Net Neutrality: FCC Chairman Tom Wheeler Issues Statement on FCC’s Open Internet Rules

FCC Chairman Tom Wheeler has issued a statement on the FCC's open internet rules.

Here's an excerpt from Public Knowledge's Sherwin Siy's analysis:

In short, the FCC is keeping all of its possible tools in play. From a legal standpoint, the obvious answer would be to follow the roadmap laid out by the D.C. Circuit's opinion and reclassify broadband as a telecommunications service. That would give the FCC all the authority it needs to preserve net neutrality. But the D.C. Circuit also acknowledged that section 706 gives the FCC broad power to do lots of other things, so long as they will encourage the deployment of broadband. . . .

Speaking of what you can do with section 706, the D.C. Circuit's opinion makes it pretty clear that, while you might not be able to do something that looks too much like traditional common carrier regulation with it, there's a heck of a lot you can do with it. For instance, Wheeler notes, the FCC would seem to have the power overturn state laws that ban communities from setting up their own broadband networks—laws passed with the lobbying muscle of ISPs that don't want the competition. The outer bounds of section 706 are now open for discussion—and they may provide a scope of regulatory power as broad as Title II might have (in some ways, potentially broader). That's another reason to have proceedings on section—ensuring that its authority is used to encourage deployment and competition, and not stray into more troubling areas like censorship or copyright filtering. This, too, should be a clue to the path ahead—one where Title II isn't a political polarizer, but instead a simple, direct application of the FCC's job to protect an open internet.

Read more about it at "FCC Thinks It Can Overturn State Laws That Restrict Public Broadband."

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Net Neutrality, RIP?

While it could be appealed, the U.S. Court of Appeals for the D.C. Circuit's Verizon v. FCC ruling may well be the death knell of net neutrality given that an unfavorable Supreme Court ruling could make the situation worse by eliminating its last legal vestiges.

What now? In my 1996 "Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" paper, I had this to say about the prospects of net neutrality's demise:

There are many unknowns surrounding the issue of Net neutrality, but what is clear is that it is under assault. It is also clear that Internet services are more likely to require more, not less, bandwidth in the future as digital media and other high-bandwidth applications become more commonplace, complex, and interwoven into a larger number of Internet systems.

One would imagine that if a corporation such as Google had to pay for a high-speed digital lane, it would want it to reach as many consumers as possible. So, it may well be that libraries' Google access would be unaffected or possibly improved by a two-tier (or multi-tier) Internet "speed-lane" service model. Would the same be true for library-oriented publishers and vendors? That may depend on their size and relative affluence. If so, the ability of smaller publishers and vendors to offer innovative bandwidth-intensive products and services may be curtailed.

Unless they are affluent, libraries may also find that they are confined to slower Internet speed lanes when they act as information providers. For libraries engaged in digital library, electronic publishing, and institutional repository projects, this may be problematic, especially as they increasingly add more digital media, large-data-set, or other bandwidth-intensive applications.

It's important to keep in mind that Net neutrality impacts are tied to where the choke points are, with the most serious potential impacts being at choke points that affect large numbers of users, such as local ISPs that are part of large corporations, national/international backbone networks, and major Internet information services (e.g.,Yahoo!).

It is also important to realize that the problem may be partitioned to particular network segments. For example, on-campus network users may not experience any speed issues associated with the delivery of bandwidth-intensive information from local library servers because that network segment is under university control. Remote users, however, including affiliated home users, may experience throttled-down performance beyond what would normally be expected due to speed-lane enforcement by backbone providers or local ISPs controlled by large corporations. Likewise, users at two universities connected by a special research network may experience no issues related to accessing the other university's bandwidth-intensive library applications from on-campus computers because the backbone provider is under a contractual obligation to deliver specific network performance levels.

Although the example of speed lanes has been used in this examination of potential Net neutrality impacts on libraries, the problem is more complex than this, because network services, such as peer-to-peer networking protocols, can be completely blocked, digital information can be blocked or filtered, and other types of fine-grained network control can be exerted.

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Net Neutrality: ALA Issues Statement on U.S. Court of Appeals for the D.C. Circuit Verizon v. FCC Ruling

ALA has issued a statement by Barbara Stripling on the U.S. Court of Appeals for the D.C. Circuit Verizon v. FCC ruling.

