The 110th Congress has been at it for just over a month now and already several issues have arisen that could have a major impact on the Internet and civil liberties. In the coming months, lawmakers will face choices -- on issues ranging from surveillance, to online censorship, to consumer privacy -- that will reverberate throughout the global Internet community, for better or for worse. Already, bills have been introduced that are fundamentally inconsistent with the policy framework that enabled the Internet's remarkable evolution to this point. We have urged lawmakers to reaffirm a legislative approach to the Internet that preserves civil liberties and paves the way for continued growth and development of digital technology. Last month, we issued our
Legislative Agenda for the 110th Congress. In it, we offered the standard legislative recommendations for proposals likely to arise in 2007, but in addition, we wanted to highlight the core aspects of the Internet that policymakers should be seeking to preserve as they consider passing legislation on a range of issues relating to technology policy.
As we see it, these are the things that every lawmaker needs to know about the Internet:
* User empowerment: The Internet is uniquely user-controlled. To a far greater extent than users of any other electronic medium, Internet users have the power to choose where they will go online, and what they will see or hear. Users can configure their browsers and their search engines to avoid content they consider objectionable. They can install filters to block unwanted content and email. Assuming users are provided with notice and genuine choices, they can decide what software to download. They can install security software to protect against many forms of fraudulent behavior.
Historically, Congress understood the need to preserve user control. For example, it rejected government controls on encryption because, on a uniquely user-controlled medium, such controls would have diminished, not enhanced security.
Today, lawmakers addressing Internet challenges should focus first on policies that empower users rather than empowering the government or requiring intermediaries to exert control. For example, empowering parents, librarians and educators to use technology tools to shield children from inappropriate content is far more effective than any government censorship regime.
* Open, decentralized, interoperable, no gatekeepers: The Internet was, by design, decentralized. Its power is at the edges of the network. Unlike previous mass media, the Internet was designed with very little "intelligence" or functionality at its core. The brilliance of the TCP/IP suite of protocols is that any device could be attached to the edges of the network and interoperate with other devices at the far reaches of the network This decentralized architecture means that censorship is difficult at the core. Network operators' emphasis is on speed, on getting packets to their intended destinations, without pausing to examine each packet for compliance with one or more non-technical standards of acceptability.
The Internet's lack of gatekeepers was legally reinforced by the policy adopted by Congress that service providers were not liable for the content created by their customers. This protection from liability is a crucial underpinning that has allowed the Internet to flourish. If ISPs, Web hosts, and Web site creators become liable for content posted by others, the Internet would be stifled by gatekeepers and it would cease to be a medium where everyone has an equal voice. Increasingly, however, policymakers have been seeking to turn service providers into policemen, forcing ISPs to filter undesirable content and refuse access to undesirable users.
* Non-discrimination: Early policy choices confirmed and enforced the open platform principle. In the dial-up world of the Internet's emergence, telephone companies were required to allow any equipment to be attached to their networks and to carry all traffic on a non-discriminatory basis. Innovators did not need to negotiate with network operators to connect a modem to the network or to make their content and services available to a wide audience. Translating the core elements of these open and non-discriminatory principles to the converged broadband Internet, without adopting a full common carriage regime, poses difficult challenges but must be achieved.
* Innovation, not technology mandates: The Internet's simple core supports a remarkable degree of innovation. It does so on the basis of voluntary technical standards. >From the outset, Internet policy was based on the notion that the government should not design technology; in order to ensure innovation, that function was best left to the marketplace.
Increasingly, policymakers have been asserting control over the Internet's technology and imposing design mandates on Internet services and applications. In 2005, the FCC held that certain Internet services had to be designed and built to make them easier to wiretap. The same FCC sought to impose design mandates on device manufacturers with the goal of better protecting intellectual property. Congress is now considering a similar mandate.
* Abundance and low barriers to entry: Traditional radio and television technology was bound by a limited technical capacity to exploit the electromagnetic spectrum. Consequently, regulation of the airwaves was deemed necessary in order to allocate what was seen as a scarce resource. The Internet by contrast can accommodate an essentially unlimited number of points of entry and an essentially unlimited number of speakers.
Very low barriers to entry and participation have led to a relative equality of voice -- a democratization of expression. In terms of free speech, an environmental activist can reach the same people as an oil company. A blogger can impact an election as much as a major newspaper. And a new content or application provider can emerge from nowhere to become an extraordinary success with relatively low investment and without having to obtain a government license or negotiate with an incumbent to offer new services.
* Global: While the digital divide in the developing world poses serious challenges, the Internet from its inception was a global medium. This greatly limits the reach and effectiveness of many national regulatory efforts, especially those directed at controlling content. Given the global nature of markets, burdensome regulation in the U.S. could send innovation overseas.