Net Neutrality’s New Chapter

Net Neutrality’s New Chapter
By Kevin Tagland
Apr 28 2017

A Modern History of Broadband Service Regulation: How Did We Get Here?

The debate over network neutrality centers on how broadband Internet access service is classified under U.S. communications law.

In a 2002 Declaratory Ruling, the FCC, under then-Chairman Michael Powell, classified cable modem service as an interstate information service. An “information service,” according to Title I of the Communications Act of 1934, is 

the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.

The Declaratory Ruling explicitly ruled that high-speed Internet access is not a “telecommunications service,” defined in Title II of the Communications Act as “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.”

The far-reaching ruling was not bipartisan. Then-FCC Commissioner Michael Copps warned, “Today we take a gigantic leap down the road of removing core communications services from the statutory frameworks established by Congress, substituting our own judgment for that of Congress and playing a game of regulatory musical chairs by moving technologies and services from one statutory definition to another.” 

In 2004, Chairman Powell challenged broadband service providers to preserve four “Internet Freedoms”: 

• Freedom to Access Content. Consumers should have access to their choice of legal content.
• Freedom to Use Applications. Consumers should be able to run applications of their choice.
• Freedom to Attach Personal Devices. Consumers should be permitted to attach any devices they choose to the connection in their homes.
• Freedom to Obtain Service Plan Information. Consumers should receive meaningful information regarding their service plans.

In June 2005, the Supreme Court decided a case, National Cable & Telecommunications Association (NCTA) v. Brand X, which questioned whether the FCC had lawfully interpreted the Communications Act by deciding that cable broadband providers did not provide a telecommunications service. The U.S. Court of Appeals for the Ninth Circuit had determined that cable modem service was a telecommunications service, but the Supreme Court held that the Ninth Circuit should have followed the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council. That decision required federal courts to defer to an agency’s construction of a statute, if that statute was within the agency’s jurisdiction to administer and the agency’s interpretation was reasonable, even if it differed from the court’s own interpretation. In the Brand X case, the Supreme Court held that the FCC’s construction was reasonable.

In August 2005, the FCC, led by then-Chairman Kevin Martin, and relying on Title I/information services authority, adopted an Internet policy statement reflecting Powell’s “four freedoms.” The policy statement said broadband consumers are entitled to: 

• Access the lawful Internet content of their choice,
• Run applications and use services of their choice, subject to the needs of law enforcement,
• Connect their choice of legal devices that do not harm the network, and
• Competition among network providers, application and service providers, and content providers.

Later in 2005, Ed Whitacre, CEO of SBC, complained to BusinessWeek about companies like Google and Vonage. “Now what they would like to do is use my pipes free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it.” Although Google, Vonage, and their customers were paying for broadband access, Whitacre apparently wanted the companies to pay an extra toll for using the network to make more money themselves. But in 2006, AT&T pledged to maintain a “neutral network” in exchange for U.S. government approval of its proposed acquisition of BellSouth.

In 2008, Chairman Martin said Comcast was slowing peer-to-peer traffic – and the practice appeared to be more widespread than the company had disclosed. Later that year, the FCC ordered Comcast to stop its “invasive” interference on its broadband network and to create a new network management plan. Comcast took the FCC’s anti-throttling order to court, arguing that the commission had no hard rules against the company’s network management practices. In 2010, the U.S. Court of Appeals for the District of Columbia Circuit overturned the FCC’s Comcast ruling, saying the agency lacked “any statutorily-mandated responsibility” to enforce network neutrality rules. The ruling was the first big blow to the “light-touch”/Title I approach to broadband service regulation. In 2011, Comcast agreed to abide by the 2005 Internet policy statement as a condition of it’s acquisition of NBCUniversal.


Swabbing a car door handle in a public lot to collect DNA is a Fourth Amendment trespass search

Swabbing a car door handle in a public lot to collect DNA is a Fourth Amendment trespass search
By Orin Kerr
Apr 24 2017

In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court added a second test for what government action counts as a Fourth Amendment “search.” Since the 1970s, the Supreme Court had held that the government commits a search when it violates a person’s reasonable expectation of privacy. Jones added that the government also commits a search when it trespasses on to a person’s “persons, houses, papers, and effects.” As I explained in an article responding to Jones, it is hardly clear what kind of trespass test Jones adopts. Although Jones purports to restore a preexisting trespass test, no trespass test existed that the court could restore. As a result, the significance of Jones hinges on just what kind of trespass test courts interpret Jones to have adopted.

