October 4, 2007  ·  Lessig

The wires are sparking with news of the GAO report (pdf) that FCC insiders routinely tipped lobbyists and corporate insiders about agency agenda decisions before they were made public. This is critical, because under agency “sunshine rules,” FCC members can’t be lobbied for the week between the public announcement of an agenda and the meeting. Knowing what’s going to be announced on the agenda in advance thus gives lobbyists and corporate insiders an opportunity to lobby before the sun[shine rules] rise. From the report:

FCC generally followed the rulemaking process in the four case studies of completed rulemakings that GAO reviewed, but several stakeholders had access to nonpublic information. Specifically, each of the four rulemakings included steps as required by law and opportunities for public participation. Within the case studies, most ex parte filings complied with FCC rules. However, in the case studies and in discussions with other stakeholders that regularly participate in FCC rulemakings, multiple stakeholders generally knew when the commission scheduled votes on proposed rules well before FCC notified the public. FCC rules prohibit disclosing this information outside of FCC. Other stakeholders said that they cannot learn when rules are scheduled for a vote until FCC releases the public meeting agenda, at which time FCC rules prohibit stakeholders from lobbying FCC. As a result, stakeholders with advance information about which rules are scheduled for a vote would know when it is most effective to lobby FCC, while stakeholders without this information would not.

When I commented upon this to a colleague, his response was typical: “What do you expect? And anyway, so what? What’s wrong with giving affected parties a bit more time to make their case?”

“What’s wrong” first is that the rules say otherwise.

“What’s wrong” second is that the rules are bent in a completely predictable way. Agency insiders curry favor with precisely the people they’ll be getting a job with after they leave the FCC.

And “what’s wrong” third is just what this indicates about the kinds of bending we might expect goes on inside the FCC. If the agency is willing to bend the rules to favor futures employers, are they willing to put the thumb on the scale in difficult contested policy determinations?

But my colleague was right about one thing: “What do [I] expect?” Here’s an agency chaired by a former lobbyist. Is it likely to be scrupulous about rules meant to constrain or balance the lobbying process?

This example is just one many that is our government. (As I’m learning as I work through the extraordinary reading list compiled by my Read-Write readers at the Lessig Wiki on Corruption. But it needs to become a bigger issue for the candidates in this election. Let’s hear a promise by the presidential candidates that they will only appoint FCC commissioners who promise not to work for those they have regulated for at least 5 years after their term is over. That would be real change.

October 3, 2007  ·  Lessig

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Months ago, I got this very cool Sprint-MotoQ phone as a gift. I can’t use it, having tied myself to another bundled phone and network (scandal, I know). I’m happy to send it ($420 retail value), free, in its original package, unopened, to the 100th person to email me at this address with the subject line: “Keep the net neutral!,” and complete mailing instructions inside. (Multiple emails from the same email address will be removed.)

Embrace the irony, always.

We’ve got a winner. Thanks for the replies. And fear not: the addresses/names will be deleted.

October 3, 2007  ·  Lessig

Five years ago Monday, Congress (I believe) for the first time heard the word “Network Neutrality.” As Tim Wu has described, in the summer of 2002, he and I talked through how the campaign to support “end-to-end” neutrality might be extended. (See, e.g., “The Policy Implications of End-to-End.”) He then ran with the reframing of “Network Neutrality,” and thanks to his great work, and others, the idea has stuck.

Lots of progress has been made on this issue in the last five years. Fantastic organizations (like Free Press‘s SaveTheInternet.org) have mobilized real attention to this issue. No one imagined five years ago that meme would spread so fast and so well.

But I am especially happy now to have the support of AT&T and Verizon on this issue, as they’re obviously now pushing to get some real Net Neutrality legislation passed in Congress soon.

“What?” you ask? “AT&T and Verizon?!!! Are you nuts?”

Yea, I know the conventional wisdom — AT&T and Verizon, like all carriers, want no Net Neutrality regulation. But how else to explain the absurd gaffes of the last couple months? AT&T censoring Eddie Vedder. AT&T censoring NARAL. Verizon and AT&T have Terms of Service that permit them to censor criticism of them.

Sure, these companies MAY BE extraordinarily inept. They MAY BE just tripping up all over the place. They may be simply signaling their own non-neutral position in a competitive market for networks, allowing consumers to select other networks that are more neutral. (Scratch that: I forgot. No more competition. See this fantastic graphic over at Wikipedia to get a flavor of the retrenchment that is telecom policy in America today.)

So, sure. Maybe. Maybe this is just a mistake. But I don’t buy it. These guys spend millions on lobbying every year. (Actually, probably every month.) How could they possible be so inept? Isn’t a better interpretation of the events of the last few months that they just really want what would be good for the Net generally — a very clear set of neutrality regulations?

(And yes, of course I am.)

October 3, 2007  ·  Lessig

Monday was an insane day, and I had no time to remark to important facts. First, Creative Commons (new page!) launched its third fall fundraising campaign. The theme is 5. We’re five on December 15 (big party, stay tuned). And we’ve set $500k as our goal — way beyond what we’ve targeted before. So please help, any way you can. SupportCC.

October 2, 2007  ·  Lessig

Creative Commons announced yesterday that we have hired a new General Counsel (and Vice President).

I can’t adequately describe the happiness (and relief) that announcement gave me.

The General Counsel is crucial to CC’s success. Virginia Rutledge is our third. We’ve had fantastic general counsels before her. And when each left, while I wished them luck in their new life (at Google), I felt as if the wind had been knocked out of me.

Our first had been the entrepreneur who founded the place. That quality couldn’t be replaced. But I was extremely happy when we found someone who could give us something else that we needed then. Like our first, this GC was brilliant and could write extremely well. But she was also a very experienced lawyer (she had practiced and had practiced in other jurisdictions), and she let that experience translate into a very strong will in guiding and protecting our most important asset — the legal brand.

When she left, I again had doubts we would find a replacement. But again, I am extremely happy to have my doubts proven wrong. Virginia, too, has the tough-lawyer experience that our last GC showed us was so critically important. But beyond that, she also had an extensive life in the community of artists and museums before she turned to the law. Of all the candidates we considered, none could match the breadth and significance of this experience.

From the press release:

“I applaud Creative Commons for its inspired choice of Virginia Rutledge as Vice President and General Counsel,” said copyright expert William Patry, Senior Copyright Counsel, Google Inc. “Virginia’s background in academia, the art world, and the white-shoe corporate law firm environment is unique. Her ability to forge consensus, her love of learning and commitment to the public interest will serve Creative Commons and the rest of us exceedingly well.”

“I commend Creative Commons for this excellent choice to help further the worthy purposes of the organization,” said patron of the arts Martin E. Segal. “Virginia’s commitment to the arts and her scholarly and practical background make her a wonderful addition.”

“Creative Commons couldn’t have made a better choice,” said Joel Wachs, President of The Andy Warhol Foundation for the Visual Arts. “Virginia has deep knowledge of contemporary art practices and institutions, and the practical experience of working within a highly competitive corporate culture. She will do an excellent job of helping to build relationships between communities that have a common interest in promoting vibrant cultural production and exchange.

She will. And as I understand now, this is precisely what we now need.