Susan Crawford

[Commentary] It is good to be one of the handful of companies controlling data transmission in America. It’s even better — from their perspective — to avoid oversight. And it’s best of all to be a carrier that gets government to actually stop existing oversight. The stagnant telecommunications industry in America has long pursued the second of those goals — avoiding oversight, or even long-range thinking that would favor the interests of all other businesses and all other Americans over those of AT&T, Verizon, Charter, and Comcast — by proclaiming that there is something really magnificent coming any day now from the industry that will make anything regulators are worrying about irrelevant. And now that technique is at the heart of achieving Goal Three—wiping out oversight.

Case in point: Right now, plans are being implemented at the FCC and at least 17 state legislatures to block cities from constraining uses of their rights-of-way by private cellular companies for 5G deployments that — you guessed it — are coming any day now. In other words, if a city wants to set up a fair and competitive system that favors competitors, citizens, and long-range goals instead of the interests of a single big company—well, that would be illegal. This nationwide effort is aimed at, effectively, privatizing public rights of way.

[Commentary] In Feb, there was a shakeup at Alphabet’s Access division (the new name for what was originally called Google Fiber). It named a new CEO, Greg McCray, and news outlets reported that hundreds of Access employees were being shifted to other parts of the Google empire. The bumpersticker from defenders of the status quo is that this means the Google Fiber experiment was a disaster. That’s simply not the case. What this set of events does usefully and colorfully signal is that we need an entirely different approach to the country’s desperate need for world-class data transmission....

The only business model for fiber that will work to produce the competition, low prices, and world-class data transport we need — certainly in urban areas — is to get local governments involved in overseeing basic, street grid-like “dark” (passive, unlit with electronics) fiber available at a set, wholesale price to a zillion retail providers of access and services. There’s plenty of patient capital sloshing around the US that would be attracted to the steady, reliable returns this kind of investment will return. That investment could be made in the form of private lending or government bonds; the important element is that the resulting basic network be a wholesale facility that any retail actor can use at a reasonable, fair cost.

[Susan Crawford is the John A. Reilly Clinical Professor of Law at Harvard Law School]

Cities today collect and store a wide range of data that may contain sensitive or identifiable information about residents. As cities embrace open data initiatives, more of this information is available to the public. While releasing data has many important benefits, sharing data comes with inherent risks to individual privacy: released data can reveal information about individuals that would otherwise not be public knowledge. In recent years, open data such as taxi trips, voter registration files, and police records have revealed information that many believe should not be released. Effective data governance is a prerequisite for successful open data programs. The goal of this document is to codify responsible privacy-protective approaches and processes that could be adopted by cities and other government organizations that are publicly releasing data. Our report is organized around four recommendations:

• Conduct risk-benefit analyses to inform the design and implementation of open data programs.
• Consider privacy at each stage of the data lifecycle: collect, maintain, release, delete.
• Develop operational structures and processes that codify privacy management widely throughout the City.
• Emphasize public engagement and public priorities as essential aspects of data management programs.

Each chapter of this report is dedicated to one of these four recommendations, and provides fundamental context along with specific suggestions to carry them out. In particular, we provide case studies of best practices from numerous cities and a set of forms and tactics for cities to implement our recommendations. The Appendix synthesizes key elements of the report into an Open Data Privacy Toolkit that cities can use to manage privacy when releasing data.

[Commentary] Cable is in many ways an uncreative business—“like chicken in a grocery store,” as Comcast founder Ralph Roberts once said. The cable guys (today, mostly Comcast and Charter in the US, who together account for half of the 92 million high-speed internet access subscriptions in the country) have successfully implemented one basic, foolproof idea: locking up entire geographic markets by acquisition while scaling up rapidly as possible. With high numbers of subscribers all within clustered markets, costs per subscriber are vanishingly low, back office functions can be shared, programming can be bought at a bulk discount price (half or a third of what any smaller operator might pay), and competition can be avoided. Meanwhile, customers keep paying. Another week, another chicken. But in order to avoid anyone getting the idea that oversight might be a good idea, Charter and Comcast have to uphold the fiction that their service is getting better and better in response to trumpeted “competition”—even if there isn’t any actual rival anywhere around. If everyone believes that services are improving, then there’s no need for government intervention. The market is providing!

What a monopolist most desires is a quiet life. That’s why Spectrum’s marketing and management teams let loose with ads claiming that consumers would get new X internet data speeds — “fast, reliable internet speeds.” The branding people went nuts, using adjectives like Turbo, Extreme, and Ultimate for the company’s highest-speed 200 or 300 Mbps download offerings. But no one, or very few people, could actually experience those speeds. Why? Because the company deliberately required that internet data connections be shared among a gazillion people in each neighborhood.

[Commentary] On January 26th, I interviewed former Federal Communications Commission Chairman Tom Wheeler at Harvard Law School, where I teach. It was the day the new administration announced his successor, who will have very different priorities. We talked about network neutrality, telecom mergers, high-speed access, and the dangers that lie ahead under the next administration. I asked, "In the Trump administration, people are talking about stripping regulatory power from the FCC, and essentially taking the agency apart (including moving jurisdiction over internet access to the Federal Trade Commission [FTC]). 'Modernizing' the FCC is the lingo being used. What’s your thought about that?"