In light of that uncertainty, I was fascinated by a new decision, Schmidt v. Stassi, from the Eastern District of Louisiana last week. Michael Schmidt is a suspect in the 1997 murder of Eugenie Boisfontaine. You may have heard of the case, as the investigation is the subject of the Discovery Channel TV show “Killing Fields.” Investigators wanted to get a DNA sample from Schmidt, so they followed his car. When Schmidt drove to a local strip mall, parked and went inside a store, an agent used a cotton swab to wipe the exterior door handle on Schmidt’s Hummer to collect a DNA sample. Schmidt sued the officers, claiming that swabbing his car door handle was an unlawful Fourth Amendment search.

In the new decision, Judge Lance M. Africk holds that collecting the DNA from the door handle using the cotton swab was a Fourth Amendment search because it trespassed on to the car. From the opinion:

Here, the search involved the physical touching of Schmidt’s Hummer in a public parking lot. The search, however, did not damage the Hummer in any way. Accordingly, this Court has to make two determinations when evaluating whether a Fourth Amendment search occurred:

• Does the trespass-trigger for Fourth Amendment coverage extend to a trespass to chattels?
• If so, was the physical touching a trespass to chattels even though the touching did not harm or otherwise affect the Hummer?

Jones—which addressed a trespass against a car—settles that a trespass to chattles can constitute a Fourth Amendment search regardless of whether there is a reasonable expectation of privacy. See 565 U.S. at 410 (observing that officers “trespassorily inserted” the GPS tracker on the Jeep); see also id. at 419 & n.2 (Alito, J., concurring) (implying Court was concluding that search was a trespass to chattles). Thus, just as a trespass to land can constitute a Fourth Amendment search, a trespass to chattles may as well. See, e.g., United States v. Ackerman, 831 F.3d 1292, 1307-08 (10th Cir. 2016). And there is no question that an automobile—unlike an open field—is protected by the Fourth Amendment: an automobile is “an effect as that term is used” in the Fourth Amendment. Jones, 565 U.S. at 404.4

But was this a trespass to chattles? That is a trickier issue. As Justice Alito’s Jones concurrence explained, the elements of the tort have changed since the founding. “At common law, a suit for trespass to chattels could be maintained if there was a violation of the dignitary interest in the inviolability of chattels.” 565 U.S. at 419 & n.2 (Alito, J., concurring) (internal quotation marks omitted). Meanwhile, “today there must be some actual damage to the chattel before the action can be maintained.” Id. (internal quotation marks omitted). So the choice of a particular understanding of trespass can be outcome determinative when applying Jones if a search does not damage or otherwise affect a particular chattel.

The Court concludes that it should follow the view that an officer need not cause damage before committing a trespass to chattels. Not only is that the view of the Second Restatement of Torts, see Restatement (Second) of Torts § 217,5 but it also has the added advantage of not making the scope of the Fourth Amendment turn on whether someone scratches the paint.


America’s Rich Get Richer and the Poor Get Replaced by Robots

[Note:  This item comes from friend Mike Cheponis.  DLH]

America’s Rich Get Richer and the Poor Get Replaced by Robots
By Vincent Del Giudice and Wei Lu
Apr 26 2017

America’s working class is falling further behind.

The rich-poor gap — the difference in annual income between households in the top 20 percent and those in the bottom 20 percent — ballooned by $29,200 to $189,600 between 2010 and 2015, based on Bloomberg calculations using U.S. Census Bureau data.

Computers and robots are taking over many types of tasks, shoving aside some workers while boosting the productivity of specialized employees, contributing to the gap.

“Technological developments have increasingly replaced low- and mid-skilled jobs while complementing higher-skilled jobs,” said Chad Sparber, an associate professor and chair of the economic department at Colgate University.

This shift is predicted to continue. About 38 percent of U.S. jobs could be at high risk of automation by the early 2030s, according to a study by PricewaterhouseCoopers LLP. The “most-exposed” industries include retail and wholesale trade, transportation and storage, and manufacturing, with less-educated workers facing the biggest challenges.

Companies’ use of temporary and part-time employees to cut costs also may be widening the disparity, with wage growth failing to keep up with rising residential and basic-necessity expenses. As the divide grows, hardships increase for the bottom 20 percent. Affordable housing, for example, is in short supply nationwide, forcing workers to find shelter further from their jobs and endure lengthier and costlier commutes. Rental costs rose nationally by 3.9 percent in March from a year earlier, according to the Labor Department.

High-tech hubs were among the five metropolitan statistical areas where the gap between the highest- and lowest-income households expanded the most: two in California, San Francisco and San Jose, as well as Austin and Seattle.


The Myth of a Superhuman AI

[Note:  This item comes from friend Mike Cheponis.  DLH]

The Myth of a Superhuman AI
By Kevin Kelly
Apr 25 2017

I’ve heard that in the future computerized AIs will become so much smarter than us that they will take all our jobs and resources, and humans will go extinct. Is this true?

