COMMENTARY:

The Struggle for Net Neutrality

During his 2008 campaign, Barack Obama promised to "Support the principle of network neutrality to preserve the benefits of open competition on the Internet."

Perhaps not given a worse record than his fiercest critics feared, worse than George Bush, across the board on both domestic and foreign policies, including:

• failing to deliver promised change;
• being the standard bearer for the corrupted political/business elite;
• governing like a crime boss in league with Wall Street;
• disdaining democratic rights, freedoms, and the rule of law;
• betraying working Americans;
• proposing social services cuts instead of increasing them when they're most needed;
• denying budget-strapped states vitally needed aid;
• ignoring growing poverty, hunger, homelessness and despair;
• expanding militarism, imperial wars, and state-sponsored terrorism;
• violating human rights and civil liberties; and
• providing open-ended banker bailouts, an array of pro-business measures, and the greatest ever amounts of military spending at a time America has no enemies.

Will Net Neutrality fare better? As the last frontier of press freedom, it gives consumers access to any equipment, content, application and service, free from corporate control. Public interest groups want it preserved. Giant telecom and cable companies want control to:

• establish toll roads, or premium lanes;
• charge extra for speed and free and easy access;
• control content to stifle dissent and independent thought;
• co-opt this essential public space for profit; and
• subvert digital and political democracy.

Founded in 2002, "Free Press is a national, nonpartisan, nonprofit organization working to reform the media (by) promot(ing) diverse and independent media ownership, strong public media, quality journalism, and universal access to communication."

It says Net Neutrality "means no discrimination (by) prevent(ing) Internet providers from blocking, speeding up or slowing down Web content based on its source, ownership or destination."

Giant providers want it privatized to "discriminate in favor of their own search engines (while) slowing down or blocking services by their competitors. (They're) spending hundreds of millions of dollars lobbying Congress" and the FCC to defeat Net Neutrality and jeopardize the Internet's future.

Its loss will stifle innovation, limit competition, and control, restrict or prevent free access to information. "Consumer choice and the free market would be sacrificed to the interests of a few corporations."

The Internet will resemble cable TV with providers deciding "which channels, content and applications are available," and at what price.

At stake is whether digital democracy or corporate control will prevail. For media scholar Bob McChesney, it's "a defining issue (at a) critical juncture (window of opportunity) to create a communication system that will be a powerful impetus (for) a more egalitarian, humane, sustainable, and creative (self-governing) society."

Media reform activists agree that a corporate-free and open Internet must be defended at all costs. The stakes are that high. This battle must be won, but no law mandates it, and under George Bush and the Republican-controlled Congress, several proposed ones were quashed.

Introduced on July 31, 2009, it's "To amend the Communications Act of 1934 to establish a national broadband policy, safeguard consumer rights, spur investment and innovation, and for related purposes." It was referred to the House Committee on Energy and Commerce for consideration.

On October 22, 2009, Senator John McCain (with no cosponsors) introduced S. 1836: A bill to prohibit the Federal Communications Commission from further regulating the Internet." In other words, to prohibit Net Neutrality, an idea McCain calls a "government takeover." It was referred to the Committee on Commerce, Science, and Transportation for consideration.

The Center for Responsive Politics and Sunshine Foundation found that from January 2007 - June 2009, McCain was the largest recipient of telecom and industry lobbyist contributions, getting $894,379, including amounts for his presidential campaign. During the same period, 244 members of Congress got $9.4 million, second only to what the pharmaceutical and health products industry gave, according to the Center for Public Integrity.

On October 23, 2009, a Federation of American Consumers and Travelers news release announced that:

"An aide to Sen. Byron L. Dorgan said the North Dakota Democrat will reintroduce his "Preserving Internet Freedom" bill, which he last sponsored in 2007." The bill "is intended to support and help codify new net neutrality principles announced Sept. 21 by" the FCC.

