Can Blacks use the law of discovery to carve out new territory and capital?

One of the failures of black leadership is its unwillingness to pursue a truly self-interested agenda for the people they allegedly represent. The current narrative of assimilation does not work. It puts blacks in an unequal and weak position compared to whites and other non-white populations who have pursued a capital acquisition policy first versus a political empowerment/assimilation approach still preferred by most blacks. It never discusses in any significant way the acquisition of productive capital around which communities can be built. Rather, the assimilationist argument centers on fluffy subjects such as social justice, membership of degreed blacks on the boards of white-owned corporations, and affirmative action in the workplace and in colleges and universities.

To be fair, a number of grass roots advocates do bring up the topic of access to capital by black-owned firms, but the problem is that business capital, whether in the form of loanable funds or equity investment is small compared to the number of black businesses in need of funding. Also, there is the risk that terms and conditions underlying the funding of black enterprise firms may not representative of the black population primarily because the boards that direct these underwriters are probably not members of the community in the first place. Just take a look at the names and faces of the members of the typical executive committee or board of directors and you see my point.

Blacks, as a people, simply are not calling their own shots. If you listen to the rhetoric of current black political leaders, liberty and freedom as it pertains to capital, are not a part of the lexicon. Black political leadership is more concerned with keeping blacks available to vote for white Democratic Party candidates as opposed to self-reliance. Probably in the minds of black political leadership, self-reliance would be akin to self-determination or nationalism and these leaders are afraid that such an approach would sever their attachment to America. But the attachment to America is false one, as I have argued before, because blacks did not come here voluntarily and apply the law of discovery.

To summarize Chief Justice John Marshall, the European came to North America but while acknowledging its Native American occupants, the law of discovery, of showing up first, gave title to the country making the discovery. That Native Americans were there first was irrelevant. Once, say England, made its discovery of what would later become the United States, it created a title that excluded claims by any other European power. Establishing this “title” over the land meant of course establishing control over its natural resources; land, air, water, minerals, the stuff that supports production, transportation, communications, energy generation and distribution.

To the activities that land, water, air, minerals, paid, indentured, and enslaved labor supported, the European was able to attach “coin”; to monetize. He would later create a centralized banking system to underwrite his government’s issue of debt as well as serve as the lender of last resort to commercial banks. The European’s financial system would, in conjunction with public sector investment, underwrite technological innovations that would further spur the design and production of consumer goods and services.

Blacks have been left largely out of the ownership of productive capital in the American political economy and as I have discussed in previous posts, it is too late and probably impractical to attempt any action under the laws of discovery for the purpose of acquiring the natural resources that underpin an economy that would support 43 million people on a self-sustainable, self-reliant way. But I do not think this is impossible.

Cyberspace provides “territory” that blacks can conquer and extract capital from. From the time I immigrated to the mainland I have always believed that blacks had the intellectual resources to construct their own vibrant economy. It boils down to a willingness of the black population to use broadband technology to connect to and import resources from outside of the United States and mixing those resources with the access to land, air, minerals, and water that blacks have here in the United States. It means the black population using its engineering skills to build a renewable energy infrastructure that provides electricity to its population. It means building communications networks using unlicensed to spectrum to tie black households to basic services. It means using the black population’s legal talent to advocate for laws that protect the importation of items into the United States that can be processed by plants designed and built in the U.S. by black engineers. It means using financial talent to reinvest these proceeds back into the black population and further growing its resources and income.

The great thing about applying the “law of discovery” to cyberspace is that no one has to be kicked out or enslaved. There is still plenty of territory to carve up; to reverse colonize but this time with equitable results.

Anonymity in broadband and cryptocurrency

The U.S. Supreme Court issued an opinion in Timothy Carter v. United States (No. 16-4012) on the question of whether there was a reasonable expectation of privacy where cellphone information stored by a wireless carrier is shared with the government without a warrant issued on the basis of probable cause. The court ruled last Friday that using third-party cell storage location information to track the physical movements of a citizen requires a warrant less the Fourth Amendment of the U.S. Constitution be violated. The Fourth Amendment provides the following:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by the oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This opinion is pretty narrow and by that, I mean that the court’s holding in this case may not hold when the issue does not involve seizing information documenting an individual’s movement over a long period of time or the involuntary sharing of such information with a third party.

