I tend to favor protecting end-to-end in the Internet context, but I’m a bit worried about what the net neutrality rules will look like in practice. There are two ways to think of this problem. First, who is the target of regulatory action? The FCC’s rules seem to look at the CEO or CTO of an ISP or telecom company. I think the correct focus is farther down the corporate ladder: the IT folks who have to implement rules on their routers. The new rules seem fine as policy statements, but how do they translate into what you can and can’t do with bits?

Second, what existing practices are covered by the net neutrality rules? I worry there are some laudable practices that might run afoul of the rules – even if it’s unlikely the FCC would seek enforcement against them. (Safety that depends on agency discretion is not particularly comforting.) Here’s a fast list of practices that might violate net neutrality right now:

• Port blocking – can ISPs prevent you from sending e-mail except through their servers by blocking port 25? Many, including Verizon, already do. (See Rule 2 in the Press Release.)
• Network Address Translation – NAT rewrites IP addresses to ensure that packets reach their destination. Does altering header information violate the rules? (Rule 6 at least, maybe Rule 4.)
• Spam filtering – ISPs routinely drop connections, or quarantine messages, from known spammers and spam-friendly destinations. (Rules 1, 4.)
• VoIP routing – some telcos route their own VoIP traffic across their network rather than the public Internet, which is more efficient (assuming both ends of the conversation have the same provider). That’s almost certainly out. (Rule 5.)
• Virus prevention – some educational institutions scan connecting devices for Trojans / viruses / malware, or software that protects against them, and condition network access on passing this scan. (Rule 3, though doubtless the FCC would use the “harm” criterion as a dodge.)

So, I’m worried about how the FCC’s legal rules are implemented in code. I think we need a lot more guidance from the agency, particularly since net neutrality still feels somewhat like a solution in search of a problem…

The two additional principles are extremely important aspects of the plan. First, a “nondiscrimination” principle would embody the heart of the concerns expressed by activists for free speech and end-to-end openness who warned that providers would begin to offer preferential treatment to some content based on the identity of the sender, either to extract fees for high-speed delivery or to block competition. Second, a “transparency” principle addresses the concern I’ve always expressed: consumers and regulators can’t find out about ISPs’ traffic-shaping. As if the formal rule and the new principles weren’t enough, Genachowski also said he would apply the new regime to wireless as well as broadband carriers.

This will be a major fight, probably the most significant battle we have seen within the federal government over the structure of the internet.

A few other observations after the jump:

Language: Genachowski appears to avoid the language of “network neutrality.” He prefers to talk about a “free and open internet.” I don’t think it means much substantively, but it suggests he is thinking carefully about how to present these complex ideas to the wider public.

Characterizing Supporters: The story was leaked in advance to the New York Times, Washington Post, and Wall Street Journal, which all run stories over the weekend. I could not help but notice that the Journal cast the entire debate in terms of telecoms (like AT&T or Verizon) against content providers (like Google or Amazon), making no mention whatsoever of the grass roots citizen activism on the issue. The Times, meanwhile, did just the opposite, painting the dispute only as a corporate vs. consumer one without ever noting the interest of big content providers in getting federal regulation of internet access. Both portraits are grossly inaccurate, of course.

The Need for Action: Genachowski strongly refuted the argument often made by telecoms that there are not serious access problems (yet) so action on network neutrality is premature. He said:

Saying nothing — and doing nothing — would impose its own form of unacceptable cost. It would deprive innovators and investors of confidence that the free and open Internet we depend upon today will still be here tomorrow. It would deny the benefits of predictable rules of the road to all players in the Internet ecosystem. And it would be a dangerous retreat from the core principle of openness — the freedom to innovate without permission — that has been a hallmark of the Internet since its inception, and has made it so stunningly successful as a platform for innovation, opportunity, and prosperity.

Details, details: Boy oh boy is the devil in the details on this one! There are so many questions about implementation. For example, under the plan the FCC would evaluate cases under the nondiscrimination principle on a case-by-case basis, so we may not know precisely what’s allowed for a long time to come. Also, there would continue to be “reasonable” exceptions to allow for network management, but how much scope would wireless broadband providers have to constrain bandwidth-hogging applications, especially at peak times? And Eric Goldman just tweeted about the tension between network neutrality and Section 230 immunity. And those are just the first ones that come to mind. This is going to be a doozy…

Filtering Workshop: Implications for ISPs (University of New South Wales, 4 March 2009)

My theme is that the proposed Australian filtering program contemplates a wholesale change in the role of the Internet Service Provider (ISP). This alteration creates a significant risks of undesirable, secondary effects.