On September 21, an FCC press release headlined:

"FCC Chairman Julius Genachowski Outlines Actions to Preserve the Free and Open Internet....in a speech today at The Brookings Institution."

He called the Internet "an extraordinary platform for innovation, job creation, investment, and opportunity (that has) unleashed the potential entrepreneurs and enabled the launch and growth of small businesses across America. It is vital that we safeguard the free and open Internet." The way forward will be debated pitting consumers against powerful industry groups wanting full control and the profit potential it holds. In the end, new rules will be crafted, hopefully to fulfill Obama's promise, but so far with no assurance.

Previously, the FCC embraced four open Internet principles giving consumers access to:

• lawful Internet content;
• applications and services of their choice;
• legal devices not harmful to the network; and
• whatever network, application, service, and content providers they wish.

Two new ones are now proposed:

• preventing providers from discriminating against content or applications, "while allowing for reasonable network management;" and
• ensuring providers are transparent about their management practices.

On October 22, Genachowski affirmed the six principles (applying to all Internet accessing platforms) in announcing a "Notice of Proposed Rulemaking (NPRM)," stating:

"With today's Notice, we seek public input on draft rules to preserve an open Internet - the next step in an ongoing and longstanding effort at the Commission....In examining the issue, the Commission has provided abundant opportunities for public participation, including through public hearings and requests for written comment, which have generated over 100,000 pages of input in approximately 40,000 filings from interested companies, organizations, and individuals."

"Throughout this extensive process, one point has attracted nearly unanimous support: The Internet's openness, and the transparency of its protocols, have been critical to its success....Because of the historically open architecture of the Internet, it has been equally accessible to anyone with a basic knowledge of its protocols," including for commerce, speech and "an immense variety of content, applications, and services that have improved the lives of Americans....The Commission has a statutory responsibility to preserve and promote advanced communications that are accessible to all Americans and that serve national purposes."

Up to now, the "Internet Policy Statement" helped preserve Internet openness, but it's time "to build on past efforts and to provide greater clarity regarding the Commission's approach to these issues through a notice-and-comment rulemaking....to help address emerging challenges to the open Internet." Comments are sought on:

• the six principles in draft language;
• the need for "reasonable network management;"
• "managed" or "specialized" services;
• how and to what extent they should apply to "non-wireline forms of Internet access, including, but not limited to, terrestrial mobile wireless, unlicensed wireless, licensed fixed wireless, and satellite;" and
• enforcement procedures to ensure compliance.

A new FCC web site, openinternet.gov, was launched to encourage public input, with no assurance the agency or Congress will heed it.

Nonetheless, Free Press policy director, Ben Scott, said:

"After years of hard work, we are pleased that the FCC has begun this crucially important rulemaking on Network Neutrality. A well-crafted Net Neutrality rule can assure that the open Internet continues to serve as a great force for economic innovation and democratic participation for all Americans. (The agency is taking) an important step toward securing the open Internet and a victory for the public interest and civil rights organizations, small businesses, Internet innovators, political leaders, and millions of people who have fought to get to this point...."

"We welcome a new era at the FCC in which decisions made in the public interest withstand the cynical lobby of special interests from a few big phone and cable companies," and those in Congress who support them like John McCain and the man Free Press calls the "Congressman from Comcast," Robert Brady (D. PA), because of his "long-standing history of supporting (its) policies" to the detriment of consumers.

Free Press' Tim Karr fears it may undermine Internet freedom if not addressed and corrected, and a group of six prominent law professors agree. They include:

• Jack Balkin, Yale Law School;
• John Blevins, South Texas College of Law;
• Jim Chen, University of Louisville School of Law where he's also Dean;
• Larry Lessig, Harvard Law School;
• Barbara van Schewick, Stanford Law School; and
• Tim Wu, Columbia Law School.

They've all "spent many years devoted to research on the architecture of the Internet and its related policies (and) published widely on" Net Neutrality.

