Legislation 2.0, Part 2: Open networks, privacy, and beyond

by: Dick Durbin

Wed Jul 25, 2007 at 13:53

( - promoted by Matt Stoller)

Tonight at 7pm EST, we will be joined by Ben Scott of Free Press (www.freepress.net) who will address issues of net neutrality and open networks, as well as Marc Rotenberg of the Electronic Privacy Information Center (www.epic.org) to address issues of electronic information collection.

Hello again, I'm Dick Durbin.  For those of you who participated in last night's live blogging, thank you so much for the excellent comments. 

I think we started off this experiment in online bill drafting with a very successful evening.  It was helpful to hear your ideas about municipal broadband, data sharing, open access and the mix of incentives that would help build networks. These thoughts will undoubtedly help me draft legislation that addresses these policy issues.

As for tonight's discussion, I'd like to focus on what we should do to ensure that we can fully take advantage of the power of the internet - how to ensure that it continues to drive innovation and a diversity of views.

Dick Durbin :: Legislation 2.0, Part 2: Open networks, privacy, and beyond
One hot topic you've surely heard about is net neutrality - the principle that all content, regardless of its source or its destination, should be treated equally.  Very few people are in the middle of the road on this issue: to many advocates, it is the bedrock of today's Internet. They argue that this principle was the law of the land until the FCC recently stopped enforcing this provision.  Others, like the Hands Off the Internet Coalition, consider net neutrality a policy that would stifle innovation and slow the build out of networks.

In my opinion, the Internet as it works today, has been tremendously beneficial as a tool for commerce, public discourse, and education and health.  Part of the Internet's success derives from the concept of open access that all participants and all information is treated the same. Only fairly recently have these rules begun to change.

I believe that those who want to change how the Internet functions have the heaviest burden of proof to meet.  The onus rests on those who want us to allow the internet to migrate away from an open access network.  And, this is where I'd like to kick our argument off tonight.  How do you feel about this question of access and content?

Of course, this isn't the only issue related to how we use the internet: many are concerned that so much of their personal information is available online, collected by companies to make it easier to segment and sell audiences to advertisers. Should there be limits to the information that can be collected about us online?

Let's get this discussion started. I'd like to hear your thoughts. 


Dick Durbin

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National Conference for Media Reform ??? (0.00 / 0)
Hi Ben Scott,

As your group knows, a lot of the action in media reform takes place in the states; thanks for your efforts in keeping us aware of those via your site.  But you could help us get organized on the state level.  We have trouble finding each other, but you have some good contact resources.  Would FreePress be willing to act as matchmaker for all NCMR 2007 attendees from a specific state?  That is, could you:
1. comb through the registrants to find their states
2. send an email to each person, asking if they are willing to be put in touch with others from their state, and if anyone is willing to act as state sparkplug
3. if no one on the list can be the sparkplug, FreePress would act as sparkplug at least for a while.

I know it's asking a lot, but I'd be willing to donate some money for this effort.  Anyone else?

innovation and barriers to market entry (0.00 / 0)
First off: I take it the lack of comments here means people are holding their thoughts for the live blog.  I'll repost this then, but thought I'd comment here to give people a chance to think things over ahead of time.

I think the innovation argument that hands off puts forth is disingenuous at best.

If you were to set up a website or online service, there are up-front costs associated.  You need enough servers and bandwidth to fulfill demand for your service or you won't be able to break even or make a profit (if that's your motive).  And those things cost money.

So, even though there's a neutral network and  everybodie's data packets are supposedly treated equally, there still exists a monetary barrier to entry into the market.

Were a startup required to also pay tiered access fees, that would be an even greater barrier.  This is a policy that stifles innovation by erecting economic protections for incumbent or monied actors while locking out new actors in the market with fresh, brilliant ideas.

Further... with better, more diverse content and services available online comes increased demand for faster network service.  The argument for tiered service plans to fund network expansion is backwards.  It limits the possibilities websites, video apps and such are able to realize, reducing demand for broadband services and thus limits revenues available to fund network rollouts.

Hands-Off is NOT a Citizens Group (0.00 / 0)
Senator Durbin,

I agree with you that, "Part of the Internet's success derives from the concept of open access that all participants and all information is treated the same."  I'd go even further; this is the Internet essential difference from all other communications networks.

But please be careful when you suggest that there's some kind of equivalence between netizen-citizens and the "Hands Off the Internet Coalition." "Hands Off" is an astroturf organization started and funded by the Bells.  I met Chris Wolf, the Co-Chairman of "Hands Off," on February 13, 2007, at the FTC hearing on broadband competition, and he told me personally (and with some pride!) that he personally approves each "Hands Off" blog post before it is posted.  It is NOT a group of citizens, it is a top-down astroturf organization of paid PR professionals falsely posing as a citizens group.

