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Battle of the Internet

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Battle of the Internet

A federal takeover of the Internet, according to President Obama’s former special assistant for science, technology and innovation policy, is as simple as formally relabelling Internet access services as “telecommunications services,” rather than “information services,” as they are called now. Susan Crawford argues that this wouldn’t be unprecedented at all.

Until August 2005, the commission required that companies providing high-speed access to the Internet over telephone lines not discriminate among Web sites * * * * But under the Bush administration the F.C.C. deregulated high-speed Internet providers, arguing that cable Internet access was different from the kind of high-speed Internet access provided by phone companies * * * * This was a radical move, because it reversed the long-held assumption that a nondiscriminatory communications network was essential to economic growth, civic welfare and innovation.

An illuminating submission by broadband services providers notes, among other things, that such a plan would be an “about-face” that would be problematic as a legal matter and would likely plunge the Internet into “years of litigation and regulatory chaos.”

As the Supreme Court explained in Brand X, “[t]he entire question is whether the [broadband Internet access] products here are functionally integrated (like the components of a car) or functionally separate (like pets and leashes). That question turns not on the language of the Act, but on the factual particulars of how Internet technology works and how it is provided, questions Chevron leaves to the Commission to resolve in the first instance.” In other words, the Commission may reverse its longstanding statutory interpretation only if it has a factual basis to determine that–less than three years after it last examined this question–broadband Internet access is no longer offered as a “functionally integrated” information service, but rather as a stand-alone, naked transmission service.
* * * *Broadband Internet access services are, if anything, even more integrated with enhanced functionality today. For example, even apart from such core functionalities as DNS look-up, which by themselves suffice to support an information service classification, broadband Internet access providers often include some or all of the following as part and parcel of their residential Internet access service: security screening, spam protection, anti-virus and anti-botnet technologies, pop-up blockers, parental controls, online email and photo storage, instant messaging, and the ability to create a customized browser and personalized home page that automatically retrieves games, weather, news and other information selected by the user–all of which involve “generating, acquiring, storing, transforming, processing, retrieving [and/or] utilizing” information. In addition, a significant and growing number of providers offer their Internet access services with a variety of network-oriented, security-related information processing capabilities that are used to address broader threats against their Internet access service and customers. These include processing Internet access traffic flows to check for telltale patterns of worms, viruses, botnets, denial of service attacks and the like; scrubbing email traffic to remove spam; and other techniques that involve interaction with stored information (e.g., databases of known computer threats) to address security concerns. (footnotes omitted.)

On a separate but related note, a recent Rasmussen poll indicates that there is approximately as much public opposition to Internet reform (53%) as there is to healthcare reform.