On November 2, they emailed Chairman Genachowski to "flag what (they) believe are two (serious) ambiguities in the Notice that (they) hope can be addressed early to provide a clearer foundation for comments:"

"Non-Discrimination"

For nearly a century, this has been a central concept in telecommunications law and policy. Nothing should be done to subvert it, so a clear definition is essential. So far, it's "surprisingly narrow."

"Reasonable Network Management"

It's a significant ambiguity because what's not reasonable is "key to the entire rule."

The professors "seek to understand whether, by (NPRM's) language, the Commission seeks comments on what the standard should be, or whether (it) proposes not to have one."

They ask why "the FCC would not want to provide some guidance on the applicable standard for reasonable network management, lest....the exception swallow the rule," and want clarification now to prevent it. Otherwise, these ambiguities will "provide generous opportunities to try to work around the Commission's efforts in this area." In other words, subvert Net Neutrality, not affirm it.

To be effective, FCC rules and congressional legislation must be unambiguous and strong with clear standards in the public interest, especially regarding content.

Free Press calls the NPRM "a very important step in the right direction," but some elements need clarification to "preclude ISP's from preventing their customers from sending and receiving lawful content, running lawful applications, or connecting lawful devices to the network." Also to assure them free choice among network, applications, service, and content providers.

If properly crafted, new rules will establish a legal framework to require nondiscriminatory treatment of all Internet traffic under reasonable, fair network management standards. Yet significant ambiguities may subvert final ones because of loopholes that must be avoided.

So far, it appears that the FCC "is very committed to protecting the open Internet with rules that have meaning and teeth....This is clearly a very good start (that) lays a good foundation for a final rule that will serve as an unassailable, yet appropriately flexible, firewall to protect and preserve the open Internet." With precise clarification, established standards "once enacted will withstand scrutiny in the courts" and be a victory for digital democracy. But not easily against powerful interests determined to subvert it, so therein lies the struggle ahead.

Launched on October 23, 2007, America, the EU, Switzerland and Japan began negotiating a new intellectual property enforcement treaty, ACTA. Other nations as well, including Canada, Australia, Korea, New Zealand, Mexico, Jordan, Singapore, and the UAE. Ostensibly for counterfeit goods protection, critics say it's more about Internet distribution and information technology rules to subvert Net Neutrality, privacy, and personal freedoms.

Powerful interests want stronger global intellectual property rights, and are pursuing them through the:

• WTO;
• World Customs Organization (WCO, "the only intergovernmental organisation exclusively focused on Customs matters);"
• the G8;
• the World Intellectual Property Organization's (WIPO) Advisory Committee on Enforcement: WIPO is a UN agency "dedicated to developing an accessible international intellectual property system which reward creativity, stimulates innovation and contributes to economic development...;" and
• the Intellectual Property Experts' Group's (IPR) protection and enforcement efforts to "achiev(e Pacific region) free and open trade and investment."

So far, few details are known, yet ACTA is being secretly fast-tracked to completion.

Concerned Americans got some information through Freedom of Information (FOA) requests. Canadians also through Canada's Access to Information Act (AIA).

Of concern are provisions endangering consumer privacy, civil liberties, legitimate commerce, restrictions on developing nations' rights to choose their preferred policy options, and, pivotal for this article, a free and open Internet.

The US Trade Representative's (USTR) Fact Sheet and 2008 "Special 301" report shows an intent to create tougher intellectual property enforcement standards than under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). If successful, they'll override national sovereignty, be binding on ACTA members, and give them enough power to enforce global compliance.

The Foundation for a Free Information Infrastructure (FFII) is "a not-for-profit association registered in twenty European countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, open standards."

In 2008, Brussels rebuffed its request for ACTA documents saying:

"the documents contain negotiating directives for the negotiation of the above mentioned agreement. These negotiations are still in progress. Disclosure of this information could impede the proper conduct of the negotiation."