"Hands Off" frames Network Neutrality (NN) as a fight between Google and Verizon, but it is not.  It is really a fight of individuals to have a voice and small innovators to succeed in a meritocratic marketplace.  But "Hands Off" frames NN as a business issue and asks whether we want "government interference" or a "free market." This is false framing.  The Bells got big because they were a part of a U.S. Government regulated monopoly, not because they offered better products and got ahead in a merit-based marketplace.

We actually had broadband competition briefly in 1999 and 2000, and we saw hundreds of competitive telcos and internet service providers appear, despite Bell resistance, slow-rolling and litigation.  Then the Bells got a bunch of FCC and court rulings that gutted the practice of unbundled network elements, culminating in the FCC Triennial Order of 2003 (which privatized fiber in the loop), the Brand X decision (which privatized cable Internet access) and the FCC's DSL order of 2005 (which privatized DSL).

The bottom line is Don't. Trust. The. Bells. "Hands Off" is the tip of the phony Bell campaign to pour the Internet into a Bell mold. Please don't mistake them for "the voice of the people."

David I

David I -------

To get a neutral net, we need structural separation! (0.00 / 0)
Senator Durbin,

I agree with you that Net Neutrality is essential to democracy and a meritocratic marketplace in applications and services, but I am concerned that if Congress passes a law that simply says, "Telcos must play nice and offer non-discriminatory Internet access," that the telcos will completely eviscerate this law in a few short years.

In the past, the Bells said they wanted competition, but they gutted it.  Now they say they will honor a (voluntary) commitment not to "block, impair or degrade any content application or service," but, they say, we don't need a network neutrality law to make them behave. Yeah, right.

The Bells stand to make billions if they do get to put toll gates between us and our political discourse, us and our friends, us and our purchases, us and our travel plans, us and our medical information, so it is no wonder they don't want a law.

A neutral Internet is fundamental to our future as a nation, to our economy, to our freedom, but I do not believe that a Network Neutrality law will ensure a neutral Internet.  We have seen the Bells fight persistently, for years and years, to eviscerate laws that impede their legacy business.  They will do it again with a network neutrality law, for certain. {aside: Do you know anybody who has found how to get the $10/mo DSL that ATT committed to offer as a merger condition last December? Neither do I!}

A law mandating Network Neutrality is, to the  Bells, a law against their way of doing business.  So, at minimum, it must have teeth, billions in fines for violators and long jail sentences for their executives.  A more focussed law would remove the inherent conflict by making it illegal for the Bells (or any large provider of Internet access) to have any financial interest in what it carries.  This is called Structural Separation. 

The 1996 Act's unbundling did not work because of how the Bells work, and a Net Neutrality law that merely mandates good behavior will get the same result. I believe we must proceed to the next level and mandate that the Bells either divest of Internet access businesses or divest of all interests in what is accessed. 

David I

David I -------

Implementing structural separation (4.00 / 1)

Nice to see you posting on this thread.  Can you elaborate more on your vision of Structural Separation, including how it would be applied to cable operators--who have been serving as video distribution gatekeepers for decades--and also to both pipe-owners' delivery of voice services. 

For example, would cable operators be restricted from offering the video services they already offer, or just IP-based video services, or just Internet-delivered services?  And if they could retain direct control over their existing QAM-based digital video offerings, would there be any restrictions on how this could relate to their Internet access offering, say, in terms of bandwidth allocation, technology, integrated services, marketing, etc.? 

A somewhat different version of that question might apply to AT&T's IP-based U-verse video offering, which the company seems to be saying is neither "cable TV" or "Internet TV" service, though it resembles both in key respects (sorta reminds me of Dick Cheney saying heâ??s neither part of the executive or legislative branch).  The same is true of Verizon's FiOS service, which is presently a mix of QAM-based digital channels and some IP-based video, including some integration between the two.

Part of why I'm asking is that, while I share your appreciation for structural separation as a simple, elegant and efficient solution if we're starting from scratch, I have my doubts about implementationâ??not only the political challenges, but also the more practical aspects of taking this step at this point in the industry's evolution.

While I'm open to being convinced, I lean toward approaches that create viable new facilities-based entities that adopt "open access" models. 

These could include requirements for open-access networks in part of the 700 MHz band, as well as unlicensed use of the relatively abundant broadcast "white space," which is the subject of a pending FCC proceeding.  It could also involve legislation to prohibit states from restricting community-controlled broadband networks. 

I think these three elements, especially if combined, could lead to a viable "third pipe" based on a public utility "IP connectivity" model.  And, as the wireless elements of it were deployed, this could help drive demand for and be coordinated with a community fiber deployment plan.  The latter might start with connecting government sites, businesses and schools, as well as providing "community wireless" backhaul service.  Over time, it could cost-effectively expand to residential areas.

