December 2002 Archives

I've been reading some of the discussion on digital identity (see, e.g., AKMA), but I have to confess that I tend to get a little lost in the discussion. It's a high-context conversation, and I'm not exactly up-to-date on all of that context. Far from it. The context includes the entire multifaceted question of what the internet is, so it's hard to get my brain around all of the interrelated ideas at one time.

AKMA says that the desirable end for a mass audience of internet users (not commercial interests) is "accountable, persistent, reliable online identity," with some accommodation for anonymity. When commerce gets involved, I'd take the requirements a step further; commercial interests want almost always to be able to attach an online identity with a real, flesh and blood human. Anyone involved in commercial transactions online needs to establish that connection with an urgency that increases according to the value and risk of the transaction. If the transaction goes sour, one can (usually) find the flesh-and-blood person and haul him or her into court. You can't do that with an online identity that exists only detached from any corporeal equivalent.

The question is how to have it both ways -- to make business and other identity-important transactions on the internet relatively low-risk prospects (perfection may not be necessary) while not requiring a one-for-one correspondence between online and offline personalities. It may mean that one can have only one online personality for business purposes. Is that unacceptable? Are there other ways we can balance the various risks?

I'll keep watching the discussions to see what I learn. Meanwhile, I hope that I find some good background material so that I can get a better understanding of where the online conversation on the identity topic has come from and where it is going.

I was in county court today, observing a counseling session between another attorney and our legal services client (I'm volunteering time while I look for work) followed by a permanent restraining orders hearing for our client, the petitioner in the case. The respondent didn't show, so the judge made the temporary order into a permanent one with little ado. This meant I didn't get to see a contested matter, but I still had the opportunity to see a skillfully conducted client counseling session.

Out of about ten parties in that hearing session, only ours appeared to have an attorney. The others all proceeded pro se. The judge kept a very calm and relaxed demeanor, trying in an impartial manner to explain to all parties the procedural options they had, and to elicit from the parties the kind of evidence he would need to make a decision. That is the reality of civil domestic relations hearings in an area not known for wealth.

I've been tweaking the blog to use weekly archiving instead of individual, changing both the preferences and the templates. I don't think anything is broken.

Yet.

Update -- Looks like the changes made the XML/RDF feed behave as though all the entries were new, at least as far as Aggie is concerned. My apologies.

Halley is cool and we are so not. She's at the Berkman Center's party tonight.

Apparently the wine is excellent, too.
Well, I'm going to do something exciting too -- like adjust Movable Type to use weekly archives instead of individual ones! Woo! Uh... well... yeah.

Compare the proposals I reported (but which, I should stress, I did not mean to advocate by reporting) in the immediately foregoing post with this report in Larry Lessig's blog about broadband prices in Japan. How much of the difference comes from effective unbundling, and how much comes from the fact that people tend to live closer together in Japan?

Doc wonders whether to be creeped out by this speech by FCC Commissioner Kevin J. Martin. I'm not sure whether people who support fail fast policies should be creeped out, but they probably should not be encouraged.

Commissioner Martin clearly sympathizes with the plight of incumbent carriers who have "stranded costs" -- investments in obsolete equipment that present pricing rules will not allow them to recover. He refers to this plight when he says that "industry conditions cry out for answers. Companies are struggling under too much debt, unable to recoup the past investments they have made. Markets are valuing companies at depressed levels, leaving companies with little capital. Carriers are postponing the purchase of the equipment necessary to deploy competitive local and advanced services, leaving the manufacturers to suffer the consequences." The message: Incumbents are stuck with the costs of legacy equipment. They're so busy trying to cover those costs that they can't buy newer, better equipment. Martin proceeds with his discussion having thus framed the economic scenario.

Commissioner Martin proposes changes to the TELRIC (Total Element Long Run Incremental Cost) computation system for resale rates that would certainly run counter to 'fail fast' policy goals if they were applied to the resale of existing equipment. However, Martin expressly advocates these changes only for "new investment on a going forward basis." It's not clear from this speech that he would give incumbents higher resale rates for services on old equipment as well. With regard to high-speed fiber-optic data services, Martin says, "I believe that incumbents should be given the proper incentives to push fiber deeper into their networks and closer to the American consumer."

Martin appears to think that incumbents will be significant (perhaps the most significant) innovators and deployers of high-speed fiber services. He would not require ILECs to provide open access on new fiber-optic loops, or he would at least limit the bandwidth they are required to provide to the amount that they provide already. This is what he means by saying, "I believe that the Commission should freeze the service capacity level that must be made available on new or upgraded facilities to the service capacity level provided by the ILEC prior to the new investment in an upgraded facility." One can argue that this would do no more than to put ILECs on the same footing as anyone else who might successfully run fiber-to-the-home. I'm not in a position to evaluate that argument right now.

Martin's speech reveals no intent to allow incumbents to fail. This doesn't mean that he doesn't foresee that it could happen. If it is to happen, though, he intends that it be because they truly failed to compete, not because the FCC made it hard for them to invest in new equipment.

I'll summarize Commissioner Martin's proposals below, and leave the economic analysis to someone more able:

The Associated Press reports that Conseco Inc., a major insurance and finance company, has filed for Chapter 11 bankruptcy. Conseco owes massive amounts of debt, and the federal government is investigating its accounting practices.