In appealing the ruling, FFII accused the EU of "a gross violation of the basic democratic principles (these nations are) supposed to stand for." In a November 10, 2008 press release, it said:

"The EU Council of Ministers refuses to release secret (ACTA) documents. (This) secrecy fuels concerns that the treaty may give patent trolls the means to extort companies, undermine access to low-cost generic medicines, lead to monitoring all citizens' Internet communications and criminalize peer-to-peer electronic file sharing."

In May 2008, Wikileaks obtained a leaked four-page document titled, "Discussion Paper on a Possible Anti-Counterfeiting Trade Agreement," saying:

"If adopted, (ACTA) would impose a strong, top-down enforcement regime, with new cooperation requirements upon (ISPs), including perfunctionary disclosure of customer information. The proposal also bans 'anti-circumvention' measures which may affect online anonymity systems and would likely outlaw multi-region CD/DVD players. The proposal also specifies a plan to encourage developing nations to accept the legal regime," with perhaps consequences for those refusing.

The document covers:

• legal measures to encourage ISPs to cooperate with right holders to remove infringing content;
• material on anti-camcording laws; and
• network-level filtering to enforce a three-strikes-and-you're out rule. That is, consumers found three times to have infringed copyrighted content will have their Internet connections terminated.

These provisions way exceed current treaty obligations by imposing binding copyright demands requiring:

• ISPs to police copyrighted material and deter unauthorized storage and transmission of alleged infringed content;
• terminate Internet access of alleged "repeat infringers" or be liable;
• remove alleged infringed material;
• enforce digital rights management (DRM) rules relating to systems that identify, track, authorize and restrict access to digital media - to protect and enforce copyrights, patents, trademarks, and other forms of intellectual property; and
• impose global US Digital Millennium Copyright Act (DMCA) rules relating to intellectual property that will impose censorship, subvert free expression, and undermine innovation.

IP Justice is "an international civil liberties organization promoting balanced intellectual property laws and free expression." It addressed ACTA as follows:

Its "text will be 'locked' and other countries who are later 'invited' to sign-on to the pact will not be able to re-negotiate its terms....few countries will have the muscle to refuse an 'invitation' to join, once the rules have been set by the select few conducting the negotiations."

Other IP Justice concerns are over:

• secret negotiations;
• an undemocratic process;
• the exclusion of public interest groups;
• using questionable data,
• the burdens imposed on public and private interests;
• criminalizing ordinary consumer activity;
• free expression;
• privacy issues;
• due process rights;
• the need for flexibility to address technological change;
• anti-innovative and anti-competitive provisions;
• the claim that stronger consumer protections aren't needed; and
• universally binding top-down rules overriding national sovereignty.

On April 6, 2009, the USTR released a summary of ACTA negotiations stating they're to:

• "negotiate a new state-of-the art agreement to combat counterfeiting and piracy;" and
• help "governments around the world....more effectively combat the proliferation of counterfeit and pirated goods."
• Also presented was a draft agenda for the November 4 - 6, 2009 Seoul, Korea negotiations to be followed by a press release similar to the post-July 5th Morocco round saying little more than "discussion focused on International Cooperation and Enforcement Practices and Institutional Issues" as well as others regarding "transparency."

From what's known, if ACTA measures are adopted, consider the implications. Consumer Internet communications and content will be monitored, threatening privacy, civil liberties, and a free and open Internet. In addition, new Net Neutrality rules and congressional legislation codifying them will be subverted by ACTA authority.

This writer's May 22 article said the following:

On April 1, two bills endangering a free and open Internet were introduced in the Senate:

• S. 773: Cybersecurity Act of 2009 "to ensure the continued free flow of commerce within the United States and with its global trading partners through secure cyber communications, to provide for the continued development and exploitation of the Internet and intranet communications for such purposes, to provide for the development of a cadre of information technology specialists to improve and maintain effective cybersecurity defenses against disruption, and for other purposes."
   
  S. 773 was referred to the Commerce, Science, and Transportation Committee, but not yet voted on.
• S. 778: A bill to establish, within the Executive Office of the President, the Office of National Cybersecurity Advisor (aka czar). The bill was referred to the Homeland Security and Governmental Affairs Committee where it remains.