Here's an excerpt:

The court's decision gives commercial companies the astounding legal authority to block Internet traffic, give preferential treatment to certain Internet services or applications, and steer users to or away from certain web sites based on their own commercial interests. This ruling, if it stands, will adversely affect the daily lives of Americans and fundamentally change the open nature of the Internet, where uncensored access to information has been a hallmark of the communication medium since its inception.

Public libraries have become leading providers of public Internet access, providing service to millions of students, elderly citizens, people seeking employment and many others every single day. Approximately 77 million people use public library Internet access every year. These users of libraries' Internet services, and people all across the country, deserve equal access to online information and services.

The ability of the Internet to spread and share ideas is only getting better. With modern technology, individuals and small groups can produce rich audio and video resources that used to be the exclusive domain of large companies. We must work to ensure that these resources are not relegated to second-class delivery on the Internet—or else the intellectual freedoms fostered by the Internet will be seriously constrained. ALA will work with policy-makers and explore every avenue possible to restore the long-standing principle of nondiscrimination to all forms of broadband access to the Internet.

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Network Neutrality and Quality of Service: What a Non-Discrimination Rule Should Look Like

The Center for Internet and Society at Stanford Law School has released Network Neutrality and Quality of Service: What a Non-Discrimination Rule Should Look Like.

Here's an excerpt from the announcement:

This paper proposes a framework that policy makers and others can use to choose among different options for network neutrality rules and uses this framework to evaluate existing proposals for non-discrimination rules and the non-discrimination rule adopted by the FCC in its Open Internet Order. In the process, it explains how the different non-discrimination rules affect network providers' ability to offer Quality of Service and which forms of Quality of Service, if any, a non-discrimination rule should allow.

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ALA Issues Action Alert: "Ask Your Senators to Vote ‘NO’ on Overturning Net Neutrality Order"

ALA has issued an action alert: "Ask Your Senators to Vote 'NO' on Overturning Net Neutrality Order."

Here's an excerpt:

This week (Nov. 7-11), the full U.S. Senate will vote on Senate Joint Resolution 6, a bill to overturn the Federal Communications Commission's (FCC) order passed to adopt "net neutrality."

Please call your Senators and ask them to vote "NO" on S.J. Res. 6. Your call sends a loud and clear message that libraries depend on an open and nondiscriminatory Internet to provide our patrons, the public, unfettered access to information.

Additional talking points:

  • Voting no helps preserve the openness of the Internet which is essential to our nation's educational achievement, freedom of speech and economic growth.
  • Without an open and neutral Internet, there is great risk that commercial Internet Service Providers (ISPs) will give higher priority to some users (e.g. give entertainment priority over education).
  • ISPs may seek to impose additional fees on Internet users which could drastically impact libraries who require much greater bandwidth than households to serve their patrons, many at one time.

Read more about it at "Network (Net) Neutrality Legislative Activity."

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House Passes H.R.1, Blocks Funding for Implementing FCC’s Net Neutrality Rules

The U.S. House of Representatives passed H.R.1—Full-Year Continuing Appropriations Act, 2011. Sixty-seven of 583 proposed amendments passed, including number 404 by Rep. Greg Walden (R-Ore.) that blocks funding to support the implementation of the FCC's net neutrality rules and number 196 by Rep. Tim Walberg (R-Mich.) that cuts funding for the National Endowment for the Arts by $20.5 million.

Read more about it at "Advocacy Works: Garrett Backs Down on Amendment to Zero Out IMLS," "Rogers: CR is a 'Monumental Accomplishment' for American Taxpayers," and "What Budget-Cutting Amendments Has the House Passed This Week?"

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Net Neutrality Alert: Public Knowledge Announces the "Internet Strikes Back" Day

Public Knowledge has announced the "Internet Strikes Back" Day (2/17/11) to support net neutrality.

Here's an excerpt from the press release:

Public Knowledge has set this Thursday, Feb. 17, as "Internet Strikes Back" day to counter Congressional opposition to a fair and open Internet.

The day was chosen because it is one day after members of the House Energy and Commerce Committee hold a hearing to unveil legislation that would roll back current Federal Communications Commission (FCC) Net Neutrality rules and prohibit the Commission from enacting future rules.   On that day following the hearing, members of the public are being asked to call their member of Congress and oppose the legislation.

PK has set up a Web site, which will allow visitors to sign up for mobile action alerts, including a text message reminder, and download an Internet Strikes Back badge for web sites.

