Bits Blog: A Ruling Could Support F.C.C.’s Net Neutrality Defense

Charles Rex Arbogast/Associated Press Justice Antonin Scalia

The Federal Communications Commission’s high-profile attempt to defend its net neutrality rules against a court challenge got major support on Monday from the Supreme Court, which ruled in a separate case that regulatory agencies should usually be granted deference in interpreting their own jurisdictions.

In a 6-to-3 decision, Justice Antonin Scalia wrote that in cases where Congress has left ambiguous the outlines of a regulatory agency’s jurisdiction, “the court must defer to the administering agency’s construction of the statute so long as it is permissible.”

That has big implications for Verizon v. F.C.C., in which Verizon challenged the F.C.C.’s Open Internet Order, its rules on net neutrality. Those rules said that an Internet service provider must treat all traffic on its system roughly equally, not giving priority to any one type of data or application as it moves through the provider’s Internet pipes.

The net neutrality case is pending before the United States Court of Appeals for the District of Columbia Circuit. The appeals court was expected to hear arguments in that case this spring, but deferred the case until next fall. Court watchers have speculated that the delay may have been spurred by anticipation of Monday’s decision in Arlington v. F.C.C., No. 11-1545.

“This case just gave the F.C.C.’s argument a lot more weight,” said David Kaut, a telecommunications regulatory analyst at Stifel, Nicolaus & Company in Washington. Mr. Kaut cautioned, however, that the differing facts of the two cases made it uncertain whether the precedent in the Arlington case was sufficient to validate the F.C.C.’s argument that it has authority to regulate Internet service providers.

Edward S. McFadden, a Verizon spokesman, said the company did not “anticipate that today’s decision in Arlington v. F.C.C. will have any effect on our appeal” in the net neutrality case.

That decision will be parsed for months, particularly because in explaining his reasoning, Justice Scalia constructed a hypothetical example that sounded very much like the Verizon net neutrality case.

Using two options of how Congress might have written a telecommunications law, Justice Scalia asked under which of those options the F.C.C. could legitimately claim jurisdiction over Internet service providers.

The answer, he said, was both.

“The question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not,” he wrote.

The precedent applied by Justice Scalia in the Arlington case was Chevron U.S.A. v. Natural Resources Defense Council, in which the court held that courts must defer to an agency’s interpretation of its statutory jurisdiction unless it exceeds the specific bounds set by Congress.

How that applies to the Verizon case remains uncertain, however, because of a previous decision by the District of Columbia Circuit itself, in Comcast v. F.C.C. In that case, which involved a net neutrality enforcement proceeding, the circuit court said that the F.C.C. did not have authority over Comcast’s Internet service, because it was not ancillary to the authority laid out by Congress in the Communications Act.

Preoccupations: In Defense of Working Mostly From Home

The idea that all employees should sit in the same place for eight hours a day, five days a week, seemed maddeningly inefficient to me. I knew that I was at peak productivity at certain times throughout the day, with regular lulls in between. The flexibility to determine when and where I worked made me a better worker.

But as my company grew, something surprising happened: I started to feel the pull of the office. As an employee, I still had little desire to spend all of my day there. As an employer, however, I wanted to ensure that my employees were working efficiently. Requiring everyone to be in the office for at least part of the week seemed the easiest way to do that. I also saw the value of the conversations that arose when people were physically together in a room.

When I heard last week that Marissa Mayer, Yahoo’s chief executive, was banning its employees from working at home, my first thought was, “I’m glad I don’t work at Yahoo.” But I also understood why she felt compelled to enact the policy, at least for now. She is in charge of a huge company that is known for its bloat. This may be exactly what Yahoo needs to get back on track. The question is whether the policy will improve productivity in the long run.

The idea that everyone must be in the office five days a week harks back to a time when workers didn’t have the proper tools to work from home. But we live in a very different world today. Given that technology has made employees accessible around the clock, and that they are often expected to work after hours, the traditional 40-hour schedule is in many ways an anachronism.

Yahoo argued in a memo announcing its new policy that “some of the best decisions and insights come from hallway and cafeteria discussions, meeting new people and impromptu team meetings.” That is certainly true. But it is also the case that some of the most creative insights come only when you give the human brain unstructured time to think. Opportunities for such freewheeling thought rarely present themselves amid the hustle and bustle of daily office life.

IN today’s world, where we are constantly connected, the office should be reconceived as a gathering place to communicate ideas and to reinforce personal bonds. Beyond that, employees should be given the respect, and the responsibility, to manage their own schedules and complete their work on their own time, from wherever they choose. This is the principle we followed in my business, called Khush. We came to the office three days a week for five hours a day, starting around noon.

In 2011, a larger app company, Smule Inc., acquired us, and I learned that complexity grows along with the size of a team. Communication is an ever-bigger challenge. Details can be overlooked. Opportunities for spontaneous collaboration can be missed and the best of intentions misunderstood.

And yet, regardless of a company’s size, the fundamentals of productivity do not change. Smart people still work best when they can choose when and where they are working. Such flexibility also helps employees who are parents. Some of our employees take a break in the afternoon to pick up their children from school, then come back to finish their work. And the work always gets done on time.

Smule was already fairly flexible about scheduling, asking its employees to work a minimum of five hours a day, four days a week, in the office. Recently, as our businesses merged more fully, the company asked the employees from Khush to switch to Smule’s schedule. But instead, I persuaded Smule’s C.E.O. to switch all employees to the three-day-a-week minimum that my company had maintained. He agreed to the change even though he had reservations about it — he is a big believer in face time.

