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.”
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The Measurement Lab, a collaborative project launched on Wednesday by the New America Foundation, the PlanetLab Consortium, and Google, will provide researchers with an open platform to host network diagnostic tools that, for example, enable users to determine the speed of their connections, detect traffic discrimination or prioritization, or troubleshoot connectivity problems. The idea is that a fast, distributed hosting platform for such tools could facilitate widespread testing and data collection about how the Internet is working. Google’s role will be to supply, separate from their network, 36 servers at 12 locations to facilitate widespread use of the tools provided.

The three tools offered so far are intended for a broad range of users—from novices to technical researchers—and importantly, use of the M-Lab platform for network research is conditioned on all data being made publicly available and placed in the public domain. The laudable goal is to have better data about the nature of broadband networks, as well as increased information for users and developers about their broadband connections.

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There has been lots of discussion in Internet neutrality circles this week about Monday’s Wall Street Journal article claiming that Google, in seeking to enter caching deals with ISPs, is departing from its stance in favor of Internet neutrality. Google and a number of commenters (here, here and here) by now have explained why the article is off base.

Like so many arguments in the Internet neutrality debate, the article is based on fundamental misconceptions about what Internet neutrality, properly conceived, would require. In effect, the article takes aim at an exaggerated, straw-man version of Internet neutrality. But maybe it offers a “teachable moment.” Specifically, clear thinking about this issue requires recognition that:

(1) a neutral Internet does not require some kind of utopian “equality of results,” in which the resources of different speakers have no impact on the prominence and technical sophistication of their communications or services; and
(2) a neutral Internet does not in any way preclude or conflict with the use of caching and content delivery networks (a la Akamai).

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The “open� nature of the Internet is a core issue for CDT – just check out the tag line right next to our logo. It should be a cornerstone of the next president’s Internet-related policy as well.

First things first: What does the term “open� even mean in this context? Above all, it means that the Internet has minimal entry barriers and no “gatekeepers� controlling what is allowed or how services or technologies must be designed. Users can communicate with whomever they choose, in whatever manner they choose. And because the technical protocols are standardized and public, anyone with a good idea can create a new service or application and offer it to a worldwide audience, without needing permission from network operators or governments.

This “open� architecture is what has enabled the Internet to foster such tremendous innovation. It empowers and harnesses the creativity of millions of decentralized users, from major corporations to dynamic startup companies to individual inventors and students. They all have a chance to give their ideas a shot – because nobody dictates which new services or technologies will be allowed or how those technologies must be designed.

So what does this mean for the next president? How can the president ensure that this powerful engine of innovation keeps humming?
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The European Commission earlier this week released a paper identifying the following as the key challenges for the next stage of the Internet:

(1) continuing to update broadband infrastructure to improve accessibility and speeds;
(2) keeping the Internet open to new business models and innovation; and
(3) addressing privacy and security concerns.

This is a sound list. From CDT’s perspective, the emphasis on Internet openness is particularly welcome. The paper rightly notes the risk that “traffic management” could be used for anti-competitive purposes. The paper also observes that open standards are crucial. These are essential points in considering the debate over “Internet neutrality.” Innovation has thrived on the Internet precisely because anyone can design applications based on the medium’s common and open protocols. Any application that is built to those standard protocols will work across the whole Internet. An innovator need not seek cooperation or approval from network operators or anyone else; in short, there are no “gatekeepers.” But if individual network operators start departing from open standards and handling traffic differently based on its content, this openness could be significantly undermined. So it is good to see the European Commission acknowledge that this is a serious policy issue, rather than a “solution in search of a problem” (as neutrality opponents have often claimed).
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War, financial crisis and the fate of a nation hanging in the balance. It sounds like a back-of-the-envelope outline for a spy novel, but it’s actually the current political climate in the U.S. Given that, it’s no surprise that discussion of Internet and technology issues is adrift, and that civil liberties protection has been pushed to the margins during this intense political season.

And yet this election cycle provides a great window of opportunity. The President and Congress will have a chance to take a fresh look at the challenges and opportunities of the Internet and set a policy course for this vital medium that will keep it open, innovative and free.

We often take the Internet for granted. In a short time it has become a powerful engine for innovation, economic growth and democratization. The Internet has changed the way we “do” politics. Ordinary Americans are making their voices heard and organizing online. Political candidates are building online networks of supporters, raising unprecedented funds from small donors, and educating the public on their policies and visions.

A few months ago CDT started a dialogue on what we believe are the key issues impacting the digital work-a-day world where most of us are spending an increasing amount of time. The ideas and feedback flowing from that discussion will help us craft a kind of blueprint for technology policy for use by the new Administration, noting things that can be done right now while also providing a strategy for achieving longer term goals.

Starting this week and following through until the election, CDT will focus on specific issue areas and write about each of them here on our Policy Beta blog. Our President, Leslie Harris, will add another level of insight and commentary on the issue in a companion article published in her Huffington Post column. And for those that want a daily dose of policy prognostication —in 140 characters or less—you can follow our efforts via Twitter.

