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Abstract:
There are two kinds of legal rules for communications networks, such as the Internet and the telephone system. Interconnection rules define how and when networks must exchange traffic with each other, and non-discrimination rules prevent networks from favoring some customers' traffic over others. Each approach has unique strengths and weaknesses. The distinction has never been fully appreciated, even though regulators have imposed both requirements many times.

Non-discrimination questions predominate in communications and Internet policy today, thanks to the high-profile battle over "network neutrality" rules for broadband networks. Yet both sides in the network neutrality debate are mistaken. The central challenge of our era of digital convergence is not non-discrimination, but interconnection. Technological and marketplace developments threaten to undermine the open connectivity that feeds the Internet's extraordinary dynamism. A renewed emphasis on interconnection could better address the concerns that animate the network neutrality debate. At the same time, it could avert a disastrous balkanization of the Internet, which otherwise looms as a real possibility.

In short, non-discrimination was crucial in the old era of scarcity; interconnection is the essential input of the new age of abundance. The central mandate for the emerging field of network infrastructure policy should be the one eloquently articulated by E.M. Forster: Only connect.

Internet, telecommunications, convergence, interconnection, network neutrality, broadband

Abstract:
The federal government has long controlled the allocation and assignment of electromagnetic spectrum, considered the lifeblood of wireless communication. Critics of government spectrum licensing advance two alternatives: exclusive property rights and unlicensed sharing through "spectrum commons." Yet both sides fail to come to grips with an essential point: there is no such thing as spectrum. It is an intellectual construct whose utility is rapidly decreasing as technology develops. Because spectrum is not a concrete thing, oft-used analogies to land or to natural resources break down.

There is a vast new communications space emerging, whose full extent is unknown. Proposals based on spectrum as a physical asset denominated by frequencies artificially constrain mechanisms that exploit this "supercommons," producing inefficient outcomes. A better approach is to draw analogies to legal domains that do not presuppose ownership, such as tort. A universal communication privilege, allowing anyone to transmit anywhere, any time, in any way, should be the baseline rule for wireless communication. Liability backstops and safe harbor mechanisms can effectively prevent ruinous interference, while efficiently resolving boundary disputes.

The supercommons approach properly refocuses wireless regulation away from spectrum and toward the devices used for communication. It can operate alongside the property and commons regimes, which are just different configurations of usage rights associated with wireless equipment. Bandwidth need not be infinite to justify a fundamental reconceptualization of the spectrum debate. Even with real-world scarcity and transaction-cost constraints, a default rule allowing unfettered wireless communication would most effectively balance interests to maximize capacity. Wireless could be an even more significant platform for innovation, user empowerment, and value creation in the twenty-first century than it was in the twentieth.

spectrum, wireless, communications, regulation, commons, telecom, telecommunications, supercommons, property rights, technology

Abstract:
Today, communications regulators mechanically apply outmoded categories to novel converged services. As a result, they create irresolvable contradictions and force hair-splitting distinctions that seldom hold up under the strain of judicial review or market forces.

Policy-makers should reformulate communications policy around the technical architecture of the Internet itself, which is based on an end-to-end design and a layered protocol stack. Horizontal service and geographic classifications should be reconceived in terms of four layers: content, applications or services, logic, and physical infrastructure. Different policy approaches should be used for each layer, and regulators should turn their attention from pricing to the openness of interfaces between layers and competing services.

The layered model would make many of the conflicts that bedevil regulators more tractable. It would bring important issues to the surface, and would put communications policy on a sound footing for the future.

telecommunications, layers, VOIP, layered model, Internet policy, convergence

Abstract:
If there is a sector of the economy that should embrace network-based thinking, it is telecommunications. Surprisingly, the opposite is the case. The leading firms building telecommunications and Internet infrastructure increasingly emphasize consolidation, hierarchy, and exclusive control, rather than collaboration and decentralization. Regulators are dismantling legal frameworks that once promoted openness and interconnection, in favor of misguided efforts to incent proprietary investment. And many scholars, even those challenging the current drift of policy and business models, embrace a static worldview that is a relic of earlier eras. Network-based strategies are thus hard to find today in the so-called "network industries," even as such ideas flourish in adjacent digital information markets. This chapter explores the origins of this paradox, describes its manifestations in the legal and business environment, and traces a more hopeful future.

telecommunications, Internet, network

Abstract:
A rising tide of video peer-to-peer (P2P) activity is already beginning to affect data networks. And video P2P traffic will inexorably grow in the years ahead. Video P2P will expand beyond unauthorized sharing of commercial prerecorded content, becoming a significant driver of broadband usage and potentially creating new revenue streams. Meanwhile, because of its sheer bulk and technical characteristics, video P2P traffic will place significant strains on broadband networks. Thus, video P2P will influence both the outputs and the inputs of the Internet of the future.

Peer-to-peer, P2P, video, BitTorrent, network engineering

Abstract:
Two forces are in tension as the Internet evolves. One pushes toward interconnected common platforms; the other pulls toward fragmentation and proprietary alternatives. Their interplay drives many of the contentious issues in cyberlaw, intellectual property, and telecommunications policy, including the fight over network neutrality for broadband providers, debates over global Internet governance, and battles over copyright online. These are more than just conflicts between incumbents and innovators, or between openness and deregulation. Their roots lie in the fundamental dynamics of interconnected networks.

