Net Neutrality's Legal Binary: An Either/Or With No "Third Way"

People working on net neutrality wish for a “third way”– a clever compromise giving us both network neutrality and no blowback from AT&T, Verizon, Comcast and others. That dream is delusional because the carriers will oppose network neutrality in any real form; they want paid fast lanes. They have expressed particular opposition to “Title II” of the Communications Act—something telecom lawyers mention the same way normal people might reference the First or Second Amendments. Title II is the one essential law to ban paid fast lanes.

All legal “third way” proposals have struck me as legally flawed and too clever by half. Let me explain why: current law sets up an either/or, without much possibility of a third way. We have two very different paths and have to pick one.

Laws usually include a definition of something and then apply rules to that thing. Drug laws, for example, might define what “drugs”, insurance, or securities laws define “insurance” and “securities,” then they apply rules to things defined as drugs, insurance, or securities. You can look at the legal definition of drugs and know that peanut butter and automobiles aren’t drugs. Therefore, the legal requirements on drugs don’t apply. If an agency has authority over both food and drugs, and decided both peanut butter and Viagra are not “drugs” but “foods,” then the agency could not apply drug laws to either of them. But it would likely have to declare Viagra a drug to regulate it as a drug, and peanut butter a food to regulate it as a food.

In January, a court in a decision called Verizon v FCC struck down the network neutrality rules adopted by the FCC in 2010. The court said that Title II of the Communications Act regulated some companies as “common carriers.” What is a common carrier? A common carrier is a company “forced to offer service indiscriminately and on general terms.” Common carriers cannot engage in “individualized bargaining.” Think about cabs, which are generally common carriers. For example, according to most state laws, cabs are not permitted to refuse to drive anyone and must charge the same prices, instead of discriminating and deviating from their uniform meter. Common carriers have included landline phone companies, mobile phone companies, DSL service (until 2005), also railroads, and grain elevators.

These are the parts of Title II that require common carriers in communications to serve everyone and not discriminate among users. (The full provisions provide even more detail.)

Serve everyone on fair terms: “It shall be the duty of every common carrier engaged in interstate or foreign communication by wire or radio to furnish such communication service upon reasonable request therefor; … All charges, practices, classifications, and regulations for and in connection with such communication service, shall be just and reasonable.”

No unreasonable discrimination: “It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device.”

According to the court decision in January, services subject to Title II are subject to these provisions.

But service not subject to Title II cannot be treated as common carriers. That is the key holding of the Verizon decision: “We think it obvious that the Commission would violate the Communications Act were it to regulate [companies that are not subject to Title II] as common carriers.”

Here’s how the Court got there in plain English: its just like the Viagra example above. Ten years ago, the FCC said that ISPs aren’t common carriers. Therefore, the FCC can’t regulate them as if they were..

Here’s the legal jargon version. The Communications Act defines something called “telecommunications services,” and says those services must be offered on a common carrier basis under Title II. Telecommunications services are generally networks that carry data between two points without changing it. Other services, that provide and change information, like Facebook or Yahoo, are “information services.” They are not subject to common carrier obligations in Title II. The FCC (oddly) decided ten years ago to treat Verizon, AT&T, and others as information services, not as telecommunications services, even when they carry traffic from point A to point B, merely because they also offer things like email and domain name service.

Because the FCC decided that ISPs are not “telecommunications services” by law, Title II’s common carrier requirements of reasonable charges and nondiscrimination etcetera do not apply to Verizon, AT&T, and Comcast right now.

According to the court in January, the operative legal language making it a binary decision is this:

A telecommunications carrier shall be treated as a common carrier under this [Act] only to the extent that it is engaged in providing telecommunications services. (Page 41).

The court interpreted this language as an either/or. Either a service is a telecommunications service (therefore a common carrier) or not a telecommunications service (and therefore not a common carrier).. It’s binary.

So, unless ISPs are reclassified as Title II common carriers, then common carrier laws simply cannot apply.

