Whose Net Is It? Courts May Have To Decide

When Internet pioneer Lawrence G. Roberts was developing the technology for the first computer networks, he and his collaborators did not envision video transmissions, but they did predict a demand for equal access.

"We anticipated that there would be a need for equal access and tried to build that into the structure so it would be very hard to avoid," he said in an interview this week.

Now that the Internet has become a necessary communication tool, a multimedia platform, and a high-tech combination town square/international bazaar, millions of Americans are in a battle over who gets access and how.

Federal authorities and hardware companies are trying to ensure that the government can monitor what is taking place on the Internet. Telecommunications companies are trying to hold onto their ability to charge customers what they want. Internet-spawned companies like Google, Amazon and eBay have joined with bloggers, musicians and others pushing for legislative guarantees that the Internet will remain the open forum it is today.

Most noticeably, the argument is playing out in Congress, where net neutrality provisions failed to pass the U.S. House of Representatives. The issue is expected to go before the Senate next week.Most of the players argue they are trying to preserve freedom, and the winners could affect the future of the network for years to come.

"It has been a truly free market in a lot of ways, an unparalleled source for the free exchange of ideas and debate. We're at a critical juncture," Craig Aaron, director of communications for Free Press, a media reform organization, said in a recent interview.

The Internet was born 37 years ago, with the launch of the first major packet network.Roberts was in charge of information processing techniques for the Defense Advanced Research Projects Agency (DARPA). He helped plan, create and develop ARPANET, the government and academic network that has evolved into today's Internet. In 1971, there were 23 sites, mostly belonging to research groups.

The number of Internet endpoints is now doubling annually, Roberts said. That growth rate is one of several factors behind an increasing struggle for control. A Federal Communications Commission spokesperson said a series of policy and legal decisions are causing a shift in equilibrium too. Several of those decisions " including the impending relief from local video franchising constraints " set the stage for an explosion of audio and video content online.

"A couple years from now, every Web site could be a TV station," said Aaron, whose group joined SaveTheInternet.com to promote network neutrality guarantees in Congress. "All of these decisions are being made by Congress, by some folks who don't even have e-mail, I'm sure."The FCC determined less than two years ago that VoIP is not subject to state telecommunications regulations, and Madison River agreed to stop blocking VoIP on its broadband network. The U.S. Supreme Court upheld the FCC's decision that cable modem service is not subject to common carrier regulations. The FCC declared DSL an unregulated information service and adopted a broadband policy statement.

Some interested parties, like Google, are demanding that the government act now to prevent a duopoly from taking over. Bloggers, musicians and political groups have joined them to warn that the free nature of the Internet is threatened. They claim the telecommunications companies will block content, restrict consumers' choices, and possibly discourage an open and democratic platform.

"We live in a democracy and we need something like this controlled by the people in the country, giving everyone a fair chance, not just a few people with a lot of money," Craigslist founder and network neutrality supporter Craig Newmark said in an interview this week.

Telecommunications companies have repeatedly said they have no plans to degrade service and they must be able to charge more to upgrade networks.

Some network neutrality proponents point to news about surveillance and interception and experience as reasons to doubt the trustworthiness of major providers, but AT&T, BellSouth and Verizon have said they adhere to the law and protect customer privacy .

Privacy advocates complain that government itself is threatening people's freedoms on the Web.Authorities have determined that VoIP is subject to rules on court-ordered wiretaps, and U.S. Attorney General Alberto Gonzales recently urged ISPs to record and retain data for law enforcement. The federal government has requested massive amounts of data on searches and news reports have leaked information about secret surveillance.

While just about everyone agrees that criminal investigations into major crimes like child pornography should be allowed, some people warn it can be taken too far.

Newmark believes law enforcement activity is OK "as long it's constitutional, and there are due process controls for the release of information."

"The problem is sometimes people think they're above the law and don't need to obey the Constitution," he said.

Roberts said investigators have always been able to get information from telecommunications companies, but "now we can also catch all of the content, which is even more scary." He said every network request for proposal now requires that hardware allow for interception. Since that also makes networks vulnerable, Roberts and others have been trying to work out how to balance the frequently competing interests of security and privacy.He agreed with Newmark's view on the importance of the courts in ensuring that no group's power over the Internet goes unchecked.

"You really have to depend on the legal system and the political system not to abuse that," Roberts said. "We have to work on the laws to make sure that people are not improperly gathering information."

Telecommunications say that a fair market system and few regulations are responsible for driving Internet growth and innovation so far.

They claim they need freedom to charge extra for premium service, which will help by providing "fast lanes" for content that requires more bandwidth. They have formed an alliance with conservative political groups, technology companies and the Communications Workers of America. They argue that legislation could be the biggest threat to Internet freedom.

Mike Wendy, media relations manager for the Computer and Communications Industry Association, said that net neutrality bills could impose "onerous telephone-like, or more complicated, regulation," on caching speeds, access requirements, rate regulations and application regulation.He said laws should not be a default, but a last resort after the free market, technology itself, and federal watchdogs fail to protect consumers

Roberts said groups on both sides of the net neutrality debate are confusing the discussion by merging two ideas. He said ISPs should be able to charge more for new and improved technology with better quality or increased bandwidth. That isn't the same as allowing companies to build "walled gardens" to keep users in and competitors' content out.

"They're two different issues and if Congress got them clearly separated in their mind, I don't think anybody would be drastically against charging different prices for different services " if the access was equal," he said.

Both sides have been pushing for an all-or-nothing solution in public while policymakers seek a compromise behind closed doors.

No matter what rules ultimately pass, consultant Trevor Roycroft believes Internet control is likely to follow the path that led telephone companies to the courts nearly 30 years ago. He said he's not sure the outcome will be the same, however.Roberts said that, either way, the Internet will have an endpoint for every human being on Earth in 20 years.

"By the time it is 50 or 60 years old it will be fully developed," Roberts said. "In another 10 years, it will be pretty mature, offering almost anything to anybody. It's very much in its middle age already."

People will have enough bandwidth to do everything they want with it and even if American companies blocked access to certain information points, people would find ways around restrictions, as Russians did during the Cold War and Chinese are doing now, he said.

"There will be a continued political battle to try to control it," Roberts said.