Content Filtering Kept Out of Broadband Stimulus, At Least for Now
February 11th, 2009 by David Sohn
Yesterday’s Senate passage of its version of the big economic stimulus bill sets the stage for final negotiations between the House and Senate to come up with a final bill. As is often the case with major packages of legislation, there’s a risk of eleventh-hour additions for which the policy implications have not been clearly thought out.
Case in point: content filtering by ISPs. The Senate’s provisions to stimulate broadband deployment say that recipients of federal assistance should comply with interconnection and nondiscrimination requirements. Senator Feinstein has been pushing hard to add language specifying that ISPs may engage in “reasonable network management” — and here’s the kicker — “such as” efforts to combat illegal activity like “child pornography and copyright infringement.”
This would wade squarely into the highly controversial area of whether ISPs should really be in the business of actively inspecting the contents of Internet traffic to try to detect and block unlawful material. CDT has major concerns about ISPs assuming the role of Internet police. Doing so would require broad use of deep packet inspection, with all the privacy issues that can raise. And identifying copyright infringement is not easy, because an ISP has no easy way to tell whether particular uses of copyrighted material are licensed or constitute “fair use.”
The bottom line is, the stimulus bill being rushed though Congress is not the right place to have Congress put its thumb on the scales of this ongoing policy debate. Plus, I think it would be a real mistake to suggest that the term “network management” includes content-based filtering of Internet traffic. “Network management,” properly conceived, refers to technical measures to make sure the network is working smoothly. It covers efforts to address operational problems relating to routing or congestion, not legal problems relating to the content of users’ communications. Equating network management with content filtering would further muddy the broader Internet neutrality debate.
CDT and various allies have been weighing in with congressional staff to stave off language that could amount to a congressional stamp of approval for ISP content filtering. Public Knowledge posted an alert. Fortunately, neither the House nor the Senate versions of the legislation currently contain such language. In theory, that means the final bill shouldn’t either. But you can bet that proponents will be making a serious push to insert something along these lines during the final negotiations.
This entry was posted on Wednesday, February 11th, 2009 at 1:57 pm and is filed under CDT, Digital Copyright, Free Expression, Internet Neutrality. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
February 13th, 2009 at 1:11 am
It’s frustrating with all the evidence otherwise, that Congress still thinks it must protect copyright holders with every weapon in their lawmaking arsenal. Content filtering, aside from being a serious privacy issue (deep packet inspections), is technologically impossible, but puts that burden on ISPs rather than copyright holders who already find it impossible to police the internet. Copyright holders have the financial incentive (allegedly) to police, but can’t/won’t so why should ISPs who have little to no financial interest? It’s not surprising Senator Feinstein is from copyright central California. But since her amendment also aims to prevent child pornography (also impossible with content filters), few members of Congress will oppose it. So why she brings it again to a vote, likely under the radar, few will want to be “pro-child pornography.”
February 18th, 2009 at 3:59 pm
I’m very curious to learn what parties feel would be a good solution here. I frequently hear NN supporters say they agree that legislation should protect legal traffic but not create a safe harbor for illegal traffic; Ed Markey has said that, and PK’s Gigi Sohn agreed with a speaker who said that on a CES panel in January. But PK and others lobbied hard against this amendment.
I don’t pretend to know what the perfect language is here, but if NN supporters are sincere in saying they do not want to force ISPs to protect infringing traffic through new laws, how can we ensure that? What is the proper language?