An interesting tempest in a teapot has emerged this week following some overblown rhetoric by and in response to celebrity causemeister Bono. There’s a deeper lesson to the incident, however, one with important implications for the net neutrality debate.
In a New York Times op-ed column on Jan. 2, 2010, Bono provided “10 ideas that might make the next 10 years more interesting, healthy or civil.” These include the salvation of the entertainment industry from the clutches of peer-to-peer file sharers, who are just a few turns of Moore’s Law away from being able to “download an entire season of “24” in 24 seconds.”
“Many will expect to get it for free,” Bono laments, apparently unaware that in the U.S., we don’t have a mandatory television license for television content as they do in the U.K. (U.K. residents pay £142.50 a year tax, the principal source of income for the BBC.) So long as you watch 24 when Fox broadcasts it, you will expect to and indeed will get it “for free,” without breaking any laws whatsoever. Hooray for America.
Bono’s proposal to solve this problem, also factually challenged, is to force ISPs to clean up the illegal sharing of copyrighted content:
"We’re the post office, they tell us; who knows what’s in the brown-paper packages? But we know from America’s noble effort to stop child pornography, not to mention China’s ignoble effort to suppress online dissent, that it’s perfectly possible to track content. Perhaps movie moguls will succeed where musicians and their moguls have failed so far, and rally America to defend the most creative economy in the world…."
As several commentators have already pointed out, America’s “noble effort to stop child pornography” has almost nothing to do with looking inside the broken up pieces of Internet transactions, known as “deep packet inspection.” Indeed, as I write in Law One (“Convergence”) of The Laws of Disruption, most federal and state efforts at solving that scourge at least in the online world have been so broad and clumsy that they instantly fail First Amendment scrutiny. (Another feature of American law that Bono may not fully appreciate.) Congress has tried three times to pass laws on the subject, two of which were declared unconstitutional and the third reigned in to be almost meaningless.
State efforts have been even more poorly-crafted. I write in the book about Pennsylvania’s Child Sexual Exploitation Unit, formed in 2008 by act of the Pennsylvania legislature. Staffed by three former state troopers, the CSEU “analysts” surfed the web looking for sites they felt contained child porn, then wrote letters demanding that ISPs block access to those sites for all their Pennsylvania customers. (The easiest way for large ISPs including AOL and Verizon to do that was simply to block the sites, period.)
Aside from the lack of any training or standards by the regulators, the sites that made the list included several host sites with hundreds or thousands of private websites that had nothing to do with pornography of any kind. By the time the courts put the CSEU out of business a year later, Pennsylvania had banned 1.19 million websites, only 376 of which actually contained content the troopers deemed offensive. (An official geographic survey of Spain and the International Philatelic Society made the banned list.) There was also no mechanism for getting a web address off the list, even if the ownership and contents changed hands.
But that’s a mere quibble, as is the fact that Chinese censorship of content, hardly a “best practice,” apparently includes some 30,000 Internet police and perhaps millions of servers—and even then, the surveillance appears to be on the back-end, after the packets have already been reassembled. (Not surprising, China hasn’t exactly published its processes in the Harvard Business Review.)
Regular readers of this blog will be expecting the twist ending, and here it comes. I’m less interested in the misinformed opinions of a musician and humanitarian than in the response it drew from Internet activists. Gigi Sohn of Public Knowledge characterized Bono’s proposal as “mind-bogglingly ignorant” both as to what really caused the fall of the music industry and the technology that would be required for ISPs to become the content police on behalf of copyright owners. Packet filtration, Sohn points out, would lead to “blocking lawful content and encouraging an encryption arms race that would allow filesharing to proceed unabated.” And anyway, the real problem here is overprotective IP laws. (I agree.)
Somewhat less hyperbolic, Leslie Harris of the Center for Democracy and Technology (CDT) wrote today on The Huffington Post that ISPs are taking concrete and responsible steps stop to reduce child pornography that don’t include deep packet inspection, and reiterated Sohn’s point about an encryption arms race.
More interesting, however, Harris notes the danger of mandating ISPs to exert “centralized control over Internet communications.” Harris writes:
"In this country, ISPs do not control what their users send to the Internet any more than a phone company controls the topics of someone’s phone call. Does the U.S. really want to move in the direction of the Chinese model of always-on surveillance? Once we begin to break into all Web traffic to search for copyright violations, evaluating content for its “decency” or appropriateness for children, then analyzing each user’s search habits to determine buying habits and government surveillance without lawful process (remember the NSA warrantless wiretapping) will follow close behind."
The U.S. has the most vibrant, free and innovative Internet because we don’t have gatekeepers in the middle of the network.
Well, at least we don’t yet....