Mark Del Bianco

Susan Crawford, one of the more innovative thinkers around, had a piece in Sunday’s NY Times about why the lack of competition in wireline broadband is harmful, and why net neutrality rules are only part of the solution.  The longer version published in the Harvard Law & Policy Review is here.  Both are worth reading.

At the beginning of September, I received an invitation to be a panelist at Whittier Law School’s Smart Phone Law Symposium on November 4.  I thought the title was a cute play on the technology device du jour.  My view changed quickly.  The day I accepted the invitation, I left Reno, NV with my daughter Tracy to drive her car to Chicago, where she had to report for a new job.  We drove 2400 miles in three days and five hours, including stops in Jackson Hole, the Grand Tetons, Yellowstone National Park, Wall Drug, the Badlands, and Austin, MN, the self-proclaimed Spam (not spam) capital of the world.

When you drive that far, you have a lot of time to talk, think and observe.  Our conversations tended to revolve around politics, technology and law.  Not surprising, since Tracy does political field work, and I not only practice in the area of telecommunications and Internet law, but also teach a law school seminar on international telecom regulation.  We spent a good deal of time discussing the uses of social media, the explosive adoption of smart phones by Tracy’s generation and the changes that this was causing not just in politics, but throughout the economy.

We walked the smartphone walk on the trip, communicating through text messages, emails and Goggle + notices.  But we also made bank deposits (USAA Bank’s banking app does everything an ATM does except dispense cash), checked the time (we’ve both given up watches), listened to music when decent radio stations were scarce (Spotify), played trivia games (Google), took and sent pictures and videos of our trip, watched TV/video (Netflix streaming and YouTube), read books and documents (a PDF reader) and navigated (Google Maps).  And, of course, we had a flashlight.  One thing we did not use our smartphones for very much was to make voice calls.  We probably communicated with several dozen people on the drive; we didn’t speak to more than a handful.

The trip opened my eyes.  I realized that many of the legal and political changes we were discussing had been simmering for a long time, but were now being brought to the fore by the growing use of smartphones.  Even I, a relatively old guy, was using smartphones in numerous ways that replaced other devices and the limited-purpose networks they were connected to.  Of course, I’m doing similar things with my desktop PC, but the mobility makes the smartphone not just an always-on device, but an always-available device.  The gap between a smartphone and a PC is a qualitative difference more important than that between dial-up Internet and broadband in 1999.

By the time we reached Chicago, the idea of a symposium devoted to the law of the smart phone was no longer a cute concept, but an excellent prism through which to examine areas of the law that are undergoing fast change and the issues that are likely to be crucial in law and the economy the next few years.  The impact of widespread smartphone use – when combined with the 3 and 4G network speeds – will be even greater than the impact of widespread broadband has been in the last decade.

The question that interests me most as I watch these developments is, what rules will govern the networks to which the smartphones are connected.  Will the rules be legal rules or business rules? In either case, will the networks allow the same degree of freedom and innovation that users have come to expect on the wired broadband network and the various limited-purpose networks that the other devices being replaced by smartphones operate on?

Total Telecom reports that KPN Mobile is admitting that it is already scanning its Dutch customers traffic using DPI.  A number of providers have admitted being able to identify some VOIP traffic, and Madison River in the U.S. got in trouble for blocking VOIP traffic in 2005.  SMS services are apparently next.  TT says that KPN claimed its analyst conference last week to be “the first network provider that can determine if its customers use text over IP services, like WhatsApp.”

What will the Dutch Data Protection Authority do?  What will wireless carriers in other countries do? Stay tuned.