Said another way, if the FCC relies on any other provision then common carrier concepts cannot apply. It doesn’t matter if that other provision is one known as Section 706 of the Telecommunications Act, one known as Section 4(i) of the Communications Act, or one known as Mary Poppins. According to the decision, there is Title II, and then there is everything else, when it comes to network neutrality.

The court’s decision on this point is a really important development. Four years ago, when the FCC adopted its 2010 Order, the FCC didn’t know this binary existed. All it knew was that a few provisions of the law (such as Section 230) could not sustain network neutrality. In 2010, the FCC could believe that perhaps many provisions could work (other than 230 and a few others). It could treat “Title II” as the “big guns.” After the Verizon decisionthis January, we realize no provisions other than Title II would work. They’re the only guns.

So we know that (a) Title II services are regulated as common carriers and (b) other services cannot be. A simple binary.

And to finish off the analysis: is network neutrality a common carrier regulation?

Yes, by law. The court in January made that clear: network neutrality is a common carrier regulation. It is common carrier regulation because it requires ISPs to offer indiscriminate and general treatment for all websites. No paid fast lanes and slow lanes. The court said that, with the FCC’s 2010 language on fast lanes, “we see no room at all for ‘individualized bargaining.’”

Unless the FCC relies on Title II, it must permit fast lanes, slow lanes, discriminatory exemptions to bandwidth caps and all the other stuff AT&T, Comcast, and Verizon always wanted.

Still, the FCC Chairman keeps suggesting that the FCC can force the carriers to offer the same terms to everyone and can ban fast lanes under Section 706, without relying on Title II. It’s obvious from the January decision that forcing them to offer the same terms would be common carriage and therefore illegal. Any rules not adopted under Title II will either authorize massive network discrimination and “individualized bargaining” between ISPs and all websites—or be struck down.

If we want a rule against discrimination and against new access fees, we need Title II. There is no legal third way.

Title II and Banning Paid Prioritization

I keep hearing net neutrality opponents arguing that paid prioritization – “fast lanes” on the Internet – and discriminatory exemptions to bandwidth caps, etc. cannot be banned under Title II of the Communications Act.* They also argue that the FCC can’t ban access fees under Title II because Title II only bans “unreasonable” discrimination and unreasonable charges. Therefore, they argue that at least some discrimination and fees are reasonable.

That’s not true. Title II has a few key provisions.

The key language of the very first section in Title II is:

All charges, practices, classifications, and regulations for and in connection with such communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is declared to be unlawful …. The Commission may prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this chapter.

This is a pretty broad authority. The FCC can determine that the ISPs are imposing unjust and unreasonable charges on web companies and applications if they impose a tax to reach the ISPs’ customers. (To my knowledge, such charges are rare, new, and unusual.) The FCC could determine that all such charges are unreasonable. It can define a class of charges and make those charges illegal.

The key language of the second provision is:

It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.

The FCC can determine that paid prioritization is inherently unreasonable. (See Harold Feld’s ex parte for some history, particularly relying on the Carterfone case)

Indeed, previous FCCs understand that they can ban certain classes of actions as inherently unreasonable. In the 2010 Order itself, the FCC “effectively banned paid prioritization.” Verizon sued the FCC over the order and wrote this in its brief: “The Order effectively banned certain potential commercial services—including any ‘commercial arrangement between a broadband provider and a third party to directly or indirectly favor some traffic over other traffic’—by stating that ‘it is unlikely’ that such services ‘would satisfy the “no unreasonable discrimination” standard.’” (Page 9 of the brief.) The decision throwing out the 2010 Order, called Verizon v FCC, agreed with Verizon’s brief and the court interpreted the quoted language to leave “no room at all for ‘individualized bargaining.’” No room at all sounds like an effective ban. (Page 60-61).

The point is that under Title II, the FCC can eliminate certain classes of fees and discrimination, including banning paid prioritization (aka fast lanes) on the Internet altogether.

The FCC cannot do that under Section 706, as the Court already decided.

