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August 25, 2010

Cities Don’t Need to Shy Away From Social Media

I was disappointed to read that a city in California plans to abandon its Facebook page due to legal concerns. While it’s true that a municipal attorney’s job is to spot potential problems and help head them off before they strike, it’s unfortunate when that advice hampers a very useful communication tool for citizens.

None of the legal issues raised in the above-linked story are insurmountable, they just take some careful planning and consideration to ensure they’re handled in a way that limits liability while maximizing the value to residents and city staff. In many cases, the tradeoffs involved in, for instance, a municipal Facebook page, will tip the balance towards keeping the page active.

On questions of censorship and First Amendment rights, cities can:

  • Limit users’ ability to post comments.
  • Post explicit, carefully-crafted policy on how the Facebook forum is to be used if comments are allowed.
  • Address borderline comments openly and respectfully in the same forum.
  • Lead by example in keeping the conversation clean and productive.

For records retention concerns:

  • Third-party services can help governments cheaply and easily incorporate Facebook and other social media content into records retention activities
  • Archived social media posts can help city officials follow important issues of citizen concern

Regarding open meetings violations:

  • A quorum of officials commenting on any online platform can be a violation, so why not use the opportunity to educate officials and benefit from social media?

On concerns of employee use:

  • Cities need to have policies on official and personal social media use by employees. Eliminating an official Facebook page is not going to keep employees off of Facebook, nor will it keep them from discussing their jobs while online. Careful policy creation, training, and enforcement can enable employees to use social media in ways beneficial to the city and to themselves.

It’s sad to see cities turn away from social media. Their citizens, employees, contractors, and current and potential businesses are leveraging social media. Cities should be, too.

August 17, 2010

Two Snails Racing: Waiting for Congress or the FCC to Move on Net Neutrality

Filed under: Uncategorized — Tags: , , , — bergus @ 3:41 pm

The Myth of Existing Net Neutrality

The debate over net neutrality is not about whether an open Internet is good or bad. In terms of free expression and our imagined “marketplace of ideas,” an equal-access network would be very nice. If there were enough bandwidth for every appetite and application, and if broadband service providers could decide on and disclose actual speeds and contractual limitations on bandwidth use, net neutrality just might work. But bandwidth is finite. And ISPs will lose subscribers if they are too upfront about their limited capabilities. So, the argument over feared worst-case scenarios continues.

Net neutrality in the United States does not exist today. There are reports of Comcast and other ISPs throttling BitTorrent users as early as 2005. That means the past five years (at least) of Internet growth have happened while ISPs have been doing exactly what we fear most: deciding for us what type of service we can access. On the other hand, ISPs and content providers have been filtering our Internet experience in ways that most users prefer: think spam blocking or Google’s “safe search.”

The problem with the current discussion is that it fails to address this balance. Most consumers want some traffic shaping, some of the time. Most ISPs have to limit some bandwidth hogs, sometimes, to sustain their business. Yet our government is tasked with protecting us from service providers’ unbridled greed and anticompetitive intent. This protection comes in the form of regulation, even if that regulation is simply to tell service providers to be “reasonable” or “fair.” Even such vague standards of public interest allow the government to impose some type of sanctions if service providers are wildly out of line.

The issue now is if and how the federal government will intervene, hopefully to dictate some reasonable balance.

Snails Racing for Reform

To end the now-ideological net neutrality debate, we’re left looking to two players who are generally slow and ineffective when it comes to dealing with immediate technology problems: Congress and the FCC. So far, Congress doesn’t seem to have a plan, though Google and Verizon have kindly provided a self-protecting regulatory framework in case lawmakers need a little help. The FCC has scrambled since April, when the D.C. Circuit delivered a no-nonsense administrative law smack-down that dialed back the FCC’s ability to stop network discrimination. A possible solution to the regulatory void created by the Comcast decision is FCC General Counsel Austin Schlick’s “Third Way” proposal [pdf], which, at its core, would reclassify broadband Internet as a telecommunications service rather than an information service, opening the content-cum-service providers to the specter of common carrier status, subject to heightened regulation by the FCC.

Without diving into an explanation of the Third Way and how it may or may not fly, the FCC might be on shaky legal ground if it reclassifies broadband by declaratory order rather than through rulemaking proceedings. As the CTIA points out in its comments to the FCC in opposition of regulation [pdf], reclassification of broadband from one regulatory regime to another is not the kind of mere statutory clarification for which the courts have approved declaratory action. Rather, the Administrative Procedure Act, and even a relatively generous interpretation of the Supreme Court’s seminal administrative law Chevron opinion, would likely require notice and comment rulemaking proceedings (like it did for initial classification of wireline broadband), by which the FCC can explain its change of course.

Should Wireless Be Different?

Much hubbub arose from Google and Verizon’s agreement that any legislated net neutrality rules should not include regulation of wireless services. What seems to be lacking from the lay commentary on this issue is the fact that wireline and wireless services are fundamentally different, from the FCC’s perspective. Wireless services require licensed spectrum to operate, and those licenses aren’t exactly easy or cheap to obtain. Because consumers have started using wireless broadband service to do the same things they do over wireline service, it’s difficult in that sense to justify disparate regulation. But the rules are different, and Congress has demanded that the FCC try to “reduce the regulatory burden” on wireless service providers, while subjecting them to limited common carrier regulations. So no matter if it makes sense today, the FCC’s starting point might have to be regulating wireless and wireline broadband differently.

What’s Next?

Some Democrats in Congress are calling for the FCC to go ahead with broadband reclassification so it can prevent ISPs from further limiting the Internet. Conservatives don’t want more regulation than already exists. Since this is a complex problem, it’s unfortunate for consumers and investors that we’re left waiting for the bureaucratic behemoths of Congress and the FCC to find the silver bullet, fearing the industry has hijacked the process. But what about a more moderate approach? One that doesn’t require codifying industry-tailored non-rules, but also doesn’t force the FCC into legal contortions it cannot sustain. Bob Sullivan suggests a moderate approach that could work through the lower echelons of the FCC while we’re waiting for the higher-ups to hash out a big-picture deal:

[Consumers can seek] guaranteed minimum service levels, and a real government resource for complaints…[The government] should quickly investigate and fine misbehavior by ISPs, such as … misleading consumers about available bandwidth.

The FCC has received over 110,000 comments on its “Open Internet” notice of proposed rulemaking that was posted in October 2009. There are clearly many difficult legal and social issues at stake. In the meantime, we can demand basic consumer protections and enforcement of existing rules.