I have been giving thought to the invisibility of the Internet, and in particular, to the learned inability of lawyers to account for it.
I mean account for it in law. For example, the CRTC made the correct decision in Bell Mobility versus Benjamin Klass. The Commission decided that a video broadcasting application which rode on Bell Mobility’s transport layers did not cause those transport layers to transform themselves, by a nominalist exercize of legal defintion, into “broadcasting”.
Not so said Bell Mobility.
14. In Bell Mobility’s view, it is a broadcasting undertaking when offering Bell Mobile TV, and it is acting as a Canadian carrier offering a telecommunications service when providing wireless connectivity that enables its subscribers to view programming on their mobile devices.
Thus, in essence, when Bell Mobility offers a broadcasting application, the transport below it in the protocol stack is not, as the Commission asserted, governed by the Telecommunications Act with its common carrier obligations. No, it is broadcasting all the way down, so that the transport which delivers the signal is characterized properly as “broadcasting” and the bandwidth the application occupies is not Internet transport. The whole undertaking as far as the application and transport is concerned, is made into an indivisible undertaking of “broadcasting”, and Bell Mobility can wrap any discriminatory practice it wants to engage in under the cloak of Canadian cultural preference.
This was argued quite ably by Neal Finkelstein in the recent hearings before the Federal Court of Appeal in Toronto on January 19th in the appeal of the CRTC’s decision.
It is also an ingenious method to escape net neutrality provisions, by calling something ‘broadcasting” and thereby folding in the transport functions into the discriminatory regime established by the Broadcasting Act.
Anyone familiar with the architecture of the Internet would snort in derision when they heard this. When I have had occasion to test out some propositions of Canadian telecommunications carriers at, for example, the Board of Trustees of the American Registry of Internet Numbers, when I was on the receiving end of such arguments, the response was hoots and snorts. They had never heard such balderdash, in engineering terms.
But of course Internet engineers do not sit on regulatory Commissions. They just devise ways to around the mess created by lawyers.
So why is it possible to argue such engineering lunacy as proposed by Bell Mobility in the Klass case? The reason, as I have come very late in life to understand, is that the law could not give a damn about the Internet. It sees the communications world through two prisms or lenses. One is the Telecommunications Act, which emphasizes ideas on non-discrimination in similar types of traffic, and which fosters network interconnection, and the control of the economic and technical behaviour of carriers. The Broadcasting Act, whose devotees would like to ignore its original technical predicates as a system for controlling what were few voices in limited spectrum, is devoted to discrimination in favour of Canadian cultural production.
Do you remember Rick Moranis in the original Ghostbusters? He played the boring and obnoxious accountant, Louis Tully, whose mind had been taken over so that he could be the Keymaster, the paraclete of Zuul, an ancient Babylonian god of mayhem.
At some point in his demonic possession he has a line which says “there is no Tully, there is only Zuul”.
That is how I perceive the legal profession in its contemplation of the Internet. There is no Internet. There is only Zuul, or whatever legal kludgeware that informs their minds. It is a case of very profound and systemic déformation professionelle.
How can this gaping hole in understanding be fixed? I have argued before that we need Commissioners from backgrounds less associated with broadcasting, news and the law, and more with engineering. That would be a good start. Something more is needed, I think. It needs a Chief Technology Officer, of the kind that the FCC has. Commissioners and staff need to have some other source of guidance as to the technologies, in the absence of which they can be being snowed by carriers and broadcasters, and who could argue from a different and much need engineering perspective against the domination of argument by the twin spectacles which the law obliges lawyers to put on.
Is the Internet “broadcasting”? You might as well ask whether the Internet is composed of marzipan, or phlogiston, for all the sense that question makes in terms of engineering. Someone has to say that the question is ill-conceived, and others need to be required to heed the advice.