Wheeler said, "It’s a fraud. The FTC doesn’t have rule-making authority. They’ve got enforcement authority and their enforcement authority is whether or not something is unfair or deceptive. And the FTC has to worry about everything from computer chips to bleach labeling. Of course, carriers want [telecom issues] to get lost in that morass. This was the strategy all along. So it doesn’t surprise me that the Trump transition team — who were with the American Enterprise Institute and basically longtime supporters of this concept — comes in and says, 'Oh, we oughta do away with this.' It makes no sense to get rid of an expert agency and to throw these issues to an agency with no rule-making power that has to compete with everything else that’s going on in the economy, and can only deal with unfair or deceptive practices. Because we’re talking about one sixth of the economy. More importantly, we’re dealing with the network that connects six sixths of the economy."

[Susan Crawford is the John A Reilly Clinical Professor of Law at Harvard Law School]

[Commentary] This is the story of a dramatic failure of imagination and vision at the state level: Gov Charlie Baker’s (R-MA) apparent insistence that Massachusetts relegate small towns to second-rate, high-priced, monopoly-controlled (and unregulated) communications capacity. It’s a slow-rolling tragedy that will blight Western MA for generations. The likely outcome: Only those plucky, scrappy towns that elect to build on their own will escape the grip of unconstrained pricing for awful service. The rest will fade into irrelevance. What new American generations will stay in a place that is essentially unconnected to the world? What new businesses and ways of making a living will emerge there? None and none.

There’s an alternative vision that would allow Western MA communities to control their own destinies: subsidize towns that want to own their own infrastructure.

[Susan Crawford is the John A. Reilly Clinical Professor of Law at Harvard Law School and a co-director of the Berkman Center.]

[Commentary] From July 2015 through August 2016, I interviewed dozens of New York Police Department (NYPD) leaders and employees, many anonymously, in an attempt to fully document the department’s adoption of Twitter and other online platforms. (The full case study was published by the Berkman Klein Center for Internet & Society.)

This adoption was a transformative move for the department and an attempt to balance crime prevention and community outreach — an effort, as NYPD Commissioner Bill Bratton said, to shift the police mindset from “warrior” to guardian.

[Susan Crawford is the John A. Reilly Clinical Professor of Law at Harvard Law School and a co-director of the Berkman Center.]

[Commentary] Those who urge progressive tech policy have no more ideas than anyone about how the surprise results of the 2016 election will affect the issues about which they care the most. But in one area, I see reason for hope.

Donald Trump and his colleagues are reportedly warming to the idea of an infrastructure bank, although we don’t have much information about how that bank would operate. An infrastructure bank or banks could nudge the country fully into the digital era as well as generate a host of new occupations. Jared Kushner, the soft-voiced, influential son-in-law of the President-elect, will understand these suggestions. (I respect Kushner; I met with him a few times to discuss connectivity issues in New York City.) After all, he and his team launched WiredScore.com, which labels commercial buildings across the country on the basis of their connectivity. He knows that where there are uncompetitive markets for data services, businesses suffer. It’s Kushner’s role as a developer that should make it particularly easy for him to understand the need for open, multipurpose, do-it-once infrastructure that forces competition into markets where it has withered.

[From Nov 23, 2016]

[Susan Crawford is the John A. Reilly Clinical Professor of Law at Harvard Law School and a co-director of the Berkman Center.]

[Commentary] There is zero reason for the Department of Justice or the Federal Communications Commission — who will pool their resources to examine this deal — to approve the AT&T-Time Warner transaction. And there are more reasons to say no than there are channels on DirectTV.

The high-speed Internet access market in America is entirely stuck on a expensive plateau of uncompetitive mediocrity, with only city fiber networks providing a public option or, indeed, any alternative at all. The AT&T/TWX deal will not prompt a drop of additional competition in that market. Nor will it mean that the entertainment industry will see more competition or new entrants — just that one player will get an unfair distribution advantage. It’s hard to think of a single positive thing this merger will accomplish, other than shining a bright light on just how awful the picture is for data transmission in this nation. This deal should be dead on arrival. In fact, AT&T should spare us by dropping the idea now. This merger must not happen.

[Susan Crawford is the John A. Reilly Clinical Professor of Law at Harvard Law School and a co-director of the Berkman Center.]

[Commentary] When a slew of websites couldn’t be reached Oct 21, suddenly people across the US started paying attention to the Internet of Things. It turns out that tens of millions of digital video recorders and other devices connected to the internet and protected only by factory-encoded, easily-brute-force-guessable passwords can be harnessed in the service of gigantic distributed denial-of-service attacks. When those devices were instructed to send huge numbers of messages to computers providing pointers to some very popular websites, the computers on the receiving end were brought to their knees—incapable of processing any requests. Without the directional signs in place, suddenly huge numbers of sites couldn’t be found. Who knew the Internet of Things could have such a big effect on our daily lives? Actually, a lot of people knew.

IoT is very big business these days.While we’re patching those insecure home DVRs, routers, and webcams, let’s back up and talk about the implications of IoT for public values generally. Because it’s not just websites that could be affected by unrestrained Internet of Things deployments. We’re not just using IoT in our homes. We’re also going to be using it, in a big way, in the places where 80 percent of Americans live, work, and play: in cities.

[Susan Crawford is the John A. Reilly Clinical Professor of Law at Harvard Law School and a co-director of the Berkman Center.]