Muni Networks, Digital Liberty, and Surveillance - Community Broadband Bits Episode 145

00:05:

Corynne McSherry:  And I think it's really a good idea, if the municipality is going to be the one running the network, that they publicly bind themselves and make commitments to their customers about what they won't do.  So that their customers can have some comfort that, in choosing Internet access from the government, they haven't given up the rights and protections that they have come to expect.

00:27:

Lisa Gonzalez:  Hello.  This is the Community Broadband Bits Podcast, from the Institute for Local Self-Reliance.  I'm Lisa Gonzalez.

Corynne McSherry, Legal Director of the Electronic Frontier Foundation, joins Chris today for the podcast.  EFF is best known for its work to preserve civil liberties in the digital age.  Corynne and Chris discuss some of the unique challenges municipal network providers face.  And she offers suggestions to help overcome some of those challenges.  As an increasing number of communities invest in broadband and infrastructure to improve local connectivity, organizations like EFF can offer guidance on these unfamiliar situations.  You can learn more about EFF's work at their website, eff.org .

When you're finished listening to the podcast, please take a moment to go to ilsr.org or muninetworks.org and make a quick donation.  We enjoy bringing you the podcast each week, ad-free, but we can certainly use your support.

Now, here are Chris and Corynne.

01:26:

Chris Mitchell:  Welcome to another edition of the Community Broadband Bits Podcast.  I'm Chris Mitchell.  And today I'm talking with Corynne McSherry, Legal Director of the Electronic Frontier Foundation.  Welcome to the show.

01:38:

Corynne McSherry:  Thank you for having me.

01:40:

Chris:  I'm excited to talk with you.  I think this is an interesting topic that is a little bit off from what we normally do.  Ordinarily, we talk with people that have built networks, or are thinking about it.  And now we're going to get a slightly different perspective.

But I want to start by just asking, you know, for people who aren't familiar, what is EFF, the Electronic Frontier Foundation?

02:01:

Corynne:  Basically, an organization that's devoted protecting your digital rights.  And we do this in a variety of ways.  One of the principal ways that we do it is, we have a team of lawyers, which is the team that I lead.  And we go to court, we go to Congress, we go to the FCC, we go to lots of places where we see a threat to digital rights in one way or another.  And we go there, and we try to advocate for change.  Or, sometimes, what we advocate is for not change, but just making sure that we keep the status quo.  Sometimes we think about it as sort of making sure that the Constitution makes it intact into the digital age.

We also have a team of tech projects folks, who work on things like creating new tools so that you can encrypt your communications and protect them from the spying eyes of whomever.  And we also have a group of activists that work very hard on raising public awareness about a variety of digital issues, from privacy rights and the importance of protecting fair use and free speech online.  We talk sometimes a lot about net neutrality.  We hit a lot of issues that are sort of related to the Internet.  Basically, if it has to do with the Internet, we're worried about it.

03:15:

Chris:  We're going to be talking about a number of legal issues and municipal networks.

03:20:

Corynne:  Um hum.

03:20:

Chris:  But first, I just wanted to say that you actually represented a dancing baby in court.  And I'm just curious how that went.

03:27:

Corynne:  [laughs]  Yes.  That has been one of the longest-running cases I've ever been involved in.  And essentially what happened is that, my client is a mom, and she captured some video of her kids dancing in the kitchen -- a 30-second video -- and she posted it online so that her mother, who lives across the country, could look at it easily.  And -- she posted it on YouTube.  And it turns out that the music that the kids were dancing to was Prince's "Let's Go Crazy."  That's what they liked at that time.  And it turns out, also, that Prince does not like his music being posted online in any form, in any way, ever -- even a 29-second video with him just sort of playing in the background on someone's CD player.  And so, as a result of that, Universal Music Group sent a notice demanding that the video be taken down.  And there's -- they have -- there's provisions that allow them to do that.  But there's also provisions that allow a person to hold the sender of such a threat accountable if they're making a threat against content that's actually what's called a "fair use" -- so it didn't infringe anybody's rights.  It didn't infringe Prince's rights, or anyone else's rights.  So, basically, we've gone to court, and it's been a long-running legal battle, to make it very clear that you can't abuse copyright to take down content that is actually protected under the law.

04:58:

Chris:  Well, I want to thank you for that.  I'm a photographer.  I make a part of my living doing -- sports photographer for some local universities, and that sort of thing.

05:07:

Corynne:  Um hum.

05:07:

Chris:  And I believe strongly in copyright.  But I believe very strongly in appropriate copyright, as befits our -- the Constitution.  And society's greater needs.

05:16:

Corynne:  Yeah.  That's exactly right.  We try to say -- we try to advocate for a balance.  It's not that we don't think there should be copyright protections.  But we just need to make sure that we have the balance right, so that copyright protections is doing what it's supposed to do, but not getting in the way of new creativity and innovation.  And, really, just ordinary uses, like a person posting a video of their kid.

05:36:

Chris:  So, let me ask you, EFF has been a supporter of municipal networks.  How does municipal networks fit in?  And why is EFF interested in that model?