Accompanying information said Senators Jay Rockefeller and Olympia Snowe introduced the legislation to address:

"our country's unacceptable vulnerability to massive cyber crime, global cyber espionage, and cyber attacks that could cripple our critical infrastructure."

We presently face cyber espionage threats, they said, as well as "another great vulnerability....to our private sector critical infrastructure - banking, utilities, air/rail/auto traffic control, telecommunications - from disruptive cyber attacks that could literally shut down our way of life."

"This proposed legislation will bring new high-level governmental attention to develop a fully integrated, thoroughly coordinated, public-private partnership to our cyber security efforts in the 21st century" through what's unstated - privacy violations by subverting a free and open Internet.

During a March Senate Commerce, Science and Transportation Committee hearing, Senator Rockefeller said that we'd all be better off if the Internet was never invented. His precise words were: "Would it have been better if we'd never have invented the Internet and had to use paper and pencil or whatever!" Left unsaid was that without a free and open Internet, few alternatives for getting real news and information would exist, at least with the ease and free accessibility computers provide.

The Electronic Frontier Foundation's (EFF) Jennifer Granick expressed concern about "giving the federal government unprecedented power over the Internet without necessarily improving security in the ways that matter most. (These bills) should be opposed or radically amended."

Here's what they'll do:

• federalize critical infrastructure security, including banks, telecommunications and energy, shifting power away from providers and users to Washington;
• give "the president unfettered authority to shut down Internet traffic in (whatever he calls) an emergency and disconnect critical infrastructure systems on national security grounds....;"
• potentially "cripple privacy and security in one fell swoop" through one provision (alone) empowering the Commerce Secretary to "have access to all relevant data concerning (critical infrastructure) networks without regard to any provision of law, regulation, rule, or policy restricting such access...."

In other words, the Commerce Department will be empowered to access "all relevant data" - without privacy safeguards or judicial review. As a result, constitutionally protected privacy protections will be lost - ones guaranteed under the Electronic Communications Privacy Act, the Privacy Protection Act, and financial privacy regulations.

Another provision mandates a feasibility study for an identity management and authentication program that would sidestep "appropriate civil liberties and privacy protections."

At issue is what role should the federal government play in cybersecurity? How much power should it have? Can it dismiss constitutional protections, and what, in fact, can enhance cybersecurity without endangering our freedoms?

S. 773 and 778, as now written, "make matters worse by weakening existing privacy safeguards (without) address(ing) the real problems of security."

Months later, S. 773 was secretly redrafted, but from what's known, leaves it mostly unchanged. Like the original version, it gives the president carte blanche power "to decide which networks and systems, private or public, count as 'critical infrastructure information systems or networks," according to the EFF's Richard Esguerra. It also lets him shut down the Internet in both versions of the bill.

The original one states:

"The President....may order the disconnection of any Federal Government or United States critical infrastructure information systems or network in the interest of national security."

The new bill says:

"The President....in the event of an immediate threat (may) declare a cybersecurity emergency; and may, if the President finds it necessary for the national defense and security, and in coordination with relevant industry sectors, direct the national response to the cyber threat and the timely restoration of the affected critical infrastructure information system or network."

In other words, he can shut down the Internet and leave privacy, authority, and security effectiveness unresolved. According to EFF's senior staff attorney, Lee Tien:

"The language has changed but it doesn't contain any real additional limits. It simply switches the more direct and obvious language they had originally to the more ambiguous (version). The designation of what is a critical infrastructure system or network as far as I can tell has no specific process. There's no provision for any administration process or review. That's where the problems seem to start. And then you have the amorphous powers that go along with it."

Esguerra adds:

"there is vague language about mapping federal and private networks; there is an unexplained scheme to certify cybersecurity professionals at the federal level; and the mandated implementation of a 'cybersecurity strategy' before the completion of a legal review that could protect against inadvertent privacy violations or inefficiency."