That’s the most common question I get whenever I give a talk about AI. The questioners are earnest; their worry stems in part from some experts who are asking themselves the same thing. These folks are some of the smartest people alive today, such as Stephen Hawking, Elon Musk, Max Tegmark, Sam Harris, and Bill Gates, and they believe this scenario very likely could be true. Recently at a conference convened to discuss these AI issues, a panel of nine of the most informed gurus on AI all agreed this superhuman intelligence was inevitable and not far away.

Yet buried in this scenario of a takeover of superhuman artificial intelligence are five assumptions which, when examined closely, are not based on any evidence. These claims might be true in the future, but there is no evidence to date to support them. The assumptions behind a superhuman intelligence arising soon are:

• Artificial intelligence is already getting smarter than us, at an exponential rate.
• We’ll make AIs into a general purpose intelligence, like our own.
• We can make human intelligence in silicon.
• Intelligence can be expanded without limit.
• Once we have exploding superintelligence it can solve most of our problems.

In contradistinction to this orthodoxy, I find the following five heresies to have more evidence to support them.

• Intelligence is not a single dimension, so “smarter than humans” is a meaningless concept.
• Humans do not have general purpose minds, and neither will AIs.
• Emulation of human thinking in other media will be constrained by cost.
• Dimensions of intelligence are not infinite.
• Intelligences are only one factor in progress.

If the expectation of a superhuman AI takeover is built on five key assumptions that have no basis in evidence, then this idea is more akin to a religious belief — a myth. In the following paragraphs I expand my evidence for each of these five counter-assumptions, and make the case that, indeed, a superhuman AI is a kind of myth.


American Media Are Getting People at Home Ready for War With North Korea

[Note:  This item comes from friend Ed DeWath.  DLH]

American Media Are Getting People at Home Ready for War With North Korea
By Matt Novak
Apr 25 2017

Remember what it felt like a couple of months ago when you, as an American, didn’t give much thought to North Korea? I’d like you to try and remember that feeling over the next couple of weeks, because the US government wants that to change. The past month has shown a tremendous shift in news coverage about North Korea. And that’s no accident.

President Donald Trump continues to beat the drums of war, and the media are going along with him. Trump doesn’t have any particular incentive to bomb North Korea or advocate for regime change in the country. It’s not even clear that Trump knows the leader of North Korea’s name. But Trump is above all a man who likes to be liked. And so far, the actions that have won him the most praise have been when he dropped a bunch of bombs on Syria.

Some talking heads on American TV will insist that we don’t want war. But with a subtle shift in narrative, there comes a sense that “we,” as the world’s police, have no other choice. Once the media talking heads get far enough down that road, constructive criticism of potential war (both at the dinner table and the water cooler) become loaded with questions of “well, if you love North Korea so much, why don’t you move there?” 

And just as we saw in the lead up to the second Iraq War in 2003, American military action will begin to feel inevitable. Talks about diplomatic options will be brushed away with “we tried that” and there will be no other course but war. 

Then come the slogans: These colors don’t run. Love it or leave it. Liberate Iraq. Or, in this case, Liberate North Korea. And no matter how many times you insist that while you would love to see Kim Jong-un ousted yet don’t want to see war, you will be called a naive traitor—maybe even that greatest of insults, unAmerican—who doesn’t understand how the real world works.

Can North Korea strike the US?

All you need to do is open up the New York Times to see the shift in how Americans now talk about the North Korean threat. In a story published last night, we’re told that there’s a growing sense of urgency, with the headline, “As North Korea Speeds Its Nuclear Program, U.S. Fears Time Will Run Out.”

Behind the Trump administration’s sudden urgency in dealing with the North Korean nuclear crisis lies a stark calculus: a growing body of expert studies and classified intelligence reports that conclude the country is capable of producing a nuclear bomb every six or seven weeks.

By the third paragraph the story is already imagining a hypothetical strike against a US city, in a scenario that we’ve heard off and on since the late 1990s whenever it’s politically expedient:

Now those step-by-step advances have resulted in North Korean warheads that in a few years could reach Seattle. “They’ve learned a lot,” said Siegfried S. Hecker, a Stanford professor who directed the Los Alamos weapons laboratory in New Mexico, the birthplace of the atomic bomb, from 1986 to 1997, and whom the North Koreans have let into their facilities seven times.

And it wouldn’t be the last time that the article cites this outrageous hypothetical that North Korea could strike US cities. The New York Times even drops in the possibility of North Korea hitting New York “one day.”

