We’re exploring some difficult terrain.
There is a fairly bitter battle underway, right now, between:
1. On one side, the big telecomm carriers (Bell, TELUS and Rogers, etc, here in Canada) and monopolistic
proprietors (like Microsoft): and
2. On the other side, a rather loose collection of
open source providers (like Sun Microsystems and the
emerging collectives (the mergers are going hot and heavy) of Linux implementers) and the ‘digital commons’ community.
Two important subsets of both sides are the mobile community and the hardware people. The hardware vendors are neutral: they win no matter who comes out on top in the jurisdictional battles.
The battle is especially bitter regarding the ‘
mobile digital commons’ because the profits from (overpriced) mobile (cellular/PCS) services is all that stand between profits and bankruptcy for some
integrated telecomm carriers.
Digression, but an on topic digression: fixed (wired) telecomm is a HUGELY regulated service, especially at the ‘price point’ level. Regulators in Canada and the USA
demand that home/consumer services are provide at ridiculously low prices, well below costs. The regulators
require the carriers to overcharge for consumer/home long distance, business services, generally, and especially business long distance and internet service in order to subsidize POTS –
plain
old
telephone
service – for residential subscribers. (That’s one of the reasons telecomm carriers, like Bell, are
required to charge more for a second, business, line to a residence. You may get away with just getting a second telephone line – like the one some folks get for heir children - and using it for your home based business but the carriers are
obliged to check up on you and charge you more if they determine that you are in breach of your contract.)
The ‘digital commons’ is especially popular in the MUSH (
municipalities,
universities,
schools and
hospitals) community but it is also spreading to other sectors – notably big business and residential or community ‘cooperatives.’ The
mobile digital commons is a logical extension.
Canadian companies are at the forefront of he mobile digital commons
movement.
The big telecomm carriers have few problems with the ‘digital commons,’
per se – at least not with the fixed (wired – immobile) commons. They can and do make money there. (You can, for example, negotiate ridiculously low ‘bulk’ long distance rates if you are a big enough customer: like the University of Toronto, for example. There is a reason that bulk long distance resellers (e.g.
SmartReach) can operate and make a profit: the CRTC
requires the big carriers to give the resellers, amongst others, low cost access – thus obviating the ‘barrier to (market) entry’ that
building out a network might entail.) Once the copper wires and, increasingly, fibre optic links are laid (a very costly proposition) is in place it (the established, fixed network) can provide many, many profitable services at very low costs.
But, the fixed network is inflexible. If you want to extend it you must either install more wire/cable or build a radio system. Radio systems are inherently flexible but they are also very vulnerable,
naturally vulnerable to interception and
piggybacking.*
If When users want highly flexible access then wireless is the only option and wireless technology and spectrum management issues – mainly how to avoid causing or suffering harmful interference – dominate the whole issue, including the law.
The digital commons is related to something called the ‘campus area network’ that may be equal to or, more likely, is a subset of another
something called a ‘metropolitan area network.’ The big work on these sorts of networks is being done in Asia, especially in India and China (but, in many cases, by Canadian companies) – because they both need to MASSIVELY expand their telecomm infrastructure and these networks are (almost?) all radio based or radio intensive because no one in Asia
is dumb enough wants to waste time and money laying too much copper or cable, especially not for the all important
last mile: the link between the nearest substation/local exchange/access point/etc and the user.
A ‘campus’ need not be tied to a university. A collection of big manufacturing plants may be a ‘campus.’ Many cities build ‘industrial parks’ in which many independent businesses operate. Each industrial park is a campus.
This is the biggest threat to the big carriers. They want a
universe in which each and every one of us
pays to have his/her own, private landline link
and his own private wireless link. The ‘open source’ and ‘digital commons’ folks want to pay for their share of the fixed infrastructure but they want ‘free’ access –
including wireless access - to that big, global fixed and mobile network. It is possible, indeed simple,
cheap and easy, to provide free (and electromagnetic interference free) wireless access to a campus area network. It is a bit more complex but nothing like impossible, to extend that ‘free’ access to a wide area or metropolitan area network. It is also easy to make dual mode and multi-mode phones that can work ‘free’ on campus area networks and, automatically, switch to a
pay for use mode whenever a campus area network is not available.
