But rarely do I get to see the meme in action twice in one week.  First, of course, was the tech response to SOPA and PIPA, which temporarily (emphasis on temporarily) stopped the ill-conceived bills (but not the underlying concepts) dead in their tracks. Now comes yesterday’s decision in United States v. Jones requiring police to obtain a search warrant before placing a GPS device on a suspect’s car.   The difference between the Luddite view of many in Congress to SOPA and the recognition of changing reality in Jones could hardly be starker.  Take a look at YouTube video of the House markup of SOPA.   Pity Lamar Smith and Mel Watts.  Then consider the statements below from the concurring opinions of Justices Sotomayor and Alito in Jones.  Who would you rather have deciding the future of the Internet and your right to privacy on it?  To paraphrase the best political bumper sticker ever, from the 1991 David Duke-Edwin Edwards Louisiana governor’s race: Vote for the Court. It’s Important.

Forgive the long quotes below.  The bold and italics are mine.

SOTOMAYOR, J., concurring

. . . I agree with JUSTICE ALITO that, at the very least, “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” . . .

In cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention. GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. See, e.g., People v. Weaver, 12 N. Y. 3d 433, 441–442, 909 N. E. 2d 1195, 1199 (2009) (“Disclosed in [GPS] data . . . will be trips the indisputably private na­ture of which takes little imagination to conjure: tripsto the psychiatrist, the plastic surgeon, the abortion clinic,the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meet­ing, the mosque, synagogue or church, the gay bar and on and on”). The Government can store such records and efficiently mine them for information years into the future. . . . And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility.”

Awareness that the Government may be watching chills associational and expressive freedoms. And the Govern­ment’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.” . . .

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably ex­pect that their movements will be recorded and aggregat­ed in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques. . . . I would also consider the appropriateness of entrusting to the Executive, in the absence of any over­sight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance,” . . .

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expecta­tion of privacy in information voluntarily disclosed to third parties. .  . . This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Gov­ernment of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith, 442 U. S., at 749 (Marshall, J., dissenting) (“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes”); see also Katz, 389 U. S., at 351–352 (“[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitu­tionally protected”). . . .

JUSTICE ALITO, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN join, concurring in the judgment.

This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a21st-century surveillance technique, the use of a Global Po­sitioning System (GPS) device to monitor a vehicle’s move­ments for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-century tort law. . . .

. . . Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce sig­nificant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this develop­ment as inevitable.

On the other hand, concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions. This is what ultimately hap­pened with respect to wiretapping. After Katz, Congress did not leave it to the courts to develop a body of Fourth Amendment case law governing that complex subject. Instead, Congress promptly enacted a comprehensive statute, see 18 U. S. C. §§2510–2522 (2006 ed. and Supp.IV), and since that time, the regulation of wiretapping has been governed primarily by statute and not by case law. . . .

Recent years have seen the emergence of many new devices that permit the monitoring of a person’s move­ments. In some locales, closed-circuit television video monitoring is becoming ubiquitous. On toll roads, auto­matic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen. Perhaps most significant, cell phones and other wireless devices now permit wireless carriers to track and record the location of users—and as of June 2011, it has been reported, there were more than 322 million wireless devic­es in use in the United States. For older phones, the accuracy of the location information depends on the den­sity of the tower network, but new “smart phones,” which are equipped with a GPS device, permit more precise tracking. For example, when a user activates the GPS on such a phone, a provider is able to monitor the phone’s location and speed of movement and can then report back real-time traffic conditions after combining (“crowdsourc­ing”) the speed of all such phones on any particular road. Similarly, phone-location-tracking services are offered as “social” tools, allowing consumers to find (or to avoid) others who enroll in these services. The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.

In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely under­taken. The surveillance at issue in this case—constant monitoring of the location of a vehicle for four weeks—would have required a large team of agents, multiple vehicles, and perhaps aerial assistance. Only an investi­gation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap. In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. . . .  A legislative body is well situ­ated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a com­prehensive way.