We encourage you to push these blog postings out to your friends, family, forums and social networks. We welcome comments, criticisms and suggestions, all of which will help us sharpen our message and hone our suggestions for the next Administration and Congress.

Back in March, CDT welcomed Comcast’s announcement that it would move to a “protocol agnostic” technique for managing network congestion. No technical details were provided, but the announcement certainly seemed to imply that the new technique would steer clear of singling out particular protocols, services, or content for inferior treatment. In other words, it would avoid the kind behavior that gives Internet neutrality advocates fits and that puts network operators in a position to undermine unfettered innovation. To use a potentially loaded term, the announcement seemed to imply that the new technique would be neutral.

But we also noted that we would have to wait and see how the new technique actually works. However promising the term “protocol agnostic” might sound, it doesn’t exactly have a widely accepted meaning.

Well, Comcast has now filed with the FCC a description of the new congestion management technique it is rolling out. Based on that description, it appears to be the real deal.

Simply put, the new technique appears not to hinge on what applications or content a subscriber chooses to access. All it will know or care about is the volume of data each subscriber is sending over the network. When a particular part of the network starts experiencing heavy usage, the subscribers currently generating the most traffic (relative to the size of the connection they have purchased) will end up getting assigned a lower priority. As a result, their traffic may get slowed or perhaps experience some packet drops — but only if overall usage is so high that affecting someone’s traffic in this way is inevitable, and only until the affected individuals lower their usage a bit.
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Today is the third annual “Earth Day for the Internet,” and there are events all over the country celebrating the Internet, and I hope that you attend one or find a way to help. I’ve just come from an event in D.C. discussing the policy challenges facing the Internet and the ways that the Internet has enhanced the civic dialog. As Ellen Miller of Sunlight Foundation noted, in New York city they’re having an OWD party and rally while we have a policy discussion, but that’s “what we do,” in D.C.; we are creatures of the political climate and policy discussions are what we can offer to the Web. Readers of this blog are well aware what a marvel the Internet is, as well as the obstacles it faces here and abroad. Even so, it’s easy to take the Internet for granted. Luckily, we have a happy hour later today (information below) to balance the policy discussion – we would love to see you there.

Susan Crawford (a CDT fellow) started OneWebDay in 2006, in order to encourage people to become actively involved in the future of the Internet. This year the theme is civic participation in democracy, highlighting the role of the Internet in the upcoming election. People also depend on the Internet for communication, research, collaboration; the Net has become important in almost every facet of life.

To begin the discussion for OneWebDay D.C., Rep. Donna Edwards (D-MD) spoke of her long involvement with Internet issues that started well before she was a lawmaker. She also spoke of how to effectively exploit the Internet for the common good, rather than trying to lock it down. The Congresswoman talked about the obstacles to Internet use in communities without adequate broadband coverage, in some cases that means the public school down the street. We are in an environment with transitions that come more and more quickly, and we must engage all our communities in order to ensure that they can reap those benefits. She spoke of the Internet as a public good, and of our duty to maximize the free, open Internet for everyone. As a young adult, I can’t imagine the world without it.
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August is traditionally a slow time in D.C., with Congress out of session and most policymakers looking to escape town for some vacation. But the early part of the month has already seen some significant developments for Internet policy.

First, on August 1, the FCC voted 3-2 to adopt a controversial enforcement action against Comcast for interfering with BitTorrent traffic. As I noted in July, CDT has reservations about the legal basis for the FCC’s assertion of authority to engage in such enforcement. But the kind of tactics Comcast was using pose a real threat to the openness of the Internet, and the FCC’s decision marks the first time the government has stepped in to impose some concrete limits. It’s too early to judge the full impact — in part because the agency has not yet released the actual text of the order — but clearly this is a landmark development in the public debate over Internet neutrality and network management.

Second, on August 4, the 2nd U.S. Circuit Court of Appeals issued an important decision in the case involving Cablevision’s proposed “remote storage” digital video recorder (DVR). CDT helped organize an amicus brief in the case back in 2007, because the lower court ruling that the DVR would infringe copyright threatened to cast a major cloud of copyright risk over services that provide data storage remotely.
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There has been quite a bit of attention paid in the past week to statements by FCC Chairman Kevin Martin about possible FCC action against Comcast for interfering with some of its subscribers’ BitTorrent uploads. The idea appears to be that the agency could find Comcast’s actions inconsistent with principles set forth in the FCC’s 2005 broadband Policy Statement; order Comcast to refrain from such behavior going forward; and require more disclosure by Comcast of the details of its network management practices.

(Editor’s Note: For CDT’s prior blog posts on the Comcast/network management issue please click here, here, and here.)

CDT is no fan of the particular network management tactics Comcast was using. We think that efforts to manage congestion should apply evenly to all traffic based on objective criteria like usage volume, not single out specific applications. They also should be transparent. Comcast’s practices failed both tests. Still, we’re not exactly popping champagne corks at the apparent prospect of FCC action. An actual FCC order on this topic — particularly one characterized as an “enforcement action,” which is how Martin was quoted — raises significant concerns.
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