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"Issue Brief: FCC’s Net Neutrality Rules and Implications for Research Libraries"

The Association of Research Libraries has released "Issue Brief: FCC's Net Neutrality Rules and Implications for Research Libraries."

Here's an excerpt:

FCC Votes to Enact "Net Neutrality" Rules: After years of debate and consideration, on December 21, 2010, the Federal Communications Commission ("FCC") voted 3-2 in favor of enacting a narrow set of net neutrality rules to regulate the practices of broadband providers. "Net neutrality" is the principle that Internet users should have the right to access and provide content and use services via the Internet as they wish, and that network operators should not be allowed to "discriminate"—slow, block, or charge fees—for Internet traffic based on the source or content of its message. . . .

The wording of the net neutrality rules, advanced by FCC Chairman Julius Genachowski, appears to reflect an attempt at a compromise between network operators and advocates for strong net neutrality protections—including ARL, ALA, and EDUCAUSE. Ultimately, however, the limited scope of protection in the rules has not fully satisfied the concerns voiced by parties on both sides of the issue and thus has set the stage for further debate over regulation in the courts and in Congress.

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Net Neutrality: U.S. Court of Appeals for DC Rules FCC Lacks Authority to Regulate Comcast's BitTorrent Throttling

The U.S. Court of Appeals for the District of Columbia has ruled in Comcast v. FCC that the Federal Communications Commission lacks the authority to require Comcast to stop throttling BitTorrent traffic.

Here's an excerpt:

Although the Commission once enjoyed broader authority over cable rates, see id. § 543(c)(4), its current authority is limited to setting standards for and overseeing local regulation of rates for "basic tier" service on certain cable systems. See id. § 543(b). In the Order, the Commission does not assert ancillary authority based on this narrow grant of regulatory power. Instead, the Order rests on the premise that section 1 gives the Commission ancillary authority to ensure reasonable rates for all communication services, including those, like video-ondemand, over which it has no express regulatory authority. . . .

It is true that "Congress gave the [Commission] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications technologies." Resp't's Br. 19. It is also true that "[t]he Internet is such a technology," id., indeed, "arguably the most important innovation in communications in a generation," id. at 30. Yet notwithstanding the "difficult regulatory problem of rapid technological change" posed by the communications industry, "the allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammeled freedom to regulate activities over which the statute fails to confer . . . Commission authority." NARUC II, 533 F.2d at 618 (internal quotation marks and footnote omitted). Because the Commission has failed to tie its assertion of ancillary authority over Comcast's Internet service to any "statutorily mandated responsibility," Am. Library, 406 F.3d at 692, we grant the petition for review and vacate the Order.

The FCC issued the following statement about the ruling:

The FCC is firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans. It will rest these policies—all of which will be designed to foster innovation and investment while protecting and empowering consumers—on a solid legal foundation.

Today's court decision invalidated the prior Commission’s approach to preserving an open Internet. But the Court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end.

Read more about it at "Comcast 1, FCC 0: What to Look For in the Inevitable Rematch"; "Court Rejects FCC Authority Over the Internet"; "Is Net Neutrality Dead? (FAQ)"; and "Public Knowledge Explains: The Comcast-BitTorrent Decision."

Internet Domain Names to Contain Non-Latin Characters

ICANN has appoved the use of non-Latin characters in Internet domain names.

Here's an excerpt from the press release:

The first Internet addresses containing non-Latin characters from start to finish will soon be online thanks to today's approval of the new Internationalized Domain Name Fast Track Process by the Internet Corporation for Assigned Names and Numbers board.

"The coming introduction of non-Latin characters represents the biggest technical change to the Internet since it was created four decades ago," said ICANN chairman Peter Dengate Thrush. "Right now Internet address endings are limited to Latin characters—A to Z. But the Fast Track Process is the first step in bringing the 100,000 characters of the languages of the world online for domain names."

ICANN's Fast Track Process launches on 16 November 2009. It will allow nations and territories to apply for Internet extensions reflecting their name—and made up of characters from their national language. If the applications meet criteria that includes government and community support and a stability evaluation, the applicants will be approved to start accepting registrations.

"This is only the first step, but it is an incredibly big one and an historic move toward the internationalization of the Internet," said Rod Beckstrom, ICANN's President and CEO. "The first countries that participate will not only be providing valuable information of the operation of IDNs in the domain name system, they are also going to help to bring the first of billions more people online – people who never use Roman characters in their daily lives."