To date, however, Congress and most States have not enacted statutes regulating the use of GPS tracking tech­nology for law enforcement purposes. The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a rea­sonable person would not have anticipated.

Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. See Knotts, 460 U. S., at 281–282. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and cata­logue every single movement of an individual’s car for a very long period. . . .

This is not a novel idea.  The FCC has in the past exercised its power to invalidate commercial contracts and require a “fresh look” when market changes warranted. No doubt some will say that this idea can’t work because carriers have built a subsidy into the price of the mobile devices that they bundle with their service, and allowing customers to end their contracts early will deprive the carriers of the right to recover the subsidy.  In fact, it will give the carriers even more of an incentive to engage in transparent and pro-consumer behavior because they will have more to lose.

The importance of customer lock-in and the concept that customers should have access to everything on the Internet (whether they want it or not) are being tested today.  Since early in 2011, Metro PCS has offered a $40 per month mobile broadband plan that many have derided as “Internet lite” because it has a cap on downloads and limits the customer’s access to streaming video and a variety of applications and websites.  The service is already the subject of an informal complaint at the FCC, with public interest groups charging that it constitutes a violation of the net neutrality rules.  But maybe it should be viewed as a noble experiment instead.  The plan’s potential for competitive harm is minuscule.  Metro PCS has no market power – it’s the fifth largest U.S. wireless carrier, with less than 5% of customers.  And it doesn’t require any contract, so there’s no customer lock-in.  There may be questions about the transparency of the plan’s parameters (see the FCC complaint), but if customers don’t like the plan, they can vote with their money and move to another carrier.  If a new service such as the plan were being offered in any other industry, it wouldn’t be a cause for concern.  But it is under attack because it is viewed by many as the camel’s nose under the tent of “access by every customer to everything on the Internet.”  I don’t know what the outcome will be, but I would be interested in seeing how many customers have signed up for the service, and how the churn rate compares to other plans and other carriers.

There are at least three reasons why it will be difficult for mobile broadband carriers to seize the soul of the smartphone.  The first is the impact of a regulatory requirement that is independent of the net neutrality rules.  In the 2008 700 MHz spectrum auction, the FCC mandated that the buyer of one band of the auctioned spectrum, the C Block, operate that part of its network as a nationwide open platform for devices, content and applications, subject to “reasonable network management.” The FCC was vague on the actual requirements for openness, and on the meaning of “reasonable network management.”  But Verizon Wireless bought the spectrum and is using it for rollout of its 4G LTE network.  Right now, VZW’s LTE network is the gold standard for mobile broadband in the U.S.

Even if the FCC rules were struck down and Verizon Wireless wanted to adopt restrictive practices, it couldn’t adopt them network-wide.  At worst, it could only impose restrictive conditions on its 3G network customers.  The resulting bad publicity would be a nightmare for VZW. How could it justify treating 3G customers – who are already getting slower speeds and fewer applications – worse than its 4G customers?

The second reason is that there are two large, nationwide wholesale carriers in the process of building out networks – Clearwire and LightSquared.  Both have announced that their networks will be open, so retail service providers riding their networks can offer any sort of open or closed service.

The other large national carriers – AT&T, Sprint, and T-Mobile – have to compete with Verizon’s open access LTE network and the coming Clearwire and LightSquared networks.  They will have a strong market-based incentive to adopt or maintain open mobile wireless platforms.  If they don’t, customers are likely to perceive their networks as less friendly or desirable, and either leave or not be willing to pay as much for the service.