I think this policy comes closest to a middle ground that satisfies the needs of both employers and employees. Rather than leaning on organizational principles designed for an older time, companies should collectively develop new strategies to remove the remaining challenges to working from home.

Prerna Gupta is chief product officer at Smule Inc., a music app developer that in 2011 bought Khush, the company she co-founded.

Worries Over Defense Dept. Money for ‘Hackerspaces’

But the money has stirred some controversy. The financing for the schools program is one of several recent grants that the Defense Advanced Research Projects Agency, or Darpa, has made to build closer ties to hackers.

Unlike the hackers who cripple Web sites and steal data, the people the government is working with are more often computer professionals who indulge their curiosity at their local hackerspace. But the financing has prompted criticism that the military’s money could co-opt these workshops just as they are starting to spread quickly.

There are about 200 hackerspaces in the United States, a sharp jump from the handful that existed five years ago. The workshops, with names like the Hacktory, Jigsaw Renaissance and Hacker Dojo, have incubated successful businesses like Pinterest, the social networking site, and are seen as hotbeds for recruiting engineers and computer scientists.

“Magic comes from these places,” said Peiter Zatko, a program manager at Darpa, who is reaching out to these workshops, looking for cutting-edge ideas in cybersecurity. His program has entered into 74 contracts, and about 40 projects have been completed, work that he said would have been stymied by traditional government bureaucracy. (Mr. Zatko made a name for himself as a respected hacker before joining the government — he testified before a Senate committee in 1998, using the pseudonym Mudge, and told the panel that he could take down the Internet in 30 minutes.)

When his government colleagues see the results of his program, “their jaws just drop,” Mr. Zatko said.

Many people say that hackerspaces are promising incubators for innovation and should be cultivated. However, not everyone agrees that the Defense Department should be playing a role, especially in high school programs.

“Having these programs in schools is fantastic, but the military calling the shots in American education?” Mitch Altman, a co-founder of Noisebridge, a San Francisco hackerspace, said in an interview. “I don’t see that as a positive move,” added Mr. Altman, who, in an online post, was among the first to take a stand against the program.

The controversy over the government programs led to a tense session in a packed ballroom at the Hackers on Planet Earth conference this summer in New York, where recipients and critics of the Darpa financing gathered to discuss its implications.

“If you grow a piece of celery in red water, it’s going to be red,” said Sean Auriti, who is known as Psytek at the hackerspace Alpha One Labs in Brooklyn, which he runs. “I’m just wondering how this Darpa defense contract money is going to influence these projects.”

And yet Mr. Auriti himself is benefiting from the Darpa money as a member of SpaceGambit, a consortium of hackerspaces that won a $500,000 grant for research in space exploration and colonization technologies. He said he hoped that the grant would help him build a mini-thruster to launch backpack-size satellites into orbit.

But the debate over the financing has prompted him to establish a separate working group for the space research with Darpa. That way, none of his workshop’s members will feel as though they are unwillingly participating in government work, he said.

Some on the conference panel voiced concerns that Darpa financing would steer more hackers toward military projects. Mr. Altman, the Noisebridge co-founder, said he viewed the influence of military money as a threat because it would lead hackers to choose projects that might appeal to grant makers, as opposed to following their passions, however idiosyncratic.

Everyone on the panel agreed that hackerspaces could provide an exciting model for hands-on technical education in schools, and Dale Dougherty, the founder of Maker Media, which caters to the do-it-yourself movement, said he believed that the high school program that his company was managing would do just that.

“I think we’re looking at science and technology as content, not experiences,” Mr. Dougherty said. “We’re asking kids, ‘Do you want to be an engineer?’ and they don’t know what that means. But if you ask them, ‘What do you want to make?’ they start thinking about doing something.”

Darpa’s Web site describes the program’s goal as encouraging students to “jointly design and build systems of moderate complexity, such as mobile robots, go-carts, etc., in response to prize challenges.”

But Mr. Dougherty said that the fears about his program were unfounded, and that he wanted the students to work on projects of their choosing.

“We’re not asking kids to build weapons,” he said.

Darpa has a storied history of making long-shot bets and hoping that a handful of them will pay off. It financed the development of technologies that led to the creation of the Internet, GPS and stealth technology. This cluster of bets on low-cost, innovative manufacturing is part of a strategy by Darpa officials to reduce development times in a range of projects like armored vehicle construction and cybersecurity fixes.

When Lt. Col. Nathan Wiedenman, a Darpa program manager, appeared in Army fatigues this May at a San Francisco-area do-it-yourself festival, Maker Faire, he said the agency’s mission was to ensure that the United States would never again be surprised by the technical superiority of an enemy state, as it was when the Soviet Union launched Sputnik.

“To push the bounds of new technology, we have to physically make things,” he said.

Colonel Wiedenman is managing both the grant for the high school program and a $3.5 million grant to the retail start-up TechShop (it is a bit like a Kinko’s, but instead of copiers, members pay to user laser cutters). As part of that contract, Darpa employees will have access to TechShop’s tools after midnight, when the doors are closed to the public, since Darpa has no lab space of its own.

Matt Joyce, an early hackerspace member who has worked with NASA and has publicly voiced support for Darpa financing, said he believed that the agency’s interest in hackerspaces was a sign of their growing importance. But he acknowledged that the government financing would continue to provoke debate, because questions about ethics often loom large for engineers, even in cases in which the government allows them to retain commercial rights to their inventions.

“You never know when you build something where it might end up,” he said. “I think there’s a lot of folks getting the Darpa funding, and a lot of people watching on the sidelines to see what happens.”