Informed P2P User Act Hearing

On 3/5/2009, Rep. Mary Bono Mack (R-CA) introduced the Informed P2P User Act. The Subcommittee on Commerce, Trade, and Consumer Protection of the Committee on Energy and Commerce held a hearing on the bill today.

Here's an excerpt from Marc Rotenberg's testimony (Rotenberg is the Executive Director of the Electronic Privacy Information Center):

In the consideration of this bill, it is important to understand that P2P programs are used for a wide variety of function from the sharing of music to Internet-based telephony as well as scientific research. Even the military makes use of P2P networks. The technique is also important in countries where Internet censorship is a threat.

In the most generic sense, a P2P network is a technical description, much like saying a telephone network or the Internet. It is no intrinsic application, other than architecture that allows nodes to exchange information equally with other nodes in the network. Some Internet scholars have observed that this architecture reflects the collaboration among individuals that has helped spur the growth of the Internet. Professor Yochai Benkler refers to this as "Commons Based Peer Production."

No doubt part of the bill aims to discourage the use of file sharing techniques that may infringe copyright as well as making users vulnerable to certain types of inadvertent file sharing. But there is some risk that the bill would also discourage the use of file sharing techniques that do not raise such concerns. More generally, it appears to be posting a warning sign on a very wide variety of applications that most likely have little to do with the sponsor’s concern.

Read more about it at "H.R. 1319 Wants You to Know When You're Sharing Files, but Will Drown You in Pop-Ups" and "P2P Bill Could Regulate Web Browsers, FTP Clients."


Bill Would Prohibit Internet Use Caps: Congressman Eric Massa to Introduce “Broadband Internet Fairness Act”

Congressman Eric Massa (D-NY) has announced that he will introduce the "Broadband Internet Fairness Act," which would prohibit Internet use caps.

Here's an excerpt from the press release:

The Massa Broadband Internet Fairness Act would prohibit unfair tiered price structures from internet providers. The bill will also address the importance of helping broadband providers create jobs and increase their bandwidth while increasing competition in areas currently served by only one provider.

"I am taking a leadership position on this issue because of all the phone calls, emails and faxes I've received from my district and all over the country," said Congressman Eric Massa. "Time Warner has announced an ill-conceived plan to charge residential and business broadband fees based on the amount of data they download. They have yet to explain how increased internet usage increases their costs." . . .

In the past week, there has been a significant uproar in the Rochester, NY area regarding Time Warner's announcement that they will "test market" a plan to charge customers based on how much they download. The initial proposal was to introduce a 5, 10, 20, or 40 gb/month downloading cap. If customers went over the cap, they would start mounting additional fees.

Then today Time Warner announced a new tiered plan similar to the previous one. However, for a consumer to receive the same unlimited internet that they currently do for around $40 per month, they would be billed $150 per month under the new plan.

Read more about it at "Congressman: There Should Be a Law against Internet Caps!" and "Time Warner Faces Backlash on Broadband Caps."


The Supreme Court has refused to hear a government appeal of Mukasey v. A.C.L.U., a case about the constitutionality of the Child Online Protection Act of 1998 (COPA). This action effectively kills COPA after a very long legal battle.

Read more about it at "After 10 Years, an Infamous Internet-Censorship Act is Finally Dead," "Supreme Court Deals Death Blow to Antiporn Law," and "Ten Years of Futility: COPA Finally, Truly Dead."

Welcome to the Filtered Internet: No Opt-Out for Australians

Australia's Plan for Cyber-Safety will not offer an Internet filtering opt-out. Rather, Australians will have to choose between two filtered options: one blocks inappropriate content for children, the other "illegal" content.

Read more about it at "Australians Censor the Internet," "Australia Continues Down the Slippery Slope of Censorship. . . 'For The Children,' of Course," and "No Opt-Out of Filtered Internet."

Content: Selected Essays on Technology, Creativity, Copyright, and the Future of the Future

Noted copyright freedom fighter and science fiction author Cory Doctorow has released a free version of Content: Selected Essays on Technology, Creativity, Copyright, and the Future of the Future under a Creative Commons U.S. Attribution-NonCommercial-ShareAlike license. Doctorow is also a major contributor to the Boing Boing Weblog.

Usenet Newsgroups Will Be Blocked By Major ISPs

Spurred on by New York Attorney General Andrew Cuomo’s efforts to fight child pornography, Sprint, Time Warner Cable. and Verizon will block significant numbers of Usenet news groups.