Unless something changes, North Korea’s arsenal may well hit 50 weapons by the end of Mr. Trump’s term, about half the size of Pakistan’s. American officials say the North already knows how to shrink those weapons so they can fit atop one of its short- to medium-range missiles — putting South Korea and Japan, and the thousands of American troops deployed in those two nations, within range. The best estimates are that North Korea has roughly 1,000 ballistic missiles in eight or so varieties.

But fulfilling Mr. Kim’s dream — putting a nuclear weapon atop an intercontinental ballistic missile that can reach Seattle or Los Angeles, or one day New York — remains a more complex problem.


The Struggle to Explain Things That Didn’t Happen: The Non-Existent Shift Away from Wages

[Note:  This item comes from friend David Rosenthal.  DLH]

The Struggle to Explain Things That Didn’t Happen: The Non-Existent Shift Away from Wages
By Dean Baker
Apr 24 2017

I see Noah Smith is struggling to explain “the mystery of labor’s falling share of GDP.” At the risk of jeopardizing good paying jobs for people with PhDs in economics, let me suggest that there is no mystery to explain.

Noah’s piece features a graph showing the labor share of GDP declining from a range of 64 to 65 percent in the 1960s and early 1970s to just over 60 percent in the most recent data. He then gives us several possible explanations for this drop. Let me give an alternative one, there was no drop or at least not much of one.

Suppose we look at the labor share of net domestic product. This is GDP after removing depreciation. This makes sense since deprecation is not something to be divided by labor and capital. It is the amount of output needed to replace worn out plant and equipment. The story since 1960 is below. (For those wanted to check the numbers, labor compensation comes from NIPA Table 1.10, Line 2; NDP from Table 1.7.5, Line 30.)

Cultural Evolution in the Anthropocene

[Note:  This item comes from friend Robert Berger.  DLH]

Cultural Evolution in the Anthropocene
By Joe Brewer
Apr 18 2017

I am a change strategist working on behalf of humanity, and also a complexity researcher, cognitive scientist, and evangelist for the field of culture design.

Where humanity is going, there are no roadmaps. The terrain is unlike anything we’ve seen before. The changes sweeping the Earth right now are literally planetary in scale and so filled with complexity that few among us even have a semblance of knowing what is actually going on. This makes it very difficult to navigate the troubled waters of the 21st Century.

Here are a few examples of things our species has not known in the three million years we’ve existed as “tool using” hominids:

• Emergence of a Globalized Economic System :: In the last 500 years, a vast web of intercontinental trade arose spanning several empires, evolving into nation-states, and now becoming a truly globalized meshwork of supply chains, trade agreements, human migration patterns, and so forth.
• Extraction and Consumption of Fossil Fuels :: The last time a species gathered up the waste products of a prior era and consumed them to grow itself we had a mass extinction event. And that was more than two billion years ago! I am referring to the cyanobacteria who excreted oxygen and changed the biochemistry of the Earth. Humans are doing this again by disrupting natural carbon cycles with the combustion of fossil fuels.
• Explosive Population Growth :: There are now more than 7.4 billion living human beings on Earth. Our population exploded in the last 150 years, well beyond anything in the history of our species. And now we are watching the rapid depletion of vital resources as this huge population gobbles them up — literally as food and metaphorically as the built environments of our globalized civilization.
• Crossing of Critical Planetary Boundaries :: The Earth has maintained incredible amounts of stability for billions of years through a vastly complex meshwork of self-regulating feedbacks. Thresholds exist (called “planetary boundaries” by the earth scientists at the Stockholm Resilience Institute) that if crossed will remove this self-regulatory capacity. There is now ample evidence that human activities have pushed us beyond as many as four of these critical operating boundaries for a globalized economic system.
• A New Pace and Scale of Complexity :: Most of our history was lived out in small tribal communities where each person might know as many as 150 people. Rapid changes, when they happened, were either catastrophic (volcano wipes out village) or disruptive (drought conditions cause the tribe to migrate into a new area). But they never happened at the pace and scale we live with today. As complexity scientists will be quick to tell you, scale matters a great deal! There are qualitative differences in the interdependencies, cascading patterns, and unexpected phase transitions for large, volatile dynamic systems — intuition about smaller systems misleads and confuses more than it helps.
• Entering A New Geologic Era :: Humans have enjoyed an unusual period of climate stability in which to birth agriculture, build cities, weave trade networks, and grow economic empires. That 11,000 year period is known by geologists as the Holocene. The same geologists now agree that human activities brought the Holocene to an end in the 20th Century. We are now in the “age of humans” dubbed appropriately as the Anthropocene. Our footprints on the Earth will be visible in the very chemical makeup of the planet’s crust hundreds of millions of years from now. This is how unprecedented this time in history really is.