[ Parent ]
Core Neutrality campaign (4.00 / 1)
Hello Sen. Durbin,

I am Campaign Director for a recently launched coalition called Keep The Core Neutral, and I would like to invite you to sign our petition and join our coalition.

Our web site is found at:  http://www.keep-the-...

Core Neutrality is related to the broader issues of Net Neutrality, but it is specifically targeted to ICANN (the Internet Corporation for Assigned Names and Numbers), and it is initially concerned with a new policy that is being discussed right now at ICANN that would dramatically expand the number of generic top-level domains (gTLDs, such as ".com" or ".net") approved each year by ICANN.

There are troubling policies being considered that would allow ICANN to reject applications for new gTLDs on the basis of criteria other than narrow technical and operational matters.  These criteria might include trademark claims, claims regarding "morality" or "public order" or "community" based claims that have no specific reason at all.

In short, the threat here is to institute a sort of "private world law" for censorship of new gTLDs in a manner of prior restraint.

ICANN currently has only weak authority under a multi-year renewable contract with the U.S. Department of Commerce's National Telecommunications and Information Administration, and an NTIA official serves as a representative for the US government on ICANN's Governmental Advisory Committee (GAC).  The policy-making process at ICANN is rather arcane and ad hoc, and its governance structure is not systematically accountable to the general public interest, but rather tends to be influenced by wealthy special interests.

While there may not be a whole lot to be done with regard to federal legislation to influence ICANN's internal governance processes, your personal support would help us by increasing our visibility and attracting more members of the public around the world to join our coalition.  In addition, if the Senate conducts oversight on DoC and NTIA, then perhaps this issue might be brought up for explicit examination.

Until now, ICANN has operated essentially under the radar of general public awareness.  Over the nine years of its existence, its revenues (gleaned from fees collected from registries and registrars of domain names) has ballooned exponentially as the number of domains on the Internet has grown exponentially.  In 1998 ICANN had startup loans totally just over $1 million, and in the new fiscal year its projected revenues have grown to over $49 million, with the bulk of that growth in just the last few years.

We at the Keep The Core Neutral Coalition consider Core Neutrality to be an important component of Net Neutrality in general, and I hope you will join with us in bringing attention to the policy-making process at ICANN.  The policy governing the approval of new gTLDs may be voted on by the ICANN Board as soon as the next ICANN Board meeting in Los Angeles, Oct. 27 through Nov. 2, 2007, so we are hoping to build our campaign quickly over the next few months.

Thank you for your strong support of principles of an Open Internet.  This is a critically important issue for the Fourth Estate, and we need to get it right in order to protect our democracy.  Your leadership is inspiring and gives those of us who care about participatory communication great optimism and hope.

Best wishes,

Dan Krimm
Campaign Director, Keep The Core Neutral

ICANN (0.00 / 0)
Hi Dan and hi everyone else who's here this evening.  Thanks for being here.  My name is Dave and I'm a staffer with Senator Durbin.  I was wondering if you could tell me a little bit more about the ICANN system today and what changes are being considered that would disrupt this system?  Who controls that system right now?


[ Parent ]
the ICANN system (0.00 / 0)
Hi Dave,

ICANN is not easy to explain in just a few words.  It has an odd organizational structure with a Board of Directors (which votes on all policy) surrounded by a number of ad hoc "supporting organizations" and "advisory committees" populated by self-selected participants in "constituencies" that recommend policy to the Board.  All of these participants are unpaid (thus those who can participate do so at the pleasure of their paying jobs).

The organizational structure of ICANN can be found here:


As for the gTLD policy, it has been very much ad hoc and cumbersome in the past.  Only a handful of new gTLDs have been approved in the nine years since ICANN replaced the single individual (Jon Postel) who used to fulfill this function up until 1998.

A recent instance of a gTLD application was quite controversial (it was for ".xxx" and it was intended for adult content).  It was rejected in a process that was at least as controversial as the application itself.

One of the board members made some comments in dissent that are worth a look when one gets a chance:


The current debate at ICANN regarding approval of new gTLDS has been evolving over the last year or more, and contains a combination of recommendations.  The main change is that there will be a process set up (as yet not entirely defined in detail) to streamline the approval of many more new gTLDs, which is good.

But there are recommendations that are still under consideration by the supporting organization for generic names (GNSO) that would allow rejection of gTLD applications for reasons as described above (trademark claims, "morality", "public order" etc.).

In essence ICANN would be setting itself up as a "private world law" jurisdiction with its own legislation, execution/enforcement and adjudication, but without a truly representative consent of the governed and accountability to the general public interest.

