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Subject: [IP] more on House Passes Bill to Raise Indecency

  • From: David Farber <dave@farber.net>
  • To: Ip <ip@v2.listbox.com>
  • Date: Fri, 18 Feb 2005 07:01:24 -0500

Title: &nbsp;&nbsp;more on House Passes Bill to Raise Indecency

------ 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 &#8211; that&#8217;s 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 isn&#8217;t this how to do it &#8211; educate people and explain concepts by highlighting issues with the current rules? Powell is right &#8211; very right &#8211; the first amendment is very unpopular.
&nbsp;
Does my miscitation matter? Apparently it matters a lot &#8211; 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 &#8211; just numbers that have no feeling or emotion or connection with people!
&nbsp;
I need to emphasize that the FCC is special case because the technology it is attempting to administer is simple and moving ahead rapidly. It&#8217;s also special because the FCC is attempting to manage communications or speech and that does matter. And it&#8217;s special because those who rule on the rules have trouble with the new concepts.
&nbsp;
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 it&#8217;s a simple approach based on computing capabilities of the 1970&#8217;s at best &#8211; sort of trivial by today&#8217;s standards. But it&#8217;s very hard to explain that to people who can&#8217;t 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. It&#8217;s 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.
&nbsp;
I feel like Hippasus being told that his proof that the square root of two is irrational was invalid because he didn&#8217;t respect precedent &#8211; please don&#8217;t 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 isn&#8217;t 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 &#8211; 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.
&nbsp;
Just because I can program doesn&#8217;t mean I can&#8217;t do more. If anything, it&#8217;s 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 shouldn&#8217;t it work both ways? Should those who don&#8217;t know what port 25 and 110 are be allowed set communications policy?
&nbsp;
Of course I know that the FCC is a creature of congress and that courts base their rulings on many complex factors rather than na&iuml;ve 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. I&#8217;m also fascinated by how government, the courts and the legal system operate &#8211; 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 that&#8217;s at the heart of controversy as the TCP/IP split, for example, plays out.
&nbsp;
I&#8217;ll stop here though I have so much more to say about the topic. I don&#8217;t 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 &#8230;
&nbsp;


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. &nbsp;The Congressional indecency bill and the fines associated with it enjoy huge public support. &nbsp;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). &nbsp;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. &nbsp;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. &nbsp;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. &nbsp;Or else challenge its constitutionality through an actual case. &nbsp;But if you aren't willing to do this, then quit whining about Powell doing the job he was hired to do. &nbsp;I know he isn't thrilled with this part of his job; but it is his job.

Incidentally, Chris is correct (below) about &quot;Red Lion&quot;; anyone who knows the slightest thing about electronic speech and its regulation (even a business school professor;-) knows about Red Lion, not &quot;red lining&quot;. &nbsp;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 -----
&nbsp;
From: &nbsp;David Farber <mailto:dave@farber.net> &nbsp;
&nbsp;
To: Ip <mailto:ip@v2.listbox.com> &nbsp;
&nbsp;
Sent: Wednesday, February 16, 2005 7:55 &nbsp;PM
&nbsp;
Subject: [IP] more on House Passes Bill &nbsp;to Raise Indecency
&nbsp;


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


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


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

<snip>
>>
On one of the panels a speaker said &nbsp;that Supreme Court had &quot;red lined&quot; the principle that the FCC trumped the &nbsp;first amendment. I tried to look up the term but couldn't find a definition (I &nbsp;presume that all words are in legalese and not English). Is it similar to &nbsp;Black Letter Law -- something that is just assumed without there being a &nbsp;doubt?<<
Bob,
What Powell was talking about &nbsp;was a case from the &#8216;60s known as the &#8220;Red Lion&#8221; case. &nbsp;(One of the &nbsp;parties was &#8220;Red Lion Broadcasting&#8221;). That case basically held that the degree &nbsp;of 1st Amendment protection applicable to a given medium depended on the &nbsp;technical and other characteristics of the medium. &nbsp;Over-the-air &nbsp;broadcasting is traditionally subject to less 1st Amendment protection because &nbsp;of (a) its pervasiveness and (b) the supposedly limited amount of spectrum &nbsp;available, imposing greater &#8220;public interest&#8221; obligations on those who hold &nbsp;it.
We can (and probably should) debate the continuing validity of this &nbsp;line of cases, but I think Powell is correct that the &#8220;law&#8221; of decency &nbsp;applicable to unencrypted, free, over-the-air broadcasting is different from &nbsp;that which applies to cable, or print, or the &#8216;net, or &nbsp;whatever.
Chris S. &nbsp;
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