05:45:

Corynne:  Um hum.  Well, this has been a relatively recent development for us as an organization.  And it's an offshoot of our net neutrality work.  So, we have been involved in the net neutrality issue for quite some time.  But, in particular, the last year, we started really focusing in on it much more actively and directly.  And your listeners are probably familiar with our net neutrality debate, so I won't go completely into that.  But the essence of the problem is, you know, people need -- users need -- to make sure that they have access to good, high-quality, high-speed Internet.  And net neutrality is a way of making -- is a goal.  And having the FCC, having net neutrality rules, is a way to help ensure that.  But we've always thought that that really wasn't the only solution to the problem, and that, you know, we, as an organization -- we're not the kind of place that, you know, looks to Washington to fix problems for us.  And we don't think, you know, a lot of our users and a lot of our members are the kind of people that just want to leave it to the FCC, or Congress, or the other muckety-mucks in Washington to protect our Internet.  We think that, you know, a lot of people want to take matters into their own hands.  And we wanted to help support that kind of activity as well.  So, what we started saying to a lot of folks is that, look, you know, if you care about net neutrality, net neutrality begins at home.  And so, we started looking at the municipal broadband issue.  And people call it many things:  community fiber -- there's a lot of ways people talk about it.  But we saw that there were all these exciting projects where people were sort of protecting Internet access, and taking it -- you know, taking ownership of it for themselves, via these municipal projects.  And we think that's pretty exciting, again, because we think that we shouldn't leave it to the folks in Washington to make sure that we have good access to the Internet.  We want people to be able to sort of take ownership of that for themselves.  And municipal networks was a way to make that happen.

07:50:

Chris:  Well, that's very similar to our point of view, as well.  We love to see power locally.  We want to see decisions made locally.  We like to see the benefits of these economic activities staying locally, in many cases, rather than spending a bunch of money on a bill that ultimately leaves the community.  You know.  So, there's all kinds of -- there's ALL KINDS of benefits from municipal networks.  But ...

08:15:

Corynne:  Yup.

08:15:

Chris:  ... one of the things that I wanted to make sure that we were able to spend a lot of time on is, there's a couple of questions that have popped up from time to time.  And so I'm curious to get a straight answer on -- How, when a municipality operates a fiber optic network, and delivers services, specifically, to residents and businesses, I'm curious if there's a -- different expectations, when it comes to the freedom of speech protections, when it's a public owner of a network versus a private owner of a network.

08:47:

Corynne:  Sure.  So, that's actually a very important question.  And I think it's something that's still kind of evolving, frankly.  But there are a whole host of systems in place to -- that govern when a service provider can, for example, reveal identifying information about its customers.  And that's the simplest example.  So, for example, if the government, you know, knows that someone at X IP address is engaging in some kind of conduct that they're investigating, they might go to the ISP and say, hey, I need to know, you know, the customer information that's associated with this address.  Or a private entity might go -- like, say, a copyright owner who thinks someone's engaging in infringement -- might want to go to the service provider and say, I need the information associated with this account, because I think it's engaging in infringing activity, and I want to pursue this person in a court of law.  There's a whole set of systems that are in place that allow some protections for the subscribers, so that their information isn't just handed over willy-nilly.  And we want those protections.  Those are important privacy protections.  Because you really -- you don't want to be in a situation where you feel that your ISP is spying on you, or helping other people spy on you.  It's kind of basic, right?

10:10:

Chris:  This is what you'll often call the -- I'm trying to remember -- it's -- it makes people less inclined to participate in an open society, right?  It's --

10:19:

Corynne:  That's right.  That's right.  It impedes what's called your freedom of association.

10:23:

Chris:  Right.

10:23:

Corynne:  So, it's not just your freedom to speak freely.  But the First Amendment also protects your ability to associate freely.  And it also protects, by the way, your ability to communicate anonymously, in many circumstances.

Now, all of these protections, you know, can be overcome in an appropriate place.  So, if you're doing something completely illegal, it's not like you can't be held accountable for it.  But we want to have protections in place, to make sure that, you know, the system isn't being abused.  So that people can feel comfortable that they can communicate, you know, without, basically, anyone spying on them.

So, where it can get a little bit tricky is with municipal networks.  So, if your ISP is the GOVERNMENT, itself, some of those traditional protections get a little tricky, don't they.  Because then you're not sure what you can rely on.  And so, I think customers get a little -- might get a little uncomfortable, not being sure about what it is that their ISP is and is not allowed to do, because their ISP isn't, you know, an independent private entity but rather the government itself.  And so, one of the things that we've done, over the years, is, we've talked to some municipalities -- and I probably shouldn't name names, but we've talked with some municipalities, and given them some advice about how they can help reassure their customers that they will protect their anonymity, and that they, you know, aren't going to taking steps to spy on them.

And I think it's really a good idea, if a municipality is going to be the one running the network, that they publicly bind themselves and make commitments to their customers about what they won't do.  So that their customers can have some comfort that, in choosing Internet access from the government, they haven't given up the rights and protections that they have come to expect.