I admit that on the surface, this case may have nothing to do with the transmission of digital information in the form of currency given its narrow meaning. Cryptocurrency is still in its infant stage. Unlike a cellphone that generates continuous cell site location information, I doubt at this stage of crypto growth that you will have a consumer making 127 straight days of transactions such that miners are continuously verifying a consumer’s transaction blocks. It may be another matter for vendors that accept cryptocurrencies that are accepting crypto every day.

What cryptocurrency does have in common with the case is the threat to anonymity. While the general description of cryptocurrency includes anonymity, anonymity is, like the information transmitted by a cellphone, not guaranteed.  In a piece for CoinDesk.com, writer Adam Ludwin describes how cryptocurrency transactions can be “deanonymized.”  While anonymous, Bitcoin transactions, for example, are not private. Transactions are recorded in a distributed ledger called a blockchain. Anonymity is more a function of the Bitcoin protocol, but during a user loses anonymity when their identities are linked to their initial Bitcoin currency purchases, whether done via a digital wallet or via an exchange.

Mr. Ludwin describes how anonymity can be gained by buying Bitcoin from a private holder or buying from an exchange.  But just like a mobile broadband communications network can betray a subscriber’s identity, so to can a cryptocurrency network, whether via the public nature of Bitcoin’s transactions ledger or via the IP addresses of the computers originating Bitcoin transactions.

 

Caribbean media producers need paid prioritization

In his 2015 open internet order, former Federal Communications Commission chairman Tom Wheeler argued for a seamless internet that promotes a virtuous cycle of innovation.  This seamless internet ecosystem would include every point on the internet between the end user sitting at his laptop or on his smartphone and the website from whence the end user is attempting to download information. To ensure this seamless experience, Mr Wheeler invoked the four open internet principles of transparency; no paid prioritization; no throttling of a website’s traffic; and no blocking an end user’s attempt to access the website of her choosing.

As of 11 June 2018, Mr Wheeler’s rules are no more, repealed and replaced by the Restoring Internet Freedom order issued by the Commission in December 2017.  While the Restoring Internet Freedom order kept language from the open internet order that addressed transparency i.e. the public disclosure of accurate information regarding network management practices, performance characteristics, and terms and conditions of service, etc., it repealed language addressing throttling of traffic from website, paid prioritization creating faster lanes for content providers, and blocking consumer access to legal websites.

The 2017 order addresses throttling, blocking, and paid prioritization concerns by providing language defining reasonable network practices. A network management practice is reasonable if it takes into account a legitimate business goal, the network’s architecture, and the technology of the broadband service. But critics of the Restoring Internet Freedom order are interpreting the repeal as authorizing ISPs to block or throttle internet traffic or allow large content providers to pay ISPS for the privilege of faster data lanes to their subscribers.

Critics can also be found in state legislatures where, according to data compiled by the National Conference of State Legislatures, 65 pieces of legislation were offered in state legislatures that put the FCC’s 2015 rules on net neutrality into state law. Eight of these states (California, Georgia, Maryland, Massachusetts, New Jersey, New York, Pennsylvania, and Virginia have metropolitan areas where significant Caribbean populations are located.  None of these states have enacted net neutrality legislation yet. Net neutrality legislation has already failed to pass in three of these states: Georgia, Maryland, and Virginia.

I understand the idea of transparency because of the importance it plays in negotiating for broadband access services. I never understood, however, why so-called proponents of net neutrality rules were against voluntary strategic partnerships between ISPs and content providers.  For example, the Caribbean has an emerging entertainment industry, one that recognizes the benefits of digitization. In the 21st century artists have to leverage the internet to get to an audience that is viewing more video traffic via mobile. Getting in front of a sizeable Caribbean immigrant audience in the United States may mean leveraging paid prioritization in order to ensure the availability of bandwidth necessary to stream video and music.

The FCC’s decision to repeal paid prioritization may benefit entertainment producers from the Caribbean in the long run.  Attempts by the states to balkanize communications regulation should not be allowed.