In late February, Director of National Intelligence, Admiral Dennis Blair, told the House Intelligence Committee that the NSA, not DHS, should be in charge of cybersecurity even though it has a "trust handicap" to overcome because of its illegal spying:

"I think there is a great deal of distrust of the National Security Agency and the intelligence community in general playing a role outside of the very narrowly circumscribed role because of some of the history of the FISA issue in years past...." So Blair asked the committee's leadership to find a way to instill public confidence.

On February 9, Obama appointed Melissa Hathaway to be Acting Senior Director for Cyberspace for the National Security and Homeland Security Councils - in charge of a 60-day interagency cybersecurity review, now completed. On August 3, she resigned citing personal reasons, but people close to her said the president's economic advisers marginalized her for favoring private sector regulatory options. As of late October, her position is still unfilled.

On April 21, NSA/Chief Central Security Service director, General Alexander, told RSA Conference security participants that "The NSA does not want to run cybersecurity for the government. We need partnerships with others. The DHS has a big part, you do, and our partners in academia. It's one network and we all have to work together....The NSA can offer technology assistance to team members. That's our role."

Spying is its role with DHS enforcement. Cooperatively with the administration, they threaten our constitutional freedoms. Infringing them can't be tolerated nor measures to subvert a free and open Internet.

On January 30, US Attorney Tim Morrison subpoenaed the Philadelphia-based Independent Media Center (IMC) to give an Indianapolis grand jury all IP address logs, times, and other ID information for June 25, 2008. In addition, under a gag order, its system administrator was prohibited from "disclos(ing) the existence (or contents) of this request" without Justice Department permission.

On November 9, EFF discussed the "Anatomy of a Bogus subpoena: How the Government Secretly Demanded the IP Address of Every Visitor to Political News Site Indymedia.us."

According to senior staff attorney Kevin Bankston:

"Secrecy surrounds law enforcement's communications surveillance practices like a dense fog. (Especially the) demands issued under 18 USC 2703 of the Stored Communications Act (SCA) that seek subscriber information or other user records from communications service providers."

Court orders can require phone companies or online service providers to reveal them, "along with a gag order preventing (them) from disclosing the existence of the government's demand. More often, companies are simply (subpoenaed) by prosecutors without any court involvement; these demands, too, are rarely made public."

EFF called the gag order "Bogus (for) Demanding the Recipient's Silence Without Any Legal Basis." It's "ready to provide assistance (whenever) government knocks on someone's door with an unlawful, invalid, overbroad, free speech-threatening, privacy-invasive demand for your sensitive Internet data." It represented IMC and prevailed, in part because the site doesn't keep historic logs on its visitors.

On November 13, indymedia.us announced:

"....we've managed, after nearly a year of legal action on our behalf by (EFF), to successfully fight back against a bogus (DOJ) subpoena request in conjunction with a grand jury investigation....not only did (we) object to this blatantly illegitimate and overly broad request, but, per accepted Indymedia best practices, we do not keep such logs in the first place, in order to maximally ensure the privacy of our site users. Also troubling was the (gag order prohibiting any discussion of) the legal issue with the broader network of collectives cooperating on the indymedia/us site."

EFF stresses that "the level of secrecy surrounding how the government uses its surveillance authority under the Stored Communications Act encourages abuses," including a free and open Internet. What Jefferson understood by saying that:

"If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be."

Stephen Lendman is a Research Associate of the Centre for Research on Globalization. He lives in Chicago and can be reached at lendmanstephen@sbcglobal.net.

Also visit his blog site at sjlendman.blogspot.com and listen to The Global Research News Hour on RepublicBroadcasting.org Mondays from 11AM to 1PM US Central time for cutting-edge discussions with distinguished guests on world and national topics. All programs are archived for easy listening.

Mr. Lendman's stories are republished in the Baltimore Chronicle with permission of the author.