Regarding the Verizon ban, Declan McCullagh points out that only 8 of 1,000 Usenet hierarchies are being kept, and "That means not carrying perfectly innocuous—and, in fact, very useful—newsgroups like symantec.customerservice.general, us.military, microsoft.public.excel, and fr.soc.economie."

Read more about it at: "alt.blocked: Verizon Blocks Access to Whole USENET Hierarchy" "ISPs: We're Limiting Our Own Usenet Groups, Not Blocking Others" "N.Y. Attorney General Forces ISPs to curb Usenet Access" "Verizon Offers Details of Usenet Deletion: alt.* groups, Others Gone"

The "Community Conscious Internet Provider" ISP: Utah Wants to Certify Porn-Free ISPs

Under a bill in the Utah legislature (H.B. 407), Utah would certify a qualifying ISPs as a Community Conscious Internet Provider (CCIP). The designation would be renewed annually.

Among other provisions, a CCIP ISP must "prohibit its customers by contract from publishing any prohibited communication"; "remove or prevent access to any prohibited communication published by or accessed using the Internet service provider's service within a reasonable time after the Internet service provider learns of the prohibited communication"; "maintain a record for two years following its allocation of an IP address of the IP address, the date and time of the allocation, and the customer to whom the IP address is allocated"; and "cooperate with any law enforcement agency by providing records sufficient to identify a customer if the law enforcement agency requests the information and supplies reasonable proof that a crime has been committed using the Internet service provider's service."

Prohibited communications are either pornographic (Section 76-10-1203) or harmful to minors (Section 76-10-1206) as determined by Utah law.

Read more about it at "Proposed Utah Bill Would Give Special Designation to ISPs That Block Porn" and "'This ISP Has Been Rated 'G' By the State of Utah'."

Australian ISP Porn Filter Test Gets Green Light

The Australian government is ready to proceed with testing an ISP Internet filter that aims to eliminate digital pornography. Customers who do not want a filtered Internet connection will need to opt out. Federal Communications Minister Stephen Conroy has said that the government's previous $85 million PC-based filter program, the NetAlert program, had "clearly failed."

Read more about it "ACMA Report Finds Little to Support Conroy's Enthusiasm for ISP Filtering," "Australia Moving Ahead with Plans to Erect ISP Porn Filters," "Net Filter at Test Phase," and "Web Porn Software Filter a Dud."

Net Neutrality Is Back: The Internet Freedom Preservation Act of 2008

Rep. Ed Markey (D-MA) and Chip Pickering (R-MS) have introduced the Internet Freedom Preservation Act of 2008 (H.R. 5353) in the House.

Here's an excerpt from the press release:

The goal of this bipartisan legislation is to assure consumers, content providers, and high tech innovators that the historic, open architecture nature of the Internet will be preserved and fostered. H.R. 5353 is designed to assess and promote Internet freedom for consumers and content providers. Internet freedom generally embodies the notion that consumers and content providers should be free to send, receive, access and use the lawful applications, content, and services of their choice on broadband networks, possess the effective right to attach and use non-harmful devices to use in conjunction with their broadband services, and that content providers not be subjected to unreasonably discriminatory practices by broadband network providers.

Read more about it at "Lawmakers Introduce New Net Neutrality Bill," "New Net Neutrality Bill Frowns on ISP 'Favoritism'," "New Net Neutrality Bill Surfaces in House (Updated)," and "Net Neutrality Returns To Top Of Washington's Agenda."

Will Libraries and Other Wi-Fi Access Point Owners Have to Report Known Child Porn under the SAFE Act?

The rapid passage of the Securing Adolescents From Exploitation-Online Act of 2007 (SAFE Act) in the U.S. House of Representatives has left confusion and controversy in its wake about whether the owners of public Wi-Fi access points must report digital child pornography that they are aware of to the CyberTipline of the National Center for Missing and Exploited Children or face massive fines. It appears that this was not the intent of the bill's authors, but the wording of the bill could be interpreted by courts to include libraries and other public Wi-Fi access point owners: "Whoever, while engaged in providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce . . ."

Read more about it at "House Vote on Illegal Images Sweeps in Wi-Fi, Web Sites"; "SAFE Act Won't Turn Mom-and-Pop Shops into WiFi Cops"; and "Wi-Fi 'Illegal Images' Politician Defends Legislation."

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