The court in AT&T-Time Warner produces a rule that is overall positive for Caribbean media consumers

Tom Wheeler, former chairman of the Federal Communications Commission, told C-SPAN’s Peter Slen on last Monday’s segment of The Communicators that the absence of open internet rules tells content providing internet service providers that they can discriminate and favor their own content.  Mr Wheeler also opined that on 11 June 2018, major local monopolies will be told that it is fair to discriminate. Over time we will see internet services discriminate in a way that benefits their bottom line. Mr Wheeler believed that an AT&T-Time Warner tie-up would present consumers that type of anti-competitive dilemma.

The United States District Court for the District of Columbia disagreed with the former Commission chairman, issuing an opinion yesterday in United States of America v. AT&T, Inc., that says that AT&T Inc.’s acquisition of the media giant did not violate anti-trust law.  Vertical mergers rarely get denied by the courts. Given that AT&T and Time Warner do not play in each other’s space, in my opinion, finding the acquisition to be harmful to consumers would have been a bit much. What I always find fascinating is the expression of entitlement by consumers of media services; as if media consumption and the digital means by which content is consumed is a right.

Take for example the reaction to the merger by a leading member of the Fake Left, Senator Ed Markey, Democrat of Massachusetts:

“This ruling is an assault on consumers, choice, and innovation,” said Senator Markey.  “The telecommunications market needs more competition, not more consolidation. We need a telecommunications market where pay-TV gatekeepers don’t favor their own content providers, but allow minority, diverse, and independent programmers to reach Americans’ screens. I fear this decision will only further fuel merger mania in the telecommunications and other markets.” 

“Today’s decision underscores the need to restore robust net neutrality rules, so broadband providers like AT&T cannot use their gatekeeper role to harm competing services and content. Without net neutrality protections in place, AT&T will be free to block, slowdown, or charge fees to competitors like Netflix and Hulu to favor their own DirecTV Now streaming service and HBO content. Speaker Ryan should schedule an immediate vote on my CRA resolution to restore the FCC’s net neutrality rules.”

Both Mr Wheeler and Mr Markey come around and paint yesterday’s court ruling with the net neutrality brush while at the same time, unwittingly, making the court’s argument: that there should be a showing that this vertical merger would substantially erode competition. Bear in mind that United States of America v. AT&T, Inc. has nothing to do with net neutrality per se, but Mr Wheeler and Mr Markey have opened the conflation door by arguing that application of Title II-based net neutrality rules would mitigate AT&T’s gatekeeper role. This is speculation and fades further when you compare their speculation with the court’s description of how the industry works.

While I found the first 30 or so pages of the opinion to read like a script proposal for a Netflix docu-drama, the court’s description of how the video distribution industry works makes Mr Wheeler and Mr Markey’s assessments sound like paranoia. AT&T has no incentive to hoard content. On the contrary, part of the company’s reason for acquiring Time Warner is to create another stream of revenue: advertising fees. As more consumers cut or shave the cord at home and go mobile, AT&T’s lost subscriber fees must be recovered from other sources. AT&T decided to chase advertisement revenue. Time Warner’s content is traction for advertisement revenue. It is more efficient to get this new content on to as many distributor platforms as possible in order to maximize revenues. This means licensing content to a Netflix or Hulu or even using Time Warner’s production capacity to create content for these other platforms. Blocking or slowing down access to Netflix or Hulu would make no sense because AT&T would risk degrading the value of the content it provides to these platforms as a result of licensing or sales agreements.

Would Title II-based net neutrality rules increase competition in the production and delivery of content? No. Netflix and Hulu were spawned in a light touch, Title II free regulatory zone. They didn’t need permission to create the applications necessary for accessing content. They didn’t need permission to place those applications on the internet. The demand for content comes from consumers and the data on consumer tastes allows Netflix and Hulu to create even better more engaging content. A socialist-style, government approach to dictating how consumers access content and transmit their preferences about content is not what the consumer needs.

