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Internet Access and the Missing Institutional Design

Susan Crawford

It's Friday, a day to tie some threads together. There were three announcements/events this week that are connected in a non-obvious way.

1. US Intel Chief Wants Carte Blanche to Peep All 'Net Traffic. (Via ArsTechnica, reporting on a Wall Street Journal story and a New Yorker profile.) Our government wants the authority to look at all emails, web searches, file transfers, you name it. And it doesn't want to be bothered by warrants, judicial oversight, or limits of any kind.

2. Leaked memo: Time Warner Cable to trial hard bandwidth caps. (Via ArsTechnica.) Time Warner wants to try billing on the basis of user bandwidth consumption.

3. We need vision for next-generation broadband, not complacency. (Via The Guardian, with thanks to Dirk van der Woude.) A clear statement of disappointment with Ofcom's approach, characterized as (paraphrasing) "investment in highspeed Internet access will happen in good time, as and when companies like BT find a commercial case."

These three elements go together in creating a picture of US policy towards Internet access at the beginning of 2008.

Rather than seeing the Internet as an engine for economic growth, creativity, innovation, and new jobs — and as the converged communications medium for the next generation — current policy is to wait for private companies to decide when investment in access makes sense for them. Those private companies have plenty of incentives to shape access to suit their own business plans. As Harold Feld points out, metered bandwidth (as in the TWC plan) is perhaps better than blocking, but ultimately similarly destructive to the Internet ecosystem.

Not only is current policy shortsighted when it comes to the future of access, it's dramatically tilted towards the desires of law enforcement. We'll take all kinds of astonishing steps in order to further surveillance — we'll consider extending CALEA to every single packet, we'll do all we can to help telecom companies who have acted as private arms for over-reaching, illegal law enforcement activities, and more. Now we'll succumb to the desire to inspect the content of everything that happens online. An uproar would be appropriate right about now.

That inspection would inevitably be easier with cooperative/fewer Internet access providers with strong relationships with law enforcement. That inspection won't work as well with unbundled facilities and competitive providers. Indeed, that inspection is inconsistent with the desire to have truly highspeed Internet access.

So that's our vision right now - control, complacency, inspection, and fear. Not very encouraging. As The Guardian piece says about the UK regulator,

This is where Ofcom's complacency really grates. While observing that some countries may be ahead, it says: "We do not yet see evidence that the UK will be significantly disadvantaged economically or socially as a result."

OK, we do not yet see hard empirical evidence — mainly because it does not yet exist. But in three years, five years or 10 years, it will.

It's shortsighted to have the idea that it doesn't matter if the US has a complacent or non-existent highspeed Internet access policy in place — or a policy that emphasizes surveillance over every other factor. Of course it matters. We're monkeying destructively with our future. What's the institutional design that we're missing? Why is access to the Internet viewed as something terribly tricky that must be left to private vertically-integrated decisions? Why don't we have the intellectual infrastructure in place within government agencies to allow for more courageous or visionary thinking?

By Susan Crawford, Professor, Cardozo Law School in New York City
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