The C block requirements resulted from a Google initiative.  Google asked the FCC to impose  openness requirements, and in order to entice the FCC Google committed to meeting the minimum reserve of $4.5 billion for the spectrum.  To Google’s great relief, after it made that bid Verizon topped it and got the spectrum.  Google’s move was brilliant.  It spent very little to get a test bed to shed light on the costs and benefits of mobile network open internet provisions on a national scale.  Up to now, the experiment seems to be working.  I’m not aware of any complaints by device manufacturers or by application, content or service providers that Verizon is hampering or blocking their offerings on its LTE network.  And if Verizon’s LTE network is as crucial as I think it is, Google also created a Trojan horse for net neutrality across the board, on wired and wireless networks alike.

The third reason why mobile broadband providers may not have the ability to engage in conduct that would violate the net neutrality rules lies in the nature of the relationship between wireless customers and their smartphones.  It’s personal, personal in a way that the user’s relationship to his PC or her Macbook is not.  Why is this important?  Well up to now net neutrality has been debated largely among academics and policy wonks, with occasional input from technical experts such as Robb Topolski, who first figured out in 2007 that Comcast was interfering with its customers’ BitTorrent transmissions.  Imagine if tomorrow a mobile broadband provider were to block access to Citibank online accounts because it had signed a deal with Bank of America, or selectively degraded transmissions from a website such as YouTube or a streaming service such as Netflix.  The conduct would almost certainly be discovered quickly, and users would be outraged that their carrier was trying to interfere with the ways they used their smartphones.  Thousands, perhaps tens of thousands, of affected customers would use their smartphones to publicize the conduct and organize a response.  There has been a strong negative public response each time that possible net neutrality violations were publicized – think about the Comcast case, the Verizon text messaging case, or Madison River blocking VOIP service.  Given the closer relationship between users and their smartphones, there is every reason to believe that outraged users would be able to change the offending practice or, at a minimum, adversely affect the carrier’s market share (see Netflix).

So what is going to happen?  Well, I think the new FCC rules for mobile wireless will survive review by the DC Circuit, even if the tougher wireline net neutrality rules don’t.  There is a stronger jurisdictional argument for wireless because Title III of the Communications Act gives the FCC broad authority to regulate all wireless services.  I also think the Court will have a Goldilocks moment and affirm the substance of the mobile wireless rules against the wireless network operators’ arguments that they go too far and the public interest groups’ claims that they don’t go far enough.

But even if the court strikes the mobile wireless rules down, it may not make much difference.  In order to engage in practices that would harm competition or consumers and increase their own revenue, mobile broadband providers need to have not only the incentive but the ability.

Incentive – I’ll grant you they have that.  Ability, that is a different question.  Nobody really knows the answer.  It is possible that mobile wireless operators may not have the ability to discriminate in ways that benefit them economically.  There are at least three reasons why this may be so.  I’ll look at them in a future post.

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?

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

Dutch mobile operator KPN has announced plans to begin billing its customers based on the types of applications they are using.  This is not usage-based billing.  Rather, KPN intends to impose an extra charge for using Skype, Google Voice and other applications that compete with KPN’s own lucrative voice and SMS services.  It’s not clear whether KPN will also try to create a two-sided market in unaffiliated content and services on its network by imposing extra charges on customers using services that compete with the services of “partners” with whom KPN has entered into contractual arrangements.  For example, will Disney movies be accessible only for an extra fee, while no fee will be charged for films from Canal+?  How can KPN identify the offending customer transmissions?  Why, through deep packet inspection technology, of course.  That’s another can of worms the FCC is hoping to avoid opening for a while.

Could a KPN-type plan be tried in the U.S.?  Possibly.  Broadband Reports quotes an FCC spokesman as saying that the agency’s net neutrality rules would prohibit this type of application-based pricing.  But when I look at the specific provisions of the FCC order the spokesman cited, I have to conclude the answer is murky.