This is why the decision in United States of America v. AT&T, Inc., costs me nothing. I am not being compelled to buy content I don’t need because the light touch environment that went back into effect on Monday means that over the top platforms like Hulu and Netflix and the new AT&T will provide me with even more enticing offers to view the edgier content I suspect that will be spawned from competition. Consumers have put content providers and distribution platforms on notice that they can choose providers and distributors at the swipe of a smart phone screen and by allowing vertical mergers and the convergence it spawns, those screens will carry more interesting and diverse content.

If you needed the internet that bad, you would have created it yourself

Monday 11 June 2018. We will see a repeat of the weeping and wailing that Hillary Clinton’s supporters did as they witnessed what they thought was impossible: an electoral loss to Donald Trump. Advocates for the treatment of broadband access as a telecommunications service will weep and wail not because of the loss of internet service, but because they will be out of bullets when the scare tactics imposed on millions of consumers do not come to fruition. As June goes into July into August into election season into Kwanzaa, another argument for attracting anti-Trump voters will fade away.  As the tyrannical Fake Left jump onto social media and create new forums and hashtags for the next rally, they will soon take for granted that the internet still works after all.

What I find disconcerting is the emotion attached to internet access. “If everyone is not connected, we will all sink into the pits of Hades.” “If I am not online, I am inconsequential.” “The internet is crucial to our daily living and well-being.”  None of this is true. Unlike water and energy, internet access is not a necessity for the continuation of life. Approximately 11% of Americans do not use the internet, according to data from Pew Research. More than likely, these individuals are getting information they determine as pertinent to their lives from old tried and true sources: first hand observation, published news sources, direct contact with government agencies, family and friends. These data sources are not as fast or as glitzy, but they have worked for centuries and more than likely were used by the individuals who built this digital world.

I expect the percentage of Americans not using the internet to fall over time when you consider that in 2000 approximately 48% of Americans were not online.  Our children are already internet savvy and this use of online services will only continue as they get older. As we on the tail end of the Baby Boom enter retirement, we may find ourselves using it more to connect with fellow Boomers who, unfortunately, may not be up to travel for various reasons.

What we need to avoid is allowing political factions such as the Fake Left to play on the emotions stemming from the belief that without net neutrality rules, consumers won’t be able to get to the websites of their choice, see speeds from their favorite websites slow down, or have their data sold to third parties they did not approve.  This narrative should be seen for what it is; another way to get votes.

If the Fake Left were really concerned about protecting your privacy and the speed at which you access data, they would tell you that you are responsible for reading the fine print of every service agreement for every information service provider you access. Arguing that terms and conditions are written in “legalese” is no excuse for skipping over disclosures and subjecting your privacy to abuse.  If, as the Fake Left argues, the internet is that crucial to everyday living, so crucial that it should be treated like a utility, then equal fervor should be applied to the consumer who decides to use online services.  In other words, the Fake Left should stop encouraging people who can’t fly to buy an airplane and attempt to fly it without bearing the consequences.

If you can’t get what your want from an information service provider in terms of privacy or speed, then maybe you should invest in consumer encryption services such as a virtual private network, or using a heavily encrypted network or browser such as TOR.

There are also the old methods of information gathering: a telephone (landline) and a newspaper, from which you can access by paying cash, the ultimate form of encrypted currency. Bottom line, there are ways to protect your individual privacy without implementing more onerous rules on society.

A market-based, voluntary open internet, privacy regime is doable

The best protection on the internet is self-protection and a self-protection regime does not have to be implemented via any additional government rules. Rather, for a subscriber to broadband access services provided by an internet service provider, the subscriber should avail themselves of the opportunity to enter into voluntary agreements as to the level of privacy and open internet protections they wish to purchase. The discussion regarding the confusing legal verbiage of written terms and conditions offered to a broadband access subscriber by an ISP should raise the question, “Would transparency best brought about if negotiation of agreements were more bilateral in nature?”

Before delving in any further to the primary question, let me attempt to dispose of one other question that arose in your mind when I posed the first question. “Do people have time to negotiate an agreement for broadband access services?” My response: “Why not?”

Advocates for net neutrality rules captured in the Federal Communications Commission’ 2015 Open Internet Order argue that broadband is now an essential part of the life of the individual and that today’s economy is robust because of high-speed access to the internet. Broadband access, the advocates would argue, should be treated like a utility service given its importance in sustaining the household.

