Read video transcript here.
Cross posted from Broadband.gov.
When the D.C. Circuit issued its opinion in the Comcast/BitTorrent case, it was clear the decision could affect a significant number of important recommendations in the National Broadband Plan, the Commission’s Open Internet proceeding, and other policy initiatives related to broadband. In light of the uncertainty created by the decision, the Chairman asked me to investigate all of the options available to the Commission. Other FCC staff and I have developed a proposal that we believe resolves the doubt created by the D.C. Circuit’s opinion while providing a firm legal basis for the Commission’s limited, but vital role with respect to broadband. Whether, all things considered, the legal response to Comcast sketched out in our proposal is the best one for the Commission to adopt would be for the five FCC Commissioners to answer after public comment and private study. In my judgment, it’s a question worth asking.
Read more about the proposal here.
Read Chairman Genachowski’s statement discussing his reasons for seeking comment on the proposal here.
[Cross-posted from Blogband]
Broadband is increasingly essential to our daily lives. It is fast becoming the primary way we as Americans connect with one another, do business, educate ourselves and our children, receive health care information and services, and express our opinions. As a unanimous FCC said a few weeks ago in our Joint Statement on Broadband, “Working to make sure that America has world-leading high-speed broadband networks—both wired and wireless—lies at the very core of the FCC’s mission in the 21st Century.”
Many have asked about the future of Internet policy and the FCC’s role in that future in light of the recent decision in the Comcast case. Today I have issued a statement that describes a path forward, which will begin with seeking public comment on a narrow and tailored legal foundation for the FCC’s approach to broadband communications services. Our goal is to restore the broadly supported status quo consensus that existed prior to the Comcast decision regarding the FCC’s role with respect to broadband Internet service.
This statement describes a framework to support policies that advance our global competitiveness and preserve the Internet as a powerful platform for innovation, free speech, and job creation. I remain open to all ideas on the best approach to achieve our country’s vital goals with respect to high-speed broadband for all Americans, and the Commission proceeding to follow will seek comment on multiple legal theories and invite new ideas.
[This is cross-posted from Blogband]
At a Federal Communications Commission Open Internet workshop today in Seattle, Wash., FCC Chairman Julius Genachowski, via video, affirmed his “unwavering commitment to ensuring that the free and open Internet is preserved and protected.”
Watch the video here:
Full transcript below:
Thank you Senator Cantwell and Representative Inslee for your thoughtful and important remarks. With these two leaders in government, the people of Seattle and Washington have powerful, committed supporters of a free and open Internet representing them.
I’d like to thank the extraordinary panelists and members of the public who have come here today to participate in this open workshop, and those who are participating online.
I’m very pleased that we are holding this workshop in Seattle. So much Internet innovation and investment happens here, both at the edge of communications networks — eCommerce, mobile apps, online media — and at the core, including major communications service providers.
And it was just a few hours south of here on the I-5-in Hillsboro, Oregon that Comcast’s secret blocking of lawful Internet traffic was discovered — by an engineer and former police officer who loves barbershop quartets and simply wanted to share lawful music clips with others. That experience and others made clear that an Internet in the dark runs too great a risk of becoming a closed Internet — with substantial costs to our ability to lead the world in innovation and freedom.
Which brings us to today’s workshop.
As a unanimous FCC said last month in our Joint Statement on Broadband, “Working to make sure that America has world-leading high-speed broadband networks-both wired and wireless-lies at the very core of the FCC’s mission in the 21st century.”
As part of this mission, for several months we’ve been conducting a fact-based, participatory process to develop basic rules of the road to preserve the free and open Internet to drive innovation, investment and competition, to protect and empower consumers, and to ensure new voices can continue to be heard online.
A key part of our process has been open workshops in Cambridge, Mass., a number in Washington, D.C., and now here in Seattle to learn from engineers, innovators, economic and legal experts, and Internet users; to understand your ideas and your concerns.
The record so far has shown broad consensus that Internet freedom and openness has been integral to its success, and substantial common ground on key issues, including:
The question now is: how best to ensure that openness continues?
Today’s workshop will look at how we can best preserve openness. What would happen to the Internet’s openness without basic rules of the road? What are other countries doing? How can the rules we’ve put forward be improved?
The recent court decision was, of course, an unfortunate development. But it has done nothing to weaken my unwavering commitment to ensuring that the free and open Internet is preserved and protected. Doing so is crucial for the health of our broadband ecosystem; crucial to the health of our economy, and our democracy; crucial for ensuring free speech and for new speakers continue to flourish online; and crucial for ensuring that the student coding in his dorm room at the University of Washington right now, or the inventor tinkering in her garage in Renton, can create the next great, world-changing innovation.
I look forward to learning from today’s discussion.
A number of parties have requested that the FCC extend the reply comment deadline so that “all interested parties may evaluate and consider the legal implications of” the Court’s decision in Comcast v. FCC (DC Cir. April 6, 2010).
While the FCC does not routinely grant extensions of time, the FCC concluded that “good cause exists to provide all parties an extension.” Therefore, the FCC extended the reply comment date from April 8 to April 26, 2010. Comments can be filed through the FCC’s Electronic Comment Filing System (the docket number is 09-191).