This is the third largest company (in terms of assets) to file for bankruptcy. It reports $52.3 billion in assets, although if their accounting practices lack credibility that number may be very inaccurate. That puts it behind WorldCom ($104 billion) and Enron ($64 billion), but ahead of Texaco's 1987 bankruptcy ($36 billion).

The company has reached agreements with bondholders of public debt and bank creditors, but it hasn't yet struck a deal with preferred stockholders.

We'll just have to see how messy this one gets, especially as the accounting practices investigation continues.

As David Weinberger points out (by reference to an email from Kevin Marks), Bruce Schneier's latest "Crypto-Gram," written for his security company Counterpane Internet Security, Inc., has some good observations.

On a tangential note, how many layers deep does credit for a link need to go? David credits Kevin, thus so do I, but when does it become okay to draw the line?

First, the Creative Commons is up and running. The organization will hopefully give the creative community more flexibility in thinking about how to copyright and license their works than the established practices we're familiar with today. I hope that in time we'll find a greater proportion of creative works available for a greater variety of legal uses.

Second, as everyone knows by now, the ElcomSoft verdict is in -- not guilty. I think the judge gave sensible jury instructions, but the prosecution may be able to assail the instruction that in order to convict, the jury would need to find "that company representatives knew their actions were illegal and intended to violate the law." (Quoting the CNet news article, not the jury instructions themselves, which I haven't read.) That instruction requires a specific intent to break the law, which I thought is usually a higher standard than "wilfulness," but my experience with criminal law is a little thin. The instruction may have set the bar for conviction a bit high, but I haven't read enough jury instructions to think of alternatives that wouldn't have set the bar too low. Black's Law Dictionary (7th ed.), which is not legal authority but is instructive, defines "wilful" as "Voluntary and intentional, but not necessarily malicious," (p. 1593) but refers to Perkins & Boyce on Criminal Law (1982), who point out the dispute between those who say that wilfulness means only that the act be purposeful and those who say that the purpose be a specifically bad purpose or coupled with "evil intent." I think that setting the bar higher makes sense with a law that can be so easily violated, and I hope that the decision is consistent with other relevant federal jury instructions.

I'm going to continue writing for a few moments on the idea from this post on outlines yesterday.

Prof. Lawley wrote about the objections to the idea that blogs are outlines, pointing out that people can use many forms of writing in their blogs, and that outlining as a writing procedure does not lend itself well to many of the forms that they might choose. "Outliners impose a specific structure on writing. They produce clear boundaries between sections, and between what's 'in' the writing and what's 'out.' . . . But I wouldn't use an outline for a poem. Or for an e-mail message to a friend. I don't use one for my blogging."

Yes, my blog links are hopelessly out of date compared to the blogs I actually follow. Like some people have been doing, I need to take some time and update my list. There are just too many people out there doing too much good writing. No-- that's not a problem!

Doc Searls wrote the other day that "[b]logs are outlines, and blogging is a form of outlining."

My question is, are blogs any different from so many other forms of writing in this respect? At least in the non-fiction world, content organization is a hallmark of good, clear writing. Fiction writing forms may have different rules, but I'd guess they also depend on some kind of organization. The practice of organizing ideas into writing can itself contribute to analytical thinking. Some of my best thinking has been done while my fingers have been working a keyboard -- usually while drafting revisions, since the first paragraphs on the page are almost always crap.

Prof. Lawley's son Alex (6) asked her, "Mom, why does everything have to have an outline?" While we can't really tell if he was talking about the kinds of things that people in the weblog world are talking about, Alex's and Doc's remarks do make me wonder. Perhaps everything does have an outline, if outlining is just one of the ways that we engage in abstract thinking about the world we're in. We make the outlines, and we revise them as we learn and experience more.

Yes, this is a rather Deweyan or Kuhnian notion, but that won't come as a surprise to those who know me.

TPB, Esq. wrote on Wednesday that he was about to go in for his annual associate review meeting.

That was four days ago, and we haven't heard from him since. And he's a guy who blogs as stress-relief while briefwriting.

I hope things are okay.

I got my first law books for practice outside of law school today. West's Colorado Court Rules-- State and Federal. Of course, they're only updated to the middle of the year, so they're out of date already, but the changes are small enough that I should be able to look them up myself.

Howard Bashman's outstanding blog noted an article in the Milwaukee Journal-Sentinel about Wisconsin's broken public defense system. According to the article, Wisconsin statutes provide that criminal defendants making as little as $250 a month do not qualify for a state-funded public defender. Although judges can still appoint defense attorneys at county expense, they apparently hesitate to do so because of lack of funds. As though that were not astonishing enough, the article states further down that the Wisconsin Legislature requires the public defender's office to demand reimbursement from indigent clients.

This conference on new approaches to radio spectrum regulation will likely be very interesting and potentially important. Unfortunately there's no way in heck I could go, but I'll look forward to reading the news from those who go and blog it.

Spotted on Larry Lessig's blog.

Howard Bashman liked this Posner opinion. He quotes some good parts, but I have to say I liked Posner's quip at the end of his explanation of the facts: "So all that has to be decided is whether Reuters is obligated to furnish the Bridge data service to FutureSource free of charge until the end of time." (p. 4)

Right. One can guess from that how the opinion concluded, but as usual the journey is a good one, for a court opinion. It's short, too, at eight pages.

Okay, let's see if I can actually post here regularly.