Fortunately, there is an interdisciplinary literature on network properties, albeit one virtually unknown to legal scholars. The emerging field of network formation theory explains the pressures threatening to pull the Internet apart, and suggests responses. The Internet as we know it is surprisingly fragile. To continue the extraordinary outpouring of creativity and innovation that the Internet fosters, policy-makers must protect its composite structure against both fragmentation and excessive concentration of power.

This paper, the first to apply network formation models to Internet law, shows how the Internet pulls itself together as a coherent whole. This very process, however, creates and magnifies imbalances that encourage balkanization. By understanding how networks behave, governments and other legal decision-makers can avoid unintended consequences and target their actions appropriately. A network-theoretic perspective holds great promise to inform the law and policy of the information economy.

Internet, communications, broadband, governance, networks, network formation

Abstract:
Communications networks are the basic infrastructure of the digital age. The future of news, business, interaction, entertainment, health care, education, and many other areas will be built on top of these platforms. Network infrastructure is the dividing line between the old physical economy of scarcity and the new information economy of abundance. The legal framework for networks will therefore shape not only the telecommunications businesses that provide connectivity, but also the applications, services, content, and user activities that depend on it.

Unfortunately, communications networks are entering a vast legal grey area. As telecommunications and media converge into the Internet, they are escaping from the regulatory frameworks of the Communications Act of 1934. In its effort to engage the Internet, the Federal Communications Commission (FCC), the regulatory agency responsible for communications, has backed its way into a dead-end statutory theory that provides insufficient basis for effective regulation.

The solution lies within the Communications Act itself, but not where the FCC and others have been looking. The essential requirement for a flourishing network infrastructure platform is open interconnection. By locating its authority to regulate the Internet in its obligations to oversee interconnection under Title II of the Communications Act, the FCC could reorient communications law for the challenges of a new era.

Internet, FCC, Communications, Broadband, Telecommunications Act, Information Services, Ancillary Jurisdiction

Abstract:
We live in a world of increasingly universal connectivity. Yet our legal system presumes that people are isolated from one another. In a diverse array of doctrinal areas, law encodes the assumption that direct tracking of individual activities is the exception, rather than the rule. With the diffusion of new technologies, this expectation will be undermined.

A profusion of networked sensors will pose novel challenges for many areas of the law. Hundreds of millions of camera-enabled mobile phones and networked webcams are already in the hands of individuals throughout the world. Billions of wireless radio-frequency identification tags will soon be deployed. Location-sensing capabilities will be built into a growing range of equipment. Intelligent handheld digital devices will turn every individual into a networked information gathering and dissemination point. Inadvertent private actions, rather than conscious government surveillance, will increasingly dominate the tracking and monitoring of the physical world and its inhabitants.

A common initial response will be to ban or restrict the technologies that threaten settled expectations. Yet the sensors will not be stopped so easily. In the end, social norms will define the canvas upon which law operates to regulate information exchanges. Against that backdrop, law will gradually evolve to accommodate changed circumstances. The best way to avoid conflicts and uncertainties along the way will be to surface the hidden assumptions that technology is calling into question.

technology, sensors, privacy, social norms, cameraphones, RFID

Abstract:
As digital networks proliferate, standardized interfaces will define the economic and normative dynamics of markets. In other words, standardization is regulation. Regulatory mechanisms must evolve to emulate the best aspects of the standard-setting process. The Federal Communications Commission (FCC) should remake itself as a standards organization. Instead of viewing standardization as peripheral to its core mission, the FCC should catalyze adoption of open standards that promote its regulatory objectives.

A standards-based approach offers better solutions to the novel issues the FCC now faces, such as network management practices of broadband access providers and unlicensed wireless devices adjacent to broadcast television frequencies. Scholars have begun to appreciate the importance of technical standards in regulating the behavior of communications and information technology firms. However, they have only considered possibilities in which government either subsumes or defers to private standards-setting bodies. This article shows how regulators can see themselves as participants in the standards marketplace. Such an approach will allow the FCC to provide necessary "safe harbors" for development of technical solutions to important public policy disputes.

Standards, Internet, Communication, FCC, Regulation

Abstract:
It is an article of faith that the computer industry thrives in the absence of government regulation. This conventional wisdom is wrong. Federal Communications Commission (FCC) rules touch every personal computer ever made. Over the last quarter-century, the FCC has steadily increased its influence over personal computing devices and applications. And the Internet's arrival only accelerated this trend. Perhaps surprisingly, though, the Federal Computer Commission has largely been a positive force in the technology sector.

The FCC is now poised to take several actions that could shape the future of the Internet and the computer industry. Willful blindness about the FCC's role will only foster confusion and poor decision-making. Exposing the Federal Computer Commission provides a foundation for more reasoned policy approaches. The fate of a dynamic and important set of industries should not be decided under the influence of a myth.

FCC, communications, regulation, telecommunications, computer law, Internet