In the Order granting the extension, the FCC also reminded interested parties that on April 28th, the FCC will be holding the Approaches to Preserving the Open Internet Workshop in Seattle Washington. A press release announcing the participants should soon be released.
The FCC will hold its next workshop in the Open Internet proceeding on Wednesday, April 28, at 9:30 am, at the Jackson Federal Building in Seattle, Washington.
As previous workshops have shown, the Internet’s openness is integral to the success of the online ecosystem, enabling innovation, investment, speech, democratic engagement, and consumer benefits. Called Approaches to Preserving the Open Internet, this workshop will address how the Internet’s openness can best be preserved, including by examining historical and ongoing efforts to protect Internet openness in the U.S. and other countries, and by discussing the key technological, economic, and legal considerations relevant to the need for and substance of the Commission’s proposed open Internet policies. Panelists will address these issues across Internet access platforms, including mobile wireless broadband.
The workshop will be streamed live at FCC Live. You can submit question to the panelists during the workshop via e-mail, or on twitter using #Oidiscuss. Additional information concerning the workshop, including the participating panelists and the agenda, will be posted to the Workshop webpage at www.openinternet.gov.
Issues similar to “reasonable network management” come up in the context of wiretaps and specifically the Electronic Communications Privacy Act (ECPA). ECPA is described as a rule governed by exceptions. The rule is, “thou shall not listen in on other people’s communications,” where “thou” is everyone including ISPs. One of the exceptions to ECPA is that ISPs can intercept communications when necessary for the rendition and protection of their network. In the relevant provision, ECPA states
It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks.
18 U.S.C. § 2511(2)(A)(i) (emphasis added).
ECPA attempts to draw a line between network activity that is necessary for the rendition of the service, and that which is not necessary and therefore potentially an illegal wiretap. But what does “necessary for the rendition and protection of service” mean? Several courts have considered this question. According to these courts, actions “necessary for the rendition and protection of service” includes intercepting communications from a cloned cellphone in order to determine its source, United States v. Pervaz, 118 F.3d 1, 5 (1st Cir. 1997), monitoring misuse of a network, United States v. Mullins, 992 F.2d 1472, 1478 (9th Cir. 1993), and intercepting communications from illegal devices in order to detect theft of service, United States v. Freeman, 524 F.2d 337, 341 (7th Cir. 1975).
This does not, however, give license to ISPs to do anything in the name of rendering or protecting service. According to DOJ, ISPs “should attempt to tailor their monitoring and disclosure to that which is reasonably related to the purpose of the monitoring.” One court states that “there should be a ’substantial nexus’ between the monitoring and the threat to the provider’s rights or property.” United States v. McLaren, 957 F. Supp. 215, 219 (M.D. Fla. 1997). For a more in depth discussion of ECPA and this particular exception, see DOJ’s 2009 Search and Seizure Manual, p. 172: The Provider Exception.
As the FCC examines the Open Internet proceeding and the possible distinction between reasonable and non-reasonable network management, can anything be learned from ECPA and its surrounding caselaw, including the concept of “activity necessary for the rendition and protection of that service”?
In response to requests from a number of parties, the FCC announced last week that we’re extending the deadline for filing reply comments in the open Internet proceeding to April 8, 2010.
The FCC doesn’t ordinarily grant requests for extensions of time, but parties asked for more time to respond to the many filings made in the opening round of comments, and to incorporate issues raised in the National Broadband Plan, which was initially scheduled to be delivered to Congress in mid-February but will now be delivered in mid-March. We felt it was appropriate to give a one-time extension of the reply comment deadline, expecting that this additional time will help everyone develop complete, useful, and data-focused replies. If you’re interested in seeing what others have filed, you can search for comments here for Proceeding Number 09-191. We look forward to hearing from you by April 8.
One interesting question is which historical developments were inevitable and which could have come out differently (e.g., was World War I inevitable?). It is impossible to know, of course, but in communications policy most commentators believe that many developments that we take for granted were historically contingent. For instance, if in the early 20th century telephone companies had (either by choice or mandate) allowed interconnection (so that customers of one network could call the customers of another network), we might not have ended up with a single company as the dominant telephony provider for most of the 20th century. Another example flows from the fact that, in allotting television stations, the FCC chose to emphasize localism. If it had instead emphasized national competition, we might have ended up with more national networks, but at the expense of having regional rather than local stations. The Internet is particularly fertile ground for historical contingency. If AT&T had not agreed in a 1956 consent decree to refrain from providing computer services, it might have dominated the field from the beginning. If a few engineers working with the Department of Defense had created their protocols a bit differently, it might be much harder to connect, and add your own voice, to the Internet. And if the government had decided to create a more easily controllable network, preventing someone like Tim Berners-Lee from adding his code on top of the existing protocols, we might not have the Web as we know it.
I think that most people take for granted that if they want to send an online message to a friend it won’t be blocked, that if they want to create a new website their broadband provider won’t relegate their content to a slow lane unless they pay a premium, and that if they want to access a cool new online service it won’t be degraded by their broadband provider. If you think these aspects of the Open Internet are undesirable and contingent, then you may not want any FCC proposals to keep them in place. If you think these aspects are inevitable, then you may be indifferent about possible Open Internet rules. If you think they are desirable and contingent, then you may want Open Internet rules. What do you think?
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