ISPs are attractive regulatory targets, especially where enforcement against primary actors such as end users is expensive, uncertain, or problematic due to those actors’ behavior. This may be particularly true in countries such as Australia, the United States, or the United Kingdom, where the network architecture is decentralized. Countries such as China and Saudi Arabia designed their Internet infrastructure to enable centralized control at key choke points, making the involvement of intermediaries in filtering less crucial.
There can be benefits from requiring ISPs to act as enforcers. The application of restrictions is likely to be more uniform than with controls on end users directly, and ISP-based enforcement offers greater immunity against user error or evasion. Filtering at the ISP level is “always on.” In addition, lists of proscribed material are more readily updated since they are deployed at fewer locations on the network.

However, ISP-based restraints create critical challenges. ISPs shift from passing bits to differentiating among them. Power over content decisions shifts from end users at the edge of the cloud to providers, in conjunction with government, at the center. ISPs become regulators with significant power, especially under a system that permits or encourages variation in content blocking. It is not clear, under the current Australian plan, what requirements (if any) ISPs would have to adhere to in terms of transparency about filtering decisions.

Concomitantly, providers may be hesitant about assuming such a role, for they will become enmeshed in heated debates over content. They may be forced into difficult normative judgments, as with decisions regarding fair use versus copyright infringement under the U.S. Digital Millennium Copyright Act (DMCA) or its Australia equivalent. ISPs will quickly face demands for restrictions from a variety of interest groups – consider spam, hate speech, defamation, and illegal drugs sites among others. IP infringement is likely to be the first successor to initial content filtering – note that a requirement for filtering copyrighted material was proposed as a rider to the economic stimulus legislation recently passed in the U.S. ISPs, in short, will be converted to general-purpose watchdogs. The ease with which filtering can be accomplished will tempt interest groups to use it as a way of achieving their goals while minimizing debate or scrutiny. Moreover, ISPs are likely to face varying or inconsistent decisions based on the content at issue (which may be difficult to ascertain without reassembling all of the packets involved in a transaction). For example, U.S. ISPs confront a range of incentives or penalties depending on whether the content at issue infringes copyright, trademark law, bans on child pornography, defamation, or anti-spam statutes.

If faced with these demands to prevent access to content, ISPs may be overdeterred. The threat of liability may cause them to target questionable or even innocent content for blocking. Consider, for example, blog hosts or e-mail service providers in China. Research by the OpenNet Initiative and Rebecca MacKinnon, among others, shows both variation in filtering – suggesting uncertainty about the boundaries of proscribed content – and targeting of seemingly innocent keywords and phrases. In China, and elsewhere, ISPs must consider that failure to prevent access to banned material may lead to draconian or highly visible sanctions as an example to other, similarly situated entities.

Finally, tertiary effects from this role change are likely, but difficult to predict. Data retention efforts or mandates may increase, as governments seek to track who attempts to access banned pages in addition to blocking those efforts. Filtering may substitute for alternative enforcement regimes that are more effective. Consider that in New York, the state attorney general pushed major ISPs into dropping Usenet newsgroups over child pornography concerns while admitting that prosecuting those who produced and distributed the material was infeasible (though probably a more effective way to protect children). An impact on user privacy is nearly certain. ISPs may be required to detect the creation or publishing of banned content, and techniques such as deep packet inspection create risks that can chill communication. Filtering can undercut innovation: it may require blocking protocols such as BitTorrent, or peer-to-peer software more generally, or limiting encryption. It threatens to undercut the end-to-end principle central to the Internet’s design and thus the production of new communications technologies.

Finally, there is the Cylon problem: ISPs may have incentives to filter not just on our behalf, but on their own. For example, the Canadian provider Telus blocked access to the Web site of a labor group involved in an action against it. Similar concerns emerge from the network neutrality debates about ISPs favoring content from partners or subsidiaries. Detecting self-interested measures becomes more difficult in a system where blocking is ubiquitous and mandatory.

In conclusion, ISPs are ground zero in the filtering debate. They may be a necessary component of any blocking system due to the architecture of Australia’s network, but enrolling them as content regulators fundamentally changes the nature of the ISP and raises issues we must address before moving forward.

The coalition was organized by Open MIC, a group seeking to involve investors and other private sector actors in efforts to promote openness in the development of communications media and preserve the “democratizing potential of the digital era.”

Derek and I have both written here before about the importance of market-oriented efforts of this type. Here’s Derek’s post. As I said just about two years ago:

Activists and policy wonks who work with environmental issues take it for granted that private corporate activities and markets lie at the center of both the problems and the potential solutions … to issues such as water pollution, global warming, and habitat destruction. … Until recently, the same was not true for info/law issues. The problems were often seen as based almost entirely on some combination of legal regulation and technological architecture. Tech companies were regarded as ideals by many socially responsible investors — they had low environmental impacts, typically they had progressive employment policies and benefits, and their supply chains did not involve the sorts of entanglements with corrupt regimes and human rights problems that beset industries from oil to global agriculture.

