Columbia Law School Professor Eben Moglen wants to destroy the Federal Communications Commission. Not as some kind of terrorist act, but because technology is rapidly making it irrelevant.
The agency might have made sense in the 1920s, Moglen says, when it was formed to assign specific frequencies to broadcasters so they wouldn’t try to drown each other out by cranking up the transmitter power. But a new generation of intelligent radios, combined with equally clever computer networks, is making it possible for anybody to use the airwaves without interfering with anybody else.
That raises the question of why Rupert Murdoch, say, needs exclusive access to a slice of the radio spectrum for his Fox television network when he could just as easily put his content out over the Internet for customers to pick up using low-powered wi-fi receivers hooked into the Web.
“My goal is to do all of the work it takes to be explaining to the Supreme Court in 2025 why broadcasting is unconstitutional,” says Moglen, who speaks in perfect, rolling sentences. “We have a long march to do, we have a lot of education to do, society has to catch up with our vision of the future, but we are going someplace and the only question is timing and skill in driving.”
Moglen’s comments would be easy to dismiss, except for the woe he’s already caused the software industry. For nearly a decade, Moglen has been the chief legal officer at the Free Software Foundation, in charge of defending the General Public License, a subversive bit of lawyering that turns property law on its head by prohibiting the users of open-source software from charging money for it.
A polymath who wrote code for IBM in the 1970s while he was earning a law degree and a Ph.D in history at Yale, Moglen enjoys using the tools of capitalism against itself. He’s wrung significant concessions out of software companies without filing a suit, including forcing Cisco Systems to “open up” the code in Linksys routers soon after it bought the company for $500 million in 2003.
“I was always able to begin that phone call with the magic words “I don’t want money,’” Moglen says, chuckling. “I only want you to play by the rules.”
Because open-source software is so easy to modify and use, businesses have embraced it, and millions of people have installed the Linux operating system on their computers. Now entire nations, including Brazil and Venezuela, have committed themselves to using open-source code. The majority of commercial Web servers run on open-source Apache software.
The spread of open source is a threat to established broadcasters, not to mention cellular telephone companies and other holders of FCC licenses. By using open-source software and low-powered “mesh networks” that can sniff out open frequencies and transmit over them, Moglen says, “we can produce bandwidth in a very collaborative way,” including transmitting video and telephone conversations that would normally ride on commercial networks. The Linksys WRT54G wireless router is for hackers what a Model A Ford was for hotrodders in an earlier era — a highly adaptable platform for experimentation.
“We remove the proprietary software and install open source,’’ says Sascha Meinrath, co-founder of a group that is providing Urbana, Ill. with free wireless Internet access. By “flashing” communications chips with new instructions downloaded off the Internet, Meinrath says, hackers can add sophisticated features to wireless routers such as the ability to adjust frequency and signal power.
That allows more users to occupy the same crowded slice of radio spectrum. But the same code can just as easily allow users to transmit on frequencies the FCC has licensed to somebody else.
Should the FCC try to crack down, the hackers have a powerful weapon: The First Amendment. An offshoot of the Free Software Foundation called GNU Radio is developing a new generation of radios and TV receivers that use software for just about everything except the antenna and the power source. The FCC can prohibit manufacturers from selling radios that transmit on illegal frequencies, but it would have trouble shutting down a Web site distributing software that does the same thing.
“You cannot regulate code without going through the First Amendment-type balancing tests we have for any other type of speech,” says Cindy Cohn, a lawyer at the Electronic Freedom Foundation in San Francisco. “Code is speech.”
Broadcasters fear that an unregulated community of hackers could throw the airwaves into chaos.
“There's a reason there is the FCC — to protect the integrity of the broadcast band,” says Dan Wharton, spokesman for the National Association of Broadcasters in Washington, D.C. “We're very concerned about the potential for interference.”
Techies assume they can solve such problems with better software. But regulators have to anticipate that people will try to drown each other out with transmitter power, says Gerald Faulhaber, a former chief economist for the FCC who now teaches at the University of Pennsylvania's Wharton School of Business.
“Engineers want people to be good,” Faulhaber says. “Economists assume everybody is bad. And guess what? We're right.”
But Moglen believes his First Amendment arguments will trump such objections. Not only will the government have difficulty prosecuting millions of consumers using open-source radios to broadcast on unauthorized frequencies, he says, but the very act of using the airwaves in that manner will make it harder to defend the monopolies granted broadcasters like Fox.
“We've known forever that licensing newspapers is against the rules, so why should radio spectrum be any different?” he says.
Moglen’s 20-year march to the Supreme Court may already have begun. The FCC is in the midst of a proceeding to determine how it will regulate so-called “cognitive radios,” which use software to switch power and frequency. Hackers are hard at work refining such devices in the cooperative world of open source, where software writers post their code on the Internet and others modify it or offer suggestions.
And companies like Cisco, IBM and Computer Associates are hastening the process along, partly as a way of competing with Microsoft. They've even put $4.3 million into a public interest law firm Moglen installed in New York offices to enforce the GPL.
“It's really a mistake for capitalists to assume that in these areas— software, information, data — that the best way of guaranteeing the production of this valuable material is the old way [of selling over government-authorized networks]," Moglen says. “There is something different going on here.”