Author Archives: Michael Froomkin

A Face For Radio (‘Net Neutrality’ Edition)

If they can’t find anyone better, I’m going to be on American Public Media’s (NPR) Marketplace later this morning, at least in the West Coast edition of the Morning Report. The interview was prompted by an article in the Wall Street Journal. No, not yesterday’s piece by Jess Bravin which quotes me on Alito and the Unitary Executive. The subject was today’s article by Dionne Searcey and Amy Schatz, “Phone Companies Set Off A Battle Over Internet Fees; Content Providers May Face Charges for Fast Access; Billing the Consumer Twice?”,

Large phone companies, setting the stage for a big battle ahead, hope to start charging Google Inc., Vonage Holdings Corp. and other Internet content providers for high-quality delivery of music, movies and the like over their telecommunications networks.

BellSouth Corp. said it is in early talks with Internet movie companies and at least one gaming company with the aim of striking agreements on fees to guarantee fast content delivery over the Internet. Movielink LLC, a joint-venture of five major movie studios that offers movies to consumers over the Internet, said it has discussed the issue with BellSouth. Meanwhile, AT&T Corp. executives have expressed support for charging companies to ensure that their content gets priority delivery, and Verizon Communications Inc. Chief Executive Ivan Seidenberg yesterday said he might favor reaching deals with companies to do the same. “We have to make sure they don’t sit on our network and chew up our capacity,” Mr. Seidenberg told reporters.

The phone companies envision a system whereby Internet companies would agree to pay a fee for their content to receive priority treatment as it moves across increasingly crowded networks. Those that don’t pay the fee would find their transactions with Internet users — for games, movies and software downloads, for example — moving across networks at the normal but comparatively slower pace. Consumers could benefit through faster access to content from companies that agree to pay the fees.

My main point in the interview with Janet Babin (although you never know what part of the tape they will use…) was that we can’t trust the market to sort this one out, as we might usually want to, do because — due to regulatory choices by the current administration — there isn’t true competition for the provision of household broadband. Instead most consumers face a monopolist or at best a DSL/Cable duopoly. If we had true competition at the consumer endpoint we at least have some hope that the outcome would preserve the public goods aspects have interoperability and a place for the small and quirky.

So for me the issue isn’t exactly regulation to achieve “net neutrality” except as a second best. The issue is keeping the consumer from being made captive in the first place.

Update: They used a short quote. But identified me as “William” Froomkin. (I’m told it will be fixed for the second feed.)

Posted in The Media | 1 Comment

Ricardo Bascuas Wins In Amicus Brief Filing Dispute

Speaking of the SFLA Blog, I see via it that one of my colleagues won one: Ricardo Bascuas prevailed over a peculiar, peevish, pettifogging, and petty attempt by local prosecutors to block two amicus briefs in the en banc phase of the so-called “Cuban Five” case. (The underlying issue is whether the defendants, accused of being Cuban spies, could get a fair trial in the surcharged anti-Castro atmosphere of Miami, especially after it was whipped up against them by massive pre-trial publicity; the collateral issue on which Rick prevailed was just whether National Lawyers Guild, the National Association of Criminal Defense Lawyers, the National Association of Federal Public Defenders and the Florida Association of Criminal Defense Lawyers would be allowed to file amicus briefs, something which is just about always routinely allowed for parties with the interest and energy to do so.)

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DeFede Case in the Columbia Journalism Review

Under the title “Miami Noir,” the Columbia Journalism Review has an unsparing, borderline cruel, account of the DeFede affair.

Related posts:

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Will Padilla Get Bail Set Tomorrow?

David Oscar Markus — who I look forward to meeting some day — attended Padilla’s appearance today before Magistrate Judge Barry Garber.

Mr. Markus also has a separate post about Padilla’s co-defendant, Kifah Wael Jayyousi, having bail set by Judge Marcia Cooke. It’s $1.3 million, and there are other conditions — stay local, wear electronic monitoring — but release at all is a big win for him after years of very tight prison conditions.

However, Mr. Marcus didn’t address the to me more interesting (but speculative) question of whether Padilla — who after all is charged with pretty vague offenses that sound less serious than those of Jayyousi, his co-defendant — also might get bail tomorrow. Maybe even lower bail. Could he be on the street soon?

Admittedly, AFAIK there’s not so much in Padilla’s history to suggest he has the sort of ties to the community or general demenor that would make him a model citizen. Might even call him a bit of a risk. But perhaps, on the facts in evidence, no worse than many other hoodlums with a bit of a rap sheet?

[Disclaimer: I don’t do criminal law. Bail is a black box to me. Just wait till Mr. Markus sets me straight again….]

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Padilla is Here

Padilla Brought to Face Civilian Charges: Jose Padilla is in Miami.

For a place so far, physically and psychologically, from the centers of financial and political power in this nation, we really are at the epicenter of all kinds of interesting things here in Miami.

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Time to Think the Unthinkable

It used to be that having the NSA spy domestically was one of the unthinkable acts that one believed administrations understood were out of bounds. Sort of like the indefinite detention of US citizens in military prisons, or the torturing and killing of prisoners, or ‘rendering’ them to countries that torture.

Well, all bets, gloves, illusions are off.

It is time, therefore, to start asking if this administration is doing other things that were previously ‘unthinkable’.

Today brings suggestions that the administration spied on one or more journalists, and perhaps also on an occasional Democratic candidate and party operative. But don’t stop there. For example, someone should ask whether the new ‘anything goes without a warrant if it’s important enough’ standard for snooping extends to tax returns and to census data. It’s hard, after all, to imagine a legal theory that would allow the NSA to ignore FISA that would not also apply to all that delicious data just sitting there, even if it is hedged with statutory protections. That’s just Congress, after all, nothing serious.

Suggestions for other previously unthinkable questions that should be asked — not that we can trust any statement we get from this administration — painfully welcomed.

Posted in Law: Privacy, National Security, Politics: The Party of Sleaze | 4 Comments