FCC Commisioner wants DRM, ISP filtering, new job

By Nate Anderson, Ars Technica
Dec. 14, 2008

Five commissioners head the Federal Communications Commission. Most of its decisions remain arcane and of interest only to specialists, but this year alone, the Commission has taken assertive steps against certain P2P throttling techniques and in favor of white space devices in high-profile cases have a direct impact on your end-user Internet experience. So, when one of the five commissioners gives a speec h (PDF) in which DRM is praised as "very effective," ISP filtering is portrayed as a Great Leap Forward, and a government partnership with the RIAA to "educate" schoolkids is promoted, it matters. Fortunately, however, it won't matter for too much longer.

Deborah Taylor Tate is one of the three Republicans on the Commission, and this week found her at the University of Pennsylvania, talking about intellectual property. As one of the handful of people voting on crucial issues that affect the US telecommunications sector, one would hope to see clear thought, sharp analysis, and a grasp of the relevant facts. Some concern for the "public interest" might not be out of order, as well.

It was therefore disturbing to see that, three paragraphs into her talk, Tate was already trotting out 20-year old industry propaganda points about the $250 billion a year the US loses to "piracy" (broadly construed), even after that particular number was thoroughly debunked by Ars months ago and never had much in the way of evidence behind it.

As Washington Editor Julian Sanchez pointed out in that piece, "These statistics are brandished like a talisman each time Congress is asked to step up enforcement to protect the ever-beleaguered US content industry. And both [including a separate figure on job losses], as far as an extended investigation by Ars Technica has been able to determine, are utterly bogus."

Sadly, the speech goes downhill from here.

FCC <3 filters?

The FCC has little to do with DRM, so Tate's views on its effectiveness hardly matter. She did say that modern DRM schemes were "surprisingly complex," a statement with which we would agree.

What does matter is the Commission's take on network issues like ISP filtering. AT&T has agreed in principle to filter its network for copyrighted content, while NBC Universal has pushed hard for such filtering to happen; these are not merely theoretical issues.

Tate praises the "cooperation of industry players and ISPs" that has "helped stem the flow of piracy, while minimal regulation was needed" (she's referring to universities who have installed various filtering systems to curtail P2P). Such filtering means that the FCC would have to allow some shockingly "non-neutral" behavior, but Tate is fine with that. More than fine, in fact—she says that ISP filtering illustrates "the positive side of network management."

Some people don't get this, Tate says, and keep complaining about the "restriction of lawful uses of the Internet." This is the point at which most political officials would at least nod in the direction of such concerns, but not here. Tate's approach to those who think this way is to suggest an attitude change. Instead of worrying about surveillance, civil rights, or unintended consequences, "The focus should be on how network management can help reduce illegal uses of the Internet," she says, "allowing operators to effectively identify and remove pirated content traveling across their platforms."

That's certainly a concern, but why should it be the focus of the network management debate? Oh, right, because we're losing $250 billion a year to piracy.

What's odd about this entire filtering argument is that Tate at one point even admits it wouldn't work. Encrypt your traffic and the contents are hidden. There are limited workarounds that depend upon the protocol in use, but realtime content analysis or watermark detection on a broad scale is simply not going to happen at ISP-level wireline speeds when the traffic is encrypted.

Tate recognizes that "encrypting the file" blocks most content analysis schemes, but she argues that "other methods, including digital fingerprinting, will ultimately find the material." Digital fingerprinting can identify clips even after they have been through multiple transformations, cropping, compression, and color shifting, but it doesn't have anything to identify so long as traffic remains encrypted.

Such leaps in logic mar the speech in numerous places, though perhaps this is simply a crafty way for Tate to prove her underlying point: the market always knows better than the regulators.

The counterpoint to this might be: it's time for some better regulators.

Humble regulation

Remember that bit above where Tate talks about "minimal regulation"? This is important to her whole approach, since government involvement in markets is not ideal. Tate describes herself as a "humble regulator" who wants to "let the market work as much as possible." When a problem arises, we should "facilitate a market solution, rather than governmental intervention." One can't help but think of a certain president who promised a "humble foreign policy" of his own before delivering something quite different, and the same seems to be true of Tate's promise.

Regulation and legislation fit her definition of "humble" so long as they serve the interests of content owners, as though the FCC as an agency is charged with overseeing corporate welfare alone and not setting ground rules for the confusing tangle of interests in US business, academic, and private life.

This is why Tate can rail against regulation but immediately praise the Higher Education Opportunity Act, which forces all US colleges and universities that take federal funds (some holdouts like Hillsdale do not) to educate students about copyright and to make plans for legal alternatives to filesharing.

Her next section talks up the FCC E-rate program that helps schools pay for Internet access; it's a $2 billion a year federal program and Tate wants to make sure that, in the future, any school that takes the money needs to ensure "that they are using this access only for legal purposes." In this case, that means education against piracy, and Tate praises a government partnership "with parties such as RIAA and IKeepSafe to ensure that these tools are put into place."

You don't have to fly the Jolly Roger to detect the whiff of hardcore ideology here; regulation that I like is "humble" and necessary and minimal; regulation that I don't like is a huge government intrusion into people's lives.

Thus, the whole Comcast/P2P debacle is redefined as a triumph of market forces, not as a prudent regulatory intervention. In Tate's version of the story, Comcast and BitTorrent (the company) "came to a solution of how to manage Comcast's network without harming BitTorrent users, and both were better off for it."

Without the FCC having tackled that case in the first place, of course, none of this was likely to happen, and the rapprochement with BitTorrent came only as Comcast tried to head off FCC action. And the particular deal with BitTorrent actually had little to do with the final FCC outcome, anyway. While the FCC did avoid "regulating" network neutrality, it certainly didn't stay on the sidelines or out of the market.

And "markets" are complicated; remember that one issue in the Comcast case was that video distributor Vuze was having its legal product affected by the Comcast throttling, while non-P2P-using video companies were not. Standing up unequivocally for one industry's wants has ramifications for other industries, not to mention the huge pieces of American life and leisure that have little to do with "industry" at all.

Goodbye to all that

Tate won't be around for much longer at the FCC. Frankly, given statements like "digital fingerprinting and watermarking would not be possible if net neutrality is enforced in its harshest form," that looks to be a good thing.

On a regular basis, the FCC deals with complex issues that have widespread ramifications for the entire US Internet-using populace. Having commissioners who feel that the government has a duty to partner with and back educational classroom content from the RIAA; who really believe that ISP filtering is so unproblematic we can stop considering objections; and who think that universities worry about file-swapping because tuition might be raised to pay for the needed "expansion of storage capabilities" (huh?) isn't good for the FCC and isn't good for America.

On the other hand, it might be good for Tate; no doubt plenty of rightsholder-backed lobby groups would love to have a former FCC commish on the board, and Tate's speech could hardly be better pitched as a job application.