*The net neutrality debate is complicated by a question of whether the FCC should use its main authority that is found in Title II of the Communications Act or a new and very different authority under Section 706 of the Telecommunications Act. Net neutrality advocates prefer Title II because under Title II the FCC has the power to ban “unreasonable” discrimination and require “reasonable” charges and practices. A court in January has already decided that the FCC cannot ban unreasonable discrimination or eliminate (at least certain) unreasonable fees under Section 706. Indeed, the January case struck down the FCC’s 2010 net neutrality rules simply because Section 706 doesn’t give the FCC power to ban unreasonable discrimination.

Picture courtesy of Atul Nulkar

Large and Small Internet Companies call for the FCC to Keep the Internet Open - Join Them

On May 15th, the Federal Communications Commission (FCC) will officially propose rules regarding the Open Internet. The proposal would authorize phone and cable ISPs to create two-tiered internet “fast lanes” for those who can pay, and slow lanes for everyone else, destroying the current level playing field and threatening innovation and entrepreneurship.

Yesterday, Engine and The Open Technology Institute at the New America Foundation filed a letter, signed by over 100 internet companies, calling for the FCC to rethink these proposed rules and instead recommit to protecting and preserving an open, equal internet.

From our statement, “the signers -- a diverse group including tiny start­ups, household names, and industry giants -- called for Open Internet Rules that afford companies and entrepreneurs strong protections against online discrimination and individualized bargaining.”

Today, over one hundred leading Venture Capitalists from across the country joined us in asking the FCC to reconsider. As Nick Grossman from Union Square Ventures writes, “it’s undeniably clear that the Internet has been an insanely fertile platform for innovation and investment over the past ten years...so today’s letter states our hope that the FCC will weigh all available options when considering how to maintain the most competitive, vibrant market possible for internet applications.”

If you still want to sign-on to our company letter, email your name, your job title, and your company name to eva@engine.is

AND, if you want to take part in our Startups Speak video series to show your support, email dan@engine.is for more information

New FCC Proposal on Net Neutrality is Disastrous for Startups, Consumers and the Economy

“According to recent news reports, the Commission is considering adopting a rule that authorizes discrimination by ISPs and permits them to charge terminating access fees to technology companies. We believe such a rule, if adopted, would crush startups,and therefore undermine American technology entrepreneurship, innovation, and job creation.”

This is the first paragraph of comments we filed with the FCC today. The FCC’s widely reported net neutrality proposal authorizes web-content discrimination by enabling companies to pay Internet Service Providers for access to a faster lane, whole relegating those without the ability to pay to the slow lane.

This proposal marks a significant departure from the principle of Net Neutrality, which grants all content providers the equal ability to provide their offerings to consumers, and gives Internet users the equal ability to see any content they choose.

This proposal would place an incredible burden on small, high-growth companies. In so many ways, the deck is already stacked in favor or larger, well-funded business, and this is yet another barrier to entry. This framework will unequivocally empower the companies that can pay, at the expense of the next generation of disrupters.

As Fred Wilson pointed out back in January, in this new world order “telcos will pick their preferred partners, subsidize the data costs for those apps, and make it much harder for new entrants to compete with the incumbents.”

The innovation ecosystem -- so essential to job creation and economic growth -- benefits from low costs of innovation, not an environment where multiple ISPs can impose above-cost, unconstrained access fees on startups. Entrepreneurs rely on an open internet to build their companies, and investors rely on the certainty of an open internet to invest billions of dollars in edge providers to power the innovation ecosystem.

Startups rely on not being blocked, discriminated against, or subject to fees for access and preference. If some or all ISPs block a startup, the startup would be unable to reach a portion of users in the market. This is a particular problem for startups whose products rely on network effects -- those that become more valuable with more users -- such as social networks, e-commerce platforms connecting buyers and sellers (or drivers and riders), sites for user-generated content (including reviews, photos, or micro-blogs), and payment networks. If blocked by some ISPs, these companies will be less likely to win in the market, even if consumers would otherwise prefer their services.

Any arguments that suggest startups welcome the “right” to negotiate to pay fees for access or outbid giant incumbent edge providers for special preferences are divorced from the reality of entrepreneurship

For the last decade, the largest cable and phone companies have argued that network neutrality is “a solution in search of a problem.” That assertion is false.