Some would argue that broadband access does not arrive to the level of human necessity, no matter what a number of international organizations have argued.  Among those in disagreement with the “broadband equal to a utility” argument is FCC member Michael O’Rielly, who on a number of occasions has clearly expressed that people do not need broadband to live.  Mr O’Rielly is not alone in his assessment. His two other Republican colleagues, FCC chairman Ajit Pai and FCC member Brendon Carr also agree that 20th century treatment of a competitive 21st century technology such as broadband should not be regulated as a utility.

But for the sake of argument, let us say that broadband access arises to the level of a utility service. If it is that important to life, why would you not negotiate its terms and conditions?  During a negotiation for broadband access, more than likely the ISP would offer some canned language describing minimum services with a list of add-ons and opt-ins for the subscriber to voluntarily agree to. The ISP may offer different tiers of service where each tier provides various levels of privacy protection, transparency, and options for download and upload speeds. If technology permits, there could even be allowance for traffic from chosen websites that receive priority.

In the end, a subscriber’s willingness and ability to pay for different tiers of service will determine the level and amount of privacy and openness she receives on the internet.

I think an answer from the second question provides an answer to the first. Negotiating terms and conditions of service should lead to more transparency because the consumer had a direct hand in creating her services package.  The subscriber would have first hand knowledge about the amount of privacy protection she has bargained for.  But the direct hand in negotiating agreements requires the subscriber’s willingness to educate herself on how her product works. This is a level of knowledge that consumers fail to obtain because they may consider gaining that knowledge to expensive and time consuming. Hence their love for consumer protection agents. They can punt the responsibility of an alleged important, utility style service to them.

Morgan Freeman finds out that the internet has turned millions of Americans into lawyers, prosecutors, and jurors

The only thing missing from today’s internet charge, trial, and conviction of actor Morgan Freeman on allegations of sexual harassment at a workplace are the digital eyewitnesses like the ones that caught Al Franken play-fondling Lauren Tweeden’s breasts.  In Mr Freeman’s case, the eyewitnesses were human. The prosecutors, lawyers, and jurors, however, are mostly digitized and charges and convictions merge and rapidly go viral in a globe that is increasingly connected.

My title implies that the number of arm chair attorneys and jurors has increased. Check your Twitter and Facebook timelines and observe your followers and friends opining on allegations by eyewitnesses (allegations not yet entered into any legal record) and an apology issued by Mr Freeman (questionable as to whether it is admissible as evidence and probably meaningless since he admitted to nothing). As to whether the number of commenters contributed significantly to the degree of virility, I would answer that while there was some contribution, the number of commenters was not the significant contributor. The main contributor is the number of online editors or gatekeepers.  There are more people today that are giving a “thumbs up” to posting a story.

If you lived in Charlotte Amalie, U.S. Virgin Islands in the 1970s, you had one newspaper and two television stations providing you news. That meant three editors deciding what local news got broadcasted and back then local TV news coverage was sparse, in my opinion.  Today the internet has changed that.  Alternative online news sites and blogs mean that a non-story to one editor is a scoop to another. It is not that the same level of information is spreading faster. Viral means to increase the amount of available information that gets to more consumers via digital means.

The increase in the amount of information reported is compounded by an enlarged forum within which the public is exchanging ideas. Some net neutrality advocates would call an enlarged forum an example of the openness of the internet where more media consumers can be heard. Hence the millions of armchair lawyers and jurors.

How valuable are these opinions? In a court they don’t mean much. Judges and attorneys would not want juror assessment tainted by uninformed opinion, meaning these days they would have to look under a rock to find people outside an earshot of a podcast on the matter.  To a social scientist the public exchanges online provide some data on attitudes toward the tawdry behavior Mr Freeman is accused of, but as an experiment, as a measure of opinion the public exchanges don’t provide the best data because the collection is not subject to the best controls.

Probably the only benefit that matters is that people can claim that while they are not a lawyer, they slept at a Holiday Inn and the ability to vent support, denial, anger, or frustration en mass is benefit enough.