Yesterday’s House Judiciary hearing (witness statements and archived video here) had a deeply political angle – what committee should have jurisdiction over network neutrality issues – but also revealed to me that:
We’re seeing the moment when Hollywood, law enforcement, and the network access providers publicly attempt to join hands in favor of monitored/monetized network access.
I loved meeting Damian Kulash and hearing him testify. His opposite number (for purposes of the hearing) was the president of the Songwriters Guild, Rick Carnes. Carnes was there to talk about piracy, p2p file-trading destroying his industry. Here’s the angle, from Carnes’s point of view: isn’t it true mandating neutral internet access won’t allow network access providers to watch for copyrighted files?
And then there was the “but what about pornography” line of questioning. Although the Christian Coalition representative, Michele Combs, was there to testify about the importance of neutral network access for speech of all kinds (and it was great to see the alliance with the ACLU), the direction of questioning seemed to be: isn’t it true that mandating neutral internet access won’t allow network access providers to watch for nasty files of various kinds?
There are many responses to both of these points.
Copyright infringement is a judgment call, not something that can be figured out automatically at the network level;
screening for infringing files will make the last mile grind to a halt;
network access providers will lose their immunity from copyright claims if they search for these files;
given the concentrated market for internet access, the idea of screening for (and filtering out) particular content creates the opportunity for a great deal of anticompetitive mischief;
content-layer applications are a far better place for this kind of screening – they know what artists they have licenses with, and they can actually respond to notices under the DMCA structure.
On the indecency etc. front, same kinds of arguments:
there’s a dramatic risk of overblocking, threatening innocent speech;
it’s impossible to tell in advance which packet bears the “wrong” kind of flesh tones;
screening will cause the last mile to grind to a halt;
network access providers already cooperate with law enforcement;
we should go after behavior, not tech mandates that will burden all uses of the network;
etc.
But it’s a concerted theme. Avoid network neutrality by summoning up all the evils that it will loose upon the world. Never mind that law still applies online, and that the idea of neutral access is not predicated on facilitating unlawful activity; never mind the costs to all users of creating a carefully (and invisibly) filtered access regime; never mind the outright impossibility of the task – just do it.
It seems to me that it is not in the long-run interests of network access providers to be too closely tied to any particular content industry representative, or set of representatives, given the dramatic change in liability risk that such a partnership represents; it also seems to me that it is not in the long-run interests of law enforcement to push users towards a dramatic uptick in the use of encryption technologies; and it seems clear that it is in no one’s interest to establish a kind of private police force in this highly-concentrated market for highspeed internet access. Mischief, unaccountability, arbitrariness, censorship for commercial reasons – why would we want this?
I had my picture taken with the guys from OK Go. It was an interesting hearing. I’m hoping that these various industries discover their differing interests soon.