We know that net neutrality solves a real problem. In countries without net neutrality, including several European nations, there has been widespread discrimination and blocking for many years. And even in the US, where the FCC has to this point supported net neutrality in principle, there have been violations. These include:

• Comcast interfering with peer-to-peer technologies, including some of the most popular technologies online;
• Apple blocking the application Skype on the iPhone, which was subject to a contract with AT&T, a carrier that competes with Skype;
• Verizon, AT&T, and T-Mobile blocking Google Wallet, while all three companies are part of a competing mobile payments joint venture called Isis; and
• Comcast’s disputes with Level 3 and Netflix over termination fees and congested transit.

We cannot overstate how devastating this pay-to-play model will be for startups, the innovation economy, the open internet, and for consumers.

In our comments to the FCC, we support the Chairman’s previously stated desire to adopt strong rules on disclosure, blocking, and discrimination, but we believe the Chairman cannot adopt such rules under the jurisdictional theory he favors: Section 706 of the Telecommunications Act that grants the FCC jurisdiction over “deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.”

We now know the obvious: he cannot pursue real nondiscrimination rules under Section 706.

Rather than permit widespread discrimination and fees that would crush entrepreneurship, he should choose a different jurisdictional theory known to legal eagles as Title II. Title II would reclassify Internet service as a public utility much like phone lines. Reclassification must be remain on the table and be seriously considered.

We are following this issue closely, so sign-up for our newsletter (it’s just below the fold!), and follow us on Twitter and Facebook to stay up to date. And if you want to take action now, visit Free Press for how to make your voice heard.

Keep APIs Open

Last week, Engine joined software innovators, startups, and investors as a signatory on an amicus brief in Oracle v. Google -- a case centered on how far copyright should be extended with regards to Application Programming Interfaces (APIs). We are in favor of limiting copyright on APIs in order to protect innovation and investment.

In 2012, district courts ruled in favor of Google, concluding that Java APIs used by Android are not subject to copyright. The Federal Circuit is now reviewing the case on appeal.

We are proud to put our name on the brief because we recognize the need for software startups to innovate and the drive economy forward. Startup innovation requires interoperability (ie. open exchange of information) between systems and programs, and this is fostered by APIs.

Our interest is in “preserving the deliberate balance Congress and the courts have established for software copyright.” This balance is integral to maintaining a competitive marketplace and investment landscape. Should copyright restrictions on API’s be tightened, the real-world implications could be significant -- could decrease competition in software innovation and chill investment.

We’d like to recognize Engine member startups who also signed this brief, including: Bright Funds, Hattery, Hipiti, and Vessel. We are also thankful that prominent investors and technology industry veterans lent their voices, including Engine Advisory Board Member Brad Feld, and his partner at Foundry Group, Jason Mendelson. You can find a full list of signatories here.

We encourage you to check out the abstract and full brief.

Related articles:

• Computer Scientists Urge Court to Block Copyright Claims in Oracle v. Google

  API Fight

Celebrating The Free and Open Internet

One year ago today, the internet community came together as never before. Users, entrepreneurs, policy experts, and activists united to defeat the Stop Online Piracy Act and Protect IP Act. The downfall of SOPA and PIPA opened a new chapter in internet and technology-based activism and sent a resounding message to Washington: protect the free and open internet.

Today, we’re launching “Stop The Wall” a video that shows how Engine fought to stop SOPA and PIPA, and how we as a community succeeded through the dedication of so many engaged individuals across the United States who took the time to call their legislators.

With the new Congress, we aim to make startups and entrepreneurship a central priority for lawmakers -- beyond copyright. Patent, immigration, spectrum, data, and financial regulation will all be debated in the coming months. The Engine team expects to be at the fore of these debates, connecting our members to Washington and reminding policymakers that the internet is powering our economy.

The last year hasn’t been without its blows. The recent passing of Aaron Swartz is an immeasurable loss, foremost to his family and friends, and also to the internet’s collective voice. Demand Progress, Aaron’s organization with whom Engine collaborated during the SOPA/PIPA fight, is just one aspect of his important body of work, which touches everything from public policy, Creative Commons, Reddit, and RSS. As we celebrate our community’s efforts on January 18th last year, we also remember Aaron and strive to continue the work he devoted his life to.

