the blogosphere I'm going to overstep my welcome.
The consequences of BrandX (also decided today) are more important than those of Grokster. Grokster keeps the status quo in place. BrandX opens up a whole new world of regulatory power.
"What?" you ask. "I thought BrandX was just about the access of little ISPs to big mean cable systems."
No. In fact, both opinions are the reverse of what they purport to be. The Grokster opinion gives certainty to tech companies. And the BrandX opinion takes it away again.
In BrandX, Justice Thomas gets very confused about the internet and ends up essentially announcing that everything a user does online is an "information service" being offered by the access provider. DNS, email (even if some other provider is making it available), applications, you name it -- they're all included in this package. And the FCC can make rules about these information services under its broad "ancillary jurisdiction."
This is very very big. This means that even though information services like IM and email don't have to pay tariffs or interconnect with others, they may (potentially) have to pay into the universal service fund, be subject to CALEA, provide enhanced 911 services, provide access to the disabled, and be subject to general consumer protection rules -- all the subjects of the FCC's IP-enabled services NPRM. I've blogged about this a good deal elsewhere, but I want the news to be heard here: the FCC is now squarely in charge of all internet-protocol enabled services.
The implications of all this are staggering. This is the real news from today. After the DC Circuit's ruling in the broadcast flag case, people may have thought that the FCC's "ancillary jurisdiction" was in trouble. No longer -- the FCC has been given an enormous jurisdictional surge in power.
As Jim Speta notes: "As Scalia says, 'This is a wonderful illustration of how an experienced agency can (with some assistance from credulous courts) turn statutory constraints into bureaucratic discretions.'"
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Comments
The FCC is in charge in name only of "enabled services". Yes, they can mandate what can be done within the borders of the US when it comes to services and devices, but that mandate ends at the terminus of US soil and the imagination of the next Bram Cohen.
They could say something vacuous like "bittorrent traffic is now illegal" and force US service providers to block it, but that will simply make BT 2.0 use different ports/packet headers, much the way designer drugs skirt the law by moving a single carbon bond out of the way.
Industry and consumers will (hopefully) revolt should the FCC accidentally block popular content when implementing their incompetently-crafted rules.
Posted by: Gottog at June 27, 2005 02:17 PM
I have been harping on Brand X as an equally if not more important aspect of this term's cyberlaw stance from the get-go. I think you have hit the realpolitik importance of todays decisions. The deference that was extended to the FCC by the labeling of "information services" by Thomas' decision creates a vacuum of law. With respect to your comment about technology companies having lost certainty with Brand X, you are completely correct. On a more theoretical level, this again decreases the competition for top-end access to the Internet (while the US continues to lag further and further behind on high-speed access for the population) further restricting the creative potential of the Internet. When we look at what is being developed in the on-line reality, most of it is centered around an assumption of broadband, DSL, or other high speed access systems. If the FCC begins to extend further regulatory control over what are essentially services that may be restricted to the top-end users, where are we?
Okay, I am beginning to lose focus in this post. Aside from granting the FCC vast deference to regulate the Internet with no real standards handed down, aside from granting greater power to the cable mega-corps that are running the cable modem lines, Brand X is almost a step back from the active integration of the Internet into jurisprudence that we were seeing the past few years. While Grokster may demonstrate a certain understanding or at least comfort with how the Internet is integrated into modern life, Brand X seems weak with respect to handling an emergent technology.
Posted by: Joel at June 27, 2005 03:10 PM