Once this jurisdiction is in place, there is a potential to expand it to broader policy realms, quite possibly to regulate content itself (this is because the justifications given for regulating domain names are content-driven, and not simply a reference to their function as addresses).

ICANN's relationships with such entities as "root server operators" and "registries" and "registrars" as well as ISPs are partially informal, but with an institution growing as fast as ICANN is and with its ambitions for greater power, as driven the by special interests that tend to influence policy at ICANN disproportionately, there is a lot to worry about here, and a steep slippery slope that is about to be embarked upon.

It is the very lack of definition in the process, the authority, and the accountability that is the chief problem here, and it currently provides a prime location for "venue shopping" by special interests.

So bottom line: it can be difficult to determine just "who controls" the ICANN system right now.  It is still in the process of "inventing" its process in real time, and that in itself is a bit alarming.

One good thing at ICANN is that it has made some effort to be transparent in its policy-related deliberations, so anyone can look at the email list archives, drafts of working documents, transcripts of conference calls, etc.  But looking at that "raw footage" is also resource-intensive, so the transparency is perhaps not as effective as it might seem.

But for those who are interested and can allocate the time, it can be an illuminating learning experience indeed.


[ Parent ]
I have to confess that I am not up on the whole Net Neutrality thing----YET!!!! (0.00 / 0)
I am now getting into it and see what all this is about, I am reading the diaries here with immense interest and am looking forward to learning more and more and more....

Thank you,

What we do today, directs where we will be tomorrow. (0.00 / 0)

I would like to join in with everyone else here and say thank you for working toward improving open access to our government especially by employing this medium. This innovation is a perfect example of the applications that can be seamlessly introduced if there is no requirement to "get  the network owner's permission" and clearly demonstrates that, left on its own, the net has the potential to evolve into the powerful communications tool that we would all like to see it become.

Conversely, I would like to point out that if the internet was allowed to become a network where innovation could be stifled through regulations designed to allow external control, many of the uses we routinely see today would never have come into being.

As an example, I would like you to take a look at 1992, a time when the telecommunications industry had no interest in developing the internet because they lacked the necessary vision to conceptualize what this infrastructure might become. I would suggest that the same mindset continues today and that the overwhelming majority of new applications have not only been developed outside of the telecommunications industry's control but are, in fact, potentially disruptive to their business models. I think we can clearly see what the introduction of VoIP has done to lower the cost of telephone service in this country and I look to a time when Vo-WiFi/Vo-WiMAX will do the same to the mobile communications market, an industry that generates more complaints yearly than the used car industry.

With respect to who should make changes and how those changes should be implemented, I believe that you are completely correct, we need overwhelming proof that whatever changes are proposed clear show a dramatic improvement over what we already have. Thankfully, this should be reasonably easy for anyone to prove by using the following temperature gage, if the market wants it, they will demand it.

What the last decade and a half clearly demonstrates is that the Internet has been driven by what the market wants. So, if there is a change that should be proposed, even what appears to be a very minor change, I would suggest that we make whoever is suggesting this change, build a prototype network that can demonstrate the features and benefits of their  proposal. If, the product or service is that good, it will not need legislation, it will be adopted willingly and paid for by an eager customer base. Naturally, should this level of demand not be generated using the free market, the idea is a bad one and probably based on faulty assumptions of what the American people and the people of the world are demanding.

Moving on to the issue of personal information, this is a troublesome issue and we are now seeing it cross over into a legal one where there are instances of companies asking for Social Security Numbers, something that should be strictly forbidden. In the last couple of years we have seen a combination of increased identity theft coupled with companies that store data, including government data banks, being "lost" or hacked. In this day and age, this is something that could quite literally turn into a life and death scenario.

Thankfully, there is an easy solution, in my opinion. I would propose that we make it a very expensive proposition for any private company or government agency to lose or otherwise compromise the private data they collected. This now puts this entities into a position where they will be diligent with our most precious information or they will pay for the damage they cause us by not being careful with this trusted responsibility. As an absurd example, if a private company loses a person's personal information and has to pay compensation of $100,000 to each customer they impact, I would bet that the problem of companies being cavalier with their security practices would end overnight. Even better, with this level of risk to these private firms being mandated, I would think that most of these companies would no longer be interested in accepting this risk as there is too much associated liability.

From my perspective, there should be every possible discouragement implemented from anyone collecting private information and in most cases anonymous information is perfectly suitable for advertising or web surfing tracking needs. At the same time, I do believe that the consumer should be free to "opt in" to whatever services they choose - but once again with the assurance that their information is secure and will not be compromised.

Again, thank you for engaging us all here tonight and I believe you are taking a step towards inviting the American public back into the dialog that should always have been here between the people and their elected representatives.


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