Tuesday, July 14, 2009

Giving Clyburn a Chance at the FCC

Co-authored with Ben Scott

Mignon Clyburn, Barack Obama's choice to fill a vacant Democratic seat at the Federal Communications Commission, will face a confirmation hearing Wednesday in the Senate Commerce Committee.

As the third Democrat on the five-member commission, Clyburn would cast a deciding vote for President Obama's bold technology agenda. And yet, Clyburn's nomination has met with a mixed reaction from FCC-watchers. Some fear she may already have pitched her tent with the entrenched special interests that have controlled media policy for decades.

It's been asked: What do we know about her position on key issues such as Net Neutrality? Can she be counted on to break open wireless markets for more innovation and consumer choice? Will she stand with Obama's reform agenda and help overhaul an agency that's long been in the thrall of corporate lobbyists?

Getting to Know Mignon Clyburn

Here's what we do know: Clyburn is the daughter of powerful South Carolina Rep. James Clyburn (D-SC), the House Majority Whip. Clyburn's nomination for the FCC post was met with apprehension about her family ties and her history as chair of South Carolina's Public Service Commission, which is reputed to be close to the phone and cable industries.

The big fear among open Internet activists is that a president who has said he will "take a back seat to no one on Network Neutrality" may have just nominated an FCC commissioner who's not even riding in the same car.

As veterans of the Net Neutrality wars and backers of many of the most progressive ideas in the Obama platform on technology and media, we encourage the Clyburn critics to take a step back. We don't know for certain how Clyburn will think, act and vote as an FCC commissioner. But there are reasons for optimism.

The Reform Opportunity

The path before her is pretty clear, and the opportunity for reform is profound. The FCC is now crafting a national broadband plan to deliver Internet access to every American, weighing reforms to free up valuable wireless spectrum, and undertaking crucial efforts to diversify media ownership.

Obama's technology agenda -- the blueprint for the new FCC -- strongly supports an open Internet, universal Internet access and more voices in the media. In Congress, the leadership within the Senate and House commerce committees has aligned itself with the president's agenda. Others in Congress have already asked for an investigation of anti-competitive communications markets long under the control of powerful media conglomerates.

Clyburn could follow the well-worn path toward upholding the status quo, but she has the opportunity to become a strong leader for change, a voice for new stakeholders that have long been out of the picture at the FCC. With a broader frame in mind, let's take a look at what her nomination represents.

The Luxury of High Expectations

As the first African-American woman commissioner, she represents progressive change that is deeply in sync with the transformation of D.C. politics that Obama is trying to realize.

Working alongside new FCC Chairman Julius Genachowski as well as Commissioner Michael Copps, a longtime public champion, Clyburn has the opportunity to diversify media ownership to include women and people of color long absent from corporate media boardrooms.

Communities of color, the urban poor and rural residents are those most often stranded on the wrong side of America's digital divide. Clyburn has a historic opportunity to help close the gap.

The open Internet has been under assault from the same Internet access companies that routinely pass over these communities. Clyburn can stand alongside Obama, Genachowski and Copps in support of an affordable, free-flowing Web that discriminates against no one.

Naturally, if the commitment to these ideals falters, we'll be among the first to cry foul. But for now, we have the luxury of high expectations.

She could be an agent of change at the FCC like none before her. She deserves that chance.

Helping Iran Hunt Down Iranians

What more can be said about the Internet's role in the popular uprising that has shaken the Iranian regime since its widely contested election?

The power of open social networks is undisputed. The Internet's three favorite offspring -- Twitter, Facebook and YouTube -- have been heralded by mainstream media as flag-bearers for a new era of citizen journalism and activism.

But the open Internet's power cuts both ways: The tools that connect, organize and empower people can also be used to hunt them down. The companies that profit from sales of this technology need to be held to a higher standard.

Of particular concern is the use -- and easy abuse -- of Deep Packet Inspection. DPI is a content-filtering technology that allows network managers to inspect, track and target content from users of the Internet and mobile phones, as it passes through routers on the information superhighway.

'Lawful Intercepts' in Lawless Regimes

European and North American companies are selling DPI to enable their business customers "to see, manage and monetize individual flows to individual subscribers." But this "Internet-enhancing" technology has been sought out by regimes in Iran, China and Burma for more brutal purposes.

TehranUBasij forces target computers during a June 14 midnight raid on Tehran University
Nokia Siemens Network reportedly set up a part of this technology in Iran for "lawful intercept," only to have Tehran allegedly use it to stifle free speech, pinpoint the location of online protesters and arrest them.

Nokia Siemens' attempts to dodge responsibility for Iran's reported abuse of their technology is typical corporate hand-washing.

"If you sell networks, you also, intrinsically, sell the capability to intercept any communication that runs over them," a Nokia Siemens spokesman told the Wall Street Journal. He added that the company "does have a choice about whether to do business in any country."

A Growth Industry

Had Nokia Siemens chosen not to sell spying technology to Iran, another global competitor likely would have taken its place. This list of DPI providers includes Zeugma Systems (Canada), Camiant (USA), Openet (Ireland), Procera Networks (USA), Allot (Israel), Ixia (USA), AdvancedIO (Canada), Arbor Networks (USA) and Sandvine (Canada), among others.

These companies typically partner with Internet Service Providers to insert DPI along the main arteries of the Web. (Sandvine, for example, just announced a "global distribution agreement" with -- you guessed it -- Nokia Siemens Network.) All Net traffic in and out of Iran travels through one portal -- the Telecommunications Company of Iran -- easing the use of DPI.

Yankee Group analysts assert that U.S. ISPs are currently deploying advanced DPI equipment, although many do not disclose it publicly. Through these secret arrangements both in the United States and abroad, the DPI industry is experiencing remarkable growth.

The Nature of the Beast

"A company has a nature. Its nature is to produce economic values and wealth for its shareholders," Professor Larry Lessig often says in lectures about corporate ethics and government corruption. "A tiger has a nature, and that nature is not one you trust with your child."

And naturally, the public shouldn't expect corporations to look out for our best interests. Public policy is designed for that role -- to make it profitable for corporations to behave in ways that don't harm the rest of us.

Similarly, the tech and communications companies that are selling content-sniffing tools to governments can't be trusted to safeguard against the horrific state crimes we've witnessed in Iran.

When network operators use Deep Packet Inspection, the privacy of Internet users is compromised. But in government hands, invasion of privacy can lead to human rights violations.

Setting the Bar High for DPI

"Internet Censorship is a real challenge, and not one any particular industry -- much less any single company -- can tackle on its own, " Rep. Mary Bono Mack wrote on Wednesday in a letter to Rep. Henry Waxman, chair of the House Commerce Committee. "Efforts to promote freedom of expression and to limit the impact of censorship require both private and public sector engagement."

Rep. Bono Mack's letter echoes Free Press' call on June 22 for a congressional inquiry into the issue. But this is just a start.

Before DPI becomes more widely deployed around the world and at home, the U.S. government ought to establish legitimate criteria for authorizing the use such control and surveillance technologies.

The harm to privacy and the power to control the Internet are so disturbing that the threshold for using DPI must be very high.

The use of DPI for commercial purposes would need to meet this high bar. But it is not clear that there is any commercial purpose that outweighs the potential harm to consumers and democracy.