Tonight, we’re gathering with members, friends, and fellow activists to celebrate the end of SOPA and PIPA. We will also reflect on the life, work, and spirit of Aaron Swartz.

His life demonstrates yet again the power of the internet to enable one voice to overcome a chorus of conventional wisdom. Aaron empowered many in the fight against a closed internet and obsolescent legal structures. Engine aims to continue this fight and to act as an agent of change in government.

Thank you for your commitment in 2012. The internet is, and will continue to be, better because of the work of people committed to our internet and our economy.

KC Startups for Open Internet

The Internet 2012 Bus Tour stopped off the campaign trail in Kansas City on Sunday, to participate in a panel hosted by the Kauffman Foundation on the future of entrepreneurship.

The internet bus tour, making its way from Denver, CO to Danville, KY, started its route after the first presidential debate last week. The aim? To show that a free and open internet isn’t a partisan issue or one restricted to small areas of the country. The bus, which will carry a group of reporters and Reddit co-founder Alexis Ohanian among others, will travel through the heartland to meet with people and collect stories of how they use the internet.

The event on Sunday was an opportunity for the Internet Bus riders to hear from the Kansas City startup community about how the internet has enabled their businesses to thrive. Kauffman’s Cameron Cushman told Engine; “The future of entrepreneurship is going to involve technology in some fashion. We need to make sure the internet remains a medium that entrepreneurs can use.”

Panelists included local entrepreneurs from AgLocal,Leap2, and Neighbor.ly. Jase Wilson from Neighbor.ly, a civic engagement platform that allows people and companies to invest in civic projects they want to see carried out in their cities and neighborhoods, spoke to Engine about the importance of campaigning for an open internet: “Open internet enables us. Neighbor.ly along with countless other e-commerce systems would be a non-starter if the internet were beholden to interest groups. We're able to try out ideas and provide a valuable service for next to nothing thanks to the open internet. The cost of participating as a platform in a non-open internet would skyrocket, removing lean startups like ours from the ecosystem.”

And that ecosystem is vital not just to the health of the entrepreneurial community in Kansas or any other individual community in the United States. Entrepreneurship is driving job growth across the country, and a thriving and open internet is vital to the continued recovery and growth of the economy. We’ll be tracking the bus as it rolls across the country campaigning for the internet, hitting the innovation hot spots in the heartland and further amplifying the voices of entrepreneurs and internet users from coast to coast.

Internet Radio Bill Good for Innovation, Startups

While the internet and startups play a critical role in driving innovation in content industries, the relationship between incumbent companies and their young competitors has never been harmonious. From the advent of radio to the launch of Napster, disruptive technologies have experienced legal barriers to markets. The Internet Radio Fairness Act of 2012 -- introduced by Oregon Democratic Senator Ron Wyden in the Senate and Utah Republican Representative Jason Chaffetz in the House -- will help boost web-based music services by leveling the playing field for all radio broadcasters.

Internet radio broadcasters pay higher rates to play the same songs than other music distributors using different technologies. An August Brookings Institution paper on the rate differential concluded that the policy discourages new companies from entering the market. The paper notes that internet radio companies may be compelled to pay a larger share of their revenue to acquire the rights to play music than other radio services using different technologies, such as satellite radio.

Constant innovation drives the music industry. Where iTunes and Pandora began disrupting through digital distribution, companies like Grooveshark, TuneIn, and Spotify continue to push the envelope. Young businesses often have the greatest difficulty maintaining steady revenue flow. Government shouldn’t be in the business of increasing barriers to entrepreneurship and propping up incumbent industries. We welcome Senator Wyden and Representative Chaffetz’s bills and encourage Congress to pass legislation that promotes competition in all markets.