It’s not likely that AT&T Wireless, which needs FCC approval of its pending T-Mobile acquisition, will follow KPN’s lead.  Verizon Wireless couldn’t adopt such a plan network-wide without violating the licensing conditions of the 700 MHz spectrum it purchased at auction in 2008.  But one of the smaller carriers may want to take a flyer.  KPN’s approach is not that different from the walled garden, low bandwidth cap plan introduced by Metro PCS in January.  The FCC hasn’t acted on the complaint filed by Free Press and others about that Metro PCS plan, so maybe it’s waiting to see how the market develops.  Stay tuned.

First, the net neutrality debate will be the defining economic battle of the next decade, affecting not just the telecom industry but also large swaths of the U.S. economy.  The new FCC rules – whether they survive court review or not – are merely the latest skirmish in a war that began before the Telecommunications Act of 1996 and has accelerated and broadened every year since.  In fact, the net neutrality debate affects the market for any product or service that can be digitized and distributed over an electronic network.

Second, the U.S. net neutrality battlegrounds are shifting in 2011.  The FCC hopes it is out of the hot seat for now, but the intemperate (or perhaps finely calibrated) actions of carriers have already led to complaints and may force the FCC to act.  The Comcast/ Level 3 dispute will not go away and the wireless providers, having been given freer rein under the new rules than wireless carriers, are eager to test the limits of their freedom.  Metro PCS’s new “Internet Lite” offering is already the subject of an informal complaint to the FCC.  If other wireless carriers follow suit, the FCC may find itself revisiting the issue of wireless net neutrality much sooner than it hoped.

Now that the FCC has enacted its rules, the courts and Congress will have their turn at bat.  Don’t expect much from Congress.  Despite the bluster from a few members of the House of Representatives, Congress is unlikely to actually legislate on net neutrality, much less rewrite the Communications Act for the 21^st century. To mix sports metaphors, Congress will punt.  So that leaves the issue to the courts.  Don’t expect a final decision from the Supreme Court until 2013 at the earliest.  So we’ll be living with the FCC rules.

Finally, the internationalization of the net neutrality debate is not getting as much attention as it deserves.  As late as 2008, net neutrality was mainly a U.S. issue.  Since then, the UK,  Japan, Norway, Canada and a number of other countries have issued orders, consultations, guidelines or reports addressing aspects of net neutrality. The EU issued a report suggesting that nothing needs to be done now.  But just two weeks ago EU digital agenda commissioner Neelie Kroes called for BEREC, the umbrella group for European electronic communications regulators, to look further into issues related to net neutrality.  They’ll be investigating and issuing a new report at the end of the year.  No doubt their view will be influenced by developments like Dutch carrier KPN’s recent announcement that starting this summer it will be blocking some competitors’ chat, VOIP and streaming services unless mobile customers pay an extra fee.

A surprising feature of this internationalization is the degree to which national regulators explicitly acknowledge that they are looking at what their colleagues in other countries are doing.  This trend will continue as more governments recognize the key role that broadband networks play in development and innovation throughout all industry sectors.  The eventual national outcomes will depend on the political, economic, and social factors in each country – and particularly on the degree of facilities-based broadband competition.

I’m a big fan of FIOS, and have been a customer for over 3 years.  But at some point recently, Verizon changed the terms of the FIOS Acceptable Use Policy so it is now an AUP violation for me to “post off-topic information on message boards, chat rooms or social networking sites.” And Verizon can suspend or terminate my internet access for an AUP violation.

The net neutrality debate is heating up, maybe reaching a boiling point.  There are only a few weeks before the first comments are due in the FCC’s proceeding to decide whether net neutrality rules should be instituted for broadband platforms.  AT&T and other NN opponents have been repeating the mantra that the new rules are a solution in search of a non-existent problem.  Not so much anymore, thanks to Verizon.  There’s no doubt that the new AUP would violate the FCC’s proposed 47 C.F.R § 8.5, which provides that “[s]ubject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet.”

It’s going to be a lot harder to make that “just trust us” argument now.  You have to wonder what Verizon was thinking.  Of course, this is D.C., so maybe there’s a more nefarious explanation than mere stupidity . . . .