Technology makes a ‘free,’ mobile digital commons possible. Free things are attractive and popular. A free, mobile digital commons threatens the telecomm carriers’ business model and, perhaps, their very existence; it also threatens the portfolios of many investors including pension funds and ‘widows and orphans.’ Big legal battles are looming but they do not involve
piggybacking on your neighbour’s wireless router because there are much, much bigger fish to fry and no one wants to muddy the waters (those metaphors aren’t to badly mixed, are they?) by bringing into court a case that will likely be tossed out because the existing law fails to
match the circumstances of the alleged offence.
We will need a whole new set of ‘digital’ laws, including maybe a ‘digital trespass’ law, that deal with some important technological questions. Consider, please:
• You
capture an image that may be someone’s (or some agency’s)
private property;
• If you simply
store it, as a bunch of
bits (0s and 1s), in a digital device, have you committed any offence? Should you have committed an offence? Ought here to be a law?
• If you
transform the bits into some other
useful form – an image, for example – and look at, yourself, in the privacy of your mother’s basement, have you committed an offence? Ought here to be a law?
• If you transmit the bits, the 0s and 1s, to someone else, have you committed a crime? What
IS that bit-stream while it is in transit? Is it the private property of the original owner or is it just a bitstream with neither form nor value?
• Suppose, while the bits are in transit, some third party intercepts (
captures) it and transforms it into something useful that is
not the same as the image ‘owned’ by the person from whom you
captured it? Has that third person committed an offence? Ought there to be a law?
Those are just some of the problems in the digital domain. Consider
this (don’t worry about the
fact that it is on You-Tube with all that implies). The words, the poem
per se, is in the public domain but what about McKenna’s
interpretation, her
transformation of it? Is it still the same thing? What about the music? Tennyson did not write the music. Is the poem any different because it is now a song?
The issue is further complicated by the
notion that, in 21st century Canada, access to the whole telecomm system, including the Internet, is a right – akin to the ‘fundamental right’ to food and shelter. Now, of course, there are those, me included, who say that there is
no ‘right’ – fundamental or not - to food and shelter and that suggesting there is weakens the real fundamental rights to life, liberty, security of the person and property. Food shelter may be at the base (most important level) of
Maslows hierarchy of needs but a
need isn’t a right and ought not, necessarily to be one, either. But that perceived need and right to telecomm is one of the reasons we (through our regulatory agencies) insist that business subsidize residential telecomm service.
So, new laws are needed – to deal with complex situations and with a ‘dispute’ that may involve the very nature of private property, or of property itself. The ‘owners’ of a multi-trillion dollar global industry – telecomm, broadly – are fighting what
I think is a rearguard action against a ‘digital commons’
movement that wants to fundamentally alter how we communicate and to reconsider the notions of intellectual property and of privacy.
Sorry, folks, I’m more than halfway to the character limit for a post. So: All this to say that the technological, business, regulatory and legal models or systems that, currently, corral the telecomm, including wireless, domain are changing quickly and may change very radically, indeed. The law, especially, has not kept up and, for the near to mid term, most likely
cannot keep up with the changes. The law, including the criminal law, might in other words, be useless when it involves radio and telecomm services.
Morality and honesty and the like are important subjects but it is a mistake to mix them up with law – especially with laws related to business and property. Morality may be,
should be clear, at least insofar as it concerns property, including telecomm type property, but the current laws (not just the enforcement of them) are in a
grey area – and they are likely to stay there. And that’s why they will not, perhaps cannot be enforced.
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* Another (off topic) digression: During the Viet Nam war a company called E-Systems was contracted to provide most of the US
backbone telecomm system in Viet Nam, proper. They built large COMCENs on hill tops, interconnected by microwave and tropospheric scatter radio links. The US military
accessed these COMCENs and the network through
shared microwave links (a military terminal at the US military site talked to an (identical) civilian terminal at the
top of the hill or landline. The sites were managed by teams of E-Systems people – mostly Americans, but they were run, at he lower levels, by locally hired civilians. After a while some people began to wonder why the E-System sites were not being attacked with anything like the frequency or ferocity of the attacks on almost all other American installations. The answer soon became apparent. The E-Systems network was
also the backbone of the
Viet Cong and North Vietnamese communications system! The local workers (technicians) used common techniques to allow two differently
configured signals to
share the same channels – piggybacking of a type still common today: two differently
configured signals ‘share’ the same link (landline or radio, sub-multiplexed or single channel, all same-same, no never mind) without one or the other being able to detect the presence of the other. Technology makes possible many unforeseen consequences.
Edits: several many typos and a few additional words/phrases here and there for clarity
Further edit: reformatted the first paragraph to make it clear(er)