12:16:

Chris:  This must be something that has an analog.  I sometimes think -- you know, the local government also has a lot of health and human services records on me, that maybe the police would want to get.  And so, I presume that just because the -- some information is held by one part of local government doesn't necessarily make it all that easier.  In fact, in some cases, just in practice, I see that local divisions of government often hate each other more than they dislike anyone else.  And so, they may be MORE disinclined to cooperate, in some cases.

12:51:

Corynne:  Well, you could have that kind of informal protection, right?  Where the agencies ...

12:55:

Chris:  Right.  That would be informal, right?

12:58:

Corynne:  ... don't play nice.  Yeah.  I mean -- But the thing is, that -- it is true -- and I don't want to be a scare-monger or anything, but it is true that one of the things that we've learned at the national level is that, you know, the -- we don't totally know what the agencies are up to.  And they're not completely transparent about what they're up to.  And so that is something that is worrisome.  And why I think the key, number one, is transparency.  So, the government agency -- whether it's big or small -- government agencies need to be utterly clear about where they will and will not share information, and what they're up to.  So that, you know, customers have the ability to vote with their wallets, if they want to.  I mean, --  Well, if they can.  [laughs]  But, you know, this is just what we know -- is that, you know, a number of the federal level -- you know, the different agencies were sharing information.  Partly, in the wake of 9/11, they were under a lot of pressure -- why didn't you share information more?  But that can be kind of worrisome if you think like, oh, wait, so, the NSA is collecting X kind of information.  And then they're handing it over to the FBI.  And then the FBI is using that information to do who knows what.  That makes a lot of us pretty nervous.  And, you know, I don't think municipalities would have any such ill intent.  But subscribers, you know, are going to want to know that they're protected against ...

14:17:

Chris:  Right.  Something that we've tried to be clear about is that we don't think there's any one -- sort of one solution.  In the sense that, sometimes, megacorporations, like an AT&T or a Comcast, it seems, are more inclined to cooperate with government, when it comes to, you know, perhaps skipping around the side of the Constitution to collect data.

14:39:

Corynne:  Um hum.

14:39:

Chris:  And in other cases, big corporations are less likely to cooperate.  And they have the legal staffs that can respond to overly broad requests.  And so, you know, while in almost every case, I generally think smaller is better, and community-sized is better.  But we've been candid in admitting that when it comes to, you know, a community, if they're being leaned on heavily, they may not have the resources -- of a Google, for instance -- to fight back.  And it's a concern.

15:09:

Corynne:  Well, I will tell you that -- just in case there's any city representatives listening to this podcast -- if you feel like you're getting under unfair pressure, then you should call me.  And EFF will try to help.

15:24:

Chris:  Well, that's excellent.  I'm really glad to know that people have that resource.  And I hope that that's something that they understand.  I'm sure that those who are already members of the American Public Power Association, you know, they have some ways of reaching out.  But I also think that it varies from place to place.  And I hope that those communities that are building networks will have thought about this ahead of time and have your number on speed-dial.

15:47:

Corynne:  [laughs]  There we go.  Another thing to think about is that, you know -- and we, too, are very supportive of different kinds of experiments with community fiber and community broadband.  And it may that, you know, a choice might get made by a municipality that they're going to support the infrastructure building, but then they're going to let private companies lease it out, you know, on non-discriminatory terms, so that you can have competition, and so on.  And, you know, that the municipality itself -- right, the city -- doesn't want to be in the business of being your ISP.  So, you know, it seems to me that there are plenty of versions of community networks that don't necessarily raise the same problems.  So I think we're talking about a situation where, say, a city is actually the ISP.  Right?  They're the ones who are offering the service to subscribers.  So they have subscribers -- you know, direct customers, I suppose.  Directly.  As opposed to when the city is just having a, you know, private ISP do so.

16:43:

Chris:  Is there anything else you wanted to share with us, or maybe just reiterate, before we end the show?

16:47:

Corynne:  Well, the only thing I guess I would stress once more is that I think that no matter what version of a municipal network you've got, the best thing you can do to protect your customers is to work very, very hard on being as transparent as possible about what your activities are, and what your policies are going to be, so that folks really know what they're getting.  And that will then empower your users to take steps when they need to.  And, you know -- another -- just one last thing -- that private ISPs do, and certainly any ISP should do, is, whenever possible -- if, for example, you get a request for someone's information, make sure that customer knows that that request is pending, so that they have an opportunity to take steps to protect themselves, if it's appropriate.

17:34:

Chris:  Excellent!  I think transparency is one of the reasons that we actually like municipal networks.  So, I wholeheartedly agree with you in the call for as much transparency as possible.  Thank you for coming on the show.

17:46:

Corynne:  My pleasure.

17:48:

Lisa:  Send us your ideas for the show.  E-mail us at podcast@muninetworks.org .  Help spread the word about municipal networks by liking us on Facebook and following us on Twitter.  We are @communitynets .  Thank you again to Persson for the song, "Blues walk," licensed through Creative Commons.  And thanks for listening.  Have a great day.