Three Degrees of Internet Regulation

In the early 1990s, the Internet morphed from a research/academic/military platform to today's foundation for commercial commerce. That was also the time when the first legislative attempts to regulate the Internet were initiated. While some attempts have been successful, most have not.

No entity

that is as complex and global as the Internet is completely free from regulation. The Internet's software and protocol infrastructure has been largely self-developed and self-regulated through national and international cooperative bodies. Internet content is often regulated through existing laws, including those covering telecommunications, copyright and patent, obscenity, and fraud, among others. The Internet's global nature also often results in clashes between laws in different countries. France, for example, has tried regulating Yahoo! and eBay auctions of Nazi-era artifacts under a French law that conflicts with U.S. free speech law.

The past failures to regulate the Internet have not prevented other attempts from being initiated, however. For example, three areas of Internet regulation are addressed in bills currently before Congress: content, international conflict, and -the most widely debated area of all-the basic foundation of the Internet itself.

Net Neutrality

"Net Neutrality" has become the buzzword surrounding efforts to set up different pricing structures for different types of Internet content. Since broadband Internet access through cable and telephone providers is now ubiquitous, these industries now maintain much of the Internet's communications backbone. These industries have discussed the possibility of establishing a tiered pricing structure so that those who want more valuable content would (or could) pay a premium for faster transmission. Content deemed less valuable would (or must) be transmitted at a slower rate. [Editor's Note: See our related story on page 1.]

The Net Neutrality debate emerged when e-commerce and content providers expressed concerns about the growing role of the cable and telephone industries as Internet service providers (ISPs). They worried that these companies could use their increasing hold on consumer Internet access to disrupt the flow of Internet content.

In 2005, the Federal Communications Commission adopted a policy statement that held that consumer DSL and cable Internet access were considered information services and not telecommunications services. The difference can be critical since telecommunications services are more heavily regulated than information services. Those regulations require providers to ensure nondiscrimination in access and pricing; consumer Internet access does not necessarily have these same protections.

Protecting the Internet

In one sense, the Net Neutrality debate is on the opposite side of typical Internet regulatory debates. Proponents of Net Neutrality argue that regulation is necessary to protect the integrity of and free access to the Internet; opponents argue that regulation will not protect the Internet and that it may even restrict Internet development.

ISPs are arguing that they should be permitted to charge a different price for higher speeds and service when moving content to the content consumer through their infrastructure. They note that Internet service is a finite resource, as with any commodity. High-bandwidth content, such as VoIP, digital music/ movies, and IPTV, use a greater percentage of that resource, so it should command a higher rate. In return for the higher rate, the content would get priority over less demanding content. The additional income would then support additional investments in network infrastructure.

Internet Development

Net Neutrality advocates (including content, hardware, and software providers) are concerned that different speeds will actually result in slower access to nonpremium content, and it could block content providers that don't pay for premium service. They also said content providers are likely to pass extra costs onto the consumer, while there is no guarantee that the ISPs will use the income for investment rather than maximizing shareholder profit. Both sides claim that the opposing position will stifle innovation: ISPs argue that additional regulation may prevent investment in Internet development; neutrality advocates argue that startup innovators may get shut out.

The debate has moved be fore Congress with several proposals to add Net Neutrality provisions to the existing law. None of the proposals has become law; the leading U.S. House proposal favoring Net Neutrality was voted down by a nearly 2-1 margin. In the Senate, Net Neutrality remains stalled in committee. Sen. Ted Stevens, R-Alaska, said the Senate Commerce Committee has "a massive disagreement over [N]et [N]eutrality" and that Net Neutrality "is not something that we can define."

Targeting Explicit Material

Renewed efforts to regulate or restrict access to sexually oriented sites are also before Congress. Social networking sites such as MySpace.com have refocused attention on people who use the Internet for child exploitation and child pornography. I wrote in my July/August column about a proposal to require library Internet filters to restrict access to MySpace. In June, the Internet Safety Act was introduced in the Senate; it would require "warning marks" on Web sites with sexually explicit material.

In June, hearings were also held before the House Energy and Commerce Committee on the "terrible scourge" of child exploitation. Among the suggested responses were blocking illicit Web sites, monitoring users of certain Web sites, criminalizing links to certain Web sites, using "search and destroy" bots, and targeting search engines. While none of these are yet law and the problem of child exploitation is tragic and real, several of these suggestions raise concerns about free speech, privacy, and other issues.

Global Online Freedom Act

Finally, the House is moving forward on the proposed Global Online Freedom Act that would make it illegal for Internet content providers to conduct business with countries that place restrictions on Internet access. This is largely in response to actions by some U.S. Internet companies that censored their content to do business in China.

While the information industry has been taking the Internet for granted, it is still relatively young and experiencing growing pains of youth. All these areas being considered for regulation are complex with reasonable positions both for and against regulation. Past regulatory efforts have not always met with success. For example, the CAN SPAM Act was supposed to make e-mail spam illegal. Although future regulations may not fare better, the debate focuses on the problem, which may be the best way to locate solutions.