Karlo Dizon on Open Internet, Guam, and Effecting Change in Congress

Last week, Karlo Dizon, a 27-year-old Guamanian and graduate of Yale University, announced his candidacy for Guam’s non-voting delegate seat in the United States Congress. He did so in two ways -- the traditional means of filing paperwork with the territory’s elections office, and also by conducting an AMA, or ‘Ask Me Anything’, post on the popular social news aggregator Reddit. Mr. Dizon has made campaigning for a free and open internet a cornerstone of his run for office, so we asked him to talk about his run for Congress, his views on the internet and how they impact his potential constituents on Guam in a Q&A.

ENGINE: So, you’re running for Congress. Why?

KARLO DIZON: I ran because I was dissatisfied with the current Congresswoman but few were willing to step up to the plate. I have always believed in the ability of the democratic process to provide the best for our society, and consequently, I have grown uncomfortable with the direction and climate Congress has been taking for quite some time. In the spirit of being the change you want to see in the world, I thought it was time I try to affect change myself. I suppose that is really the primary reason: rather than hoping the current Congresswoman would listen to the growing concerns of the people of Guam, I would champion change directly by running for Congress.

E: A lot of the public discussion of your campaign is based around ideas of a free and open internet. How do you think this affects your constituency in Guam? Do you see it as a more national issue or one of particular local importance?

KD: Defending a free and open internet should be a fundamental priority for anyone who values democracy. As such I don’t know if I could separate the national and local effects as two different things. Just as I see my local heritage being influenced by and inseparable from national ideals of freedom, self-sufficiency, and democracy, so, too, do I understand the effects of legislation such as SOPA, PIPA and CISPA to be disastrous to the nation and my island. However, it should be stated that for a relatively remote island in the Pacific, there are specific worries for what CISPA would mean for Guam. Namely, if freedoms are curtailed and the use of the internet becomes associated with risking privacy, our dependence on the internet for consuming goods and information from the mainland would jeopardize our people’s ability to advance the pursuit of equality with standards of living enjoyed in the rest of the United States.

E: You announced your campaign to people worldwide in a Reddit thread. How have internet-based tools helped you broadcast your message to the electorate?

KD: Guam is still developing a sense of online presence for political outreach purposes. We hope that the way we’re running this campaign will encourage all future elections to tap into this resource, as it provides a forum for interacting with people on a more individual level. As of now, we’re primarily using Facebook and a campaign website that hooks to a backend database. I genuinely believe that Facebook is the next level of political communication--it provides the means for a two-way conversation and is instantly received by the voters on their screens or phones, compared to a website that voters have to actively access themselves.We have started to see individuals making their way up to us because they saw our online presence, agreed with our goals, and wanted to see how they could help. It reinforces our belief that providing open access to information online is pivotal not only for the democratic process but also in forging stronger ties with the community as a whole. And of course, we look forward to advancing an online political culture that utilizes more of the available tools in order to enfranchise younger generations.

E: What would your goals be if elected, especially with regard to internet openness, and what effect do you think you can have in Congress as a non-voting delegate?

KD: By and large my goals echo that of the Democratic Party, and even more so with regards to internet openness. I support the Obama administration’s defense of the American people’s privacy, data confidentiality and civil liberties, and I agree that the internet is public domain. I would fight to encourage the President’s current stance of vetoing CISPA, and proactively look into ways of preventing further legislation from ever getting this far. As per the vote, I do think it is important to remember that as the delegate from Guam, I would have a vote in committees. To the extent that I can influence committee decisions and authorship of bills, then, I think there is plenty of room to influence Congress. It is true that not having a vote makes it more difficult, but then, if I didn’t like a challenge I wouldn’t be running against a 10-year incumbent.

Internet Declaration Highlights SOPA/PIPA Legacy

Ahead of Independence Day in the United States, groups are banding together to highlight principles behind the free and open internet. Entrepreneurs and startups are vital players in the internet economy, and should make their voices heard as the discussion evolves on these critical issues that impact internet culture and commerce.

A coalition representing advocacy groups, civil society organizations, companies, academics, and individuals have launched a “declaration of internet freedom” at www.internetdeclaration.org/freedom. The groups highlight five principles: expression, access, openness, innovation, and privacy.

Startups can take this opportunity to provide feedback on Techdirt, reddit, Cheezburger, and Github.