There is still a significant lag in the application of the “corporate responsibility” ethos and tactics to the problems of Info/Law. But this move by Open MIC is another sign that such efforts are emerging, albeit very very slowly.

As I wrote when the Democrats took over Congress in 2006, these are not usually partisan issues and a switch in party control did not herald much change. At the time I especially lamented that Rep. Howard Berman (D-CA), who is wonderful on many issues but a relentless promoter of MPAA positions down the line on IP and communications law, was likely to take over the helm of the main intellectual property subcommittee. He did. Now, however, Lantos’ death opens up the chairmanship of the full House Foreign Affairs Committee. The chances that Berman will ascend to this post exceed 99% and, because members can hold only one chair at a time, someone else will get his IP spot. The next in line is Rep. Rick Boucher (D-VA), whose position on Info/Law issues is just about the exact opposite of Berman in every way. Indeed, as I also said back in ‘06, there is no one else in Congress with nearly the same emphasis on balanced information policy, with a special focus on library issues and fair use.

Now, as the Ars Technica story makes clear, one should not overstate the importance of this change. Berman will still sit on the IP subcommittee. The full Judiciary Committee will still be chaired by Rep. John Conyers (D-MI) who, while not ferociously wedded to the content industries like Berman, is at least going steady with them. (Again, I like Conyers in other ways too — but Info/Law is a funny issue in Washington…) And, of course, the general inertia in Congress against reform in these areas is great. But Boucher could do some fun stuff, including holding hearings on subjects Berman would ignore (DMCA abuses anyone? Digital libraries?). Perhaps he can move bills that were DOA in a Berman-chaired committee. One more caveat: Berman can keep both chairs temporarily, so the transfer to Boucher may not occur immediately. But since Boucher and Berman both hold safe seats and it is extremely unlikely that the Democrats will lose control of the House, it will happen eventually. (And my perusal of the current committee rosters suggests that Boucher has no other juicy chairs coming his way for a long time…)

Why should you come? Well, luminaries such as Vint Cerf and Tim Wu highlight this issue, and groups on both sides have formed to fight over it. Attend to learn about what’s at stake and how we should respond.

Update: Jason Church, the force behind the event, has posted an audio file of the event. It’s not complete – the device ran out of space – but it gets the important stuff.

Until recently, the same was not true for info/law issues. The problems were often seen as based almost entirely on some combination of legal regulation and technological architecture. Tech companies were regarded as ideals by many socially responsible investors — they had low environmental impacts, typically they had progressive employment policies and benefits, and their supply chains did not involve the sorts of entanglements with corrupt regimes and human rights problems that beset industries from oil to global agriculture.

Until recently, I said. Then came this and this and this, and lots more of the same sort.

We already heard long ago from Larry Lessig about the regulatory role of markets in info/law, and from James Boyle promoting an ethos of “cultural environmentalism” that learned lessons from the success and struggle of the environmental movement. And now, at last, there are signs of serious attention to the role of corporations and their investors in preserving values such as privacy, data security, free speech, and open access to content.

As Derek noted previously in this space, an industry-wide initiative is forming to help companies develop ethical business standards for promoting free expression and privacy online. The Berkman Center is one of the leaders of the effort, along with a wide range of investors, civil society groups, academic institutions, and, of course, companies operating in this space. One of the investors really thinking about these issues is F&C Asset Management, a London-based manager of over $200 billion. The F&C Governance & Sustainable Investment Team recently released a thoughtful report directed at managers in companies who need to think about access, security, and privacy issues in the digital environment. [Disclosure: my wife works on the F&C GSI Team, though she wasn't really involved in this report.] Because it’s written on behalf of investors and directed at corporate managers, its tone is different from some of the advocacy you see elsewhere — which is exactly the point. Investor dialogue will be one of the keys to helping companies contribute to solutions in these areas. Law is important too, but not the only component. We are learning, once again, from environmentalism.

Yoo has set himself apart as one of the most thoughtful and consistent opponents of legislated limits on service providers’ discrimination among content. He suggests that we should instead look for “network diversity” and worries that forced equality among dramatically different applications with different needs (technical and otherwise) will stifle innovation. Wu has been a supporter of mandatory network neutrality, although a careful one who warns that it will be very important to get the precise definition of neutrality requirements exactly right. (My co-blogger Derek pointed out months ago that there is a similar challenge in defining the precise approach on a technical level.)