Nearly six months after the blackout protests and call campaigns derailed SOPA and PIPA, users across the web are coming together to remind lawmakers that these efforts weren’t a one-time groundswell. Startups have a great deal at stake in the open internet discussion and entrepreneurs and innovators should take this opportunity to let the community know about their concerns.

Marvin Ammori: One of Fast Company’s Most Creative People

Marvin Ammori was just named number 32 on Fast Company’s “100 most creative people in business” for his stewardship of the takedown of SOPA and PIPA. We caught up with him to talk about SOPA, First Amendment in tech, and what it means to be a creative leader in a digital world.

So, you're on Fast Company's Creative Business list...?

Yes. It's great that Fast Company decided to feature the creativity of the anti-SOPA movement and it was obviously an honor to be chosen as the person to represent that creativity. There were millions of activists involved and perhaps hundreds of leaders in business, academia, entrepreneurship, cybersecurity, music, and civil liberties. 

The Internet itself is the world's greatest engine of creativity -- for speech, culture, and business. The anti-SOPA movement was organized much like the web itself, with loose networks and nodes through which lots of people could contribute their creative ideas, test them, and collaborate to make them a reality. Fast Company profiled me, but I was just one of many devoted people fighting the bills, so many of whom exhibited amazing creativity.

Tell us about what you did for the SOPA fight and why it was important.

To stop SOPA and PIPA from becoming law, you couldn't play the usual inside-the-Beltway DC game. You needed activists, organizers, lobbyists, lawyers, and a coalition of business, civil liberties groups, entrepreneurs, and just ordinary citizens who rely on the Internet. 

I am a First Amendment lawyer. What I could do was interpret the statute as confidently as any of the opposing lawyers, and to analyze the First Amendment implications and problems. I also have experience working on public campaigns for Internet policy issues. So, while the other side would explain what the law did inaccurately, I could provide the right analysis, explain it clearly and simply to allies, congressional staff, and the general public. I was not the only lawyer fighting to stop SOPA, and we all learned a lot collaborating with one another.

Beyond the lawyers, other people were experts in cybersecurity (Paul Vixie), or handled the lobbying (Public Knowledge among others) and public activism (Fight for the Future, Demand Progress, Electronic Frontier Foundation) and organized Silicon Valley entrepreneurs (Engine). They could all rely on my legal analysis, just as I could rely on their skills.

What other tech issues have first amendment implications?

Almost all of them. The Internet is our infrastructure for speech in the 21st Century. We need to ensure all Americans have access to high-speed, open Internet connections, wired and mobile, and that individuals (not Hollywood or the telcos) control how people can use those connections. So network neutrality, bandwidth caps, Internet-for-all initiatives. All of these will determine who can speak to whom in our society, with what tools, and whether they need permission, and from whom.

What’s next for you?

I am thinking through a project on the connection between policies that foster entrepreneurship and those that foster freedom generally (like freedom of speech). And I'm supposed to be writing a book. I will probably call Hamish Chandra, an Engine Advocacy advisor who is my creativity guru, to coach me on becoming as creative as the 32nd most creative person in business should always be.

http://ammorigroup.com/

@marvin_ammori

Hey. No SOPA. Remember?

We’ve got our eyes on this one: Form building startup Jotform.com, which hosts it’s domain on GoDaddy, was suspended two days ago by a U.S. government agency in the course of an investigation into content posted on Jotform’s site.

Jotform founder Aytekin Tank posted on their corporate blog defending Jotform and also directing users to move their forms to JotForm.net while the investigation is cleared up. Tank defended his site’s policing methods and results, saying, “This can happen to any site that allows public to post content. SOPA may not have passed, but what happened shows that it is already being practiced.” [emphasis added]

Tank also wrote an agitated post on Hacker News detailing his impatience at the U.S. Secret Service’s lethargy in responding to the case. He said; “I told them we are a web service with hundreds of thousands of users, so this is a matter of urgency, and we are ready to cooperate fully”.

We’re watching to see how this plays out. While there’s not a lot of information at present, it seems as if GoDaddy or the government or both may be dangerously close to the kinds of enforcement rules that were rejected with the shelving of SOPA and PIPA.