As with many issues that become politicized, a lot of the debate around net neutrality has gravitated toward competing horror stories. Proponents of regulation paint a picture of gargantuan ISPs like Comcast maintaining a stranglehold over the “last mile” conduit to our computers and favoring highly commercial content that pays for the privilege of loading fast — and consigning smaller or newer content providers to snail-like load speeds that effectively deprive them of an audience. The other side suggests that “regulating” the internet with network neutrality rules will discourage investment, freeze technology in place, and prevent exciting but bandwidth-intensive innovations such as interactive or otherwise enhanced video.

Yoo and Wu are much more thoughtful than that. Personally, I am more persuaded by Wu — especially because, as I have said before, even if competition for last mile service becomes robust (still an open question!), individual consumers are unlikely to have the necessary information to choose among network providers based on their different treatment of content. Rather than competition in a world of “network diversity” I fear lock-in of one set of favored content. But Wu (and Derek) are absolutely right that simply declaring, “No differential treatment of content!” is an unacceptably broad and simplistic solution.

In the House, it appears most likely that Rep. Howard Berman will take over the chairmanship of the subcommittee that handles intellectual property law. As National Journal’s Congress Daily noted, we can expect him to “protect his nearby Hollywood interests by cracking down on piracy and protecting against copyright infringement of TV, music and movie productions.” In general terms, that means restrictive IP law that favors content producers and rightsholders and hostility toward flexibility or expansion of fair use. That’s the bad news for Info/Law. The good news is that Congressman Ed Markey, a champion of consumer-oriented telecom and internet policy (and sponsor of the network neutrality amendment in the House earlier this year) will take over the subcommittee with the most power over these issues; the full Committee on Energy & Commerce will be helmed by John Dingell, who is pretty good on telecom as well. In addition, Rick Boucher, another consistent advocate for balanced information policy, particularly fair use and library concerns, will be a very senior Democrat on the Judiciary Committee (and possibly on Berman’s subcommittee). Finally, there is reason to hope education-oriented Democrats like Dale Kildee may pay attention to the serious and growing problems relating to educational uses of digital content.

The Senate may see less change. Assuming the Democrats control the chamber 51-49, Senator Leahy will take over the Judiciary Committee. He has already established a relatively moderate bipartisan partnership with Senator Hatch on Info/Law issues, and I would expect that to survive any shuffling of their seats on the podium. Patent reform might become a higher priority under a Leahy chairmanship than it was under the current chairman, Senator Specter (but that might have happened anyway, given growing pressure from industry and the IP bar). If the Senate stays 50-50, Leahy would not be chairman but he and Hatch would remain the key players on Info/Law matters. (Also, while a 50-50 split would formally leave the Senate under Republican leadership because the Vice President breaks ties, when it last occurred in 2001, the parties reached a power-sharing agreement evenly dividing most committee assignments and resources between them. Even if Leahy is not chairman, he would have more clout in committee than he does at present.)

UPDATE: Tim points out in the comments that William Patry also wrote a post about the impact of the election on IP law. Patry is unsure that Congressman Berman will be chair. I am pretty confident though (my reasons after the jump).

As I commented on Patry’s blog:

I think Berman’s chairmanship of the IP Subcommittee is all but assured. The best guide is his consistent past choice to be the ranking member (that is, top minority member) on that subcommittee. In general, each member can hold only one subcommittee chair. As the second-ranking Democrat on both Judiciary and International Relations, Berman pretty much has pick of the litter among subcommittees in both committees. He has always chosen the IP seat (becoming second-ranking Democrat on several International Relations subcommittees as well).

I admire Berman, but I do not consider him balanced on IP issues. That said, regardless of whether Berman or Boucher is the chair, the other one will be influential on IP issues in the Judicary Committee. Maybe between them there is something like equilibrium. (Boucher, by the way, will be entitled to a coveted subcommittee chair on the Energy and Commerce Committee, which is where he has chosen to be a ranking member in the past. That committee works both on telecom/internet issues and on energy and pollution matters vital to his coal-mining western Virginia district.)

Given the incredible list of pressing legislative business that is now stalled (including appropriations bills and major issues like immigration and military tribunals), and the very short amount of time left before recess (most likely a single-digit number of voting days), it seems next to impossible that any copyright bill could get far before Congress adjourns for the elections. I think that’s good news because, completely independent of the substance of this grab-bag bill, there just has not been enough analysis and debate of its provisions. The bad part is that a pretty good orphan works remedy — which was the subject of a thoughtful deliberative process — has become bogged down in the larger legislation. Sigh. Maybe next year.

UPDATE:  The bill is now not only really dead, but really most sincerely dead.

By the way, correct me if I’m wrong because I haven’t double-checked, but I assume the same goes for network neutrality, trademark bills, and patent reform.